IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:11.02.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.314 of 2010 G.Arumugham .. Appellant(1st Defendant) vs. 1. M.Palani 2. Saroja .. Respondents(Plaintiff and 2nd Defendant) (R2 given up) This second appeal is filed against the judgment and decree dated 28.02.2008 passed by the learned Principal Subordinate Judge, Chengalpattu in A.S.No.77 of 2003 reversing the judgment and decree dated 14.07.2003 passed by the learned District Munsif cum Judicial Magistrate, Alandur in O.S.No.2838 of 1997. For Appellant : Mr.S.Sethuraman for Mrs.Anuradha Balaji For Respondent 1 : Mr.M.P.John Peter R2 No appearance J U D G M E N T This second appeal is focussed by the first defendant, animadverting upon the judgment and decree dated 28.02.2008 passed by the learned Principal Subordinate Judge, Chengalpattu in A.S.No.77 of 2003 reversing the judgment and decree dated 14.07.2003 passed by the learned District Munsif, Alandur in O.S.No.2838 of 1997. 2. The parties are referred to here under according to their litigative status and ranking before the trial Court. 3. The factual matrix as stood exposited from the records would run thus: a) The plaintiff filed the suit O.S.No.2838 of 1997 seeking the following reliefs: - to direct the defendants to return the original sale deed dated 20.4.89 registered as document No.1528/89 before the S.R.O.Alandur, in respect of Plot No.41, comprised in https://hcservices.ecourts.gov.in/hcservices/ S.No.93/4, Puzhithivakkam Village, Madipakkam, Chengai-Anna District more fully described in the schedule under written to the plaintiff and for costs. (extracted as such) b) Whereupon, the first defendant filed written statement with counter claim, claiming as under: - for a direction to the plaintiff to pay Rs.38,481/- together with interest at the rate of 12% p.a on the amount of Rs.30,300/- from date of plaint till the date of decree and subsequent interest at the rate of 12% p.a till realisation of decree amount. - for a charge on the schedule mentioned property for the recovery of the decree amount. - for costs. (extracted as such) Separate written statement was filed by the second defendant. c) Whereupon, relevant issues were framed by the trial court. d) The plaintiff-Palani examined himself as P.W.1 and marked Exs.A1 to A8. On the side of the defendants, the first defendant examined himself as D.W.1 along with D.Ws.2 and 3 and marked Exs.B1 to B4. e) Ultimately, the trial court dismissed the suit as well as the counter claim. As against which appeal was filed only by the plaintiff and not by the defendants. f) The appellate court decreed the original suit as against which, the first defendant preferred this second appeal on various grounds inter alia to the effect that the appellate court without going into the factual aspects involved in the matter, simply invoked Section 92 of the Indian Evidence Act to the effect that quite contrary and antithetical to the averments found set out in the sale deed i.e. the certified copy of Ex.A1 the defendants cannot plead anything and accordingly, decreed the suit, directing the first defendant to return the original sale deed dated 20.04.1989 and on failure to do so, D1 to pay a sum of Rs.19,250/- with interest at 6% p.a from the date of plaint till realisation and according to the first defendant, such a finding given by the appellate court was erroneous. As such, suggesting the following substantial questions of law, the appellant, so to say, the first defendant has filed this second appeal. 1. Is it right on the part of the first appellate court to conclude that the plaintiff had paid the consideration for the sale deed by merely relying on the recital with regard to the consideration as found in Ex.A1 excluding the oral evidence of the witnesses more specially the evidence of PW1 in terms of Section 91 of the Evidence Act when consideration does not form part of the terms of the contract? https://hcservices.ecourts.gov.in/hcservices/ 2. Is it not erroneous on the part of the first appellate court to overlook the evidence of witnesses more specially the evidence of DW2 in regard to the payment of consideration for the purchase of the property in terms of Sec.39 of the Evidence Act for full understanding of the nature and effect of the recital in regard to the payment of consideration purported to be paid by the plaintiff as found in Ex.A1. 3. Is the first appellate court invested with powers under Order XLI Rule 33 of CPC to mould a decree by traversing the scope of the relief prayed for in the suit thus granting an alternative relief to the first defendant to pay a sum of Rs.19,500/- as consideration for the sale deed to retain the sale deed Ex.A1? 4. Is Sec.92 of the Evidence Act is applicable to the instant case more so when the said proviso would be binding only to the parties to the contract when it is a fact that the first defendant is not party to the sale deed Ex.A1? (extracted as such) g) My learned predecessor formulated the following substantial questions of law: 1. Whether the lower appellate court has ignored the import of Section 92 of the Indian Evidence Act? 2. Whether the decision of the lower appellate court is contrary to its finding so as to prejudice the rights of this appellant? (extracted as such) 4. Heard both sides. 