JAMILA BEGUM (D) THR. LRS. versus SHAMI MOHD. (D) THR. LRS. & ANOTHER on 14 December 2018

[2018] 13 S.C.R. 1253

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 themortgage deed dated 21.11.1967 and sale deed dated 21.12.1970in respect of suit house executed by his father in favour of appellant(defendant) was void – In the alternative plaintiff sought redemptionof the mortgage – Claim of plaintiff that the suit property was giftedto him by way of oral gift by his father and this fact was mentionedby his father in a will executed in favour of plaintiff’s step mother –Trial court dismissed the suit – First appellate court decreed thesuit – In second appeal High Court affirmed the judgment of firstappellate court – On appeal, held: Defendants have provedexecution of Mortgage deed in accordance with law – Sale deedbeing 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 appellantwas vitiated by undue influence or fraud – Under MohammmedanLaw, making oral gift is permissible, but the respondent No.1 failedto prove as to how at the time of oral gift, possession of the suitproperty was delivered to him – Thus oral gift has not been proved – On the contrary, defendant had brought in evidence to show herpossession – Though the suit was for declaration of the mortgagedeed and sale deed as void, but the first appellate court as well asHigh Court wrongly proceeded on the footing that it was a simplesuit for redemption of mortgage – Even the decree for redemptionof mortgage simplicitor was passed without following the proceduretherefor laid down in Order 34 rr.7 and 8 of CPC – Suit was alsobarred by limitation since the suit seeking a declaration andcancellation of mortgage and sale deeds, was to be filed withinthree years when the right to sue accrued – Without keeping in viewthe main relief, High Court was not right is decreeing the suit forredemption of mortgage – High Court, without appreciating the

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Aevidence, erred in ordering the redemption of mortgage and deliveryof possession – Code of Civil Procedure, 1908 – Order 34 rr. 7 and8 – Limitation Act, 1963 – Schedule Articles 58 and 59.

Deeds and Documents:

Registered document – Presumption – Held: A registeredBdocument carries with it a presumption that it was validly executed– It is for the party challenging the genuineness of the transactionto show that the transaction in not valid in law.

Document – Whether vitiated by undue influence – Burden toprove – Held: There is no presumption of undue influence – CourtCis required to scrutinise whether undue influence was exercised –Burden to prove undue influence is upon the party who is challengingthe document – Evidence – Burder to prove – Presumption.

Mohammedan Law:

Oral gift – Conditions for making valid oral gift – Held: ForDmaking an oral gift valid there should be wish or intention on thepart of the donor; acceptance by the donee; and taking possessionof subject matter of gift by donee.

Transfer of Property Act, 1882:

s.60 proviso – Redemption of mortgage – Extinction of – Held:ERight of redemption can be extinguished either by the “act of parties”or by decree of court – The expression “Act of parties” refers tosome transaction subsequent to the mortgage, standing barred fromthe mortgage transaction.

Appeal:

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First appellate court – Jurisdiction – Scope of – Held: Courtof first appeal has jurisdiction to reverse or affirm the findings oftrial court – When first appellate court takes a different view, itsjudgment must show conscious application of mind and record itsfindings based on the evidence and reasons for taking a differentview.G

Allowing the appeal, the Court

Conclusion

HELD: 1.1 The mortgage deed dated 21.11.1967 (Ex.74Kha.) was executed by ‘W’ for Rs.11,000/- in favour of appellantand ‘S’. DW-4 attesting witness of the mortgage deed wasHexamined who has stated about the execution of mortgage deed and thus, the appellants have proved the execution of mortgagedeed in accordance with law. There is also mention about themortgage deed dated 21.11.1967 in the sale deed dated21.12.1970 and that ‘W’ was not in a position to repay the mortgagedeed amount of Rs.11,000/-. The respondent No.1-plaintiff hasnot adduced any reliable evidence of proof to establish that themortgage deed was not executed by ‘W’ out of his free will orwithout any consideration. [Para 11][1266B-C]

1.2 ‘W’ sold the suit property for Rs.30,000/- to the appellantby a registered sale deed dated 21.12.1970 (Ex.75 Kha.). Therecitals in the registered sale deed are natural and cogent showingthat it was validly executed. The sale deed refers to the mortgagedeed dated 21.11.1967 and that ‘W’ received Rs.11,000/- fromthe mortgagees – appellant and the co-mortgagee. Recitals inthe sale deed also refer to the fact that the house was in thepossession of the tenants and that the rental income wasRs.1440/-. The recitals in the sale deed makes a clear referenceto the receipt of sale consideration of Rs.30,000/- [Para 12][1266-D-E]

1.3 Sale deed dated 21.12.1970 in favour of the appellant isa registered document and the registration of the sale deedreinforces valid execution of the sale deed. A registered documentcarries with it a presumption that it was validly executed. It is forthe party challenging the genuineness of the transaction to showthat the transaction is not valid in law. [Para 14]

Prem Singh and Others v. Birbal and Others (2006) 5SCC 353 : [2006] 1 Suppl. SCR 692 ; VishwanathBapurao Sabale v. Shalinibai Nagappa Sabale andOthers (2009) 12 SCC 101: [2009] 4 SCR 976 – reliedon.

1.4 From the evidence of doctor (PW-5) and from his medicalcertificate-Ex.50 Kha., respondent-plaintiff has tried to show thatat the time of the execution of the sale deed, ‘W’ was not in sucha position to apply his mind and understand the contents of thesale deed. The trial court also referred to Exs.44 Kha. to 49Kha. and Ex.51 Kha. filed by the respondent-plaintiff to showabout the illness of ‘W’ all of which relate to the period fromMarch 1971 to June 1971. The prescriptions relate to the periodfrom March 1971 to June 1971. After referring to these AB

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Adocuments, trial court observed that the condition of ‘W’ starteddeteriorating after March, 1971. From the evidence of PW 5 andthe medical certificate -Ex.50 Kha. issued by him, it cannot besaid that ‘W’ was not mentally fit at the time of execution of thesale deed dated 21.12.1970 and that the same was not validlyexecuted. [Paras 15 and 16][1267-E-F; 1268-A-C]B

1.5 The appellant-defendant has examined Advocate DW-3who has prepared the sale deed and the scribe of sale deed dated21.12.1970. In his evidence, DW-3 has stated that on theinstruction of ‘W’, he had prepared the sale deed and that saledeed was validly executed by ‘W’ out of his free will and consent.CAs pointed out by the trial court, DW-3 was personally knowing‘W’ and that being the scribe of the sale deed, Ex.75 Kha. containsthe signature of DW-3. [Para 17][1268-C-D]

