Case: Trimbak Narayan Hardas Vs. Babulal Motaji &amp; Others

have been exhibited. He referred to some extracts of accounts which he said he had himself prepared from his account books. There is no evidence that any of the contesting defendants agreed to these copies of extracts of account going in evidence. It would appear that even these extracts were not exhibited at the time of the trial but accepted by the learned Judge after the trial was over when the judgment was written some months later. It does not also appear that these extracts were verified in the office by any ministerial officer of the court, because the usual practice is that when original books of account are produced in court and they are required for daily use, extracts are produced in court, and after their verification with the originals by a ministerial officer of the court the originals are allowed to be taken away, to be produced again at the time of the hearing. The extracts produced in this case do not show that they had been verified with the originals by any ministerial officer of the court. The High Court observed in its judgment that it was more than likely that the plaintiff had produced the books of account in court and for this support was derived from the fact that during the cross-examination no questions have been put to the plaintiff in connection with the entries in the account books. We are afraid this is a wrong approach. If the plaintiff does not produce his original books of account in court and does not give evidence after referring to the entries therein, there is no obligation - in fact it will be wrong - on the part of the learned counsel for the opposite side to ask questions with regard to the entries in the books of account. It is true that the plaintiff had said that he had produced extracts and that these extracts were true copies of the originals. But counsel for the other side need not take any notice of this statement because that statement does not prove the books of account. If the learned Judge were satisfied with the extracts at the time and had decided to exhibit the same, counsel would have promptly objected to the same being done in the absence of the originals.It must be, therefore, held that the books of account had not been produced in court and the extracts were inadmissible in evidence.12. The High Court saw this difficulty and asked the plaintiff to produce these books of account for the courts inspection. It further appears that the learned Judges went through the original books of account and straightway relying on them held that the whole of the earnest money must have been received by defendant no. 1. Strong objection is taken by learned counsel for the appellant to the manner in which an important point has been disposed of. In fact this was letting in fresh evidence without giving the parties an opportunity to cross-examine the witness with regard to the books of account or the truthfulness of the entries. We agree that the High Court was not justified in looking into the books of account which had not been put in as evidence in the trial court. The High Court has suggested that the appellant had a duty to call the books of account for inspection in the trial court. One really does not see the point of this. The plaintiff was proving his case both with regard to the execution of the document and the money he had paid under it. Apart from his own word there was no other evidence except the evidence of books of account These books of account ought to have been produced by him to corroborate his own oral evidence. If he does not produce the books of account, the other side was under no obligation to call on the plaintiff to produce them for their inspection. Indeed, if the plaintiff had given intimation that he was going to rely on his books of account and had offered to give inspection of the same to the other side that would have been a different matter. We must, therefore, proceed in this case on the footing that the books of account had not been proved in the trial court and the High Court was not justified in looking into these books and deciding about their correctness without giving an opportunity to the other side to challenge them by the cross-examination of the plaintiff. As we have already shown, the plaintiffs oral evidence is not trustworthy and it is not possible to believe that he had paid Rs. 30,000/- under this document.13. Plaintiffs claim to have a prior charge over defendant no. 6 arises from the claim that this agreement to sell (Ext. 49) is a genuine document. We have pointed out serious deficiencies in the evidence of the plaintiff, which go to show that there must not have been a genuine transaction for sale of property. It appears from the judgment of the High Court that on inspection of the books of account it was possible to discover that these were loan transactions and that actual deductions by way of interest had been made before payment. We cannot take notice of what the learned Judges found on going through the account books because they were not evidence. But even otherwise, if that finding is correct, we do not see how the document against which these loans had been made can be described as a genuine document to sell immovable property. We are not concerned to decide whether Ext. 49 embodied a loan transaction. In our opinion, the transaction was not an agreement to sell immovable property; which alone would have attracted the statutory charge under Section 55 (6) (b) of the Transfer of Property Act. And if the plaintiff does not get a charge over the property, it should follow that there is no prior charge against defendant no. 6.