Madras High Court
D.Ananda Moorthy vs P.Chandrakala on 9 March, 2010
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09/03/2010 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SA(MD)No.500 of 2008 D.Ananda Moorthy .. Appellant/Defendant Vs P.Chandrakala .. Respondent/Plaintiff Second Appeal filed under Section 100 of CPC against the Judgment and decree dated 27.12.2007 passed in Appeal Suit No.4 of 2006 by the Additional District Court (Fast Track Court-II), Thoothukudi confirming the Judgment and decree dated 04.10.2005 passed in Original Suit No.224 of 2000 by the Sub Court, Thoothukudi. !For Appellant ... Mr.K.Srinivasan ^For Respondent ... Mr.S.S.Sundar :JUDGMENT
This second appeal has been directed against the concurrent Judgments passed in Original Suit No.224 of 2000 by the Sub Court, Thoothukudi and in Appeal Suit No.4 of 2006 by the Additional District Court (Fast Track Court-II), Thoothukudi.
2. The respondent herein as plaintiff has instituted Original Suit No.224 of 2000 on the file of the trial Court praying to pass a decree of specific performance in her favour, wherein the appellant has been shown as sole defendant.
3. The material averments made in the plaint may be stated like thus:
The property mentioned in the schedule absolutely belongs to the defendant and he agreed to sell the same to the plaintiff for a sum of Rs.1,20,000/-. Both the plaintiff and defendant have executed the suit sale agreement dated 25.06.1997. On the date of execution of the suit sale agreement, the defendant has received Rs.1,00,000/-. As per the terms of the suit sale agreement, the plaintiff has to pay balance of sale consideration within two years from the date of agreement. The defendant has delivered original title deed relating to the suit property mentioned in the schedule. The plaintiff is always ready and willing to perform her part of contract. Despite of demand made by the plaintiff on several occasions, the defendant has not come forward to execute a sale deed in favour of the plaintiff and ultimately the plaintiff has chosen to issue a notice dated 20.05.2000 and a corrigendum dated 05.06.2000. Even after receipt of the same, the defendant has not come forward to execute a sale deed in favour of the plaintiff. But he has given a reply notice dated 21.06.2000 containing false allegations. It is false to say that the suit sale agreement has come into existence on the basis of a loan transaction mentioned in the reply notice.
Under the said circumstances, the present suit has been instituted for the relief sought for in the plaint.
4. In the written statement filed on the side of the defendant, it is averred that the defendant has never agreed to sell the property mentioned in the schedule in favour of the plaintiff. The husband of the plaintiff is a money lender. The defendant has approached him for getting a loan and he demanded to execute the suit sale agreement and the suit sale agreement has been executed as a security for the loan amount received by the defendant. The defendant has paid Rs.1,00,000/- to the husband of the plaintiff and after some time, he has paid Rs.20,000/- and he demanded return of the suit sale agreement. But the husband of the plaintiff has refused and subsequently instituted the present suit on false grounds and there is no merit in the suit and the same deserves dismissal.
5. On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has decreed the suit as prayed for. Against the Judgment and decree passed by the trial Court, the defendant as appellant has preferred Appeal suit No.4 of 2006 on the file of the first appellate Court.
6. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal and thereby confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments passed by the Courts below, the present second appeal has been preferred at the instance of the defendant as appellant.
7. As agreed by the learned counsels appearing for both sides, the present second appeal is disposed of on merits at the stage of admission.
8. On the side of the appellant/defendant, the following substantial questions of law have been raised for consideration:
(i) Whether the findings of the Courts below are vitiated by failure to consider the evidence of PW3 and DW3 corroborated by Ex.A1 establishing that Ex.A1 is not indented to be an agreement of sale but it is only a security for loan advance?
(ii) Whether the Courts below right in not drawing the legal reference on the proved and admitted facts with reference to Ex.A1 the period referred therein and evidence of PW1 that the respondent does not possess any amount and the evidence of PW3 and DW3 regarding the money lender business of the respondent husband?
9. During the course of argument, on the side of the appellant/defendant the following additional substantial question of law has been raised for consideration:
"Whether the Courts below are right in law in decreeing the suit without adverting the respondent as plaintiff has not adduced any iota of evidence to substantiate that from the date of agreement till the date of suit she was ready and willing to perform the contract in accordance with section 16 of Specific Relief Act even assuming without admitting the agreement under Ex.A1 is an agreement intended for sale of the suit schedule property?"
