CHHOTALAL KARSANDAS Vs. VISHNU GANESH GOKHALE

JUDGEMENT

(1.) The plaintiff sued to recover the sum of Rs. 3,553-11-0 and costs with future interest by sale of the mortgaged property.

(2.) The mortgage is dated 30th of November 1902. It is common ground that the mortgage deed was not properly attested and therefore the suit on the mortgage must fail. The plaint was allowed to be amended so as to enable the plaintiffs to ask the Court to declare that they were entitled to subrogate and fall back upon the previous deed of the 29th December 1887 and that the claim on that deed was not time-barred as it was acknowledged in the deed of 1902, the Sate-khat of 22nd August 1901 and also the Vasul mentioned in the plaint.

(3.) The facts of the case are simple. In 1887, the mortgage of the plaint property was executed in favour of four brothers. In 1901, the four brothers partitioned and they were paid off on the day that the last payment was made on account of the mortgage. Ganesh, the son of one of the mortgagees, agreed to pay the mortgagor Rs. 4,000, and we may take it as admitted that Ganesh paid Rs. 4,000 to enable the mortgagor to pay what was required to make the last paymeaxt on account of the mortgage of 1887. No doubt it was intended that Ganesh should get a mortgage of the property to secure the repayment of the Rs. 4,000 and the parties thought that they had executed a deed of mortgage for that amount in November 1902. That mortgage not having been executed in accordance with law must be ruled out of consideration altogether.