Dismissed

Ponnusamy v. Govindan

Madras HC2 Mar 2022SA/528/2012

Case brief

AI extract

What is this about?

The High Court of Judicature at Madras dismissed the second appeal filed by a plaintiff appealing a judgment declaring documents as loans due to fraud against illiterate defendants. The Court upheld lower courts' findings that the doctrine of non est factum applied, rendering the transfer documents voidable or void ab initio.

What did the court decide?

Second Appeal dismissed; judgments of courts below upheld; no order as to costs.

Ponnusamy Vs Govindan — Property and Title | Madras HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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ORDERS RESERVED ON : 28.02.2022

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PRONOUNCING ORDERS ON : 02.03.2022

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CORAM:

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THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH

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SECOND APPEAL NO.528 OF 2012 AND MP.NO.1 OF 2012

Ponnusamy

..Vs..

1.Govindan

2.Senniammal

Prayer: Second Appeal filed Under Section 100 of the Code of Civil Procedure against the decree and judgment dated 23.12.2011, made in A.S.No.16 of 2011 by the learned Subordinate Judge, Dharmapuri, confirming the judgment and decree dated 07.12.2010 made in O.s.No.71 of 2006 by the learned District Munsif at Palacode.

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JUDGMENT

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The plaintiff is the appellant in this Second Appeal.

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2.The case of the plaintiff is that the suit property belonged to the 2^nd defendant. The 1^st defendant is the husband of the 2^nd defendant. According to the plaintiff, the defendants entered into a registered agreement of sale with the plaintiff

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dated 01.08.2001 (Ex.A1). As per the agreement, the total consideration was fixed as Rs.45,000/- and the defendants received an advance amount of Rs.35,000/- and the balance Rs.10,000/- has to be paid within a period of 23 months and the Sale Deed must be executed in favour of the plaintiff. Subsequently, the plaintiff paid the balance amount of Rs.10,000/- and a registered Sale Deed 18.07.2003 (Ex.A2) was executed in favour of the plaintiff. It is further claimed that the possession was handed over and the revenue records were also transferred in the name of the plaintiff and the plaintiff was in possession and enjoyment of the suit property as the absolute owner of the property.

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3.The grievance of the plaintiff is that the defendants started interfering with the possession and enjoyment of the property and hence, the plaintiff filed the suit seeking for the relief of declaration of title and for permanent injunction restraining the defendants from interfering with the possession and enjoyment of the suit property.

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4.The defendants filed a written statement. They came up with a defence to the effect that they are illiterate persons and poor agriculturists. The plaintiff is involved in money lending business and the defendants borrowed a sum of Rs.35,000/- as loan from the plaintiff. It is further stated that the plaintiff asked the defendants to affix their thumb impression in the stamp paper and the defendants believed the same to be a loan document and accompanied the plaintiff for registration of the document. The further case of the defendants is that they were not able to repay the loan amount or the interest on time and taking advantage of their situation, the plaintiff called them for execution of another document by stating that the period of the loan document must be extended. Accordingly, the defendants affixed their thumb impression in the document. The specific defence taken by the defendants is that they never intended to sell the property in favour of the plaintiff and they never knew that the plaintiff had managed to get a sale agreement and a Sale Deed executed in his favour. Only after the filing of the suit, they became aware of the same and thus the defendants have raised the plea of non est factum and contended that the documents in question are vitiated by fraud and they had sought for the dismissal of the suit.

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5.Both the Courts below on consideration of the oral and dococumentary evidence and on considering the facts and circumstances of the case, concurrently held against the plaintiff. Aggrieved by the same, the present Second Appeal has been filed before this Court.

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6.When the Second Appeal was admitted, the following substantial questions of law were framed:

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(a) Whether the Courts below went wrong in construing Ex.A1 and A2 as loan documents and the oral evidence given contrary to the contents of these documents is in violation of Section 91 and 92 of the Evidence Act?