10. The crux of the case of the plaintiff is that the property mentioned in the schedule is the absolute property of the defendant and he agreed to sell the same to the plaintiff for a sum of Rs.1,20,000/- and both of them have entered into an agreement of sale dated 25.06.1997 and on the date of agreement of sale, the defendant has received Rs.1,00,000/- and agreed to receive the balance of consideration within a period of two years and to execute a sale deed in favour of the plaintiff and despite of repeated demands made by the plaintiff, the defendant has not come forward to execute a sale deed in favour of the plaintiff and therefore, the plaintiff has given a notice dated 20.05.2000 and a corrigendum dated 05.06.2000 to the defendant and even after receipt of the same, the defendant has failed to execute a sale deed in favour of the plaintiff and he has given a reply notice dated 21.06.2000 containing false allegations and therefore, the plaintiff has come forward with the present suit for the relief sought for in the plaint.
11. The specific case of the defendant is that the husband of the plaintiff is a money lender and the defendant has approached him for getting a loan and he directed the defendant to execute a sale agreement and accordingly the suit sale agreement has been executed as a security for the loan received from the husband of the plaintiff and subsequently settled the entire loan amount and therefore, the plaintiff is not entitled to get the relief sought for in the plaint.
12. The Courts below have concurrently rejected the contention urged on the side of the defendant. Under the said circumstances, the initial factual aspect that arises for consideration in the present second appeal is as to "whether the defendant has established that the suit sale agreement is nothing but a security for the loan alleged to have been received by him from the husband of the plaintiff?"
13. The learned counsel appearing for the appellant/defendant has contended with great vehemence that the husband of the plaintiff is a money lender and he used to advance loans to others by way of getting sale agreements and only on the basis of that practice, the suit sale agreement has become emerged and in fact, the defendant has received a sum of Rs.1,20,000/- from the husband of the plaintiff and as per his direction, the suit sale agreement has been executed as a security for the loan received by the defendant and further, on the side of the defendant it has been clearly established that the husband of the plaintiff is a money lender and further it has been clearly established that the defendant has entirely discharged the loan received by him from the husband of the plaintiff and the Courts below have failed to look into the contention urged on the side of the defendant and therefore, the concurrent Judgments passed by the Courts below are liable to be interfered with.
14. The suit sale agreement has been marked as Ex.A1. The specific case of the plaintiff is that the defendant has voluntarily executed Ex.A1 and thereby received Rs.1,00,000/- by way of an advance. But the specific contention urged on the side of the defendant is that Ex.A1 is not a genuine sale agreement and the same has come into existence as a security for the loan received by him from the husband of the plaintiff. Since a specific defence has been taken on the side of the defendant to the effect that Ex.A1 is not a genuine sale agreement and the same has come into existence as a security for the loan received by him, the entire burden lies upon him to prove that Ex.A1 is nothing but a security for the loan alleged to have been received by him from the husband of the plaintiff.
15. The learned counsel appearing for the appellant/defendant throughout his argument has contended that the appellant/defendant has received a sum of Rs.1,00,000/- from the husband of the plaintiff and he subsequently discharged the same. The defendant has been examined as DW1. During the course of cross examination he has categorically admitted that on the date of execution of Ex.A1 he has received Rs.1,00,000/-. Further he has stated that he cannot recollect the place where he received the same.
16. In the written statement filed on the side of the defendant, in paragraph-4 it has been specifically stated that the defendant has given Rs.1,00,000/- to the husband of the plaintiff and after two days he paid Rs.20,000/- to him. Therefore, from the averments made in the written statement, the Court can easily cull out that the specific case of the defendant is that he received an amount of Rs.1,20,000/-. But he has given in his evidence to the effect that he has received Rs.1,00,000/-. From the clear admission given by the defendant, the Court can easily come to a conclusion that Ex.A1 is a sale agreement. If really the defendant has received Rs.1,20,000/- from the husband of the plaintiff in pursuance of the alleged loan transaction, definitely he would have stated in his evidence that he received Rs.1,20,000/-. But as pointed out earlier, his specific evidence is that he received Rs.1,00,000/- on the date of execution of Ex.A1. Therefore, the evidence given by the defendant itself clearly paved the way for coming to a conclusion that the entire defence taken on the side of the defendant is incorrect.
17. The learned counsel appearing for the appellant/defendant has advanced the above limb of argument on the basis of Exs.B1 to B4 as well as the evidence of DWs.2 to 4. Ex.B1 is a cancellation of sale agreement dated 18.09.2001 entered into in between one Arunachalam and the husband of the plaintiff viz., Kottalam. Ex.B2 is a small piece of paper alleged to have been written by the husband of the plaintiff. Ex.B3 is a pocket notebook alleged to have been maintained by DW2 viz., Chinnadurai. Ex.B4 is an expert report alleged to have been prepared by DW4.
