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TMI Blog1999 (11) TMI 863X X X X Extracts X X X X X X X X Extracts X X X X ..... d his 5/6th share therein and gave possession of the whole shop to the defendant for ₹ 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 ₹ 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 execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... every month, towards rent at the rate of ₹ 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 ₹ 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 ₹ 1000/- to plaintiff in cash and ₹ 80/- as rent in advance and ₹ 80/- as miscellaneous expenditure. The Court observed that the plaintiff got the mortgage deed..cuted 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 ₹ 1,000/- whereas the rent of the disputed property was ₹ 80/- per month . The property was very valuable and could not have been mortgaged for ₹ 1000/-. The Municipal Register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the alleged transaction of mortgage was a sham transaction, executed only with aforesaid object. The consideration of ₹ 1000/- was only in the nature of a collateral security or 'pagri'. The plaintiff was and is a rich man and there was no occasion for him to mortgage his property. It was further pleaded The plaintiff thus demanded ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e occupation of Sohanlal as tenant in this shop, for according to the defendant, the monthly rent was ₹ 80/-. The plaintiff submitted that the balance of ₹ 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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