SHEIKH KARIMULLAH Vs. GUDAR KOERI

JUDGEMENT

(1.) The plaintiff Sheikh Karimullah is purchaser of the alleged rights and interests of defendant No. 4 Mital. His allegation was that Mital and others had mortgaged the property to defendant No. 1 Gudar and he desired to redeem that mortgage of 9 May, 1917. Another important party defendant in the suit was defendant No. 6 Mt. Deokali.

(2.) In para. 10 of the plaint it is stated that defendant No. 6 Mt. Deokali was made a party though she had no concern in the property because of the allegation of the mortgagee, Gudar, that he had made over possession to her. Defendant No. 7 is a transferee from Mi. Deokali. It appears that contest lies between Mital and Mt. Deokali as to the ownership of the property. In the plaint however no relief is claimed specifically against Mt. Deokali as apart from the mortgage. In para. 12 possession is desired on redemption of mortgage.

(3.) A copy of the registered mortgage deed was produced and the mortgagee Gudar did not produce the original. Gudar denied the existence of any mortgage. Both the Subordinate Courts have held that the mortgage was not proved because no attesting witness was called for the purpose of proving its execution as laid down in Section 68 of the Evidence Act. It is admitted that both the attesting witnesses are alive and no attempt was made to prove that they were not subject to the process of the Court or incapable of giving evidence.