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Sornammal Vs. Thangavelu Mudaliar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1940Mad412; (1940)1MLJ240
AppellantSornammal
RespondentThangavelu Mudaliar and ors.
Cases Referred and Ram Ratan Sahu v. Mohan Sahu
Excerpt:
.....in suit was not included in the suit for partition or in other words that it had not formed the subject-matter of that suit, and since it was for the defendant, who had raised the objection to show that the mortgage in suit had not formed the subject-matter of that suit, he ought to be, in the absence of any evidence on the record, held to have failed to establish his objection. it may be that a court would in certain exceptional cases refrain from passing a decree in favour of a plaintiff when it finds that all the parties interested in the subject-matter of the suit have not been impleaded but this rule can have no possible application when on account of the death of her sister although it occurred during the pendency of the suit the plaintiff was the only person, when the case was..........of the plaint in the partition suit it came to a finding that it was difficult to say that the suit mortgage formed part of the subject-matter of the suit.' how that inference could have been drawn by the trial court, i find it difficult to say myself unless it was of opinion that it was for the plaintiff to produce the copy of the plaint and to show that the mortgage in suit did form the subject-matter of the suit. the same contention was put forward once again before me; but i find myself unable to assent to the proposition that it was for the plaintiff to show that the decree was admissible in evidence when she was not even aware of the ground on which the validity of the decree or of the proceedings was impugned. it may be said that to expect the defendant in this case to prove a.....
Judgment:

Abdur Rahman, J.

1. The facts out of which this appeal has arisen are not in dispute and lie in a narrow compass. A mortgage was executed on the 24th April, 1915, by one Kandaswamy, father of defendants 1 and 2 in favour of Muthukumaraswami Pillai who died in 1918 leaving him surviving a widow and two daughters. The widow appears to have died shortly after her husband and we are not concerned with her in the present litigation. The money due under the mortgage was not paid and one of Muthukumaraswami's daughters brought the present suit in June, 1932, for the sale of mortgaged property but she did not implead the other daughter as a party. This led the third defendant, who had purchased the mortgaged property from Kandaswamy and undertaken to discharge the mortgage debt, to raise the objection that the plaintiff was 'not entitled solely and exclusively to sue on

2. The determination, of the question whether the plaintiff was entitled to sue depends mainly on a compromise arrived between her and her sister on the 8th October, 1930, in a suit for partition instituted by the latter in the Court of the District Munsif of Mayavaram (O.S. No. 5 of 1930) and embodied, in a decree (Exhibit D). The lower appellate Court was of opinion that the decree embodying the compromise was inadmissible in evidence for want of registration as the mortgage in suit had not formed the subject-matter of that litigation and did not therefore fall within the category of decrees which were exempt from registration. This decision has been challenged on three or four grounds: - firstly that the suit (O.S. No. 5 of 1930) was for general partition and the mortgage-deed must be, in the absence of any evidence to the contrary, presumed to have formed the subject-matter of that suit; secondly, because no rights in the mortgage were created in the plaintiff for the first time and the decree or the compromise on which the decree was based only recorded or recited an event which had happened in the past. Mr. Raja Aiyar has, in the alternative, submitted that even if the decree were held to be inadmissible in evidence, the decree passed by the trial Court should not have been set aside as the event of the plaintiff's sister's death which occurred during the pendency of the suit could not have been ignored and the plaintiff's capacity to sue, even if defective at the time when the suit was instituted, could not be held to have remained so at the time when the suit came up for trial. In the end it was urged that the suit could not have been dismissed for non-joinder of the plaintiff's sister and it was incumbent on the lower appellate Court to deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. Mr. Ramaswami Aiyar on the other hand contends that in the face of a concurrent finding by both the lower Courts to the effect that the mortgage did not form the subject-matter of the suit for partition, it would not be possible for this Court to hold otherwise. He also contended that Clause 7 of the decree could not be construed so as to contain a record merely of a past event. The present suit was not, according to him, dismissed on account of non-joinder but really on a question of limitation as it was instituted shortly before the expiry of the period of limitation provided for such suits and would have met the same fate even if the plaintiff's sister had remained alive. He also submitted that the plaintiff's status on the date of the suit could not be improved by the sister's subsequent death and it is only with the date on which the suit was instituted that we are now concerned.

3. In order to appreciate the various contentions raised by the parties it would be better to have a clear idea as to what this clause in the decree actually stated. It reads as follows:

As regards the recovery by the deed for Rs. 1,500, executed on 24th April, 1915, by Kandaswami Mudaliar in favour of the said Muthukumaraswami Pillai as aforesaid, the plaintiff has no objection whatsoever.

4. Learned Counsel for the respondent contends that the translation printed on the record is not quite correct and suggests it should have been as follows:

The plaintiff has no objection to the first defendant solely collecting the mortgage deed dated 24th April, 1915, executed in favour of the aforesaid Muthukumaraswami Pillai by Kandaswami Mudaliar for Rs. 1,500.

