KURNI BANDA THIRIPALAIAH Vs. ATMAKUR NAGABHUSHANAM CHETTY

JUDGEMENT

(1.) HEARD Sri M. V. Subba Reddy, Counsel representing the appellants and Sri D. Ranganath Kumar, counsel representing the respondents.

(2.) SRI Subba Reddy, the learned counsel representing the present appellants, the legal representatives of the deceased 1st appellant had taken this Court through the respective pleadings of the parties and the evidence available on record and would point out that in the light of the clear evidence of D. W. 1 and D. W. 2 to the effect that there was no passing of consideration in relation to the mortgage transaction in question, attaching some importance to the endorsement made by the Sub-Registrar and decreeing the suit cannot be sustained. The learned Counsel also would maintain that it may be that D. W. 1 can be taken to be an interested witness but the evidence of d. W. 2 is available on record. The evidence of D. W. 2 being independent evidence, much weight to be given to the said evidence. The Counsel also had taken this Court through the evidence of D. W. 3 which would support the version of the appellants. At any rate, the Counsel would submit that even if the provisions of the Indian registration Act to be carefully scrutinized, though an endorsement had been made by the Sub-Registrar, the presumption if any available is a rebuttable presumption and the same had been duly rebutted by the clear evidence of D. W. 1 and D. W. 2 and hence decreeing the suit by the trial Court cannot be sustained. Incidentally, the learned counsel also had touched the aspect of plea of small farmer.

(3.) PER contra, Sri Ranganath Kumar, counsel representing the respondents/ plaintiffs would maintain that it is no doubt true that both the attestors D. W. 1 and D. W. 2 in one voice had deposed about the non-passing of consideration in relation to the mortgage transaction in question. The counsel also would submit that apart from the evidence of P. W. 1, the evidence of p. W. 2 to P. W. 5 also is available on record which would clearly go to show that there is no such practice of taking any security whatsoever. The Counsel also would submit that even otherwise the very fact that after sufficiently a long time the suit had been instituted and no steps had been taken in this regard either by issuing the notice or otherwise or getting the said mortgage deed ex. A. 1 duly cancelled, these aspects also would go to show that the mortgage transaction in question is supported by consideration and the plea of security put forth by the defendant is an unsustainable one. The learned Counsel also would submit that apart from the evidence of P. W. 1, not only the other evidence of P. W. 2 to P. W. 5 is available on record, the endorsement made by the Sub-Registrar on Ex. A. 1 would clearly go to show the payment of consideration in his presence and in addition to the evidence available on record, this important fact also can be taken into consideration for arriving at a conclusion that Ex. A. 1 is a bona fide transaction. The Counsel also had taken this Court through the evidence which had been recorded by the trial Court and would maintain that the said findings being well considered findings, the same to be confirmed.