REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1007 OF 2013

JAMILA BEGUM (D) THR. LRS.                          …..Appellant

VERSUS

SHAMI MOHD. (D) THR. LRS. & ANOTHER          ....Respondents

J U G E M E N T  

R. BANUMATHI, J.

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.  

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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

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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

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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.  

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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

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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

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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 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

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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.

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(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?  

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.  

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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:-

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“…..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.”

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.

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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.  

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

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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

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“…….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 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

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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

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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:

(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.

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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

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respondent-plaintiff ought not to have been accepted by the courts

below.  

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

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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.  (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

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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

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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  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

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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.  

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

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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

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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  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.  

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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.

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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.  

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.

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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.)”

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

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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.

………………….J. [R. BANUMATHI]

…………………J. [INDIRA BANERJEE]

New Delhi; December 14, 2018

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