BHERULAL BABALRAM Vs. DHAPUBAI

JUDGEMENT

(1.) THIS is an appeal under Order 43, rule 1(u) from an order of remand passed by the Additional District Judge, Shajapur.

(2.) BAPULAL , husband of respondent No. 1 and father of respondent No. 2 instituted this suit for redemption against the appellants alleging that the suit property was mortgaged by Harka Chand in favour of Babalram, father of the defendants; repayment of the mortgage money was to be made within 5 years; on the death of Harka Chand his son Motilal sold the equity of redemption on August 30, 1950, to the plaintiffs. The mortgage deed was unregistered. A decree for redemption was claimed on payment of Rs.225. The defendants resisted the suit on several grounds. At first the suit was dismissed on the ground that it did not lie on the basis of an unregistered mortgage deed. The first appellate Court held that the suit was maintainable because a suit for redemption was in substance a suit for possession and the unregistered mortgage deed could be used for the collateral purpose. The case was remanded to the trial Judge. There was no appeal against that remand order.

(3.) THE plaintiff produced a certified copy of the mortgage deed which he obtained from the Court of the District Judge, Shajapur. It appears from this copy that it was a usufructuary mortgage and that five years time was fixed for repayment of the mortgage money. It is urged by Shri Karkare that this copy cannot be read in evidence inasmuch as it is a certified copy of another copy which was included in the municipal record (file No. 58 of Samvat 2003 of the Municipal Committee, Shajapur, which file was summoned in Civil Suit No. 22 of 1949 and in Civil Appeal No. 105 of 1950 between the same parties). The learned counsel argues that after discarding this certified copy, there is no evidence on record to show that the mortgage was for five years. In my opinion, this contention cannot be accepted.