TARACHAND Vs. KESRIMAL

JUDGEMENT

(1.) THIS is a plaintiffs' appeal directed against the judgment and decree of the learned Additional District Judge, Sirohi dated 28. 4. 69 dismissing the plaintiffs' suit for recovery of money on the foot of a mortgage. It raises the question about the validity of the attestation on the mortgage deed as also regarding the mode of proving the execution of the mortgage deed.

(2.) PLAINTIFF Nos. 1 and 2 were father and son respectively. Deceased Pratap Chand was appellant Tara Chand's father. According to the plaintiffs' defendant No. 1 Kesrimal acting for himself and for and on behalf of his minor sons defendants Nos. 2 and 5 executed a mortgage deed for a sum of Rs. 12,000/- on 23-7-54 in favour of the plaintiffs Nos. 1 and 2 and Tara Chand's father Pratap Chand. The mortgage deed was not registered the same day. According to it, a house and a shop described in para 1 (b) of the plaint were mortgaged and the possession of the mortgaged property was handed over to the mortgagees and the mortgagors executed a rent not the same day agreeing to pay Rs. 60/- per month as rent for the property. It does not appear that there was any stipulation to pay interest. However, as the rent fell in arrears after sometime the plaintiffs brought a suit against the mortgagors-tenants for arrears of rent and eviction in the court of Civil Judge, Sirohi. On 9-12-58 a decree was passed in plaintiffs' favour for an amount of Rs. 2144/- in that suit. In execution of the decree the plaintiffs got attached to the equity of redemption in the aforesaid property and that property was put to sale. Javerchand deceased had purchased the property. As Javerchand had died, defendants No. 6 and 7, who were his brothers were impleaded in place of Javerchand. In the present suit the plaintiffs prayed for Rs. 12000/- and also prayed that the mortgage property be put to sale and further if the mortgage amount remained unpaid a personal decree be passed against the defendants. As against defendants Nos. 6 and 7 it was alleged that they had purchased the property subject to mortgage and with the full knowledge of the plaintiffs' rights and, therefore, they would be deemed to have stepped into the shoes of the mortgagors and were liable to the same extent as the mortgagors.

(3.) THE learned Additional District Judge held (1) that the mortage deed Ex, 1 was scribed by Kesrimal, (2) that it was with consideration, (3) that only one attestation and that too by the Sub-Registrar Shri Durga Chand had been established. THE learned Judge thought that Shri Durga Chand could be treated as an attesting witness in the circumstances. THE learned Judge however did not treat the attestations purporting to be by Chhaganlal and Achaldas respectively to be valid. Consequently he held that the document Ex. 1 cannot be treated as a valid mortgage as could be enforced against the defendant. THE learned Judge further held on the basis of the rent note Ex. D/2 produced by P. W. 4 Tarachand, the plaintiff, that the sons of the mortgagors were bound by the mortgage deed. In the result, the learned Judge dismissed the suit, but left the parties to bear their own costs.