Suit:
Suit by respondent No.1 (plaintiff) – For declaration that the mortgage deed dated 21.11.1967 and sale deed dated 21.12.1970 in respect of suit house executed by his father in favour of appellant (defendant) was void – In the alternative plaintiff sought redemption of the mortgage – Claim of plaintiff that the suit property was gifted to him by way of oral gift by his father and this fact was mentioned by his father in a will executed in favour of plaintiff’s step mother – Trial court dismissed the suit – First appellate court decreed the suit – In second appeal High Court affirmed the judgment of first appellate court – On appeal, held: Defendants have proved execution of Mortgage deed in accordance with law – Sale deed being a registered document, execution thereof is validly proved – Facts of the case also prove that the sale deed was validly executed – Plaintiff failed to establish that the sale deed in favour of appellant was vitiated by undue influence or fraud – Under Mohammmedan Law, making oral gift is permissible, but the respondent No.1 failed to prove as to how at the time of oral gift, possession of the suit property was delivered to him – Thus oral gift has not been proved – On the contrary, defendant had brought in evidence to show her possession – Though the suit was for declaration of the mortgage deed and sale deed as void, but the first appellate court as well as High Court wrongly proceeded on the footing that it was a simple suit for redemption of mortgage – Even the decree for redemption of mortgage simplicitor was passed without following the procedure therefor laid down in Order 34 rr.7 and 8 of CPC – Suit was also barred by limitation since the suit seeking a declaration and cancellation of mortgage and sale deeds, was to be filed within three years when the right to sue accrued – Without keeping in view the main relief, High Court was not right is decreeing the suit for redemption of mortgage – High Court, without appreciating the evidence, erred in ordering the redemption of mortgage and delivery of possession – Code of Civil Procedure, 1908 – Order 34 rr. 7 and
8 – Limitation Act, 1963 – Schedule Articles 58 and 59. Deeds and Documents:
Registered document – Presumption – Held: A registered document carries with it a presumption that it was validly executed – It is for the party challenging the genuineness of the transaction to show that the transaction in not valid in law. Document – Whether vitiated by undue influence – Burden to prove – Held: There is no presumption of undue influence – Court is required to scrutinise whether undue influence was exercised – Burden to prove undue influence is upon the party who is challenging the document – Evidence – Burder to prove – Presumption. Mohammedan Law:
Oral gift – Conditions for making valid oral gift – Held: For making an oral gift valid there should be wish or intention on the part of the donor; acceptance by the donee; and taking possession of subject matter of gift by donee.
Transfer of Property Act, 1882:
s.60 proviso – Redemption of mortgage – Extinction of – Held: Right of redemption can be extinguished either by the “act of parties” or by decree of court – The expression “Act of parties” refers to some transaction subsequent to the mortgage, standing barred from the mortgage transaction.
Appeal:
First appellate court – Jurisdiction – Scope of – Held: Court of first appeal has jurisdiction to reverse or affirm the findings of trial court – When first appellate court takes a different view, its judgment must show conscious application of mind and record its findings based on the evidence and reasons for taking a different view.
Allowing the appeal, the Court
HELD: 1.1 The mortgage deed dated 21.11.1967 (Ex.74 Kha.) was executed by ‘W’ for Rs.11,000/- in favour of appellant and ‘S’. DW-4 attesting witness of the mortgage deed was examined who has stated about the execution of mortgage deed and thus, the appellants have proved the execution of mortgage deed in accordance with law. There is also mention about the mortgage deed dated 21.11.1967 in the sale deed dated 21.12.1970 and that ‘W’ was not in a position to repay the mortgage deed amount of Rs.11,000/-. The respondent No.1-plaintiff has not adduced any reliable evidence of proof to establish that the mortgage deed was not executed by ‘W’ out of his free will or without any consideration. [Para 11][1266B-C]
1.2 ‘W’ sold the suit property for Rs.30,000/- to the appellant by a registered sale deed dated 21.12.1970 (Ex.75 Kha.). The recitals in the registered sale deed are natural and cogent showing that it was validly executed. The sale deed refers to the mortgage deed dated 21.11.1967 and that ‘W’ received Rs.11,000/- from the mortgagees – appellant and the co-mortgagee. Recitals in the sale deed also refer to the fact that the house was in the possession of the tenants and that the rental income was Rs.1440/-. The recitals in the sale deed makes a clear reference to the receipt of sale consideration of Rs.30,000/- [Para 12] [1266-D-E]
1.3 Sale deed dated 21.12.1970 in favour of the appellant is a registered document and the registration of the sale deed reinforces valid execution of the sale deed. A registered document carries with it a presumption that it was validly executed. It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law. [Para 14] Prem Singh and Others v. Birbal and Others (2006) 5 SCC 353 : [2006] 1 Suppl. SCR 692 ; Vishwanath Bapurao Sabale v. Shalinibai Nagappa Sabale and Others (2009) 12 SCC 101: [2009] 4 SCR 976 – relied on.