18. The specific case of the defendant is that the defendant has received a sum of Rs.1,20,000/- from the husband of the plaintiff and he subsequently discharged the same. Only for proving the alleged loan transaction, Exs.B2 to B4 have been filed and DWs.2 to 4 have been examined.
19. In Exs.B2 and B3, signature of the husband of the plaintiff is not found place. In order to prove the letters found in Ex.B2, the role of DW4 has been utilised and her specific evidence is that the letters found in Ex.B2 are identical with the admitted letters of the husband of the plaintiff. Further, during the course of cross examination she would say that she has not obtained necessary degree in the field of handwriting. Even assuming without conceding that DW4 is a competent witness to speak about handwriting and she has filed Ex.B4 report correctly, the Court has to look into as to whether Ex.B4 is a conclusive or substantive evidence so as to prove the contention urged on the side of the defendant.
20. It is an everlasting principle of law that an opinion given by an expert is not a conclusive proof nor substantive evidence and at the most, the Court can come to a conclusion that it is nothing but an opinion. Therefore, the evidence given by DW4 as well as Ex.B4 are not at all sufficient to make out the defence put forth on the side of the defendant.
21. Now the Court has to look into the remaining part of the evidence available on record. On the side of the defendant, as stated earlier Ex.B3 has been filed. Ex.B3 is nothing but a pocket notebook alleged to have been maintained by DW2, wherein it is stated that some amounts have been given to the husband of the plaintiff. But as taunted earlier, no signature is found in Ex.B3. If really as per the direction of the defendant, DW2 has given certain amounts to the husband of the plaintiff, definitely Ex.B3 must contain his signature. But no signature is found. Therefore, Ex.B3 coupled with the evidence of DW2 is not at all sufficient to accept the defence taken on the side of the defendant.
22. On the side of the defendant it has been established that Ex.B1 is nothing but a cancellation deed of sale agreement entered into in between one Arunachalam and the husband of the plaintiff. Simply because Ex.B1 has come into existence, the court cannot come to a conclusion that Ex.A1 is nothing but a security for the loan alleged to have been received by the defendant.
23. It has already been pointed out that throughout the written statement it has been clearly stated that the defendant has received Rs.1,20,000/- from the husband of the plaintiff and therefore Ex.A1 is not a sale agreement. But in the evidence of the defendant it is clearly stated that he received only Rs.1,00,000/- and that itself has completely debilitated the entire defence taken on the side of the defendant.
24. Now the Court has to look into the contention urged on the side of the plaintiff. The specific contention urged on the side of the plaintiff is that the defendant has voluntarily executed Ex.A1 on 25.06.1997 and thereby agreed to sell the property mentioned in the schedule for a sum of Rs.1,20,000/- and on the date of execution Ex.A1 he has received Rs.1,00,000/-. The husband of the plaintiff has been examined as PW1. He would say in his evidence that he has taken prominent role in execution of Ex.A1 and on the date of execution of Ex.A1 the defendant has received Rs.1,00,000/- and Ex.A1 has been written by one Aathiyappan. The said Aathiyappan has been examined as PW3. He has clearly stated in his evidence that Ex.A1 has been written by him. Therefore, from the evidence of Pws.1 and 3 coupled with Ex.A1 and also from the evidence of the defendant to the effect that he received Rs.1,00,000/- on the date of execution of Ex.A1, the Court can safely come to a conclusion that Ex.A1 is a sale agreement and thereby the defendant has agreed to sell the property mentioned in the schedule to the plaintiff.
25. The first and foremost substantial question of law is as to whether the Courts below are correct in coming to a conclusion that Ex.A1 is a genuine document despite of the evidence given by PW3 and DW3?
26. The second substantial question of law is as to whether Ex.A1 is a genuine document since PW1 has given evidence to the effect that the plaintiff has not possessed of any amount?
27. On the side of the defendant one Marimuthu has been examined as DW3. He would say in his evidence that the husband of the plaintiff is in the habit of advancing loans. PW3, Aathiyappan would say during the course of cross examination that he does not know the purpose for which Ex.A1 has been executed. From the evidence of DW3 the Court can come to a conclusion that the husband of the plaintiff is in the habit of advancing loans to others and the evidence of PW3 given in cross examination is that he does know the purpose for which Ex.A1 has come into existence. But at the same time, the evidence of PW3 lent support to the contention of the plaintiff to the effect that Ex.A1 has been written by him.
