MUSTT. JUBEDA KHATUN Vs. SULAIMAN KHAN
HIGH COURT OF GAUHATI
Mustt. Jubeda Khatun
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Das, J. -
(1.)THIS is an appeal under Clauses 15 of the Letters Patent against the judgment and decree of the learned single Judge of this Court dismissing the First Appeal No. 57/69 of the appellant. The appellant was the defendant in Original Title Suit No. 22/65 in the Court of the learned Assistant District Judge, Dibrugarh, a suit instituted by the present respondent for realisation of an amount of Rs. 19,800/ - on account of a loan against a mortgage deed which was executed by the defendant in favour of the plaintiff.
(2.)IT is not necessary to narrate the plaintiff's case in details as the learned Single Judge has narrated the case of the plaintiff and the defendant respective as set out in the pleadings. However, to get the grip of the background and to appreciate the contentions of the parties, it would be convenient to put respectively cases of the parties in brief :
The plaintiffs case is that the defendant No. 1 borrowed a sum of Rs. 10,000/ - on 24 -5 -57 from the plaintiff mortgaging the property described in the schedule to the plaint and executed a mortgage deed in favour of the plaintiff undertaking to pay interest thereon at the rate of 12% per annum. The defendant having failed to repay the loan amount with interest, the plaintiff issued a notice demanding repayment of the loan and its interest. On such demand made by the plaintiff, the defendant by Ext. 1 wrote to the plaintiff requesting him to grant one year's time to repay the loan with its interest. In Ext. I, the defendant admitted the loan amount of Rs. 10,000/ - received in cash at the time of execution of the mortgage deed. As the defendant did not comply with her own terms as admitted in Ext. I, the plaintiff had no other alternative than to file the suit in the Court of the learned Assistant District Judge, Dibrugarh claiming a total sum of Rs. 19,800/ -including interest from the defendant for realisation of the loan amount. The suit was contested by the defendant No. 1 who filed the Written Statement wherein she pleaded that the mortgage deed was not valid according to law and that defendant No. 1 who had no independent advice, denied the execution of the same. She further pleaded that at the time of execution of the alleged mortgage deed, it was not read over to her nor it was explained what was contained in the mortgage deed and she was not in a position to understand the implications and she signed it in good faith. Defendant No. 1 further denied to have borrowed the entire sum of Rs. 10,000/ - on 24 -5 -57 (the date of execution of mortgage deed) or on any other date by executing the mortgage deed in favour of the plaintiff. She had specifically pleaded that she borrowed Rs. 5,000/ - only by executing a deed and that she was surprised to know from the averments in the plaint that it was alleged that she had executed a mortgage deed against the loan of Rs. 10,000.00. It had been alleged by the defendant that taking advantage of the defendant's illiteracy and as she is a "pardahnashin lady", the plaintiff wilfully declined her for his wrongful gain by obtaining a thumb impression in the mortgage deed. A further plea was taken by the defendant -appellant that the mortgaged property did not belong to her as she was only a benamidar of her husband in respect to the said mortgaged property.
On the pleadings of the parties, several issues were formulated by the learned Trial Court. The parties led their evidence, produced documents and submitted their respective contentions on facts as well as on law in the trial Court. The learned Trial Court considered the evidence on record and on hearing both the parties relating to relevant issues involved in the suit, decreed the plaintiffs suit with cost. Accordingly, a preliminary decree was passed for the suit amount. Against the said preliminary decree, the defendant preferred an appeal to this Court being F.A. No. 57/69 which was heard by a learned Single Judge of this Court and by the judgment dated 30 -6 -77, dismissed the appeal. The appellant being aggrieved by the said judgment, preferred this Letters Patent Appeal Learned Single Judge considered the evidence on record threadbare in the light of the issues framed by the learned trial Court. The main issues, namely, Issues Nos. 3, 4 and 5 were the only relevant issues which were dealt with by the learned Single Judge. The issues so discussed by the learned Single Judge are set out herein below :
"3. What amount did the defendant borrow from the plaintiff - - whether Rs. 10,000/ - or Rs. 5,000/ -?
(3.)WHETHER the mortgage deed was read over and explained to the defendant?
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