Karnataka High Court
Tukaram S/O Manikappa Bandi vs Hemalatha on 4 February, 2010
Author: H.N.Nagamohan Das
Bench: H.N.Nagamohan Das
s"acaAxfi BIBI ROAD
-1...
IN THE HIGH COURT OF KARANTAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 4" DA! OF FEBRUARY zo1¢Iffg"
BEFORE
THE HON'BLE M.JUSTICE H fl NAGgMoHA§ has "I
REGULAR smconn APPEAL-fio,is3 of ghee: "R
BETWEEN
TUKARAM ,
s/0 MANIKAPPA BANDI_"g
DEAD BY L.RS *~
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W/O"MANOHAR SURAMPALI
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DAYANAND NAGAR
VIDYA NAGAR
HYDERABAD
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SUBHASH GUNJ
STATION ROAD _Mm-
ZAHEERABAD 502220 .
1F. SMT.SUNITHA
W/O SRINIVAS MADAS
BALBADI TEACHER
?0ST KASALA
HATNOORA MONDAL
DIST. MEDAK
1G. KUM.GEETHA -V
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BIDARi585 401,V_~,%»_';_ .; ..APPELLANTS
(BY SR1"SAflJEEVRKfiMARgC*?ATIL,ABV. FOR
sax MAN1xApPn,9AEIL;A§v.)
. HEMfiLAffiA--R*,
'3Wf3TnHA2AwRAq*"
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L "BAGHAVBHARATRAJ
S/O*?ANDAIAfl BACHA
RRLMAJOR
V'"Qcc: GOVT. smavnuw,
'--.a/o xmw aovsxns COLONY
BIDAR
*,R2. BACHA SRIKANTA
D/O BACHA BHARATRAJ
MINOR, U/G OF FATHER BHARATRAJ
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BACHA VISHNU PRIZA
D/O BACHA BHARNHUB'
MINOR U/ G OF FA'!!!-IE BHARATRAJ
BACHA RAGHAVENDRA
s/o BACHA BHARRHUD'
MINOR we 05' FA'mIs:R BI-IARATRAJ
ALL R/o NEW HOUSING coromri _
BIDAR 7
RAMAKRISHNA
s/o MANIKAPPA mum
MAJOR DIED BY LRS
SATHYANARAYANA mp V'
RESPONDENTS 6 s .7 , "
swr. MEERA
W/O SUBHASH'_
MAJOR _",,' g 1 v VA v «--
R/O CHITGUP?Ag€NfiflKHfiUMNABAD.
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s/o RAMAK7RISHNAPPAvv-.Bfi.NDI
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LIBRRRIAN,'-. B Iv. B ." ,_C'.OLLEGE'.
BIDAR*pIsT.g
.....
_ s/'0" RAMAKRZESHNAPPA BANDI ' " .. Mia-.'_FOR;' occ : PRIVATE SERVICE R,<.o'--«.g;§:wV"R-siousxnc COLONY '---.BIDAR"j«.
s'/Q LCI-IIDANNADA SINDOL " =»,_MA:oR, c/o SINDHOLE "AUTO FINANCE (P) L'1'D., "STATION ROAD BIDAR . .1-IESPONDENTS (BY SRI R S SID!-IAPURKER, ADV'. F'OR_R2--4 SRI S R SHIVAPRAKASH, ADV. FOR R1) W .Vtrial Court.
-4- RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGMNT AND DEGREE DATED 13.12.99 PASSED 3? THE ADDL. DIST. JUDGE, BIDAR IN RA.NO.12/86 ALLOWING THE APPEAL AND SETTING ASIDE THE DEGREE DATED 10.3.86 PASSED BY THE ADDL."".C;I.vI.I._p' E. JUDGE, BIDAR IN O.S.NO.39/7'7.
THIS APPEAL COMING on EDP. AHEAR-INGA .?;¥H1pSrVV'DA2,"'. THE COURT DELIVERED THE FOLLOWING} 9 JIJDGMENT A This Second Appeal AS directed aoalnst the judgment and decree 1"S99 in RA.No.12/1986 passed hr the AddltEhAstrict Judge at Bidar.
2. Appe;;an§=EDAspA the plaintiff and respondente are the defendants before the trial Court. N1n'_thiSVEjudgEent, for convenience, the parties are referred to their status before the 7An3.Ej;'AS the case of the plaintiff that he and defendant No.3 are brothers. Defendant NOS.4 Ef=Tto;5 are. the children of defendant No.3. G_'Elaintiff and defendant Nos.3 to 6 mortgaged the w'.wpiaint schedule property in favour of one Sadanand Garje in the year 1968. Further defendant Nos.3 to 6 also mortgaged another gLW .....5....
property in favour of said Sadanand Garje in the year 1971. The said Sadanand Garje demanded the mortgage money of Rs.10,000/-- as he wanted to purchase another house. Since the Plaint'ii.tf'f."y:'--and defendant Nos.3 to 6 did not had money" ' X the mortgage money, they,offeredMto'a.--:moVrt_gage the schedule property in 3:"evn"ur' of No.2. After negotiations "defendant, No,:.12A{.'dema.ndeq.VV? to execute a sale deed -a consideration of Rs.10,000/- with an»._..a:s_st€'ra;_1ce"zthat_ they will not act upon the__ sale will be treated as" 'mortgage "'deed;v---..~f.='urther towards payment ofA"int.erest.V:at_ 2%' on the mortgage amount of Re;;0,ooo/§g}.defenaant No.2 demanded the plaintiff u"and'vdefendant Nos.3 to 6 to execute a '"«_xent"deed;,Tneifiieintiff and defendant Nos.3 to 6 doth';-.-r alternative, agreed to the demand ofy_'defend::$mt No.2 and executed a registered sale deed favour of his wife the defendant No.1, on 3AL21."1.1.l971. On the same day, a rent deed was also executed agreeing to pay a sum of Rs.200/- as "rent in lieu of interest on the mortgage amount. Even after the sale deed dated 12.11.1971, the plaintiff continued to be in possession of the flkxfw -5- schedule property, paid house tax and khata also continued in his name. After sale transaction on 12.11.1971, the plaintiff also paid regularly the_ interest and finally a sum of Rs.8,42€[}'touards_i discharge of mortgage moneyh under, EntCP2,'tThe. defendants 1 and 2 instead Vofg discharging; thegu mortgage, got issued a lanyer's notice denandingf' arrears of rent find alt? .f@;Qd fan.,eviction petition in sac Nstig/1373h.sfig:t§e_ file of the then Munsiff at Bias: feheteattetf the plaintiff filed O.S fie séjisif £9; a declaration to declare that the sale g§§g,ggt§§ 1i}11.1971 as nominal, sham and not acted upon and also for restraining the defendant! fiosgli and 2 from evicting the plaintiff dfrom "the vschedule property and from "awcontinfiingz them iiiii "eviction proceedings in HRC '1pNu;ie(19#SI,f;
4;..vThe defendant Nos.1 and 2 entered illflappearance before the trial Court and filed rnritten statement interwalia contending that the 1"' Neale deed dated 12.11.1971 is true and genuine. The plaintiff instead of paying arrears of rent and vacating the schedule premises, filed %\f"
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O.S.No.39/1977 as a counter blast. It is further denied that the transaction dated 12.11.19?i as mortgage transaction. on these grounds; Fthe defendant Nos.1 and 2 opposed the c1_aim plaintiff. The other defendants in the suit haveu' not filed written statement.
5. on the basis of the pieadings;vthe_trial,r Court framed the folloningr issues. for its consideration.
"1. Whether piaintiff proves that the sale of the suit house v """ "dated i2}1i.I971 was nominal and V _waS executed by say of security ° fa; 'apthe illioan amount of fis.1O,DD0f5i*t advanced by vi" defendant .No.2 for the payment ?i of earlier mortgage debt? ._ jHa2. woes he further prove gthat the subsequent rent deed in esecuted receiving the monthly . rent of Rs.200/-- was also of the same nature executed towards interest?
3. Does he further prove the repayment of subsequent amount of the said debt alleged? &xM _8_
4. If so, is he entitled to declaration?
5. Is he entitled to injunction?
6. What decree or order? NJ
6. Before the trial icourtfi the« plaintiff examined 5 witnesses as Piwsflz to 'S wand igot_ marked Exts.P1 to P17. 'wee-1.._deser.dan+.;eregained 4"
witnesses as D.Ws.1 to 4 and got marked Exts.D1 to D9. The triali Court; after: hearing the arguments on =hoth:=side1 andp hp Dcensidering the pleadings? xQ\§%W a§fl€_éo¢emeeeei§l evidence held that the transaction dated 12.11.1971 was not a sale transactionl end! the parties intended the same aspa mortgage transaction. Consequently, the Vitrial ?Court decreed the suit of the plaintiff V"-.v'd.def 3fi'd.gment.i~~ dated 10.3.1986. Aggrieved by this judgment of the trial Court, defendant Nos.1 and filed' appeal in R.A.No.12/1986 on the file of V7 the ;lower appellate Court. After hearing the "unis arguments on both side, the lower appellate Court framed the following 4 points for its consideration:
5¢'W W9"
1. Whether the impugned sale deed dated 12.11.71 in respect of the suit house is a nominal and sham sale deed and was noppdd intended to be acted upon?
2. Whether first "defendant~ has proved that the said lsalen deed is a true," genuine _afi¢,:' absolute sale deedékp
3. wfieghegi the ppiaintiff"
was entitled to all d¢:,eny of the sreliefs"- claimed ; in?' the _ ____ __",i'§4__flhether,wthe impugned judgment_ and" decree call for i. interference in this appeal?
