Delhi High Court
Smt. Nilima Ghosh vs Harjeet Kaur & Ors on 21 December, 2010
Equivalent citations: AIR 2011 DELHI 104, (2010) 175 DLT 538
Author: Rekha Sharma
Bench: Rekha Sharma
REPORTABLE
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RFA No.403/1999
Reserved on August 10, 2010
Date of Decision: December 21, 2010
SMT. NILIMA GHOSH ..... Appellant
through Mr. N.M.Varghese, Advocate
versus
HARJEET KAUR & ORS ...... Respondents
through Mr. Jagmohan Sabharwal, Senior
Advocate with Mr. Rajan Sabharwal &
Ms. Seema Bhaduriya, Advocates for
respondent No.1.
CORAM:
HON'BLE MISS JUSTICE REKHA SHARMA
1. Whether the reporters of local papers may be allowed to see the
judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported in the „Digest‟? Yes
REKHA SHARMA, J.
The bone of contention between the parties to the appeal is a property at D-713, Chitranjan Park, New Delhi.
It all started in the year 1988 with respondent No.1 before me filing a suit for specific performance against the appellant and three others, initially in this Court which was later transferred to the Court of an Additional District Judge after the pecuniary jurisdiction of the High Court was enhanced. Basing her case on two agreements dated February 21, 1985 and September 07, 1987, respondent No.1 alleged that the appellant had agreed to sell the aforementioned RFA No.403/1999 Page 1 of 19 property to her for a total consideration of ` 2,00,000/- and that even after having received the full sale consideration, she refused to execute the sale deed in her favour.
The learned Additional District Judge who heard the suit, vide judgment dated February 12, 1999 held in favour of respondent No.1 and consequently passed a decree against the appellant for specific performance of the agreement dated September 07, 1987 with a direction to the appellant to put respondent No.1 into possession of the property in dispute. The appellant was also directed to file applications/papers seeking necessary permission/No Objection from the concerned authorities within a month and after getting such permission/No Objection, was further directed to execute the sale deed of the property in question in favour of respondent No.1 within a month, failing which respondent No.1 was granted the liberty to get the sale deed executed through the machinery of the Court. As against the other three, the suit was dismissed.
Aggrieved by the aforementioned judgment and decree, appellant has preferred the present appeal, in which the three others who were co-defendants with her in the suit have been impleaded as defendants No.2, 3 & 4.
Before I come to the meat of the matter, it is necessary to refer, in some detail, the case of respondent No.1 as was set-out by her in the plaint and the response of the appellant to the same.
It transpires from the plaint that the appellant vide an agreement dated February 21, 1985 agreed to sell the aforementioned property to respondent No.1 for a total consideration of ` 2,00,000/-, out of which RFA No.403/1999 Page 2 of 19 ` 40,000/- stood already paid as on the date of the agreement vide cheque No.182465 dated February 19, 1985 drawn on Syndicate Bank Branch, Moti Nagar, New Delhi. As per the terms of the agreement, respondent No.1 was to pay a further sum of ` 10,000/- by an account payee cheque on or before March 19, 1985, another ` 1,00,000/- at the time of handing over the possession and the balance ` 50,000/- at the time of execution of the sale deed and other documents. It was also a term of the agreement that the appellant was to hand over the vacant and peaceful possession of the property to respondent No.1 within three years from the date of the execution of the „Agreement to Sell‟ and in the event of her failing to hand over the possession, for any reason whatsoever, she was liable to pay ` 50,000/- to respondent No.1 along with interest thereon @ 18% per annum from the date of payment till the amount was repaid.
