ARAB ALI Vs. FARID ALI BARLASKAR

JUDGEMENT

(1.) THIS is defendant's appeal arising out of a suit for redemption. Plaintiff -respondent brought a suit for redemption of an Ijara (usufructuary) mortgage. The plaintiff's case is that on the 4th February 1954 he executed a usufructuary mortgage in favour of the defendant in respect of 3 kedars of land for Rs. 200/ -. Out of the usufruct the defendant was to adjust Rs. 12/ - per annum towards the principal and the plaintiff was entitled to redeem the mortgage after expiry of three years, giving credit to Rs. 36/ -. After the expiry of the period of three years he offered Rs. 164/ - to the defendant who refused to accept the same.

(2.) IN the present appeal it is contended that the plaintiff himself filed a certified copy of the mortgage which had no signature of any attesting witness nor that of any scribe appearing on the document. There was therefore no mortgage and the plaintiff was not entitled to any decree without the proof of the mortgage. Section 59 of the Transfer of Properly Act lays down that

(3.) THE most formidable argument however on behalf of the defendant is that the certified copy' of the mortgage deed filed by the plaintiff at a later stage shows that it bears no signature of any attesting witness. There was therefore, no mortgage at all in the eye of law in view of the mandatory provision of Section 59 of the Transfer of Property Act and no decree could be given to the plaintiff on the basis of an invalid mortgage, or, in effect the argument was that there being no mortgage as alleged by the plaintiff, he was not entitled to get any decree for redemption.