R.BANUMATHI,J. - (1.) This appeal arises out of the judgment dated 07.09.2007 passed by the High Court of judicature at Allahabad dismissing the Second Appeal No.135 of 1998 thereby upholding the oral gift by Wali Mohd. in favour of respondent No.1-plaintiff and the Will dated 30.09.1970 and directing the original plaintiff-deceased respondent No.1 to pay the mortgage amount of Rs.11,000/- and holding that the mortgage dated 21.11.1967 registered on 12.01.1968 shall stand redeemed and further directing appellants-defendants to handover the vacant possession of the property.
(2.) Facts giving rise to this appeal are that deceased respondent No.1-Shami Mohd. filed O.S. No. 130 of 1978 against the appellant and one Sakina (deceased predecessor in interest of respondent Nos.2 to 11) for declaration that the mortgage deed dated 21.11.1967 and also sale deed dated 21.12.1970 in favour of appellant-Jamila Begum in respect of the suit house is void and consequently to cancel the sale deed. In the alternative, respondent-plaintiff claimed redemption of the mortgage, in case, that the mortgage is held to be valid.
(3.) Case of the respondent-plaintiff is that Wali Mohd., father of respondent No.1 had purchased two plots and along with respondent No.1 got the disputed house constructed which was gifted to respondent No. 1 through an oral gift on 30.09.1970 and he was put in possession. On the very same day, a Will was also executed in favour of Nababun, step mother of respondent No.1 in respect of certain properties and in the said Will, Wali Mohd. also mentioned about the oral gift. Respondent No.1-plaintiff further averred that though the appellants contend that Wali Mohd. had executed a mortgage deed dated 21.11.1967 in respect of the suit property in favour of the appellant and one Sakina for a sum of Rs.11000/-, Wali Mohd. was not in requirement of money and the alleged mortgage deed was got executed without consideration. Respondent No. 1 has alleged that the appellant was the mistress of Abdul Rahim who is husband of Sakina. It is further averred that the said Abdul Rahim and Wali Mohd. were friends and because of this, the appellant got the said usufructuary mortgage deed executed in her name and Sakina in collusion of Abdul Rahim and as such no money was advanced under the said mortgage deed and the same was obtained by fraud and undue influence.;