LAKSHMAMMA Vs. RATHNAMMA AND OTHERS

JUDGEMENT

(1.) This is a plaintiff's revision directed against the order dated 31.10.2000 passed by the learned Additional Civil Judge (Jr. Division), K.G.F. regarding the admissibility of the suit document in O.S. No. 105/1997.

(2.) The brief facts are as follows : The petitioner had filed a suit for recovery of Rs. 30,000.00 which she had lent to the respondents 1 and 2 on 6.11.1995 on their executing an agreement of mortgage containing a personal covenant to pay Rs. 30,000.00. The respondents, appeared and emphatically denied that they executed the agreement of mortgage and also denied the loan transaction. Issues were framed and at the time of plaintiff's evidence the original agreement was sought to be marked which was objected by the respondents. The trial Court after hearing both parties, after considering material on records has rejected the request of the petitioner holding that, the document sought to be marked by her (un-registered mortgaged deed) is inadmissible in evidence, hence the same cannot be marked by its order dated 31.10.2000. Assailing the correctness of the impugned order, the petitioner has presented this revision petition.

(3.) The principal submission of the learned Counsel for the petitioner is that, the order of the trial Court is ex facie liable to be set aside and the same is not based either on documentary evidence or on the oral evidence led by the parties. Further, the case of the petitioner is that, there is a lot of difference between mortgage; agreement to mortgage. It is a settled principle of law inasmuch as even the privy council was held that the agreement of mortgage is not compulsorily registerable and the order of the trial Court is unsustainable as it has committed a jurisdictional error in terming an agreement of mortgage as a mortgage deed. Further, he has submitted that, the reliance placed by the trial Court is not at all applicable to the facts and circumstances of the case. It is well settled law that, the document sought to be admitted is neither being used as a mortgage deed nor the suit is filed either for produce of mortgage or for any enforcement of any right as a mortgage deed. The suit filed is a simple suit for recovery of money paid and none of the essential ingredients of a valid mortgage are present. The trial Court has not appreciated the case made out by the petitioner and passed the impugned order. Therefore, he prayed to set aside the same by allowing this revision.