It appears that the agreement between the parties ran into rough weather, for it was alleged in the plaint that even after respondent No.1 had paid to the appellant further sum of ` 10,000/- towards part-payment of the sale consideration and thereafter had written to the appellant that she was ready and willing to pay another sum of ` 1,00,000/-, the appellant rather than accepting the same and handing over peaceful and vacant possession of the property to respondent No.1 informed her that she had let out the property to respondent No.2 at a monthly rental of ` 650/-. It also came to light that the appellant had obtained loan of ` 35,687/- from the Union of India under the „Low Income Group Housing Scheme‟ for the purpose of constructing a house and by way of security had mortgaged the RFA No.403/1999 Page 3 of 19 aforementioned property with the Union of India, even though in the „Agreement to Sell‟, she had represented to respondent No.1 that the property was free from all encumbrances. Apprehending that the „Agreement to Sell‟ might not fructify into a sale deed on account of the appellant having mortgaged the property with the Union of India, respondent No.1 tried to redeem the situation by making payment of the loan amount of ` 35,687/- on behalf of the appellant vide Pay Order No.MC-999/87 dated June 10, 1987 drawn on Punjab & Sind Bank, Patel Nagar Branch. Thereafter, a second agreement dated September 07, 1987 was entered into between them. The second agreement stipulated no change in the sale consideration of ` 2,00,000/-. Rather the appellant admitted therein that she had received from respondent No.1 a total sum of ` 1,89,687/- which included ` 40,000/- vide cheque No.182465 dated February 19, 1985, ` 10,000/- vide cheque No.182467 dated February 22, 1985, both drawn on Syndicate Bank, Moti Nagar Branch, New Delhi, ` 35,687/- vide Pay Order No.MC-999/87 dated June 10, 1987 drawn on Punjab & Sind Bank, Patel Nagar Branch, New Delhi, ` 14,000/- in cash and ` 90,000/- vide cheque No.405923 dated September 09, 1987 drawn on Punjab & Sind Bank, Patel Nagar Branch. She also admitted that the property was under the tenancy of Shri S.P.Chandak at a monthly rental of ` 650/- but with the signing of the agreement she gave symbolic possession of the same to respondent No.1 along with the right to receive and recover the rent from the said tenant. She also agreed to obtain permission to sell the property from the L&D.O., Nirman Bhawan, New Delhi, or any other concerned authority in favour RFA No.403/1999 Page 4 of 19 of respondent No.1 on the understanding that unearned increase, if any, will be paid by respondent No.1. It was further agreed that whenever the sale permission/income-tax clearance and all other formalities for registration were completed, she would execute and register the sale deed in favour of respondent No.1, failing which respondent No.1 could get the sale deed executed and registered through Court of law by filing a suit for specific performance at the cost and expense of the first party.
It was in the aforementioned background that respondent No.1 filed the suit for specific performance.
Coming to the response of the appellant, she not only denied each and every averment made in the plaint including the fact that she had received consideration money from respondent No.1 but she also took two principal objections with regard to the execution of the alleged „Agreements to Sell‟. Firstly, she disputed her own competence and capability to enter into the two agreements. As per her, she was not in a sound state of mind and was incapable of understanding and forming a rational view with regard to the effects of the agreements upon her interest and hence, she alleged that the same were void. She claimed that the property was worth ` 20,00,000/- and no sane person would have agreed to sell the same for a sum of ` 2,00,000/- only. Secondly, it was her case that she alone was not the owner of the property. She alleged that it was allotted by the Land & Development Office, Ministry of Rehabilitation initially in the name of her husband, Shri Bimal Chandra Talukdar and upon his death, it devolved not only upon her but also upon her two sons, RFA No.403/1999 Page 5 of 19 namely, Pradeep Kumar Talukdar and Pranab Kumar Talukdar. She did not deny that the Land & Development Officer consequent upon the death of her husband had executed the lease deed in her favour alone but that, according to her was done only after she had given an undertaking that she would not sell the same. It was, thus, her case that she could not enter into the „Agreements to Sell‟ in respect of the property which did not belong to her alone and hence, she alleged that the suit was also bad for non-joinder of necessary parties. As regards her signatures on the sale deed, she alleged that her son Pradeep Kumar Talukdar was hand-in-glove with respondent No.1 and taking advantage of her mental sickness, he got several papers signed from her and those papers were later converted into „Agreements to Sell‟ dated February 21, 1985 and September 07, 1987. She also alleged that on coming to know of the fraud committed by her son in connivance with respondent No.1, she along with her other son Pranab Kumar Talukdar filed a suit against respondent No.1 and her son Pradeep Kumar Talukdar for perpetual injunction restraining her son Pradeep Kumar Talukdar from alienating her property in favour of respondent No.1. As per her, in that suit, Pradeep Kumar Talukdar gave an undertaking that he would not transfer the property in question either to respondent No.1 or to anybody else without the written consent of the appellant, upon which she withdrew the same. It was her case that both Pradeep Kumar Talukdar and respondent No.1 were bound by the said statement.
