Kerala High Court
Leelamma Ambikakumari And Anr. vs Narayanan Ramakrishnan on 18 September, 1991
Equivalent citations: AIR1992KER115, AIR 1992 KERALA 115, (1992) ILR(KER) 1 KER 99, (1991) 2 KER LJ 648, (1991) 2 KER LT 728
JUDGMENT P. Krishnamoorthy, J.
1. Defendants in a suit for realisation of balance sale consideration are the appellants. Shorn of unnecessary details, the facts of the case are as follows: According to the plaintiff, he entered into an agreement of sale with the defendants on 22-6-1981 for selling the plaint schedule property, 3 cents of land and an unfinished building therein, for a total consideration of Rs. 16,000/-. It was provided in the agreement that Rs. 4000/ -was paid as advance on that day. But, as a matter of fact, only Rs. 1000/- was paid to the plaintiff and the balance Rs.3000/- was reserved with the defendants for paying off a debt due from the plaintiff to the Development Corporation for Scheduled Castes and Scheduled Tribes. Original period of the agreement was up to 22-9-1981 and according to the plaintiff it was extended till 18-12-1981. Plaintiff alleged that by undue influence and fraud the defendants got executed a sale deed Ext. A2 on 21-12-1981 in which the sale consideration was fixed at Rs. 10,000/-, According to the sale deed an amount of Rs. 7000/- was paid before the Sub-Registrar and the balance Rs. 3000/- was reserved with the defendants to pay off the debt due from the plaintiff to the Development Corporation for Scheduled Castes and Scheduled Tribes. It is alleged in the plaint that the defendants had agreed to pay the balance amount of Rs. 5000/- as soon as the document was registered, but contrary to the agreement they paid only Rs. 2000/-. The suit is filed for recovery of the balance amount of Rs. 3000/-with interest and costs.
2. The defendants denied that the consideration was Rs. 16,000/-. Though they admitted that the original agreement was for Rs. 16,000/-, later as the plaintiff removed certain valuable materials from the building, the consideration was reduced to Rs. 10,000/ -, out of which they paid Rs. 7,000/- before the Sub-Registrar and the balance reserved towards discharge of a liability of the plaintiff towards the Development Corporation for Scheduled Castes and Scheduled Tribes. They have paid the amount and according to them no amount is due to the plaintiff. They also contended that the claim of the plaintiff is barred by the provisions contained in Sections 91 and 92 of the Indian Evidence Act (hereinafter referred to as 'the Act') and that the plaintiff is not entitled to contend that the actual consideration for the sale was more than the amount shown in Ext. A2 sale deed.
3. Both the Courts below accepted the case of the plaintiff that the actual consideration was Rs. 16,000/- and accordingly granted a decree to the plaintiff for realisation of the amount as claimed in the plaint. Though the lower appellate Court considered the question as to whether there is a bar under Sections 91 and 92 of the Act and noted the decision cited by appellants' counsel, it has not entered a definite finding, but on the evidence in the case agreed with the trial Court. Defendants have come up in appeal.
4. Before this Court, counsel for the respondent submitted that he has no instructions in the matter and accordingly I have had not the advantage of hearing the arguments on behalf of the respondent's counsel.
5. The question of law on which the appeal was admitted is as to whether the plaintiff is entitled to raise a contention regarding the difference in consideration in Ext. A2 sale deed, in view of the provisions contained in Sections 91 and 92 of the Act. Though the plaintiff had alleged in the plaint that the sale deed Ext. A2 was executed by showing a less consideration due to the undue influence and coercion of the defendants, there is no evidence to that effect and both the Courts below have not found that Ext. A2 is vitiated. So, we have to proceed on the basis that Ext. A2 sale deed was executed by the plaintiff by his own free volition. In Ext. A2 the consideration is shown as Rs. 10,000/-; an amount of Rs. 7,000/- was paid before the Sub-Registrar and Rs. 3,000/- was reserved with the defendants to discharge the liability of the plaintiff towards the Development Corporation for Scheduled Castes and Scheduled Tribes. The case of the plaintiff is that though the actual consideration in Ext. A2 is shown as Rs. 10,000/-, the real consideration agreed to between the parties was Rupees 16,000/-. The question to be decided is as to whether the plaintiff is entitled to raise such a contention in view of the prohibition contained in Sections 91 and 92 of the Evidence Act.
