YASIN BAGI Vs. HARANARAYAN AGARWALLA AND ORS.

JUDGEMENT

(1.) PLAINTIFF No. 1 alone preferred this appeal against the judgment and decree of the Subordinate Judge, Sambalpur, confirming the decision of the Munsif, Bargarh, to Title Suit No. 4 of 1960 dismissing the suit for redemption of a mortgage.

(2.) PLAINTIFFS filed the suit for redemption of 1.16 acres of land described in Schedule Ka of the plaint. The property originally belonged to Satyabadi Sahu who as the father of Plaintiff No. 3 and husband of Plaintiff No. 2. Plaintiffs averred that Satyabadi on 25.9.1953 had given the suit property in usufructuary mortgage to Defendant -Respondent No. 1 for Rs. 250/ - and after the death of Satyabadi on 14 -9 -1955, Plaintiffs 2 alto 3 inherited his property. Plaintiffs 2 and 3 thereafter on 26 -3 -1959, sold the suit property to the Appellant, Plaintiff No. 1, for Rs. 700/ - by a registered sale deed Ext. 4.

(3.) MR . Rahenoma challenged the decisions of the Courts below as incorrect in law. Mr. Misra, the learned Counsel for the Defendant, Respondent No. 1, takes up a preliminary point by stating that Ext. 1 admittedly is a copy of a copy of the alleged mortgage deed. He therefore contends that the original of Ext. 1, which is alleged by the Plaintiffs to be the mortgage deed in question, admittedly having not been registered as required under the law, the said document as such shall not affect any immoveable property comprised therein, or shall not he received in evidence of any transaction affecting such property, as provided under Section 4 of the Registration Act. The original document itself not being admissible, secondary evidence of the same cannot be adduced in evidence. In support of his contention be cited the decision in Muhammad Din v. Allahditta 95 (1926) Indian Cases 444, wherein it has been held that "Secondary evidence may be offered of primary evidence only when the primary evidence itself is admissible." He next cited the decision in Janardhan Kashinath Kasar v. Janardhan Vishwanath Shastri and Ors. : A.I.R. 1927 Nag. 214, where the relinquishment of interest in the property was done by an unstamped and unregistered document and as such it was found to be inadmissible in evidence for the purpose for which registration was necessary under Section 49 of the Registration Act. So it was held that: