JAMILA BEGUM (D) THR. LRS. versus SHAMI MOHD. (D) THR. LRS. & ANOTHER
[2018] 13 S.C.R. 1253, Supreme Court of India, 2018
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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JAMILA BEGUM (D) THR. LRS.
v.
SHAMI MOHD. (D) THR. LRS. & ANOTHER
(Civil Appeal No. 1007 of  2013)
DECEMBER 14, 2018
[R. BANUMATHI AND INDIRA BANERJEE, JJ.]
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
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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
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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
JAMILA BEGUM (D) THR. LRS. v. SHAMI MOHD. (D) THR.
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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]
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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,
JAMILA BEGUM (D) THR. LRS. v. SHAMI MOHD. (D) THR.
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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
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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,
JAMILA BEGUM (D) THR. LRS. v. SHAMI MOHD. (D) THR.
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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]
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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.
Case Law Reference
[2006] 1 Suppl.  SCR 692
relied on
 Para  12
[2009] 4  SCR 976  
relied on
 Para 14
[2009] 4  SCR 32
relied on
 Para 14
[1967]SCR  331
relied on
 Para 21
[2000]  2  SCR  878 
referred to
 Para 27
[2014] 10  SCR 1050 
relied on
 Para 30
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1007
of 2013.
From the Judgment and Order
dated 07.09.2007 of the High Court
of Judicature at Uttar Pradesh at Allahabad in Second Appeal No. 135
of 1998.
R. B. Singhal, Sr. Adv., Anurag Kishore, Abhishek Chaudhary,
Hira Lal, Surendera Kumar, Ansar Ahmad Chaudhary, Braj Kishore
Mishra, Ms. Aparna Jha, Ms. Kriti Soudhi, Ms. Bhawna Singh, Vinod
Kumar, Abhishek Yadav, Advs. for the appearing parties.
JAMILA BEGUM (D) THR. LRS. v. SHAMI MOHD. (D) THR.
LRS.
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The Judgment of the Court was delivered by
R. BANUMATHI, J.
1. This appeal arises out of the judgment dated 07.09.2007 passed
by the High Court of judicature at Allahabad dismissing the Second Appeal
No.135 of 1998 thereby upholding the oral gift by Wali Mohd. in favour
of respondent No.1-plaintiff and the Will dated 30.09.1970 and directing
the original plaintiff-deceased respondent No.1 to pay the mortgage
amount of Rs.11,000/- and holding that the mortgage dated 21.11.1967
registered on 12.01.1968 shall stand redeemed and further directing
appellants-defendants to handover the vacant possession of the property.
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.
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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
JAMILA BEGUM (D) THR. LRS. v. SHAMI MOHD. (D) THR.
LRS. [R. BANUMATHI, J.]
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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.
8. Mr. R.B. Singhal, learned senior counsel for the appellant
submitted that the sale deed dated 21.12.1970 has been executed for
due consideration and the first appellate  Court and the High Court erred
in placing the burden of proof upon the
appellant. It was submitted that
when the respondent-plaintiff assailed the document as vitiated by fraud
and undue influence, burden lay upon respondent No.1 to establish
coercion and undue influence.  It was submitted that the plaintiff failed
to establish that appellant-Jamila Begum was in a position to influence
Wali Mohd. to get the sale deed executed in her favour. It was further
submitted that the alleged oral gift and Will dated 30.09.1970 has not
been proved and is clearly an afterthought. It was contended that delivery
of possession which is the essential ingredient of oral gift has not been
established by the respondent-plaintiff. The learned senior counsel further
submitted that the suit filed in the year 1978 for cancellation of the sale
deed dated 21.12.1970 and the mortgage deed dated 21.11.1967 is barred
by limitation.
9. Refuting the contentions, Mr. Braj Kishore Mishra, learned
counsel for the respondents submitted that the first appellate  Court
being a final fact-finding court has found that the respondent-plaintiff
has proved the oral gift whereas, the alleged mortgage deed and the sale
deed were sham and void documents and the same cannot be assailed.