5. The gist and kernel of the argument as put forth on the side of the first defendant/appellant would run thus: (i) The appellate court was not justified in invoking Section 92 of the Indian Evidence Act placing reliance on the averments in Ex.A1 as the first defendant is a third party to the said sale deed and he is not claiming any right over the suit property contemplated under the said document. (ii) The only contention of the first defendant was that the said document could be obtained by the plaintiff from him only on payment of the sale consideration paid by the first defendant along with the stamp duty, registration charges etc., incurred by him. (iii) The relationship between the parties is an admitted one and because of the nearness of the relationship,the first defendant did https://hcservices.ecourts.gov.in/hcservices/ choose to fund the sale consideration for the purchase of the suit property in the name of the plaintiff, with the understanding that after paying the sale consideration, he should take back the document. (iv) No doubt strained relationship erupted between them; whereupon the plaintiff did not pay the amount as agreed to be paid by him to the first defendant; wherefore alone the first defendant was constrained to retain the document. Accordingly, the learned counsel for the appellant/first defendant would pray for allowing the second appeal by setting aside the judgment and decree of the first appellate court in passing the judgment as under: "17. In the result, the first defendant is directed to deliver the original sale deed dated 20.4.89 bearing document No.1528/89 of Sub Registrar, Alandur to the plaintiff failing which in alternative the plaintiff is entitle to collect a sum of Rs.19,250/- with interest at 6% p.a from the date of plaint till realisation." 6. In an attempt to torpedo and pulverise the argument as put forth and set forth on the side of the appellant/first defendant, the learned counsel for the first respondent/plaintiff would advance his argument, which could pithily and precisely be set out thus: a. There are umpteen number of contradictions between the averments in the written statement and the evidence given by the defendants. Even though D1 would wax eloquence that it was he who funded the sale consideration relating to Ex.A1, he had not chosen to produce the income tax assessment despite he having deposed before the court that he had specified the said funding in the income tax assessment. b. D1 went to the extent of totally denying the plaintiff's right as a partner in the partnership firm run by the plaintiff and D1; however subsequently, from his own evidence, it turned out that DW1 (D1) admitted that the plaintiff was the partner in the partnership. The plaintiff understanding that the burden of proof was on him adduced positive evidence and also marked Ex.A8. As such, the plaintiff discharged his burden by pointing out that at the relevant point of time, he had necessary financial wherewithal to purchase the suit property. c. Taking into consideration the fact that D1 happened to be an elderly person and also plaintiff's close relative, he did choose to give the entire money to D1, who in turn, gave it to the near relative viz., Vinayagam, who was the moving spirit in bringing about the sale. Soon after the fructification of the sale, the plaintiff did not insist for the sale deed being handed over to him because of the respect and regard he had for D1 and hence he had allowed it to be with him and not with any undertaking that only after payment of the sale consideration and other expenses, he would get back the document from D1. https://hcservices.ecourts.gov.in/hcservices/ d. The appellate court understanding the whole facts in the proper perspective, set aside the judgment and decree of the lower court and allowed the appeal and ultimately decreed the suit, warranting no interference in the second appeal. 7. A 'resume' of a few facts, absolutely necessary would run thus: Indubitably and indisputably, incontrovertibly and unarguably the plot was purchased in the name of the plaintiff and the sale deed, till it was deposited in the High Court, was with D1. It is the contention of the plaintiff that it was he who incurred the entire expenses including the sale consideration for purchasing the property covered under the original of Ex.A1. Ex.A2 is the copy of the legal notice sent by the plaintiff to the defendant calling upon him to return back the original sale deed to him. Whereupon, Ex.A3 reply was given by D1 for which Ex.A4 was given as Rejoinder. No doubt in the earlier notice sent by the plaintiff, there was no whisper about the various facts, which were found set out in his rejoinder for which the learned counsel for the plaintiff would submit that the plaintiff was not enjoined, at the first instance itself, to set out all the facts relating to the matter when the plaintiff was only in need of the document back from D1; inasmuch as D1 came forward with certain allegations in his reply, the plaintiff was constrained to set out the nature of the transactions and he had also demanded a sum of Rs.5,000/- allegedly in excess paid by the plaintiff to the first defendant in the process of purchasing the property covered under Ex.A1. 