Gopal Ramji Tajne vs Mukund Sampat Khule on 17 December, 2019

[Cites 5, Cited by 0]

Bombay High Court

Gopal Ramji Tajne vs Mukund Sampat Khule on 17 December, 2019

2. This is the defendant's appeal against the Judgment and decree dated 31/10/2003 passed by the Court 3 rd Additional District Judge, Akola in Regular Civil Appeal No.165/1999, whereby the learned First Appellate Court partly allowed the appeal ::: Uploaded on - 20/12/2019 ::: Downloaded on - 26/04/2020 11:52:14 ::: 3 J-SA-34-04.odt by setting aside the Judgment and decree dated 09/04/1999 of Civil Judge, Junior Division, Patur in Regular Civil Suit No.41/1991 and allowed the plaintiff to execute the decree of possession against the defendant and also allowed the plaintiff to initiate a proceeding for claim towards mesne profit.

3. While admitting this appeal on 03/06/2008, this Court framed the following substantial questions of law.

1) Whether the first appellate Court was right in holding that the party is prevented from leading evidence by virtue of provisions contained in Sections 91 and 91 of the Evidence Act, even if the plea was only to the effect that particular document was not intended to be acted upon ?

2) Whether it was necessary for the defendants to have instituted a suit for specific performance of reconveyance of the field in his favour by virtue of an agreement Exh.137 ?

4. Heard Shri C. A. Joshi, learned counsel appearing on behalf of the appellants and Shri B. N. Mohta, learned counsel appearing on behalf of respondents. The parties hereinafter referred to as per their original status in the suit.

The facts in brief, necessary to decide the present appeal, are as under :-

5. The plaintiff filed a suit for declaration and permanent injunction on the basis of sale deeds dated 29/04/1974 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 26/04/2020 11:52:14 ::: 4 J-SA-34-04.odt and 31/05/1974 contending that he is the owner of the suit land i.e. Field Survey No.83/4, 2 hectares 81 R of village Tondi, Tq. Patur, Dist. Akola and is in possession thereof. It is the specific defence of the defendant that the abovesaid sale deeds were nominal and were executed by way of security towards loan obtained by the defendant from plaintiff, he executed those sale deeds. The defendant claimed his possession of the suit property even after execution of sale-deeds. As he could not pay interest on the loan amount, therefore, he delivered possession to the plaintiff during the period from 1976-1977 to 1988-1989.

6. By way amendment the plaintiff added pleadings with regard to forcible possession obtained by the defendant during the pendency of the suit and the plaintiff also added relief for possession of the suit property.

7. On the basis of pleadings of the parties, necessary issues were framed and evidence was recorded. The learned Trial Court dismissed the suit vide Judgment dated 09/04/1999 and gave findings that the aforesaid sale deeds were nominal and possession of the suit property was not delivered by defendant to the plaintiff.

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8. The plaintiff carried the Judgment and Decree of the dismissal of the suit before the First Appellate Court in R.C.A. No.165/1999. The Appellate Court partly allowed the appeal by setting aside the Judgment and decree of the Trial Court and directed execution of the possession of the suit property in favour of plaintiff. The First Appellate Court held that no evidence could not have been allowed to be led to prove that the aforesaid sale deeds were nominal in view of the provisions of Sections 91 and 92 of the Evidence Act and Exh.137 cannot be considered for want of registration.

9. The defendant carried the impugned Judgment and decree of the First Appellate Court in the second appeal and the aforesaid substantial questions of law have been framed by this Court.

