Delhi District Court
Sharda Devi vs Bimlesh on 19 January, 2026
IN THE COURT OF AASHISH GUPTA, DISTRICT JUDGE-01,
NORTH-EAST DISTRICT, KARKARDOOMA COURTS, DELHI
In the matter of
CS No. 54/19
CNR No. DLNE010006812019
Smt. Sharda Devi
W/o Sh. Rakesh Kumar
R/o H.No. D-579, Gali No. 3,
Near Sanjay Sweets,
Ashok Nagar, Delhi - 110093 ..... Plaintiff
versus
Smt. Bimlesh
W/o Late Sh. Ved Prakash
R/o H.No. 148, Gali No. 4,
Phase-4, Shiv Vihar,
Delhi - 110094 ..... Defendant
Date of institution : 16.02.2019
Reserved on : 01.11.2025
Date of Decision : 19.01.2026
JUDGMENT
1. Plaintiff is sister-in-law/devrani of defendant.
2. She has inter-alia prayed for recovery of possession of 40 sq yards of land area (12 feet X 30 feet) out of a total area of 100 sq yards falling in Khasra No. 37/6, presently bearing property No. 148, CS No. 54/19 Sharda Devi Vs. Bimlesh Page 1 of 24 situated at Village Karawal Nagar, Gali No. 4, Phase-IV, Shiv Vihar, Delhi-110094 (hereinafter referred to as 'suit property').
3. In the alternative, she has prayed for recovery of Rs. 20 lac from the defendant alongwith additional reliefs of injunction(s).
Plaintiff's claim
4. Plaintiff claims that defendant agreed to sell the suit property to the plaintiff for a total sale consideration of Rs. 20 lac.
5. As per plaintiff, an agreement to sell dated 16.03.2018 ('agreement in question') was executed in this regard between plaintiff and defendant. As per the said agreement, the vacant possession of the suit property was also handed over to plaintiff on the spot.
6. Apart from the above agreement, a GPA, possession letter, Will and a receipt of Rs. 20 lac was also executed between the parties. All the said documents are unregistered but notarized.
7. Plaintiff claims that even the said documents were executed between the parties on 16.03.2018 and Rs. 20 lac were paid (in cash as per receipt), plaintiff was assured that defendant shall deliver possession of the property at the time of execution and registration of the relevant documents in favour of plaintiff.
8. Plaintiff claims that over time, defendant refused to handover possession of the property and purportedly some property dealers started visiting suit property.
CS No. 54/19 Sharda Devi Vs. Bimlesh Page 2 of 249. This caused ringing of alarm bells in the ears of plaintiff forcing her to sue the defendant by way of the present suit.
Defendants' claim
10. As per defendant, she is the owner of suit property. But, she claims that the area thereof is 60 sq yards only.
11. As per defendant, in the month of June, 2016, defendant borrowed a sum of Rs.3 lac from the plaintiff for the marriage of her daughter namely Renu Sharma (which was solemnized on 17.07.2016) to be returned in June, 2019, for a period of three years with interest @ 5% per month. No written loan agreement was executed between the parties.
12. As per defendant, she paid interest upon the aforesaid loan amount upto January, 2018 to the plaintiff but due to some financial problems she could not pay few interest installments to plaintiff. As per defendant, in March, 2018, plaintiff came to her house and on the pretext of executing a loan agreement regarding aforesaid loan amount of Rs.3 lac, obtained signatures of defendant on some blank papers and stamp papers. As per defendant, she is illiterate and "knows only putting the signature".
13. As per defendant, on 23.04.2018, plaintiff came to her house and threatened to implicate her son Satish in a false case. Eventually an an FIR No. 147/18 was lodged against defendant's son Satish; who CS No. 54/19 Sharda Devi Vs. Bimlesh Page 3 of 24 was eventually arrested in the said case. As per defendant, the plaintiff with the intention to grab the suit property prepared false documents of the suit property in respect of 40 square yards. As per defendant, on 20.01.2019, plaintiff visited the suit property and asked her to vacate the same.
14. As per defendant, the GPA, Agreement to Sell, Receipt, Possession Letter, Will Deed, Affidavit dated 16.03.2018 are forged and fabricated documents and she has not executed any such documents in favour of plaintiff.
