{"id":199683,"date":"1999-11-29T00:00:00","date_gmt":"1999-11-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ishwar-dass-jain-dead-thr-lrs-vs-sohan-lal-deadby-lrs-on-29-november-1999"},"modified":"2018-02-15T00:43:24","modified_gmt":"2018-02-14T19:13:24","slug":"ishwar-dass-jain-dead-thr-lrs-vs-sohan-lal-deadby-lrs-on-29-november-1999","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ishwar-dass-jain-dead-thr-lrs-vs-sohan-lal-deadby-lrs-on-29-november-1999","title":{"rendered":"Ishwar Dass Jain (Dead) Thr. Lrs vs Sohan Lal (Dead)By Lrs on 29 November, 1999"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ishwar Dass Jain (Dead) Thr. Lrs vs Sohan Lal (Dead)By Lrs on 29 November, 1999<\/div>\n
Author: M J Rao<\/div>\n
Bench: M.Jagannadha Rao, M.B.Shah<\/div>\n
           PETITIONER:\nISHWAR DASS JAIN (DEAD) THR.  LRS.\n\n\tVs.\n\nRESPONDENT:\nSOHAN LAL (DEAD)BY LRS.\n\nDATE OF JUDGMENT:\t29\/11\/1999\n\nBENCH:\nM.Jagannadha Rao, M.B.Shah\n\n\n\n\nJUDGMENT:\n<\/pre>\n
      M.  JAGANNADHA RAO,J.\n<\/p>\n
      The  appellants  are the legal representatives of\t the
\nmortgagor,  the original plaintiff in suit No.388 of 1981 on
\nthe  file of the Sub-Judge, Ist Class, Panipat, who sued for
\nredemption  of the usufructory mortgage dated 15.4.1969\t and
\nfor  possession.  The suit was dismissed by the Trial  Court
\non  12.2.85,  by the first appellate Court (appeal 47\/13  of
\n1985)  on  2.11.85 and by the second appellate Court (\tRSA.
\nNO.    797   of\t 1986)\ton   6.10.86  on  the  ground\tthat
\nnotwithstanding\t the  fact that the defendants executed\t the
\nregistered mortgage deed on 15.4.1969, the real relationship
\nbetween\t the parties was as landlord and tenant and that the
\ndefendant could not be evicted except under the Rent Control
\nlaw.\n<\/p>\n
      The  plaintiff’s case was that he mortgaged the entire
\nshop  and his 5\/6th share therein and gave possession of the
\nwhole  shop to the defendant for Rs.1,000\/-.  Plaintiff sued
\nfor redemption and recovery of possession from the defendant
\non  the abovesaid registered usufructory mortgage.  Interest
\npayable\t by  the  mortgagor was to be set  off\ttowards\t the
\nprofits\t arising from use of property by the mortgagee.\t The
\nmortgage deed stated that on redemption possession had to be
\ndelivered  back to the mortgagor.  On 1.2.1981 the plaintiff
\ndemanded   production\tof  the\t  deed\tand  possession\t  on
\nredemption.   The defendant did not comply.  Therefore,\t the
\npresent suit was filed.\n<\/p>\n
      The  defence  was\t that there was no  relationship  of
\nmortgagor  and\tmortgagee between the parties but  that\t the
\nrelationship  was  as  landlord\t  and  tenant.\t  Defendant,
\nhowever,  admitted that the shop was in exclusive management
\nof  plaintiff at the time possession was given to him.\t The
\nplaintiff  allegedly leased to the defendant at Rs.80\/- P.M.
\nand  plaintiff\thad  been  receiving at\t that  rate.   These
\npayments,  it  was said, were proved by the accounts of\t the
\ndefendant.   The motive for executing the deed was stated as
\nfollows:\n<\/p>\n
      “The  plaintiff,\tfurther demanded that the  defendant
\nwill  have to execute the mortgage deed by way of collateral
\nsecurity in order to guarantee that the shop will be vacated
\nby  the\t defendant whenever demanded by the  plaintiff.\t  In
\nfact,  the  said mortgage deed was to circumvent and to\t bye
\npass  the  provisions of the Rent Control Legislation.\t The
\nalleged\t transaction of mortgage was only a sham transaction
\nexecuted  only with the aforesaid object.  The consideration
\nof  Rs.1000\/-  was only in nature of collateral security  or
\npagri.”\n<\/p>\n
      It  was  also alleged that the plaintiff was a man  of
\nsubstance and very rich and there was indeed no occasion for
\nhim  to mortgage the same for a petty sum.  The plaintiff is
\nalleged\t to have “demanded Rs.1000\/- by way of security\t and
\nasked  the  defendant to thumb mark some writing to arm\t the
\nplaintiff  with a right to get the shop vacated according to
\nhis sweet will”.  The defendant was in dire necessity of the
\nshop and had to agree on the said condition.  The defendant,
\ntherefore,  paid  Rs.1000\/-  and  incurred  Rs.80\/-  towards
\nexpenses.  The alleged mortgage was not the real transaction
\nbut it was a clever device to bye-pass the provisions of the
\nRent  Act”.   The  suit of the plaintiff was  liable  to  be
\ndismissed.   The trial Court considered the question whether
\nthe  mortgage  was proved.  It initially observed  that\t the
\n“plea  of  the\tlearned counsel for the defendant  that\t the
\nplaintiff  was\ta rich man and there is no need to  mortgage
\nthe  shop, …., cannot be accepted.  Even if the  plaintiff
\nis  rich  person, he can mortgage the suit  property”.\t The
\nplaintiff  was\tnot  bound to plead that  he  was  suffering
\nlosses\tbut he could lead evidence.  Having so observed, the
\ntrial Court stated that the defendant “produced his books of
\naccount”  to show that he was paying various amounts to\t the
\nplaintiff  every  month,  ranging from Rs.20\/-\tto  Rs.80\/-,
\n“though\t it  is\t not mentioned as to why  the  defendant  is
\npaying\tthe  said  amount  to\tthe  plaintiff”.   On  these
\naccounts,  the\tplea  of payment of rent was  founded.\t The
\ntrial  Court  then made an observation contrary to  what  it
\nsaid earlier, as follows:\n<\/p>\n
      “the  learned counsel for the defendant contended that
\nthe  plaintiff\tis  a  well to do man and  no  person  would
\nmortgage his shop with the defendant for petty amount of Rs.
\n1000\/-.\t  I find force in this contention, and plaintiff  is
\nnot a poor man.”\n<\/p>\n
      The Court then concluded that the defendant was paying
\nto  plaintiff some amount every month, towards “rent” at the
\nrate   of  Rs.80\/-  and\t that\tthe  mortgage  was  a\tsham
\ntransaction.  The suit was, therefore, dismissed.\n<\/p>\n
      On  appeal, the appellate Court proceeded on the basis
\nthat  the  mortgage was proved.\t It confirmed the decree  of
\nthe  trial Court and observed that the plaintiff had only  a
\nhalf  share  and could not have mortgaged the share  of\t his
\nwife  though  plaintiff might have been in management,\tthat
\nthe defendant’s “accounts” showed he had been paying Rs.80\/-
\nP.M.  to plaintiff though no receipt was issued or obtained.
\nThis was for the period 16.4.69 to 12.3.81.  The first entry
\nshowed\tdefendant  paid Rs.1000\/- to plaintiff in  cash\t and
\nRs.80\/-\t as  rent  in advance and Rs.80\/-  as  miscellaneous
\nexpenditure.  The Court observed that the plaintiff “got the
\nmortgage deed…executed from defendant so that he could get
\nthe  disputed  shop vacated at his sweet will”.\t  The  Court
\nalso  observed:\t “Needless to say that the disputed shop was
\nmortgaged  for a petty sum of Rs.1,000\/- whereas the rent of
\nthe  disputed property was Rs.80\/- per month”.\tThe property
\nwas  very  valuable  and could not have been  mortgaged\t for
\nRs.1000\/-.   The  Municipal Register showed  respondent\t was
\noccupying  the\tproperty.   Rental  value  was\tassessed  at
\nRs.824\/-.   On\tthe  above reasoning, it was held  that\t the
\nmortgage  was a sham document and that the defendant was  in
\nreality a tenant.  The appeal was dismissed.\n<\/p>\n
      The  High\t Court dismissed the Second  Appeal  without
\nreasons.   It is these judgments that are questioned in this
\nappeal.\n<\/p>\n
      We have heard the appellants in person and the learned
\ncounsel for the respondents.  The following points arise for
\nconsideration:\t (1)  Whether the High Court  can  interfere
\nunder  section\t100  CPC ( as mentioned in  1976)  with\t the
\nfindings  of fact arrived at by the lower appellate Court if
\nvital  evidence\t which\tcould  have   led  to  a   different
\nconclusion  was\t omitted  or if\t inadmissible  evidence\t was
\nrelied\tupon which if omitted, could have led to a different
\nconclusion?   (2)  Whether  on the facts of  the  case,\t the
\nmortgage  was  proved  by the plaintiff by production  of  a
\ncertified  copy\t of the deed?  (3) Whether Section 92(1)  of
\nthe Evidence Act could be a bar for proving a document to be
\na  sham document?  (4) Whether the Exs.\t D2 to D5 were\tonly
\nextracts  from\taccounts books and could not be\t treated  as
\naccount books for purposes of Section 34 of the Evidence Act
\nand  were not admissible?  (5) Whether the lower Courts\t had
\nomitted\t vital evidence from consideration?  (6) Whether the
\nmortgagee  who\tgot possession of the entire property  under
\nthe deed of mortgage could be permitted to deny the title of
\nthe mortgagor either wholly or partly?\t(7) What relief?\n<\/p>\n
      POINT 1:\n<\/p>\n
      Ordinarily,  this\t Court does not go into findings  of
\nfact  in  exercise of its jurisdiction under Article 136  of
\nthe  Constitution of India, particularly in appeals  against
\njudgment  in Second Appeals decided by the High Courts under
\nsection 100 of the Code of Civil Procedure.  But, in certain
\nexceptional   cases,  this  Court   will  not  hesitate\t  to
\ninterfere,  if\tinterference is called for and if  the\tHigh
\ncourt  has  failed  to interfere under section\t100.   After
\nhearing the appellants in person and the learned counsel for
\nthe respondent, we are of the view that this is one of those
\nexceptional  cases in which interference is called for\teven
\nwithin the narrow parameters of section 100 CPC.\n<\/p>\n
      Now  under section 100 CPC, after the 1976  amendment,
\nit   is\t essential  for\t the   High  Court  to\tformulate  a
\nsubstantial  question  of law and it is not  permissible  to
\nreverse\t the  judgment of the first appellate Court  without
\ndoing so.\n<\/p>\n
      There  are  two situations in which interference\twith
\nfindings  of  fact  is permissible.  The first one  is\twhen
\nmaterial  or  relevant evidence is not considered which,  if
\nconsidered  would have led to an opposite conclusion.\tThis
\nprinciple  has\tbeen laid down in a series of  judgments  of
\nthis  Court  in relation to section 100 CPC after  the\t1976
\namendment.   In Dilbagrai Punjabi vs.  Sharad Chandra<\/a>  [1988
\nSupple.\t  SCC  710], while dealing with a Second  Appeal  of
\n1978  decided  by the Madhya Pradesh High Court on  20.8.81,
\nL.M.Sharma, J.(as he then was) observed that<\/p>\n
      “The Court (the first appellate Court) is under a duty
\nto  examine the entire relevant evidence on record and if it
\nrefuses to consider important evidence having direct bearing
\non  the\t disputed issue and the error which arises as  of  a
\nmagnitude  that it gives birth to a substantial question  of
\nlaw,  the  High Court is fully authorised to set  aside\t the
\nfinding.  This is the situation in the present case.”\n<\/p>\n
      In  that case, an admission by the defendant-tenant in
\nthe  reply notice in regard to the plaintiff’s title and the
\ndescription  of\t the  plaintiff as `owner’ of  the  property
\nsigned\tby  the defendant were not considered by  the  first
\nappellate  Court  while holding that the plaintiff  had\t not
\nproved\this  title.   The  High Court  interfered  with\t the
\nfinding on the ground of non-consideration of vital evidence
\nand this Court affirmed the said decision.  That was upheld.
\nIn  Jagdish Singh vs.  Nathu Singh<\/a> [1992 (1) SCC 647],\twith
\nreference  to  a  Second  Appeal  of  1978  disposed  of  on
\n5.4.1991.  Venkatachaliah, J.  (as he then was) held:\n<\/p>\n
      “where  the findings by the Court of facts is vitiated
\nby   non-consideration\tof  relevant   evidence\t or  by\t  an
\nessentially erroneous approach to the matter, the High Court
\nis not precluded from recording proper findings.”\n<\/p>\n
      Again  in\t Sundra Naicka Vadiyar vs.  Ramaswami  Ayyar<\/a>
\n[1995  Suppl.  (4) SCC 534], it was held that where  certain
\nvital documents for deciding the question of possession were
\nignored\t –  such  as a compromise, an order of\tthe  revenue
\nCourt  – reliance on oral evidence was unjustified.  In\t yet
\nanother\t case in Mehrunissa vs.\t Visham Kumari [1998 (2) SCC
\n295]  arising  out  of\tSecond appeal  of  1988\t decided  on
\n15.1.1996,  it was held by Venkataswami, J.  that a  finding
\narrived\t at  by\t ignoring the second notice  issued  by\t the
\nlandlady and without noticing that the suit was not based on
\nearlier\t notices,  was\tvitiated and the  High\tCourt  could
\ninterfere with such a finding.\tThis was in Second Appeal of
\n1988  decided  on 15.1.1996.  The second situation in  which
\ninterference with findings of fact is permissible is where a
\nfinding\t has  been  arrived  at by the\tappellate  Court  by
\nplacing\t reliance  on inadmissible evidence which if it\t was
\nomitted,  an opposite conclusion was possible.\tIn Sri Chand
\nGupta vs.  Gulzar Singh<\/a> [1992 (1) SCC 143], it was held that
\nthe  High  Court was right in interfering in  Second  Appeal
\nwhere  the lower appellate Court relied upon an admission of
\na  third party treating it as binding on the defendant.\t The
\nadmission  was inadmissible as against the defendant.\tThis
\nwas  also a Second Appeal of 1981 disposed of on  24.9.1985.
