{"id":76304,"date":"2007-09-07T00:00:00","date_gmt":"2007-09-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/smt-jamila-begum-nandini-vs-shami-mohammad-and-ors-on-7-september-2007"},"modified":"2018-08-12T15:16:43","modified_gmt":"2018-08-12T09:46:43","slug":"smt-jamila-begum-nandini-vs-shami-mohammad-and-ors-on-7-september-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/smt-jamila-begum-nandini-vs-shami-mohammad-and-ors-on-7-september-2007","title":{"rendered":"Smt. Jamila Begum Nandini vs Shami Mohammad And Ors. on 7 September, 2007"},"content":{"rendered":"<div class=\"docsource_main\">Allahabad High Court<\/div>\n<div class=\"doc_title\">Smt. Jamila Begum Nandini vs Shami Mohammad And Ors. on 7 September, 2007<\/div>\n<div class=\"doc_citations\">Equivalent citations: AIR 2008 All 24<\/div>\n<div class=\"doc_author\">Author: P Srivastav<\/div>\n<div class=\"doc_bench\">Bench: P Srivastav<\/div>\n<\/p>\n<pre><\/pre>\n<p>ORDER<\/p>\n<p>Poonam Srivastav, J.<\/p>\n<p>1. Heard Sri M.D. Singh &#8216;Shekhar&#8217; learned Counsel for the appellant and Sri Ajit Kumar, Advocate, appearing for the respondents.\n<\/p>\n<p>2. This is defendant&#8217;s second appeal arising out of judgment and decree dated 28-10-1997 passed by the IX Additional District Judge in Civil Appeal No. 661 of 1983 setting aside the judgment and decree dated 7-3-1983 passed by II Additional Civil Judge in Original Suit No. 130 of 1980.\n<\/p>\n<p>3. The dispute is in respect of the house No. 88\/85, Chamanganj, Kanpur Nagar. Facts giving rise to the dispute are that the plaintiff filed a suit for declaration that the mortgage deed dated 21-11-1967 and also sale deed dated 21-12-1970 in respect of the disputed property void and consequently cancel the sale deed. In the alternative, the plaintiff claimed redemption of the house in question in the event the mortgage is held to be valid. Father of plaintiff, Wali Mohammad Khan purchased two plots Nos. 55 and 56 in Blcok No. F Sisrnau, Kanpur Nagar and thereafter got the house constructed, which were alloted municipal numbers 88\/85, Chamanganj, Kanpur Nagar.\n<\/p>\n<p>4. The disputed property was gifted to the plaintiff by means of an oral gift and the plaintiff was put in possession. On the very same day, a sale deed was also executed in favour of the plaintiffs mother (wife of Wali Mohammad Khan) in respect of the same property. Fact of oral gift was clearly mentioned in the Will. It is further contended that the plaintiff executed a deed of mortgage in respect of the disputed premises in favour of the defendant for a sum of Rs. 11,000\/- on 21-1 1-1967. The defendant obliquely obtained the sale deed in respect of the same property taking advantage of the old age and illness of the father of plaintiff. It is specifically pleaded that the defendant\/appellant got the sale deed executed fraudulently and without any consideration on 21 -12-1970 and therefore, it was liable to be cancelled. The defendant was never put in possession on the basis of the said usufructuary mortgage or the sale deed. Cause of action arose and, therefore, the suit was instituted.\n<\/p>\n<p>5. The defendant disputed contention of the plaintiff by filing written statement. Case set up by the defendant was that Wali Mohammad Khan was the sole owner of the house in question. Relationship between the plaintiff with his father was strained since before the year 1960 and the plaintiff was turned out from the house. Factum of the gift set up in the plaint was specifically denied. The defendant claimed that she was put in possession after execution of the mortgage and subsequently sale deed was executed in her favour for valid consideration. Contention of the defendant was that the plaintiffs father used to come and stay with the defendant in connection with his treatment as a licensee in one of the Kotharis of the disputed house, where he died in the month of May. 1971. It was only on the request of Smt. Niyaj Bano (daughter) and Smt. Nawabun wife of Wali Mohammad and his son (plaintiff), they were allowed to continue to be in occupation of the Kothari. The defendant permitted to use Kothari and a portion of the common room as a licensee subsequent to death of Wali Mohammad Khan. Since they did not vacate the disputed accommodation, Original Suit No. 2441 of 1971 was instituted by Smt. Jamila against the plaintiff Shami Mohammad, Smt Niyaj Bano and Smt. Nawabun for possession after revoking their license. The suit was decreed ex parte on 22-4-1980. The defendant claimed to have come in possession of the entire house pursuant to the aforesaid decree. The ex parte decree was set aside and the application filed by the plaintiff under Order 9 Rule 13 C.P.C. was allowed. However, according to the appellant, she continued to be in possession after the ex parte decree in the said suit.