15. Thus, in sum and substance, it is defendant's case that her signatures were obtained on a blank paper by plaintiff by misrepresenting to her that a loan document was to be prepared. This was in March, 2018 and thereafter, the said blank papers were misused by plaintiff for preparing GPA, Agreement to Sell etc dated 16.03.2018.
16. It is pertinent to note that defendant has herself preferred a separate suit bearing CS No. 35/19 titled as 'Bimlesh Vs. Sharda & Ors.' inter alia against the plaintiff whereby defendant wanted that the said documents all dated 16.03.2018 be declared as null and void. In the said suit, she had also prayed that plaintiff and her family members be restrained from creating any third party interest in the suit property.
CS No. 54/19 Sharda Devi Vs. Bimlesh Page 4 of 2417. The said suit was eventually dismissed by this Court vide judgment dated 09.12.2024. The said judgment was never taken in appeal and thus attained finality.
18. Thus, as far as the plea of defendant taken in this suit is concerned, the same plea was taken in the earlier suit between the parties and in the said suit, the defendant's plea of declaring the documents dated 16.03.2018 was rejected. The relevant finding of the said judgment reads as under:-
"69. It appears that plaintiff, after being made aware of the contents of the disputed documents had signed the same knowing fully well the nature and contents thereof.
70. A separate suit filed on the basis of said documents is admittedly pending adjudication before the court of competent jurisdiction. If that being the case, neither the disputed documents can be declared as null and void nor any injunction in the manner sought can be granted to her."
19. The disputed documents referred in the above paras are the GPA, agreement to sell etc. dated 16.03.2018 entered between the parties. I shall come back to this aspect of the matter in a little while.
Issues framed:
20. After completion of pleadings, following issues were framed in the matter vide order dated 26.07.2023:-
(i) Whether the plaintiff is entitled for a decree of possession, as prayed for? OPP CS No. 54/19 Sharda Devi Vs. Bimlesh Page 5 of 24
(ii)Whether the plaintiff is entitled for a decree of permanent injunction, as prayed for? OPP
(iii) Relief.
21. It is pertinent to note that while framing of issues, it appears that no issue qua the alternate relief of recovery of Rs. 20 lac was framed in the matter. The recovery of the said amount is one of the alternate reliefs sought by the plaintiff and thus, a relief on that count should have been framed.
22. During arguments, this fact was brought to the notice of the parties and they agreed that an additional issue in this regard can be framed by this Court. They submitted that no further evidence on the same shall be necessary and the matter may be decided as per the available record.
23. Thus, an additional issue (ii) is framed. The same shall read as under:-
(ii) Whether plaintiff is entitled to the alternate relief of recovery of Rs. 20 lac from plaintiff? OPP
24. In view of the above, the issues in the matter shall read as under:-
(i) Whether the plaintiff is entitled for a decree of possession, as prayed for? OPP
(ii) Whether plaintiff is entitled to the alternate relief of recovery of Rs. 20 lac from plaintiff? OPP CS No. 54/19 Sharda Devi Vs. Bimlesh Page 6 of 24
(iii)Whether the plaintiff is entitled for a decree of permanent injunction, as prayed for? OPP
(iv) Relief.
Evidence led:
25. To prove her case, plaintiff led evidence detailed below:-
S.No. Particulars of Nature of witness Documents relied witness
1. Ms. Sharda Devi/ Plaintiff herself. She tendered 1. Site Plan - Ex.PW1/1;
PW-1 her evidence by way of affidavit Ex. PW1/A whereby 2. Copy of documents i.e. she reiterated the contents of GPA dated 16.03.2018, her plaint. agreement to sale, affidavit, possession letter, receipt, Will deed dated 16.03.2018
- Ex.PW1/2 (OSR) (colly);
3. Copy of Legal notice -
Ex.PW1/3;
4. Copy of reply of legal notice dated 24.12.2018 -
Ex.PW1/4;
5. Aadhar Card of the plaintiff
- Ex.PW1/5 (OSR);
6. Copy of bank transaction sheet of cheque book of the plaintiff -
Ex.PW1/6 (OSR);
7. Copy of suit of plaintiff dated 30.07.2019 -
Ex.PW1/7.
8. GPA dated 29.08.2003 in favour of Smt Bimlesh-
Ex.PW1/8.
CS No. 54/19 Sharda Devi Vs. Bimlesh Page 7 of 242. Sh. L.B. Mishra, He was a summoned witness. Photocopy of relevant page of Notary He brought the notary notary register containing Public/PW-2 register containing entry of relevant entry (at point A) -
notarization of property Ex. PW2/1 (OSR) documents Ex. PW1/2 i.e. GPA, agreement to sell etc all dated 17.03.2018.
He claimed that on
17.03.2018 both parties
appeared before him and he
prepared the documents Ex.
PW1/2 in the presence of
both the parties and
thereafter, both the parties
alongwith witnesses had put
their signatures and thumb
impression on the said
documents before him. He
had also read over and
explained the contents of the
said documents to both the
parties.
3. Sh. Kamal/ PW-3 He is the attesting witness to property documents Ex.
PW1/2.
He claimed that he had put his signatures on the said documents in the office at Shiv Vihar on 17.03.2018 in the presence of plaintiff and defendant.
26. The aforesaid witnesses were duly cross-examined by Ld. Counsel for defendant. No other witness was examined by the plaintiff and thus, PE was closed.
CS No. 54/19 Sharda Devi Vs. Bimlesh Page 8 of 2427. Thereafter, defendant stepped in the witness box as DW-1 and she tendered her evidence by way of affidavit Ex. DW1/1 whereby she reiterated the averments made in her written statement.
28. Defendant also examined her son Ravinder @ Nanhe as DW-2. He tendered his evidence by way of affidavit Ex. DW2/1. He supported the case of defendant.
29. Defendant relied upon the following documents:-
S.No. Nature of documents Exhibit No. /Mark
1. Copy of FIR. Ex. DW1/A
2. Copy of complaint dated Ex. DW1/B 24.01.2019.
3. Copy of Site plan. Ex.DW1/C
4. Photocopy of GPA dated Mark 2 to Mark 5 29.08.2003, agreement to sell, receipt, deed of Will.
5. Photocopy of GPA dated Mark 6 to Mark 11 16.03.2018, agreement to sell, affidavit of Bimlesh, possession letter, copy of receipt, deed of Will dated 16.03.2018.
6. Reply of notice dated Ex. DW1/D 24.12.2018.
7. Postal receipts. Ex. DW1/E (colly)
30. Both the witnesses were duly cross-examined by Ld. Counsel for plaintiff. Defendant did not lead any further evidence and thus DE was closed.
CS No. 54/19 Sharda Devi Vs. Bimlesh Page 9 of 2431. I have heard Ld. counsel for the parties and perused the material available on record.
Analysis and findings
32.Based on the evidence led before this court, the issue-wise finding in the matter is as under :
Issue No. (i) (ii) and (iii)
(i) Whether the plaintiff is entitled for a decree of possession, as prayed for? OPP
(ii) Whether plaintiff is entitled to the alternate relief of recovery of Rs. 20 lac from plaintiff? OPP
(iii) Whether the plaintiff is entitled for a decree of permanent injunction, as prayed for? OPP
33. All the issues are inter-connected and are thus taken up together.
34. The first claim of the plaintiff is qua possession of the suit property based on GPA, agreement to sell etc dated 16.03.2018. In my humble opinion, as far as the said relief is concerned, suffice is to say that the same cannot be granted to plaintiff on the strength of the said documents i.e Ex.PW1/2 (OSR) (colly). This is because the said documents are admittedly in the nature of unregistered GPA, agreement to sell etc. It is now settled law that documents in the nature of unregistered GPA, agreement to sell etc are not CS No. 54/19 Sharda Devi Vs. Bimlesh Page 10 of 24 considered as conveyance documents and as such the said documents cannot confer any right, title or interest in favour of the plaintiff. In this regard, I may place reliance on the judgment of 'Suraj Lamps and Industries Pvt. Ltd. Vs. State of Haryana AIR 2012 Supreme Court 206'.
35. It is pertinent to note that plaintiff in this case has not sued the defendant for specific performance of agreement to sell dated 16.03.2018. Even though the title of the suit notes that the suit is inter-alia for specific performance, but if one reads the entire plaint alongwith the prayer clause, it is abundantly clear that plaintiff has proceeded on the assumption that documents Ex.PW1/2 (OSR) (colly) are sufficient to confer title of suit property on the plaintiff. In other words, plaintiff assumes that she became owner of the suit property on the basis of the aforesaid documents. The said assumption of the plaintiff is incorrect assumption in law and thus, the said document cannot give her title of the suit property to only seek possession on the basis of the said documents.
36. In the plaint, plaintiff has not laid any grounds for seeking specific performance of the agreement dated 16.03.2018. Thus, without the said relief, plaintiff shall have no right, title or interest qua the suit property on the basis of the said agreement and hence, her claim for possession dehors of plea of specific performance shall have to fail.
CS No. 54/19 Sharda Devi Vs. Bimlesh Page 11 of 2437. With plaintiff not having any right, title or interest in the suit property, her reliefs for permanent as well as mandatory injunction shall also fail.
38. Thus, issue No. (i) and (iii) are liable to be decided against plaintiff and in favour of defendant. It is ordered accordingly.
39. Now, a question arises about the alternative prayer of the plaintiff qua recovery of Rs. 20 lac from the defendant.
40. In this regard, Counsel for plaintiff argued that plaintiff has inter- alia proved due execution of documents including agreement to sell, receipt [Ex. PW1/2 (OSR)(colly)] which proves that defendant had received the consideration amount of Rs.20 lac from plaintiff. It was argued that if possession is not to be given to the plaintiff, at least the money received by defendant should be ordered to be returned to plaintiff.
41. I am not inclined to accept the said argument raised on behalf of plaintiff.
42. Before proceeding further, it is necessary to recall that plaintiff has set up her case on the contention that on 16.03.2018 she paid Rs. 20 lac in cash to defendant and on the same day, the disputed documents Ex. PW1/2 (colly) (which includes an agreement to sell as well as receipt) were executed. Thus, as per plaintiff's case, it was on 16.03.2018 that the entire consideration of Rs. 20 lac, in cash was paid by plaintiff to defendant.
CS No. 54/19 Sharda Devi Vs. Bimlesh Page 12 of 2443. But, it is pertinent to note that in the cross-examination of plaintiff (while deposing as PW-1), plaintiff claims that she " had not given any money to defendant on 16.03.2018". It has come on record that plaintiff actually did not pay the entire sum of Rs. 20 lac to defendant; or pay any money on 16.03.2018 as sale consideration amount of the suit property; and some money paid to defendant was actually a loan. It has also come on record during her cross- examination that most of the money was purportedly given by plaintiff to sons/other family members of defendant and not the defendant.
44. I may draw attention to the following cross-examination of plaintiff dated 04.03.2024 which reads as under:-
"I had not given any money to defendant on 16.03.2018. I met Bimlesh in the last month of March.
On 15.03.2013 I had given Rs. 1 Lac to Bimlesh; Rs. 1 Lac was given on 01.07.2016 at the marriage of daughter of Bimlesh. I had also given Rs. 10,000/- on 02.10.2012 to Bimlesh and further given Rs. 2,50,000/- in the month of November 2016 to Bimlesh, Satish and Navin. Except this amount, no other amount was given to Bimlesh personally. It is correct that I have not taken any receiving from the Bimlesh. Vol: I used to maintain a dairy. "
(emphasis supplied)
45. Cross-examination of plaintiff/PW1 dated 07.09.2024 is also relevant and the relevant portion thereof is quoted as under:-
"I used to give friendly loan to the defendant and his family members whenever they asked for the same. It is correct that I gave friendly loan to defendant Bimlesh and her family members namely Satish, Naveen @ Nikki and Ravinder @ Nandey as per Ex. PW1/DX1. It is correct that details of the amount received CS No. 54/19 Sharda Devi Vs. Bimlesh Page 13 of 24 and not received from defendant and her family members is also mentioned in Ex. PW1/DX1. The entries on Ex. PW1/DX1 is in my handwriting and I used to write the same in the presence of defendant and her family members. Despite request, they never signed on PW1/DX1. No other witness from my side was used to be present at the time of transaction of the friendly loan to defendant and her family members. It is correct that Ex. PW1/DX1 does not bear my signatures."
(emphasis supplied)
46. A bare perusal of the above shows that plaintiff does not appear to have paid Rs. 20 lac to defendant. She admits during her cross- examination dated 04.03.2024 that no money was actually given by her on 16.03.2018. She further admits in the same cross- examination that only a sum of Rs. 4,60,000/- was paid to defendant and her family members and the said record was maintained by her in a diary.
47. The said diary was eventually produced as Ex. PW1/DX1 and as per the cross-examination dated 07.09.2024, the same is actually a record of various loans given by plaintiff to defendant/her family members.
