PANDYA VINODRAI RAMRAI Vs. LAVAR PRABHUDAS NATHURAM

JUDGEMENT

(1.) This second appeal is directed against the judgment and decree of the District Judge Judge, Mehsana, in Regular Civil Appeal No. 173 of 1969, confirming the judgment and decree of the Civil Judge (J. D.) Visnagar in Regular Civil Suit No. 142 of 1968 dismissing the said suit on the preliminary ground that the suit for redemption of mortgage under an alleged unregistered mortgage deed was not maintainable. The facts leading to this appeal are, shortly, as under:-

(2.) The appellant Pandya Vinodrai Ramraj filed a suit against the respondents Nos. 1/1 to 1/4 who were the heirs and legal representatives of one Lavar Prabhudas Nathuram for redemption of mortgage of a house situated at Visnagar and alleged to have been created by the predecessors-in-title of the appellant and respondents Nos. 2 to 7 on January 19, 1910 for securing the repayment of the amount of Rs. 75/- lent by one Nathuram Dalchha who happened to be the grandfather of respondents Nos. 1/1 to 1/4. The appellant herein before filing the suit, being Regular Civil Suit No. 142 of 1968, in the Court of Civil Judge (J.D.). Visnagar, served a notice through his advocate by registered - post on 5.12.1968 to the deceased - father of respondents Nos. 1/1 to 1/4. The said notice returned unserved and, therefore, the appellant filed a suit for redemption of the mortgage said to have been executed by his ancestors in 1910 against the respondents Nos. 1/1 to 1/4 who were joined as defendants Nos. 1/1 to 1/4 before the learned trial Judge. The other respondents, namely. Respondents Nos. 2 to 7 who were joined is defendants Nos. 2 to 7 before the learned trial Judge being the heirs of other coowners of the property in question. The respondents Nos. 1/1 to 1/4 resisted the suit on various grounds and contended, inter alia, that there was no mortgage of the suit property executed by the ancestors of the appellant and respondents Nos. 2 to 7 in favour of their grand father Nathuram Dalchha in the year 1910, nor had he entered into possession of the said property in pursuance of the alleged mortgage transaction. It was further contended that the redemption suit on an alleged unregistered mortgage deed was also not tenable. The respondents Nos. 1/1 to 1/4 claimed that their predecessors-in-title were in possession of the said properly since more than 85 years as owners of the property. The said respondents Nos. 1/1 to 1/4 also denied that there was any written instrument evidencing the alleged mortgage transaction, nor they were in possession of such an instrument as alleged by the appellant. The said respondents have also contended about the insufficiency of Court-fees stamp. It was, therefore, prayed by the said respondents that the suit was liable to be dismissed ex facie.

(3.) In view of these pleadings, the learned trial Judge raised a number of issues. However, he decided to hear the issues Nos. 4 and 5 as preliminary issues. After hearing the advocates of the parties., he held that at the relevant time the mortgage deed, even for the amount for less that Rs. 100/-, in the old State of Baroda, required registration and, therefore, a suit for redemption of such a mortgage on the basis of an unregistered mortgage deed was not competent. In that view of the matter he dismissed the suit. The appellant herein being aggrieved with the said judgment and decree of the learned Civil Judge (J.D.). Visnagar, went in appeal before the learned District Judge at Mehsana by way of Regular Civil Appeal No. 173 of 1969. The learned District Judge also held after reviewing the various authorities cited before him by the advocates of the parties that suit for redemption of a mortgage on an unregistered mortgage deed was not maintainable and, therefore, he confirmed the judgment and decree of the learned Civil Judge (J.D.) and dismissed the appeal.