RAMASAMI IYENGAR Vs. MVKUPPUSAMI IYER

JUDGEMENT

(1.) These appeals have to some extent been argued on identical grounds, The appellants--- 11 and 16 defendants---are purchasers of certain items of property covered by what may be described as a security-bond, Exhibit C. The District Munsif dismissed the suit brought by the holder of Exhibit C. to enforce its terms against the executants and against the property bound by it. The lower Appellate Court gave the decree asked for, which is now under appeal.

(2.) The first contention with which we have to deal is, that Exhibit C. has not been properly proved. The lower Courts dealt with the question on the assumption that Exhibit C is a mortgage with reference to Section 59 of the Transfer of Property Act and Secs.68 and 71 of the Evidence Act, Here we might not be able to follow the lower Appellate Court in its application of Section 71. But it is unnecessary for us to go further into this portion of the case, because we accept the respondents contention that the document is not a mortgage, but a charge, to which Section 100 of the Transfer of Property Act is applicable. It is urged that the provisions of Section 58 (59?) of the Transfer of Property Act and of the Evidence Act apply also to charges; but we cannot find any warrant for that even in the wording of Section 100 of the Transfer of Property Act, still less in Order XXXIV, Civil Procedure Code, by which the procedure portion of the Transfer of Property Act has been superseded, and from which the material portion of Section 100 has been omitted. Rule 15 of Order XXXIV, which relates directly to charges, is in different terms from Section 100 and those terms go no way towards supporting the appellants argument. A reference to Exhibit C shows that it does not transfer any interest in the property, but simply makes it liable for the satisfaction of the plaintiffs claim. We have no hesitation in holding that it constitutes a charge and not a mortgage, and that the special provisions of the Transfer of Property Act, relating to the attestation of mortgages, and of the Evidence Act, relating, to the method of proof of mortgager, are not applicable. It has been suggested that we should remand the case in order that the lower Appellate Court might find whether Exhibit C has been proved on the evidence in accordance with the general law. It is sufficient that the lower Appellate Court has already recorded a finding that the document has been proved with reference to Section 71 of the Evidence Act. We, therefore, hold that Exhibit C has been properly proved.

(3.) The next question is, whether the plaintiffs have shown that any thing has happened which entitles them to recover under Exhihit C. The appellants argue that, in respect of two items at least, on a part of which the plaintiffs claim had been allowed, nothing has been established.