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]There was no question of any collusion because we find that defendant no. 6 filed an execution application against defendant no. 1 and took out a warrant for the attachment of defendant no. 1s movables. To avoid the ignominy which an actual execution of the warrant would have brought on defendant no. l, the latter hurried to give possession of house no. 108 in Mangalwar Peth to defendant no. 6 which under the award decree he was bound to sell to defendant no. 6. It is true that defendant no. 1 and defendant no. 6 were related, though distantly, but it cannot be ignored that the matters between them had come to such a head that defendant no 6 Hardas had come all the way from Amaravati to Poona to take out execution against defendant no. 1 in satisfaction of his decree. Under the pressure of execution he had also obtained possession of one of the houses belonging to defendant no. 1. There was no question thereafter of any cordiality between defendant no. 1 and defendant no. 6. It is suggested on his behalf that the agreement to sell in favour of the plaintiff must have come into existence at about this time, the sole object of the document being merely to defeat his claims. It must be noted here that defendant no 6 had to file an application to raise the attachment levied by one other creditor who had been made defendant no. 7 in the suit and actually the attachment was raised at his instance onThe award decree had directed that defendant no. 1 should sell house premises 108 Mangalwar Peth to defendant no 6. So after the first petition of execution had been disposed of ondefendant no. 6 filed a second execution petition onand had demanded the execution of the sale deed of the property of which he was now in possession in accordance with the award decree. A point to be noted is that it is at this stage that defendant no. l receives a notice from the plaintiff datedLearned counsel for the appellant has asked us to note these particular facts, namely, that this agreement to sell sees the light of the day for the first time when defendant no. 6 was seriously prosecuting his claim against defendant no. 1 filing execution petitions one after the other. We have felt no hesitation in agreeing with the High Court that the transactions between defendant no. 1 and defendant no. 6 were genuine transactions and the award decree was also equally genuine. The trial court has held that if the award decree is held to be not collusive then there is no evidence to show on behalf of the plaintiff that defendant no. 6, who was a resident of Amaravati, had any notice of the alleged agreement to sell. We agree with that finding also.7. Since defendant no. 1 did not contest the claim of the plaintiff and the plaintiffs claim against the minor sons of defendant no. 1 has also been finally dismissed, it would not have been necessary to examine the genuineness of the alleged agreement to sell (Ext. 49) but for the fact that the High Court has declared that plaintiff gets a prior charge as against defendant no. 6s charge under the award decree. It is contended on behalf of the appellant (Hardas) that in order to claim a charge on the property under Section 55 (6) (b) of the Transfer of Property Act, there must be a genuine transaction of an agreement to sell, and if there is no genuine transaction there could be no statutory charge under that provision. The issue as to whether the transaction was a genuine one or not was before the trial court as well as, in appeal, in the High Court. The trial court held that there was no genuine transaction. The Appellate Court held there was and we have to see which view is correct.8. In the first place, the document (Ext. 49) makes very strange reading. It says that there were two mortgages, one of Pendse and the other of Ranabhor and the total amount due thereon was about Rs.The dates of these mortgages are not mentioned. Then it proceeds to say that the vendor had decided to sell the property for Rs. 50,000/out of which the vendor had received Rupees 30,000/as earnest money The document reads as if Rs .30.000/had been received in cash by the vendor at the time of the execution of the document. One years time is given for executing the sale deed and then it proceeds to say "we will clear away all debts and liabilities as above described and render the property absolutely free from all encumbrances and execute a sale deed at our cost in your favour or in favour of any other party nominated or assigned by you." In other words, there is no stipulation that out of Rs. 30,000/that had been received by the vendor he should first pay off the mortgages. Where a vendor is serious about taking a sale deed and knows that property is under mortgage he generally takes upon himself to pay off the mortgages out of the amount payable to the vendor or, in any case, insists that the mortgages may be paid off immediately so that the burden on the property may not increase. Secondly, it sounds rather extraordinary that where the price is fixed as Rs. 50,000/the vendee should make a payment of Rs. 30,000/without any security for his money except this unregistered agreement. The matter becomes more curious when the plaintiff in his evidence says that Jangli was not a friend of his but just an acquaintance and the plaintiff himself was not even aJangli was not able to sell the property within the first year. So the time was extended by six months. Even after those six