HAFFILA Vs. NANOU MOUHAMED ALI

JUDGEMENT

(1.) THIS Civil Revision Petition is directed against the order dated 07. 12. 1998 of the Second Additional District Munsif, Pondicherry in O. P. No. 5 of 1995, dismissing the Petition filed under Section 83 of the Transfer of Property Act.

(2.) THE Petitioner's case as projected in the Petition is as follows:- The Petition mentioned property House bearing Door No. 18 at Caziar Street, Pondicherry belonged to the Petitioner. She mortgaged the property to one Zaitouneby borrowing a sum of Rs. 5,000/- from her and executed Usufructuary Mortgage Deed dated 27. 01. 1966. The Petitioner left India and resided at France. In the year 1970, the Petitioner sent money through the First Respondent Nanou Mouhamed Ali. The First Respondent also paid and discharged the said Mortgage by payment of money to Zaithouneby. The First Respondent informed the Petitioner that he had duly discharged the Usufructuary Mortgage; but the First Respondent has not given any document to the Petitioner. When the Petitioner came to Pondicherry in March 1995, she found that the Second Respondent Wife of the First Respondent is in possession of Petition mentioned property. While the First Respondent discharged the Usufructuary Mortgage, the First Respondent had fraudulently obtained a Made Over Mortgage Deed in his favour. Deed of Mortgage Made Over was executed on 16. 07. 1970. Stating that though Mortgagee has received Mortgage money, but has not executed necessary Discharge Deed, the Petitioner has filed Petition under Section 83 of the Transfer of Property Act (for short "t. P Act" ).

(3.) THE Second Respondent resisted the Application contending that she is in lawful possession of the property as per Registered Power Deed dated 19. 10. 1970. The Trial Court dismissed the Petition as not maintainable finding that the Mortgage Deed was already discharged on 15. 01. 1970 and there is no subsisting Usufructuary Mortgage between the Petitioner and Zaitouneby.