10. Shri Joshi, learned counsel appearing on behalf of appellant submitted that the plaintiff has failed to prove the sale deeds dated 29/04/1974 and 31/05/1974 and the First Appellate Court committed an error in relying on those sale deeds which were nominal documents executed for the purpose of security of loan of Rs.2,500/-. The learned counsel in support of his ::: Uploaded on - 20/12/2019 ::: Downloaded on - 26/04/2020 11:52:14 ::: 6 J-SA-34-04.odt submissions relied on the Judgment of Hon'ble Apex Court in the case of Gangabai Vrs. Chhabubai, reported in 1982 Mh.L.J. 1. It is further submitted that even after execution of sale deeds, it being nominal, the possession of the suit property had remained with the defendant and the same could be seen from the crop statements Exhibits 27-N and 27-O. The learned counsel submitted that the proceedings before the Revenue Authorities initiated by the plaintiff for correction of crop statements were dismissed up to the level of Additional Collector. The learned counsel further submitted that since the filing of the suit, suit property is in possession of the defendant and the same fact has been admitted by the plaintiff in his cross-examination.

11. The learned counsel also referred to Section 17 of the Registration Act and submitted that Exh.137 i.e. receipt executed by the plaintiff could have been relied on for collateral purposes. The learned counsel, in support of his submission, also placed reliance in the case of Venugopal Padayachi (dead) through LRs Vrs. V. Pichaikaran (dead) through LRs, reported in 2019 (4) Mh.L.J.246. The learned counsel prayed to allow the appeal by setting aside the Judgment and decree of First Appellate Court. ::: Uploaded on - 20/12/2019 ::: Downloaded on - 26/04/2020 11:52:14 :::

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12. Per contra, Shri Mohta, learned counsel appearing on behalf of the respondent submitted that there is no question of proof of sale deeds dated 29/04/1974 and 31/05/1974 as the defendant does not deny the execution of those sale deeds. The learned counsel further submitted that during the pendency of the suit, the defendant forcibly obtained possession of the suit property and therefore, the plaintiff was required to amend the suit and to seek prayer for restoration of possession. The learned counsel submitted that the original copies of both the sale deeds have been placed on record and the defendant does not dispute its execution. The learned counsel submitted that Exh.137 i.e. receipt can not be considered for want of its registration and any claim on the basis of Exh.137 by the defendant is beyond the period of limitation. The learned counsel supported the impugned Judgment and decree of the First Appellate Court and prayed to dismiss the appeal.

13. I have considered the submissions made on behalf of both the parties.

14. At the outset, defendant does not disputes the execution of sale-deeds dated 29/04/1974 and 31/05/1974, ::: Uploaded on - 20/12/2019 ::: Downloaded on - 26/04/2020 11:52:14 ::: 8 J-SA-34-04.odt however, the defendant disputes the contents in the sale-deed. Though the original copies of the aforesaid sale-deeds have been placed on record by the plaintiff, the plaintiff failed to enter into the witness box to prove its contents.

15. On the contrary, since beginning defendant's case is that he has executed the sale-deeds with an intention not to be acted upon and only for the purpose as a security of loan of Rs. 2500/- which he had obtained from the plaintiff.

16. Section 91 of the Indian Evidence Act, 1872 provides for production of documents itself, to prove the terms of the contract etc. which have been reduced to the form of the document and Section 92 of the Indian Evidence Act, 1872 excludes oral evidence which is contrary to the terms of the document. In the instant case, though the documents i.e. sale-deeds dated 29/04/1974 and 31/05/1974 of the suit property have been placed on record, however, the truthfulness of contents therein could not be proved by the plaintiff as per law.

17. On the other hand, defendant vide Exh. 137 i.e. a writing executed by the plaintiff, undertaking to re-convey the ::: Uploaded on - 20/12/2019 ::: Downloaded on - 26/04/2020 11:52:14 ::: 9 J-SA-34-04.odt property on satisfaction of the loan amount and, therefore, the finding recorded by the first appellate Court that in view of Sections 91 and 92 of the Indian Evidence Act, 1872, the oral evidence which is inconsistent with the terms of document cannot be considered. The legal position with regard to Sections 91 and 92 cannot be disputed, however, considering the facts and evidence on record, as stated earlier, the truthfulness of the contents in the aforesaid sale-deeds dated 29/04/1974 and 31/05/1974 could not be proved and, therefore, there is no question to adduce any other evidence which is contrary to the contents in the sale-deed.