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(b) Whether the findings of the Courts below is vitiated by improper appreciation of the oral and documentary evidence available on record?

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7.The learned counsel for the appellant submitted that the defendants never challenged the validity of the sale agreement or the sale deed executed in favour of the plaintiff and hence, they cannot be allowed to wriggle out of their obligations under these documents. The learned Senior Counsel further submitted that the defendants have merely raised a plea that they had executed only a loan document even without providing the details as to how much is the interest payable on the loan, what is the period of the loan and what steps have been taken by them to redeem the mortgage, if really they were under the impression that the documents in question are loan documents. The learned Senior Counsel submitted that the pleadings on this aspect is completely absent and the defendants had attempted to develop their case only in the course of evidence. The learned Senior Counsel also submitted that the value of the property was fixed at Rs.45,000/- under the Sale Deed and it is not the case of the defendants that the property has been knocked off for a song. It was not even mentioned as to what is the total value of the property and how the value fixed in the Sale Deed can be taken to be an undervaluation. It was submitted that the documents came to be executed in the year 2001 and 2003 respectively and the suit came to be filed by the appellant in the year 2006 and no steps were taken to cancel the documents even by means of a counter claim. That apart, no steps were taken by the defendants to redeem the mortgage, if really they had construed the documents to be loan documents. The learned Senior Counsel relied upon the judgements in N.V.Srinivasa Murthy and Others . Vs. Mariyamma (Dead) by Proposed Lrs. reported in 2005 5 SCC 548 and Sayyed Ayaz Ali v. Prakash G. Goyal and Others reported in 2021 7 SCC on line SC 472, to substantiate her submissions.

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Per contra, the learned counsel for the respondents submitted that both the Courts below found that the defendants were illiterates and they did not even know to read and write and even in the document, the thumb impression of the 2^nd

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defendant was obtained. Therefore, it was contended that the doctrine of the non est factum will squarely apply to the present case and the burden will shift to the plaintiff to prove the circumstances under which the document was executed. While considering the same, both the Courts found that the defendants were misled and given an impression that it was a loan document and this was sufficiently substantiated through the evidence of PW-2 who was examined on the side of the plaintiff. The learned counsel submitted that the restriction placed under Section 92 of the Indian Evidence Act, 1872 will not apply to the documents in question since the facts of the present case will fall under the first proviso to Section 92 of the Indian Evidence Act. The learned counsel submitted that both the Courts below have rendered their findings after appreciation of oral and documentary evidence and there is no ground to interfere with the same in the present Second Appeal.

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9.This Court has carefully considered the submissions made on either side and the materials available on record. This Court has also carefully considered the findings of both the Courts below.

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10.This case revolves around the doctrine of non est factum. The trial Court which had the advantage of looking into the demeanour of DW-1 and DW-2 and on considering the evidence of the said witnesses, came to a categorical conclusion that both these witnesses did not have any knowledge of reading and writing. When the document was shown, they were not even able to read it. They were able to understand the contents of the document only when it was read over to them. Hence, both the Courts below found that the plea of non est factum raised by the defendants has been proved and hence, the onus was shifted on the shoulder of the plaintiff to prove that there was no misrepresentation/fraud in the execution of the sale agreement and the sale deed.

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Before assessing the findings of both the Courts below as to whether the plaintiff had discharged the onus and proved his case, it will be more appropriate to take note of the doctrine of non est factum. This Court in Thirumalai Vadivu Ammal (died) and Others .Vs. Muthammal and another reported in 1999 (II) CTC 275, considered this doctrine in detail and held as follows:

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In Bismillah v. Janeshwar Prasad, (1990) 1 SCC 207, the question that came for consideration was jurisdiction of Civil Court for cancelling Sale Deeds respecting agricultural lands governed by U.P. Zamindari Abolition and Land Reforms Act, 1951. In the case, the case that is put forth was that she being

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pardash lady on the representation of respondents 1 to 3 appointed them as her agents to manage the property. The said document was in the language of Hindi, not known to her but later discovered to be a sale deed. Various questions were raised including questions of jurisdiction. In paragraphs 12 to 16 of the Judgment, their Lordships considered this question and held thus.