1.4 From the evidence of doctor (PW-5) and from his medical certificate-Ex.50 Kha., respondent-plaintiff has tried to show that at the time of the execution of the sale deed, ‘W’ was not in such a position to apply his mind and understand the contents of the sale deed. The trial court also referred to Exs.44 Kha. to 49 Kha. and Ex.51 Kha. filed by the respondent-plaintiff to show about the illness of ‘W’ all of which relate to the period from March 1971 to June 1971. The prescriptions relate to the period from March 1971 to June 1971. After referring to these documents, trial court observed that the condition of ‘W’ started deteriorating after March, 1971. From the evidence of PW 5 and the medical certificate -Ex.50 Kha. issued by him, it cannot be said that ‘W’ was not mentally fit at the time of execution of the sale deed dated 21.12.1970 and that the same was not validly executed. [Paras 15 and 16][1267-E-F; 1268-A-C]
1.5 The appellant-defendant has examined Advocate DW-3 who has prepared the sale deed and the scribe of sale deed dated 21.12.1970. In his evidence, DW-3 has stated that on the instruction of ‘W’, he had prepared the sale deed and that sale deed was validly executed by ‘W’ out of his free will and consent. As pointed out by the trial court, DW-3 was personally knowing ‘W’ and that being the scribe of the sale deed, Ex.75 Kha. contains the signature of DW-3. [Para 17][1268-C-D]
1.6 Upon appreciation of oral evidence, when the trial court has recorded the findings that the evidence of DW-3 is credible and acceptable, the first appellate Court and the High Court ought not to have interfered with the findings recorded by the trial court; more so, when the sale deed dated 21.12.1970 was a registered document. The first appellate Court and the High Court were not right in holding that the sale deed Ex.75 Kha. (21.12.1970) was not validly executed. [Para 18][1268-C-D]
2.1 The burden of proving that the documents were vitiated due to undue influence is upon the respondent-plaintiff who is challenging the documents (Mortgage deed and sale deed). By examination of PW-5 and Ex.50 Kha., it cannot be said that the burden cast upon respondent-plaintiff is said to have been discharged, so as to shift the burden to the appellant-defendant. [Para 24][1271-G-H]
2.2. Insofar as the plea that the documents are vitiated by undue influence, the plaint averments are vague. Merely because the parties are related to each other or merely because the executant was old or of weak character, no presumption of undue influence can arise. Court must scrutinise the pleadings to find out that such plea has been made out before examining whether undue influence was exercised or not. [Paras 25 and 26] [1272-B-D]
Subhas Chandr Das Mushib v. Ganga Prasad Das
Mushib and Others AIR 1967 SC 878 : [1967] SCR
331 – relied on.