1.6 Upon appreciation of oral evidence, when the trial courthas recorded the findings that the evidence of DW-3 is credibleDand acceptable, the first appellate Court and the High Courtought not to have interfered with the findings recorded by thetrial court; more so, when the sale deed dated 21.12.1970 was aregistered document. The first appellate Court and the HighCourt were not right in holding that the sale deed Ex.75 Kha.(21.12.1970) was not validly executed. [Para 18][1268-C-D]E

2.1 The burden of proving that the documents were vitiateddue to undue influence is upon the respondent-plaintiff who ischallenging the documents (Mortgage deed and sale deed). Byexamination of PW-5 and Ex.50 Kha., it cannot be said that theburden cast upon respondent-plaintiff is said to have beenFdischarged, so as to shift the burden to the appellant-defendant.[Para 24][1271-G-H]

2.2. Insofar as the plea that the documents are vitiated by undue influence, the plaint averments are vague. Merely becausethe parties are related to each other or merely because theGexecutant was old or of weak character, no presumption of undueinfluence can arise. Court must scrutinise the pleadings to findout that such plea has been made out before examining whetherundue influence was exercised or not. [Paras 25 and 26][1272-B-D]

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Subhas Chandr Das Mushib v. Ganga Prasad DasMushib and Others AIR 1967 SC 878 : [1967] SCR 331 – relied on.

2.3 In the present case, respondent No.1 failed to provethat the apellant was in a position to dominate the will of ‘W’ toobtain unfair advantage. The mortgage deed was dated 21.11.1967and the sale deed in favour of the appellant was dated 21.12.1970.‘W’ died on 17.05.1971. During his lifetime, ‘W’ has not challengedeither the mortgage deed or the sale deed. No evidence hasbeen adduced to prove that appellant exercised undue influenceto get the documents executed. Respondent No.1 has failed toestablish that the sale deed in favour of the appellant is vitiatedby undue influence or fraud. [Para 28][1273-D-F]

3.1 Respondent-plaintiff claims right to the suit propertyby virtue of oral gift in favour of respondent No.1 followed by theWill dated 30.09.1970 allegedly made by ‘W’ in favour of hissecond wife. As rightly held by the trial court, the said Will dated30.09.1970 was a fabricated document. The alleged oral giftfollowed by the Will dated 30.09.1970, though said to have beenexecuted in the year 1970, the respondent-plaintiff filed the suitonly in the year 1978 claiming right in the suit property. Duringthe period between 1970 to 1978, the appellant-defendant wasasserting her right over the suit property in various evictionproceedings against the plaintiff, second-wife of ‘W’ and someother tenants. Respondent No.1 has admitted in his evidencethat on the basis of sale deed dated 21.12.1970, appellant hadfiled eviction suit. The said suit was decreed against the plaintiff.The appellant had taken possession of the suit property.[Para 19][1268-G-H; 1269-A-C]

3.2 Appellant has also been exercising her right ofownership over the suit house by filing eviction petition againstother tenants. In his evidence, the plaintiff has stated thatappellant had also filed suit for eviction of tenants. In thoseeviction suits, the plaintiff had filed impleadment application andthe said application came to be dismissed. That apart, the nameof the appellant was mutated in the records of Nagar Mahapalikaafter four years from the date of sale deed which is admitted byrespondent No.1-plaintiff. Inspite of all these proceedings, A

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Arespondent-plaintiff did not immediately challenge the sale deedand kept quiet for eight years. Without proper appreciation ofthese formidable circumstances, the first appellate Court and theHigh Court erred in accepting the case of respondent-plaintiff asto the oral gift in his favour and the alleged Will dated 30.09.1970.[Para 20][1269-D-F]B

3.3 Under the Mohammedan law, no doubt, making oralgift is permissible. The conditions for making valid oral gift underthe Mohammedan law are:- (i) there should be wish or intentionon the part of the donor to gift; (ii) acceptance by the donee; and(iii) taking possession of the subject matter of the gift by theCdonee. Respondent-plaintiff has not proved as to how at the timeof oral gift, the possession was delivered to him. Nothing isbrought on record to show that respondent No.1 has taken anysteps to get the property mutated in his name. Likewise, nothingis brought on record to show that pursuant to the oral gift, theDrespondent-plaintiff collected rent from the tenants or paid housetax, water tax, etc. The essential conditions to make a valid giftunder the Mohammedan law have not been established by therespondent-plaintiff to prove the oral gift in his favour. In theabsence of any proof to show that the possession of the suitproperty was delivered to him, the oral gift relied upon by theErespondent-plaintiff ought not to have been accepted by the courts below. [Paras 21 and 22][1269-F-G; 1270-F-H]

Abdul Rahim and Others v. Sk. Abdul Zabar and Others(2009) 6 SCC 160: [2009] 4 SCR 32 – relied on.

3.4 Per contra, the appellant-defendant had brought inFevidence to show that she was in possession of the suit property.So far as the mortgage deed dated 21.11.1967, it was ausufructuary mortgage pursuant to which the appellant andanother mortgagee came to be in possession of the suit property.The sale deed dated 21.12.1970 also contains recitals as to handingGover of the possession of the suit property. The sale deed alsocontains recitals that the appellant has a right to get the nametransferred in the records of Nagarpalika as owner of the propertyand that if there is a need, vendor will give his statement to thateffect. That apart, the appellant had initiated various proceedingsfor eviction of the tenants and obtained possession. She had alsoH

filed eviction Suit against respondent-plaintiff and others whichamply proves the exercise of acts of ownership by appellant andthe possession of the appellant over the suit property. The HighCourt and the first appellate Court erred in not properlyappreciating these circumstances and evidence brought onrecord. [Para 23][1271-A-B; D-F]

4.1 The main relief sought for in the suit was for adeclaration that the mortgage deed (dated 21.11.1967) registeredon 12.01.1968 and sale deed (dated 21.12.1970) are void and becancelled. Only as an alternative prayer, respondent-plaintiffsought for redemption of mortgage. But both the first appellateCourt as well as the High Court proceeded on the footing as if itwas a simple suit for redemption of mortgage. [Para 29][1273-G-H]