48. A perusal of the said dairy Ex. PW1/DX1 does not show entry of Rs. 20 lac paid by plaintiff to defendant.
49. Thus, it transpires from the record that plaintiff did not pay Rs. 20 lac to defendant on 16.03.2018 [as claimed by her in her plaint or in her affidavit in evidence or on the documents Ex. PW1/2 (colly)].
CS No. 54/19 Sharda Devi Vs. Bimlesh Page 14 of 2450. It is essential to note herein that whatever money was given to defendant/her family members (as per cross-examination of plaintiff read with her diary Ex. PW1/DX1), the said money is also not paid to defendant as sale consideration of the suit property. The said money, to the extent of Rs. 4.6 lac is essentially given as a loan. If the same is read with the diary Ex. PW1/DX1, the said money was given on interest.
51. It has further come in the cross-examination of plaintiff that apart from defendant, some other sums were given to sons/family members of defendant on various dates.
52. Thus, a bare perusal of the above shows that plaintiff did not pay the sum of Rs. 20 lac to defendant in one go. But, as per her, she paid different sums to defendant and her children/family members as loan against interest on various dates, as recorded in Ex. PW1/DX1. This means that her claim set up before this Court is different and distinct from what has come out during the cross-examination of plaintiff.
53. While plaintiff has set up a case before this Court on a simple assertion that she entered a simple sale transaction with defendant; paid Rs. 20 lac to defendant; executed the documents including cash receipt dated 16.03.2018 alongwith agreement to sell; and in lieu thereof, defendant agreed to sell 40 sq yards of her property to plaintiff. But, in contrast, it has come in her cross-examination that she actually did not pay Rs. 20 lac to defendant on 16.03.2018; she CS No. 54/19 Sharda Devi Vs. Bimlesh Page 15 of 24 gave various amounts on loan to defendant and her children/family members; this money was given against interest.
54. There is no explanation when and how the said money given as loan came to be treated as sale consideration for the transaction set up by the plaintiff, if at all.
55. It was argued on behalf of plaintiff that eventually defendant herself signed the agreement in question forming part of Ex. PW1/2 (colly) by agreeing to discharge her loan obligations by selling the suit property to plaintiff and therefore, plaintiff should be entitled to recover the sum of Rs. 20 lac from defendant.
56. I cannot agree with the said argument for the simple reason that this is not the case set up by plaintiff. If there was some prior loan transaction between plaintiff and defendant or her children and defendant had agreed to repay her loan by giving the suit property as consideration against the said loans, this fact should have been specifically pleaded by the plaintiff in her plaint. It was necessary that plaintiff should have specified how much money did she give to defendant or to her children. This is because defendant can be personally liable only for the money she took from plaintiff and she shall have no liability qua the money given to her children/other family members. This liability can only accrue to defendant if she either stood as a guarantor to the said loan or agreed to take her children's or her family members' liability on her shoulders. This would require specific pleadings and evidence to be led so that it can CS No. 54/19 Sharda Devi Vs. Bimlesh Page 16 of 24 be ascertained as to how much money was taken by defendant or her children or whether defendant has actually agreed to assume the liability of her children/family members or treat the said loan as sale consideration qua the suit property. Simply put, plaintiff cannot be allowed to recover money on the basis of the agreement which was never set up before this Court.
57. Plaintiff has simply claimed that she paid Rs. 20 lac to defendant against an agreement to sell. But, from the cross-examination of plaintiff, it has been shown on record that the terms recorded in agreement is distinctly different from actual transaction between the parties and no explanation has been offered as to why plaintiff did not plead true and correct facts before this Court. Plaintiff herself claimed that she only paid about Rs. 4.6 lac to defendant/her children personally and it is not clear as to how the said amount inflated to Rs. 20 lac to allow the plaintiff to recover Rs. 20 lac from defendant.
58. Counsel for the plaintiff argued that u/s 91/92 of Indian Evidence Act, the oral evidence of plaintiff qua the loan should be ignored in view of the written documents i.e. agreement to sell as well as receipt which shows payment of Rs. 20 lac to defendant.
59. I am not inclined to accept the said argument raised by the counsel for plaintiff. The bar of section 91/92 Indian Evidence Act shall not apply to the facts of this case. Before coming to the reasons of the said conclusion, I may fruitfully rely upon a couple of judgments on CS No. 54/19 Sharda Devi Vs. Bimlesh Page 17 of 24 the said issue which shall be a complete answer to the said contention made by the counsel for plaintiff.
