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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 the legal representatives of the

mortgagor, the original plaintiff in suit No.388 of 1981 on

the file of the Sub-Judge, Ist Class, Panipat, who sued for

redemption of the usufructory mortgage dated 15.4.1969 and

for possession. The suit was dismissed by the Trial Court

on 12.2.85, by the first appellate Court (appeal 47/13 of

1985) on 2.11.85 and by the second appellate Court ( RSA.

NO. 797 of 1986) on 6.10.86 on the ground that

notwithstanding the fact that the defendants executed the

registered mortgage deed on 15.4.1969, the real relationship

between the parties was as landlord and tenant and that the

defendant could not be evicted except under the Rent Control

law.

The plaintiff's case was that he mortgaged the entire

shop and his 5/6th share therein and gave possession of the

whole shop to the defendant for Rs.1,000/-. Plaintiff sued

for redemption and recovery of possession from the defendant

on the abovesaid registered usufructory mortgage. Interest

payable by the mortgagor was to be set off towards the

profits arising from use of property by the mortgagee. The

mortgage deed stated that on redemption possession had to be

delivered back to the mortgagor. On 1.2.1981 the plaintiff

demanded production of the deed and possession on

redemption. The defendant did not comply. Therefore, the

present suit was filed.

The defence was that there was no relationship of

mortgagor and mortgagee between the parties but that the

relationship was as landlord and tenant. Defendant,

however, admitted that the shop was in exclusive management

of plaintiff at the time possession was given to him. The

plaintiff allegedly leased to the defendant at Rs.80/- P.M.

and plaintiff had been receiving at that rate. These

payments, it was said, were proved by the accounts of the

defendant. The motive for executing the deed was stated as

follows:

"The plaintiff, further demanded that the defendant

will have to execute the mortgage deed by way of collateral

security in order to guarantee that the shop will be vacated

by the defendant whenever demanded by the plaintiff. In

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fact, the said mortgage deed was to circumvent and to bye

pass the provisions of the Rent Control Legislation. The

alleged transaction of mortgage was only a sham transaction

executed only with the aforesaid object. The consideration

of Rs.1000/- was only in nature of collateral security or

pagri."

It was also alleged that the plaintiff was a man of

substance and very rich and there was indeed no occasion for

him to mortgage the same for a petty sum. The plaintiff is

alleged to have "demanded Rs.1000/- by way of security and

asked the defendant to thumb mark some writing to arm the

plaintiff with a right to get the shop vacated according to

his sweet will". The defendant was in dire necessity of the

shop and had to agree on the said condition. The defendant,

therefore, paid Rs.1000/- and incurred Rs.80/- towards

expenses. The alleged mortgage was not the real transaction

but it was a clever device to bye-pass the provisions of the

Rent Act". The suit of the plaintiff was liable to be

dismissed. The trial Court considered the question whether

the mortgage was proved. It initially observed that the

"plea of the learned counsel for the defendant that the

plaintiff was a rich man and there is no need to mortgage

the shop, ...., cannot be accepted. Even if the plaintiff

is rich person, he can mortgage the suit property". The

plaintiff was not bound to plead that he was suffering

losses but he could lead evidence. Having so observed, the

trial Court stated that the defendant "produced his books of

account" to show that he was paying various amounts to the

plaintiff every month, ranging from Rs.20/- to Rs.80/-,

"though it is not mentioned as to why the defendant is

paying the said amount to the plaintiff". On these

accounts, the plea of payment of rent was founded. The

trial Court then made an observation contrary to what it

said earlier, as follows:

"the learned counsel for the defendant contended that

the plaintiff is a well to do man and no person would

mortgage his shop with the defendant for petty amount of Rs.

1000/-. I find force in this contention, and plaintiff is

not a poor man."

The Court then concluded that the defendant was paying

to plaintiff some amount every month, towards "rent" at the

rate of Rs.80/- and that the mortgage was a sham

transaction. The suit was, therefore, dismissed.

On appeal, the appellate Court proceeded on the basis

that the mortgage was proved. It confirmed the decree of

the trial Court and observed that the plaintiff had only a

half share and could not have mortgaged the share of his

wife though plaintiff might have been in management, that

the defendant's "accounts" showed he had been paying Rs.80/-

P.M. to plaintiff though no receipt was issued or obtained.