\nIn either of the above situations, a substantial question of
\nlaw  can arise.\t The substantial question of law that arises
\nfor  consideration  in this appeal is:\t“whether the  courts
\nbelow  had  failed to consider vital pieces of evidence\t and
\nwhether\t the Courts relied upon inadmissible evidence  while
\narriving  at  the conclusion that the mortgage was sham\t and
\nthat there was no relationship between the plaintiff and the
\ndefendant   as\t mortgagor  and\t  mortgagee  but  the\treal
\nrelationship was as landlord and tenant?  Point 1 is decided
\naccordingly.   POINT 2:\t We shall first deal with the  proof
\nof  the\t certified copy of the deed of mortgage.  So far  as
\nthe  mortgage  deed  is\t concerned, the\t plaintiff  filed  a
\ncertified  copy\t and called upon the defendant to  file\t the
\noriginal.   The defendant refused to do so.  The  plaintiff,
\ntherefore, proceeded to file the certified copy as secondary
\nevidence  under sub-clause (a) of section 65 of the Evidence
\nAct.   This  was certainly permissible.\t The mortgage  is  a
\ndocument  required  to\tbe attested by two  attestors  under
\nsection\t 59 of the Transfer of Property Act and in this case
\nit  is\tattested  by two attestors.  The mode  of  proof  of
\ndocuments  required to be attested is contained in  sections
\n68  to\t71  of the Evidence Act.  Under section 68,  if\t the
\nexecution  of  a document required to be attested is  to  be
\nproved,\t it will be necessary to call an attesting  witness,
\nif  alive and subject to the process of Court and is capable
\nof  giving evidence.  But in case the document is registered\n<\/p>\n
– then except in the case of a will – it is not necessary to
\ncall  an  attesting witness, unless the execution  has\tbeen
\nspecifically  denied  by the person by whom it\tpurports  to
\nhave  been  executed.  This is clear from section 68 of\t the
\nEvidence Act.  It reads as follows:\n<\/p>\n
      “Section\t68:  If a document is required by law to  be
\nattested,  it  shall  not  be used  as\tevidence  until\t one
\nattesting witness atleast has been called for the purpose of
\nproving\t its  execution,  if there be an  attesting  witness
\nalive,\tand subject to the process of the Court and  capable
\nof giving evidence:\n<\/p>\n
      Provided\tthat  it shall not be necessary to  call  an
\nattesting witness in proof of the execution of any document,
\nnot  being  a will, which has been registered in  accordance
\nwith  the  provisions of the Indian Registration Act,  1908,
\nunless\tits  execution by the person by whom it purports  to
\nhave been executed is specifically denied.”\n<\/p>\n
      In  the  present\tcase, though it was  stated  in\t the
\nwritten statement that there was no relationship between the
\nparties\t as mortgagor and mortgagee, the defendant  admitted
\nin  his additional pleas in the same written statement\tthat
\nthe  mortgage deed was executed but he contended that it was
\nexecuted  to  circumvent the Rent Control  legislation.\t  In
\nfact,  in  his\tevidence as DW2 the defendant  admitted\t the
\nexecution  of the mortgage.  It must therefore be taken that
\nthere was no specific denial of execution.  Hence it was not
\nnecessary  for\tthe plaintiff to call the attestor into\t the
\nwitness\t box,  this not being a will.  The  plaintiff  could
\ntherefore  not\tbe  faulted  for not examining\tany  of\t the
\nattestors.  Hence the mortgage stood proved by the certified
\ncopy.\tThe  Courts below were right in accepting  that\t the
\ndeed   was  proved.   Point  2\tis  decided  in\t favour\t  of
\nplaintiffs- appellants.\n<\/p>\n
      POINT 3:\n<\/p>\n
      The  point here is whether oral evidence is admissible
\nunder  Section\t92(1)  of the Evidence Act to prove  that  a
\ndocument  though  executed was a sham document\tand  whether
\nthat  would amount to varying or contradicting the terms  of
\nthe  document.\t The  plea of the defendant in\tthe  written