It was further submitted that within three years after execution of the
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mortgage deed by Wali Mohd., sale of the property on the ground that
he was unable to redeem the mortgage is unbelievable. It was further
contended that there were two mortgagees viz. Jamila Begum and Sakina,
whereas the sale deed was executed only in favour of the appellant-
Jamila Begum and there is nothing to show that the other mortgagee had
given possession of her part in the suit property to the appellant-Jamila
Begum. It was further submitted that the High Court rightly decreed the
prayer for redemption of mortgage and the findings of fact recorded by
the first appellate  Court and affirmed by the High Court cannot be said
to be erroneous. It was contended that as per Article 61 of Schedule to
the Limitation Act, 1963 period of thirty years has been prescribed as
limitation for filing suit for redemption of mortgage and the suit filed in
the year 1978 within eight years of the sale deed was well within time
and the High Court was right and justified in granting the redemption of
mortgage to the respondent-plaintiff.
10. We have perused the impugned judgment and the materials
on record. Upon consideration of submission, the following points arise
for consideration:-
(i) Whether the first appellate  Court and the High Court were
right in placing the burden of proof upon the appellant to prove
that the sale deed dated 21.12.1970 was validly executed by Wali
Mohd. with his free will and that the appellant has not discharged
that burden cast upon her?
(ii) Whether the High Court and the first appellate  Court were
right in accepting the case of the plaintiff that Wali Mohd. orally
gifted the suit house to plaintiff and also executed the Will on
30.09.1970 in favour of Nababun and rejecting the sale deed dated
21.12.1970 relied upon by the appellant-defendant.
(iii) Whether the High Court was right in granting the alternative
relief of redemption of mortgage deed on payment of Rs.11,000/
- the amount mentioned in the mortgage deed treating the suit as
suit simpliciter for redemption of mortgage.
(iv) Whether the suit O.S. No.130 of 1978 filed by the respondent-
plaintiff in the year 1978 to set aside the mortgage deed dated
21.11.1967 and sale deed dated 21.12.1970 was barred by
limitation?
(v) Whether the impugned judgment of High Court is sustainable?
JAMILA BEGUM (D) THR. LRS. v. SHAMI MOHD. (D) THR.
LRS. [R. BANUMATHI, J.]
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Mortgage deed dated 21.11.1967 and sale deed dated
21.12.1970– Whether valid and execution duly proved?
11. The mortgage deed dated 21.11.1967 (Ex.74 Kha.) was
executed by Wali Mohd. for Rs.11,000/- in favour of Jamila Begum and
Sakina. DW-4 – Abdul Hamid  – attesting witness of the mortgage deed
was examined who has stated about the execution of mortgage deed by
Wali Mohd. 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 Wali Mohd. was not in a position to repay the mortgage deed amount
of Rs.11,000/-. The respondent No.1-plaintiff-Shami Mohd. has not
adduced any reliable evidence of proof to establish that the mortgage
deed was not executed by Wali Mohd. out of his free will or without any
consideration.
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.
13. In the sale deed dated 21.12.1970, vendor Wali Mohd. had
stated that he had executed the sale deed out of his free will and volition.
The relevant recitals of sale deed dated 21.12.1970 read as under:-
“…..Therefore, in my full senses and in disposing mind and body
and without any pressure or coercion from anybody, I execute
this agreement to sell, of my own will, for a consideration of
Rs.30,000/- (Rupees Thirty Thousand Only) in favour of Smt.
Jamila alias Nandani so that it may be of use when the need
arises.”
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14. Sale deed dated 21.12.1970 in favour of Jamila Begum 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. In Prem Singh and Others v. Birbal and Others (2006) 5
SCC 353, it was held as under:-
“27. There is a presumption that a registered document is validly
executed. A registered document, therefore, prima facie would
be valid in law. The onus of proof, thus, would be on a person who
leads evidence to rebut the presumption. In the instant case,
Respondent 1 has not been able to rebut the said presumption.”
The above judgment in Prem Singh’s case has been referred to
in Vishwanath Bapurao Sabale v. Shalinibai Nagappa Sabale and
Others (2009) 12 SCC 101.
