Case: JAMILA BEGUM (D) THR. LRS Vs. SHAMI MOHD

2. Facts giving rise to this appeal are that deceased respondent No.1-Shami Mohd. filed O.S. No. 130 of 1978 against the appellant and one Sakina (deceased predecessor in interest of respondent Nos.2 to 11) for declaration that the mortgage deed dated 21.11.1967 and also sale deed dated 21.12.1970 in favour of appellant-Jamila Begum in respect of the suit house is void and consequently to cancel the sale deed. In the alternative, respondent-plaintiff claimed redemption of the mortgage, in case, that the mortgage is held to be valid.3. Case of the respondent-plaintiff is that Wali Mohd., father of respondent No.1 had purchased two plots and along with respondent No.1 got the disputed house constructed which was gifted to respondent No. 1 through an oral gift on 30.09.1970 and he was put in possession. On the very same day, a Will was also executed in favour of Nababun, step mother of respondent No.1 in respect of certain properties and in the said Will, Wali Mohd. also mentioned about the oral gift. Respondent No.1-plaintiff further averred that though the appellants contend that Wali Mohd. had executed a mortgage deed dated 21.11.1967 in respect of the suit property in favour of the appellant and one Sakina for a sum of Rs.11000/-, Wali Mohd. was not in requirement of money and the alleged mortgage deed was got executed without consideration. Respondent No. 1 has alleged that the appellant was the mistress of Abdul Rahim who is husband of Sakina. It is further averred that the said Abdul Rahim and Wali Mohd. were friends and because of this, the appellant got the said usufructuary mortgage deed executed in her name and Sakina in collusion of Abdul Rahim and as such no money was advanced under the said mortgage deed and the same was obtained by fraud and undue influence.4. Resisting the suit, the appellant filed written statement inter- alia contending that Nababun is not the legally wedded wife of Wali Mohd. and that she was simply his maid servant. It was averred that Wali Mohd. never executed any Will in favour of Nababun. Further, it was stated that respondent No. 1 was not in possession of the disputed house. Since 1960, relations between Wali Mohd. and respondent No. 1 were strained and Wali Mohd. had turned out respondent No.1 from the suit house and had also lodged FIR against him. Wali Mohd. duly executed mortgage deed dated 21.11.1967 for Rs.11,000/- in favour of Jamila Begum and Sakina. Wali Mohd. had sold the suit property in favour of appellant for consideration of Rs.30,000/- and executed the sale deed dated 21.12.1970. After the sale deed in her favour, the appellant had continually exercised acts of ownership and the suit filed in the year 1978 challenging the mortgage deed and sale deed dated 21.12.1970 is barred by limitation.5. Upon consideration of evidence, the trial court dismissed the suit holding that the mortgage deed dated 21.11.1967 was legal and valid. It was also held that the sale deed dated 21.12.1970 was executed for due consideration of Rs.30,000/- and the same cannot be assailed on the ground of undue influence or inadequate consideration. Trial court also held that a suit for cancellation of sale deed has to be filed within the period of limitation of three years and the suit filed in the year 1978 challenging the sale deed of the year 1970 is barred by the limitation. The trial court held that the alleged Will cannot be accepted since it does not bear the signature of the scribe and was not registered. The trial court rejected the stand of plaintiff-respondent No.1-Shami Mohd. that the suit house was jointly constructed by Wali Mohd. and respondent No. 1. The trial court also held that the contents of the Will that Nababun is the second wife of Wali Mohd. is also not correct in the light of statement of respondent No. 1 where he specifically stated that after death of his mother, his father did not remarry.6. In appeal, the first appellate Court allowed the appeal by holding that Wali Mohd. had no necessity to mortgage or sell the suit property for such inadequate consideration of Rs.30,000/-. The first appellate Court placed burden of proof upon appellant-Jamila Begum that she had to prove the genuineness of the mortgage deed as well as sale deed dated 21.12.1970 and that they were validly executed by Wali Mohd. and the said burden has not been discharged by the appellant. Insofar as the oral gift and Will dated 30.09.1970 in favour of Nababun relied upon by the respondent- plaintiff, the first appellate Court held that the execution of the oral gift and Will has been proved and it has also been proved that Wali Mohd. was mentally fit and capable of understanding the contents of the Will. The first appellate Court set aside both mortgage deed dated 21.11.1967 and also the sale deed dated 21.12.1970 and reversed the judgment of the trial court and thereby allowed the appeal.7. In the second appeal, the High Court affirmed the judgment of the first appellate Court by holding that the suit property was of large extent and it could not have been sold for such inadequate consideration of Rs.30,000/- and the appellant failed to discharge the burden cast on her of proving that the sale deed was validly executed. The High Court affirmed the findings of the first appellate Court that oral gift in favour of respondent No.1 had been proved whereas, the alleged mortgage deed and the sale deed were sham and void documents. The High Court also held that the respondent- plaintiff is entitled to redeem the mortgage and directed him to pay the mortgage amount of Rs.11,000/- for redemption of mortgage and also ordered delivery of possession.