2.3 In the present case, respondent No.1 failed to prove that the apellant was in a position to dominate the will of ‘W’ to obtain unfair advantage. The mortgage deed was dated 21.11.1967 and the sale deed in favour of the appellant was dated 21.12.1970. ‘W’ died on 17.05.1971. During his lifetime, ‘W’ has not challenged either the mortgage deed or the sale deed. No evidence has been adduced to prove that appellant exercised undue influence to get the documents executed. Respondent No.1 has failed to establish that the sale deed in favour of the appellant is vitiated by undue influence or fraud. [Para 28][1273-D-F]
3.1 Respondent-plaintiff claims right to the suit property by virtue of oral gift in favour of respondent No.1 followed by the Will dated 30.09.1970 allegedly made by ‘W’ in favour of his second wife. As rightly held by the trial court, the said Will dated 30.09.1970 was a fabricated document. The alleged oral gift followed by the Will dated 30.09.1970, though said to have been executed in the year 1970, the respondent-plaintiff filed the suit only in the year 1978 claiming right in the suit property. During the period between 1970 to 1978, the appellant-defendant was asserting her right over the suit property in various eviction proceedings against the plaintiff, second-wife of ‘W’ and some other tenants. Respondent No.1 has admitted in his evidence that on the basis of sale deed dated 21.12.1970, appellant had filed eviction suit. The said suit was decreed against the plaintiff. The appellant had taken possession of the suit property. [Para 19][1268-G-H; 1269-A-C]
3.2 Appellant has also been exercising her right of ownership over the suit house by filing eviction petition against other tenants. In his evidence, the plaintiff has stated that appellant had also filed suit for eviction of tenants. In those eviction suits, the plaintiff had filed impleadment application and the said application came to be dismissed. That apart, the name of the appellant was mutated in the records of Nagar Mahapalika after four years from the date of sale deed which is admitted by respondent No.1-plaintiff. Inspite of all these proceedings, respondent-plaintiff did not immediately challenge the sale deed and kept quiet for eight years. Without proper appreciation of these formidable circumstances, the first appellate Court and the High Court erred in accepting the case of respondent-plaintiff as to the oral gift in his favour and the alleged Will dated 30.09.1970. [Para 20][1269-D-F]
3.3 Under the Mohammedan law, no doubt, making oral gift is permissible. The conditions for making valid oral gift under the Mohammedan law are:- (i) there should be wish or intention on the part of the donor to gift; (ii) acceptance by the donee; and
(iii) taking possession of the subject matter of the gift by the donee. Respondent-plaintiff has not proved as to how at the time of oral gift, the possession was delivered to him. Nothing is brought on record to show that respondent No.1 has taken any steps to get the property mutated in his name. Likewise, nothing is brought on record to show that pursuant to the oral gift, the respondent-plaintiff collected rent from the tenants or paid house tax, water tax, etc. The essential conditions to make a valid gift under the Mohammedan law have not been established by the respondent-plaintiff to prove the oral gift in his favour. In the absence of any proof to show that the possession of the suit property was delivered to him, the oral gift relied upon by the respondent-plaintiff ought not to have been accepted by the courts below. [Paras 21 and 22][1269-F-G; 1270-F-H]
Abdul Rahim and Others v. Sk. Abdul Zabar and Others (2009) 6 SCC 160: [2009] 4 SCR 32 – relied on.
3.4 Per contra, the appellant-defendant had brought in evidence to show that she was in possession of the suit property. So far as the mortgage deed dated 21.11.1967, it was a usufructuary mortgage pursuant to which the appellant and another mortgagee came to be in possession of the suit property. The sale deed dated 21.12.1970 also contains recitals as to handing over of the possession of the suit property. The sale deed also contains recitals that the appellant has a right to get the name transferred in the records of Nagarpalika as owner of the property and that if there is a need, vendor will give his statement to that effect. That apart, the appellant had initiated various proceedings for eviction of the tenants and obtained possession. She had also filed eviction Suit against respondent-plaintiff and others which amply proves the exercise of acts of ownership by appellant and the possession of the appellant over the suit property. The High Court and the first appellate Court erred in not properly appreciating these circumstances and evidence brought on record. [Para 23][1271-A-B; D-F]
4.1 The main relief sought for in the suit was for a declaration that the mortgage deed (dated 21.11.1967) registered on 12.01.1968 and sale deed (dated 21.12.1970) are void and be cancelled. Only as an alternative prayer, respondent-plaintiff sought for redemption of mortgage. But both the first appellate Court as well as the High Court proceeded on the footing as if it was a simple suit for redemption of mortgage. [Para 29] [1273-G-H]
4.2 Section 60 of the Transfer of Property Act, 1882 provides that at any time after the money becomes due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money to require the mortgagee to deliver the mortgage deed and all documents relating to the mortgaged property, and where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor. The right of redemption can be extinguished as provided in proviso to Section 60 of the Transfer of Property Act. It can be extinguished either by the act of the parties or by decree of a court. The expression “act of parties” refers to some transaction subsequent to the mortgage, standing barred from the mortgage transaction. In the present case appellant-one of the mortgagees has purchased the property by the sale deed dated 21.12.1970 and thus, she purchased the entire equity of redemption by the execution of the sale deed, the mortgage qua the appellant has merged with the sale. [Paras 30 and 31] [1274-A-E]
Shivdev Singh and Another v. Sucha Singh and Another (2000) 4 SCC 326 : [2000] 2 SCR 878 – referred to.
