DAKSHAYANI Vs. B KUPPUSWAMY

JUDGEMENT

(1.) THE defendant, who lost in both the courts below, is the appellant.

(2.) THE respondent/plaintiff filed the suit for redemption of mortgage. THE case of the respondent/plaintiff was that the suit property belonged to him and on 12.4.1991, he mortgaged the suit property in favour of the appellant and it was agreed that the appellant shall reside in the property in lieu of interest and on repayment of the mortgage amount, the appellant shall vacate and hand over possession of the property and a varthamanam letter was executed on the same day stating the above terms in writing and it is with the appellant and the appellant is residing in the property as per the varthamanam letter. When the respondent/plaintiff offered to repay the mortgage amount of Rs.10,000/=, that was not received and the appellant also refused to vacate and hand over possession and therefore, a notice was sent to the appellant and that was received by the appellant but, she did not send any reply and as the appellant has failed to receive the amount and vacate the premises, the suit was filed for redemption of mortgage and for recovery of possession.

(3.) THE following substantial questions of law were framed at the time of admission:- "1. Whether the courts below are right in placing reliance upon the Vardhamanam (letter) when the same had not been produced and exhibited by the plaintiff. 2. Whether the courts below are right in holding that the suit mortgage is an usufructuary mortgage contrary to Ex.A1, which is a simple mortgage and the same is also contrary to Sections 91 and 92 of the Indian Evidence Act."