28. It has already been pointed out that DW1 has clearly admitted in his evidence that on the date of execution of Ex.A1 he received Rs.1,00,000/- and the said evidence is totally contra to the entire pleadings made in the written statement. Further the evidence given by the defendant has clearly probabilised the contention urged on the side of the plaintiff to the effect that Ex.A1 is a sale agreement.
29. Of course it is true that PW1 has stated in his evidence that the plaintiff has not possessed of any amount. At this juncture, the relationship between PW1 and plaintiff plays a vital role. The plaintiff is the wife of PW1. Since the plaintiff is the wife of PW1, it is needless to say that the entire transaction might have been done only by PW1. Simply because PW1 has stated in his evidence that the plaintiff has not possessed of any amount, the Court cannot come to a conclusion that Ex.A1 is not a sale agreement. Since the defendant has himself admitted in his evidence that he received Rs.1,00,000/- on the date of execution of Ex.A1, the first and second substantial questions of law raised on the side of the appellant/defendant are not having substance at all and the same are decided against him.
30. The learned counsel appearing for the appellant/defendant has taken much pain by way of acciting the following decisions:
(i) In Vasantha Ammal Vs. Babu Chettiar (died) and others (2009) 1 MLJ
457), this Court has held that "once the defendants have challenged that the plaintiff has not been ready and willing to perform her part of the contract, it is absolutely necessary on the part of the plaintiff to prove her financial ability. But here absolutely there is no iota of evidence, whether the plaintiff has such financial wherewithal."
(ii) In Sita Ram and others Vs. Radhey Shyam (2008) 1 MLJ Supreme Court
146), the Honourable Apex Court has held that "in a suit for specific performance, plea of readiness and willingness need not be in any specific form."
(iii) In P.Sampoornam and others Vs. L.T.Somasundaram and others (2008) 3 MLJ 796) this Court has held that "in a suit for specific performance, discretionary relief could be granted only when the plaintiff makes out a case, that too a strong case for exercising the discretion by the Courts. Even if a doubt arises whether it is probable or possible that an agreement of sale would not have been executed at all, the discretionary relief shall not be granted."
(iv) In Tejram Vs. Patirambhau (AIR 1997 Supreme Court 2702), the Honourable Apex Court has held that "the proposed purchaser has kept quiet for three years and thereafter filed the suit in question for specific performance, he is not entitled to get the discretionary relief."
(v) In Inderchand Jain (D) through LRs. Vs. Motilal (D) through LRs. (2009 (5) CTC 365, the Honourable Apex Court has held that "readiness and willingness of plaintiff is not confined only to stage of filing of plaint, but also at subsequent stage viz., at hearing and all along."
(vi) In K.S.Vidyanandam and others Vs. Vairavan (AIR 1997 Supreme Court 1751), the Honourable Apex Court has held that "total inaction on the part of purchase for 2 . years in violation of terms of agreement - delay coupled with substantial rise in prices of properties - It would be inequitable to give relief of specific performance to purchaser."
(vii) In M.Ranganathan Vs. M.Thulasi Naicker (deceased) and others (2009) 3 MLJ 376), this Court has held that "escalation of price of land is a factor to be taken into account for granting discretionary relief of specific performance."
(viii) In K.Saroja Vs. Valliammal and others (1996 (2) MLJ 199) this Court has held that "existence of an agreement of sale alone is not sufficient to get a decree. Court must look into surrounding circumstances to see that if agreement of sale is genuine."
31. From the cumulative reading of the decisions mentioned supra, the following aspects have become emerged in a suit instituted for the relief of specific performance.
(a) Suit sale agreement must be genuine and the same has been executed only for selling the property mentioned therein.
(b) Agreement holder must always ready and willing to perform his or her part of contract.
(c) There should not be any undue delay in instituting a suit for specific performance.
32. The additional substantial question of law raised on the side of the appellant/defendant is that since the plaintiff has not adduced even an iota of evidence to substantiate the legal requirement of readiness and willingness as contemplated under section 16 of the Specific Relief Act she is entitled to get the relief sought for in the plaint.