4.3 It is not correct to say that by the subsequent sale the appellant could not have purchased the entire property since there were two mortgagees. The property purchased by the appellant from ‘W’ by sale deed dated 21.12.1970 is an act of the parties, by which the right of redemption qua the appellant became extinguished by the act of the parties. Without keeping in view the main relief sought in the suit, the High Court was not right in decreeing the suit for redemption of mortgage. [Para 32] [1274-E-G]
4.4. The High Court has not followed the provisions of Code of Civil Procedure for passing decree for redemption of mortgage. Order 34 Rule 7 CPC stipulates that in a suit for redemption of mortgage, the court shall prepare the preliminary decree in accordance with Order 34 Rule 7 CPC. The High Court has passed a decree for redemption of mortgage simpliciter without following the provisions of the Code of Civil Procedure. The High Court also erred in directing the delivery of possession of the suit property to respondent No.1-plaintiff and the same cannot be sustained. The High Court could not have passed the decree for redemption without following the procedure laid down in Order
34 Rule 7 and 8 of the Code of Civil Procedure which lays down a detailed procedure for passing a preliminary decree and final decree in a suit for redemption which was not followed by the High Court. [Para 33][1274-G-H; 1275-A-B]
5. In the plaint, it was averred that the cause of action of the suit arose on 21.11.1967 and 21.12.1970. Under Articles 58 and 59 of the Schedule to the Limitation Act, 1963 a suit filed for any declaration is to be filed within three years when the right to sue accrues. Under Article 59 of the Limitation Act, suit filed to cancel or set aside the instrument or decree, the suit has to be filed within three years from the date when the facts entitling the plaintiff to set aside or cancel the instrument or decree became first known to him. Plaintiff has admitted in his evidence that he got knowledge about the execution of the sale deed dated 21.12.1970 on the third day of death of his father - 17.05.1971. The suit must have been filed within three years of the date of knowledge or the date of the sale deed but the suit was filed on 12.07.1978. The suit filed challenging the validity of the mortgage deed dated 21.11.1967 and sale deed dated 21.12.1970 is beyond the period of limitation of three years as prescribed under Articles
58 and 59 of the Schedule to the Limitation Act and barred by limitation. [Para 34][1275-C-F]
6. The Court of first appeal has jurisdiction to reverse or affirm the findings of the trial Court. When the Court of first appeal takes a different view, the judgment of the first appellate Court must show the conscious application of mind and record its findings based on the evidence adduced by the parties and the judgment must record the reasons as to why the first appellate Court differs from the judgment of the Trial Court. In the present case, judgment of the lower appellate Court has not answered all the points arising for determination and the evidence adduced thereon. Likewise, the High Court has not recorded any finding either on fact or on law. The High Court proceeded on the footing as if the suit was a simple suit for redemption of mortgage. Without appreciation of evidence adduced by the parties and sale deed dated 21.12.1970, the High Court erred in ordering the redemption of mortgage and delivery of possession. The impugned judgment of the High Court cannot be sustained and is liable to be set aside. [Para 36][1277-A-C]
Vinod Kumar v. Gangadhar (2015) 1 SCC 391 : [2014]
10 SCR 1050 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.