VED PARKASH Vs. RATTAN LAL AGGARWAL AND OTHERS

JUDGEMENT

(1.) Appellant-plaintiff Ved Parkash filed suit seeking relief of declaration and injunction as follows:-

(2.) Learned counsel for the appellant-plaintiff has argued that mortgage deed dated 17.10.1963 registered on 19.10.1963 was duly proved by leading secondary evidence. The appellant-plaintiff himself appeared as PW1 and has stated that this mortgage deed was executed by Tek Chand in his presence. The scribe and deed writer have died, as such, could not be examined. The testimony of Surajbhan, who had identified the signature of one marginal witness has been discarded on the ground that he could not give the basis for identifying the signatures of witness Bagga Ram. Certified copy of mortgage deed was produced on the file as Ex.P2. The recital in the mortgage deed shows that the personal liability of the mortgagor was fixed in the event of the rental amount falling short of the mortgage amount and the mortgagee was allowed to recover the same from personal and other properties of the mortgagor. Relying on the observations in case of Lachhman Singh Vs. Natha Singh through Harnam Singh and others, 1940 AIR(Lah) 401 , learned counsel for the appellant-plaintiff has argued that where the mortgagor has personal liability to repay the mortgage amount, it does not fall in the category of usufructuary mortgage. Perusal of the mortgage deed Ex.P2 clearly shows that the mortgage was created for a sum of Rs. 5,000/-. The possession of the mortgage property was given to the mortgagor. As per term of the mortgage deed Ex.P2, the rent of the property was to be appropriated towards the interest on the mortgage money and any benefit or loss in this regard was to be borne by mortgagor. He had also taken responsibility to carry out required repair. The mortgagor was entitled to get the land redeemed on payment of entire mortgage money. The mortgagor also took the liability to pay the rent if the property remained with him as tenant and undertook to pay the amount of rent and mortgage money.

(3.) Section 58(d) of Transfer of Property Act, 1882 defines 'usufructuary mortgage' as follows:-