4.2 Section 60 of the Transfer of Property Act, 1882provides that at any time after the money becomes due, themortgagor has a right, on payment or tender, at a proper timeand place, of the mortgage-money to require the mortgagee todeliver the mortgage deed and all documents relating to themortgaged property, and where the mortgagee is in possessionof the mortgaged property, to deliver possession thereof to themortgagor. The right of redemption can be extinguished asprovided in proviso to Section 60 of the Transfer of Property Act.It can be extinguished either by the act of the parties or by decreeof a court. The expression “act of parties” refers to sometransaction subsequent to the mortgage, standing barred fromthe mortgage transaction. In the present case appellant-one ofthe mortgagees has purchased the property by the sale deed dated21.12.1970 and thus, she purchased the entire equity ofredemption by the execution of the sale deed, the mortgage quathe appellant has merged with the sale. [Paras 30 and 31][1274-A-E]

Shivdev Singh and Another v. Sucha Singh and Another(2000) 4 SCC 326 : [2000] 2 SCR 878 – referred to.

4.3 It is not correct to say that by the subsequent sale theappellant could not have purchased the entire property since therewere two mortgagees. The property purchased by the appellantfrom ‘W’ by sale deed dated 21.12.1970 is an act of the parties, A

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Aby which the right of redemption qua the appellant becameextinguished by the act of the parties. Without keeping in viewthe main relief sought in the suit, the High Court was not right indecreeing the suit for redemption of mortgage. [Para 32][1274-E-G]

B4.4. The High Court has not followed the provisions of Codeof Civil Procedure for passing decree for redemption of mortgage.Order 34 Rule 7 CPC stipulates that in a suit for redemption ofmortgage, the court shall prepare the preliminary decree inaccordance with Order 34 Rule 7 CPC. The High Court haspassed a decree for redemption of mortgage simpliciter withoutCfollowing the provisions of the Code of Civil Procedure. TheHigh Court also erred in directing the delivery of possession ofthe suit property to respondent No.1-plaintiff and the same cannotbe sustained. The High Court could not have passed the decreefor redemption without following the procedure laid down in OrderD34 Rule 7 and 8 of the Code of Civil Procedure which lays downa detailed procedure for passing a preliminary decree and finaldecree in a suit for redemption which was not followed by theHigh Court. [Para 33][1274-G-H; 1275-A-B]

5. In the plaint, it was averred that the cause of action ofthe suit arose on 21.11.1967 and 21.12.1970. Under Articles 58Eand 59 of the Schedule to the Limitation Act, 1963 a suit filed forany declaration is to be filed within three years when the right tosue accrues. Under Article 59 of the Limitation Act, suit filed tocancel or set aside the instrument or decree, the suit has to befiled within three years from the date when the facts entitling theFplaintiff to set aside or cancel the instrument or decree becamefirst known to him. Plaintiff has admitted in his evidence that hegot knowledge about the execution of the sale deed dated21.12.1970 on the third day of death of his father - 17.05.1971.The suit must have been filed within three years of the date ofknowledge or the date of the sale deed but the suit was filed onG12.07.1978. The suit filed challenging the validity of the mortgagedeed dated 21.11.1967 and sale deed dated 21.12.1970 is beyondthe period of limitation of three years as prescribed under Articles58 and 59 of the Schedule to the Limitation Act and barred bylimitation. [Para 34][1275-C-F]

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6. The Court of first appeal has jurisdiction to reverse oraffirm the findings of the trial Court. When the Court of first appealtakes a different view, the judgment of the first appellate Courtmust show the conscious application of mind and record its findingsbased on the evidence adduced by the parties and the judgmentmust record the reasons as to why the first appellate Court differsfrom the judgment of the Trial Court. In the present case,judgment of the lower appellate Court has not answered all thepoints arising for determination and the evidence adducedthereon. Likewise, the High Court has not recorded any findingeither on fact or on law. The High Court proceeded on the footingas if the suit was a simple suit for redemption of mortgage.Without appreciation of evidence adduced by the parties and saledeed dated 21.12.1970, the High Court erred in ordering theredemption of mortgage and delivery of possession. Theimpugned judgment of the High Court cannot be sustained andis liable to be set aside. [Para 36][1277-A-C]

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Vinod Kumar v. Gangadhar (2015) 1 SCC 391 : [2014]10 SCR 1050 – relied on.

Case Law Reference

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1007of 2013.

From the Judgment and Order dated 07.09.2007 of the High Courtof Judicature at Uttar Pradesh at Allahabad in Second Appeal No. 135of 1998.

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R. B. Singhal, Sr. Adv., Anurag Kishore, Abhishek Chaudhary,Hira Lal, Surendera Kumar, Ansar Ahmad Chaudhary, Braj KishoreMishra, Ms. Aparna Jha, Ms. Kriti Soudhi, Ms. Bhawna Singh, VinodKumar, Abhishek Yadav, Advs. for the appearing parties.

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AThe Judgment of the Court was delivered by

R. BANUMATHI, J.

1. This appeal arises out of the judgment dated 07.09.2007 passedby the High Court of judicature at Allahabad dismissing the Second AppealNo.135 of 1998 thereby upholding the oral gift by Wali Mohd. in favourBof respondent No.1-plaintiff and the Will dated 30.09.1970 and directingthe original plaintiff-deceased respondent No.1 to pay the mortgageamount of Rs.11,000/- and holding that the mortgage dated 21.11.1967registered on 12.01.1968 shall stand redeemed and further directingappellants-defendants to handover the vacant possession of the property.

C2. Facts giving rise to this appeal are that deceased respondentNo.1-Shami Mohd. filed O.S. No. 130 of 1978 against the appellant andone Sakina (deceased predecessor in interest of respondent Nos.2 to11) for declaration that the mortgage deed dated 21.11.1967 and alsosale deed dated 21.12.1970 in favour of appellant-Jamila Begum in respectof the suit house is void and consequently to cancel the sale deed. In theDalternative, respondent-plaintiff claimed redemption of the mortgage, incase, that the mortgage is held to be valid.