Reasoning: 14. It is also well settled that if by reason of a valid gift the thing gifted has gone out of the donee?s ownership, the same cannot be revoked. The donor may lawfully make a gift of a property in the possession of a lessee or a mortgagee. For effecting a valid gift, the delivery of constructive possession of the property to the donee would serve the purpose. Even a gift of a property in possession of trespasser is permissible in law provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession.respondent No.1- plaintiff claims through oral gift followed by the Will dated 30.09.1970. As discussed earlier, tenants were in occupation of the suit house. 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-Shami Mohd. 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.25. Insofar as the plea that the documents are vitiated by undue influence, as rightly contended by learned senior counsel for the appellant, the plaint averments are vague. It is alleged by respondent No.1-plaintiff that Wali Mohd. had illicit relationship with appellant-Jamila Begum and that he was mentally infirm on the date of the alleged sale deed and that the sale deed was obtained by taking undue advantage of his infirmity and illicit relationship.26. Insofar as the plea of undue influence, 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.In the light of the above principles, considering the case in hand, no sufficient pleading in the plaint as to undue influence. Admittedly, Wali Mohd. had executed the mortgage deed dated 21.11.1967 in favour of Jamila Begum and Sakina. Wali Mohd. was in service in Power House till 1943 and was having full knowledge of things as to what he was doing. In this case, respondent No.1- Shami Mohd. failed to prove that Jamila Begum was in a position to dominate the Will of Wali Mohd. to obtain unfair advantage. The mortgage deed was dated 21.11.1967 and the sale deed in favour of the appellant-Jamila Begum was dated 21.12.1970. Wali Mohd. died on 17.05.1971. During his lifetime, Wali Mohd. 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-Shami Mohd. has failed to establish that the sale deed in favour of the appellant-Jamila Begum is vitiated by undue influence or fraud.decree for redemption of mortgage – whether. As pointed out earlier, 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.decree for redemption of mortgage is correct?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. As discussed earlier, in this case Jamila Begum-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.32. On behalf of respondent No.1-plaintiff, an argument was advanced that, by the subsequent sale the appellant could not have purchased the entire property since there were two mortgagees viz. Jamila Begum and Sakina and therefore, the appellant could not have derived title over the entire suit property. We find no merit in the above contention, property purchased by the appellant -Jamila Begum from Wali Mohd. 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.There is no justification for the first appellate Court to record findings based on the arguments advanced. Even in the absence of pleadings and evidence, the first appellate Court recorded finding that there was no necessity for Wali Mohd. to execute mortgage deed and within short while thereafter, sale deed as he never performed Haj Pilgrimage and never did any business as written in the documents. Likewise, the first appellate Court recorded its own findings on inadequacy of consideration for the sale deed, even though no such plea was taken by respondent No.1-Shami Mohd.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 this 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.