IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.11.2010 CORAM THE HONOURABLE MR. JUSTICE M. VENUGOPAL A.S.No.98 of 2003 1.J.Kalayarasi 2.S.R.Chinnasamy ... Appellants/Defendants Vs. S.A.M.Ibrahim Sahib ... Respondent/Plaintiff Appeal filed under Section 96 of Code of Civil Procedure, against the Judgment and Decree dated 11.10.2002 made in O.S.No.345 of 1997 passed by the Learned II Additional Sub Judge, Erode. For Appellants : Mr.S.Parthasarathy, Senior Counsel for M/s.V.Bharathidasan For Respondent : Mr.K.S.KarthickRaja for M/s.T.R.Rajaraman JUDGMENT The Appellants/Defendants have preferred the present Appeal before this Court as against the Judgment and Decree dated 11.10.2002 in O.S.No.345 of 1997 passed by the Learned II Additional Sub Judge, Erode. 2.On an appreciation of available oral and documentary evidence on record, the trial Court while passing the Judgment in the main suit O.S.No.345 of 1997 dated 11.10.2002 has among other things observed that '... The 1st Appellant/ 1st Defendant out of a Sale Consideration of Rs.5,00,000/- as per Ex.A.1 Sale Agreement and has also signed in the said Agreement and also that to the 2nd Appellant/ 2nd Defendant, the 1st Appellant/ 1st Defendant has sold the suit property with a view to deceive him and the Respondent/Plaintiff is to pay Rs.1,00,000/- being the balance Sale Consideration to the 1st Appellant/ 1st Defendant and to get the Sale Deed executed in his favour in respect of the suit property from the Appellants/Defendants and accordingly, granted the relief of specific performance with costs. 3.The trial Court has framed 1 to 6 issues for trial in the Suit, for adjudication on behalf of the Respondent/ Plaintiff witnesses P.W.1 to 3 have been examined and Exs.A.1 to A.8 have been https://hcservices.ecourts.gov.in/hcservices/ marked. On the side of the Appellants/Defendants witnesses D.W.1 to 3 have been examined and Exs.B.1 to B.5 have been marked. 4.Feeling aggrieved against the Judgment and Decree passed by the trial Court in the main Suit O.S.No.345 of 1997 dated 11.10.2002, the Appellants/Defendants have filed the instant Appeal before this Court. 5.The points that arise for determination in this Appeal are: (i)Whether the 1st Appellant/ 1st Defendant has received a sum of Rs.4,00,000/- on 25.03.1996 as an advance and executed the Ex.A.1 Sale Agreement dated 25.03.1996? (ii)Whether the Respondent/Plaintiff is entitled to claim the relief of specific performance from the Appellants/ Defendants? The Contentions, Discussions and Findings on Point Nos.1 and 2: 6.According to the Learned Senior Counsel appearing for the Appellants/ Defendants submits that the trial Court committed an error in coming to the conclusion that the Respondent/ Plaintiff has established that the Sale Agreement dated 25.03.1996 is a true and valid one in the eye of law and further, the finding rendered by it that the execution and payment of advance amount have been fully paid by the Respondent/ Plaintiff are wrong besides being a perverse one. 7.It is the further contention of the Learned Senior Counsel for the Appellants that the trial Court has not appreciated the relevant circumstances surrounding the execution and the payment of advance money as per the Sale Agreement and also that the 1st Appellant/ 1st Defendant never executed any Sale Agreement with the Respondent/ Plaintiff and the 1st Appellant was doing a Retail Sale of Textile goods and her husband has been running a hotel business and for that purpose the 1st Appellant/ 1st Defendant has borrowed loans from outsiders by executing pronote and signed blank papers and further that the 1st Appellant 1st Defendant has borrowed a total sum of Rs.3,00,000/- from the Respondent/ Plaintiff on various dates and executed blank pronotes, filled up pronotes, signed blank papers along with signed blank green papers in which some of the papers have also been attested by the Husband of the 1st Appellant/ 1st Defendant etc., and in short, the Respondent/Plaintiff has created a false agreement of sale by using the empty blank papers making it as a genuine one and as such the Sale Agreement is not a true one in the eye of law. 8.According to the Learned Senior Counsel for the Appellants, no one will borrow money and construct the property from the person whom she has received money and the recitals in the said Agreement to the effect that the 1st Appellant/ 1st Defendant has received a sum of 4,00,000/- out of the Sale Consideration of Rs.5,00,000/- and https://hcservices.ecourts.gov.in/hcservices/ also agreed to sell the suit property within a period of one year and three months after completing the construction of the building mentioned in the schedule on receipt of balance sale consideration of Rs.1,00,000/- etc., are all inconsistent one and infact, the 1st Appellant/ 1st Defendant only borrowed a sum of Rs.3,00,000/- as stated in paragraph 8 of the written statement filed by her and in short, there is no clarity in Ex.A.1 Sale Agreement as to what is the property to be sold and therefore, the stand taken by the 1st Appellant/ 1st Defendant is more probable than the one presented by the Respondent/ Plaintiff and therefore, prays for allowing the Appeal in the interest of justice. 