Madras High Court
Mannarsamy Naicker (Died) vs Nagammal on 6 July, 2009
Author: M.M.Sundresh
Bench: M.M.Sundresh
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06/07/2009 CORAM THE HONOURABLE MR.JUSTICE M.M.SUNDRESH A.S.No.842 of 1992 1.Mannarsamy Naicker (Died) 2.M.Mahendran (Appellant 2 was brought on record as Lrs of the deceased sole appellant vide order of Court dated 12.08.2008 made in M.P.(MD)No.3 of 2006 by ASJ) ... Appellants/Plaintiffs Vs. 1.Nagammal 2.Rajammal 3.Ravi Shankar 4.Nachiar Ammal ... Respondents/Defendants 1, 2, 4 & 5 Prayer This First Appeal has been filed under Section 96 of the Civil Procedure Code, against the judgment and decree made in O.S.No.136 of 1986 dated 28.02.1989, on the file of the Subordinate Judge, Srivilliputhur. !For Appellants ... Mr.V.Ramajegadeesan ^For Respondents ... Mr.A.Sivaji :JUDGMENT
The plaintiff is the appellant herein, has preferred the present appeal against the judgment and decree made in O.S.No.136 of 1986 dated 28.02.1989, on the file of the learned Subordinate Judge, Srivilliputhur, for recovery of money on a mortgage for a sum of Rs.48,629/- and for a sum of Rs.26,000/- along with at the rate of 6% p.a.
2. The brief facts of the case in the nutshell is as follows:
On 16.12.1971, a registered mortgage has been executed by the second defendant on behalf of the defendants in favour of the plaintiff. In the said document, it is mentioned that a sum of Rs.10,000/- was received by the defendants, which is used for the re-purchase of the properties sold in favour of one Narayanasamy Naicker and the said sum has been paid by the plaintiff in the presence of the defendants to Narayanasamy Naicker. The document also says that another sum of Rs.6,000/- has been received for family necessity and for small loans and a further sum of Rs.10,000/- has to be utilised by the plaintiff for clearing the debts of the defendants from one Alagarsamy Naicker. It is further mentioned in the said document that the plaintiff will have to receive the promissory note from the said Alagarsamy Naicer after payment of Rs.10,000/- . According to the plaintiff, he has paid the said sum of Rs.10,000/- to Alagarsamy Naicker as evidenced by Ex.A7. But the defendants have not paid the amount mentioned in the mortgage deed, as marked in Ex.A6. Therefore, the plaintiff was constrained to issue notice, to which the second defendant replied saying that repayment will be made in the month of July, 1979. Since no amount has been paid, the plaintiff was constrained to issue a legal notice and after receiving the reply, denying the contents of the legal notice, he was constrained to file the suit for recovery of amount as mentioned in the mortgage deed. The defendants have filed the written statement stating that it is no doubt true that Ex.A6 has been executed by the second defendant but only a sum of Rs.10,000/- has been received for the purpose of purchasing the property from Narayanasamy Naicker and thereafter, a sum of Rs.3,000/- alone was received towards the expenses for the execution of the mortgage deed. The defendants specifically denied that a sum of Rs.6,000/- has been received for clearing the family debts and family necessity. The defendants has also denied that there is no loan due to Alagarsamy Naicker and it is further denied that no promissory note has been executed in favour of the Alagarsamy Naicker and therefore, there is no question of discharge of the said loan by the plaintiff. It is the further case of the defendants that out of the sum of Rs.13,000/- received, a sum of Rs.8,000/- has been repaid to the plaintiff. Hence, the defendants prayed for dismissal of the suit.
3. The trial Court has framed the following issues for consideration which are as follows:
"1. Whether the suit mortgage is not supported to the extent of Rs.13,000/- as alleged by the defendants in para 5 of the written statement is true?
2. Whether the allegation of the defendants that they had paid Rs.8,000/- towards the suit mortgage during 1972 is true?
3. Whether the defendants are entitled to the benefits of debt relief act 13/80 and Act 13/82?
4. To what relief if any is the plaintiff entitled?"
4. On behalf of the plaintiff/appellant, 14 documents have been marked and two witnesses have been examined including the plaintiff as P.W.1. Similarly, on behalf of the defendants, three documents have been marked and only one witness has been examined, who is none other than the first defendant.
5. The trial Court has granted a decree for a sum of Rs.16,000/- by holding that the amount given to the Narayanasamy Naicker by the plaintiff and the amount of Rs.6,000/- given to the defendants are true and genuine. The trial Court has rejected the contentions of the plaintiff regarding the remaining amount of Rs.10,000/- by which, the plaintiff is said to have discharged the loan of the defendants, by holding that the plaintiff has not proved the same. Similarly, the Court below has rejected the contentions of the defendants that a sum of Rs.8,000/- has been paid. Therefore, challenging the said judgment and decree of the Court below, the plaintiff/petitioner has preferred the present appeal.
