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Pallikandi Kathapurath Mammad and anr. Vs. Matancheri Mammad - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in43Ind.Cas.28
AppellantPallikandi Kathapurath Mammad and anr.
RespondentMatancheri Mammad
Cases ReferredAtchayya v. Gangayya
Excerpt:
mortgage, usufructuary - suit for possession by mortgagee--genuineness of document--burden of proof--registrar, finding by, effect of--appeal--subrogation, right of, enforceability of, failing proof of genuineness. - - we cannot well allow that to be done in this case, as plaintiff did not set up his right of subrogation in any of the lower courts and to do so now will complicate the enquiry......the question of the amount paid by plaintiff on defendant's behalf and the question, what the arrangement between plaintiff and defendant was, whether to give a hypothecation or an usufructuary mortgage may be considered. this suit for possession fails even if plaintiff has such a right.3. we think the decree of the subordinate judge is right and we dismiss this appeal with costs.
Judgment:

1. Plaintiff Sued to recover the two items of property in suit on the strength of Exhibit A, an usufructuary mortgage-deed alleged to have been executed by the defendant to him. That document has been found by the lower Court not to be proved to have been genuine. It is argued before us that the burden of proof has been wrongly placed by the Subordinate Judge on the plaintiff to prove that the document was genuine, because that document was found to be genuine by the District Registrar when he held an enquiry and ordered the compulsory registration of it, even though the defendant denied its genuineness before him. It is difficult to see how this can be allowed to affect the question, the burden of proof being in the first instance on the party setting up the document to prove its genuineness. It may be, as held in the Full Bench case of Atchayya v. Gangayya 2 M.L.J. 64, that the Registrar, was a Court under Section 195 of the Criminal Procedure Code when he held the enquiry, but that view cannot affect the question of proof which is the question here. We think that the Subordinate Judge Was right in putting the burden of proof on the plaintiff to prove this document when he sued on it.

2. The next point taken is that, as plaintiff has paid off the previous usufructuary mortgages on the two items in favour of one All, plaintiff should have been given Ali's right under the doctrine of subrogation and this suit should have been decreed on that footing. Plaintiff's suit is for possession of the property. Assuming without deciding that plaintiff was entitled to be subrogated to the tights of Ali he cannot recover possession in this suit on that footing, as defendant was in possession of the properties as lessee of All even though the leases Exhibits D and H have expired. The lease rights of defendant will have to be adjudicated upon before possession can be taken away from him. We cannot well allow that to be done in this case, as plaintiff did not set up his right of subrogation in any of the lower Courts and to do so now will complicate the enquiry. Plaintiff cap enforce his rights, if any, by way of subrogation in a fresh suit, if so advised, when the question of the amount paid by plaintiff on defendant's behalf and the question, what the arrangement between plaintiff and defendant was, whether to give a hypothecation or an usufructuary mortgage may be considered. This suit for possession fails even if plaintiff has such a right.

3. We think the decree of the Subordinate Judge is right and we dismiss this appeal with costs.


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