9.Proceeding further, it is the submission of the Learned Senior Counsel for the Appellants/ Defendants that the schedule of the suit property in Ex.A.1 Sale Agreement dated 25.03.1996 refers to 7/8 share in an extent of 854 Square Feet and in reality the vendor has no notice to 1/8 share. 10.Advancing his arguments, the Learned Senior Counsel for the Appellants/ Defendants submits that the 1st Appellant/1st Defendant is entitled to let in oral evidence to establish that the transaction was intended to be something other than what it purports to be and the 1st Appellant/ 1st Defendant by all means of oral evidence in bringing to the notice of the Court in unravelling the true intention of the parties and letting in of extrinsic evidence as to acts, conducts, attendant surrounding circumstances is permissible in law under the Indian Evidence Act, 1872 to enable the Court to ascertain the real intention of the parties. 11.The core contention put forward on the side of the Appellants/ Defendants is that the 1st Appellant/ 1st Defendant borrowed only Rs.3,00,000/- from the Respondent/ Plaintiff and therefore, it is a loan transaction and not the Ex.A.1 Sale Agreement dated 25.03.1996, as projected by the Respondent/ Plaintiff. 12.The Learned Senior Counsel for the Appellants/ Defendants contends that the Respondent/ Plaintiff has not produced records for the payment of Rs.4,00,000/-purportedly paid to the 1st Appellant/1st Defendant and infact, in the instant case there is no evidence in regard to the payment of Rs.4,00,000/- from the Allahabad Bank and when the Respondent/Plaintiff has not produced the best evidence before a Court of Law then, it is not a favourable circumstance in his favour. 13.The Learned Senior Counsel appearing for the Appellants/Defendants submits that the Respondent/Plaintiff as P.W.1 in his evidence has stated that he has seen the storeyed/Terraced building and a tea shop and what has remained is only a plastering work and for plastering, the requirement is Rs.70,000/- and for plastering it will not take one year and three months and moreover, https://hcservices.ecourts.gov.in/hcservices/ P.W.1 has stated that the 1st Appellant/ 1st Defendant has purchased the stamp papers on 25.03.1996 but in the cross examination P.W.1 has deposed that he does not know subsequently from whom he has purchased the stamp papers. 14.The Learned Senior Counsel for the Appellants/ Defendants to lend support to the contention that the best evidence is not produced by the Respondent/Plaintiff then the Court has to draw adverse inference against him, relies on the decision of the Honourable Supreme Court Gopal Krishnaji Ketkar V. Mohamed Haji Latif and others AIR 1968 Supreme Court 1413 wherein it is held that a party in possession of best evidence which would throw light in the issue in controversy withholding it then, the Court had to draw adverse inference against him notwithstanding that onus of proof does not lie on him and further it is held that a party cannot rely on abstract doctrine of onus of proof or on the fact that he was not called upon to produce it. 15.He also cites the decision of this Court (Division Bench) 1.Kamireddi Sattiaraju 2.Kamireddi Mangayamma (Died) (First Appellant recorded as Legal Representative of the deceased Second Appellant .. vide Order of Court dated 13.12.2006 in memo in L.P.A.No.181 of 2002) V. Kandamuri Boolaeswari 2007-1-L.W. 309 wherein it is inter alia held as follows: "... Appellants are not attempting to contend that the terms contained therein are to be varied or that the evidence let in on their side was to contradict the terms contained therein – According to the Appellants, the entire evidence let in, both oral and documentary, was only to demonstrate that inspite of existence of Ex.A.1, it will have to be held that the parties had a different contract altogether, an Ex.A.1 was never intended to be acted upon." 16.The Learned Senior Counsel for the Appellants, draws the attention of this Court to the decision of the Honourable Supreme Court Ganesh Shet V. Dr.C.S.G.K.Setty and others (1998) 5 Supreme Court Cases 381 and 382 wherein it is held thus: "... The relief for specific performance is discretionary and is not given merely because it is legal but it is governed by sound judicial principles. The circumstances referred to in sub- sections (2) to (4) of Section 20 in regard to exercise of discretion for granting a decree for specific performance are not exhaustive. In a suit for specific performance, the evidence and proof of the agreement must be absolutely clear and certain. While normally it is permissible to grant relief on the basis of what emerges from the evidence – even https://hcservices.ecourts.gov.in/hcservices/ if not pleaded, provided there is no prejudice to the opposite party, such a principle is not applied in suits relating to specific performance. Where the Defendant denies the contract as alleged and the evidence proves a contract, but different from that alleged by the Plaintiff, the Court should refuse to exercise discretion for grant of decree for specific performance." 