TMI Blog1989 (5) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... or a consideration of ₹ 7,000. On 4.1.1951 the present respondent executed a rent agreement in favour of the present appellant for the building acknowledging her as her landlady @ ₹ 80 per month. In 1963 the mother of the appellant by name of Ramalakshmi Ammal died. In 1974 the respondent filed the suit from which the present appeal arises viz. Suit No. 79 of 1974 against the petitioner appellant for conveyance of the property of the petitioner in favour of the respondent on the ground of a Yadast which was for the first time produced with the suit and is alleged to have been written by the mother of the petitioner on 24.12. 1950 which is marked as Ex. A- 11, in favour of the respondent. This document provided that resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to convey the property or to ask the daughter to convey the suit property in favour of the respondent. The plaintiff respondent was not a party to the sale deed (transferor) but is only a stranger who became a tenant under the rent agreement. 1n fact the sale deed was executed by some other person and therefore this Yadast could not be said to be an agreement to reconvey the property as apparently both the parties to the Yadast one making the commitment to reconvey and another in whose favour the commitment is made, are not parties at all to the original transaction of sale. The learned Additional District Judge also came to the conclusion that this document was not genuine and is a forged document which is invalid and was just got ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as Benami on behalf of the mother or as a nominee of the mother. It appears therefore that a theory of some loan and repayment was invented but the learned Judge of the High Court failed to notice that even if this agreement was genuine it could only be enforced against the executant and not against the present appellant. In fact the theory of loan which was suggested and a case was sought to be made out that the sale deed was not an out and out sale but only as a guarantee for the loan and therefore this Yadast was in substance a document of reconveyance. The learned Judge of the High Court failed to notice that the respondent is not the person who executed the sale deed in favour of the appellant. In fact both the parties to the Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs of fact solely on the basis of one ground that the evidence of the scribe of this document Yadast was not discussed by the lower appellate court but the evidence of the scribe who has chosen to write such a document is worthless and the learned lower appellate court therefore was fight in not relying on this evidence. Section 100 of the Code of Civil Procedure provides as under: Second appeal: (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High court is satisfied that the case involves a substantial question of law. (2) An appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e findings of fact. The only reason on the basis of which the High Court exercised jurisdiction under Section 100 is what has been said by the learned Judge himself: As already stated, its failure to consider the evidence of P.W. 2 as well as its wrong surmise that Ex. B-16 series contained the signatures of Ramalakshmi Ammal, has affected the validity of the finding rendered by it. It is well known that P.W. 2 is the scribe of a document which has been found to be forged by the lower appellate court and therefore a person who can go to the extent of manufacturing a document to suit one of the parties to the litigation, in our opinion, cannot be said to be an independent witness and the lower appellate court was right in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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