IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 3RD FEBRUARY 2011 / 14TH MAGHA 1932 RSA.No. 725 of 2003() --------------------- AS.226/2001 of II ADDL.DISTRICT COURT,ERNAKULAM OS.1592/1996 of I ADDL.MUNSIFF COURT,ERNAKULAM .................... APPELLANT/APPELLANT/DEFENDANT -------------------------------------------------------- C.V.SURESH, S/O.SRI.VELAYUDHAN, CHITTINAPPILLY, THEKKUMBHAGAM, TRIPUNITHURA. BY ADVS. SRI. G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. RESPONDENTS/RESPONDENTS/RESPONDENTS: -------------------------------------------------------------------- 1. TOBIN (MINOR), S/O.TITO AND LAILA, RESIDING AT KOMATH HOUSE, EROOR DESOM, TRIPUNITHURA, REPRESENTED BY HIS MOTHER AND GUARDIAN LAILA, W/O.TITO, RESIDING AT KOMATH HOUSE, EROOR DESOM, NADAMA VILLAGE, KANAYANNUR (HAVE NOW ATTAINED MAJORITY). 2. K.S.TITO, S/O.SUKUMARAN, RESIDING AT KOMATH HOUSE, EROOR DESOM, NADAMA VILLAGE, KANAYANNUR TALUK. BY ADVS. SRI.T.B.THANKAPPAN (CAVEATOR) SRI.T.T.HARIKUMAR THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: JUDGMENT ---------------- When the matter was taken up for disposal on 31.1.2011, neither the Counsel nor the appellant present and the matter was adjourned to 1.2.2011. On 1.2.2011 when the case was called, there was no representation and the case was again adjourned to 2.2.2011 and today. Today also there is no representation, when the case was called. Appeal is dismissed for default. 3rd February, 2011 Sd/- HARUN-UL-RASHID, JUDGE / TRUE COPY / VK K.Hema, J. --------------------------- R.S.A.No.725 of 2003 ----------------------------- Dated this 5th day of September, 2011 JUDGMENT If payment of price for sale is disputed, can such fact be proved by mere production and marking of a registered sale deed? Is it necessary to adduce oral evidence to prove such fact? Is there any bar under Section 91 or Section 92 of Indian Evidence Act, 1872 ('Evidence Act', for short) to adduce oral evidence to prove payment of price for sale or existence of sale of property? 2. Can a fact stated or narrated in a document be proved by mere production and marking of the document? Is it necessary to adduce oral evidence to prove such fact? What is meant by “contents of documents” for the purpose of Sections 59, 61 and 62 of Evidence Act? Is there any difference between “contents of documents” and “facts” stated in the document? These are some of the substantial questions of law to be considered in this second appeal. RSA 725/03 2 3. Facts briefly: The sole defendant is the appellant in this appeal. As per the averments in the plaint, he sold plaint schedule property in favour of first plaintiff (who is his sister's son and a minor) vide Ext.A1-registered sale deed. Thereafter, first plaintiff and second plaintiff (minor's father) are in possession of plaint schedule property, which is having an extent of 5 cents of property. The defendant, however, started interfering in plaintiffs' peaceful enjoyment of the property and hence, the suit was filed for permanent prohibitory injunction from trespass, obstruction to enjoyment of the property etc. (The suit is filed by PW1, who is the mother of first plaintiff). 4. The defendant filed written statement and admitted execution of Ext.A1, but, according to him, Ext.A1 is not a sale deed. No sale consideration was paid for the alleged sale. Ext.A1 is only a gift deed, which was later revoked as per Ext.A3- cancellation deed, after issuing sufficient notice to first plaintiff. There is no attesting witnesses to Ext.A1. It was executed at the request of his sister (PW1). Even if Ext.A1 is construed as “gift deed”, it is invalid since it contravenes Sections 123, 59 and 3 of RSA 725/03 3 Transfer of Property Act ('the T.P.Act' for short) and Section 16 of the Contract Act. The defendant is the absolute owner of the property and he is in possession of the property. He is paying basic tax for the property. 5. The plaintiffs are not in possession of the plaint schedule property. The property is not identifiable either by description in the schedule in Ext.A1 or in the plaint. It is a part of an extent of property consisting of 49 cents of land. After filing the written statement, plaint was amended, inter alia, stating that since the transaction is only a sale, it cannot be revoked as per Ext.A3. After execution of sale deed-Ext.A1, defendant has no right over the property. Ext.A3 is null and void and not binding on the plaintiffs. Since Ext.A3 would cast a cloud on the title of first plaintiff over plaint schedule property, a declaration is sought for that Ext. A3 is null and void. 6. The main issues framed by trial court are whether Ext.A1 is a sale deed or a gift deed and whether first plaintiff obtained title over plaint schedule property by virtue of Ext.A1. Both the courts below interpreted the recitals in Ext.A1 (mainly a RSA 725/03 4 particular vernacular expression contained in the said document) and concurrently held that Ext.A1 is a sale deed. It was also held that sale consideration was fixed at Rs.12,000/- and that it was 'paid' to defendant; 'received' by him, but he 'gave up' the amount. 