months the sale deed was not passed and then the plaintiff extends the period by one more year and all this time the plaintiff knows that the previous mortgages have not been paid off and his own amount of Rs. 30,000/does not bear any interest. It is extraordinary that the plaintiff who pays Rs. 30,000/as earnest money to a mere acquaintance would not even stipulate for interest on that amount if the document was not executed in time, with his eyes open, the plaintiff extends the time for executing the sale deed. He had the balance of Rs. 20,000/ with him at the time and if he was really serious about the transaction he could have himself paid off the mortgages but he does not do anything of the kind.On the face of it, therefore, the document does not impress one as being a genuine transaction for sale of property.9. This was a property in Poona. The plaintiff had known that there were mortgages on this property. It does not appear that the plaintiff made any enquiries about these mortgages. No doubt he says in his evidence that he had enquired from the mortgagees but these very mortgagees, who were called as his witnesses, did not say that any enquiries had been made with them. Admittedly the plaintiff did not give public notice before purchase in order to see if there are any claims against the property or objections to the sale. According to him, just two or three days before the document, the vendor had approached him and thereupon he decided to purchase the property for Rs.Asked how he fixed the price at Rs. 50,000/he said that one contractor Ambekar had told him that the property was worth Rs. 52,000/or Rs. 53,000/ and so he agreed to pay Rs.This contractor was not examined and it is admitted that the contractor did not make any written estimate of the value. In his evidence he tried to make out that he had made all necessary enquiries before purchase by asking: the mortgagees and consulting a lawyer named Mr. Bankar. According to him Mr. Bankar was to make enquiries in the City Survey Office. He admitted that Mr. Bankar did not give any opinion in writing nor was Mr. Bankar examined as a witness. It is hence, clear, that no enquiries were made as to the title of the property. The plaintiff also admits that he could not say how much rent was received from the property. In a place like Poona it is impossible to believe that anybody will offer to buy house premises without making detailed enquiry whether there are any tenants in the premises or not and if there are, what rents are being paid. His whole case in the evidence that he had made all enquiries with regard to a clear title is belied by the notice he had given before filing the suit. In this notice he had clearly charged defendant no. 1 that the latter had not satisfied him about a marketable title. In the plaint also in two or three places he alleged that defendant no. 1 had not satisfied him with regard to the title to the property.We have no doubt, whatsoever, that the plaintiff had made no enquiries regarding the premises, its occupants, the rents received or the incumbrances to which they were subject. He did not make enquiries as to the proper price. All this does not speak of a genuine desire to purchase house property infather is not examined in the case nor do we have any evidence to show that the father had at any time made an advance of Rs.It is said by the plaintiff that that payment was also made by cheque but neither of the two cheques or their counterfoils have been produced in court. Nothing would have been easier than to show that these various amounts had been paid by cheque. In any case, if there were really three connected transactions like these, not for small amounts, but amounts running into thousands, it is impossible to believe that the document itself will not show how the previous amounts forming part of Rs. 30,000/had been discharged. In thethe plaintiff came into further difficulties. Having said that two sums of Rs. 12,000/and Rs. 4,500/had been paid by him and his father to defendant no. 1 by chequeand the cheques were not forthcoming,he started wriggling out in theby saying that the cheques had not been actually issued by him and his father for those amounts but that defendant no. 1 himself had given cheques to them and against the security of those cheques those two items had been paid. The obvious conclusion from that would be that the plaintiff and his father must have encashed the cheques given by defendant no. 1 and reimbursed themselves against the accommodation loans, because the plaintiff is very firm that he had not charged any interest nor was he aIn that case there would be no prior debt payable by defendant no. 1 to the plaintiff or his father, in which case the whole of Rs. 30,000/must be deemed to have been paid on the date of the agreement itself. If, on the other hand, the plaintiff and his father were not able to encash the two cheques given by defendant no. 1 then some mention of these cheques would have been made in the agreement itself; secondly if they were not able to encash those cheques, it is difficult to believe that on the date of the execution of the deed the plaintiff would still pay in cash Rs. 13,500/and all those amounts without interest. The whole story appears to be so fantastic that we must say that the plaintiff is not telling the court the truth about the matter and his oral testimony is really of no value.11. Admittedly he had no evidence about the payment of the money except his books of account. He did not produce his books of account at the hearing because if they had