6. It is also brought to the knowledge of this Court by both the learned counsels that the defendants has also filed an appeal before the Hon'ble High Court in A.S.No.109 of 1992, but the same was dismissed as abated for not taking steps. However, the plaintiff has taken steps in the present appeal. Therefore, the only issue which is to be considered is as to whether the plaintiff is entitled to get a decree as sought for, in the plaint of not?
7. The appellant in his evidence has stated that the promissory note obtained from Alagarsamy Naicker dated 21.04.1971 was misplaced and therefore, he produced Ex.A7, which is a receipt signed by the said Alagarsamy Naicker. The trial Court has held that non-production of the promissory note raised doubt about the case of the plaintiff, that there was no mention of the same in Ex.A1 notice and there is no explanation as to why the said amount has not been paid immediately. The trial Court has also found fault with the appellant that no witnesses have signed in Ex.A7 receipt. Therefore, on those grounds, the trial Court has rejected the relief sought for by the appellant. In so far as the sum of Rs.10,000/- is concerned, it is said to have been given in favour of Alagarsamy Naicker for discharging the debts of the defendants.
8. The contentions of the learned counsel for the appellant is as follows:
The learned counsel for the appellant submitted that admittedly Ex.A6, mortgage deed is a registered document and indisputably signed by the second defendant. The second defendant has also admitted the execution. Therefore, the learned counsel for the appellant submitted that the trial Court ought to have decreed the suit as prayed for, by passing reliance upon the Sections. 91 & 92 of the Indian Evidence Act, 1872. According to the learned counsel that the defendants have admitted the execution and they cannot question the contents of the document that too after admitting the portion of the same. It is further submitted that the Court below has wrongly rejected Ex.A7 and put the onus on the plaintiff whereas, it is heavily on the defendants.
9. Per contra, the learned counsel for the respondents submitted that in the absence of any evidence on behalf of the appellant to prove the existence and discharge of the debts, the appeal is liable to be dismissed.
10. I have considered the rival submissions of the learned counsels for the parties.
11. It is the admitted fact that Ex.A6 has been executed by the second defendant on her own as well as on behalf of the other defendants as well. The defendants also admitted that they have received a sum of Rs.10,000/- for re-purchasing the property from one Narayanasamy Naicker. Therefore, this Court is of the opinion that it is not open to the defendants to contend that they have not received the amount mentioned in Ex.A6 and the onus is on the plaintiff to prove about his debts and the subsequent discharge by the plaintiff. Further, it is seen that it is not specifically pleaded that Ex.A6 is a sham and nominal document, which is obtained by fraud, intimidation or want of capacity to execute the said document. In this connection, it is useful to refer the provisions of Sections.91 and 92 of the Indian Evidence Act, 1872, contained in Chapter 6.
12. Chapter 6 speaks about the execution of oral documentary evidence.
a) Section 91 of the Indian Evidence Act 1872 is extracted hereunder for ready reference:
Evidence of terms of contracts, grants and other dispositions of property reduced to form of document.- When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained.
b) Section 92 of the Indian Evidence Act, 1872 is also extracted hereunder for ready reference:
Exclusion of evidence of oral agreement.-When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:
Proviso (1).-Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, [want or failure] of consideration, or mistake in fact or law.
Proviso (2).-The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document. Proviso (3).-The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
Proviso (4).-The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents. Proviso (5).-Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:
Provided that the annexing of such incident would not be repugnant to or inconsistent with, the express terms of the contract. Proviso (6).-Any fact may be proved which show in what manner the language of a document is related to existing facts.
13. A perusal of the above said provisions would clearly show that when a party to a document admits its due execution then, he cannot turn round and challenge the terms contained therein. However, it is still open to the said person to contend that the document is sham and nominal and vitiated by fraud. In other words, if the above said party, who executes the document is able to satisfy the provisos, the said party is entitled to succeed in his contentions.
14. While making such a plea, the party concern who speaks against the registered document will have to make out a strong case in support of his contentions. In such a situation, the onus is heavily on the party who speaks against the document. Therefore, it is permissible to a party to a document to contend and prove that the deed was intended to acted upon but only a sham and nominal document. However, the said party cannot go against the terms of the document after admitting the character of the document. In other words, the terms of the documents in which a person is a party cannot be varying on contradicting by oral evidence to that of the document itself as sham and nominal is one thing and to say that the content of the document is not correct is another thing. In this connection, it is useful to refer the judgment of the Hon'ble Supreme Court reported in 2003 (6) SCC 595 (Roop Kumar Vs. Mohan Thedani) wherein, the Hon'ble Supreme Court has read as follows:
"19. Sections 91 and 92 apply only when the document on the face of it contains or appears to contain all the terms of the contract. Section 91 is concerned solely with mode of proof of a document with limitation imposed by Section 92 relates only to the parties to the document. If after the document has been produced to prove its terms under Section 91, provisions of Section 92 come into operation for the purpose of excluding evidence of any oral agreement or statement for the purpose of contracting, varying, adding or subtracting from its terms. Sections 91 and 92 in effect supplement each other. Section 91 would be inoperative without the aid of Section 92, and similarly Section 92 would be inoperative without the aid of Section 91."