The learned Additional District Judge on the basis of the pleadings of the parties framed the following issues:- RFA No.403/1999 Page 6 of 19
1. Whether the plaintiff is entitled for a decree for specific performance of the property No.D-713, Chitranjan Park, New Delhi.
2. Whether the plaintiff is entitled to the decree of mandatory injunction against the defendants? OPP
3. Whether the defendant No.1 is not competent to enter into a valid contract for agreement to sell the dispute property? OPD1
4. Whether the suit is bad for non-joinder of necessary parties? OPD1
5. Whether the Agreements to sell dated 21.2.85, 7.9.87 between the parties are illegal and void? OPD1
6. Whether there is no cause of action against the defendant No.1? OPD1
7. Whether the suit has not been tenable in the present form? OPD1.
8. Whether there is no privity of contract among the plaintiff and defendant No.2 & 3? OPD 2, 3
9. Relief to which the parties are entitled.
The learned Additional District Judge on both the principal objections raised by the appellant that she was a person of unsound mind at the time of execution of the agreements and that the property in question did not exclusively belong to her and hence, she could not have disposed of the same being co-owner with her sons, has held against her. It is these findings which have been assailed before me.
Was the appellant suffering from unsoundness of mind? She, of-course says, she was, but does the evidence that she led in support also bear testimony to her claim?
Before I examine the evidence on record, I deem it proper to refer to Sections 11 & 12 of the Indian Contract Act, 1872, as they RFA No.403/1999 Page 7 of 19 have a bearing on the issue. Section 11 tells us, who are the persons competent to enter into a contract and, Section 12 defines, what is a sound mind for the purposes of contracting? As per Section 11, "every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject. "
Section 12 provides that, "a person is said to be of sound mind for the purpose of making a contract, if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests." It further provides that, "a person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind. " It also provides that, "a person who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind. "
It follows from Section 11 that only a person of sound mind can enter into a contract and, it follows from Section 12 that soundness of mind of a person has to be seen at the time when he enters into a contract and it matters not if such a person is usually of unsound mind but occasionally of sound mind or, is usually of sound mind but occasionally of unsound mind. What has to be seen is, whether at the relevant time and that relevant time is when he made the contract, he was capable of understanding it and forming a rational view as to its effects upon his interest.
The appellant in support of her plea that she was of unsound mind, had relied upon documents Exh.D-1/W-4/X-6, Exh.D-1/W-4/X-5 and Exh.D-1/W-4/X-3.
RFA No.403/1999 Page 8 of 19
It is borne out from document Exh.D-1/W-4/X-6 that the appellant was working as a Water-woman in the Directorate of Education, Delhi and that on April 28, 1989 she sent a request to her department that she be retired from service on account of invalidation. It is further borne out from Exh.D-1/W-4/X-6 that in response to her request, the department wrote to the Medical Superintendent, L.N.J.P. Hospital, New Delhi to get her examined by a Medical Board and directed her to appear before the Medical Board for her medical examination. A Medical Board at L.N.J.P. Hospital was thus constituted and the appellant was examined by the Medical Board which gave its report on October 26, 1989 vide Exh.D-1/W-4/X-5. As per the said report, she was found to be suffering from "Chronic Schizophrenia" and was opined to be not fit to do her official duty. The Directorate of Education wanted the report in Form No.23, under Rule 38(3) of CCS (Pension) Rules. Hence, it wrote to the Chairman, Medical Board to send the same in that form. Accordingly, the Medical Board sent another report on the prescribed form wherein it was recorded that the appellant "was completely and permanently incapacitated for further service of any kind in the department to which she belongs in consequence of "Chronic Schizophrenia". This report was dated January 10, 1990 and was exhibited as Exh.D-1/W-4/X-3.
Undoubtedly, the above two reports did declare the appellant a chronic case of „Schizophrenia‟ and unfit for service, but in view of Sections 11 & 12 of the Indian Contract Act, 1872, for declaring the two „Agreements to Sell‟ dated February 21, 1985 and September 07, 1987 illegal and invalid, what has to be seen is whether she was suffering RFA No.403/1999 Page 9 of 19 from such disability on the date she entered into the „Agreements to Sell‟. As noticed above, it was on April 28, 1989 that she had written to her office to be relieved from service and it was on October 26, 1989 and January 10, 1990 when the Medical Board had furnished the reports regarding her medical unfitness. All this happened much after she had, allegedly, entered into the two „Agreements to Sell‟ dated February 21, 1985 and September 07, 1987 and as such, can have no bearing on what happened on these two dates.