17.Per contra, it is the contention of the Learned Counsel appearing for the Respondent/Plaintiff that the 1st Appellant/ 1st Defendant on 25.03.1996 has entered into a Sale Agreement in respect of the suit property with the Respondent/ Plaintiff and further, the 1st Appellant/ 1st Defendant has agreed to sell the suit property to the Respondent/ Plaintiff or his nominee for a Sale Consideration of Rs.5,00,000/- and further, the 1st Appellant/ 1st Defendant has received a sum of Rs.4,00,000/- as advance as a part sale price from the Respondent/Plaintiff and the time for completing the construction has been fixed as one year and three months and to inform in writing about the completion of construction to the Respondent/Plaintiff and that the Respondent/Plaintiff is to pay the remaining Sale Consideration of Rs.1,00,000/- and the Respondent/Plaintiff should take a Sale Deed from the 1st Appellant/ 1st Defendant who is to surrender the possession of the suit property. Moreover, the Learned Counsel for the Respondent/Plaintiff submits that the trial Court after full contest in the suit has come to a consequent conclusion that as per Ex.A.1 Sale Agreement the Sale Consideration in respect of the suit property has been arrived at Rs.5,00,000/- and a sum of Rs.4,00,000/- has been received by the 1st Appellant/ 1st Defendant from the Respondent/Plaintiff and has signed in the SaleAgreement and further, the trial Court has also opined that the 1st Appellant/ 1st Defendant has sold the suit property for a sum of Rs.1,50,000/- with a view to deceive the Respondent/Plaintiff and as such the Sale Deed dated 22.05.1997 viz., Ex.B.2 has been executed by the 1st Appellant/ 1st Defendant in favour of the 2nd Appellant/ 2nd Defendant and accordingly, granted the relief of specific performance with costs by granting one month time for the Respondent/Plaintiff to deposit the balance Sale Consideration of Rs.1,00,000/- and the same need not be interfered with by this Court at this distance of time. 18.The Learned Counsel for the Respondent/Plaintiff cites the decision Siddik Mahomed Shah V. Mt.Saran and others AIR 1930 Privy Council 57 (1) wherein it is held thus "... Where a claim has been never made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward: AIR 1925 Sind 2, Affirmed." https://hcservices.ecourts.gov.in/hcservices/ 19.He also relies on the decision of this Court Shanmughasundaram V. A.S.Narayanaswami and others (1988) 1 MLJ 56 whereby and whereunder it is observed as follows: "No amount of evidence can be looked into upon a plea which was never put forward." 20.The Learned Counsel for the Respondent/Plaintiff seeks in aid of the decision of this Court in Oriental Insurance Company Ltd., Divisional Office, No.118-B, West Perumal Maistry Street, Madurai-1 V. T.Pitchaimani and others 1998 (1) CTC 162 wherein it is laid down as follows: "Normal rule is in the absence of any pleading any amount of oral evidence will not be of any use at all since such oral evidence without pleading is likely to take other party by surprise." 21.Continuing further, it is the submission of the Learned Counsel for the Respondent/Plaintiff that the 2nd Appellant/ 2nd Defendant in his written statement in paragraph (d) has stated that he has got reasons to believe that the Respondent/Plaintiff and the 1st Appellant/ 1st Defendant might have colluded together and brought about the impugned Sale Agreement subsequent to the sale in his favour so as to extract some more money from him or if possible grab at his property and this being so, it is highly strange that the 1st Appellant/ 1st Defendant and the 2nd Appellant/ 2nd Defendant have joined together and projected the present Appeal A.S.No.98 of 2003 before this Court. 