7. The trial court also held that since Ext.A1 is a sale deed, execution of Ext.A3-cancellation deed executed by defendant is of no consequence. On the above findings, a decree was granted by Munsiff Court, declaring that Ext.A3 is null and void and not binding on the first plaintiff or his right over the plaint schedule property. A decree of permanent prohibitory injunction was also granted against trespass etc., as prayed for. The said decree and judgment were confirmed in appeal by the District Court and those are challenged in this second appeal. 8. Heard both sides. Perused the records. The following substantial questions of law were framed in this second appeal, with notice to both sides and both of them were heard: 1. Can this court interfere in the concurrent findings of facts on question of title, in a second appeal? RSA 725/03 5 2. If payment of price for the alleged sale is disputed, can it be proved by mere production and marking of the registered sale deed and by merely interpreting the recitals therein ? 3. Is there any bar under Section 91 or Section 92 of Evidence Act to adduce oral evidence to prove payment of price for sale or existence of sale of property? 4. What is meant by “contents of documents”, for the purpose of Sections 59 and 61 of Evidence Act? 5. Can the “facts” stated/narrated in a document be treated as “contents of document” and can such “facts” be proved by mere production and marking of such document? 6. Is oral evidence necessary to prove the facts stated in a document? 9. Question no.1: The maintainability of this appeal itself is under challenge. Learned counsel for respondents vehemently argued that there are concurrent findings by the courts below that Ext.A1 is a sale deed and hence, question of title cannot be re-opened or set aside in this second appeal. He cited a decision of the Supreme Court in Vidhyadhar v. Manik Rao ((1999) 3 SCC 573) in support of his argument. The relevant RSA 725/03 6 portion from the above decision is extracted hereunder: “23. The findings of fact concurrently recorded by the trial court as also by the lower appellate court could not have been legally upset by the High court in a second appeal under Section 100 CPC unless it was shown that the findings were perverse, being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion. 24. xxxxxx 25. xxxxxx 26. In the face of the findings recorded by the trial court as also by the lower appellate court on the question of execution of sale deed by 2nd defendant in favour of the plaintiff with the further finding that it was a valid sale deed which properly conveyed the title of the property in question to the plaintiff, it was not expected of the High Court to set aside those findings merely on the ground that the circumstances which had already been considered by the lower courts appeared to suggest some other conclusion from proved facts”. 10. Learned counsel for appellants, however, argued that since a question of interpretation of a document is involved in this case which by itself is a substantial question of law and hence, the second appeal is maintainable under Section 100 of the Code of Civil Procedure ('CPC' for short). According to him, both the RSA 725/03 7 courts below went wrong in interpreting a vernacular expression in Ext.A1, without looking into the intention of the parties to hold that there was sale. Therefore, the concurrent findings require interference in this second appeal, it is argued. 11. On hearing both sides and also on a reading of the decision referred above, I find that there can be no blanket ban for interfering with concurrent findings of question of title in a second appeal. If such findings are perverse, being based on no evidence, this Court can certainly intervene. Further, in my considered opinion, if the subordinate courts enter any finding on disputed question of facts, by merely interpreting contents of document, in the absence of oral evidence on such fact, this Court can certainly intervene such findings in a second appeal. 