\nstatement  was\tthat  mortgage deed though true was  a\tsham
\ndocument  not  intended\t to be acted upon and  that  it\t was
\nexecuted only as a collateral security.\t It was pleaded that
\nthe  plaintiff demanded that a mortgage deed be executed  by
\ndefendant as “collateral security in order to guarantee that
\nthe  shop will be vacated by the defendant whenever demanded
\nby  the plaintiff” and that this was done to circumvent\t the
\nrent  control law.  It was said that the alleged transaction
\nof  mortgage  was  a sham transaction,\texecuted  only\twith
\naforesaid  object.  The consideration of Rs.1000\/- “was only
\nin the nature of a collateral security or ‘pagri’.”\n<\/p>\n
      The  plaintiff was and is a rich man and there was  no
\noccasion  for him to mortgage his property.  It was  further
\npleaded<\/p>\n
      “The  plaintiff  thus  demanded\tRs.1000\/-  from\t the
\ndefendant  by  way  of security and asked the  defendant  to
\nthumbmark  some writing to arm the plaintiff with a right to
\nget  the  shop\tvacated according to his  sweet\t will.\t The
\ndefendant  who\twas  in dire necessity of the shop,  had  to
\nagree on the said condition put forward by the plaintiff”.\n<\/p>\n
      This  Court has held in Gangabai Vs.  Chhabubai  (1982
\n(1)  SCC  4) that in spite of Section 92(1) of the  Evidence
\nAct, it is permissible for a party to a deed to contend that
\nthe  deed  was not intended to be acted upon but was only  a
\nsham  document.\t  The bar arises only when the\tdocument  is
\nrelied\tupon  and  its\tterms are sought to  be\t varied\t and
\ncontradicted.\tIn  the above case, it was observed by\tD.A.
\nDesai J as follows:\n<\/p>\n
      “the  bar imposed by Section 92(1) applies only when a
\nparty seeks to rely upon the document embodying the terms of
\nthe transaction and not when the case of a party is that the
\ntransaction  recorded in the document was never intended  to
\nbe  acted  upon\t at  all between the parties  and  that\t the
\ndocument  is a sham.  Such a question arises when the  party
\nasserts\t that  there was a different transaction  altogether
\nand  what is recorded in the document was intended to be  of
\nno consequence whatever.  For that purpose, oral evidence is
\nadmissible  to\tshow  that the document executed  was  never
\nintended  to  operate  as an agreement but that\t some  other
\nagreement  altogether,\tnot  recorded in the  document,\t was
\nentered into between the parties”.\n<\/p>\n
      But the question is whether on the facts of this case,
\nthe  reason  given  by\tthe defendant in  his  evidence\t for
\ntreating the mortgage as a sham document, can be accepted.\n<\/p>\n
      The reason given by the defendant appears to us rather
\ncurious.   One can understand a debtor incurring a debt\t and
\nexecuting  a deed as collateral security.  There is no\tsuch
\nsituation  here.   Further,  if it is a deed  of  collateral
\nsecurity  by defendant, then the defendant would have had to
\nexecute\t a  deed  in favour of the plaintiff and  not  vice-
\nversa.\t Here the plaintiff-owner has mortgaged his shop  to
\nthe  defendant,\t as  security.\t The plea  and\tevidence  of
\ncollateral  security offered by the defendant appears to  us
\nnot to fit into a situation where the plaintiff has executed
\nthe  mortgage.\tObviously, if the plaintiff wanted to secure
\nsomething  by  way  of\tan   additional\t security  from\t the
\ndefendant,  the\t normal\t course would have been to  ask\t the
\ndefendant  to give such a security and not for the plaintiff
\nto  execute  a\tmortgage.   Thus the  reason  mentioned\t and
\nevidence  given\t by the defendant as to why a sham  document
\nwas executed falls to the ground.\n<\/p>\n
      Under  Point 3 we therefore hold that though  evidence
\nis admissible under Section 92(1) to prove that the mortgage
\nis  a sham document, such evidence is lacking in this  case.