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The common law defence of non est factum to actions on specialities in its origin was available where an illiterate person, to whom the contents of a deed had been wrongly read, executed it under a mistake as to its nature and contents, he could say that it was not his deed at all. In its modern application, the doctrine has been extended to cases other than those of illiteracy and to other contracts in writing. In most of the cases in which this defence was pleaded the mistake was induced by fraud, but that was not, perhaps, a necessary factor, as the transaction is “invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signor did not accompany the signature, in other words, that he never intended to sign, and therefore, in contemplation of law never did sign, the contract to which his name is appended.”

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Authorities drew a distinction between fraudulent misrepresenta- tion as to the character of the document and fraudulent misrepre-sentation as to the contents thereof. It was held that the defence was available only if the mistake was as to the very nature or character of the transaction.

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In Foster v. Mackinnon, Mackinnon, the defendant was induced to endorse a bill of exchange on the false representation that it was a guarantee similar to one he had signed on a previous occasion. He was held not liable when sued even by an innocent endorsee of the bill. Byles, J. said:

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…. The defendant never intended to sign that contract or any such contract. He never intended to put his name to any instrument that then was or thereafter might become negotiable. He was deceived, not merely as to the legal effect, but as to the ‘actual contents’ of the instruments.”

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This decision was refereed to with approval by this Court in Ningawwa v. Byrappa, AIR 1968 SC 956. It was observed (SCR pp. 800-01)

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It is well established that a contract or other transaction induced or tainted by fraud is not void, but only voidable at the option of the party defrauded. Until it is avoided, the transaction is valid, so that third parties without notice of the fraud may in the meantime acquire rights and interests in the matter which they may enforce against the party defrauded.”

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This would be a voidable transaction. But the position was held to be different if the fraud of misrepresentation related to the character of the document. This Court held: (SCR p. 801)

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“The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable.”

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However the House of Lords in Sauders v. Anglia Building Society, 1970 (3) All. ER 961 reviewed the law and held that the essential features of the doctrine, as expressed by Byles, J. in Foster v. Mackinnon, had been correctly stated. Lord Raid, however, observed: (AC headnote at p. 1005)

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“The plea of non est factum could not be available to anyone who signed without taking the trouble to find out at least the general effect of the document. Nor could it be available to a person whose mistake was really a mistake as to the legal effect of the document. There must be a radical or fundamental difference between what he signed and what he thought he was signing.”

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However the distinction based on the character of the document and the contents of the document was considered unsatisfactory. The distinction

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based on the character and contents of a document is not without its difficulties in its practical application; for, in conceivable cases the ‘character’ of the document may itself depend on its contents. The difficulty is to be resolved on a case by case basis on the facts of each case and not by appealing to any principle of general validity applicable to all cases. Chitty on Contracts (“General Principles” 25th edn, para 343, page 194) has this observation to make on Sauders decision:

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“…… It was stressed that the defence of non est factum was not lightly to be allowed where a person of full age and capacity had signed a written document embodying contractual terms. But it was nevertheless held that in exceptional circumstances the plea was available so long as the person signing the document had made a fundamental mistake as to the character or effect of the document. Their Lordships appear to have concentrated on the disparity between the effect of the document actually signed, and the document as it was believed to be (rather than on the nature of the mistake) stressing that the disparity must be “radical”. “essential”. “fundamental”, or “very substantial”.

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In the instance case, prima facie appellant seems to proceed on the premises that she cannot ignore the sales but that the sales require to be set aside before she is entitled to possession and other consequential reliefs.” (Emphasis supplied)

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Finally, their Lordships approved the passage of Chitty on Contracts and the applicability of the principle of non est factum was made applicable only to those documents where the disparity is a radical, essential, fundamental and very substantial.

