HUTCHAPPA Vs. MALLAPPA

JUDGEMENT

(1.) The main question for determination in this appeal is whether the plaintiff is entitled to seek recovery of the amount advanced by him on the mortgage of two items of property described in the plaint schedule, by means of sale thereof through Court. Exhibit A dated 20-4-1946, on the terms of which the decision depends is styled as a document of mortgage with possession. After reciting that a sum of Rs. 650/- is received from the mortgagee and the properties are left in his possession for a period of two years, it states that immediately after the expiration of the said period the mortgagor will pay the amount to the mortgagee and in case of default the mortgagee may continue to be in possession of the properties. Defendant 1 and his wife defendant 2 have executed the document stating that they have signed it also as guardians of their three minor sons defendants 3, 4 and 5. Defendant 5 died during the pendency of the suit.

(2.) The suit from which this appeal arises was filed after the lapse of two years from the date of the mortgage for realisation of the principal sum with interest by sale of the properties alleging that possession of the properties was not delivered to the plaintifif and that the mortgage was effected for purposes binding on the family of defendants. Denying these allegations defendants pleaded that plaintiff is not entitled to the relief asked for and has only the right to be in possession of the properties.

(3.) Both Courts have held that plaintiff obtained and is in possession of the mortgaged properties and the finding has to be taken as correct. On the question of legal necessity needlessly raised with regard to one item of property and about the right of plaintiff to claim payment of money there are divergent findings, the trial Court's view being in favour of plaintiff and that of the appellate Court against him. Consequent on this the decree passed by the learned Munsif for payment of the amount has been reversed and the suit dismissed. Plaintiff has appealed.