\nPoint 3 is decided against the defendant.  Points 4 & 5:  To
\naccept\tthe plea of lease set up by the defendant, the trial
\ncourt and the first appellate Court, relied upon the entries
\nEx.   D2  and  Exs.   D3 to D5 relating to  the\t payment  of
\n“rents”\t by  defendant\tas recorded in the  ‘account  books’
\nallegedly  maintained by the defendant in the regular course
\nof business.\n<\/p>\n
      The  Courts below, in our view, failed to notice\tthat
\nno account book or books were ever produced by the defendant
\nin  the\t Court.\t  Exs.D2 to D5 filed into  Court  were\tonly
\n‘extracts’  of the defendants’ account books.  The  extracts
\nwere  filed  two  years\t after the  filing  of\tthe  written
\nstatement  and\tone and a half year after the settlement  of
\nissues,\t  without  any\texplanation   for  the\tdelay.\t The
\ngenuineness  of the extracts was challenged seriously in the
\ncross-examination of the defendant who was examined as DW 2.
\nIt was specifically contended by the plaintiff ( see p.13 of
\nthe  appellant’s notes of arguments in the appellate  court)
\nthat   the  “account  books   were  never  produced”.\t The
\nplaintiff’s  plea  against the admissibility of Ex.  D2\t and
\nExs.   D3 to D5 in the trial Court was rejected by the\tsaid
\nCourt  and  a  revision under Section 115 CPC was  filed  by
\nplaintiff in the High Court.  That was dismissed by the High
\nCourt  saying  that there was no “case” decided\t within\t the
\nmeaning\t of the word ‘case decided’ in Section 115 CPC.\t The
\nplaintiff  therefore questioned the admissibility of  Exs.D2
\nto  D5\tin  the\t first\tAppeal.\t  In  our  opinion,  it\t was
\npermissible  for him to raise the said question in the first
\nappeal\tin view of Section 105 C.P.C.  In the light of\twhat
\nwas  stated by the plaintiff in the memo of first appeal  in
\nthe  appellate Court, it cannot be said that the  ‘accounts”
\nproduced by defendant were not objected to by the plaintiff.\n<\/p>\n
      Ex.D2  is an extract of accounts.\t So are Exs.  D3  to
\nD5.  This is clear from para 21 of the judgment of the trial
\nCourt.\tThat para reads as follows:\n<\/p>\n
      “The  plaintiff made the contention that the defendant
\nrelied\tupon his account books to prove that he is a  tenant
\nof  the\t shop in dispute under the plaintiff.  He  made\t the
\nstatement  that the payment of the rent to the plaintiff  is
\nentered in his regular kept account book but strange enough,
\nhe  had\t not  produced at any stage of\tthe  proceedings  an
\nextract of account books which are Ex.D 3 to D 5 and this is
\nwrong  to  state  that the defendant has  not  produced\t the
\naccount books to show that he has ‘not’ been paying the rent
\nto  the plaintiff.  The plaintiff also contended that  Ex.D2
\nextract\t of  the account books has been produced  and  which
\ncould  not  be\tliable\tto  be\taccepted.   Whatsoever,\t the
\ndocument  has been admitted without objection.\tIt is liable
\nto be considered while deciding issues”.\n<\/p>\n
      Unfortunately,  in  a latter passage, the trial  Court
\nreferred  to  these extracts as ‘account books’ and  applied
\nSection 34 of the Evidence Act.\t The Court forgot that these
\nwere extracts of alleged accounts.\n<\/p>\n
      Now  under Section 34 of the Evidence Act, entries  in
\n“account books” regularly kept in the course of business are
\nadmissible  though  they  by themselves\t cannot\t create\t any
\nliability.  Section 34 reads as follows:\n<\/p>\n
      “Section\t34:   Entries  in   books  of  account\twhen
\nrelevant  –  Entries in books of account, regularly kept  in
\nthe  course of business, are relevant whenever they refer to
\na  matter  into\t which the Court has to\t inquire,  but\tsuch
\nstatements  shall not alone be sufficient evidence to charge
\nany person with liability”.\n<\/p>\n
      It  will\tbe noticed that sanctity is attached in\t the
\nlaw  of evidence to books of account if the books are indeed
\n“account  books i.e.  in original and if they show, on their
\nface,  that  they  are\tkept  in  the  “regular\t course\t  of
