2018 Supreme(SC) 1257

SUPREME COURT OF INDIA
R. BANUMATHI, INDIRA BANERJEE, JJ.
Jamila Begum (D) Thr. Lrs. – Appellant
Versus
Shami Mohd. (D) Thr. Lrs. & Another – Respondents
Civil Appeal No. 1007 of 2013
Decided On : 14-12-2018

IMPORTANT POINTS
Burden of proving that the documents were vitiated due to undue influence lies upon the plaintiff who is challenging the documents.
No presumption of undue influence can arise merely because the parties are related to each other or merely because the executant was old or of weak character.
Procedure under Order XXXI rule 7 and 8 have to be followed in passing preliminary and final decree in a suit for redemption.
Suit for declaration has to be filed within three years of accrual of the right to sue.

Headnote:(a) Property law – Respondent-plaintiff claiming ownership of property on basis of a Will – Appellant claiming ownership on basis of registered sale deed – Original owner mortgaging the property to appellant – Execution of mortgage established by evidence – Being unable to redeem the mortgaged property, original owner executing sale deed in favour of mortgagor-appellant- defendant – Sale deed registered – Presumption about validity – Mentioning the mortgage – Advocate preparing sale deed and the scribe examined – Trial court upholding validity of sale deed – Held, High Court was not right in reversing finding of trial court. (Para 18)

       (2006) 5 SCC 353; (2009) 12 SCC 101 – Relied upon

       (b) Mohammadan law – Oral gift – Requirements of a valid oral gift – Oral gift in favour of respondent No.1 followed by the Will alleged to be executed on 30.09.1970 – Same person executing a registered sale deed 0n 21.12.1970 – No evidence showing possession or constructive possession of suit property by respondent-plaintiff – Respondent-plaintiff doing nothing for 8 years to cancel the sale deed – Not collecting rent from tenants or paying taxes and bills for the suit property – Appellant on the other hand, filing suit for eviction of some tenants successfully on basis of the sale deed – Held, courts below erred in upholding validity of the oral gift. (Para 22)

       (2009) 6 SCC 160 – Relied upon

       (c) Administration of justice – Burden of proof – Burden of proving that the documents were vitiated due to undue influence – Lies upon the plaintiff who is challenging the documents. (Para 24)

       (d) Administration of justice – Challenge to documents on ground of undue influence – Averments in plaint vague – No presumption of undue influence can arise merely because the parties are related to each other or merely because the executant was old or of weak character – Held, respondent- plaintiff has failed to establish that the sale deed in favour of the appellant-Jamila Begum is vitiated by undue influence or fraud. (Para 26, 28)

       AIR 1967 SC 878 – Relied upon

       (e) Transfer of Property Act, 1882 – Section 60 – Right of redemption of mortgage – Can be extinguished by acts of parties or by decree of a court – One of the mortgagee purchasing suit property by sale deed and thereby the entire equity of redemption – Mortgage merging in sale deed. (Para 31, 32)

       (2000) 4 SCC 326 – Relied upon

       (f) Code of Civil Procedure, 1908 – Order XXXI rule 7 and 8 – Suit for redemption of mortgage – Necessity of preparing a preliminary decree – High Court passing decree of redemption without preparing a preliminary decree – Procedure for passing preliminary and final decree not followed – Decree of redemption simpliciter held not sustainable. (Para 33)

       (g) Limitation Act, 1963 – Schedule – Articles 58 and 59 – Suit for declaration – Has to be filed within three years of the right to sue accruing – Respondent-plaintiff getting knowledge of sale deed dated 21.12.1970 after death of his father, on 17.05.1971 – Declaratory suit filed on 12.07.1978 - held barred by limitation. (Para 34)

       (h) Code of Civil Procedure, 1908 – Section 96 – First appeal – Appellate court returning findings outside the pleadings and averments – Not permissible. (Para 35, 36)

       (2015) 1 SCC 391 – Relied upon

       Facts of the case:

       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.

       The trial court dismissed the suit.

       The first appellate Court allowed the appeal

       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 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.

       Finding of the Court;

       Impugned judgment is not sustainable.

       Result: Appeal allowed.