12. In this case, both the courts below relied solely upon the recitals contained in the purported sale deed and interpreted the same to enter concurrent findings on disputed question of tile. This was done in the absence of any oral evidence to prove that there there was payment of price for the alleged sale. The court proceeded as though the recitals in Ext.A1 amount to RSA 725/03 8 substantive evidence for proof of payment of price for sale. This is illegal (further details will be discussed in detail in the appropriate context). Hence, this second appeal is perfectly maintainable. 13. Question nos. 2 to 6: The main controversy in the suit is relating to payment of price for the alleged sale. The appellant raised a contention that there was no payment of any money to him for the alleged sale covered by Ext.A1, a registered sale deed and hence, there was no sale at all as per Ext.A1. The respondents took up a contention that Rs.12,000/- was paid as sale consideration and this fact is revealed from Ext.A1 itself. There can be no doubt that in the light of the above controversy, first plaintiff/first respondent must prove that there was payment of price for the sale, if he has to succeed in the suit. The burden is upon the first plaintiff/first respondent to prove there was payment of price for the alleged sale. 14. According to learned counsel for respondents, the registered sale deed itself is produced and marked in the suit as Ext.A1 and appellant has admitted its execution also. Therefore, RSA 725/03 9 the contents of Ext.A1 will amply prove that Rs.12,000/- was paid as sale consideration and hence, the burden of proof is discharged by respondents. Admittedly, no oral evidence was adduced by respondents to prove that there was payment of price for the alleged sale. The respondents have no case that direct oral evidence is not available to prove such fact. But, it is strongly contended that the recitals in Ext.A1 would suffice to prove the disputed fact. 15. It is not very unusual to find such arguments being raised in courts. In many cases, mere production of a registered sale deed is taken as sufficient to prove the disputed facts stated in the recitals, if execution of document is admitted. It is also very common to find the courts resolving a crucial factual dispute, solely based on the recitals in a registered sale deed and by interpreting the same, even if the facts stated therein are disputed. In cases in which execution of document is admitted, subordinate courts mostly proceed on an assumption that all the facts stated in the document stand proved, even if those facts are disputed. Such a course was adopted by the lower courts in this RSA 725/03 10 case also. 16. In such circumstances, the main substantial question of law arising for consideration in this case is whether the recitals in a document like Ext.A1-registered sale deed alone will prove that there was payment of price for the sale, especially in the absence of any oral evidence to prove alleged payment of price. To answer this question, it is necessary to understand first, what is meant by “fact”. “Fact” is defined in Section 3 of the Indian Evidence Act, 1872 ('Evidence Act' for short) as follows: “Fact”.— “Fact” means and includes— (1) any thing, state of things, or relation of things, capable of being perceived by the senses; (2) any mental condition of which any person is conscious. Illustrations (a) xxxxx. (b) That a man heard or saw something, is a fact. (c) That a man said certain words, is a fact. (d) xxxxxxxxx (e) xxxxxxxxx 17. “Fact”, as per Section 3 of Evidence Act, means and includes, any “thing” which is capable of being perceived by the RSA 725/03 11 senses. That a man said certain words, is a fact; that a man heard or saw something, is a fact; that a person did some thing, is also a fact, since all such things can be perceived by the senses. Therefore, A paid price to B for the sale is also a “thing” which is capable of being perceived by the senses and hence, it is a “fact”, going by definition of “fact” in Section 3 of Evidence Act. 18. So, the next question is, how can a “fact” be proved as per Evidence Act? Section 59 of Evidence Act lays down how a “fact” can be proved, Section 59 reads as follows: “59. Proof of facts by oral evidence.- All facts, except the contents of documents or electronic records, may be proved by oral evidence”. 19. So, how can “contents of documents” be proved, as per Evidence Act? Section 61 of Evidence Act lays down how “contents of documents” can be proved. Section 61 reads as follows: “61. Proof of contents of documents.