This was for the period 16.4.69 to 12.3.81. The first entry

showed defendant paid Rs.1000/- to plaintiff in cash and

Rs.80/- as rent in advance and Rs.80/- as miscellaneous

expenditure. The Court observed that the plaintiff "got the

mortgage deed...executed from defendant so that he could get

the disputed shop vacated at his sweet will". The Court

also observed: "Needless to say that the disputed shop was

mortgaged for a petty sum of Rs.1,000/- whereas the rent of

the disputed property was Rs.80/- per month". The property

was very valuable and could not have been mortgaged for

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Rs.1000/-. The Municipal Register showed respondent was

occupying the property. Rental value was assessed at

Rs.824/-. On the above reasoning, it was held that the

mortgage was a sham document and that the defendant was in

reality a tenant. The appeal was dismissed.

The High Court dismissed the Second Appeal without

reasons. It is these judgments that are questioned in this

appeal.

We have heard the appellants in person and the learned

counsel for the respondents. The following points arise for

consideration: (1) Whether the High Court can interfere

under section 100 CPC ( as mentioned in 1976) with the

findings of fact arrived at by the lower appellate Court if

vital evidence which could have led to a different

conclusion was omitted or if inadmissible evidence was

relied upon which if omitted, could have led to a different

conclusion? (2) Whether on the facts of the case, the

mortgage was proved by the plaintiff by production of a

certified copy of the deed? (3) Whether Section 92(1) of

the Evidence Act could be a bar for proving a document to be

a sham document? (4) Whether the Exs. D2 to D5 were only

extracts from accounts books and could not be treated as

account books for purposes of Section 34 of the Evidence Act

and were not admissible? (5) Whether the lower Courts had

omitted vital evidence from consideration? (6) Whether the

mortgagee who got possession of the entire property under

the deed of mortgage could be permitted to deny the title of

the mortgagor either wholly or partly? (7) What relief?

POINT 1:

Ordinarily, this Court does not go into findings of

fact in exercise of its jurisdiction under Article 136 of

the Constitution of India, particularly in appeals against

judgment in Second Appeals decided by the High Courts under

section 100 of the Code of Civil Procedure. But, in certain

exceptional cases, this Court will not hesitate to

interfere, if interference is called for and if the High

court has failed to interfere under section 100. After

hearing the appellants in person and the learned counsel for

the respondent, we are of the view that this is one of those

exceptional cases in which interference is called for even

within the narrow parameters of section 100 CPC.

Now under section 100 CPC, after the 1976 amendment,

it is essential for the High Court to formulate a

substantial question of law and it is not permissible to

reverse the judgment of the first appellate Court without

doing so.

There are two situations in which interference with

findings of fact is permissible. The first one is when

material or relevant evidence is not considered which, if

considered would have led to an opposite conclusion. This

principle has been laid down in a series of judgments of

this Court in relation to section 100 CPC after the 1976

amendment. In Dilbagrai Punjabi vs. Sharad Chandra [1988

Supple. SCC 710], while dealing with a Second Appeal of

1978 decided by the Madhya Pradesh High Court on 20.8.81,

L.M.Sharma, J.(as he then was) observed that

"The Court (the first appellate Court) is under a duty

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to examine the entire relevant evidence on record and if it

refuses to consider important evidence having direct bearing

on the disputed issue and the error which arises as of a

magnitude that it gives birth to a substantial question of

law, the High Court is fully authorised to set aside the

finding. This is the situation in the present case."

In that case, an admission by the defendant-tenant in

the reply notice in regard to the plaintiff's title and the

description of the plaintiff as `owner' of the property

signed by the defendant were not considered by the first

appellate Court while holding that the plaintiff had not

proved his title. The High Court interfered with the

finding on the ground of non-consideration of vital evidence

and this Court affirmed the said decision. That was upheld.

In Jagdish Singh vs. Nathu Singh [1992 (1) SCC 647], with

reference to a Second Appeal of 1978 disposed of on

5.4.1991. Venkatachaliah, J. (as he then was) held:

"where the findings by the Court of facts is vitiated

by non-consideration of relevant evidence or by an

essentially erroneous approach to the matter, the High Court

is not precluded from recording proper findings."