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Dularia Devi v. Janardan Singh, 1990 (Supp.) SCC 216, is also a case concerning U.P. Consolidation of Holdings Act, 1953 where their lordships considered whether such document is void or voidable. In that case, plaintiff wanted to execute a gift deed in favour of her daughter. But without her knowledge, two documents came to be executed. One gift deed and other is sale deed in favour of some of the defendants.

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Their Lordships held that such a transaction is void since there is difference between what she intended to sign and what she did sign.

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In paragraphs 3 to 7, their Lordships held thus. “ 3. The facts are not in dispute. It is not disputed that the documents in question came to be executed in the manner alleged by the plaintiff. The appellant, however, contends that since it was a case of the document having been vitiated by fraud, the transaction was voidable, but not void, and therefore the suit to set aside the sale was rightly instituted by her and the bar of Section 49 was not attracted. The appellant contends that the suit is perfectly maintainable and the High Court was wrong in holding to the contrary.

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Mr. Satish Chandra, appearing for the respondents, rightly, in our view., submits that two principles enunciated by this Court in Gorakh Nath Dube v. Hari Harain Singh, (1973) 2 SCC 535 and Ningawwa v. Byrappa, AIR 1968 SC 956 squarely apply to the facts of this case and the document in question evidenced a void transaction, and not a mere voidable transaction, and no suit was, therefore, maintainable in view of the bar contained in Section 49 of the Act.

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In Gorakh Nath Dube, this Court held that the object of the relevant provision of the Act was to remove from the jurisdiction of any civil court or revenue court all disputes which could be decided by the competent authority under the Act during the consolidation proceedings. Questions relating to the validity of a sale deed or a gift deed and the like had to be examined in proceedings before the statutory authorities. The Court, however, drew a distinction between void and voidable documents and said a voidable document was one which remained in force until set aside, and such a document could be set aside only by a competent civil court, and a suit for that purpose would, therefore, be maintainable. On the other hand, a claim that a transaction was void was a matter which could be adjudicated upon by the consolidation courts. This is what this Court stated: (SCC p. 538, para 5)

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“We think that a distinction can be made between cases where a document is wholly or partially invalid or

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that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject matter of consolidation proceedings. The existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to be invested with jurisdiction, by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land, to declare such documents effective or ineffective, but, where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by a court having the power to cancel it. In the case before us, the plaintiff's claim is that the sale of his half share by his uncle was invalid, inoperative, and void. Such a claim could be adjudicated upon by consolidation courts.”

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In Ningawwa v. Byrappa, this Court referred to the well established principle that a contract or other transaction induced or tendered by fraud is not void, but only voidable at the option of the party defrauded. The transaction remains valid until it was avoid. This Court then said: (SCR p. 801)

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“The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable. In Foster v. Mackinon, the action was by the endorsee of a bill of exchange. The defendant pleaded that he endorsed the bill on a fraudulent representation by the acceptor that he was signing a guarantee. In holding that such a plea was admissible, the court observed:

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It (signature) is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the sign did not accompany the signature; in other words, that he never intended to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended… The defendant never intended to sign that contract or any such contract. He never intended to put his name to any instrument that then was or thereafter might become negotiable. He was deceived, not merely as to the legal effect, but as to the ‘actual contents’ of the instrument.”

