BABULAL DUBEY AND ORS. Vs. JITA DUBEY AND ORS.

JUDGEMENT

(1.) The defendants are the appellants. The respondent filed the suit for redemption of the suit property said to have been given on usufructuary mortgage by them to the appellant orally for securing Rs. 150/ -. The trial court held that as the zarpeshgi was given orally and not by a registered instruments no decree for redemption could be passed. The lower appellate court held that although zarpeshgi was oral, the respondent were entitled to redeem the same. At the time of hearing the only substantial question of law, which arose for decision and which was pressed was question No. (i) framed on 26.4.86 namely:

(2.) Admittedly some joint family properties were partitioned between the parties and two schedules were prepared. The land in schedule one as allotted to the share of the plaintiff's and the land in schedule two was allotted to the share of the defendants. The parties executed and registered an instrument which was marked Ext. 1. Plot No. 781, the subject matter of the suit, was mentioned in the schedule of the defendants and against that it was recorded that it was given an oral zarpeshgi. The following was noted "Wazarie Jabani Zarpeshgi". According to the plaintiffs as they owe Rs. 150/ - to defendants, the land in question was given in Zarpeshgi orally to them. According to the defendants the land in question was orally sold to the defendants but by mistake Zarpeshgi was written.

(3.) The court below disbelieved the case of the defendants about purchase by them orally.