- The contents of documents may be proved either by primary or by secondary evidence”. RSA 725/03 12 20. What is meant by “primary evidence” is stated in Section 62 of Evidence Act? The said provision (excluding portions which are not relevant for disposal of this appeal) is extracted hereunder: “62. Primary evidence.- Primary evidence means the document itself produced for the inspection of the Court.” 21. Thus, “contents of documents” cannot be proved by oral evidence, by virtue of Section 59 of Evidence Act. All facts, except “contents of documents” may be proved by oral evidence, it is laid down in Section 59. As per Section 61 of Evidence Act, “contents of documents” can be proved either by primary or by secondary evidence. As per Section 62, “primary evidence” means the document itself produced for the inspection of the Court. Therefore, a joint reading of Sections 59, 61 and 62 of Evidence Act reveals that “contents of documents” can be proved by production of the document itself for the inspection of the court or by secondary evidence. But, what is meant by the expression, “contents of documents”? RSA 725/03 13 22. I could not come across with any precedents laying down the meaning of “contents of documents”. The expression, “contents of documents” is not defined in Evidence Act. “Contents” as per 'Oxford Advanced Learner's Dictionary' (7th Edition) means, “the things that are contained in something; for example, contents of a box, contents of a book, stomach etc. The word, “content”, usually is used in plural. If a box contains chocolates, books and pencils, those are its contents”. Hence, contents of a document means all the things which are contained in the document. 23. What is meant by a “document”? “Document”, as per Section 3 of Evidence Act, means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter. As per the illustrations, a writing is a document; words printed, lithographed or photographed are documents; a map or plan is a document; an inscription on a metal plate or stone is a document; a caricature is a document, etc. RSA 725/03 14 24. A document may, thus, contain several “things”, such as writing, figures, marks, print, inscription, etc. It may also contain various other things than mere writing. Therefore, all the things as may be contained in the “document”, as defined under Section 3 of Evidence Act, constitute “contents of a document”. That a document contains a particular writing; that it contains a type-written matter or a particular handwriting, a writing in ink, an erasure, interpolation, painting, fold, etc. constitute “contents of documents”. 25. “Contents of a documents” itself is treated as a “fact”, as per Section 59 of Evidence Act. This is clear from the expression “all facts except contents of documents” (All flowers in the basket except lily are red means lily is also a flower). So, contents of a document itself is a “fact” and it is so treated by the legislature, for the purpose of Evidence Act. Therefore, all the “things” that can be perceived by the senses on inspection of a document can be said to be “contents of the document”. Whatever is seen or can be read from a document or perceived by any other senses on an inspection of the document by the RSA 725/03 15 court can be said to be the “contents of a document”, for the purpose of Sections 59 and 61 read with Section 62 of Evidence Act. 26. If, on perusal or inspection of a document, it is found to contain a writing, figures, marks, print, inscription, signature, painting and date, those things are its contents. If there is an interpolation, smugging, folding or erasure in the document, those are also its contents. If it contains a printed matter, a handwriting or type-writing, all those things are “contents of documents” because all those things contained in the document are visible on an inspection of document by court. 27. However, if a “fact” which falls under Section 3 of Evidence Act is written in a document, such “fact” incorporated in the document can be treated only as a 'statement of fact' relating to such “fact”. Such a 'statement of fact' may be treated as one of the “contents of document” but, the “fact” written in the document as such, will not constitute “contents of document”. This is for the reason that on an inspection of the document by court, the court can only see that the document contains a RSA 725/03 16 'statement of fact' referring to a “fact” but, it cannot see or perceive by any sense truth or existence of the said “fact” written in the document. 