In 2007 (3) MLJ 467 (Bhandari Construction Company Vs. Narayan Gopal Upadhye) wherein, the Hon'ble Supreme Court has held is hereunder extracted for useful reference:
"15. When the terms of the transaction are reduced to writing, it is impossible to lead evidence to contradict its terms in view of Section 91 of the Evidence Act. There is no case that any of the provisos to Section 92 of the Act are attracted in this case. Why the case that was sought to be spoken to by the respondent was not set up by him in the complaint was not explained. The case set up in evidence was completely at variance with the case in the complaint. There was no evidence to show that the consideration was to be R%s.9,00,000/-, especially, in the light of the recitals in the registered agreement. There was also no document to show the payment of Rs.4,00,000/- by way of cash. Hence, this was no evidence to show the balance amount due under the agreement after the admitted payment of Rs.5,00,000/- was paid. The affidavit produced before the State Forum and the evidence of the colleague of the respondent is clearly inadmissable and insufficient to prove any such payment. Thus, the case set up by the respondent in his evidence was not established. It is in that situation that the District Forum, taking note of the payment of Rs.5,00,000/- and the failure of the respondent to encash the cheque for Rs.5,00,000/- that was returned by the company, ordered the complainant to pay the balance amount due under the transaction as evidenced by the written instrument and take delivery of the premises in question and in the alternative, gave him the option to take back the sum of Rs.5,00,000/- with interest. Neither the State Commission, nor the National Commission has given any sustainable reason for differing from the conclusion of the District Forum. A mere suspicion that builders in the country are prone to take a part of the sale amount in cash, is no ground to accept the story of payment of Rs.4,00,000/- especially when such a payment had not even been set up in the complaint before the District Forum. Not only that, there was no independent evidence to support the payment of such a sum of Rs.4,00,000/- except the ipse dixit of the respondent. The affidavit of the Bank employee filed in the State Commission cannot certainly be accepted as evidence of such a payment. Payment of such a sum had clearly been denied by the company. The respondent had, therefore, to prove such a payment. His case that the purchase price was Rs.9,00,000/-, itself stands discredited by the recitals in the agreement dated 27.07.1997 in which the purchase price was recited as Rs.7,75,000/-. Not only that, the respondent did not have a receipt for evidencing the payment of Rs.4,00,000/- and if the amount was paid on 05.07.1997 or 08.07.1997, as claimed by him, he would certainly have ensured that the payment was acknowledged in the agreement for sale executed on 27.07.1997. The agreement for sale actually speaks of his obligation to pay the balance to make up Rs.7,75,000/- after acknowledging receipt of Rs.5,00,000/-. The respondent is not a layman. He is a practising advocate. According to him, he specialises in documentation. He cannot, therefore, plead ignorance about the existence of the recital in the agreement. He cannot plead ignorance of its implications."
In the judgment reported in 2009 (2) CTC 861 (Vimal Chand Ghevarchand Jain & Others Vs. Ramakant Eknath Jajoo), the Hon'ble Supreme Court has held that a heavy burden of proof lies upon the defendants to show that the transactions was a sham and nominal one. Therefore, on a consideration of the above said legal papers, this Court is of the view that the defendants cannot contend against the terms of the documents in Ex.A6. Similarly, the trial Court has committed a serious error in shifting the onus on the plaintiff to prove his case in support of Ex.A6.
15. In the case on hand, it is a specific case of the defendants that they did not owe any money to Alagarsamy Naicker and therefore, it is their further denial that no such amount has been discharged by the plaintiff. Hence, this Court is of the view that there is a denial of the debts itself and the question of plaintiff proving the discharge does not arise for consideration.
16. It is further seen that when the onus is heavily on the defendants to prove as to whether the document is sham and nominal, the failure of the second defendant, who executed the document in not deposing before the court making herself for examination would lead to adverse inference. In fact, the Hon'ble Supreme Court in A.I.R. 2007 SC 2191 (M/s.Kamakshi Builders Vs. M/s.Ambedkar Educational Society & Others) has taken a view in such a case, adverse inference can be drawn against the party. It is also seen that the Court below has decreed the suit in part and the appeal filed by the defendants was dismissed. In any case, when the document is said to have been proved and when the defendants admits their contents of the document partially, it is not open to the defendants to turn round and say that the remaining contents of the documents are not true. Therefore, on considering the facts and circumstances of the case, the judgment and decree of the Court below in so far as it rejects the relief of the plaintiff for a sum of Rs.10,000/- is concerned is hereby, set aside and the suit is decreed to the effect that the plaintiff is entitled to preliminary decree of recovery to a sum of Rs.26,000/- with interest at the rate of 6% p.a. from 01.03.1972 to the date of realization.
Accordingly, the first appeal is allowed in part and the judgment and decree made in O.S.No.136 of 1986 dated 28.02.1989, on the file of the learned Subordinate Judge, Srivilliputhur is set aside to the extent as mentioned above. There shall be no order as to costs.
DP To The Subordinate Judge, Srivilliputhur.