3. Case of the respondent-plaintiff is that Wali Mohd., father ofrespondent No.1 had purchased two plots and along with respondentNo.1 got the disputed house constructed which was gifted to respondentENo. 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 inthe said Will, Wali Mohd. also mentioned about the oral gift. RespondentNo.1-plaintiff further averred that though the appellants contend thatFWali Mohd. had executed a mortgage deed dated 21.11.1967 in respectof the suit property in favour of the appellant and one Sakina for a sumof Rs.11000/-, Wali Mohd. was not in requirement of money and thealleged mortgage deed was got executed without consideration.Respondent No. 1 has alleged that the appellant was the mistress ofAbdul Rahim who is husband of Sakina. It is further averred that theGsaid Abdul Rahim and Wali Mohd. were friends and because of this, theappellant got the said usufructuary mortgage deed executed in her nameand Sakina in collusion of Abdul Rahim and as such no money wasadvanced under the said mortgage deed and the same was obtained byfraud and undue influence.

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4. Resisting the suit, the appellant filed written statement inter-alia contending that Nababun is not the legally wedded wife of WaliMohd. and that she was simply his maid servant. It was averred thatWali Mohd. never executed any Will in favour of Nababun. Further, itwas stated that respondent No. 1 was not in possession of the disputedhouse. Since 1960, relations between Wali Mohd. and respondent No. 1were strained and Wali Mohd. had turned out respondent No.1 from thesuit house and had also lodged FIR against him. Wali Mohd. duly executedmortgage deed dated 21.11.1967 for Rs.11,000/- in favour of JamilaBegum and Sakina. Wali Mohd. had sold the suit property in favour ofappellant for consideration of Rs.30,000/- and executed the sale deeddated 21.12.1970. After the sale deed in her favour, the appellant hadcontinually exercised acts of ownership and the suit filed in the year1978 challenging the mortgage deed and sale deed dated 21.12.1970 isbarred by limitation.

5. Upon consideration of evidence, the trial court dismissed thesuit holding that the mortgage deed dated 21.11.1967 was legal and valid.It was also held that the sale deed dated 21.12.1970 was executed fordue consideration of Rs.30,000/- and the same cannot be assailed on theground of undue influence or inadequate consideration. Trial court alsoheld that a suit for cancellation of sale deed has to be filed within theperiod of limitation of three years and the suit filed in the year 1978challenging the sale deed of the year 1970 is barred by the limitation.The trial court held that the alleged Will cannot be accepted since it doesnot bear the signature of the scribe and was not registered. The trialcourt rejected the stand of plaintiff-respondent No.1-Shami Mohd. thatthe suit house was jointly constructed by Wali Mohd. and respondentNo. 1. The trial court also held that the contents of the Will that Nababunis the second wife of Wali Mohd. is also not correct in the light of statementof respondent No. 1 where he specifically stated that after death of hismother, his father did not remarry.

6. In appeal, the first appellate Court allowed the appeal by holdingthat Wali Mohd. had no necessity to mortgage or sell the suit propertyfor such inadequate consideration of Rs.30,000/-. The first appellateCourt placed burden of proof upon appellant-Jamila Begum that she hadto prove the genuineness of the mortgage deed as well as sale deeddated 21.12.1970 and that they were validly executed by Wali Mohd.and the said burden has not been discharged by the appellant. Insofar asthe oral gift and Will dated 30.09.1970 in favour of Nababun relied upon ABC

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Aby the respondent-plaintiff, the first appellate Court held that the executionof the oral gift and Will has been proved and it has also been proved thatWali Mohd. was mentally fit and capable of understanding the contentsof the Will. The first appellate Court set aside both mortgage deeddated 21.11.1967 and also the sale deed dated 21.12.1970 and reversedthe judgment of the trial court and thereby allowed the appeal.B

7. In the second appeal, the High Court affirmed the judgment ofthe first appellate Court by holding that the suit property was of largeextent and it could not have been sold for such inadequate considerationof Rs.30,000/- and the appellant failed to discharge the burden cast onher of proving that the sale deed was validly executed. The High CourtCaffirmed the findings of the first appellate Court that oral gift in favourof respondent No.1 had been proved whereas, the alleged mortgagedeed and the sale deed were sham and void documents. The High Courtalso held that the respondent-plaintiff is entitled to redeem the mortgageand directed him to pay the mortgage amount of Rs.11,000/- forDredemption of mortgage and also ordered delivery of possession.

8. Mr. R.B. Singhal, learned senior counsel for the appellantsubmitted that the sale deed dated 21.12.1970 has been executed fordue consideration and the first appellate Court and the High Court erredin placing the burden of proof upon the appellant. It was submitted thatwhen the respondent-plaintiff assailed the document as vitiated by fraudEand undue influence, burden lay upon respondent No.1 to establishcoercion and undue influence. It was submitted that the plaintiff failedto establish that appellant-Jamila Begum was in a position to influenceWali Mohd. to get the sale deed executed in her favour. It was furthersubmitted that the alleged oral gift and Will dated 30.09.1970 has notFbeen proved and is clearly an afterthought. It was contended that deliveryof possession which is the essential ingredient of oral gift has not beenestablished by the respondent-plaintiff. The learned senior counsel furthersubmitted that the suit filed in the year 1978 for cancellation of the saledeed dated 21.12.1970 and the mortgage deed dated 21.11.1967 is barredby limitation.G

9. Refuting the contentions, Mr. Braj Kishore Mishra, learnedcounsel for the respondents submitted that the first appellate Courtbeing a final fact-finding court has found that the respondent-plaintiffhas proved the oral gift whereas, the alleged mortgage deed and the saledeed were sham and void documents and the same cannot be assailed.HIt was further submitted that within three years after execution of the mortgage deed by Wali Mohd., sale of the property on the ground thathe was unable to redeem the mortgage is unbelievable. It was furthercontended 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 hadgiven possession of her part in the suit property to the appellant-JamilaBegum. It was further submitted that the High Court rightly decreed theprayer for redemption of mortgage and the findings of fact recorded bythe first appellate Court and affirmed by the High Court cannot be saidto be erroneous. It was contended that as per Article 61 of Schedule tothe Limitation Act, 1963 period of thirty years has been prescribed aslimitation for filing suit for redemption of mortgage and the suit filed inthe year 1978 within eight years of the sale deed was well within timeand the High Court was right and justified in granting the redemption ofmortgage to the respondent-plaintiff.

10. We have perused the impugned judgment and the materialson record. Upon consideration of submission, the following points arisefor consideration:-

(i) Whether the first appellate Court and the High Court wereright in placing the burden of proof upon the appellant to provethat the sale deed dated 21.12.1970 was validly executed by WaliMohd. with his free will and that the appellant has not dischargedthat burden cast upon her?

