JAMILA BEGUM (D) THR. LRS. vs. SHAMI MOHD

Facts giving rise to this appeal are that 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.

Case of the respondent-plaintiff is that Wali Mohd., father of respondent No.1 had purchased two plots and along with respondent No.1 got the disputed house constructed which was gifted to respondent No. 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 in the said Will, Wali Mohd. also mentioned about the oral gift. Respondent No.1-plaintiff further averred that though the appellants contend that Wali Mohd. had executed a mortgage deed dated 21.11.1967 in respect of the suit property in favour of the appellant and one Sakina for a sum of Rs.11000/-, Wali Mohd. was not in requirement of money and the 2

Resisting the suit, the appellant filed written statement inter- alia contending that Nababun is not the legally wedded wife of Wali Mohd. and that she was simply his maid servant. It was averred that Wali Mohd. never executed any Will in favour of Nababun. Further, it was stated that respondent No. 1 was not in possession of the disputed house. Since 1960, relations between Wali Mohd. and respondent No. 1 were strained and Wali Mohd. had turned out respondent No.1 from the suit house and had also lodged FIR against him. Wali Mohd. duly executed mortgage deed dated 21.11.1967 for Rs.11,000/- in favour of Jamila Begum and Sakina. Wali Mohd. had sold the suit property in favour of appellant for consideration of Rs.30,000/- and executed the sale deed dated 21.12.1970. After the sale deed in her favour, the appellant had 3

Upon consideration of evidence, the trial court dismissed the suit 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 for due consideration of Rs.30,000/- and the same cannot be assailed on the ground of undue influence or inadequate consideration. Trial court also held that a suit for cancellation of sale deed has to be filed within the period of limitation of three years and the suit filed in the year 1978 challenging 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 does not bear the signature of the scribe and was not registered. The trial court rejected the stand of plaintiff-respondent No.1-Shami Mohd. that the suit house was jointly constructed by Wali Mohd. and respondent No.

In appeal, the first appellate Court allowed the appeal by holding that Wali Mohd. had no necessity to mortgage or sell the suit property for such inadequate consideration of Rs.30,000/-. The first appellate Court placed burden of proof upon appellant-Jamila Begum that she had to prove the genuineness of the mortgage deed as well as sale deed dated 21.12.1970 and that they were validly executed by Wali Mohd. and the said burden has not been discharged by the appellant. Insofar as the oral gift and Will dated 30.09.1970 in favour of Nababun relied upon by the respondent- plaintiff, the first appellate Court held that the execution of the oral gift and Will has been proved and it has also been proved that Wali Mohd. was mentally fit and capable of understanding the contents of the Will. The first appellate Court set aside both mortgage deed dated 21.11.1967 and also the sale deed dated 21.12.1970 and reversed the judgment of the trial court and thereby 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 5

Mr. R.B. Singhal, learned senior counsel for the appellant submitted that the sale deed dated 21.12.1970 has been executed for due consideration and the first appellate Court and the High Court erred in placing the burden of proof upon the appellant. It was submitted that when the respondent-plaintiff assailed the document as vitiated by fraud and undue influence, burden lay upon respondent No.1 to establish coercion and undue influence. It was submitted that the plaintiff failed to establish that appellant-Jamila Begum was in a position to influence Wali Mohd. to get the sale deed executed in her favour. It was further submitted that the alleged oral gift and Will dated 30.09.1970 has not been proved and is clearly an afterthought. It was contended that delivery of possession which is the essential ingredient of oral gift has not been established by the respondent-plaintiff. The learned senior counsel 6

Refuting the contentions, Mr. Braj Kishore Mishra, learned counsel for the respondents submitted that the first appellate Court being a final fact-finding court has found that the respondent-plaintiff has proved the oral gift whereas, the alleged mortgage deed and the sale deed were sham and void documents and the same cannot be assailed. It was further submitted that within three years after execution of the mortgage deed by Wali Mohd., sale of the property on the ground that he was unable to redeem the mortgage is unbelievable. It was further contended 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 had given possession of her part in the suit property to the appellant-Jamila Begum. It was further submitted that the High Court rightly decreed the prayer for redemption of mortgage and the findings of fact recorded by the first appellate Court and affirmed by the High Court cannot be said to be erroneous. It was contended that as per Article 61 of Schedule to the Limitation Act, 1963 period of thirty years has 7

We have perused the impugned judgment and the materials on record. Upon consideration of submission, the following points arise for consideration:- (i) Whether the first appellate Court and the High Court were right in placing the burden of proof upon the appellant to prove that the sale deed dated 21.12.1970 was validly executed by Wali Mohd. with his free will and that the appellant has not discharged that burden cast upon her? (ii) Whether the High Court and the first appellate Court were right in accepting the case of the plaintiff that Wali Mohd. orally gifted the suit house to plaintiff and also executed the Will on 30.09.1970 in favour of Nababun and rejecting the sale deed dated 21.12.1970 relied upon by the appellant-defendant. (iii) Whether the High Court was right in granting the alternative relief of redemption of mortgage deed on payment of Rs.11,000/- the amount mentioned in the mortgage deed treating the suit as suit simpliciter for redemption of mortgage. 8

The mortgage deed dated 21.11.1967 (Ex.74 Kha.) was executed by Wali Mohd. for Rs.11,000/- in favour of Jamila Begum and Sakina. DW-4 – Abdul Hamid – attesting witness of the mortgage deed was examined who has stated about the execution of mortgage deed by Wali Mohd. 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 Wali Mohd. was not in a position to repay the mortgage deed amount of Rs.11,000/-. The respondent No.1-plaintiff-Shami Mohd. has not adduced any reliable evidence of proof to establish that the mortgage deed was not executed by Wali Mohd. out of his free will or without any consideration. 9

Wali Mohd. sold the suit property for Rs.30,000/- to the appellant-Jamila Begum by a registered sale deed dated 21.12.1970 (Ex.75 Kha.). The recitals in the registered sale deed are natural and cogent showing that it was validly executed by Wali Mohd. The sale deed 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 the possession of the tenants and that the rental income was Rs.1440/-. The recitals in the sale deed makes a clear reference to the receipt of sale consideration of Rs.30,000/- as:- (i) that the vendor Wali Mohd. had received the mortgage amount of Rs.11,000/- and that he had not been able to get the property released from mortgage; (ii) receipt of consideration of Rs.11,000/- from the purchaser at the time of entering into the agreement to sell; and (iii) receipt of consideration amount of Rs.8,000/- in the presence of Sub-