22.It is the contention of the Learned Counsel for the Respondent/Plaintiff that Ex.A.1 Sale Agreement dated 25.03.1996 has been executed by the 1st Appellant/ 1st Defendant to and in favour of the Respondent/Plaintiff and that the 1st Appellant/ 1st Defendant has demolished the property mentioned in the Schedule and that he is constructing Storeyed/Terraced building, which has not yet been completed and since for completing the construction he has no sufficient funds, he has agreed to sell the suit property for a Sale Consideration of Rs.5,00,000/- and to handover the possession and further, for completing the construction he has received a sum of Rs.4,00,000/- in the presence of two witnesses viz., A.Jacob and another person etc., and the 1st witness A.Jacob is the Husband of the 1st Appellant/ 1st Defendant and Ex.A.1 Sale Agreement forms part of record and when what has been agreed to between the parties has been reduced in writing, then oral evidence contrary to the recitals of the Sale Agreement and not to be permitted and in short, the contents/recitals of Ex.A.1 Sale Agreement dated 25.03.1996 will prevail over the contra oral evidence. 23.Apart from the above, it is the contention of the Learned Counsel for the Respondent/ Plaintiff that Section 92 of the Indian Evidence Act, 1872 has no application to the facts of the present https://hcservices.ecourts.gov.in/hcservices/ case and also in regard to Ex.A.1 Sale Agreement. 24.It is not out of place for this Court to specifically point out that Section 92 of the Indian Evidence Act, 1872 deals with 'exclusion of evidence of oral agreement'. Indeed, Section 91 of the Indian Evidence Act, 1872 specifies that when the terms on any transaction have been reduced to the form of a document, they may be proved by the production of the document itself. One has to see to what extent extrinsic evidence is admissible to control, viz., to contradict, vary, add to or subtract from the terms of a written document. 25.However, Section 92 of the Indian Evidence Act, 1872 enjoins that when the terms of a contract, grant or other disposition of the property are reduced into writing, whether or not such contract or grant is compulsorily required to be reduced into writing and registered, no oral evidence shall be admitted to contradict, vary, add to or subtract from its terms. When the parties have by mutual consent have reduced the tenor of the condition into writing, it is reasonable to presume that they have introduced into the written document every term and condition and also the circumstance. Consequently, an extrinsic evidence will have to be rejected because such evidence, while deserving far less credit than the writing instrument itself, will inevitably tend in many cases to introduce a different or substitute a new contract for the one really agreed upon and this in the considered opinion of this will cause mischief. 26.This Court aptly points out that Section 91 of the Indian Evidence Act, 1872 deals with exclusiveness of the documentary evidence. But, Section 92 of the Act deals with the conclusiveness and the inclusiveness of such evidence. The ingredients of Section 92 of the Indian Evidence Act, 1872, pre-supposes the validity of the transaction evidenced by the document. If the document is attacked/impeached, then a Court of Law is not bound by the 'paper expression' of the persons and may proceed to looking into the real nature of the transaction. In short, extrinsic evidence is admissible to prove any matter which by substantive law affects the validity of a document or entitles a party to any relief in respect thereof, notwithstanding, that such an evidence tends to vary, add to or in some cases, contradict the writing viz., defective or contractual incapacity, undue influence, forgery, fraud, mistake or want of consideration. 27.It is not disputed that the 1st Appellant/ 1st Defendant has filed I.P.No.19 of 1997 on the file of Learned Sub Judge, Erode, wherein the Respondent/ Plaintiff has been arrayed as 9th Respondent. 28.The evidence of P.W.1 (Respondent/Plaintiff) is to the effect that he has entered into an Agreement for purchasing the property on 25.03.1996 and the Sale Consideration for the property has been fixed at Rs.5,00,000/- and the advance is Rs.4,00,000/- and the talks between him and the 1st Appellant/ 1st Defendant is that https://hcservices.ecourts.gov.in/hcservices/ within one year and three months the construction of the building has to be completed and the sale has to be executed and Ex.A.1 is the Sale Agreement dated 25.03.1996 and at that time when Ex.A.1 Sale Agreement has been entered into, the 1st Appellant/ 1st Defendant has given the Ex.A.2 Sale Deed dated 08.06.1995 (Parent Document) and the property that has been sold to the 1st Appellant/ 1st Defendant has given by way of partition to the sellers of the property and the xerox copy of the partition deed is Ex.A.3 16.03.1962 and earlier the person who sold the property to the 1st Appellant/ 1st Defendant has mortgaged the suit property and Ex.A.4 is the Mortgage Deed dated 09.04.1973. Further, the Mortgage Deed debt has been cleared and the receipt is Ex.A.5 dated 15.07.1983 and that he has to pay the balance Sale Consideration and to get the Sale Deed in his favour and that as per recitals of Ex.A.1 Agreement after completion of the construction of the building the 1st Appellant/ 1st Defendant has not handed over the possession of the property. 