Again in Sundra Naicka Vadiyar vs. Ramaswami Ayyar

[1995 Suppl. (4) SCC 534], it was held that where certain

vital documents for deciding the question of possession were

ignored - such as a compromise, an order of the revenue

Court - reliance on oral evidence was unjustified. In yet

another case in Mehrunissa vs. Visham Kumari [1998 (2) SCC

295] arising out of Second appeal of 1988 decided on

15.1.1996, it was held by Venkataswami, J. that a finding

arrived at by ignoring the second notice issued by the

landlady and without noticing that the suit was not based on

earlier notices, was vitiated and the High Court could

interfere with such a finding. This was in Second Appeal of

1988 decided on 15.1.1996. The second situation in which

interference with findings of fact is permissible is where a

finding has been arrived at by the appellate Court by

placing reliance on inadmissible evidence which if it was

omitted, an opposite conclusion was possible. In Sri Chand

Gupta vs. Gulzar Singh [1992 (1) SCC 143], it was held that

the High Court was right in interfering in Second Appeal

where the lower appellate Court relied upon an admission of

a third party treating it as binding on the defendant. The

admission was inadmissible as against the defendant. This

was also a Second Appeal of 1981 disposed of on 24.9.1985.

In either of the above situations, a substantial question of

law can arise. The substantial question of law that arises

for consideration in this appeal is: "whether the courts

below had failed to consider vital pieces of evidence and

whether the Courts relied upon inadmissible evidence while

arriving at the conclusion that the mortgage was sham and

that there was no relationship between the plaintiff and the

defendant as mortgagor and mortgagee but the real

relationship was as landlord and tenant? Point 1 is decided

accordingly. POINT 2: We shall first deal with the proof

of the certified copy of the deed of mortgage. So far as

the mortgage deed is concerned, the plaintiff filed a

certified copy and called upon the defendant to file the

original. The defendant refused to do so. The plaintiff,

therefore, proceeded to file the certified copy as secondary

evidence under sub-clause (a) of section 65 of the Evidence

Act. This was certainly permissible. The mortgage is a

document required to be attested by two attestors under

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section 59 of the Transfer of Property Act and in this case

it is attested by two attestors. The mode of proof of

documents required to be attested is contained in sections

68 to 71 of the Evidence Act. Under section 68, if the

execution of a document required to be attested is to be

proved, it will be necessary to call an attesting witness,

if alive and subject to the process of Court and is capable

of giving evidence. But in case the document is registered

- then except in the case of a will - it is not necessary to

call an attesting witness, unless the execution has been

specifically denied by the person by whom it purports to

have been executed. This is clear from section 68 of the

Evidence Act. It reads as follows:

"Section 68: If a document is required by law to be

attested, it shall not be used as evidence until one

attesting witness atleast has been called for the purpose of

proving its execution, if there be an attesting witness

alive, and subject to the process of the Court and capable

of giving evidence:

Provided that it shall not be necessary to call an

attesting witness in proof of the execution of any document,

not being a will, which has been registered in accordance

with the provisions of the Indian Registration Act, 1908,

unless its execution by the person by whom it purports to

have been executed is specifically denied."

In the present case, though it was stated in the

written statement that there was no relationship between the

parties as mortgagor and mortgagee, the defendant admitted

in his additional pleas in the same written statement that

the mortgage deed was executed but he contended that it was

executed to circumvent the Rent Control legislation. In

fact, in his evidence as DW2 the defendant admitted the

execution of the mortgage. It must therefore be taken that

there was no specific denial of execution. Hence it was not

necessary for the plaintiff to call the attestor into the

witness box, this not being a will. The plaintiff could

therefore not be faulted for not examining any of the

attestors. Hence the mortgage stood proved by the certified

copy. The Courts below were right in accepting that the

deed was proved. Point 2 is decided in favour of

plaintiffs- appellants.