(ii) Whether the High Court and the first appellate Court wereright in accepting the case of the plaintiff that Wali Mohd. orallygifted the suit house to plaintiff and also executed the Will on30.09.1970 in favour of Nababun and rejecting the sale deed dated21.12.1970 relied upon by the appellant-defendant.

(iii) Whether the High Court was right in granting the alternativerelief of redemption of mortgage deed on payment of Rs.11,000/- the amount mentioned in the mortgage deed treating the suit assuit simpliciter for redemption of mortgage.

(iv) Whether the suit O.S. No.130 of 1978 filed by the respondent-plaintiff in the year 1978 to set aside the mortgage deed dated21.11.1967 and sale deed dated 21.12.1970 was barred bylimitation?

(v) Whether the impugned judgment of High Court is sustainable?

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AMortgage deed dated 21.11.1967 and sale deed dated21.12.1970– Whether valid and execution duly proved?

11. The mortgage deed dated 21.11.1967 (Ex.74 Kha.) wasexecuted by Wali Mohd. for Rs.11,000/- in favour of Jamila Begum andSakina. DW-4 – Abdul Hamid – attesting witness of the mortgage deedBwas examined who has stated about the execution of mortgage deed byWali Mohd. and thus, the appellants have proved the execution ofmortgage deed in accordance with law. There is also mention about themortgage deed dated 21.11.1967 in the sale deed dated 21.12.1970 andthat Wali Mohd. was not in a position to repay the mortgage deed amountof Rs.11,000/-. The respondent No.1-plaintiff-Shami Mohd. has notCadduced any reliable evidence of proof to establish that the mortgagedeed was not executed by Wali Mohd. out of his free will or without anyconsideration.

12. Wali Mohd. sold the suit property for Rs.30,000/- to theappellant-Jamila Begum by a registered sale deed dated 21.12.1970D(Ex.75 Kha.). The recitals in the registered sale deed are natural andcogent showing that it was validly executed by Wali Mohd. The saledeed refers to the mortgage deed dated 21.11.1967 and that Wali Mohd.received Rs.11,000/- from the mortgagees – Jamila Begum and Sakina.Recitals in the sale deed also refer to the fact that the house was in thepossession of the tenants and that the rental income was Rs.1440/-. TheErecitals in the sale deed makes a clear reference to the receipt of saleconsideration of Rs.30,000/- as:- (i) that the vendor Wali Mohd. hadreceived the mortgage amount of Rs.11,000/- and that he had not beenable to get the property released from mortgage; (ii) receipt ofconsideration of Rs.11,000/- from the purchaser at the time of enteringFinto the agreement to sell; and (iii) receipt of consideration amount ofRs.8,000/- in the presence of Sub-Registrar, Kanpur at the time ofexecution of the sale deed.

13. In the sale deed dated 21.12.1970, vendor Wali Mohd. hadstated that he had executed the sale deed out of his free will and volition.GThe relevant recitals of sale deed dated 21.12.1970 read as under:- “…..Therefore, in my full senses and in disposing mind and bodyand without any pressure or coercion from anybody, I executethis agreement to sell, of my own will, for a consideration ofRs.30,000/- (Rupees Thirty Thousand Only) in favour of Smt.Jamila alias Nandani so that it may be of use when the needHarises.”

14. Sale deed dated 21.12.1970 in favour of Jamila Begum is aregistered document and the registration of the sale deed reinforcesvalid execution of the sale deed. A registered document carries with it apresumption that it was validly executed. It is for the party challengingthe genuineness of the transaction to show that the transaction is notvalid in law. In Prem Singh and Others v. Birbal and Others (2006) 5SCC 353, it was held as under:- “27. There is a presumption that a registered document is validlyexecuted. A registered document, therefore, prima facie wouldbe valid in law. The onus of proof, thus, would be on a person wholeads evidence to rebut the presumption. In the instant case,Respondent 1 has not been able to rebut the said presumption.”

The above judgment in Prem Singh’s case has been referred toin Vishwanath Bapurao Sabale v. Shalinibai Nagappa Sabale andOthers (2009) 12 SCC 101.

15. Contention of the respondent-plaintiff is that at the time of theexecution of the sale deed, Wali Mohd. was mentally weak and therefore,he was not in a position to understand and that the sale deed was notexecuted out of his free will and volition. To substantiate their case,respondent No.1-plaintiff has examined Dr. Wasim (PW-5) who hasstated that he has treated Wali Mohd. from the period 15.11.1970 to25.12.1970 and produced the medical certificate-Ex.50 Kha. From theevidence of Dr. Wasim (PW-5) and from his medical certificate-Ex.50Kha., respondent-plaintiff has thus tried to show that at the time of theexecution of the sale deed, Wali Mohd. was not in such a position toapply his mind and understand the contents of the sale deed. As pointedout by the trial court, Dr. Wasim was doing private practice from theyear 1969 and that at the time of issuing medical certificate, he hadexperience of medical practice for only two years. Dr. Wasim hasadmitted that he was not knowing Wali Mohd. from before. By way ofclarification from Dr. Wasim, it is brought in evidence that Dr. Wasimdid not prepare the medical certificate-Ex.50 Kha. after seeing theprescriptions written and maintained by him during illness of Wali Mohd.;but he prepared the same only on the basis of his memory. Dr. Wasimalso clarified that about 10-15 days prior to the treatment of Wali Mohd.,Dr. K.N. Srivastava and Dr. Sikka also treated Wali Mohd; but theother two doctors were not examined, though Dr. Sikka was stated tobe in Kanpur.

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A16. The trial court also referred to Exs.44 Kha. to 49 Kha. andEx.51 Kha. filed by the respondent-plaintiff to show about the illness ofWali Mohd., all of which relate to the period from March 1971 to June1971. The prescriptions relate to the period from March 1971 to June1971. After referring to these documents, trial court observed that thecondition of Wali Mohd. started deteriorating after March, 1971. FromBthe evidence of Dr. Wasim and the medical certificate -Ex.50 Kha. issuedby him, it cannot be said that Wali Mohd. was not mentally fit at the timeof execution of the sale deed dated 21.12.1970 and that the same wasnot validly executed.