8. At this juncture, I would like to fumigate my mind with the following decisions of the Hon'ble Apex Court: (i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL (ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER. (iii) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYAL (iv) (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi], certain excerpts from it would run thus: "19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronoucements. https://hcservices.ecourts.gov.in/hcservices/ 23. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread." A mere poring over and perusal of the aforesaid precedents would clearly display and demonstrate that unless there is any perversity or illegality in the findings of the courts below, the question of interfering with the same in the second appeal would not arise. 9. It is also a trite proposition of law that preponderance of probabilities would govern the adjudication in civil cases and proof beyond all reasonable doubts is not required. No doubt, the plaintiff placing reliance on the averments in stricto sensu in the sale deed would press for applying Section 92 of the Indian Evidence Act with the fond hope that once according to him the averments are given importance, the defendants would be non suited and that only the plaintiff's case would be upheld. 10. Whereas the learned counsel for the appellant/D1 would appropriately and appositely, correctly and convincingly pointed out that Section 92 of the Indian Evidence Act can be pressed into service only between the parties to the document and the said section cannot be focussed as against a third party. (i) (1982) 1 SCC 4, at page 10 -Gangabai v. Chhabubai, certain excerpts from it would run thus: "11. The next contention on behalf of the appellant is that sub-section (1) of Section 92 of the Evidence Act bars the respondent from contending that there was no sale and, it is submitted, the respondent should not have been permitted to lead parol evidence in support of the contention. Section 91 of the Evidence Act provides that 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. Sub- section (1) of Section 92 declares that when the terms of any contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms. And the https://hcservices.ecourts.gov.in/hcservices/ first proviso to Section 92 says that any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. It is clear to us that the bar imposed by sub-section (1) of Section 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub-section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties (Tyagaraja Mudaliyar v. Vedathanni919). The trial court was right in permitting the respondent to lead parol evidence in support of her plea that the sale deed dated January 7, 1953 was a sham document and never intended to be acted upon. It is not disputed that if the parol evidence is admissible, the finding of the court below in favour of the respondent must be accepted. The second contention on behalf of the appellant must also fail. (ii) 1993-2-L.W.205 – NANJAMMAL (DIED) AND ANOTHER V. PALANIAMMAL, certain excerpts from it would run thus: "5. It was one of the contentions urged in the Court below that the plaintiff had not even obtained encumbrance certificate before the execution of Exhibit A1 and she had not taken the title deed from the defendant. The Court below has pointed out the recital in Exhibit A1 under which the defendant had undertaken to obtain an encumbrance certificate and give it to the plaintiff. The fact that the plaintiff had not taken the title deed in advance does not in any way discredit the truth of the agreement in Exhibit A1. In fact, the evidence of the defendant is that what was written was really an agreement though it was only for the purpose of securing the loan. She (defendant) has admitted that the plaintiff wanted her to execute an agreement for sale by way of security for the loan and she did execute such an agreement. When that is the fact, it is not open to the defendant to raise a plea that the terms of the agreement should be ignored as the real purpose was to secure the loan https://hcservices.ecourts.gov.in/hcservices/ transaction. It is conceded by learned counsel for the appellants that the defendant is barred from raising such a plea by S.92 of the Indian Evidence Act. 6. Hence the only question to be considered is whether the relief of specific performance should not be granted to the plaintiff. The normal rule is that once the truth of the agreement is made out the Court shall enforce it unless there are circumstances which would prove that equity will suffer by enforcing the agreement for sale. In the present case no such circumstances has been brought to the notice of the Court either in the pleadings or in the evidence to show that equity favours the defendant and relief of specific performance should be denied. The defendant has stated in the evidence that the property was worth much more than Rs.1,01,000/- at the time of the agreement. But there is absolutely no evidence in support of the same. No document has been produced to prove the value of the lands in the locality and no witness has been examined to speak to the same. In such circumstances we cannot accept the case of the defendant that the property is more valuable than the consideration mentioned in Exhibit A1." A mere perusal of those decisions would highlight and spotlight that if there are certain recitals in such registered document then contra evidence cannot be adduced by either of the parties. Pleading that the said document was not intended to be acted upon, is different from pleading that certain averments found set out therein are untrue. 