15. Contention of the respondent-plaintiff is that at the time of the
execution of the sale deed, Wali Mohd. was mentally weak and therefore,
he was not in a position to understand and that the sale deed was not
executed out of his free will and volition. To substantiate their case,
respondent No.1-plaintiff has examined Dr. Wasim (PW-5) who has
stated that he has treated Wali Mohd. from the period 15.11.1970 to
25.12.1970 and produced the medical certificate-Ex.50 Kha.  From the
evidence of Dr. Wasim (PW-5) and from his medical certificate-Ex.50
Kha.,
respondent-plaintiff has thus tried to show that at the time of the
execution of the sale deed, Wali Mohd. was not in such a position to
apply his mind and understand the contents of the sale deed. As pointed
out by the trial court, Dr. Wasim was doing private practice from the
year 1969 and that at the time of issuing medical certificate, he had
experience of medical practice for only two years.  Dr. Wasim has
admitted that he was not knowing Wali Mohd. from before. By way of
clarification from Dr. Wasim, it is brought in evidence that Dr. Wasim
did not prepare the medical certificate-Ex.50 Kha. after seeing the
prescriptions written and maintained by him during illness of Wali Mohd.;
but he prepared the same only on the basis of his memory. Dr. Wasim
also clarified that about 10-15 days prior to the treatment of Wali Mohd.,
Dr. K.N. Srivastava and Dr. Sikka also treated Wali Mohd; but the
other two doctors were not examined, though Dr. Sikka was stated to
be in Kanpur.
JAMILA BEGUM (D) THR. LRS. v. SHAMI MOHD. (D) THR.
LRS. [R. BANUMATHI, J.]
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16. 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
Wali Mohd., 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 Wali Mohd. started deteriorating after March, 1971. From
the evidence of Dr. Wasim and the medical certificate -Ex.50 Kha. issued
by him, it cannot be said that Wali Mohd. 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.
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.
18. The trial court upon consideration and weighing the evidence
of Advocate Ahmad (DW-3) and Dr. Wasim (PW-5) held
that “…….the
evidence of Shri Ahmad, Advocate is comparatively more acceptable
and believable.” Upon appreciation of oral evidence, when the trial
court has recorded the findings that the evidence of Advocate Ahmad
(DW-3) is credible and acceptable, in our considered view, 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.
Whether there was a valid oral gift in favour of the
respondent-plaintiff-Shami Mohd. as claimed?
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
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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 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 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.
21. 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. The essentials
of a valid and complete gift under Mohammedan law have been succinctly
laid down in Abdul Rahim and Others v. Sk. Abdul Zabar and Others
(2009) 6 SCC 160 as under:-
“13. The conditions to make a valid and complete gift under the
Mohammadan law are as under:
JAMILA BEGUM (D) THR. LRS. v. SHAMI MOHD. (D) THR.
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(a) The donor should be sane and major and must be the owner
of the property which he is gifting.
(b) The thing gifted should be in existence at the time of hiba.
(c) If the thing gifted is divisible, it should be separated and
made distinct.
(d) The thing gifted should be such property to benefit from
which is lawful under the Shariat.
(e) The thing gifted should not be accompanied by things not
gifted i.e. should be free from things which have not been
gifted.
(f) The thing gifted should come in the possession of the donee
himself, or of his representative, guardian or executor.
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.
22. In the light of the above principles, let us consider whether
the oral gift pleaded by the respondent-plaintiff satisfies the essential
conditions of oral gift and in particular, whether possession has been
established by respondent
No.1-plaintiff. The 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.
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23. Upon consideration of evidence and facts, the trial court rightly
held that the plea of oral gift in favour of respondent No.1-Shami Mohd.
and Will dated 30.09.1970 are not true and acceptable. 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-Jamila Begum and another mortgagee-Sakina 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
as seen from the following recitals:-
“….. the writer of this document has no concern with this property
and the purchaser has become the absolute owner of the property
from this day of today and the ownership and possession of the
property has been given by writer of this document to the ownership
and possession of the purchaser.”
The sale deed also contains recitals that the appellant-Jamila Begum
has a right to get the name transferred in the records of Nagarpalika,
Kanpur City as owner of the property and that if there is a need, vendor
Wali Mohd. will give his statement to that effect. That apart, as discussed
earlier, the appellant-Jamila Begum had initiated various proceedings for
eviction of the tenants and obtained possession. She had also filed eviction
Suit No.2441 of 1971 against respondent-plaintiff-Shami Mohd., Niyaz
Bano and
Nababun which amply proves the exercise of acts of ownership
by appellant-Jamila Begum and the possession of the appellant-Jamila
Begum over the suit property. The High Court and the first appellate
Court erred in not properly appreciating these circumstances and evidence
brought on record.
Sale deed (Ex. 75 Kha.)  - whether vitiated due to undue
influence
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.
JAMILA BEGUM (D) THR. LRS. v. SHAMI MOHD. (D) THR.
