KASHIBAI MARTAND Vs. VINAYAK GANESH

JUDGEMENT

(1.) THIS is an appeal by the plaintiff whose claim to redeem the suit mortgage has been dismissed by both the Courts below. The claim has been dismissed on the ground that the execution of the mortgage-deed is not proved by the plaintiff.

(2.) THE question about the proof of the execution of the mortgage-deed came to be raised in the present litigation in this way. The property in suit originally belonged to Baburao Ganesh Junnarkar, and according to the plaint it was mortgaged by Baburao to Vinayak Malwadkar on 1-6-1897. Baburao on his death, left behind him surviving his widow Laxmi and his daughter Radhabai. Laxmi died in 1918 and Radhabai in 1934. Before her death, Radhabai executed a will on 26-12-1933. The plaintiff is the legatee under this will in respect of the property in suit. That is how she claims to be the owner of the equity of redemption in respect of the mortgage in suit and wants to redeem that mortgage. On the mortgagee's side several transactions have taken place. The mortgagee Vinayak adopted Ganesh. Ganesh died on 7-4-1934. Vinayak is his son; he is defendant No. 1 to the present suit. Vinayak sold the right, title and interest vesting in him to Dhanraj Hajarimal on 22-8-1935. The purchaser in his turn sold the property to Nathmal Rajmal oh 23-12-1935. It appears that Vinayak challenged the sale deed executed by him in favour of Dhanraj on 22-8-1935, by filing suit No. 214 of 1939. This suit was decreed and Vinayak was held entitled to the possession of the property now in suit and other properties on condition that he paid Rs. 15,000 in the manner prescribed by the decree. Defendant No. 1 then sold his right, title and interest in this property to Nathmal Rajmal on 29-4-1943. It should be noticed that Nathmal felt apprehensive about the validity of his title in view of the decree which was passed in favour of defendant No. 1 and against his vendor Dhanraj Hajarimal. That is why he sought to perfect his title by obtaining the sale-deed from defendant No. 1. Meanwhile, the right, title and interest of defendant No. 1 was put to sale at an auction-sale held under an order passed on the Original Side of this Court on 27-8-1943. Govind Palekar was the auction-purchaser at this sale. Govind Palekar, in his turn, sought to complete his title and leave no defect in it by obtaining a deed of release from Nathmal on 27-11-1943. Govind Palekar died on 27-9-1944, and the present defendants Nos. 2 to 6 are his heirs and legal representatives. It is from these defendants that the plaintiff seeks redemption in respect of the mortgage which, according to the plaint, was executed by Baburao on 1-6-1897, in favour of Vinayak Malwadkar. The defence was that Baburao was not the owner of the property at any time and so he was not authorised to execute any mortgage-deed in respect of the said property. It was urged by the defendants that Malwadkar was in enjoyment of the property as absolute owner throughout the period and reliance was placed upon the several transactions in respect of this property which have taken place on the side of Malwadkar and to which I have just referred.

(3.) AFTER the plaint was filed, the plaintiff contended that the original document was not with her and she wanted liberty to produce the certified copy of the original mortgage-deed. The mortgage-deed was registered and a certified copy was accordingly produced along with the plaint. The learned trial Judge allowed the plaintiff to produce the certified copy, but he held that the production of the certified copy would not justify the inference which the plaintiff wanted to be drawn in her favour, that the original mort- gage-deed itself had been validly executed. That is why, though the learned trial Judge recorded findings in favour of the plaintiff on other, issues, he dismissed the suit on the ground that the valid execution of the mortgage had not been proved by the plaintiff. The plaintiff took this matter before the lower appellate Court and the lower appellate Court has taken the same view as the learned trial Judge did on the question as to the valid execution of the mortgage-deed. Three points were raised before the lower appellate Court for its determination. On the question of limitation the lower appellate Court has made a finding in favour of the plaintiff. The contention raised by the defendants, that prior purchasers were necessary parties and the suit was defective on account of non-joinder of necessary parties, was rejected by the lower appellate Court; but he has held that the valid execution of the mortgages has not been proved and that the provisions of Section 89 of the Evidence Act could not be invoked by the plaintiff in support of her claim. In the result the appeal preferred by the plaintiff was dismissed. It is this decree which is challenged before us by the plaintiff.