JAMILA BEGUM (D) THR. LRS. versus SHAMI MOHD. (D) THR. LRS. & ANOTHER

Citation: [2018] 13 S.C.R. 1253 · Decided: 14-12-2018 · Supreme Court of India · Bench: R. BANUMATHI · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 4 · see the full citation network in Lexace

Judgment (excerpt)

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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
[2018] 13  S.C.R. 1253
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SUPREME COURT REPORTS
[2018] 13  S.C.R.
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 R

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