\n<\/p>\n<p>6. The present suit was instituted by the plaintiff, which was dismissed and appeal was allowed after recording findings that necessity to execute the deed of mortgage arose before late Wali Mohammad Khan was for performing Haj, which admittedly was never performed. The lower appellate Court set aside the judgment of the trial Court for the reason that the trial Court was liable to decide as to whether sale deed dated 21-12-1970 is void and liable to be cancelled and also whether the plaintiff had any right over the house in question and the mortgage deed was actually deed of mortgage in the eyes of law as well as if any consideration was paid at the time of execution of sale deed.\n<\/p>\n<p>7. The trial Court refused to accept the Will for the reason that it does not bear signature of the scribe and the Will was unregistered. The lower appellate Court disagreed with the findings of the trial Court and came to a conclusion that the law settled in case of the Will is that it requires no compulsory registration and mere non-registration of the Will will not render it void. The judgment and decree of the lower appellate Court is challenged in the instant second appeal. The appeal was admitted on the three following substantial questions of law, which are quoted herein below:\n<\/p>\n<p>1. Whether the suit of the plaintiff-respondent was barred by Articles 58 and 59 of the Limitation Act?\n<\/p>\n<p>2. Whether finding recorded by appellate Court that the mortgage deed was not a mortgage deed in the eyes of law is vitiated for want of reasons in arriving to said finding?\n<\/p>\n<p>3. Whether any right would accrue in favour of the plain tiff-respondent on the basis of oral gift of which declaration, confirmation and delivery of possession have not been proved in respect of the property?\n<\/p>\n<p>On perusal of the two judgments and record of the trial Court shows that second and third questions of law relate to the deed of mortgage and oral gift and subsequent sale deed. Finding of the lower appellate Court is that perusal of the mortgage deed, it is evident that it was made in favour of the mortgagees Smt. Jamila and Smt. Sakina.\n<\/p>\n<p>8. Necessity for executing the mortgage has been shown for performing Haj and starting a business. Admittedly, both things did not happen. There is no evidence on record in support of the said contention. The disputed house is three storied building and stipulated period for return of the mortgage amount was ten years. The deed was executed in the year 1967 and in the circumstances. Wali Mohammad Khan had time till the year 1977 to pay back debt, and get the mortgage redeemed. There is no stipulation regarding interest in the deed of mortgage, The period of redemption of mortgage according to Article 61 of the Limitation Act is thirty years, therefore, the period to redeem the instant mortgage was thirty years plus the period of ten years as stipulated in the deed. The lower appellate Court concluded that there was no apparent necessity for executing the sale deed soon after the deed of mortgage was executed and that too only in favour of one of the mortgagees, specially when the period for redemption was not running out.\n<\/p>\n<p>9. On perusal of Judgment of the lower appellate Court, it transpires that there is no evidence that one of the co-mortgagees had surrendered or relinquished her right and, therefore, the sale deed in favour of one of them does not stand to reason. The defendant\/appellant was liable to establish by means of cogent evidence that the sale deed was executed without any coercion or misrepresentation and for a valid and adequate consideration. In fact from the prevailing condition and circumstances, it is evident that the sale deed was only with a view to extinguish a subsisting right to get the mortgage redeeemed by the mortgagor. So far the question of consideration to a tune of Rs. 30,000\/- is concerned the lower appellate Court after examining statement of the expert such as an Engineer and other witnesses came to a conclusion that the huge property could not be sold for a meager amount of Rs. 30,000\/- to a person other than the actual person entitled to it i.e. his wife and children. Besides the lower appellate Court has also taken into consideration that there is an endorsement in the Will itself that Wall Mohammad Khan has gifted the house by means of oral gift. The defendant has also admitted that the wife and daughter were looking after Wali Mohammad Khan till his death, therefore, it is very unnatural that the near and dear ones will be excluded.