LRS. [R. BANUMATHI, J.]
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(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 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.
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.
27. While considering the aspect of plea of undue influence and
onus-probandi, in Subhas Chandr Das Mushib v. Ganga Prasad
Das Mushib and Others AIR 1967 SC 878, it was held as under:-
“4. Under Section 16(1) of the Indian Contract Act a
contract is
said to be induced by undue influence where the relations subsisting
between the parties are such that one of the parties is in a position
to dominate the will of the other and uses that position to obtain an
unfair advantage over the other. This shows that the court trying
a case of undue influence must consider two things to start with,
namely, (1) are the relations between the donor and the donee
such that the donee is in a position to dominate the will of the
donor and (2) has the donee used that position to obtain an unfair
advantage over the donor?
7. The three stages for consideration of a case of undue influence
were expounded in the case of Raghunath Prasad v. Sarju
Prasad and Others (AIR 1924 PC 60) in the following words:
“In the first place the relations between the parties to each
other must be such that one is in a position to dominate the will
of the other. Once that position is substantiated the second
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stage has been reached — namely, the issue whether the
contract has been induced by undue influence. Upon the
determination of this issue a third point emerges, which is that
of the onus probandi. If the transaction appears to be
unconscionable, then the burden of proving that the contract
was not induced by undue influence is to lie upon the person
who was in a position to dominate the will of the other.
Error is almost sure to arise if the order of these propositions
be changed. The unconscionableness of the bargain is not the
first thing to be considered. The first thing to be considered is
the relations of these parties. Were they such as to put one in
a position to dominate the will of the other?”
28. 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.
Passing decree for redemption of mortgage – whether
correct
29. 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.
JAMILA BEGUM (D) THR. LRS. v. SHAMI MOHD. (D) THR.
LRS. [R. BANUMATHI, J.]
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Whether decree for redemption of mortgage is correct?
30. 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. In Shivdev Singh and Another v. Sucha Singh and
Another (2000) 4 SCC 326, it was held as under:-
“8. …The right of redemption recognised under the Transfer of
Property Act is thus a statutory and legal right which cannot be
extinguished by any agreement made at the time of mortgage as
part of the mortgage transaction.”
31. 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.
33. 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
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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.
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.
35. 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.
JAMILA BEGUM (D) THR. LRS. v. SHAMI MOHD. (D) THR.
LRS. [R. BANUMATHI, J.]
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36. The first appellate  Court being the final court of fact has
jurisdiction to reverse or affirm the findings of the trial court. Considering
the nature and scope of the first appellate  Court in Vinod Kumar v.
Gangadhar (2015) 1 SCC 391, it was held as under:
“15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy (2010) 13
SCC 530, this Court taking note of all the earlier judgments of this
Court reiterated the aforementioned principle with these words:
“3. How the regular first appeal is to be disposed of by the
appellate  Court/High Court has been considered by this Court
in various decisions. Order 41 CPC deals with appeals from
original decrees. Among the various rules, Rule 31 mandates
that the judgment of the appellate  Court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the
relief to which the appellant is entitled.
4. The appellate  Court has jurisdiction to reverse or affirm the
findings of the trial court. The first appeal is a valuable right of
the parties and unless restricted by law, the whole case is therein
open for rehearing both on questions of fact and law. The
judgment of the appellate  Court must, therefore, reflect its
conscious application of mind and record findings supported
by reasons, on all the issues arising along with the contentions
put forth, and pressed by the
parties for decision of the appellate
Court. Sitting as a court of first appeal, it was the duty of the
High Court to deal with all the issues and the evidence led by
the parties before recording its findings. The first appeal is a
valuable right and the parties have a right to be heard both on
questions of law and on facts and the judgment in the first
appeal must address itself to all the issues of law and fact and
decide it by giving reasons in support of the findings. (Vide
Santosh Hazari v. Purushottam Tiwari (Deceased) By Lrs.
(2001) 3 SCC 179, SCC p. 188, para 15 and Madhukar and
Others v. Sangram and Others (2001) 4 SCC 756 SCC p.
758, para 5.)”
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1277
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 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.
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.
Kalpana K. Tripathy
Appeal allowed.
JAMILA BEGUM (D) THR. LRS. v. SHAMI MOHD. (D) THR.
LRS. [R. BANUMATHI, J.]