BA BULAL DUBEY Vs. JITA DUBEY

JUDGEMENT

(1.) The defendants are the appellants. The respondent filed the suit for redemption of the suit property said to have been given on usufractuary mortgage by them to the appellants orally for securing R.S. 150. The trial court held that as the Zarpeshgi was given orally and not by a registered instrument no decree for redemption could be passed. The lower appellate court held that although Zarpesbgi was oral, the respondent were entitled to redeem the same.

(2.) At the time of hearing the only substantial question of law, which arose for decision and which was passed was question no (i) framed on 26-4-1988 namely : Whether the appellate court is right in setting aside the decree of the trial court basing its decision on an oral Zarpeshgi deed ? It is, therefore, not necessary to go into the facts in detail the case for disposing of this appeal.

(3.) Admittedly, some joint family properties were partioned between the parties and two schedules were prepared the land in schedule one was allotted to the share of the plaintiff's schedule and the land in schedule two was allotted to the share of the defendants. The parties executed and registered a instrument which was marked Ext. 1. Plot No. 781, the subject matter of the suit, was mentioned in the schedule of the defendants and against that it was recorded that it was given an oral Zarpeshgi. The following was noted "Wazarie Jabani Zarpeshgi". According to the plaintiffs at they are Rs. 150 to the defendants, the land in question was given in Zarpeshgi orally to them. According to the defendants the land in question was orally sold to the defendants but by mistake Zarpeshgi was written.