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Issues Involved:
1. High Court's interference u/s 100 CPC. 2. Proof of mortgage by certified copy of the deed. 3. Admissibility of oral evidence u/s 92(1) of the Evidence Act to prove a document as sham. 4. Admissibility of extracts from account books u/s 34 of the Evidence Act. 5. Omission of vital evidence by lower courts. 6. Denial of mortgagor's title by mortgagee. 7. Relief. Summary: Point 1: High Court's Interference u/s 100 CPC The Supreme Court noted that ordinarily, it does not interfere with findings of fact under Article 136, especially in second appeals u/s 100 CPC. However, interference is warranted if the High Court failed to consider vital evidence or relied on inadmissible evidence, which could have led to a different conclusion. The Court cited precedents like Dilbagrai Punjabi vs. Sharad Chandra and Jagdish Singh vs. Nathu Singh to affirm that non-consideration of relevant evidence or reliance on inadmissible evidence can raise a substantial question of law. Point 2: Proof of Mortgage by Certified Copy The plaintiff filed a certified copy of the mortgage deed and called upon the defendant to produce the original, which the defendant refused. The Court held that filing a certified copy as secondary evidence u/s 65(a) of the Evidence Act was permissible. Since the defendant admitted the execution of the mortgage deed, it was not necessary to call an attesting witness u/s 68 of the Evidence Act. Thus, the mortgage was proved by the certified copy. Point 3: Admissibility of Oral Evidence u/s 92(1) of the Evidence Act The Court held that oral evidence is admissible to prove that a document is a sham, as established in Gangabai vs. Chhabubai. However, the defendant's explanation for the mortgage being a sham'claiming it was collateral security'was found unconvincing. The Court noted that if the plaintiff wanted security, it would have been logical for the defendant to provide it, not the other way around. Thus, the evidence to prove the mortgage as a sham was lacking. Points 4 & 5: Admissibility of Extracts from Account Books and Omission of Vital Evidence The trial and appellate courts relied on extracts from account books (Exs. D2 to D5) to support the defendant's claim of tenancy. The Supreme Court found that these extracts were not admissible u/s 34 of the Evidence Act as the original account books were not produced, nor was their non-production explained. The Court also noted that vital evidence, such as the endorsement of the Sub-Registrar and the Municipal House Tax Register, was not considered by the lower courts. Thus, the finding of tenancy was vitiated. Point 6: Denial of Mortgagor's Title by Mortgagee The appellate court erred in thinking the plaintiff had only a half share in the property. The defendant, having derived his title as a mortgagee from the plaintiff, could not question the plaintiff's title. The Court cited Tasker vs. Mall and other precedents to affirm that a mortgagee cannot deny the title of the mortgagor. Point 7: Relief The Supreme Court set aside the judgments of all three lower courts and decreed the suit for redemption. The appellants were entitled to redeem the usufructory mortgage and get possession of the shop upon depositing Rs. 1000 in the trial court within three months. The defendant was directed to produce the mortgage deed for cancellation and restore possession upon such deposit. Conclusion: The appeal was allowed, and costs were quantified at Rs. 5000 in favor of the appellants.
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