29.It is the further evidence of P.W.1 that the Sale Deed executed by the 1st Appellant/ 1st Defendant in favour of the 2nd Appellant/ 2nd Defendant is not a genuine Sale Deed and the amount mentioned in the Sale Deed is not a true one and that alternatively, he prays for the return of the advance amount together with interest at 18% per annum and also prays for creating a charge over the suit property. 30.Also, it is the evidence of P.W.1 (Respondent/Plaintiff) that he does not know whether the suit amount paid to the 1st Appellant/ 1st Defendant has been brought into his income tax account, but he can submit the accounts and further, that for completion of plastering work an amount of Rs.70,000/- is required and that the building in full has been constructed and for doing the plastering work one year and three months has been specified for execution of the Sale Deed and for plastering work one year and three months is not required and maximum in two months the plastering work can be done and to an extent of 1400 Square Feet there are buildings. 31.P.W.1 (Respondent/Plaintiff) goes on to add in his evidence that he has kept an amount of Rs.4,00,000/- in his house for 20 days and he has not got the same from the Bank. However, P.W.1 has deposed (in his cross examination) that for withdrawal of a sum of Rs.4,00,000/- from the Allahabad Bank he has accounts and there are no reasons for not producing the Bank accounts. 32.P.W.2 (Document Writer) has deposed that he has prepared Ex.A.1 Sale Agreement dated 25.03.1996 and has also signed in the said document as a person who prepared the document and in Ex.A.1 Sale Agreement the person who signed as A.Jacob is the Husband of the 1st Appellant/ 1st Defendant and as per Ex.A.1 Sale Agreement an advance of Rs.4,00,000/- has been paid by the Respondent/Plaintiff https://hcservices.ecourts.gov.in/hcservices/ to the 1st Appellant/ 1st Defendant and that they have read over the document and after typing in the stamp papers, signatures has been obtained and in other papers also after typing, signature has been obtained and only with the consent of all the signatures have been obtained in Ex.A.1 Sale Agreement. 33.It is the evidence of P.W.2 (in cross examination) that it is not correct to state that the Sale Agreement is not a true one and he has shown the place to the 1st Appellant/ 1st Defendant as to where she should sign in Ex.A.1 Sale Agreement. 34.It is the evidence of P.W.3 that in Ex.A.1 Sale Agreement he has affixed his signature as a witness and he has seen the 1st Appellant/ 1st Defendant and Respondent/ Plaintiff signing in the Ex.A.1 Sale Agreement and each one of them has seen the other affixing his/her signature and that the 1st Appellant/ 1st Defendant has received a sum of Rs.4,00,000/- which he has seen and only after typing the Sale Agreement, each one of them has signed in the document. 35.It is the evidence of P.W.3 (in cross examination) that the 1st Appellant/ 1st Defendant's Husband A.Jacob in whose pen he has signed in the Ex.A.1 Sale Agreement he does not know about it and that he has signed in Ex.A.1 Sale Agreement with his pen and the Respondent/Plaintiff has affixed his signature in Ex.A.1 Sale Agreement with a different pen and the Document Writer of Ex.A.1 Sale Agreement has signed in his presence, but, he does not remember with whose pen the Document Writer has signed in the Agreement. 36.D.W.1 (the 1st Appellant/ 1st Defendant) in her evidence has deposed that it is not correct to state that on 25.03.1996 for Rs.5,00,000/- the Sale Agreement has been entered into, as spoken to by the Respondent/Plaintiff and further, it is not correct to state that she has received a sum of Rs.4,00,000/- as an advance on the date of Agreement and Ex.A.1 Sale Agreement is not a true document and in respect of the suit property she and the Respondent/Plaintiff has not talked about the sale aspect and she has no intention to sell the suit property to the Respondent/Plaintiff and apart from the suit property she has no other properties. 37.The evidence of D.W.1 (the 1st Appellant/ 1st Defendant) is to the effect that she has incurred loss in respect of the Textile business and therefore, she has received a loan of Rs.3,00,000from the Respondent/Plaintiff and two or three times she has received the aforesaid amount of Rs.3,00,000/- and firstly, she received a sum of Rs.1,50,000/- and again she received a sum of Rs.1,00,000/- and later she received a sum of Rs.10,000/- and Rs.20,000/- and totally the amount has come to Rs.3,00,000/- and as per Ex.A.1 Sale Agreement she has not received the money and she has also not signed in the said document and that she has a debt of Rs.24,28,000/- and that she is not in a position