SUCHA SINGH Vs. GULZARA SINGH

JUDGEMENT

(1.) This second appeal arises out of a suit filed by the plaintiff for recovery of Rs. 816/- on account of principal and interest on the basis of a document held to be inadmissible. The trial Court decreed the suit holding that the document could be looked into for a collateral purpose, namely, to decree the plaintiff's claim on the basis of the personal liabilities of the defendant. The lower appellate Court has taken a contrary view. It is against this decision that the present second appeal has been preferred. The document in question reads thus :-

(2.) The contention of the learned counsel for the appellant is that though the document purports to be a usufructuary mortgage with possession, the possession was not delivered and therefore, under Section 68(d) of the Transfer of Property Act, the personal liability of the mortgagor to return the mortgage money arose, and as such the document is admissible under Section 49 of the Registration Act. He relies on a Single Bench decision of the Lahore High Court in Wadhawa Singh V/s. Kunj Lal, 1938 AIR(Lah) 497 wherein Tek Chand, J., observed as under :-

(3.) It is significant that the learned Judge pertinently pointed out that in order to effectuate the usufructuary mortgage the mortgagee must have taken the possession of the property mortgaged. A similar matter came up before a Privy Council in case Ram Narain Singh V/s. Adhindra Nath Mukherji, 44 ILR(Cal) 588, and their Lordships of the Privy Council at Page 402, observed as under :-