\nbusiness”.   Such sanctity, in our opinion, cannot attach to
\nprivate extracts of alleged account books where the original
\naccounts  are  not filed into Court.  This is because,\tfrom
\nthe  extracts, it cannot be discovered whether the  accounts
\nare  kept in the regular course of business or if there\t are
\nany  interpolations  or whether the interpolations are in  a
\ndifferent  ink or whether the accounts are in the form of  a
\nbook with continuous page-numbering.  Hence, if the original
\nbooks  have  not been produced, it is not possible  to\tknow
\nwhether\t the entries relating to payment of rent are entries
\nmade in the regular course of business.\n<\/p>\n
      It is only in the case of Bankers’ Books Evidence Act,
\n1891 that certified copies are allowed or the case must come
\nunder  Section\t65(f) or (g) of the Evidence  Act.   Private
\nextracts  of  accounts in other cases can only be  secondary
\nevidence and unless a proper foundation is laid for adducing
\nsuch secondary evidence under Section 65 or other provisions
\nof  the\t Evidence Act, the privately handwritten  copies  of
\nalleged\t account  books cannot by themselves be\t treated  as
\nsecondary evidence.\n<\/p>\n
      In the recent judgment of this Court in Central Bureau
\nof  Investigation  Vs.\tV.C.  Shukla ( 1998(3) SCC 410),  it
\nhas  been laid down that for purposes of Section 34,  ‘Book’
\nordinarily  means  a collection of sheets of paper or  other
\nmaterial,  blank,  written  or printed,\t fastened  or  bound
\ntogether  so  as to form a material whole.  Loose sheets  of
\npaper or scraps of paper cannot be termed as ‘book’ for they
\ncan  be easily detached and replaced.  It has also been held
\nthat the rationale behind admissibility of parties’ books of
\naccount\t as  evidence is that the regularity of\t habit,\t the
\ndifficulty  of\tfalsification  and  the\t fair  certainty  of
\nultimate  detection  give  them in a  sufficient  degree,  a
\nprobability  of\t trustworthiness.”  When that is  the  legal
\nposition,  extracts  of alleged account books, in our  view,
\nwere  wrongly  treated\tas admissible by  the  courts  below
\nthough\tthe original books were not produced for  comparison
\nnor  their  non-production was explained nor the person\t who
\nhad  prepared  the  extracts was examined.   Therefore,\t the
\nprivate\t extracts of alleged account books like Exs.D2 to D5
\nare  not admissible.  The principal evidence relating to the
\nalleged\t payment  of rent disappears and the foundation\t for
\nthe  alternative  plea\tof tenancy crumbles.   This  is\t one
\nreason why the finding relating to tenancy is vitiated being
\nbased  on inadmissible evidence.  We shall next refer to the
\nvital  evidence or facts relating to the mortgage which have
\nnot  been  considered  by the Courts below.   The  defendant
\nadmitted  in his evidence as DW2 that the mortgage deed\t was
\nexecuted by him.  The endorsement of the Sub-Registrar shows
\nthat  the  money  of Rs.1000\/- was paid as  mortgage  money.
\nThere is a presumption of the correctness of the endorsement
\nmade   by  the\tSub-Registrar  under   Section\t58  of\t the
\nRegistration  Act  (vide Baidyanath Singh vs.\tJamal  Bros.
\nAIR  1924 PC 48), it can be rebutted only by strong evidence
\nto the contrary.\n<\/p>\n
      Another  important  aspect is that in the copy of\t the
\nMunicipal House Tax Register Ex.D1, the defendant, Sohan Lal
\nwas  shown  as ‘occupier’ of a shop just as  certain  others
\nlike   Ganpat,\tOmprakash  Niranjan   were  also  shown\t  as
\noccupiers.   Description  as occupiers does not\t necessarily
\nimply  occupation  only as tenants.  According to DW 3,\t the
\nrent  paid  by Om Prakash was Rs.40\/- p.m.  and by  Niranjan
\nwas   Rs.22.50.\t  The  plaintiff   submitted  in  the  first
\nappellate  Court that the annual value of both thus comes to
\nRs.40  +  Rs.22.50  = (Rs.62.50) x 12=Rs.750\/-.\t  The  total
\nannual\tvalue  of  the shop having been fixed at  Rs.824  in
\nEx.D1,\t that  leaves  only  a\t balance  of  Rs.74  (\ti.e.