60. In Gangabai vs Chhabubai AIR 1982 SUPREME COURT 20, 1982 (1) SCC 4, the Hon'ble Supreme Court of India was dealing with a case wherein the appellant was relying upon a sale deed; while the respondent was contending that the said document was never an actual sale and in fact, she had taken a loan from appellant with an understanding that she should execute a nominal document of sale with the rent note. In the said case, the Hon'ble Supreme Court of India was presented with the argument that u/s 92(1) of Indian Evidence Act, the respondent therein was restrained from contending that there was no sale and no oral evidence to the contrary should be admitted in evidence. While answering the said contention, the Hon'ble Supreme Court held as follows:
"The next contention on behalf of the appellant is that sub-s.(1) of s. 92 of the Evidence Act bars the respondent from contending that there was no sale and, it is submitted, the respondent should not have been permitted to lead parole evidence in support of the contention. Section 91 of the Evidence Act provides that when the terms of 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. Sub-s. (1) of s. 92 declares that when the terms of any 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 And the first proviso to s. 92 says that any fact may be proved which would invalidate any document, or which would entitle any person to any CS No. 54/19 Sharda Devi Vs. Bimlesh Page 18 of 24 decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contradicting party, want or failure of consideration, or mistake in fact or law. It is clear to us that the bar imposed by sub-s. (1) of s. 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the 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 the 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 ( Tyagaraja Mudaliyar and another v. Vedathanni AIR 1936 PC 70, 1936 All LJ 136). The Trial Court was right in permitting the respondent to lead parole evidence in support of her plea that the sale deed dated January 7, 1953 was a sham document and never intended to be acted upon. It is not disputed that if the parole evidence is admissible, the finding of the court below in favour of the respondent must be accepted. The second contention on behalf of the appellant must also fail."
(emphasis supplied)
61. In the aforesaid judgment, the Hon'ble Supreme Court of India placed reliance on the judgment of Tyagaraja Mudaliyar vs Vedathanni (1936) 38 BOMLR 373. The said judgment further elaborates upon the admissibility of parol evidence admissible u/s 92 of Indian Evidence Act. In the said judgment passed by the Ld. Privy Council, was called upon to decide the question as to whether under the provisions of Sections 91 and 92 of the Indian Evidence Act, oral evidence was inadmissible to establish that it CS No. 54/19 Sharda Devi Vs. Bimlesh Page 19 of 24 had been agreed that the provisions for the plaintiff's maintenance were not to be acted on, as the document was only intended to create evidence of the undivided status of the family. It was a case where one of the parties was trying to give oral evidence to show that the written agreement between the parties was no agreement in reality and therefore, there was no contract between them. While dealing with the said issue, the Ld. Privy Council noted section 91 and 92 of Indian Evidence Act and laid as under:
"10. The two relevant sections are as follows, the exceptions and explanations in Section 91 being omitted as having no bearing on the question :
91. 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 hereinbefore contained.
92. 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 of 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 CS No. 54/19 Sharda Devi Vs. Bimlesh Page 20 of 24 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 shows in what manner the language of a document is related to existing facts.
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12. When a contract has been reduced to the form of a document, Section 91 excludes oral evidence of the terms of the document by requiring those terms to be proved by the document itself unless otherwise expressly provided in the Act, and Section 92 excludes oral evidence for the purpose of contradicting, varying, adding to, or subtracting from such terms. Section 92 only excludes oral evidence to vary the terms of the written contract, and has no reference to the question whether the parties had agreed to contract on the terms set forth in the document. The objection must therefore be based on Section 91 which only excludes oral evidence as to the terms of a written contract.
Clearly under that section a defendant sued, as in the present case, upon a written contract purporting to be signed by him could not be precluded in disproof of such agreement from giving oral evidence that his signature was a forgery. In their Lordships' opinion oral evidence in disproof of the agreement ( 1) that, as in Pym v. Campbell (1856) 6 E. & B. 370, the signed document was not to operate as an agreement until a specified condition was fulfilled, or (2) that as in the present case, the document was never intended to operate as an agreement but was brought into existence solely for the purpose of creating evidence of some CS No. 54/19 Sharda Devi Vs. Bimlesh Page 21 of 24 other matter stands exactly on the same footing as evidence that the defendant's signature was forged.
