AI Structured Summary
Not yet generated for this judgment
Judgment
P.N. Mookerjee, J.—This is a second appeal by the heirs and legal representatives of the original Defendant in the connected mortgage suit. The suit has been decreed by the two Courts below and, against their concurrent decision, the present appeal has been filed.
Two points have been urged in support of this appeal: In the first place, it has been contended that Ex. 1, by which the mortgage in suit was sought to be proved, was not a valid document and could not be legally admissible in evidence, the basic objection being that it was not properly stamped.
It appears, however, that in the instant case, the disputed mortgage was an equitable mortgage or mortgage by deposit of title deeds and Ex. 1 was merely a memorandum, recording the said transaction. It was in the form of an agreement, but in essence it was a record of the above transaction of mortgage by deposit of title deeds. From that point of view, it was neither required to be stamped nor registered even though it was actually registered. That was the view taken by the two Courts below and, having looked into the said document, Ex. 1, we are not inclined to take a different view of the matter. This point in support of the appeal, accordingly, fails.
The other point which was raised was that the original plaint or the connected amendment application, filed later, was not properly verified according to law, i.e. in accordance with the provisions of Order VI, Rules 14 and 15 of the Code of Civil Procedure. The Courts below have treated this defect as a mere irregularity and, under the Court''s order proper verification having been subsequently made by the proper person, they have accepted the Plaintiff''s contention that the defect, if any, in the original plaint and the connected amendment petition had been duly removed. We do not think that any other view can be taken under the law on the above point. The decision of this Court in Raj Kumar Dhar and Others Vs. Colonel A. Stuart Lewis, would not militate against the above point of view but would, in essence, support the same. We, accordingly, overrule this plea of the Appellant too, with the result that this appeal will fail and it will be dismissed.
There will, however, be no order as to costs.
Amiya K. Mookerji, J.
I agree.