33. The specific case of the appellant/ defendant is that he has not executed Ex.A1 as a sale agreement and the same has come into existence only as a security for the loan alleged to have been received by him from the husband of the plaintiff. It has already been discussed in detail and ultimately found that the alleged loan transaction in between the husband of the plaintiff and defendant has not been positively established on the side of the defendant. In the written statement a specific plea has not been taken as to the readiness and willingness of the plaintiff. But at the same time, as per section 16(C) of the Specific Relief Act, the concerned plaintiff must plead and prove readiness and willingness from the inception of the alleged sale agreement.
34. The suit sale agreement viz., Ex.A1 has come into existence on 25.06.1997 wherein the period of part performance on the part of either party has been fixed as two years. The averments made in the plaint are that despite of repeated demands made by the plaintiff, the defendant has not come forward to execute a sale deed in her favour and ultimately Ex.A3, the notice dated 29.05.2000 has been given to the defendant and the defendant has given a false reply notice dated 21.06.2000. The husband of the plaintiff who has been examined as PW1 has given evidence satisfactorily to the effect that the plaintiff is always ready and willing to perform her part of contract. It is not the contention of the defendant that the plaintiff is not in a position to give balance of sale consideration of Rs.20,000/-. Therefore, it is quite clear that on the side of the plaintiff, readiness and willingness have been clearly pleaded and also proved. Considering the fact that readiness and willingness have been clearly pleaded and proved on the side of the plaintiff, it is needless to say that the entire effort taken by the learned counsel appearing for the appellant/ defendant has become inert.
35. The learned counsel appearing for the respondent/plaintiff has also contended that in the instant case, the defendant has executed Ex.A1 and thereby he agreed to sell the property mentioned in the schedule in favour of the plaintiff and on the date of execution of Ex.A1 he received Rs.1,00,000/- and agreed to receive the balance of sale consideration of Rs.20,000/- within a period of two years and to execute a sale deed in favour of the plaintiff. But despite of repeated demands made by the plaintiff, the defendant has refused to execute a sale deed in her favour. Under the said circumstances the plaintiff has given a legal notice and even after receipt of the same, the defendant has refused to execute a sale deed in favour of the plaintiff. Under the said circumstances the present suit has been instituted and further on the side of the plaintiff, execution of Ex.A1 has been clearly proved and the plaintiff has also proved her readiness and willingness to get a sale deed from the defendant by way of paying balance of sale consideration. The Courts below after considering all the contentions raised on either side has rightly rejected the plea raised on the side of the defendant and therefore, the concurrent Judgments passed by the Courts below are not liable to be interfered with.
36. In support of his contention, he has drawn the attention of the Court to the following decisions:
(i) In K.Saraswathi Ammal Vs. Jayaram Rao and 2 others (1998 (II) CTC
613), this Court has held that "the person who seeks equity must to do equity and parties should approach Court with clean hands would apply equally to plaintiff as well as defendant. Equitable relief should be granted or refused based on sound judicial principles as mandated by section 20(2)(d) of the Specific Relief Act."
(ii) In P.S.Ranakrishna Reddy Vs. M.K.Bhagyalakshmi and another (2007) 4 MLJ Supreme Court 193), the Honourable Apex Court has held that "rise in prices of an immovable property by itself is not a ground for refusal to enforce an agreement of sale."
(iii) In Bellachi (dead) by L.R. Vs. Pakeeran (2009 (3) CTC 795), the Honourable Apex Court has held that "the jurisdiction of the High Court in terms of Section 100 of the Code of Civil Procedure is limited. It can interfere with the concurrent findings of two Courts if any substantial question of law arises for its consideration. Whether the respondent despite the fact that he was brother of the appellant was in a dominating position is essentially a question of fact. Per se it does not give rise to a substantial question of law.
37. From the close reading of the decisions referred to earlier, the Court can easily discern that in a suit for specific performance, the Court has to look into as to whether the party who seeks equity must come with clean hands and further rise in prices of the property in question itself is not a ground for refusal to enforce an agreement of sale.
38. In the instant case, the entire defence taken on the side of the defendant has fallen to the ground on the basis of the evidence given by him to the effect that he received Rs.1,00,000/- on the date of execution of Ex.A1, the suit sale agreement. The evidence of DW1 is nothing but total contra to the entire averments made in the written statement. Even at the risk of repetition the Court would like to point out that the admission given by the defendant has clearly probabilised the contention urged on the side of the plaintiff. Further on the side of the plaintiff, acceptable and trustworthy evidence have been let in so as to prove the genuineness of Ex.A1 as well as readiness and willingness of the plaintiff. The Courts below have concurrently found that the contention urged on the side of the defendant is false and therefore as per the dictum given by the Honourable Apex Court, there is no substantial question of law in the present second appeal so as to make interference with the well merited Judgments passed by the Courts below.
