Shriram vs Sabir Hussain - 1982 Supreme(MP) 703

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : N.K. Jain
For the Respondent: K.N. Gupta

Headnote:(1) Transfer of property Act, 1882 – S. 54 – and 58 (d) – property mortgaged for Rs. 600/ – – actual value must have been more than mortgage amount – sale after seven years for Rs. 99/ – – cannot he believed.
       (2) Evidence Act, 1872 – S. 90 – presumption under – is permissive – party leading evidence to prove document – cannot rely on such presumption.
        Short Note
       1. This is an appeal by the defendants against the judgment and decree dated 4th of July 1972 of the Court of Additional Judge to the Court of District Judge, Vidisha, in Civil Regular Appeal No. 91/1972 whereby it has reversed the judgment and decree dated 12th of December 1970 of the Court of the Civil Judge Class II, Sironj, in Civil suit No. 91/1967 and decreed the suit of the plaintiff respondents herein.
       Held: It may be mentioned that there is one speaking circumstance which buttress the conclusion of the lower appellate Court and it is this, the suit property was mortgaged for Rs. 600/ – in the year 1921. It is a matter of common knowledge that when the property was mortgaged for Rs. 600/ – its value must have been more than Rs. 600/ – and with rising tendency in the prices the value of the property must have increased within a period of 7 years i.e. after the date of mortgage on the date of alleged sale in 1928 vide Ex. D – 2. In this set of circumstances, it cannot reasonably be believed that for a petty sum of Rs. 99/ – , the property in question could be sold in the year 1928.
       2. The language of section 90 of the Evidence Act indicates that the presumption under it is a permissive one. It is not a matter of judicial discretion whether the Court will make the presumption or call upon the party to offer other proof. From the impugned judgment it appears that the defendants themselves did not rely on the presumption and chose to lead evidence to prove the document Ex. D – 2, the Court below also in its discretion did not think it proper to raise the presumption and call upon the defendants to offer other proof. In this view of the matter, there is no error of law which has been committed by the lower appellate Court by not drawing a presumption under section 90 of the Evidence Act.
       3. For the foregoing, reason, I am of the firm view that the impugned judgment cannot be said to be perverse or erroneous in law calling for the interference by this Court under section 100 of the Code of Civil procedure.
       4. In the result, the appeal is party allowed, inasmuch as the impugned decree is modified by holding that the plaintiffs shall be entitled to redeem. The property subject to payment of Rs.700/ – within one month from the date of the delivery of the judgment of this Court. Appeal partly allowed.