_-7. The '~lowerz' appellate Court on re- '".appreciation of "the iiii entire material on record d_held that there is a bar under Section 92 of the Efiidence act for the plaintiff to adduce parallel ix evidence contrary to the contents of a registered deed dated 12.11.1971. The lower appellate Court further held that parties to the sale deed dmhave acted upon it. It is further held that the plaintiff is not entitled for relief claimed in the suit. Accordingly, the lower appellate Court §~w -10- under the impugned judgment dated 13.12.1999 allowed the appeal, set aside the judgment of the trial Court and dismissed the suit of" the plaintiff. Hence this second appeal _bg* the plaintiff.
8. This Court vide order dated~E23}3;30Q9u admitted the appeal and ftamed 'the lfollowing substantial question of.law:
"In view of~ the udiveigent¢} findings, whether Estqfll is hit by Section 92_ of lthelhfifiidence
9."Heatdfgazguments on both side and perused the entire appeal papers. 919; it is necessary at this stage to notice 1,the scope of Section 92 of the Evidence Act as held by the Supreme Court. The Supreme Court in Vu_the "ease of SMT.GANGABAI VS. SMT.CHHABUBAI §"reported in AIR 1982 SC 20 explained the scope of Section 92 of the Evidence Act as under:
"The bar imposed by subw sec.(1) of Section 92 applies only when a party seeks to rely a'""V'"""
.....12...
entered into between the parties."
11. Again the Supreme Court in themtasefofi R.JANAKIRAMAN vs. STATE REPRESENTED BY In$pficToa_ . 03 POLICE, CBK, sps, MADRAS reported in ;2oO5ji SCC 69? held as under:
«Under the KE§idence.;hct,i:
1372, VSectien"*i'u§3 this" supplementarf to Section 91 and coroliary to the rule contained in W*$ection§.§91cirfThe§ rule contained".inp;Sectionc 92 will appigjoniy to the parties to the """ "in$t;ua§&td§§ their successors- 'in«interestia Strangers to the xcontracth'(§hich would include thei prosecution in a criminal .£ proceeding) are not barred from A:_establishing a contemporaneous .W,oraleagreement contradicting or puerfing the terms of the in instrument. On the other hand, ..Section 91 may apply to strangers also."-
12. Keeping the law laid down by the Apex Court referred to supra, it is necessary to examine the fact situation in the instant case.
§%\f"
iggi Both in the pleadings and in the evidence, the plaintiff admitted the execution of a registered sale deed on 12.11.1971 as per Ext.D1 in fafiour of defendant No.1. But the plaintiff ~c§p§es§é. that the sale deed Ext.D1 is nominal, sham ended' not acted upon. It is further contended that thé. intention between the parties His toe creat§W_a*, mortgage in the transaction dated 12,l1D1§71 and' not a true and real sa1e'deed. It is relevant to extract the first and the same reads as finderfi pp its" be wdeclared that the _ ,sale 7 deed: "bearing document _N"o_. 21g_.9/117*: "dated 12.11.1971 in respect of the house No.2-5-9 of §&nsalaTaleem, Bidar executed if hyp the plaintiff and the 'V,idefendants Mos.3 to 6 is Vllhoninal, sham and not to be ' acted upon."
fln,._ 13. In View of the law declared by the 'Sfipreme Court in the decisions referred to above, 1 m_the plaintiff is entitled to adduce oral evidence to show that the transaction in a particular document/set of documents is sham, fictitious, was -14- nominal or not intended to be acted upon. Further the facts in GANGABAI'S Case are identical to the facts in 'the instant case. In. GANGABAI'S" Case, the plaintiff executed a nominal sale deed and sf» rent note and they were never intendedn ton beu' acted upon and rent paid iby gher 7335 "in ffafit interest on the loanr';$heVhplaintiffieifurtherpr contended that she continued to be.in possession of the house property throuchout,and carried on repairs from time to tags; the plaintiff further stated that" an attempt to enforce the dqcunent as a sale deed by filing a suit 1 for_ hrecoyeryy'pof_; rent. Therefore, the plaintiff filed a suit against the defendants to declare the sale transaction as nominal, sham and vn_nofi intended to be acted upon. On the basis of "lthes f=:§¢ta}* the Supreme Court held that oral evidence is admissible to show that the document 'fi.@X@CUte¢ was never intended to operate as an Vd*a§reement, but some other agreement altogether not' recorded in the document was entered into hmbetween the parties. Therefore the trial Court rightly held that plaintiff is entitled to adduce oral evidence to establish that the sale flaw W35- transaction dated 12.11.1971 as nominal, sham and not intended to be acted upon. The lower appellate Court comitted an error in holding that there is a bar under Section 92 roffifthe Evidence Act for the plaintiff to jleadhfioral." evidence contrary' to unambiguous and. clear'VsaleVV deed Ext.D1.
