A suit for redemption on the basis of an oral mortgage is not maintainable.

JUDGMENT :- The defendant No. 1 has come in appeal against a confirming judgment of the learned Subordinate Judge, Berhampur in a suit for redemption of mortgage and for mesne profits.

2. One Kamaya was the admitted owner of the property in suit. The plaintiffs are his heirs. The genealogy appended below would show the relationship of the plaintiffs inter se and their relationship with Kamaya.

In 1942 Kamaya is alleged to have mortgaged the suit property measuring 37 decimals, to defendant No. 1 to secure a loan of Rs. 100/-. The mortgage is said to be usufructuary and it was stipulated that the usufructs should be enjoyed for liquidation of the loan and the cist had to be paid out of it. It is alleged that in 1962, plaintiff No. 1 offered repayment of the loan and demanded release of the land and delivery of possession. It was refused and thereupon the suit has been filed.

3. The defendant No. 1 alone contested. According to him, the land was sold by Kamaya about 25 years back under an oral sale and possession was conveyed. Plaintiffs have absolutely no interest and the defendant No. 1 has been in possession as full owner for about 25 years. The defendant No. 2 did not enter appearance and became ex parte.

4. The learned trial Judge found that the suit property was mortgaged by Kamaya to defendant No. 1 and he further found that as the defendant No. 1 was in possession for more than 15 years, under the provisions of Section 17 of the Orissa Money Lenders Act, the mortgage must be taken to have been satisfied. He, therefore, decreed the suit.

5. The lower Appellate Court on a reassessment of the materials, affirmed the decree. It is against this concurrent judgment of the lower Appellate Court that the second appeal has now been filed.

6. Mr. Murty learned counsel for the defendant No. 1 appellant, raises one single question, namely, that the principal money accrued being Rs. 100/-, the mortgage would have been effected only by a registered instrument signed by the mortgagor and attested at least by two witnesses and since no such document has never been executed, a suit for redemption is not maintainable.

7. Section 59 of the Transfer of Property Act prescribes :-

"Where the principal money secured is one hundred rupees or upwards, a mortgage other than a mortgage by deposit of title deeds can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.

Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in case of a simple mortgage) by delivery of the property."

The contention raised by Mr. Murty is to the effect that if a statute prescribed a particular act to be done in a specified way, that act cannot be done in any other way and yet avail in law. Before examining the legal aspect, it would be proper to refer to the respective cases made out in the pleadings. In paragraph 2 of the plaint, it is averred as follows :

"(2) Late Gokarla Kamayya had acquired some landed properties during his lifetime and he was in khas possession of the same for some period. That in or about 1942, the said Kamayya had mortgaged with possession about 37 cents of his land to the Defendant No. 1 for a sum of Rs. 100/- and delivered possession of the mortgaged property to him.

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(3) The understanding between late Gokarla Kamayya and the defendant No. 1 was that the latter should enjoy the usufruct of the suit property till the principal amount of Rs. 100/- is paid back and that the latter alone should pay the rent, that is land revenue, due to the then Zamindar of Parlakimedi."

The defendant No. 1 in his written statement stated :

3. The recitals in para 3 of the plaint are wholly incorrect and false. It is not true to say that late Kamayya mortgaged the land with possession to this defendant; the lands were sold to t