Plaint side cases-

Nariman K. Irani And Anr. vs A. Batcha Sahib

(AIR 1955 Mad 676, (1955) 2 MLJ 216)

The original mortgagees, Mr. and Mrs. Irani are the holders of several mortgages, some
of them by assignment, from the mortgagor Badsha Sahib, and acting under Section 69,
T. P. Act, notified the hypotheca, which comprises cinemas and urban property in
Madras, and also extents of wet and arable land outside the City of Madras for sale in
195$. The mortgagor, Badsha Sahib first filed a suit, O. S. No. 1490 of 1953, in the City
Civil Court for a declaration that the attempt to exercise the power of sale by the
mortgagees was wrongful and illegal, and for an injunction to restrain the sale notified for
15-10-1953 or any other date.

Various grounds were alleged, namely, that the mortgagors would be put to great loss,
that the mortgagees were actuated by a desire to knock away the property for a song, that
the statutory requirements of Section 69 were not fulfilled and so on. This suit was valued
at Rs. 15 for declaration and Rs. 15 for an injunction in accordance with what is stated to
be existing practice in the City Civil Court and a very small court-fee paid. It was
dismissed as withdrawn in terms of a consent memo filed before Satyanarayana Rao and
Rajagopalan JJ. in C. M. A. No. 698 of 1953 which was heard along with a Letters Patent
Appeal in an interlocutory matter, by which the mortgagor agreed to pay the mortgagees
Rs. 1,60,000, on or before 15-8-1954 and the mortgagee agreed to release a cinema in
Pallavaram and 1.4 acres in a village to enable the mortgagor to make the payment, and
the power of sale, if no default was made was not to be exercised on or before 15-8-1954.

Lachhmi Narain And Anr. vs Kalyan And Anr. 

(AIR 1960 Raj 1)

This is a Civil Second Appeal in a suit for redemption. The main point involved in this
appeal is whether the limited right of mortgagee can be acquired by adverse possession.
There is an unreported Division Bench case of this Court in Sarwan Lal v. Gangadhar,
Second Appeal No. 220 of 1949, decided on the 12th October, 1955, in which it was held
that such right can be acquired by adverse possession, but there is another Division Bench
case of this Court in Hansia v. Bakhtawarmal, ILR (1958) 8 Raj 126: (AIR 1958 Raj
102), in which it has been held that such right cannot be acquired by adverse possession.

When this appeal came up for hearing before one of us sitting as a single Judge, it was
referred to a Division Bench, in view of the conflict of opinion between two Division
Benches of this Court. Eventually, this Special Bench was constituted for deciding the
appeal.

2. The facts giving rise to this appeal may be briefly stated thus. On 7th October, 1949,
the plaintiffs Laxmi Narain and Sitaram filed a suit for redemption of a shop situated in
the town of Reengus, against Mangi Lal and Rameshwar defendants. The case of the
plaintiffs in the trial court was that Godha, Lachhmi Narain, Bala Bux and Sita Ram
mortgaged the above mentioned shop for Rs. 401/- with Jodh Raj and Jumna Lal on Pos
Sudi 15, Sambat 1975, corresponding to the 16th January, 1919, under an unregistered
mortgage-deed

Saiyid Jowad Hussain vs Gendan Singh

( (1926) 28 BOMLR 1395)

In this case the plaintiffs were mortgagees under a registered mortgage bond granted by
the defendant. They raised action for the sum of Rs, 52,000 odd, said to be due under the
mortgage. The defendant denied that the whole sum was due, as he said the plaintiffs had
not given him credit for two sums of Rs. 11,000 odd and Rs. 8,000 odd, which he had
paid, such payments having originally been endorsed on the bond, but the endorsations
having been erased by the plaintiffs.

2. The Subordinate Judge gave effect to this contention, but made the ordinary
preliminary decree for the sum of Rs. 19,000, being the sum due, with proper
computation of interest, after allowing credit for the above-mentioned two sums. The date
of this decree was February 22, 1915. The six months of grace for payment would,
therefore, expire on August 22, 1915. The mortgagees appealed against the decree. The
appeal was heard, and the appeal dismissed on May 21, 1917.

3. On February 21, 1919, application was made for a final decree. The defendants
opposed the application on the ground that it was time-barred under Article 181 of the
Schedule to the Limitation Act, 1908. The terms of that Article of the schedule are :
"Applications for which no period of limitation is provided elsewhere in this Schedule;
period of limitation three years; time from which period begins to run, when the right to
apply accrues."

4. The three years had expired or had not expired according as computation fell to be
made, as the defendants urged, from the time fixed for payment by the original decree, or,
as the plaintiffs urged, from the date of the dismissal of the appeal. The Subordinate
Judge gave effect to the contention of the plaintiffs.

Abinash Chandra Bidyanidhi ... vs Dasarath Malo

(AIR 1929 Cal 123, 114 Ind Cas 84)

In this case, the plaintiff brought his suit upon a mortgage bond. The Munsif decreed the
suit for the full amount holding that the execution of the bond had been proved and
holding also as regards defendant 2 (who was interested because subsequently to the
mortgage bond he had purchased a tin hut which was part of the mortgaged subjects) that
the plaintiff's claim prevailed against the claim of the defendant 2. Defendant 2's case was
that he had purchased the tin hut not from the mortgagor but from another. However, the
Munsif decreed the suit both as regards the tin hut and the land. So far as defendant 1 is
concerned, he did not appear at the trial to contest the suit. The contest was between the
plaintiff and defendant 2 throughout. Defendant 2 appealed to the lower appellate Court
and the first ground he took was that this mortgage was invalid because it had not been
properly attested as required by law. On that issue, the learned Subordinate Judge of
Dacca found for the appellant and held that the mortgage bond was not attested as
required by law.

Now, when we come to look into the matter, we find that there are two people who are
put forward as attesting witnesses. As to one, there can be no doubt at all because he was
a person who was present at the time of the execution and who put his name down on the
instrument to authenticate its execution. As regards the other, the position is this : that
man was, in fact, the scribe or the person who wrote the document out. He put his name
to a statement in the margin to the effect that he had read the document out to the
executant and also that he had put in certain alterations at the executant's desire. This
statement he affirmed with his signature and it is reasonably clear that he put his signature
down for that purpose before the document was executed at all.

There is, however, another part of the document on which the same man's signature
appears. Underneath the word "scribe" the man has put his name. It is not a case where a
person has put his name with the word scribe" after it by way of extra information. It is a
case where the man has put his name under the heading "scribe." The question is whether,
in these circumstances, this man is an attesting witness so as to satisfy the requirements of
the law. The appellant says that the trial Court is to go into the evidence to find out from
the oral evidence of the man if he is available--whether or not he put his name down with
the object of attesting the document. It is contended also that it does not matter for what
purpose that signature was put down and that, as a matter of law, it is a good attestation.