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Radhe Shiam Vs. Chunni and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported inAIR1917All483(1); 35Ind.Cas.192
AppellantRadhe Shiam
RespondentChunni and anr.
Excerpt:
transfer of property act (iv of 1882), section 69 - mortgage--'attest', meaning of--attestors not present at execution--mortgagor admission, effect of--personal decree, if allowable. - .....a personal decree for rs. 165, with simple interest at the rate of 12 per cent, per annum from the 9th of august 1905 up to the present time. hereafter the rate of interest will be 6 per cent, per annum simple interest. in all other respects the appeal is dismissed. the parties will pay their own costs.
Judgment:

1. We think the view taken by the Court below was correct, namely, that the document, not being executed in the manner prescribed by Section 59 of the Transfer of Property Act, did not operate as a mortgage. The appellant asks us to give him a personal decree. He has not asked for such a decree in his plaint. What lie asked for there is the ordinary relief whish is granted under Section 90 in the event of the mortgaged property not being sufficient. We are prepared, however, to treat the case as one in which we were asked to amend the plaint and had allowed the amendment on the terms that plaintiff should confine his claim to the principal sum of Rs. 165, and simple interest at 12 per cent, per annum. We accordingly allow the appeal to this extent that we grant the plaintiff a personal decree for Rs. 165, with simple interest at the rate of 12 per cent, per annum from the 9th of August 1905 up to the present time. Hereafter the rate of interest will be 6 per cent, per annum simple interest. In all other respects the appeal is dismissed. The parties will pay their own costs.


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