17. On the contrary, the appellant-defendant has examinedCAdvocate Ahmad (DW-3) who has prepared the sale deed and the scribeof 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. Inhis evidence, DW-3 – Shri Ahmad has stated that on the instruction ofWali Mohd., he had prepared the sale deed and that sale deed wasDvalidly executed by Wali Mohd. out of his free will and consent. Aspointed out by the trial court, DW-3 – Advocate Ahmad was personallyknowing Wali Mohd. and that being the scribe of the sale deed, Ex.75Kha. contains the signature of DW-3 – Shri Ahmad, Advocate.

18. The trial court upon consideration and weighing the evidence of Advocate Ahmad (DW-3) and Dr. Wasim (PW-5) held that “…….theEevidence of Shri Ahmad, Advocate is comparatively more acceptableand believable.” Upon appreciation of oral evidence, when the trialcourt has recorded the findings that the evidence of Advocate Ahmad(DW-3) is credible and acceptable, in our considered view, the firstappellate Court and the High Court ought not to have interfered withFthe findings recorded by the trial court; more so, when the sale deeddated 21.12.1970 was a registered document. The first appellate Courtand the High Court were not right in holding that the sale deed Ex.75Kha. (21.12.1970) was not validly executed.

Whether there was a valid oral gift in favour of theGrespondent-plaintiff-Shami Mohd. as claimed?

19. Respondent-plaintiff claims right to the suit property by virtueof oral gift in favour of respondent No.1 followed by the Will dated30.09.1970 allegedly made by Wali Mohd. in favour of Nababun. Asrightly held by the trial court, the said Will dated 30.09.1970 was afabricated document. The alleged oral gift followed by the Will datedH

30.09.1970, though said to have been executed in the year 1970, therespondent-plaintiff filed the suit only in the year 1978 claiming right inthe suit property. Be it noted that during the period between 1970 to1978, the appellant-defendant-Jamila Begum was asserting her right overthe suit property in various eviction proceedings against plaintiff-ShamiMohd., Niyaz Bano and Nababun and some tenants. The respondentNo.1-plaintiff-Shami Mohd. has admitted in his evidence that on thebasis of sale deed dated 21.12.1970, appellant-Jamila Begum had filedeviction suit No.2441 of 1971 against him, Niyaz Bano and Nababun inthe court of Munsif City. In the said eviction suit, plaintiff-Shami Mohd.filed his written statement and the said suit was decreed against theplaintiff-Shami Mohd. The appellant-Jamila Begum had taken possessionof the suit property; plaintiff-Shami Mohd. however, stated that he hadfiled appeal to set aside the judgment and decree.

20. Appellant-Jamila Begum has also been exercising her right ofownership over the suit house by filing eviction petition against othertenants. In his evidence, plaintiff-Shami Mohd. has stated that appellant-Jamila Begum had also filed suit for eviction of tenant Sher Ali and othertenants viz. Imtiaz and Binda. In those eviction suits, plaintiff-ShamiMohd. had filed impleadment application and the said application cameto be dismissed. That apart, the name of appellant-Jamila Begum wasmutated in the records of Nagar Mahapalika after four years from thedate of sale deed which is admitted by respondent No.1-plaintiff-ShamiMohd. It passes one’s comprehension, inspite of all these proceedings,why respondent-plaintiff did not immediately challenge the sale deedand kept quite for eight years. Without proper appreciation of theseformidable circumstances, the first appellate Court and the High Courterred in accepting the case of respondent-plaintiff as to the oral gift inhis favour and the alleged Will dated 30.09.1970.

21. Under the Mohammedan law, no doubt, making oral gift ispermissible. The conditions for making valid oral gift under theMohammedan law are:- (i) there should be wish or intention on the partof the donor to gift; (ii) acceptance by the donee; and (iii) takingpossession of the subject matter of the gift by the donee. The essentialsof a valid and complete gift under Mohammedan law have been succinctlylaid down in Abdul Rahim and Others v. Sk. Abdul Zabar and Others(2009) 6 SCC 160 as under:- “13. The conditions to make a valid and complete gift under theMohammadan law are as under:

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(a) The donor should be sane and major and must be the ownerof the property which he is gifting.

(b) The thing gifted should be in existence at the time of hiba.(c) If the thing gifted is divisible, it should be separated andmade distinct.

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(d) The thing gifted should be such property to benefit fromwhich is lawful under the Shariat.

(e) The thing gifted should not be accompanied by things notgifted i.e. should be free from things which have not beengifted.

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(f) The thing gifted should come in the possession of the doneehimself, or of his representative, guardian or executor.

14. It is also well settled that if by reason of a valid gift the thinggifted has gone out of the donee’s ownership, the same cannot berevoked. The donor may lawfully make a gift of a property in thepossession of a lessee or a mortgagee. For effecting a valid gift,the delivery of constructive possession of the property to the doneewould serve the purpose. Even a gift of a property in possessionof trespasser is permissible in law provided the donor either obtainsand gives possession of the property to the donee or does all thathe can to put it within the power of the donee to obtain possession.

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22. In the light of the above principles, let us consider whetherthe oral gift pleaded by the respondent-plaintiff satisfies the essentialconditions of oral gift and in particular, whether possession has beenestablished by respondent No.1-plaintiff. The respondent No.1-plaintiffclaims through oral gift followed by the Will dated 30.09.1970. AsFdiscussed earlier, tenants were in occupation of the suit house.Respondent-plaintiff has not proved as to how at the time of oral gift,the possession was delivered to him. Nothing is brought on record toshow that respondent No.1-Shami Mohd. has taken any steps to get theproperty mutated in his name. Likewise, nothing is brought on record toGshow that pursuant to the oral gift, the respondent-plaintiff collectedrent from the tenants or paid house tax, water tax, etc. The essentialconditions to make a valid gift under the Mohammedan law have notbeen established by the respondent-plaintiff to prove the oral gift in hisfavour. In the absence of any proof to show that the possession of thesuit property was delivered to him, the oral gift relied upon by theHrespondent-plaintiff ought not to have been accepted by the courts below.

23. Upon consideration of evidence and facts, the trial court rightlyheld 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, theappellant-defendant had brought in evidence to show that she was inpossession of the suit property. So far as the mortgage deed dated21.11.1967, it was a usufructuary mortgage pursuant to which theappellant-Jamila Begum and another mortgagee-Sakina came to be inpossession of the suit property. The sale deed dated 21.12.1970 alsocontains recitals as to handing over of the possession of the suit propertyas seen from the following recitals:- “….. the writer of this document has no concern with this propertyand the purchaser has become the absolute owner of the propertyfrom this day of today and the ownership and possession of theproperty has been given by writer of this document to the ownershipand possession of the purchaser.”