13. In Pym v. Campbell the defendants were sued upon a written contract to purchase an invention, and Lord Campbell had ruled at the trial that on the plea denying the agreement oral evidence was admissible that it had been agreed between the parties before they signed that there was to be no agreement until the invention was approved by A. In his judgment discharging the rule nisi for a new trial, Lord Campbell said (p. 375) :
It was proved in the most satisfactory manner that before the paper was signed it was explained to the plaintiff that the defendants did not intend the paper to be an agreement till A had been consulted, and found to approve of the invention; and that the paper was signed before he was seen only because it was not convenient for the defendants to remain. The plaintiff assented to this, and received the writing on those terms. That being proved, there was no agreement.
Erie, J., who gave judgment first had dealt more fully with this question (p. 373) :
The point made is that this is a written agreement, absolute on the face of it, and that evidence was admitted to shew it was conditional : and if that had been so it would have been wrong. But I am of opinion that the evidence shewed that in fact there was never any agreement at all. The production of a paper purporting to be an agreement by a party, with his signature attached, affords a strong presumption that it is his written agreement; and, if in fact he did sign the paper animo contrahendi, the terms contained in it are conclusive, and cannot be varied by parol evidence : . . . but, if it be proved that in fact the paper was signed with the express intention that it should not be an agreement, the other party cannot fix it as an agreement upon those so signing. The distinction in point of law is that evidence to vary the terms of an agreement in writing is not admissible, but evidence to shew that there is not an agreement at all is admissible.
14. The Indian legislature has thought well to give statutory effect decision in Pym V. Campbell in proviso 3 to Section 92 :-" The existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract. . . may be proved "; and in Mottayappan v. Palani Goundan (1913) I.L.R. 38 Mad. 226, Benson and Sundara Ayyar JJ. have expressed the opinion that oral evidence to show that a document was never intended to operate according to its terms, 'but was brought into existence, as in the present case, solely for the purpose of creating evidence about some other matter is CS No. 54/19 Sharda Devi Vs. Bimlesh Page 22 of 24 admissible under proviso 1 to Section 92, " any fact may be proved which would invalidate any document". This may well be so, but in their Lordships' opinion, even if there were no provisos to either section, the result in the present case would be the same, because there is nothing in either section to exclude oral evidence that there was no agreement between the parties and therefore no contract."
(emphasis supplied)
62. A bare perusal of the aforesaid decisions would show that in cases where there is a written agreement between the parties, the oral evidence to vary the terms of a contract is barred to be received in evidence u/s 92 of Indian Evidence Act. But, the said principle of law is not applicable where parole evidence is sought to be led to show that there is no agreement at all.
63. From the cross-examination of plaintiff, it appears that no money was actually paid by plaintiff to defendant on 16.03.2018 as recorded in the receipt/agreement to sell forming part of Ex. PW1/2 (colly). In fact, it appears from the cross-examination of plaintiff herself that she only paid a sum of Rs. 4.6 lac to defendant/her family members and nothing more. This money was in fact given as loan and there is no evidence to show that this loan money was agreed to be treated as sale consideration qua the agreement to sell/receipt. Thus, from plaintiff's cross-examination it is proved on record that she has failed to prove actual payment of sum of Rs. 20 lac to defendant. Thus, the necessary component of consideration is proved to be missing inter se the parties qua the agreement in question. This would bring the case within the four corners of proviso 1 of section 92 of Indian Evidence Act as the oral testimony CS No. 54/19 Sharda Devi Vs. Bimlesh Page 23 of 24 of the plaintiff has been proved on record to show that the agreement to sell/receipt are not valid documents due to lack of consideration.
64. Thus, in my humble opinion, plaintiff is not entitled to any recovery under the agreement in question, muchless of Rs. 20 lac.
65. Accordingly, issue No. (ii) is also decided against the plaintiff and in favour of defendant.
66. Thus, all the issues under consideration are decided against the plaintiff and in favour of defendant.
Conclusion
67. Thus, the suit fails. It is dismissed.
68. No order as to costs.
69. Let a decree sheet be prepared accordingly.
Digitally
signed by
AASHISH
AASHISH GUPTA
GUPTA Date:
2026.01.19
17:01:13
+0530
Announced in the Aashish Gupta
open Court on 19.01.2026 District Judge-01, North-East District,
Karkardooma Courts, Delhi
CS No. 54/19 Sharda Devi Vs. Bimlesh Page 24 of 24