39. The learned counsel appearing for the appellant/defendant has also made a fatuous exercise by arguing that even though the defendant has admitted the execution of Ex.A1, since his specific contention is that Ex.A1 is not a sale agreement and it is nothing but a security for the loan received by him from the husband of the plaintiff, the embargo created under sections 91 and 92 of the Indian Evidence Act is not a bar to the defence taken on the side of the defendant.
40. In support of his contention, he has drawn the attention of the Court to the following decisions:
(a) In Smt.Ganagabai Vs. Smt.Chhabubai (AIR 1982 Supreme Court 20, the Honourable Apex Court has held that "the bar imposed by sub section (1) of Section 92 applies only when a party seeks to rely upon the document embodying the terms of transaction. In that event, the law declares that the nature and intent of transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub-section is not attracted when a case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties."
(b) In Vallithai and others Vs. Arulraj (2007) 5 MLJ 222) this Court has held that "in a suit for specific performance when the defendant has established that the suit sale agreement has not been executed by the defendant and only a mortgage has been created in respect of the property in question, the bar under section 92 of the Evidence Act is not applicable."
41. The learned counsel appearing for the respondent/plaintiff has also drawn the attention of the Court to the following decisions:
(a) In Tamil Nadu Electricity Board and another V. N.Raju Reddiar and another (AIR 1996 Supreme Court 2025), the Honourable Apex Court has held that "at the outset it must be borne in mind that the agreement between the parties was a written agreement and therefore the parties are bound by the terms and conditions of the agreement. Once a contract is reduced to writing, by operation of section 91 of the Evidence Act it is not open to any of the parties to seek to prove the terms of the contract with reference to some oral or other documentary evidence to find out the intention of the parties. Under Section 92 of the Evidence Act where the written instrument appears to contain the whole terms of the contract then parties to the contract are not entitled to lead by oral evidence to ascertain the terms of the contract. It is only when the written contract does not contain the whole of the agreement between the parties and there is any ambiguity then oral evidence is permissible to prove the other conditions which also must not be inconsistent with the written contract."
(b) In M/s.Hindustan Lever Ltd., Bombay V. The Monopolies and Restrictive Trade Practices Commission, New Delhi and others (AIR 1977 Supreme Court 1285) the Honourable Apex Court has held that "when clauses of agreement clear and decisive, no oral evidence could be led to deduce their meaning or to vary it in view of Sections 91 and 92 of the Evidence Act."
42. From the cumulative reading of the rival decisions cited by both sides, the Court can very well come to a conclusion that if there is any written document, wherein the terms mentioned in unequivocal manner and neither party disputes it, oral evidence is not permissible under sections 91 and 92 of the Indian Evidence Act. But at the same time, if one party has taken a definite stand that particular document is not the document for which it has been executed, in reality it has been executed for some other purpose, the bar created under sections 91 and 92 of the Evidence Act, is not applicable and in that circumstances, oral evidence is permissible so as to prove the intention of the parties with regard to execution of the document in question.
43. In the instant case the specific stand of the plaintiff is that Ex.A1 is a sale agreement. But the specific stand of the defendant is that Ex.A1 has come into existence as a security for the loan alleged to have been received by him from the husband of the plaintiff. Since the specific stand of the defendant is that Ex.A1 is not a sale agreement and the same has come into existence only as a security for the loan alleged to have been received by him from the husband of the plaintiff, the bar created under Sections 91 and 92 of the Indian Evidence Act is not applicable to the facts and circumstances of the present case.
44. In many places it has been discussed and ultimately found that Ex.A1 is a sale agreement and in pursuance of Ex.A1 the plaintiff has shown her readiness and willingness always and therefore, the plaintiff is entitled to get the relief of specific performance. The Courts below have concurrently rejected the contention urged on the side of the defendant and further as per the dictum of the Honourable Apex Court, this Court has pointed out that there is no substantial question of law in the present second appeal and altogether the present second appeal is liable to be dismissed.
45. In fine, this second appeal deserves dismissal and accordingly is dismissed without cost at the stage of admission. The Judgment and decree passed in Original Suit No.224 of 2000 by the Sub Court, Thoothukudi, upheld in Appeal Suit No.4 of 2006 by the Additional District Court (Fast Track Court-II), Thoothukudi are confirmed.
mj To
1.The Additional District Court (Fast Track Court-II), Thoothukudi
2.The Sub Court, Thoothukudi