1999 Supreme(SC) 1385

1999 (10) Supreme 27
SUPREME COURT OF INDIA
(From Punjab & Haryana High Court)
M. Jagannadha Rao and M.B. Shah, JJ.
Ishwar Dass Jain (dead) through LRs. -Appellant
versus
Sohan Lal (dead) by LRs. -Respondent
Civil Appeal No. 14987 of 1996
Decided on 29-11-1999
Counsel for the Parties :
For the Appellant : Ms. Shashi Jain, Advocate (In-Person).
For the Respondent : D. Mahesh Babu, Advocate.

Headnote:(i) Code of Civil Procedure, 1908-Section 100 - Second appeal-Interference with findings of fact when permissible-Suit for redemption-Defendant claiming that he was tenant but admitting execution of mortgage deed-Courts below failing to consider vital piece of evidence of admission about execution of mortgage deed-High Court ought to have interfered with findings of lower Courts that defendant was tenant.

       Under section 100 CPC, after the 1976 amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate Court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate Court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. (Paras 10, 11 & 12)

       Thus where in redemption of a mortgage suit, the defendant claimed to be a tenant but admitted execution of the mortgage deed but contended it was a sham mortgage and the lower Courts without considering the admission of the defendant held that the defendant was a tenant and dismissed suit for redemption.

       Held : The substantial question of law that arises for consideration in this appeal is: "whether the courts below had failed to consider vital pieces of evidence and whether the Courts relied upon inadmissible evidence while arriving at the conclusion that the mortgage was sham and that there was no relationship between the plaintiff and the defendant as mortgagor and mortgagee but the real relationship was as landlord and tenant? and the High Court should have interfered with the findings of the lower Courts in view of the fact that vital evidence which could lead to a different conclusion was omitted. (Paras 8 & 13)

       (ii) Indian Evidence Act, 1872-Sections 65, 68 and 71-Proof of Execution of document-Proof by certified copy-Mortgage deed-Plaintiff filing certified copy calling upon mortgagee to file original-Refusal by defendant-Defendant admitting in written statement that mortgage deed was executed but contending that it was executed to circumvent Rent Control Legislation -Plaintiff not required to examine attestors-Mortgage stood proved by certified copy. (Para 14)

       (iii) Indian Evidence Act, 1872-Section 92 - Oral evidence - To prove that a document though executed was a sham document-Permissible-Suit for redemption of mortgage - Defendant contending he was a tenant and mortgage document was sham document but in fact it was collateral security given to guarantee to vacate tenanted premises - Mortgage executed by landlord in favour of alleged tenant-Reason given by defendant unbelievable.

       Held : The reason given by the defendant appears to us rather curious. One can understand a debtor incurring a debt and executing a deed as collateral security. There is no such situation here. Further, if it is a deed of collateral security by defendant, then the defendant would have had to execute a deed in favour of the plaintiff and not vice-versa. Here the plaintiff-owner has mortgaged his shop to the defendant, as security. The plea and evidence of collateral security offered by the defendant appears to us not to fit into a situation where the plaintiff has executed the mortgage. Obviously, if the plaintiff wanted to secure something by way of an additional security from the defendant, the normal course would have been to ask the defendant to give such a security and not for the plaintiff to execute a mortgage. Thus the reason mentioned and evidence given by the defendant as to why a sham document was executed falls to the ground. Though evidence is admissible under Section 92(1) to prove that the mortgage is a sham document, such evidence is lacking in this case. (Paras 18 & 19)

       (iv) Indian Evidence Act, 1872-Section 34-Entries in books of account - Private extracts of accounts-Is only secondary evidence-Privately hand written copies alleged account books cannot by themselves be treated as secondary evidence-Sanctity attached in law to entries in books of account cannot be attached to private extracts of alleged account book where original books are not filed into Court.

       Sanctity is attached in the law of evidence to books of account if the books are indeed "account books i.e. in original and if they show, on their face, that they are kept in the "regular course of business". Such sanctity, in our opinion, cannot attach to private extracts of alleged account books where the original accounts are not filed into Court. This is because, from the extracts, it cannot be discovered whether the accounts are kept in the regular course of business or if there are any interpolations or whether the interpolations are in a different ink or whether the accounts are in the form of a book with continuous page-numbering. Hence, if the original books have not been produced, it is not possible to know whether the entries relating to payment of rent are entries made in the regular course of business. It is only in the case of Bankers Books Evidence Act, 1891 that certified copies are allowed or the case must come under Section 65(f) and (g) of the Evidence Act. Private extracts of accounts in other cases can only be secondary evidence and unless a proper foundation is laid for adducing such secondary evidence under Section 65 or other provisions of the Evidence Act, the privately handwritten copies of alleged account books cannot by themselves be treated as secondary evidence. (Paras 23 & 24)

       Where in a suit for redemption of usufructory mortgage suit, the defendant s stand was that in fact there was not mortgage and he was a tenant and paying rent regularly and filed extracts from his book of account to support his stand, but original books of account were not produced in Court it was held the extracts from accounts are not "account books" falling within Section 34 of the Evidence Act and are inadmissible. (Para 31)

       (v) Mortgage-Usufructory mortgage - Suit for redemption -Defence that mortgage deed was sham and infact defendant was tenant and mortgage deed was a collateral security to guarantee vacation of tenanted premises to circumvent tenancy law-Alleged rental receipt not proved-Mortgage deed not proved as sham -Further it was alleged landlord executed mortgage deed in favour of tenant and not tenant in favour of landlord - Defence unbelievable-Suit decreed. (Paras 25 to 33)