6. Section 91 of the Act, in so far as it is relevant, provides that 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, except the document itself. Section 92 of the Act further provides that when the terms of any such contract, grant or other disposition of property have been reduced to the form of a document as provided for in Section 91, no evidence of any oral agreement shall be admitted as between the parties to any such instrument, for the purpose of contradicting, varying, adding to, or subtracting from, its terms. On a reading of Sections 91 and 92 it is clear that if a disposition of property is to be reduced into writing by any provision of law and if any document is executed, that alone shall be produced as evidence. Section 92 further provides that no party to the document shall be entitled to adduce any evidence of any oral agreement, varying, adding to, or subtracting from its terms. Provisos (1) and (2) to Section 92 alone are relevant and the first proviso says that notwithstanding the main Section, a party will be entitled to prove any fact which would invalidate any document by reason of fraud, intimidation, illegality, want of due execution or failure of consideration. Proviso (2) states that evidence regarding the existence of any separate oral agreement is admissible in respect of any matter on which a document is silent. In this case the document provides the consideration as Rs. 10,000/- and so the document is not silent regarding the quantum of consideration. Proviso (1) also cannot be applicable as there is no case that the document is in any way invalid or there is any failure of consideration. The only case is that the consideration mentioned in the document is not the real consideration but something more. In other words, according to the plaintiff, though the consideration in the sale deed is Rs. 10,000/-, the real consideration agreed to between the parties was Rs. 16,000/-. If consideration is a term of the grant or disposition of the property, certainly no separate oral agreement can be set up in derogation or variation of the same under the main part of Section 92. So, the question to be decided is as to whether the consideration for the document is a term of the contract or disposition of property. On a plain reading of Section 92 and on going through the principles governing disposition of property, there cannot be any doubt that the consideration for a contract or disposition of property is a term of the contract, for no contract would be valid without consideration. The consideration being a term of the contract, when the conveyance provides that the consideration is Rs. 10,000/-, I am clearly of the view that the plaintiff is not entitled to set up a separate agreement varying the quantum of consideration. It may be that a party may be entitled to show that the consideration is different in kind from the consideration shown in a document or that the full consideration shown in a document is not paid or that there is failure of consideration. But a party to a document or a conveyance or disposition of property will not be entitled to say that the real consideration is more or less than the consideration shown in the contract or in the grant. Various High Courts have considered this aspect of the matter and the earliest decision which was brought to my notice was a Full Bench decision of the Allahabad High Court, reported in Md. Taki Khan v. Jang Singh, AIR 1935 All 529. Considering the scope of Sections 91 and 92 of the Act, Sulaiman C. J. observed as follows (at page 534):
"I have therefore no hesitation in holding that where under a written document there is some amount still outstanding which under its terms has to be paid by the transferee, then it is not open to the transferee to produce oral evidence to show that there was a separate contemporaneous oral arrangement under which it was agreed that this sum would not be payable, for such a course would be allowing him to contradict the terms of the document and would be contrary to the provisions of Section 92, Evidence Act."
In the same decision Bennet, J. held as follows:--
"As a result I consider that the following three propositions of law are established, and I understand that my learned brother, Harries J., agrees with them all and that the learned Chief Justice agrees with the first two: (1) The amount of sale consideration is a term of a deed of sale. When the terms of a deed of sale have been proved according to Section 91, Evidence Act, no evidence of any oral agreement or statement shall be admitted as between the parties to the deed of sale or their representatives for the purpose of contradicting, varying, adding to, or subtracting from the amount of sale consideration. (2) The acknowledgement of receipt of the whole or part of the sale consideration in a deed of sale is not a term of the deed of sale and oral evidence may be given to show that the amount acknowledged or any part of it was not received. (3) When one party tenders oral evidence to prove that the amount acknowledged or any part of it was not received, this does not give the other party a right to produce evidence of any oral agreement or statement that the amount of sale consideration was less than what is entered in the deed of sale."
Harries, J. also agreed with the propositionlaid down by Sulaiman C. J. and Bennet, J.
7. In Bai Hiradevi v. Official Assignee, AIR 1955 Bom 122 on behalf of a Division Bench Chagla C. J., interpreting Sections 91 and 92 of the Act, held as follows (at p. 124 of AIR):
"In the case of a conveyance, it would not be open to either of the parties to the document to prove that, if the consideration was mentioned as Rs. 10,000, in fact the consideration was less or more."