5. It would be quite sufficient for the purpose of this appeal to accept the translation given by Mr. Ramaswami Aiyar and proceed to examine the clause on that basis. A careful reading of this document would show that whatever the arrangement between the parties might have been and without going into the question whether it did or did not form the subject-matter of the partition suit, the words only convey the idea that the plaintiff's sister had no objection to the plaintiff collecting the amount of the mortgage in suit herself. In other words they amount really to a consent or authority given by her sister to the plaintiff to recover the mortgage amount. Clause 7 of the decree is preceded by another clause in which the plaintiff had given a similar authority in almost identical words to her sister in regard to another mortgage, although it was for a much smaller amount. It is true that the plaintiff has in paragraph 5 of her plaint alleged that her sister had renounced her claim to this mortgage 'by virtue of the decree in O.S. No. 5 of 1930', but are the Courts bound as seems to have been stated by the Courts below, to hold a document to be inadmissible in evidence only because a party has tried to put an interpretation on it, although ' favourable to himself or herself, which is not borne out by its words and when the Court finds that interpretation to be wrong and the document admissible in evidence on a correct interpretation? I am of opinion that the interpretation placed by a party on the document would not prevent the Court from coming to another conclusion and giving effect to the finding to which it may arrive. But since in view of certain observations made by me in Court when the case was being argued this question was not fully discussed by Mr. Rajah Aiyar and the learned; Counsel for the respondent did not apparently for the same reason think it necessary to refer to it in his reply. I have decided not to pursue this part of the matter any further and would refrain from expressing any opinion on it.

6. This brings me to the first contention raised by Mr. Rajah Aiyar. He contends that it has not been proved on the record that the mortgage in suit was not included in the suit for partition or in other words that it had not formed the subject-matter of that suit, and since it was for the defendant, who had raised the objection to show that the mortgage in suit had not formed the subject-matter of that suit, he ought to be, in the absence of any evidence on the record, held to have failed to establish his objection. He also complains that the pleas raised by the third defendant in paragraphs 12 and 13 and on behalf of the fourth defendant in paragraphs 7 and 9 of their written statements were vague and they should not have been allowed to take the objection as to the inadmissibility of the decree for want of registration in the lower appellate Court. I do not feel impressed however by this complaint. The objection that the plaintiff was not entitled to sue alpne was specifically raised by the third defendant and it was unnecessary for either of these defendants to anticipate, even if they are supposed to have knowledge of the fact, the line of action to be adopted by the plaintiff in maintaining her locus standi to bring or continue the suit. It was incumbent on the plaintiff to show how she was entitled to sue in spite of the right having devolved on her and her sister jointly. Once she succeeded in showing consent or authority or any other fact which would entitle her to bring the action alone, the onus would shift to the other side to rebut the evidence adduced on behalf of the plaintiff. By producing the decree in the partition suit, the plaintiff had at least prima facie discharged the onus, and it was thus for the defendant to show that the decree was inadmissible in evidence for want of registration when' we find that ordinarily all decrees or orders passed by Courts are stated in Section 17(2)(vi) to be exempt from registration. The learned Counsel for the respondent urges that the respondent has succeeded in establishing that the mortgage in suit did not form the subject-matter of the partition suit and tried to take shelter under what he calls a concurrent finding of both the lower Courts. I have gone through paragraphs 14 to 15 of the trial Court's judgment and paragraphs 3 to 7 of the lower appellate Court's judgment and am of the view that although there is a reference to this question in paragraph 14 of the trial Court's judgment, yet I cannot say if there is a definite finding on that point in favour of the respondent. Nor can I trace a finding on this question in the judgment of the lower appellate Court. My attention has been drawn however by the learned Counsel for the respondent to the decree and to the schedules which were annexed to the decree and it has been argued that if the mortgage deed mentioned in clauses 6 and 7 of the decree had formed the subject-matter of the partition suit, they would have been mentioned in the schedules. This was the only evidence to which reference was made by the trial Court: and in the absence of a copy of the plaint in the partition suit it came to a finding that it was difficult to say that the suit mortgage formed part of the subject-matter of the suit.' How that inference could have been drawn by the trial Court, I find it difficult to say myself unless it was of opinion that it was for the plaintiff to produce the copy of the plaint and to show that the mortgage in suit did form the subject-matter of the suit. The same contention was put forward once again before me; but I find myself unable to assent to the proposition that it was for the plaintiff to show that the decree was admissible in evidence when she was not even aware of the ground on which the validity of the decree or of the proceedings was impugned. It may be said that to expect the defendant in this case to prove a negative would come into conflict with the rule of evidence that the onus of proof lies on the party who asserts the affirmative of a fact. But a negative allegation must not be confused with the denial of an affirmative one. If a party wishes the Court to believe in the non-existence of a fact, it would be his duty to prove that it did not exist. A reference to the schedules attached to the decree is inconclusive and one cannot say if any arrangement or other facts had not been pleaded in that plaint in regard to the mortgage deeds referred to in Clauses 6 and 7 of the decree which would not bring them within the ambit or the subject-matter of that suit. In the absence of any definite evidence on the record I must hold that the decree embodying the compromise was not inadmissible in evidence and could have been looked at to show whether the plaintiff was entitled to sue alone on the basis of the mortgage deed. As already stated there is no finding by the I ower appellate Court that the mortgage in suit had not formed the subject-matter of the partition suit; but had there been one, I would have been in the absence of any evidence of that fact on the record compelled to disregard it.