The appellant had also placed reliance upon document Exh.D-1/W-4/X-7 and documents Mark X-1, X-2, X-3, X-4 & X-5. In so far as the documents Mark X-1, X-2, X-3 & X-5 are concerned, they are medical prescriptions from Dr. Ram Manohar Lohia Hospital, New Delhi and though they do pertain to the period between March, 1985 to October, 1988 but they do not indicate the ailment from which the appellant was suffering from. In any case, these documents which are mere photocopies were never proved by producing the originals. As regards Mark X-4, it too is a photocopy of a medical certificate issued by Dr. Ram Manohar Lohia Hospital in September, 1988 recommending absence of the appellant from duty from September 07, 1988 to September 21, 1988. Apart from the fact that even this document has remained unproved, the recommendation of absence from duty pertains to a period post alleged agreements of February 21, 1985 and September 07, 1987. Hence, this document also is of no assistance to the case of the petitioner.
Coming to the document Exh.D-1/W-4/X-7, it again is a medical prescription of Dr. Ram Manohar Lohia Hospital. It is dated RFA No.403/1999 Page 10 of 19 March 01, 1989 and like the other documents it is not only much later in point of time when the „Agreements to Sell‟ were entered into but it also does not indicate the nature of ailment from which the petitioner was suffering.
Having regard to the above facts and the evidence on record, it cannot be said that the appellant was suffering from unsoundness of mind not at least when she entered into the two „Agreements to Sell‟ dated February 21, 1985 and September 07, 1987. This, however, does not bring the matter to an end. There is more to it.
As noticed above, the appellant in her written statement filed before the trial Court not only had pleaded unsoundness of mind but had also alleged that while she was in that spell, her son Pardeep Kumar Talukdar who had taken certain loans from respondent No.1 had been getting some papers signed from her which, she further alleged, were manipulated as „Agreements to Sell‟.
Since on a re-appreciation of the evidence on record, I have concurred with the finding of the trial court that the appellant was not suffering from unsoundness of mind when the two agreements dated February 21, 1985 and September 07, 1987 were entered into and as that was the edifice of her defence, her plea that while she was under
that spell, some blank papers were got signed from her by her son Pardeep Kumar Talukdar and on those papers, the „Agreements to Sell‟ were manipulated, also cannot be accepted. This plea is intertwined with the plea of unsoundness of mind. Both go hand-in-hand. If one fails, so does the other.
RFA No.403/1999 Page 11 of 19
Before I proceed to deal with the other plea of the appellant that she was not the sole owner of the property and hence, she alone was not competent to dispose of the same, what needs to be examined is, whether respondent No.1 on whom lay the primary onus to prove the „Agreements to Sell‟ on which she had based her relief for specific performance, successfully discharged the onus so laid on her.
Respondent No.1 in order to prove the „Agreements to Sell‟ and the signatures of the appellant thereon, had examined Shri Gurcharan Singh, Advocate and Shri Tejender Singh, who was her General Power of Attorney. Shri Gurcharan Singh, Advocate had entered the witness-box as PW.1 and had deposed that the agreement dated February 21, 1985 was drafted by him. He proved the same as Exh.PW1/1 and identified his signatures at point „A‟. He also identified the signatures of Pardeep Kumar Talukdar at point „B‟ and of the appellant and respondent No.1 at points „C‟ & „D‟. He had also deposed that all the parties had affixed their signatures in his presence. He had further deposed that Exh.PW1/1 was registered on February 21, 1985 and that both the parties to the agreement had gone to the office of Sub Registrar where it was got registered by him. He identified his signatures at point „E‟ which, he said, he had affixed before the Sub Registrar, Asaf Ali Road. He was subjected to cross-examination but in his cross-examination, he denied the suggestion that he and the son of the appellant Pardeep Kumar Talukdar procured some blank papers signed from the appellant and that the agreement Exh.PW1/1 was written on that blank paper. On the contrary, he said that after writing document Exh.PW1/1 he read RFA No.403/1999 Page 12 of 19 over the same to the appellant and that she signed on the document after understanding its contents.