\n<\/p>\n<p>10. First question of law raised is regarding Articles 58 and 59 of the Limitation Act, which admittedly relates to the period of limitation provided for a suit for declaration. The period prescribed in Articles 58 and 59 is three years. Perusal of plaint of the instant suit shows that it is for declaration of the mortgage deed as void and alternative relief is for redemption of mortgage, A clear undertaking has been given in the plaint itself expressing willingness to pay the mortgage money to the defendant Nos. 1 and 2 and get the property redeemed. The suit was instituted in the year 1978, thus it is within the prescribed period of limitation i.e. thirty years as provided in Article 61 of the Limitation Act. The trial Court dismissed the suit holding it as time barred.\n<\/p>\n<p>11. The trial Court recorded findings that since the suit is for cancellation of the sale deed, therefore, the period of limitation for instituting the suit is only three years. The period of three years have been computed from the date of knowledge. Findings of the trial Court have been specifically set aside by the lower appellate Court, on the question of limitation. Perusal of the plaint shows that relief claimed was for redemption of the mortgage, the period mentioned in the deed of mortgage is of ten years, which was executed in the year 1967. The limitation Act provides the period of redemption as thirty years according to Article 61 of the Limitation Act.\n<\/p>\n<p>12. The lower appellate Court has re-corded findings taking into consideration the period of 30 years as provided in the Limitation Act. The period of ten years was liable to be computed after thirty years, therefore, lower appellate Court came to a conclusion that redemption of mortgage could be done within forty years. However, it is evident that the alternative relief claimed in the plaint is for redemption of mortgage. Admittedly, the mortgage was entered into in the year 1967, therefore, the period for redemption was up till the year 1997. The instant suit was instituted in the year 1987 i.e. much before the period of limitation as come to an end.\n<\/p>\n<p>13. In the circumstances, I am in agreement with the findings of the lower appellate Court that the suit, was instituted within a. period of limitation and the findings of the trial Court that the period of limitation is three years has already been set at naught. Substantial question of law at serial No. 1 on which the instant second appeal was admitted is decided in favour of the plaintiff\/respondents. The deed of mortgage stands redeemed. The plaintiff\/respondents are directed to pay the amount mentioned in the mortgage deed to a tune of Rs. 11,000\/ and the mortgage deed dated 21-11 -1967 registered on 12-1-1968 in Book I Volume 2544 on pages 87 to 91 at Serial No. 825 (Duplicate Nos. 826 and 827 stands re-I deemed.\n<\/p>\n<p>14. So far as question of law Nos. 2 and 3 are concerned, they are also decided in favour of the plaintiffs since the deed of mortgage clearly mentioned oral gift in favour of the plaintiffs. Findings arrived at by the lower appellate Court cannot be up set in the instant second appeal. The appellants are directed to handover vacant possession of the property. Consequent sale deed in favour of the appellant is not reliable and stands canceued. Substantial questions of law raised have already stood answered in the judgment of the lower appellate Court. The second appeal has no force and is dismissed with cost.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Allahabad High Court Smt. Jamila Begum Nandini vs Shami Mohammad And Ors. on 7 September, 2007 Equivalent citations: AIR 2008 All 24 Author: P Srivastav Bench: P Srivastav ORDER Poonam Srivastav, J. 1. Heard Sri M.D. Singh &#8216;Shekhar&#8217; learned Counsel for the appellant and Sri Ajit Kumar, Advocate, appearing for the respondents. 2. This is [&hellip;]<\/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":[9,8],"tags":[],"class_list":["post-76304","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Smt. 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