MAHALINGA SHETTY Vs. S KRISHNARAJ

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 31-1-1975 passed by the Principal Civil Judge, Udipi, South Kanara, in Appeal Suit No. 7 of 1963 reversing the judgment and decree dated 10-10-1962 passed by the Principal District Munsiff, Karkala, in O.S. No. 4 of 1959.

(2.) O.S. No. 4 of 1959 was instituted for redemption of two items of properties described in the schedule attached to the plaint. The suit was based on a deed dated 15-1-1839. That deed is marked as Exhibit A-13. It purports to have been executed by one Sri Padmanabha Bhatta in favour of two persons namely, Choodamma and Nagappa. The sum and substance of the plaintiffs case was that the two items of properties were mortgaged to Padmanabha Bhatta and as on the date of the suit namely, 2-1-1959 they had the right to redeem the properties. Various contentions were raised by the defendants. The main contentions are that Exhibit A-13 is not a genuine document and the plaintiffs are put to strict proof of the same. Padmanabha Bhatta never executed such a document and hence the claim of the plaintiffs is bogus. The transaction entered into with Padmanabha Bhatta was an out and out sale and not a mortgage transaction. The rights of the parties got extinguished as on 15-1-1903 i.e., 64 years after 15-1-1839 the date of Exhibit A-13. The suit was barred by limitation.

(3.) The trial Court held that the Exhibits A-13 is a genuine document and that formal proof of the document was not called for in view of the presumption arising in favour of the plaintiffs under S.90 of the Indian Evidence Act and that the transaction evidenced by Exhibit A-13 is mortgage by conditional sale. It is on this basis that it decreed the suit.