14. The reasoning .of _the" lower_ appellate 'V Court is not only _contra_r_§:'-1;c:x_thel "fa.cts;§ of the case but also to the law laid down by the Apex Court in the decisions referred to above. It is not the" case haf "the plaintiff that there is ambiguity ixr the terns of the sale deed Ext.D1 and therefore, he fiants to adduce oral evidence. _. On, the" other _hand, it is the case of the .p1aintiff that the transaction in the sale deed lExt,pi"isinpfiina1, sham and not intended to be acted upon and as such, he is entitled to adduce hhw floral evidence under Section 92 of the Evidence l'Aet.fl Therefore, the finding of the lower l"'. appellate Court that there is a bar under Section 92 of the Evidence Act for the plaintiff to lead evidence is liable to be set aside. Accordingly, g"\r~»~ -15- the substantial question of law framed. by this court is answered.
15. The trial Court on appreciation, of pleadings oral and documentary evidence held that the sale deed dated 12/11/1971 is nominal eed note"
acted upon. The reasoning of the trial Court is u as under:
"In the vlyear lléésl 1thdvw_ schedule propertfxuas mortfiagedl for a sum of Rs 8;uD0}a then it*l is improbable.for the Piaintiff to sell the schedule property in iiii "the _year piéfll for a sum of eee;1g,§a¢;;;ap _i The schedule i%property7 » East worth about
-. L Rs.S0;dO0/- in the year 1971 and _i same sheuld not have been sold :a,fer_e small sum of Rs.l0,000/-. ifyiheksay of the plaintiff that he yiiselagreed to pay Rs.200/-- per "p honth as rent in lieu of . interest at 2% on the principal amount of Rs.10,000/~-- cowinside and tallies. Even after mortgage in the year 1971 the plaintiff continued in possession of the schedule property, the Municipal entries also continued in his @?"vw"
We w -17- name and went on paying taxes .
On the other hand if the sale deed Ex.D~1 is true, genuine and real then defendant No.1 ought to have got transferred the«d> katha in her name and ought--toVug"u have paid the taxes. ."WThéflli witness examined by defendant asn" _ n.w.2 admits _tha£g'Vhé ihas. :"l received a sufiJ*of Rs,8;48$[§nW from 'the plaintiffg towards ythehg amount due to the defendant N622"
under Ex.§¥2; iihe hdsfendants have not pleadedfinor filaced any evidsfiss its: wshowdfTth§£ this payment under Ex:P+3 was for any otherw transactions other than °. the suit transaction. Plaintiff 'and.his family consisting of six daughters 'are residing in the plaintf schedule property and i<that,is the only house available dfrfor them. If that is so, then '.the plaintiff could not have if sold under Ex.D~1 for a sum of Rs.10,000/-- to discharge the earlier uwrtgage of Rs.8,000/-. If really plaintiff has sold the house then there was no need for him to repair the plaint schedule houseqjagfwto let out M33"
different portions to other tenants."
16. on the above reasoning the trial Court held that the sale deed Ex.D~1 is nominal and hot:
acted upon. The lower appellate_ Court fiwhiieupé reversing the finding of 1the gtrialg fiourtf is having an obligation to consider the §ea$o:ing"o£=x the trial Court and by*€assigning"=reasons 'can differ with the find~i.ngspw'iof But in the instant case the ioserlappeilate Court has not considered the reasoning given by the trial Court anq_wsitho§F= éigigninéi §#§f reason reversed the findifie of the trial Court. This approach of the lower appeliate Court is bad in law. ;'IT. The "plaintiff in his pleadings and fifevideneeihadmits 'that iiii the transactions dated 1,i2/ii[i971 % finder Ex.D--1 was not a sale transaction and that the same was security for 'u_repayment of anortgage debt of" Rs.10,000/--. If hhthat is so then the defendant No.1 is entitled to sork out her remedy in accordance with law against the plaintiff and defendants 3 to 6. a W _19_
18. For the reasons stated above, the following order:
The appeal is hereby allowed. Thd_i@§fighédd.
judgment and decree of lowexb apgelletedkcouxtu' dated 13/12/1999 in 11.1; No.12/8:5-9;5a§93ed' "b{,*;a.¢d=3f District Judge, Bidar is-_herebyd set: aside. ?The_d> judgment and decree of tfiertriai"Couft in CLS. No.39/'7'? dated 1o,2_3';l199'A5 by fie Addl.
Civil Judge, Bidar is hereby resficfedfl Orde:ed.adeoxdingly._;A V_._fimiigg_w@fi99HgW} .... gfijm adus¢;;:«g*d=