The sale deed also contains recitals that the appellant-Jamila Begumhas a right to get the name transferred in the records of Nagarpalika,Kanpur City as owner of the property and that if there is a need, vendorWali Mohd. will give his statement to that effect. That apart, as discussedearlier, the appellant-Jamila Begum had initiated various proceedings foreviction of the tenants and obtained possession. She had also filed evictionSuit No.2441 of 1971 against respondent-plaintiff-Shami Mohd., NiyazBano and Nababun which amply proves the exercise of acts of ownershipby appellant-Jamila Begum and the possession of the appellant-JamilaBegum over the suit property. The High Court and the first appellateCourt erred in not properly appreciating these circumstances and evidencebrought on record.

Sale deed (Ex. 75 Kha.) - whether vitiated due to undueinfluence

24. In the suit, respondent-plaintiff has challenged the mortgagedeed dated 21.11.1967 as well as sale deed dated 21.12.1970 executedby his father Wali Mohd on the ground that they were not executed byhim out of his free will and volition. The burden of proving that thedocuments were vitiated due to undue influence is upon the respondent-plaintiff who is challenging the documents. By examination of Dr. Wasim(PW-5) and Ex.50 Kha., it cannot be said that the burden cast uponrespondent-plaintiff is said to have been discharged, so as to shift theburden to the appellant-defendant. From the evidence of Shami Mohd.

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A(PW-1), it is seen that Wali Mohd. was in service in Power House till1943 and he left his service in the year 1943. As discussed earlier, thesale deed was registered and Wali Mohd. has received part considerationthat is Rs.8,000/- before the Sub-Registrar, Kanpur. Having worked inthe Power House way back in the year 1943, Wali Mohd. must havebeen worldly wise and knowledgeable.B

25. Insofar as the plea that the documents are vitiated by undueinfluence, as rightly contended by learned senior counsel for the appellant,the plaint averments are vague. It is alleged by respondent No.1-plaintiffthat Wali Mohd. had illicit relationship with appellant-Jamila Begum andthat he was mentally infirm on the date of the alleged sale deed and thatCthe sale deed was obtained by taking undue advantage of his infirmityand illicit relationship.

26. Insofar as the plea of undue influence, merely because theparties are related to each other or merely because the executant wasold or of weak character, no presumption of undue influence can arise.DCourt must scrutinise the pleadings to find out that such plea has beenmade out before examining whether undue influence was exercised ornot.

27. While considering the aspect of plea of undue influence andonus-probandi, in Subhas Chandr Das Mushib v. Ganga PrasadEDas Mushib and Others AIR 1967 SC 878, it was held as under:- “4. Under Section 16(1) of the Indian Contract Act a contract issaid to be induced by undue influence where the relations subsistingbetween the parties are such that one of the parties is in a positionto dominate the will of the other and uses that position to obtain anFunfair advantage over the other. This shows that the court tryinga case of undue influence must consider two things to start with,namely, (1) are the relations between the donor and the doneesuch that the donee is in a position to dominate the will of thedonor and (2) has the donee used that position to obtain an unfairadvantage over the donor?

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7. The three stages for consideration of a case of undue influencewere expounded in the case of Raghunath Prasad v. SarjuPrasad and Others (AIR 1924 PC 60) in the following words:

“In the first place the relations between the parties to eachother must be such that one is in a position to dominate the willof the other. Once that position is substantiated the second H

JAMILA BEGUM (D) THR. LRS. v. SHAMI MOHD. (D) THR.LRS. [R. BANUMATHI, J.]

stage has been reached — namely, the issue whether thecontract has been induced by undue influence. Upon thedetermination of this issue a third point emerges, which is thatof the onus probandi. If the transaction appears to beunconscionable, then the burden of proving that the contractwas not induced by undue influence is to lie upon the personwho was in a position to dominate the will of the other.

Error is almost sure to arise if the order of these propositionsbe changed. The unconscionableness of the bargain is not thefirst thing to be considered. The first thing to be considered isthe relations of these parties. Were they such as to put one ina position to dominate the will of the other?”

28. In the light of the above principles, considering the case inhand, no sufficient pleading in the plaint as to undue influence. Admittedly,Wali Mohd. had executed the mortgage deed dated 21.11.1967 in favourof Jamila Begum and Sakina. Wali Mohd. was in service in Power Housetill 1943 and was having full knowledge of things as to what he wasdoing. In this case, respondent No.1-Shami Mohd. failed to prove thatJamila Begum was in a position to dominate the Will of Wali Mohd. toobtain unfair advantage. The mortgage deed was dated 21.11.1967 andthe sale deed in favour of the appellant-Jamila Begum was dated21.12.1970. Wali Mohd. died on 17.05.1971. During his lifetime, WaliMohd. has not challenged either the mortgage deed or the sale deed.No evidence has been adduced to prove that appellant exercised undueinfluence to get the documents executed. Respondent No.1-Shami Mohd.has failed to establish that the sale deed in favour of the appellant-JamilaBegum is vitiated by undue influence or fraud.

Passing decree for redemption of mortgage – whethercorrect

29. As pointed out earlier, the main relief sought for in the suitwas for a declaration that the mortgage deed (dated 21.11.1967) registeredon 12.01.1968 and sale deed (dated 21.12.1970) are void and becancelled. Only as an alternative prayer, respondent-plaintiff sought forredemption of mortgage. But both the first appellate Court as well asthe High Court proceeded on the footing as if it was a simple suit forredemption of mortgage.

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AWhether decree for redemption of mortgage is correct?

30. Section 60 of the Transfer of Property Act, 1882 provides thatat any time after the money becomes due, the mortgagor has a right, onpayment or tender, at a proper time and place, of the mortgage-moneyto require the mortgagee to deliver the mortgage deed and all documentsBrelating to the mortgaged property, and where the mortgagee is inpossession of the mortgaged property, to deliver possession thereof tothe mortgagor. In Shivdev Singh and Another v. Sucha Singh andAnother (2000) 4 SCC 326, it was held as under:- “8. …The right of redemption recognised under the Transfer ofProperty Act is thus a statutory and legal right which cannot beCextinguished by any agreement made at the time of mortgage aspart of the mortgage transaction.”