POINT 3:

The point here is whether oral evidence is admissible

under Section 92(1) of the Evidence Act to prove that a

document though executed was a sham document and whether

that would amount to varying or contradicting the terms of

the document. The plea of the defendant in the written

statement was that mortgage deed though true was a sham

document not intended to be acted upon and that it was

executed only as a collateral security. It was pleaded that

the plaintiff demanded that a mortgage deed be executed by

defendant as "collateral security in order to guarantee that

the shop will be vacated by the defendant whenever demanded

by the plaintiff" and that this was done to circumvent the

rent control law. It was said that the alleged transaction

of mortgage was a sham transaction, executed only with

aforesaid object. The consideration of Rs.1000/- "was only

in the nature of a collateral security or 'pagri'."

The plaintiff was and is a rich man and there was no

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occasion for him to mortgage his property. It was further

pleaded

"The plaintiff thus demanded Rs.1000/- from the

defendant by way of security and asked the defendant to

thumbmark some writing to arm the plaintiff with a right to

get the shop vacated according to his sweet will. The

defendant who was in dire necessity of the shop, had to

agree on the said condition put forward by the plaintiff".

This Court has held in Gangabai Vs. Chhabubai (1982

(1) SCC 4) that in spite of Section 92(1) of the Evidence

Act, it is permissible for a party to a deed to contend that

the deed was not intended to be acted upon but was only a

sham document. The bar arises only when the document is

relied upon and its terms are sought to be varied and

contradicted. In the above case, it was observed by D.A.

Desai J as follows:

"the bar imposed by Section 92(1) applies only when a

party seeks to rely upon the document embodying the terms of

the transaction and not when the case of a party is that the

transaction recorded in the document was never intended to

be acted upon at all between the parties and that the

document is a sham. Such a question arises when the party

asserts that there was a different transaction altogether

and what is recorded in the document was intended to be of

no consequence whatever. For that purpose, oral evidence is

admissible to show that the document executed was never

intended to operate as an agreement but that some other

agreement altogether, not recorded in the document, was

entered into between the parties".

But the question is whether on the facts of this case,

the reason given by the defendant in his evidence for

treating the mortgage as a sham document, can be accepted.

The reason given by the defendant appears to us rather

curious. One can understand a debtor incurring a debt and

executing a deed as collateral security. There is no such

situation here. Further, if it is a deed of collateral

security by defendant, then the defendant would have had to

execute a deed in favour of the plaintiff and not vice-

versa. Here the plaintiff-owner has mortgaged his shop to

the defendant, as security. The plea and evidence of

collateral security offered by the defendant appears to us

not to fit into a situation where the plaintiff has executed

the mortgage. Obviously, if the plaintiff wanted to secure

something by way of an additional security from the

defendant, the normal course would have been to ask the

defendant to give such a security and not for the plaintiff

to execute a mortgage. Thus the reason mentioned and

evidence given by the defendant as to why a sham document

was executed falls to the ground.

Under Point 3 we therefore hold that though evidence

is admissible under Section 92(1) to prove that the mortgage

is a sham document, such evidence is lacking in this case.

Point 3 is decided against the defendant. Points 4 & 5: To

accept the plea of lease set up by the defendant, the trial

court and the first appellate Court, relied upon the entries

Ex. D2 and Exs. D3 to D5 relating to the payment of

"rents" by defendant as recorded in the 'account books'

allegedly maintained by the defendant in the regular course

of business.

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The Courts below, in our view, failed to notice that

no account book or books were ever produced by the defendant

in the Court. Exs.D2 to D5 filed into Court were only

'extracts' of the defendants' account books. The extracts

were filed two years after the filing of the written

statement and one and a half year after the settlement of

issues, without any explanation for the delay. The

genuineness of the extracts was challenged seriously in the

cross-examination of the defendant who was examined as DW 2.

It was specifically contended by the plaintiff ( see p.13 of

the appellant's notes of arguments in the appellate court)

that the "account books were never produced". The

plaintiff's plea against the admissibility of Ex. D2 and

Exs. D3 to D5 in the trial Court was rejected by the said

Court and a revision under Section 115 CPC was filed by

plaintiff in the High Court. That was dismissed by the High

Court saying that there was no "case" decided within the

meaning of the word 'case decided' in Section 115 CPC. The

plaintiff therefore questioned the admissibility of Exs.D2

to D5 in the first Appeal. In our opinion, it was

permissible for him to raise the said question in the first

appeal in view of Section 105 C.P.C. In the light of what

was stated by the plaintiff in the memo of first appeal in

the appellate Court, it cannot be said that the 'accounts"

produced by defendant were not objected to by the plaintiff.

