Sreenivasa Reddiar vs Muhammed Ibrahim @ Ashik on 20 October, 2010
7.We have anxiously considered the rival
submissions addressed at the bar in the light
of the judicial precedents cited by the
learned counsel before the appellate authority
and the Rent Control Court. Even though the
question whether the Rent Control Court, a
court of limited jurisdiction is competent to
go into a larger question like whether a
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document of title is a sham document cannot be
said to be res integra, in view of the
judgment of this Court in Joseph's case
(supra) we are proceeding on the basis that in
appropriate cases it may be possible for the
Rent Control Court to examine whether a
document of title relied on by the landlord in
respect of the subject-matter of the
proceedings is genuine. The point to be
considered therefore is whether the finding of
the appellate authority that Ext.A6 is not a
sham document is vitiated by any illegality,
irregularity or impropriety. As argued by the
learned counsel for the respondent, the Rent
Control Court found that Ext.A6 is a sham
document relying on two circumstances. The
first circumstance was that the donor had
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earlier instituted two rent control
proceedings unsuccessfully for evicting the
tenant. The second one was that in spite of
the execution of Ext.A6, in the assessment
register maintained by the local authority,
the donor herself continues to be the owner
and no mutation of names had been effected in
that register. Both these reasons, in our
opinion, are not sufficient to justify a
conclusion that Ext.A6 is a sham document. In
order that a document can be described as a
sham document, it will have to be held that
despite the recitals in the document, no title
passed in favour of the donee and that the
document executed is a mere paper document.
While deciding whether a gift deed is sham,
questions as to whether the gift has been
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accepted will assume significance. Smt.Ambika
Devi strained very much to convince us that
Ext.A6 gift was never accepted by the donee
and has not taken effect at all. Before us
also the main plank of Smt.Ambika Devi's
argument was that mutation of names has not
been effected. As already stated, we are not
at all impressed by that argument. Another
argument was that possession was not taken
over and hence the gift deed was not accepted
on behalf of the minor. As for taking over of
possession, it should be noticed that actual
physical possession of the building is with
the revision petitioners themselves as they
are tenants yet to be evicted. But, then
Ext.A6 pertains to other building portions
also. One of the arguments addressed by the
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petitioners before the statutory authorities
below was that the rent control petition is
liable to fail as the landlord petitioner is
in vacant possession of the first floor
portion covered by Ext.A6. This argument, in
our view, cuts at the very root of the
contention that Ext.A6 is a sham document and
implies an admission that, Ext.A6 to the
extent it relates to the above portions, is a
genuine document. As rightly pointed out by
the learned appellate authority, the very
filing of the rent control petition by the
guardian of the donee representing him, itself
is indicative of the acceptance of the gift by
the donee. Apart from that there is still
another strong circumstances which would show
that Ext.A6 is a sham document. As already
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stated, the ground of arrears of rent was also
invoked to evict the revision petitioners.
Even the Rent Control Court passed an order of
eviction on that ground. Perhaps on the basis
of the admission of the revision petitioners
that their status is that of the tenant with
the objective of getting that order evicted
the revision petitioners had already deposited
the arrears of rent. In other words, the
revision petitioners have virtually suffered
an order of eviction on the ground under
Section 11(2)(b) and that was in favour of the
respondent who claims rights only under
Ext.A6.