AVANA MANA ALIAS KANHIYUR ALIAS THEKKINIYEDATH KIRANGATMANAKKAL VASUDEVAN NABUDIRIPAD Vs. MANGAT VALAPIL AVATHALA S DAUGHTER PANIKKA VEETTIL ABDUL KADER S WIFE MARIA KUTTI UMMA

JUDGEMENT

(1.) Mr. Pocker, the learned advocate for the respondent, reported no instructions and the respondent does not appear. I have therefore to decide the appeal in the absence of the respondent. The sole question that arises in this second appeal is whether Ex. A the registered hypothecation bond executed by the first defendant, the sole respondent in this second appeal, operates as a valid hypothecation of a fund in Court O.S. No. 238 of 1920. The lower appellate Court found that the mortgage was not properly attested and therefore declined to give a mortgage decree. It gave a simple money decree against the defendant. Hence the second appeal.

(2.) The necessity for attestation is to be found in Section 59 of the Transfer of Property Act. Chapter IV in which that section occurs relates to mortgages of immoveable properties and charges. Section 58(a) which defines a mortgage says: A mortgage is the transfer of an interest in specific immovable property for the purpose of securing payment of money...

(3.) Obviously a hypothecation of movable property is not a mortgage within the meaning of Section 58(a). Section 59 provides how a mortgage defined under Section 58 is to be executed. Hence if Section 58 does not apply to a case of movables Section 59 also will not apply. Ex. A is therefore a valid hypothecation of the fund which is in deposit in O.S. No. 238 of 1920 on the file of the Additional District Munsif's Court of Palghat. The decree of the appellate Court is reversed and that of the trial Court restored so far as this item is concerned. The second appeal is confined to the amount of Rs. 286-14-0 in deposit in the above suit. The appellant will have his costs of this second appeal and also in the lower appellate Court calculated on the sum of Rs. 286-14-0 which is the extent of success in that Court.