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Form the facts narrated above, about which, as stated earlier, there is no dispute, it is clear that this is a case where the plaintiff appellant was totally ignorant of the mischief played upon her. She honestly believed that the instrument which she executed and got registered was a gift deed in favour of her daughter. She believed that the thumb impressions taken from her were in respect of that single document. She did not know that she executed two documents, one of which alone was the gift deed, but the other was a sale of the property in favour of all the defendants. This was, therefore, a case of fraudulent misrepresentation as to the character of the document executed by her and not merely as to its contents or as to its legal effect. The plaintiff appellant never intended to sign what she did sign. She never intended to enter into the contract to which she unknowingly became a party. Her mind did not accompany her thump impressions. This is a case that falls within the principle enunciated in Ningawwa v. Byrappa and it was, therefore, a totally void transaction. Accordingly, as stated in gorakh Nath Dube, the suit is not maintainable by reason of the bar contained in the Act.” (Italics supplied)

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16.It is the case of plaintiff that even though she seems to be party to the document she never intended to sign such a deed and her mind did not accompany her thumb impression or signature. That is why Division Bench held that it is for defendants to prove the real nature of transaction and was taken in good faith.

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Before going into the evidence of the case, I need take reference to one decision of Honourable

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Supreme Court reported in Kharbuja Kuer v. Jangahadur, AIR 1963 SC 1203, wherein their Lordships considered how to discharge the burden of proof. That is the case of document executed by a pardanashin lady. That principle also applicable to document executed by an illiterate person. In paragraph 6 of the Judgment, their Lordships said thus.

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“6. The next question is what is the scope and extent of the protection. In Geresh Chunder Lahoree v. Mst. Bhuggobutty Debia, 13 Moor Ind. App. 419(PC) the Privy Council held that as regards documents taken from pardanashin women the court has to ascertain that the party executing them has been a free agent and duly informed of what she was about. The reason for the rule is that the ordinary presumption that a person understands the document to which he has affixed his name does not apply in the case of a pardahnashi women. In Kali Baskh v. Ram Gopal 43 Ind. App. 23 at P. 29 (PC), the Privy Council defined the scope of the burden of a person who seeks to sustain a document to which a pardahnashin lady was a party in the following words:

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“In the first place, the lady was a pardahnashin lady, and the law throws round her a special cloak of protection. It demands that the burden of proof shall in such a case rest, not with those who attack but with those who found upon the deed, and the proof must go so far as to show affirmatively and conclusively that the deed was not only executed by, but was explained to, and was really understood by the grantor. In such case it must also, of course, be established that the deed was not signed under duress, but arose from the free and independent will of the grantor.”

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The view so broadly expressed, though affirmed in essence in subsequent decision, was modified, to some extent, in regard to the nature of the mode of discharging the said burden. In 52 Ind App. 342 at p. 352: AIR 1925 PC 204 it was stated:

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“The mere declaration by the settlor, subsequently made, that she had not understood what she was doing, obviously is not in itself conclusive. It must be a question whether, having regard to the proved personality of the settlor, the nature of the settlement the circumstances

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under which it was executed, and the whole history of the parties, it is reasonably established that the deed executed was the free and intelligent act of the settlor or not. If the answer is in the affirmative, those relying on the deed have discharged the onus which rests upon them.”

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While affirming the principles that the burden is upon the person who seeks to sustain a document executed by a pardahnashin lady that she executed it with a true understanding mind, it has been held that the proof of the fact that it has been explained to her is not the only mode of discharging the said burden, but the fact whether she voluntarily executed the document or not could be ascertained from other evidence and circumstances in the case. The same view was again reiterated by the Judicial Committee, through Sir George Rankin, in Ham Chandra v. Suradhani Debya, AIR 1940 PC 134. Further citation is unnecessary. The legal position has been very well settled. Shortly it may be stated thus. The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardahnashin lady to establish that the said document was executed by her after clearly understanding the nature of the transaction. It should be established that it was not only her physical act but also her mental act. The burden can be discharged not only by proving that the document was explained to her and that she understood it, but also by other evidence, direct and circumstantial.” (Italics supplied)

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12.It is clear from the above judgment that this doctrine is normally applied to an illiterate person, who has executed a document by putting his thumb impression even without understanding the nature of the document and as a result of the same, his mind did not accompany his thumb impression as a result of which, the document itself will be construed to be void in the eye of law.

