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 2 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 3 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. 4

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 5 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.

12. Wali Mohd. sold the suit property for Rs.30,000/- to the appellant-Jamila Begum 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 by Wali Mohd. The sale deed refers to the mortgage deed dated 21.11.1967 and that Wali Mohd. received Rs.11,000/- from the mortgagees – Jamila Begum and Sakina. 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/- as:- (i) that the vendor Wali Mohd. had received the mortgage amount of Rs.11,000/- and that he had not been able to get the property released from mortgage; (ii) receipt of consideration of Rs.11,000/- from the purchaser at the time of entering into the agreement to sell; and (iii) receipt of consideration amount of Rs.8,000/- in the presence of Sub-Registrar, Kanpur at the time of execution of the sale deed.

17. On the contrary, the appellant-defendant has examined Advocate Ahmad (DW-3) who has prepared the sale deed and the scribe of sale deed dated 21.12.1970. At the time of writing the sale deed, Advocate Ahmad (DW-3) was having Bar experience of nine years. In his evidence, DW-3 – Shri Ahmad has stated that on the instruction of Wali Mohd., he had prepared the sale deed and that sale deed was validly executed by Wali Mohd. out of his free will and consent. As pointed out by the trial court, DW-3 – Advocate Ahmad was personally knowing Wali Mohd. and that being the scribe of the sale deed, Ex.75 Kha. contains the signature of DW-3 – Shri Ahmad, Advocate.

19. 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 Wali Mohd. in favour of Nababun. 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. Be it noted that during the period between 1970 to 1978, the appellant-defendant-Jamila Begum was asserting her right over the suit property in various eviction 14 proceedings against plaintiff-Shami Mohd., Niyaz Bano and Nababun and some tenants. The respondent No.1-plaintiff-Shami Mohd. has admitted in his evidence that on the basis of sale deed dated 21.12.1970, appellant-Jamila Begum had filed eviction suit No.2441 of 1971 against him, Niyaz Bano and Nababun in the court of Munsif City. In the said eviction suit, plaintiff-Shami Mohd. filed his written statement and the said suit was decreed against the plaintiff- Shami Mohd. The appellant-Jamila Begum had taken possession of the suit property; plaintiff-Shami Mohd. however, stated that he had filed appeal to set aside the judgment and decree.

20. Appellant-Jamila Begum has also been exercising her right of ownership over the suit house by filing eviction petition against other tenants. In his evidence, plaintiff-Shami Mohd. has stated that appellant-Jamila Begum had also filed suit for eviction of tenant Sher Ali and other tenants viz. Imtiaz and Binda. In those eviction suits, plaintiff-Shami Mohd. had filed impleadment application and the said application came to be dismissed. That apart, the name of appellant-Jamila Begum 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-Shami Mohd. It passes one’s comprehension, inspite of all these proceedings, why 15 respondent-plaintiff did not immediately challenge the sale deed and kept quite 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.

24. In the suit, respondent-plaintiff has challenged the mortgage deed dated 21.11.1967 as well as sale deed dated 21.12.1970 executed by his father Wali Mohd on the ground that they were not executed by him out of his free will and volition. The burden of proving that the documents were vitiated due to undue influence is upon the respondent-plaintiff who is challenging the documents. By examination of Dr. Wasim (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. From the evidence of Shami Mohd. (PW-1), it is seen that Wali Mohd. was in service in Power House till 1943 and he left his service in the year 1943. As discussed earlier, the sale deed was registered and Wali Mohd. has received part consideration that is 19 Rs.8,000/- before the Sub-Registrar, Kanpur. Having worked in the Power House way back in the year 1943, Wali Mohd. must have been worldly wise and knowledgeable.

34. Suit barred by limitation :- As discussed, suit was filed for declaration that the mortgage deed dated 21.11.1967 as well as sale deed dated 21.12.1970 executed by Wali Mohd. were not executed by him out of his free will and are void. In paragraph (14) of the plaint, it is 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 in 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-Shami Mohd. 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. In the case in hand, 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.

Passing decree for redemption of mortgage – whether correct

37. In the result, the impugned judgment of the High Court in Second Appeal No.135 of 1998 dated 07.09.2007 is set aside and this appeal is allowed. Suit No. O.S. 130 of 1978 filed by the respondent-plaintiff is dismissed and the judgment and decree of the Trial Court is affirmed. No costs.

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