11. Here, the first defendant does not claim any right over the property or any right under the said sale deed quite contrary or antithetical to the purport and spirit of the sale deed. The learned counsel for the appellant/first defendant would submit that D1's contention is only to the effect that the said document was allowed to be retained by the first defendant on the undertaking given by the plaintiff that on his payment of the sale consideration, he would get back the document from the first defendant. 12. At the initial stage of argument, the learned counsel for the appellant/D1 tried to usher in the concept lien, bailment, charge etc. and when this court raised the question as to how in respect of a document, so to say, the sale deed those concepts could be pressed into service and that too when the Hon'ble Apex Court in the decision reported in AIR 2000 SC 2912 (R.D.Saxena vs. Balaram prasad Sharma) held that the document entrusted by the client to his counsel cannot be treated as goods, the learned counsel for the appellant/D1 would at once agree that the document cannot be treated as goods in view of the Hon'ble Supreme court's verdict referred to supra. He would also cite the decision reported in AIR 1988 Calcutta 410 [ M/s.Orient Longman Ltd. vs. Jayati Laila Kabir and others], which also would highlight that a document cannot be treated as goods. https://hcservices.ecourts.gov.in/hcservices/ 13. Section 171 of the Indian Contract Act (9 of 1872) would once again go against the plea of D1, in his attempt to usher in the concept bailment, lien, charge etc. A charge cannot be assumed or presumed. If at all any law or decree envisages charge, then only it could be presumed to be in existence. 14. Here, in this case, there is no such factor exists. Hence, understanding the realities in law, the learned counsel for the appellant/D1 switched over his argument entirely to the concept "trust". According to him by the very undertaking given by the plaintiff in favour of D1 that on payment of the sale consideration and other charges, he would take back the sale deed from him would constitute a trust and in such a case, till the plaintiff pays the amount, the first defendant cannot be compelled to part with his document. 15. I could see ex facie and prima facie considerable force in his submission, in view of the following decisions also: (i) 2010(1) CTC 241 [ Secretary General, Supreme Court of Inida vs. Subhash Chandra Agarwal] "101. Section 88 of the Indian Trusts Act requires a fiduciary not to gain an advantage of his position. Section 88 applies to a trustee, executor, partner, agent, director of a company, legal advisor or other persons bound in fiduciary capacity. Kinds of persons bound by fiduciary character are enumerated in Mr.M.Gandhi's book on "Equity, Trusts and Specific Relief" (2nd ed., Eastern Book Company) 1. Trustee, 2. .........,3 .........., 4........., 5........, 6....... 7.Manager of a joint family 8......., 9..... 10........ 11....... 12....... 13.........14....... 15...... 16...... 17....... 18....... 19..... 20. Trustee do son tort 21........ 22. Benamidar" (ii) (2009) 3 MLJ 1120 [ P.Srinivasan and another vs. P.Gopal and another] "16. As admitted by both parties, the business of the jewellery shop itself is agreed to be allotted to the plaintiffs and a decree had also been passed on that basis. It is inconceivable that the property in which the business was run was not contemplated by the parties at all for being retained by them. The question which is strongly addressed by the counsel for the appellant is that when the plaint had been filed in O.S.No.480 of 1985 and the panchayat had given its verdict about the allotment of business to the plaintiffs, they must have also https://hcservices.ecourts.gov.in/hcservices/ made reference to the equitable right of purchase which had come about by that time and that aspect should have also been referred to in the plaint. ..........." However, the learned counsel for the first respondent/plaintiff would submit that if at all D1 could establish that he paid the sale consideration and consequent upon that only the plaintiff allowed him to keep the sale deed in trust for the payment of the amount for the sale consideration to D1, the question of invoking Trust will come. 16. To the risk of repetition and pleonasm but without being tautologous, I would like to point out that preponderance of probabilities would govern the adjudication in civil cases. On the one hand, the plaintiff would contend that he reposed confidence in D1 and that was why he paid the amount to him for purchasing the property and subsequently,he allowed the document to be with him out of sheer