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13.It will be more relevant to consider the contention of the learned Senior Counsel to the effect that the document is valid till it is challenged by the defendants in the manner known to law, at this juncture. This contention will hold good only if the transaction is a voidable transaction and not for a transaction which is construed as void in the eye of law. This

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issue has been succinctly captured by the Hon’ble Supreme Court in Dhurandhar Prasad Singh .Vs. Jai Prakash University reported in (2001) 6 SCC 534. The relevant para is extracted hereunder:

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22.Thus the expressions “void and voidable” have been the subject-matter of consideration on innumerable occasions by courts. The expression “void” has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act, e.g., may be transaction against a minor without being represented by a next friend. Such a transaction is a good transaction against the whole world. So far as the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given, a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable.

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14.It is clear from the above judgment that where a document is void ab initio, it need not be put to challenge and it can be disregarded even in collateral proceedings. In view of the same, if the defendants are able to substantiate their defence of non est factum, they need not separately challenge Ex.A1 and Ex.A2 since these documents will be construed as void ab initio.

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When the burden was shifted on the plaintiff, both the Courts below heavily relied upon the deposition of PW2 and the relevant portions in the deposition are extracted hereunder:

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“th/rh/M/1 Vw;gl;lJ Fwpj;J vdf;F vJt[k; bjhpahJ/ th/rh/M/1 kw;Wk; 2 flDf;fhf Vw;gLj;jg; gl;l Mtzk; vd;gJ vdf;F bjhpa[kh vd;why; bjhpa[k;/ th/rh/M/2 vGjpa nghJ vd; Kd;ghf gpujpthjpfSf;F gzk; vJt[k; bfhLf;fg;gl;ljh vd;why; bfhLf;fg;gltpy;iy. th/rh/M/2?f;F gzk; bfhLf;fg;gl;ljh vd;W vdf;F bjhpahJ/ th/rh/M/2?y; vd;d vGjg;gl;oUf;fpwJ vd;W vdf;F bjhpahJ/ vd;di ifbahg;gk; ,lbrhd;djhy; ehd; rhl;rpahf ifbahg;gk; ,l;nld;/ bghd;Drhkpf;F trjp. tha;g;g[f;fs; cz;lh vd;why; vdf;F bjhpahJ/ bghJthf xU fpuak; Vw;gLk;nghJ tpw;gth;fs;tpw;Fk; brhj;jpy; K:yg; gj;jpu';fis th';F gthplk; bfhLj;JtpLthh;fs; vd;why; Mtz';fs; ,Ue;jhy; bfhLj;JtpLthh;fs;/ tHf;F brhj;J 2?Mk; gpujpthjpf;F vt;thW ghj;jpag;gl; ;lJ vd;why; vdf;F bjhpahJ/ tHf;F brhj;J 2k; gpujptjpf;F fpuak; K:ykhf ghj;jpag;gl;lJ vd;why; vdf;F bjhpahJ/ tHf;F brhj;J jw;nghJ fuk;fhg cs;sJ/ 2. 3 tUl';fSf;F Kd;g [ gaph; bra;ag;gl;oUe;jJ/ tHf;F epYitapy; ,Uf;Fk; fhuzj;jpdhy; tHf;F brhj;J gaph; bra;ag;glhky; cs;sJ/ bghd;Drhkp tHf;F brhj;ij gaphpLtij 1?k; gujpthjp jLj;jhh;/ vg;nghJ jLj;jhh; vd;W vdf;F bjhpahJ/ bghd;Drhkp tHf;F brhj;ij RthjPdj;jpy; ,Ug;gjhf ehd; brhy;tJ bgha; vd;Wk;. ,d;iwa njjp tiu tHf;F brhj;ij gpujpthjpfs; jhd RthjPdj;jpy; cs;shh; vd;why; rhpay;y/ gpujpthjpfs; thjpaplk; U:/35.000-? fldhf bgw;wJ vdf;F bjhp[a[k;/ nkw;go flDf;fhf jhd; th/rh/M/1 & 2 vGjg;gl;lJ vd;why; rhpjhd;/ fld; th';fpaij bghUj;J thjp. gpujpthjpfSf;F ,ilna ngr;Rthh;j;ij eilbgw;wJ vd;why; rhpjhd;/ nkw;go ngr;Rthh;j;ijapd; mog;gilapy; thjp nfl;lbjhifia gpujpthjpfshy; bfhLf;f Koatpy;iy vd;why; rhpjhd;/ ehd; thjp bghd;Drhkpf;F ikj;Jdh; Mntd;/ rpd;drhkp vd;fF rpj;jg;gh Kiwahfntz;Lk;/ nkw;go rpd;drhkp thjpapd; rpd;dkhkdhh; Mthh;/ 1k; gpujpthjpf;F vGjg; gof;f bjhpahJ vd;why; rhpjhd;/

