NATHULAL NANURAM Vs. NANDA GOGAJI DHOBI

JUDGEMENT

(1.) This is a second appeal by the plaintiff, whose suit for redemption was decreed by the trial court, but which decree was set aside on first appeal by the defendants mortgagees, on the formal ground that there was a discrepancy between pleading and evidence, and the plaintiffs were making a fresh case at a later stage. The questions were, whether it is a material discrepancy whether the plaintiffs sought to make out, in evidence, a case substantially different from the one contained in the plaint, and whether the case as actually made out has been established.

(2.) The parties come from what used to be Sitamau State. The plaintiffs averred in the plaint that a house belonging to them had been mortgaged with possession by their father for a sum of Rs. 64/- to the father and grand-father (the predecessors-in-interests) of the defendants-respondents. They further stated in the plaint that the mortgage had been given on 13-7-1914, and produced a document of that date signed by both parties and by witnesses. But it is not the mortgage deed, but an agreement acknowledging the mortgage, signed by the mortgagees; they agreed to release the property on the payment of a sum of Rs. 64/- on the date mentioned there. The plaintiffs also averred in the plaint, that they were not able to produce the original mortgage deed, because it was with the mortgagees-defendants.

(3.) The defendants generally denied all the allegations of the plaintiffs. They further averred that there was no mortgage and therefore no deed. The document produced by the plaintiffs dated 13-7-1914 is not a mortgage deed and has not-been signed respectively by the father and the grand-father of the defendants. They said they had been in possession of the property for 75 years before the suit (1953); that is to say from 1880 or so. They did not plead anything about limitation so there was no occasion for the trial court to consider whether the agreement dated 13-7-1914 was an acknowledgment for purpose of Section 19, Indian Limitation Act. In fact, we do not know whether there was any law about transfer of property or of limitation in the time of the Sitamau State authorities, but the general impression created is that the courts in that State had been applying the law of the neighbouring British provinces.