S.Mariappan, v. Palanichamy,

O R D E R The present Civil Revision Petition has been by the petitioner under Article 227 of Constitution of India, against the order dated 15.09.2017 passed by the I Additional District Munsif, Dindigul in O.S.No.205 of 2007 referring to the report received from District Registrar, Dindigul in D.No. 4429/A1/2017, dated 28.08.2017.

¶2The petitioner herein is the plaintiff and the respondents herein are the defendants before the Court below.

¶3For the sake of convenience, the parties will be referred to as per the litigative status before the trial Court.

¶4The learned counsel appearing for the petitioner would submit that the impugned order of the Court below dated 15.09.2017, directing the petitioner herein to pay stamp duty with penalty in sum of Rs.2,09,980/- (Rupees Two Lakhs Nine Thousand Nine Hundred and Eighty only), based upon the plaint document No.6, is contrary to the provisions of Transfer of Property Act. It is the further submission of the learned counsel for the petitioner that the plaint document No.6 is only a Uzhavadai Pathiram (cotil gj;jpuk); and the same is not the usufructuary mortgage. Hence, prayed to allow this petition.

¶5For easy consideration and ready reference, the relevant portion of the said document is extracted: "mbapy; fz;l nrhj;ijg;nghWj;J 1.09.1992 k; Njjpapy; ek;kpy; 2 tJ egUf;F 1 tJ egh; Mj;Jhh; S.R.O.661/92 k; ek;guhf &.55,000/- f;F vOjpf;nfhLj;Js;s <Lgj;jpuk; -1 ek;kpy; 2 tJ egUf;F ek;kpy; 1 tJ egh; &gha; 60>000/- f;F vOjpf;nfhLj;Js;s GNuh Nehl;L -2> ek;kpy; 3 tJ egUf;F ek;kpy; 1 tJ egh; 25.04.96 k; Njjpapy; &.60>000/- f;F vOjpf;nfhLj;Js;s GNuh Nehl;L 3 Mf Nkw;gb 3 %d;W mapl;lq;fspd; %yk; $ba fld; njhif &.1>75>000/- f;Fhpa tl;bf;Fg; gjpyhf ,jdbapy; fz;lJk;> ek;kpy; 1 tJ egUf;F nrhe;jkhd mbapy; fz;l GQ;ir Njhl;lk; tpJit ,J Kjy; tUlk; 3 %d;Wf;F ek;kpy; 2> 3 egh;fs; cotil nra;J mDgtpj;J tuNtz;baJ vd;Wk;> Nkw;gb tha;jh Kbe;j ek;kpy; 1 tJ egh; Nkw;gb fld; njhif &. 1>75>000/- k; ek;kpy; 2> 3 egh;fs; trk; nrYj;Jk; fhyk; tiu ek;kpy; 2>3 egh;fNs epyj;ij cotil nra;J tuNtz;baJ vd;Wk;> ,dp ek;kpy; 1 tJ egh; ek;kpy; 2>3 egh;fSf;F tl;b nrYj;j Njitapy;iy vd;Wk;> ek; %thpd; rk;kjpapy; vOjpf;nfhz;l th;j;jkhdk;."

¶6On perusal of the same, the persons numbered in 2 and 3 in the said deed were permitted to do agricultural operation in the property, and also permitted to retain the profits in lieu of the payment of interest.

¶7At this juncture, this Court would like to refer to Section 58 (d) of the Transfer of Property Act is as follows: "Section 58. "Mortgage", "mortgagor", "mortgage-money" and "Mortgage – deed" defined.- .......

(d)Usufructuary mortgage. —Where the mortgagor delivers possession 1[or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property 2[or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or partly in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary martgage and the mortgagee an usufructuary mortgage."

¶8According to the above Section, where the mortgagor delivers possession and authorises him to retain such possession and also permitted to receive rents or profits of the property in lieu of the interest, then such a transaction would squarely comes within the definition of "Usufructuary mortgage".

¶9Therefore, this Court is of the view that the impugned order passed by the Court below on 15.09.2017 is perfectly in order and this Court could not find any infirmity in the same.

¶10In the result, this Civil Revision Petition is dismissed. There shall be no order as to costs.

16.08.2023 NCC : Yes/No Index : Yes / No Internet : Yes / No ebsi To

¶1The I Additional District Munsif, Dindigul. C.KUMARAPPAN,J. ebsi C.R.P(PD)(MD)No.917 of 2018

16.08.2023

-BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 16.08.2023 CORAM: THE HONOURABLE MR.JUSTICE C.KUMARAPPAN C.R.P.(PD)(MD)No.917 of 2018 S.Mariappan ... Revision Petitioner/Plaintiff -vs- 1. Palanichamy 2. Tmt.Muniammal ... Respondents1 and 2/ Defendants PRAYER: Civil Revision Petition is filed under Article 227 of Constitution of India, against the order dated 15.09.2017 passed by the I Additional District Munsif, Dindigul in O.S.No.205 of 2007 referring to the report received from District Registrar, Dindigul in D.No.4429/A1/2017, dated 28.08.2017. For Petitioner : Mrs.Juliet Latha For Respondents : No appearance