Case: Ahmed Bin Salah &amp; Another Vs. Mohd. Basha &amp; Another

have that effect since the defendants father himself admitted in a subsequent document, Ex. A-1, that he had not paid any such amount, and further that he had executed the document Ex. A-1 at the instance of the to evidence the fact that the sale deed was fictitious as no sale had actually taken place. If Ex. A-1 were to be accepted as genuine, there would be no question of the defendants testimony. There would then remain only his uncorroborated word as regards that highly disputed fact. 11. Ex. A-1 in clear terms declared that the sale deed was a fictitious document and that there was in fact no sale by the plaintiffs mother in favour of its executant, the defendants father. It further declared that no amount, such as the amount of Rs. 15, 000 was paid to the plaintiffs mother on that occasion, and that the only amount due to him was the mortgage debt of Rs. 15, 000. The document also declared that the purpose for which the sale deed was executed was to save the property from a possible claim which the plaintiffs second wife might make in lieu of her dower and the fictitious amount of Rs. 30, 000 had to be shown in the sale deed as consideration, so that the purported sale would not appear or be challenged as collusive. By that document the defendants father further declared that the possession of the property which till then was occupied by the plaintiff had on the day of the sale deed been delivered to him, but that he would release it on satisfaction of the mortgage debt. If the mortgage debt was paid during his lifetime he would himself release the property. But, if that was not done, and the plaintiff or his mother were to pay it after his death, his son, the defendant, should release the property. 12. The document, Ex. A-1, was produced by and came from the plaintiffs custody, It was challenged by the defendant as being a forged document. That allegation obviously was reckless since the plaintiffs produced two witnesses, P.Ws. 2 and 6, who swore that they were the attesting witnesses and the defendants father had executed it in their presence. There being no reason to reject that testimony, the defendants challenge to the genuineness of Ex. A-1 was repelled concurrently by both the Trial Court and the High Court. In view of that evidence Ex. A-1 had to be accepted as genuine. Once that was done, its contents also had to be accepted, since the defendants father was not likely to make admissions found in Ex. A-1 against his own interest, if the sale had in fact taken place, and Rs. 15, 000 over and above the mortgage amount had been paid to make up the consideration of Rs. 30, 000. 13. In face of the evidence of the two attesting witnesses and the other evidence showing that the amount of Rs. 15, 000 was never paid, we must concur with the High Courts finding that no sale of the property had taken place and the sale deed Ex. B-1 was a fictitious document evidencing an equally fictitious sale entered into for the purpose stated in Ex. A-1. The logical result would be that the mortgages subsisted and so too the plaintiffs right as the only heir of his mother to redeem them, so long as that right was not foreclosed, even on the assumption that the mortgaged property solely belonged to her. 14. The Trial Court was in error to treat Ex. A-1 as a will containing a direction to the defendant to release the property on satisfaction of the mortgage debt and to find that direction was revoked by Ex. B-6, the last will and testament of the defendants father. It appears that such a misapprehension arose in the mind of the Trial Court because the document at one place has used the expression "by way of sale", and that meant that the title to the property had vested under the sale deed Ex. B-1, in the defendants father, and therefore, the property had to be reconveyed to the plaintiff and hence a suit for redemption could not lie. Such a reasoning, however, is not tenable. Once the purported sale and the sale deed Ex. B-1 were found to the fictitious, and there was in reality no sale, there was no question of any title having passed to the defendants father, which had to be reconveyed. There was equally no question of the defendants father having in his last will and testament Ex. B-6 revoked any directions contained in Ex. A-1. Ex. A-1 cannot by any stretch of imagination be termed a will, although it is so described, since it did not dispose of any property of its executant nor was it to come into effect on and after his death. Ex. A-1 itself stated that if the mortgage debt was discharged during his lifetime, the executant himself would release the property. The document was a unilateral declaration made by the defendants father putting on record the fact that no sale had taken place, and that therefore, neither he nor his son could claim the property as having been sold. Therefore, no question of reconveyance could arise and the only transactions which subsisted being the mortgages a suit for redemption was the proper and the only remedy of the plaintiff. 15. As regards the plaintiffs cross-appeal, there is no merit in it as the document Ex. A-1 on which he relied all throughout itself shows that he himself had occupied the property till the sale deed Ex. B-1 was executed, and that the rents received by the defendant s father and after him by the defendant were utilised towards meeting the cots of repairs and the municipal taxes. No question of defendant having to account for such rents or his having to pay the excess could arise and the plaintiffs claim was, therefore, rightly rejected.