TaxTMI 
TaxTMI 
TaxTMI 
2018 (12) TMI 2028
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....kina (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 exec....
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....he second wife of Wali Mohd. is also not correct in the light of statement of respondent No. 1 where he specifically stated that after death of his mother, his father did not remarry. 6. In appeal, the first appellate Court allowed the appeal by holding that Wali Mohd. had no necessity to mortgage or sell the suit property for such inadequate consideration of Rs.30,000/-. The first appellate Court placed burden of proof upon appellant-Jamila Begum that she had to prove the genuineness of the mortgage deed as well as sale deed dated 21.12.1970 and that they were validly executed by Wali Mohd. and the said burden has not been discharged by the appellant. Insofar as the oral gift and Will dated 30.09.1970 in favour of Nababun relied upon by the respondent-plaintiff, the first appellate Court held that the execution of the oral gift and Will has been proved and it has also been proved that Wali Mohd. was mentally fit and capable of understanding the contents of the Will. The first appellate Court set aside both mortgage deed dated 21.11.1967 and also the sale deed dated 21.12.1970 and reversed the judgment of the trial court and thereby allowed the appeal. 7. In the second appeal....
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.... 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 ....
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....s 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." 14. Sale deed dated 21.12.1970 in favour of Jamila Begum is a registered document and the registration of the sale deed reinfor....
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....a. 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 ....
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....ami 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 ess....
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....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. 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....
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....king 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 obtai....
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....dated 21.12.1970) are void and be cancelled. Only as an alternative prayer, respondentplaintiff 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 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 o....
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....ed 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....