\nRs.824-Rs.750).\t  The  plaintiff  submitted in his  memo  of
\narguments  before  the appellate Court that the\t balance  of
\nannual\trental\tvalue  of Rs.74\/- could not  relate  to\t the
\noccupation of Sohanlal as tenant in this shop, for according
\nto  the\t defendant,  the  monthly  rent\t was  Rs.80\/-.\t The
\nplaintiff  submitted  that  the balance of  Rs.74  could  be
\nattributed  only  to  the occupation of Ganpat.\t  The  above
\naspect was also not kept in view by the lower Courts.\n<\/p>\n
      One  other  important  point is that the term  of\t the
\nmortgage  deed is that the defendant is to be in  possession
\nand the interest payable by the plaintiff as mortgagor is to
\nbe  set off against the ‘profit’ realised by the mortgagor’s
\noccupation  of the shop.  There is no recital that it is  to
\nbe set off against any “rent” payable by the defendant.\n<\/p>\n
      We  have already pointed out that in regard to whether
\nthe  plaintiff was rich enough so as not to be in need to go
\nin  for\t a mortgage, there are conflicting findings  by\t the
\ntrial Court.  The plaintiff’s acute need for money is proved
\nby  the\t fact  that  he incurred losses\t in  regard  to\t his
\npartnership  with  the Haryana Woollen Mills.  This  aspect,
\naccording  to  the  plaintiff  (as  stated  in\this  written
\nsubmissions)  is borne out by the reported judgment of\tthis
\nCourt  in L.Iswar Dass Vs.  The Haryana and General  Woollen
\nMills  Ltd.   (\t AIR 1974 SC 592) to which plaintiff  was  a
\nparty.\tThe said judgment was referred to as evidence of the
\nplaintiff’s  losses.  This aspect was also not considered by
\nthe lower Courts.\n<\/p>\n
      In the result, we hold that the extracts from accounts
\nare  not  “account books” falling within Section 34  of\t the
\nEvidence  Act and are inadmissible.  We also hold that vital
\nmaterial  was  omitted\tfrom consideration  by\tthe  Courts.
\nThus,  the finding in regard to tenancy is liable to be\t set
\naside.\tPoints 4 and 5 are held in favour of the plaintiff.\n<\/p>\n
      POINT 6:\n<\/p>\n
      The  appellate  Court,  in  our view,  went  wrong  in
\nthinking  that\tthe plaintiff had only a half share  in\t the
\nproperty.   The defendant’s title was a derivative title  as
\nmortgagee.   Having  came  into\t  possession  of  the  whole
\nproperty  as  a\t mortgagee   from  the\tplaintiff,  treating
\nplaintiff  as full owner it was not open to the defendant to
\nquestion  the title of the plaintiff.  In Tasker Vs.  Mall (
\n3  My.\t8 Cr.63 ( 5 L.J.  Ch 321), Lord Cottenham said:\t “To
\nhim  (\tmortgagee) it is immaterial, upon repayment  of\t the
\nmoney, whether the mortgagor’s title was good or bad.  He is
\nnot  at\t liberty to dispute it any more than a tenant is  at
\nliberty\t to  dispute his landlord’s title”.   A\t usufructory
\nmortgagee  cannot deny the title of his mortgagor.  Nor\t can
\nhe  set up adverse possession unless he actually leaves\t the
\nholding\t and re- enters under a different status ( Jainandan
\nVs.   Umrao) ( AIR 1929 All.305) and (Sriram Vs.  Thakur)  (
\nAIR 1965 All.  223)<\/p>\n
      Point 7:\n<\/p>\n
      The  judgments  of all the three courts therefore\t are
\nset  aside.  The suit is decreed for redemption as  follows.
\nThe  appellants\t are  entitled\tto  redeem  the\t usufructory
\nmortgage  and  get  possession\tof the suit  shop  from\t the
\ndefendant,  if\tthe appellants deposit in the  trial  Court,
\nwithin three months from today, the sum of Rs.1000\/-.  There
\nis  no need to deposit any interest inasmuch as according to
\nthe deed, the defendant was to be in possession and interest
\nwas  to\t be set off against the occupation of the shop.\t  We
\ndirect that on such deposit of Rs.1000\/-, the defendant will
\nproduce\t the mortgage deed into Court for cancellation.\t  In
\ncase  he does not produce the deed, within the said  period,
\nit  will be deemed that the mortgage is cancelled.  On\tsuch
\ndeposit\t of  Rs.1000\/-\tas aforesaid,  the  defendant  shall
\nrestore\t possession to the appellants.\tOn such\t restoration
\nof  possession, defendant shall be entitled to withdraw\t the
\nsum  of Rs.1000\/-.  In case the defendant does not surrender
\npossession  as aforesaid, it will be open to the  appellants
\nto seek possession by way of execution.\n<\/p>\n
      The  appeal  is  allowed.\t  Costs\t of  appellants\t are
\nquantified at Rs.5,000\/-.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ishwar Dass Jain (Dead) Thr. Lrs vs Sohan Lal (Dead)By Lrs on 29 November, 1999 Author: M J Rao Bench: M.Jagannadha Rao, M.B.Shah PETITIONER: ISHWAR DASS JAIN (DEAD) THR. LRS. Vs. RESPONDENT: SOHAN LAL (DEAD)BY LRS. DATE OF JUDGMENT: 29\/11\/1999 BENCH: M.Jagannadha Rao, M.B.Shah JUDGMENT: M. JAGANNADHA RAO,J. The appellants are […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-199683","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nIshwar Dass Jain (Dead) Thr. 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