IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD SATURDAY, THE TWENTIETH DAY OF AUGUST TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.420 of 1999 BETWEEN D. Chenna Raja Chetty. …APPELLANT AND C. Chinnaswamy Naidu. …RESPONDENT Counsel for the Appellant: MR. S.V. BHATT Counsel for the Respondent: MR. N. PRAMOD The Court made the following: JUDGMENT: The defendant in O.S.No.238 of 1982 is the appellant. The said suit on the file of the I Additional District Munsif, Madanapalle for recovery of Rs.3072.75 ps. was, after trial, dismissed on 05.08.1992. But on appeal being A.S.No.22 of 1998, the suit was decreed. Hence, this second appeal. 2. The parties are referred to as they are arrayed in the suit viz. the appellant is referred to as defendant and the respondent as plaintiff. 3. The facts in nutshell are as follows: (a) The defendant was the admitted owner of Ac.5.86 cents in Sy.No.924 of Kondamarri village. The said land was sold by him to the plaintiff under a sale deed dated 09.08.1979 marked as Ex.A1 for Rs.6,500/- and possession was delivered. The plaintiff later came to know that the said property was subject to attachment in a suit O.S.No.1313 of 1974 filed by M/s. Mallikarjuna Finance Corporation, Madanapalle against the defendant for recovery of loan and as per the decree in the said suit, the aforesaid property was brought to sale in O.E.P.No.102 of 1979 and was knocked down in favour of one Nataraja Chetty for Rs.6,800/-. At this stage the plaintiff filed claim petition and deposited a sum of Rs.2,772.75 ps. vide challan No.221 dated 10.10.1980 whereupon the sale was set aside on 22.11.1980. The claim petition of the plaintiff is exhibited in the suit as Ex.B1 and the relevant portion is marked as Ex.B2. On account of the said payment, which the plaintiff had to make against the property and further expenditure of Rs.300/- incurred by him, he gave a legal notice dated 01.10.1980 – Ex.A5 to the defendant requiring him to reimburse the plaintiff for the said additional expenditure he was put to. The said notice was replied by the defendant under reply dated 02.11.1981, Ex.A7. The plaintiff, therefore, filed the present suit for recovery of amount of Rs.3,072.75 ps. (b) The defendant filed a written statement contending that at the time of Ex.A1 sale deed the defendant had informed the plaintiff of the subsisting attachment and liability of approximately Rs.2,500/- due to M/s. Mallikarjuna Finance Corporation and the plaintiff having agreed to discharge the said debt, the sale consideration was mentioned as Rs.6,500/- in Ex.A1, though the value of the property sold is Rs.9,000/-. The defendant, therefore, contended that he has no liability to discharge, as he had disclosed the pending attachment and the sale consideration, in fact, gives due credit with respect to such liability. 4. The trial Court framed the following issues: 1. Whether the amount claimed by the plaintiff is not correct and excessive? 2. Whether discharge by way of arrangement as pleaded by the defendant is true and correct? 3. To what relief? 5. On consideration of the evidence, particularly, the admission of the plaintiff in Ex.B1 (plaintiff’s claim petition in the earlier OEP.No.102 of 1979) separately marked as Ex.B2, the trial Court came to the conclusion that the aggregate consideration for Ex.A1 included the liability, which is subsequently discharged by the plaintiff, hence the plaintiff is not entitled to the suit claim. The lower appellate Court has, however, reversed the said judgment and decreed the suit by applying Section 91 of the Evidence Act and holding that no oral evidence can be adduced to contradict the terms of Ex.A1 and as such, it had to be held that the transaction under Ex.A1 was only for Rs.6,500/- and as the plaintiff was made to pay additional amount to the creditor in the EP.No.102 of 1979, the plaintiff is entitled for reimbursement. 6. The aforesaid appellate decree is questioned in this second appeal on the following substantial question of law: “Whether the Court below is right in applying Sections 91 and 92 of the Evidence Act to the facts and circumstances of the present case inasmuch as the case of the appellant herein is not to prove anything to the contrary to the recitals in Ex.A1, but pleading a contract contrary to law and there is no prohibition to plead and prove such circumstance” 7. Mr. S.V. Bhatt, learned counsel for the appellant and Mr. N. Pramod, learned counsel for the respondent have elaborately argued with reference to the substantial question of law aforesaid. 8. Learned counsel for the appellant contends that Sections 91 and 92 of the Evidence Act are misconstrued by the lower appellate Court as Ex.A1 itself records that the property conveyed thereunder is of the value of Rs.9,000/- but sold for Rs.6,500/- and as such, the evidence led does not contradict the document but supports the document by explaining the circumstances surrounding the said contract. 