been produced the originals would have been exhibited. He referred to some extracts of accounts which he said he had himself prepared from his account books. There is no evidence that any of the contesting defendants agreed to these copies of extracts of account going in evidence. It would appear that even these extracts were not exhibited at the time of the trial but accepted by the learned Judge after the trial was over when the judgment was written some months later. It does not also appear that these extracts were verified in the office by any ministerial officer of the court, because the usual practice is that when original books of account are produced in court and they are required for daily use, extracts are produced in court, and after their verification with the originals by a ministerial officer of the court the originals are allowed to be taken away, to be produced again at the time of the hearing. The extracts produced in this case do not show that they had been verified with the originals by any ministerial officer of the court. The High Court observed in its judgment that it was more than likely that the plaintiff had produced the books of account in court and for this support was derived from the fact that during theno questions have been put to the plaintiff in connection with the entries in the account books. We are afraid this is a wrong approach. If the plaintiff does not produce his original books of account in court and does not give evidence after referring to the entries therein, there is no obligationin fact it will be wrongon the part of the learned counsel for the opposite side to ask questions with regard to the entries in the books of account. It is true that the plaintiff had said that he had produced extracts and that these extracts were true copies of the originals. But counsel for the other side need not take any notice of this statement because that statement does not prove the books of account. If the learned Judge were satisfied with the extracts at the time and had decided to exhibit the same, counsel would have promptly objected to the same being done in the absence of the originals.It must be, therefore, held that the books of account had not been produced in court and the extracts were inadmissible in evidence.12. The High Court saw this difficulty and asked the plaintiff to produce these books of account for the courts inspection. It further appears that the learned Judges went through the original books of account and straightway relying on them held that the whole of the earnest money must have been received by defendant no. 1. Strong objection is taken by learned counsel for the appellant to the manner in which an important point has been disposed of. In fact this was letting in fresh evidence without giving the parties an opportunity tothe witness with regard to the books of account or the truthfulness of the entries. We agree that the High Court was not justified in looking into the books of account which had not been put in as evidence in the trial court. The High Court has suggested that the appellant had a duty to call the books of account for inspection in the trial court. One really does not see the point of this. The plaintiff was proving his case both with regard to the execution of the document and the money he had paid under it. Apart from his own word there was no other evidence except the evidence of books of account These books of account ought to have been produced by him to corroborate his own oral evidence. If he does not produce the books of account, the other side was under no obligation to call on the plaintiff to produce them for their inspection. Indeed, if the plaintiff had given intimation that he was going to rely on his books of account and had offered to give inspection of the same to the other side that would have been a different matter. We must, therefore, proceed in this case on the footing that the books of account had not been proved in the trial court and the High Court was not justified in looking into these books and deciding about their correctness without giving an opportunity to the other side to challenge them by theof the plaintiff. As we have already shown, the plaintiffs oral evidence is not trustworthy and it is not possible to believe that he had paid Rs. 30,000/under this document.13. Plaintiffs claim to have a prior charge over defendant no. 6 arises from the claim that this agreement to sell (Ext. 49) is a genuine document. We have pointed out serious deficiencies in the evidence of the plaintiff, which go to show that there must not have been a genuine transaction for sale of property. It appears from the judgment of the High Court that on inspection of the books of account it was possible to discover that these were loan transactions and that actual deductions by way of interest had been made before payment. We cannot take notice of what the learned Judges found on going through the account books because they were not evidence. But even otherwise, if that finding is correct, we do not see how the document against which these loans had been made can be described as a genuine document to sell immovable property. We are not concerned to decide whether Ext. 49 embodied a loan transaction. In our opinion, the transaction was not an agreement to sell immovable property; which alone would have attracted the statutory charge under Section 55 (6) (b) of the Transfer of Property Act. And if the plaintiff does not get a charge over the property, it should follow that there is no prior charge against defendant no. 6.