31. The right of redemption can be extinguished as provided inproviso to Section 60 of the Transfer of Property Act. It can beextinguished either by the act of the parties or by decree of a court. TheDexpression “act of parties” refers to some transaction subsequent to themortgage, standing barred from the mortgage transaction. As discussedearlier, in this case Jamila Begum-one of the mortgagees has purchasedthe property by the sale deed dated 21.12.1970 and thus, she purchasedthe entire equity of redemption by the execution of the sale deed, theEmortgage qua the appellant has merged with the sale.

32. On behalf of respondent No.1-plaintiff, an argument wasadvanced that, by the subsequent sale the appellant could not havepurchased the entire property since there were two mortgagees viz.Jamila Begum and Sakina and therefore, the appellant could not haveFderived title over the entire suit property. We find no merit in the abovecontention, property purchased by the appellant -Jamila Begum fromWali Mohd. by sale deed dated 21.12.1970 is an act of the parties, bywhich the right of redemption qua the appellant became extinguished bythe act of the parties. Without keeping in view the main relief sought inthe suit, the High Court was not right in decreeing the suit for redemptionGof mortgage.

33. The High Court has not followed the provisions of Code ofCivil Procedure for passing decree for redemption of mortgage. Order34 Rule 7 CPC stipulates that in a suit for redemption of mortgage, thecourt shall prepare the preliminary decree in accordance with Order 34HRule 7 CPC. The High Court has passed a decree for redemption of mortgage simpliciter without following the provisions of the Code ofCivil Procedure. The High Court also erred in directing the delivery ofpossession of the suit property to respondent No.1-plaintiff and the samecannot be sustained. The High Court could not have passed the decreefor redemption without following the procedure laid down in Order 34Rule 7 and 8 of the Code of Civil Procedure which lays down a detailedprocedure for passing a preliminary decree and final decree in a suit forredemption which was not followed by the High Court.

34. Suit barred by limitation:- As discussed, suit was filed fordeclaration that the mortgage deed dated 21.11.1967 as well as saledeed dated 21.12.1970 executed by Wali Mohd. were not executed byhim out of his free will and are void. In paragraph (14) of the plaint, it isaverred that the cause of action of the suit arose on 21.11.1967 and21.12.1970. Under Articles 58 and 59 of the Schedule to the LimitationAct, 1963 in a suit filed for any declaration is to be filed within threeyears when the right to sue accrues. Under Article 59 of the LimitationAct, suit filed to cancel or set aside the instrument or decree, the suit hasto be filed within three years from the date when the facts entitling theplaintiff to set aside or cancel the instrument or decree became firstknown to him. Plaintiff-Shami Mohd. has admitted in his evidence thathe got knowledge about the execution of the sale deed dated 21.12.1970on the third day of death of his father - 17.05.1971. The suit must havebeen filed within three years of the date of knowledge or the date of thesale deed but the suit was filed on 12.07.1978. In the case in hand, suitfiled challenging the validity of the mortgage deed dated 21.11.1967 andsale deed dated 21.12.1970 is beyond the period of limitation of threeyears as prescribed under Articles 58 and 59 of the Schedule to theLimitation Act and barred by limitation.

35. There is no justification for the first appellate Court to recordfindings based on the arguments advanced. Even in the absence ofpleadings and evidence, the first appellate Court recorded finding thatthere was no necessity for Wali Mohd. to execute mortgage deed andwithin short while thereafter, sale deed as he never performed HajPilgrimage and never did any business as written in the documents.Likewise, the first appellate Court recorded its own findings oninadequacy of consideration for the sale deed, even though no such pleawas taken by respondent No.1-Shami Mohd.

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36. The first appellate Court being the final court of fact hasjurisdiction to reverse or affirm the findings of the trial court. Consideringthe nature and scope of the first appellate Court in Vinod Kumar v.Gangadhar (2015) 1 SCC 391, it was held as under:

“15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy (2010) 13SCC 530, this Court taking note of all the earlier judgments of thisCourt reiterated the aforementioned principle with these words:

“3. How the regular first appeal is to be disposed of by theappellate Court/High Court has been considered by this Courtin various decisions. Order 41 CPC deals with appeals fromoriginal decrees. Among the various rules, Rule 31 mandatesthat the judgment of the appellate Court shall state:

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, therelief to which the appellant is entitled.

4. The appellate Court has jurisdiction to reverse or affirm thefindings of the trial court. The first appeal is a valuable right ofthe parties and unless restricted by law, the whole case is thereinopen for rehearing both on questions of fact and law. Thejudgment of the appellate Court must, therefore, reflect itsconscious application of mind and record findings supportedby reasons, on all the issues arising along with the contentionsput forth, and pressed by the parties for decision of the appellateCourt. Sitting as a court of first appeal, it was the duty of theHigh Court to deal with all the issues and the evidence led bythe parties before recording its findings. The first appeal is avaluable right and the parties have a right to be heard both onquestions of law and on facts and the judgment in the firstappeal must address itself to all the issues of law and fact anddecide it by giving reasons in support of the findings. (VideSantosh Hazari v. Purushottam Tiwari (Deceased) By Lrs.(2001) 3 SCC 179, SCC p. 188, para 15 and Madhukar andOthers v. Sangram and Others (2001) 4 SCC 756 SCC p.758, para 5.)”

The Court of first appeal has jurisdiction to reverse or affirm thefindings of the trial Court. When the Court of first appeal takes a differentview, the judgment of the first appellate Court must show the consciousapplication of mind and record its findings based on the evidence adducedby the parties and the judgment must record the reasons as to why thefirst appellate Court differs from the judgment of the Trial Court. In thiscase, judgment of the lower appellate Court has not answered all thepoints arising for determination and the evidence adduced thereon.Likewise, the High Court has not recorded any finding either on fact oron law. The High Court proceeded on the footing as if the suit was asimple suit for redemption of mortgage. Without appreciation of evidenceadduced by the parties and sale deed dated 21.12.1970, the High Courterred in ordering the redemption of mortgage and delivery of possession.The impugned judgment of the High Court cannot be sustained and isliable to be set aside.

37. In the result, the impugned judgment of the High Court inSecond Appeal No.135 of 1998 dated 07.09.2007 is set aside and thisappeal is allowed. Suit No. O.S. 130 of 1978 filed by the respondent-plaintiff is dismissed and the judgment and decree of the Trial Court isaffirmed. No costs.

Kalpana K. Tripathy

Appeal allowed.

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