9. Learned counsel for the respondent, on the contrary, submits that under Section 55 of the Transfer of Property Act, the defendant, as vendor, is bound to disclose the patent defects in the property, which is under sale as well as the subsistence of attachment on the property, and the defendant’s suppression entitles the plaintiff for reimbursement of additional amount, which he had to pay. Learned counsel for the respondent also placed reliance upon a decision of the Supreme Court in A.K. LAKSHMIPATHY v. RAI SAHEB PANNALAL H. LAHOTI CHARITABLE TRUST[1], which has affirmed the decision of a learned single Judge of this Court in A.K. LAKSHMIPATHY v. RAI SAHEB PANNALAL H. LAHOTI CHARITABLE TRUST[2], in support of his contention with reference to Section 55 of the Transfer of Property Act. With a view to explain the real purport of Section 55 of the Transfer of Property Act, he has placed before this Court the decision of the Madras High Court in M. MAHAMOOD MAMUNA LEBBAI v. NATIONAL BANK OF INDIA[3] as well as NANNAPANENI SUBAYYA CHOWDARY v. GARIKAPATI VEERAYYA[4]. 10. While considering the rival contentions it has to be remembered that the present case arises out of a post sale transaction. It is also to be kept in mind that Ex.A1 (an agreed true translation was furnished to the Court by the learned counsel) which at the beginning itself states “The Deed of sale of immovable property worth Rs.9,000/- for a consideration of Rs.6,500/- executed on 09.08.1979.” The body of the sale deed mentions that “Hereafter neither myself nor my successors shall have no liability with the schedule property”. It is also admitted that the said sale deed was executed on a stamp paper relevant for the value of Rs.9,000/- and the schedule of market value appended to the sale deed states as follows: “The extent land in Ac.5.86 cents bearing Sy.No.924 has a market value of Rs.1,500/- per acre and thus the value of the total extent makes Rs.8,790/-.” The vendor and the witnesses as well as the scribe have signed the sale deed thereafter. 11. The document aforesaid, therefore, on the face of it, shows that the subject matter of Ex.A1 sale was the property of the value of Rs.9,000/- but sold at Rs.6,500/-. The defendant’s contention in the written statement supported by his evidence points out that the lesser amount mentioned in the sale deed is on account of disclosure of attaching creditor’s claim of Rs.2,500/- subsisting against the property at the time of sale, which was also to be discharged by the plaintiff. In support of the said plea, the defendant marked Exs.B1 and B2, which is the claim petition filed by the plaintiff and the relevant portion thereof respectively. The said claim petition was filed when the attaching creditor had got attached and brought to sale the property covered by Ex.A1. The plaintiff’s recitals in the said claim petition specifically mention that he had purchased the property covered under Ex.A1 for Rs.9,000/- and the aforesaid admission of the plaintiff together with contents of Ex.A1, as referred to above, would unmistakable show that Ex.A1 sale transaction was for Rs.9,000/- though the sale deed records payment of consideration of Rs.6,500/- and apparently the balance Rs.2,500/- apparently is set apart for the plaintiff to directly pay to the attaching creditor. 12. The question, therefore, that needs resolution is whether the lower appellate Court was right in excluding all this evidence from consideration by applying Section 91 of the Evidence Act? 13. Firstly, I am not able to appreciate as to how the aforesaid sale can be said to contradict Ex.A1 inasmuch as, if really the sale was for Rs.6,500/- only there was no need to mention in Ex.A1 that the property is worth Rs.9,000/- by giving details of market value and to pay stamp duty on Rs.9,000/-. Secondly, Section 91 of the Evidence Act would have been attracted if there was no recital in Ex.A1 except stating the sale consideration of Rs.6,500/- but that it is not the case on hand. Once there is no contradiction as contemplated under Section 91 of the Evidence Act, the evidence explaining terms of sale, therefore, would be clearly permissible as stipulated under explanation 3 of Section 91 of the Evidence Act, which reads as follows: Explanation 3. – The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact. 14. In my view, firstly, there is no contradiction, as contemplated and secondly, the defendant has led evidence with respect to facts other than those mentioned in Section 91 of the Evidence Act. The existing attaching creditor’s claim is not mentioned in document – Ex.A1 and as such, explaining as to why the property worth Rs.9,000/- is being sold at Rs.6,500/-, cannot be shut out by citing Section 91 of the Evidence Act. The main substratum of the reasons of the lower appellate Court, therefore, being erroneous and contrary to law, I am constrained to set aside the judgment of the lower appellate court by answering the substantial question of law in favour of the appellant. The second appeal, therefore, is allowed and the judgment and decree of the lower appellate Court is set aside and that of the trial Court is restored. In view of the interesting question of law raised and argued by the learned counsel for the parties, there shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J August 20, 2011 DSK [1] 2009 (7) SUPREME 201 [2] 2005 (5) ALD 658 [3] AIR (31) 1944 572 [4] 1955 An.W.R. 502