APPU Vs. NVSIVARAMAKRISHNA AYYAR

JUDGEMENT

(1.) In this appeal which is from the learned Subordinate Judge of Palghat, the plaintiff is the appellant. The plaintiff sued for the specific performance of an agreement to grant a mortgage. The facts are in a very narrow compass. The agreement is evidenced in two ways : (1) by Exit D and (2) by the oral testimony of the plaintiff's clerk. The essential part of Ex. D is as follows: If the amount is not paid to you, without much delay, I shall execute to you a mortgage -deed in stamp paper.

(2.) That follows after the particulars given of documents deposited to secure lands. The amounts of the loans are known. The terms of the loans are known. The oral testimony, which is uncontradicted, is to the effect that at the time of the giving of Ex. D defendant 1 who then owed at that time under two notes Rs. 4,000 and Rs. 3,000 less Rs. 1,000 paid on account, was being pressed to re-pay. He was being pressed by the clerk who gives the following evidence: He did not repay the amount. I went to his house often to demand the amount. On one occasion he gave me the letter Ex. C. Again I went when he gave me the letter Ex. D and with it he sent the documents Ex. E series. I asked him to give security. He then said he would give a mortgage. The last sentence in Ex. D was inserted at my instance. We accepted the agreement evidenced by Ex. D.

(3.) In cross-examination: I asked defendant 1 to give me the money. Ha said he had no money. Then I asked him "Give mo a mortgage".