Not only did respondent No.1 examine Shri Gurcharan Singh, Advocate to prove the document Exh.PW1/1, she also examined an LDC from the office of the Sub Registrar, District III, Asaf Ali Road who on the basis of the record brought by him had deposed that the document Exh.PW1/1 was registered on February 21, 1985. In cross-examination, he deposed that at the time of registration of a document, "the Sub-Registrar ensures and verifies that the parties executing are personally present before him." No suggestion was given to this witness that the appellant was not present before the Sub-Registrar.
Shri Gurcharan Singh, Advocate (PW.1) besides proving agreement Exh.PW1/1 had also deposed that the appellant had executed a receipt dated February 19, 1985 of ` 40,000/- on which he had signed at point „A‟ while Shri P.K.Talukdar and the appellant singed in his presence at points „B‟ & „C‟. The same was proved by him as Exh.PW1/2. He had further deposed that the appellant had also executed a receipt of ` 10,000/- on which he had signed at point „A‟, Shri P.K.Talukdar at point „B‟ and the appellant at point „C‟ in his presence. As per him, the said receipt was in his handwriting and he proved the same as Exh.PW1/3. He also said that the payments of ` 40,000/- and ` 10,000/- were made to the appellant through cheques and denied the suggestion in cross-examination that the cheques were given not to the appellant but to her son.
RFA No.403/1999 Page 13 of 19
In addition to the evidence of Shri Gurcharan Singh, Advocate, the agreement dated February 21, 1985 was also proved by Shri Tajinder Singh Makkar who was the husband and General Power of Attorney holder of respondent No.1. He entered the witness-box as PW-9 and placed on record the original General Power of Attorney as Exh.PW9/1 executed in his favour by respondent No.1. As per him, all negotiations in the case were held in his presence and he knew the facts of the case. He deposed that respondent No.1 agreed to purchase the property No.D-713, Chitranjan Park, New Delhi from the appellant for a total consideration of ` 2,00,000/- in February, 1985 vide agreement Exh.PW1/1 and that respondent No.1 had paid a sum of ` 40,000/- vide receipt Exh.PW1/2 to the appellant prior to execution of the agreement and thereafter paid a further sum of ` 10,000/- by cheque on February 22, 1985 vide receipt Exh.PW1/3. He further deposed that respondent No.1 also paid a sum of ` 35,687/- to the Assistant Housing Commissioner (Loans), Delhi Administration on behalf of the appellant and that after two weeks of making the above payment, a further sum of ` 14,000/- was paid to the appellant by respondent No.1. He also deposed that respondent No.1 and the appellant executed a supplementary agreement dated September 07, 1987 and at the same time, respondent No.1 paid a further sum of ` 90,000/- to the appellant by a cheque. He proved the supplementary agreement as Exh.PW2/1. According to him, the appellant executed a consolidated receipt of ` 1,89,687/- for the amount received by her and that he had signed on the said receipt which he proved as Exh.PW9/2. As regards the balance sale RFA No.403/1999 Page 14 of 19 consideration of ` 10,313/-, he deposed that the same was paid by respondent No.1 to the appellant in his presence on September 15, 1987 for which the appellant executed a receipt Exh.PW9/3 in his presence on which he also appended his signatures. He lastly deposed that respondent No.1 had paid the entire sale consideration to the appellant in terms of the agreement and that she also applied for Income Tax Clearance Certificate for the sale of the property. It was suggested to him in cross-examination that the appellant was not physically present before the Notary on September 19, 1996 when the power of attorney Exh.PW9/1 was executed and signed but he denied the suggestion. It was also suggested to him that the appellant had no legal right to enter into the agreement to sell Exh.PW1/1 or that ` 40,000/- was not paid by respondent No.1 to the appellant, but he denied the said suggestions as well. It was further suggested to him that the appellant had not received ` 10,000/- vide Exh.PW1/3 or that ` 14,000/- was not paid in cash to the appellant which suggestions also he denied. It was also suggested to him that agreement to sell dated September 07, 1987 Exh.PW2/1 and the receipt for ` 1,89,687/- Exh.PW9/2 or the receipt for ` 10,313/- Exh.PW9/3 were got executed from the appellant fraudulently in league with Pradeep Kumar Talukdar. These suggestions too were denied by him.