18. No doubt, both the sale-deeds are registered document. Now, the question is whether any interest is created by way of those sale-deeds in favour of the plaintiff. Section 8 of the Transfer of Property Act, 1882 speaks about operation of transfer which is reproduced as under :

"Section 8 : unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof...."

19. A perusal of Section 8 of the Transfer of Property Act, 1882, it is clear that the interest in the property is transferred ::: Uploaded on - 20/12/2019 ::: Downloaded on - 26/04/2020 11:52:14 ::: 10 J-SA-34-04.odt forthwith to the transferee, however, if there is not a different intention expressed or necessarily implied. In the instant case, as rightly submitted by the learned Counsel Shri Joshi appearing for appellants that the intention was not to act upon the sale-deeds and those were executed only by way of security of loan and, therefore, interest of the defendant in the suit property was not transferred to the plaintiff.

20. In support of his specific pleadings, the defendant has filed on record certified copies of 7/12 extract (Exh. 27 O and 27 M) to show that even after execution of sale-deeds, the possession of the property was remained with the defendant for two years i.e. for 1975-1976 and 1976-1977 and when the defendant could not pay interest on the loan amount as agreed, he surrendered his possession in favour of the plaintiff for ten years i.e. still 1988 and thereafter again on payment of Rs. 2000/- regained the possession of the suit property. The plaintiff himself in his cross-examination has admitted that at the time of filing of the suit, the possession of the property was with the defendant. The plaintiff could not rebuke the aforesaid evidence as has been brought on record by the defendant.

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21. Initially, the plaintiff filed a suit for declaration and injunction and thereafter he amended the plaint and sought relief of possession. It is the case of the plaintiff that during the pendency of the suit, defendant forcibly obtained possession of the suit property, however, the plaintiff could not prove this fact with satisfactory evidence.

22. Apart from this, the defendant has brought on record the certified copies of the orders of the Revenue authorities to show that the attempts of the plaintiff to correct entries in the crop statement could not be succeeded up to the level of Additional Collector. Shri Mohta, learned Counsel submitted that the order of Additional Collector has been challenged and which is pending before the Divisional Commissioner. However, there is nothing on record to show this fact.

23. Shri C.V. Joshi, learned Counsel in support of his contention placed reliance on the judgment of Hon'ble Apex court in the case of Gangabai Vrs. Chhabubai, reported in 1982 Mh.L.J.

1., wherein in the similar facts and circumstances, the Hon'ble Apex Court in paragraph No. 11 held as under :

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12 J-SA-34-04.odt "11. The next contention on behalf of the appellant is that sub-section (1) of Section 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-section (1) of Section 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 Section 92 says that 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. It is clear to us 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 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 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 26/04/2020 11:52:14 ::: 13 J-SA-34-04.odt agreement but that some other agreement altogether, not recorded in' the document, was entered into between the parties. Tyagaraja Mudliyar v. Vedathasni 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.

24. The sum and substance of the aforesaid paragraph is that Sub Section (1) of Section 92 of the Indian Evidence Act, 1872 would not be 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 the document is a sham and 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 and 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.

25. In the instant case as stated earlier the truthfulness of the contents in the document i.e. sale-deeds could not be proved ::: Uploaded on - 20/12/2019 ::: Downloaded on - 26/04/2020 11:52:14 ::: 14 J-SA-34-04.odt and the defendant could prove Exh. 137 and proved that the intention since beginning of the parties was not to act upon the sale-deeds and it was executed only for the purpose of security for loan transaction.

26. For the reasons aforestated, the appellate Court is not justified in reversing the findings of the learned Trial Court and thereby decreeing the suit.

27. In this view of the matter, the Judgment and Decree of the learned first appellate Court is quashed and set aside and the Judgment and Decree of the trial Court is confirmed. The appeal is allowed with no order as to costs.

JUDGE Choulwar / D.S. Baldwa ::: Uploaded on - 20/12/2019 ::: Downloaded on - 26/04/2020 11:52:14 :::

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