Ex.D2 is an extract of accounts. So are Exs. D3 to

D5. This is clear from para 21 of the judgment of the trial

Court. That para reads as follows:

"The plaintiff made the contention that the defendant

relied upon his account books to prove that he is a tenant

of the shop in dispute under the plaintiff. He made the

statement that the payment of the rent to the plaintiff is

entered in his regular kept account book but strange enough,

he had not produced at any stage of the proceedings an

extract of account books which are Ex.D 3 to D 5 and this is

wrong to state that the defendant has not produced the

account books to show that he has 'not' been paying the rent

to the plaintiff. The plaintiff also contended that Ex.D2

extract of the account books has been produced and which

could not be liable to be accepted. Whatsoever, the

document has been admitted without objection. It is liable

to be considered while deciding issues".

Unfortunately, in a latter passage, the trial Court

referred to these extracts as 'account books' and applied

Section 34 of the Evidence Act. The Court forgot that these

were extracts of alleged accounts.

Now under Section 34 of the Evidence Act, entries in

"account books" regularly kept in the course of business are

admissible though they by themselves cannot create any

liability. Section 34 reads as follows:

"Section 34: Entries in books of account when

relevant - Entries in books of account, regularly kept in

the course of business, are relevant whenever they refer to

a matter into which the Court has to inquire, but such

statements shall not alone be sufficient evidence to charge

any person with liability".

It will be noticed that sanctity is attached in the

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law of evidence to books of account if the books are indeed

"account books i.e. in original and if they show, on their

face, that they are kept in the "regular course of

business". Such sanctity, in our opinion, cannot attach to

private extracts of alleged account books where the original

accounts are not filed into Court. This is because, from

the extracts, it cannot be discovered whether the accounts

are kept in the regular course of business or if there are

any interpolations or whether the interpolations are in a

different ink or whether the accounts are in the form of a

book with continuous page-numbering. Hence, if the original

books have not been produced, it is not possible to know

whether the entries relating to payment of rent are entries

made in the regular course of business.

It is only in the case of Bankers' Books Evidence Act,

1891 that certified copies are allowed or the case must come

under Section 65(f) or (g) of the Evidence Act. Private

extracts of accounts in other cases can only be secondary

evidence and unless a proper foundation is laid for adducing

such secondary evidence under Section 65 or other provisions

of the Evidence Act, the privately handwritten copies of

alleged account books cannot by themselves be treated as

secondary evidence.

In the recent judgment of this Court in Central Bureau

of Investigation Vs. V.C. Shukla ( 1998(3) SCC 410), it

has been laid down that for purposes of Section 34, 'Book'

ordinarily means a collection of sheets of paper or other

material, blank, written or printed, fastened or bound

together so as to form a material whole. Loose sheets of

paper or scraps of paper cannot be termed as 'book' for they

can be easily detached and replaced. It has also been held

that the rationale behind admissibility of parties' books of

account as evidence is that the regularity of habit, the

difficulty of falsification and the fair certainty of

ultimate detection give them in a sufficient degree, a

probability of trustworthiness." When that is the legal

position, extracts of alleged account books, in our view,

were wrongly treated as admissible by the courts below

though the original books were not produced for comparison

nor their non-production was explained nor the person who

had prepared the extracts was examined. Therefore, the

private extracts of alleged account books like Exs.D2 to D5

are not admissible. The principal evidence relating to the

alleged payment of rent disappears and the foundation for

the alternative plea of tenancy crumbles. This is one

reason why the finding relating to tenancy is vitiated being

based on inadmissible evidence. We shall next refer to the

vital evidence or facts relating to the mortgage which have

not been considered by the Courts below. The defendant

admitted in his evidence as DW2 that the mortgage deed was

executed by him. The endorsement of the Sub-Registrar shows

that the money of Rs.1000/- was paid as mortgage money.

There is a presumption of the correctness of the endorsement

made by the Sub-Registrar under Section 58 of the

Registration Act (vide Baidyanath Singh vs. Jamal Bros.

AIR 1924 PC 48), it can be rebutted only by strong evidence

to the contrary.