The fact that respondent No.1 had made payment of ` 35,687/- to the appellant in order to clear the housing loan was also corroborated by an independent witness, Shri Davinder Singh who was working as a Clerk in Punjab & Sind Bank, West Patel Nagar, New Delhi. RFA No.403/1999 Page 15 of 19 Appearing as PW-3, he deposed that respondent No.1 was having a saving bank account in Punjab & Sind Bank, West Patel Nagar branch and that on June 10, 1987 the appellant got a draft No.375736/999/87 prepared in favour of the Assistant Housing Commissioner (Loans), Delhi and debited the same in the account of respondent No.1. He also deposed that the amount of the draft was paid to the payee. He further deposed that on September 07, 1987 respondent No.1 issued a cheque No.405923 in favour of the appellant and the same was also encashed by the appellant. He proved the ledger account reflecting these transactions as Exh.PW3/1. This witness was not subjected to any cross-examination.
In so far as the payment of ` 40,000/- claimed to have been made by respondent No.1 to the appellant prior to the signing of the agreement is concerned, the same was proved by Shri Surinder Khanna, Assistant Manager, Syndicate Bank, Kirti Nagar, New Delhi. He appeared as PW-5 and proved the ledger as Exh.PW5/1 which reflected an entry dated February 20, 1985 indicating that ` 40,000/- were withdrawn by the appellant from the account of respondent No.1 vide cheque No.182465. The ledger also reflected another entry dated February 23, 1985 which indicated that Nilima Ghosh had withdrawn a sum of ` 10,000/- from the account of respondent No.1. The said Surinder Khanna also proved a letter addressed by the Chief Manager to the Additional District & Sessions Judge, Tis Hazari, stating therein that he was submitting statement of account of Saving Bank Account No.6270 of Harjeet Kaur from January 02, 1985 to March 21, 1985. He confirmed in the said letter that cheque No.182465 and cheque RFA No.403/1999 Page 16 of 19 No.182467 for ` 40,000/- and ` 10,000/- were paid to Nilima Ghosh on February 20, 1985 and February 23, 1985.
From what has been noticed above, I find that respondent No.1 not only examined witnesses who witnessed the execution of the „Agreements to Sell‟, but also proved the receipts indicating payments made to the appellant and examined the bank officials to further prove that she had issued cheques to the appellant for ` 40,000/-, ` 10,000/- & ` 90,000/-.
In view of the overwhelming evidence led by respondent No.1, I have no hesitation in concurring with the finding of the trial Court that the appellant duly executed the agreements Exh.PW1/1 and Exh.PW2/1 and received payment of ` 1,89,687/- for which she had issued a receipt Exh.PW9/2. I have no reason to disbelieve the testimony of any of the witnesses referred to hereinabove.
This brings me to the question, whether as alleged by the appellant, she was not competent to execute the „Agreements to Sell‟ on the ground that she was not the sole owner of the property. According to her, after the death of her husband it was not she alone who inherited the same but also her two sons, Pranab Kumar Talukdar and Pradeep Kumar Talukdar.
It needs to be highlighted that the appellant placed no document on the record to show that the property in dispute was originally in the name of her husband and that upon his death, it devolved not only upon her, but also upon her two sons. The only evidence that she led to substantiate her claim that she was not the sole owner of the property was her own oral statement but that too is belied by the RFA No.403/1999 Page 17 of 19 „Agreements to Sell‟ Exh.PW1/1 & Exh.PW2/1, for therein she had proclaimed that she was the sole and exclusive owner of the property. It is also belied by the lease deed Exh.PW7/1 which was executed exclusively in her name by the lessor, i.e. Land & Development Office for and on behalf of the President of India in the office of the Sub-Registrar on March 19, 1976. Thus, on the one hand, there is oral evidence of the appellant and on the other, the „Agreements to Sell‟ Exh.PW1/1, Exh.PW2/1 and the lease deed Exh.PW7/1. So, which between the two sets of evidence should be preferred and relied upon? The answer is provided by Sections 91 and 92 of the Indian Evidence Act. The same, in so far as they are relevant, read as under:-
"Section 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."
"Section 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."
In the teeth of what is laid down in Sections 91 and 92 of the Indian Evidence Act and the documents Exh.PW1/1, Exh.PW2/1 & RFA No.403/1999 Page 18 of 19 Exh.PW7/1, the oral evidence of the appellant that she was not the owner, cannot be accepted.
For the foregoing reasons, the appeal is dismissed and the judgment and decree of the Additional District Judge, dated February 12, 1999 is upheld.
REKHA SHARMA, J.
DECEMBER 21, 2010 ka/pc RFA No.403/1999 Page 19 of 19