8. A Division Bench of the Madras High Court in K.S. Narasimhachari v. Indo Commr. Bank, AIR 1965 Madras 147, on interpretation of Section 92 of the Act, held (at p. 149 of AIR):
"Proviso (1) to Section 92 of the Evidence Act says that any fact may be proved which would invalidate any document or which would show want or failure of consideration. It is well recognised that under the terms of the proviso while it will be competent to the party to a contract to adduce evidence to prove want of consideration or failure of consideration or a difference in kind of consideration specified in the document, it will not be competent for him to prove a variation of the consideration recited in the document. Consideration specified in a document will be one of the terms of the contract evidenced by it. Thus, where consideration although specified to be of a particular kind, e.g. cash can and will be shown to be for different kind, or it can be shown that it is false and that there was really no consideration. But this is different from a case where a party admits the passing of consideration specified in the document, but attempts to show that the consideration was either less or more than what is specified. This he is not allowed to do."
The same principle was enunciated by a Division Bench of the Mysore High Court also, in the decision reported in S. Rajanna v. S.M. Dhondusa, AIR 1970 Mysore 270. After holding that the consideration is a term of the contract, their Lordships further held as follows (at p. 280 of AIR) :--
"The choice of the word 'matter' and the description of it as something which is not inconsistent with "the terms" leaves no room for doubt, in our opinion, that the proviso cannot be made use of to alter or qualify or add to what may rightly be regarded as a term of the contract or transaction embodied in the document. Hence, if consideration is to be regarded as one of the terms of the transaction, no oral evidence under the second proviso can be permitted of a matter which would be to any extent inconsistent with the said term of the document. If a document actually states or sets out the consideration for the contract or for the transaction, it is not permissible by oral evidence to contradict, vary, add to, or subtract from the same. It is of course permissible to prove either that no consideration as set out in the document had been received or that a portion thereof alone had been received or that satisfaction has been received in respect of consideration in a matter otherwise than set out in the document. But those are matters which come more appropriately under the first proviso because that proviso permits proof of any fact which invalidates a document, for example, absence of passing of consideration as set out in the document or as amounting to want or failure of consideration which is expressly stated in the proviso."
9. No doubt, in Nabin Chandra v. Shuna Mala, AIR 1932 Cal 25, there is an observation to the following effect:--
"Section 92 prohibits contradicting any of the terms of the document provided by law to be reduced to the form of a document by any oral agreement or statement; and since the consideration mentioned in a document is not one of the terms of the document but is a recital of fact which can be contradicted or varied under proviso (i) of the section, it is permissible always to prove that the consideration mentioned in a document is not the real consideration but something different."
But on a reading of the facts of the ease it can be seen that the dispute was regarding the kind of consideration for the sale in question in that case. The dispute therein was as to whether the consideration for the sale to the defendant in 1899 was the debt incurred by one Golok in 1891 or whether it was Rs. 200/-as mentioned in the document. The question arose as to whether a party can plead and prove that the kind of consideration is different from what is actually mentioned in the document. It can be seen that it was in that context that their Lordships held that it is always permissible to prove that the consideration mentioned in a document is not the real consideration but something different. On a close reading of the decision it can be seen that their Lordships were considering a case where there was dispute regarding the kind of consideration that passed between the parties and not a case where it was suggested that the real consideration was something more or less than what was stated in the contract or in the conveyance.
10. From the aforesaid decisions, it is absolutely clear that Sections 91 and 92 of the Evidence Act is a complete bar for any party to set up a case that the consideration for a sale is more than what is mentioned in the conveyance or in the contract. In the present case, the plaintiff has no case that the consideration mentioned in the document was not paid or that there was any failure of consideration or that the consideration agreed to between the parties was of a different kind than what is mentioned in the document. The definite case of the plaintiff is that the real consideration for the sale was Rs. 16,000/- whereas the conveyance shows the consideration to be Rs. 10,000/-. In view of the provisions contained in Sections 91 and 92 of the Evidence Act, the plaintiff is not entitled to plead such a case nor is he entitled to adduce evidence in support of the same. In that view of the matter, the decree passed by the courts below is wrong and is liable to be set aside.
11. In the result, I set aside the judgments and decrees of the courts below, allow the second appeal and dismiss the suit. In the circumstances of the case, the parties will bear their costs throughout.