Sm. Mangi vs Ghisa

Nigam, J.C.

Sm. Mangi filed Civil Suit No. 570 of 1947 claiming redemption of a house alleged to have been mortgaged for Rs. 99/- on 6-7-1941. The suit was filed on 8-8-1947. The defendant Ghisa contested on the ground that the property had been sold to him. The learned Subordinate Judge decreed the suit for redemption. In appeal, the learned District Judge dismissed the suit with costs of both the Courts. Now Sm. Mangi, plaintiff, has come up in second appeal. I have heard the learned counsel for the appellant.

The plaintiff''s case was that the house in question which was actually worth about Rs. 500/- on the date of the transaction had been mortgaged with the defendant for Rs. 99/-. Three witnesses were examined to prove the fact of the mortgage. One witness was also examined in rebuttal. Sm. Mangi herself at first stated that she had mortgaged the suit property for Rs. 400/-, but then, corrected herself and gave the figure of Rs. 80/-. She offered Rs. 80/- to the defendant for redemption. P.W. 2 Harlal stated that the property had been mortgaged for Rs. 99/-, but in fact, only Rs. 80/- were paid. The document was scribed by Hemraj. Rs. 99/- were offered to the defendant. P.W. 3 Nahara stated that the property in suit had been mortgaged with the defendant for Rs. 99/-, but no money was paid in his presence.

This evidence did not satisfy the learned District Judge. The learned Subordinate Judge was impressed by the fact that the sale of the property in suit could not have been effected for Rs. Rs. 99/- and also by the fact that P.W. 2 Harlal was related to both the parties and was, therefore, entitled to greater weight. The learned District Judge was not satisfied with this evidence and I agree with him. The fact remains that no allegation has been made against Hemraj or even Ghisa for having fraudulently got a sale-deed executed when the intention of the parties was to execute a mortgage-deed. It is also difficult to believe that the document was not read over to the parties at the time of the execution. The evidence on behalf of the plaintiff is discrepant as to the amount of the mortgage-debt as also in respect of the amount tendered at the time of redemption. Harlal is, admittedly, a relation of the plaintiff and, as such, there is dearth of independent evidence in support of the plaintiff''s case.

On the evidence on record, I am, therefore, of opinion that the plaintiff''s allegation that the property in suit had been mortgaged with the defendant was not satisfactorily proved. As such, the plaintiff was not entitled to succeed.

No other point has been pressed before me.

I, therefore, see no force in this appeal and dismiss it with costs.