Another important aspect is that in the copy of the

Municipal House Tax Register Ex.D1, the defendant, Sohan Lal

was shown as 'occupier' of a shop just as certain others

like Ganpat, Omprakash Niranjan were also shown as

occupiers. Description as occupiers does not necessarily

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imply occupation only as tenants. According to DW 3, the

rent paid by Om Prakash was Rs.40/- p.m. and by Niranjan

was Rs.22.50. The plaintiff submitted in the first

appellate Court that the annual value of both thus comes to

Rs.40 + Rs.22.50 = (Rs.62.50) x 12=Rs.750/-. The total

annual value of the shop having been fixed at Rs.824 in

Ex.D1, that leaves only a balance of Rs.74 ( i.e.

Rs.824-Rs.750). The plaintiff submitted in his memo of

arguments before the appellate Court that the balance of

annual rental value of Rs.74/- could not relate to the

occupation of Sohanlal as tenant in this shop, for according

to the defendant, the monthly rent was Rs.80/-. The

plaintiff submitted that the balance of Rs.74 could be

attributed only to the occupation of Ganpat. The above

aspect was also not kept in view by the lower Courts.

One other important point is that the term of the

mortgage deed is that the defendant is to be in possession

and the interest payable by the plaintiff as mortgagor is to

be set off against the 'profit' realised by the mortgagor's

occupation of the shop. There is no recital that it is to

be set off against any "rent" payable by the defendant.

We have already pointed out that in regard to whether

the plaintiff was rich enough so as not to be in need to go

in for a mortgage, there are conflicting findings by the

trial Court. The plaintiff's acute need for money is proved

by the fact that he incurred losses in regard to his

partnership with the Haryana Woollen Mills. This aspect,

according to the plaintiff (as stated in his written

submissions) is borne out by the reported judgment of this

Court in L.Iswar Dass Vs. The Haryana and General Woollen

Mills Ltd. ( AIR 1974 SC 592) to which plaintiff was a

party. The said judgment was referred to as evidence of the

plaintiff's losses. This aspect was also not considered by

the lower Courts.

In the result, we hold that the extracts from accounts

are not "account books" falling within Section 34 of the

Evidence Act and are inadmissible. We also hold that vital

material was omitted from consideration by the Courts.

Thus, the finding in regard to tenancy is liable to be set

aside. Points 4 and 5 are held in favour of the plaintiff.

POINT 6:

The appellate Court, in our view, went wrong in

thinking that the plaintiff had only a half share in the

property. The defendant's title was a derivative title as

mortgagee. Having came into possession of the whole

property as a mortgagee from the plaintiff, treating

plaintiff as full owner it was not open to the defendant to

question the title of the plaintiff. In Tasker Vs. Mall (

3 My. 8 Cr.63 ( 5 L.J. Ch 321), Lord Cottenham said: "To

him ( mortgagee) it is immaterial, upon repayment of the

money, whether the mortgagor's title was good or bad. He is

not at liberty to dispute it any more than a tenant is at

liberty to dispute his landlord's title". A usufructory

mortgagee cannot deny the title of his mortgagor. Nor can

he set up adverse possession unless he actually leaves the

holding and re- enters under a different status ( Jainandan

Vs. Umrao) ( AIR 1929 All.305) and (Sriram Vs. Thakur) (

AIR 1965 All. 223)

Point 7:

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The judgments of all the three courts therefore are

set aside. The suit is decreed for redemption as follows.

The appellants are entitled to redeem the usufructory

mortgage and get possession of the suit shop from the

defendant, if the appellants deposit in the trial Court,

within three months from today, the sum of Rs.1000/-. There

is no need to deposit any interest inasmuch as according to

the deed, the defendant was to be in possession and interest

was to be set off against the occupation of the shop. We

direct that on such deposit of Rs.1000/-, the defendant will

produce the mortgage deed into Court for cancellation. In

case he does not produce the deed, within the said period,

it will be deemed that the mortgage is cancelled. On such

deposit of Rs.1000/- as aforesaid, the defendant shall

restore possession to the appellants. On such restoration

of possession, defendant shall be entitled to withdraw the

sum of Rs.1000/-. In case the defendant does not surrender

possession as aforesaid, it will be open to the appellants

to seek possession by way of execution.

The appeal is allowed. Costs of appellants are

quantified at Rs.5,000/-.