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. It is somewhat strange that though the defendants father had been careful enough to have made both the plaintiff and his mother execute the mortgage deeds, he was content to have the sale deed Ex.1 executed by the plaintiffs mother alone, although the plaintiff was present at that time and had in fact signed the document as a witness identifying his mother, she being a pardanashin lady. The sale deed, no doubt, recited the three mortgages for the total amount of Rs. 15, 000, and also that another sum of Rs. 15, 000 had been paid to and received by the plaintiffs mother, thus making Rs. 30, 000 as the consideration for the sale. According to the defendants evidence the additional amount of Rs. 15, 000 was paid in cash to the plaintiffs mother in the morning and the sale deed was registered in the afternoon. No separate receipt was admittedly taken from the plaintiff or his mother when the amount of Rs. 15, 000 was said to have been paid, although the said deed yet remained to be registered. No endorsement was also secured from ther as regards the said payment as was done when the mortgage amount of Rs. 8, 000 was paid and that mortgage deed was registered. The absence of a separate receipt or an endorsement by ther as evidence of payment of Rs. 15, 000 would perhaps have not acquired much significance if the events which subsequently took place had not occurred. Anyway, it is somewhat doubtful whether the defendants father, who had taken all the precautions at the time when the mortgage for Rs. 8, 000 was entered into would not take the same precautions when the sale deed was executed and registered, particularly when he was said to have paid in cash almost the double amount namely, Rs. 15, 00010. As aforesaid, the defendants evidence was that this amount was paid in cash in the morning and the document was registered in the afternoon. He produced no other evidence by way of books of account or any other document to show that his father had kept with him such a large sum in cash ready to hand it over to the plaintiffs mother. The only evidence with regard to the payment, therefore, consisted of the defendants word and the assertion in the sale deed as regards that payment. Ordinarily, such a recital in the sale deed would go a long way to corroborate the purchasers word regarding payment of purchase price. But in the present case, such a recital does not have that effect since the defendants father himself admitted in a subsequent document, Ex., that he had not paid any such amount, and further that he had executed the document Ex.1 at the instance of the to evidence the fact that the sale deed was fictitious as no sale had actually taken place. If Ex.1 were to be accepted as genuine, there would be no question of the defendants testimony. There would then remain only his uncorroborated word as regards that highly disputed fact12. The document, Ex., was produced by and came from the plaintiffs custody, It was challenged by the defendant as being a forged document. That allegation obviously was reckless since the plaintiffs produced two witnesses, P.Ws. 2 and 6, who swore that they were the attesting witnesses and the defendants father had executed it in their presence. There being no reason to reject that testimony, the defendants challenge to the genuineness of Ex.1 was repelled concurrently by both the Trial Court and the High Court. In view of that evidence Ex.1 had to be accepted as genuine. Once that was done, its contents also had to be accepted, since the defendants father was not likely to make admissions found in Ex.1 against his own interest, if the sale had in fact taken place, and Rs. 15, 000 over and above the mortgage amount had been paid to make up the consideration of Rs. 30, 00013. In face of the evidence of the two attesting witnesses and the other evidence showing that the amount of Rs. 15, 000 was never paid, we must concur with the High Courts finding that no sale of the property had taken place and the sale deed Ex.1 was a fictitious document evidencing an equally fictitious sale entered into for the purpose stated in Ex.. The logical result would be that the mortgages subsisted and so too the plaintiffs right as the only heir of his mother to redeem them, so long as that right was not foreclosed, even on the assumption that the mortgaged property solely belonged to her14. The Trial Court was in error to treat Ex.1 as a will containing a direction to the defendant to release the property on satisfaction of the mortgage debt and to find that direction was revoked by Ex., the last will and testament of the defendants father. It appears that such a misapprehension arose in the mind of the Trial Court because the document at one place has used the expression "by way of sale", and that meant that the title to the property had vested under the sale deed Ex., in the defendants father, and therefore, the property had to be reconveyed to the plaintiff and hence a suit for redemption could not lie. Such a reasoning, however, is not tenable. Once the purported sale and the sale deed Ex.1 were found to the fictitious, and there was in reality no sale, there was no question of any title having passed to the defendants father, which had to be reconveyed. There was equally no question of the defendants father having in his last will and testament Ex.6 revoked any directions contained in Ex.. Ex.1 cannot by any stretch of imagination be termed a will, although it is so described, since it did not dispose of any property of its executant nor was it to come into effect on and after his. Ex.1 itself stated that if the mortgage debt was discharged during his lifetime, the executant himself would release the property. The document was a unilateral declaration made by the defendants father putting on record the fact that no sale had taken place, and that therefore, neither he nor his son could claim the property as having been sold. Therefore, no question of reconveyance could arise and the only transactions which subsisted being the mortgages a suit for redemption was the proper and the only remedy of the plaintiff15. As regards the plaintiffs, there is no merit in it as the document Ex.1 on which he relied all throughout itself shows that he himself had occupied the property till the sale deed Ex.1 was executed, and that the rents received by the defendant s father and after him by the defendant were utilised towards meeting the cots of repairs and the municipal taxes. No question of defendant having to account for such rents or his having to pay the excess could arise and the plaintiffs claim was, therefore, rightly rejected.