28. Thus, there is a clear distinction between “contents of documents” and the “facts” stated or narrated in the document. An example will make this position clearer. If it is stated/written in a document that “A gave a flower to B”; “the flower has a sweet fragrance and it is white in colour” or “C killed D”, such writing is only a statement contained in the document referring to such facts. On production of such a document, it can be said that the document contains a “statement of facts” to the effect that “A gave a flower to B” etc. But, on mere inspection of such a document, the court cannot perceive by any sense whether actually C killed D; whether A gave a flower to B; whether the flower was white in colour or it had any a sweet fragrance or not. 29. That “A gave a flower to B”; “the flower has a sweet fragrance and it is white in colour” and “C killed D” are things which, by themselves, are perceivable by the senses. Those are not things which can be seen or smelt on a mere inspection of the RSA 725/03 17 document or reading of the same. Those are things which might have occurred elsewhere, on a particular date, time and place other than date and place of preparation of the document. Therefore, a mere production of document will not prove existence of the “facts” stated in the document, even though it will prove that the document contains 'statement of fact' referring to such fact or facts. 30. If “facts” as defined under Section 3 are stated or narrated in a document, production of document may prove that the document contains a “statement of facts” relating to such “facts”. But, it will not prove whether the “facts” stated or narrated therein exist or are true. Such “facts” will not stand proved by mere production of the document, since they do not constitute “contents of document”. By virtue of Section 59 of Evidence Act, such facts have to be proved by oral evidence itself. 31. From the above discussion, it will be clear that if a buyer pays price for the sale to the seller and such fact is stated in a document (whether it be in a letter or a registered RSA 725/03 18 document), it constitutes only a “statement of fact” incorporated in the document. By mere production of the document, all what may be proved is that the document contains a “statement of fact” that the buyer paid price for sale to the seller, but, whether such payment was actually made or not will not be proved by such production or marking. The fact that there was payment of price has to be proved by oral evidence, going by Sections 3 and 59 read with Sections 61 and 62 of Evidence Act. 32. Section 60 of Evidence Act lays down that oral evidence must be direct. Hence, if oral evidence is to be adduced to prove payment of price for the sale, it must be direct. If such direct oral evidence is adduced to prove such fact, any 'statement of facts' contained in a document relating to such fact can be relied upon to corroborate or contradict such oral evidence, as a former statement. But, in the absence of oral evidence, mere production of document which contains a narration of a past event will not suffice to prove the facts stated therein, in the light of Section 59 read with Sections 61 and 62 of Evidence Act. RSA 725/03 19 33. Of course, if no direct oral evidence is available to prove a fact, circumstantial evidence can be adduced. Such circumstances sought to be proved may also constitute “facts” as defined in Section 3 and such facts have to be proved by oral evidence, as per Section 59 of Evidence Act. A document, if any, can be used to corroborate the version given by a witness. Even then, mere production of a document, in the absence of oral evidence, will not prove the facts stated in the document. 34. There is no presumption that all “facts” stated in a document are true or that they exist. Even if execution of the document is admitted by the executant, if he disputes the correctness, truth or existence of facts stated in the document and those are in issue, such facts will have to be proved, as per evidence which is admissible, in accordance with law. The mere admission of execution of a document may prove that such a document is executed but that will not further prove that the facts stated in the document exist or that those are true, especially if such facts are disputed and are in issue. RSA 725/03 20 35. Therefore, if payment of price for the sale is disputed and it is in issue, mere admission of execution of a sale deed which contains a narration of a past or future event of payment of price for the sale will not prove that