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16.This witness was examined on the side of the plaintiff and he clearly deposed that the defendants had borrowed a sum of Rs.35000/ from the plaintiff and Ex.A1 and Ex.A2 was executed only for the purpose of the said loan transaction. He would further state that the defendants did not receive any money from the plaintiff for the sale deed executed on 18.07.2003. It must be borne in mind that PW2 is none other than the relative of the plaintiff and he has come up with the truth during his oral evidence.

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17.Both the Courts below also relied upon the deposition of DW3, who was one of the witness in the Sale Deed (Ex.A2). He also talks about the loan amount borrowed by the defendants

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from the plaintiff and he further states that the documents were executed only for the purpose of loan transaction. By relying upon the oral evidence, both the Courts came to a categoric conclusion that the plaintiff had not discharged the burden cast on him. Both the Courts also took into consideration the fact that the original documents pertaining to the property continued to be in the possession of the defendants. Therefore, if the property is intended to be sold to the plaintiff, there was no reason as to why the original documents to the property will continue to remain with the defendants.

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At this juncture, it will be relevant to take note of the scope of Section 92 of the Indian Evidence Act, 1872 which specifically bars letting in oral evidence through which the terms of a contract or disposition of property is attempted to be contradicted, varied etc. It was contended that the terms of the documents Ex.A1 and Ex.A2 cannot be permitted to be varied through oral evidence.

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19.In the present case, the defence taken by the defendants is that the plaintiff had misrepresented to them as if, the document is executed only towards the loan and they never intended to execute any sale agreement or sale deed in favour of the plaintiff. The Legislature has prevented oral evidence being adduced for the purpose of varying a contract as between the parties to the contract. This bar will apply only if the parties are attempting to rely upon the document and contradict the terms of the document. The provision itself gives six exceptions, where this bar imposed under Section 92 of the Act, will not apply. The first exception which is provided as the first Proviso to Section 92 of the Act deals with evidence that can be let in to show that the contract itself is void or voidable or that it is vitiated on the ground of fraud, duress etc.

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20.In the present case, both the Courts below considered the scope of the first Proviso to Section 92 of the Act and correctly applied the same to the facts of the present case. The first substantial question of law is answered accordingly.

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21.In the considered view of this Court, both the Courts below have correctly applied the law to the facts of the present case and have come to a clear conclusion that the plaintiff is not entitled for the relief sought for in this suit. This Court does not find any perversity in the findings of both the Courts below. The second substantial question of law is answered accordingly.

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22.In view of the above discussion, this Court does not find any ground to interfere with the judgments of both the Courts below. The substantial questions of law are answered against the appellant. In the result, the Second Appeal is dismissed. Considering the facts and circumstances of the case, there shall be no order as to costs. Consequently, connected miscellaneous petitions is closed.

Sd/-

Deputy Registrar(CS)

//True Copy//

Sub Assistant Registrar

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