Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Order 34 rule 7 and 8 of CPC |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Act(s) Referred | Transfer of Property Act, 1882 (4 of 1882) Code of Civil Procedure, 1908 (5 of 1908) Limitation Act, 1963 (36 of 1963) |
Case(s) Referred | Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3 Referred Case 4 Referred Case 5 |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Allowed |
Headnote | 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 evidence, 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 registereddocument 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 – Courtis 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: Formaking 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:Right 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: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. |
Judge | Hon'ble Ms. Justice R. Banumathi |
Neutral Citation | 2018 INSC 1206 |
Petitioner | Jamila Begum (d) Thr. Lrs. |
Respondent | Shami Mohd. (d) Thr. Lrs. & Another |
SCR | [2018] 13 S.C.R. 1253 |
Judgement Date | 2018-12-14 |
Case Number | 1007 |
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