SHEIKH BHUKHAN MIAN Vs. SRIMATI RADHIKA KUMARI DEBI

JUDGEMENT

(1.) This appeal is from the decision of a Judge of this Court affirming the decisions of the Courts below in an action for possession. The plaintiffs claimed to have deposited the mortgage monies in Court and sought in the action out of which this appeal arises to redeem the two mortgages of the year 1921. I assume that the plaintiffs had tendered the mortgage monies and they had been refused and therefore the monies had been deposited in Court. The question which was mooted in the trial Court and the first Court of Appeal was whether the defendant was a tenant as he contended or whether he was a mortgagee. Both the Courts below came to the conclusion that he was a mortgagee and that decision was affirmed by the Judge of this Court. It does not appear from the judgments that the admissibility of the two mortgage deeds came into question either in the trial Court or in the first Court of Appeal. Both the mortgages, one for Rs. 300 and the other for Rs. 100, being unregistered, there is now no dispute that they were inadmissible. Therefore the rights of the parties must be determined in the absence of these deeds.

(2.) It is contended by Mr. Mazumdar on behalf of the plaintiff-respondents that the documents could be looked at for a collateral purpose, but the collateral purpose for which the learned advocate would desire the Court to look at the deeds is to prove the rights of the plaintiffs as mortgagors who, in the circumstances, would be entitled to redeem. It is impossible to suggest that that was a collateral purpose. It is an attempt to prove a contract between the parties which the statute prohibits; of course I refer to Section 49, Registration Act.

(3.) Now, a very considerable discussion had taken place on the question whether the defendant has prescribed against the plaintiffs as a mortgagee and the contention of the learned advocate for the plaintiffs was that he has so prescribed.