7. In view of the conclusion to which I have arrived in regard to the first contention it seems to be unnecessary to decide the second objection that Clause 7 of the decree was merely a record of a past action and did not in itself purport or operate to create, declare, assign, limit or extinguish some right, title or interest of the value of Rs. 100 or upwards in immovable property for the first time. There is no doubt that if, as stated in paragraph 5 of the plaint, the plaintiff's sister Sivabagyam renounced her claim to the mortgage for the first time by means of the compromise which was embodied in the decree and if the mortgage did not form the subject-matter of the partition suit, the decree could not be said to contain a recital of a past event and would not be without registration admissible in evidence-But since it has not been established that the mortgage in suit did not form the subject-matter of the first litigation, it is unnecessary to examine the matter any further.

8. Assuming however that the decree was inadmissible in evidence and conceding for the sake of argument that my decision on the first point was not correct, the last contention put forward by Mr. Raja Aiyar has, in my opinion, considerable force. The provisions contained in Order 1, Rule 9 of the Code of Civil Procedure are clear enough and make it incumbent on the Court to deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. It may be that a Court would in certain exceptional cases refrain from passing a decree in favour of a plaintiff when it finds that all the parties interested in the subject-matter of the suit have not been impleaded but this rule can have no possible application when on account of the death of her sister although it occurred during the pendency of the suit the plaintiff was the only person, when the case was taken up for trial, who was entitled to recover the entire mortgage amount. It is unnecessary to consider here cases where an effective decree could not have been passed on account of a non-joinder of a necessary party or to cases of joint trustees where a trust had vested in them as a body or even those where a plaintiff co-mortgagee was suing for his share of the mortgage although authority is not wanting both of this and other Courts where a portion of the mortgage amount has been decreed in favour of one co-mortgagee without impleading other co-mortgagees. (See Seih Bansiram Jashamal v. Gunnia Naga Aiyar : AIR1930Mad985 , Baldeo Prasad v. Bhola Nath (1929) I.L.R. 52 All. 134 and Peria-karuppa v. Satyanarayanamurthi : AIR1937Mad136 .) Nor is it necessary here to consider cases where the provisions of Section 22 of the Indian Limitation Act have been held to apply only when a defendant, against whom a relief was sought in the suit, was attempted to be added and not to apply when merely formal defendants were asked to be added after the expiry of the period of limitation more or less to safeguard the rights of the original contesting defendants. (See Jamna Kunwar v. Kunj Behari : AIR1937All502 and Bishen Singh v. Pirthi Chand A.I.R. 1937 Lah. 193.) In a case like the present Section 22 of the Limitation Act has no application at all. No new plaintiff or defendant was being substituted or added in this case. Nor could the plaintiff have been said to be claiming her title through her sister Sivabagyam but must be held to be doing so through her deceased father. The plaintiff's share in the mortgage was simply augmented on account of her sister's death and the plaintiff's title to the whole of the mortgage amount, even if incomplete when the suit was instituted by her was completed by the rule of survivorship. The learned District Judge overruled this contention on the ground that the plaintiff's sister's claim was barred by limitation when she died and the right of survivorship did not accrue to the plaintiff until after that date but it lost sight of the obvious fact that the plaintiff had not sued for half of the mortgage amount but was suing for the whole of the money due under the mortgage deed which she was, according to her allegations, entitled to recover herself. The defect of the want of registration of the decree, even if there was one, was thus cured by Sivabagyam's death. The contention therefore that she was not entitled to the decree passed in her favour by the trial Court must be repelled. The only thing that could possibly be urged, and which was rightly not urged by the learned Counsel for the respondent, was that the Court should not have taken notice of the events which happened after the institution of the suit. That this can be done and at times it is essential for the Courts to do, goes without saying. One need not be hyper-technical in these matters and ought to take such events as have occurred after the institution of a suit into consideration in order to avoid further unnecessary litigation and to do complete justice between the parties. Instances where learned Judges have taken notice of such facts are very large but it would be sufficient to cite only two here - Appalasari v. Kannamma Nayuralu : AIR1926Mad6 and Ram Ratan Sahu v. Mohan Sahu (1907) 6 C.L.J. 74. I am therefore of opinion that the trial Court was fully justified in taking notice of Sivabagyam's death and granting a decree to the plaintiff.

9. The appeal must for the above reasons succeed and is allowed. The decree of the lower appellate Court is reversed and that of the trial Court is restored except that it seems to be unnecessary in the circumstances to order the plaintiff to furnish security to the extent of half the mortgage amount. Time for payment, two months. The plaintiff will have her costs both here and in the lower appellate Court.


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