PLACIDO FRANCISCO PINTO (D) BY LRS. & ANR versus JOSE FRANCISCO PINTO & ANR.
[2021] 10 S.C.R. 676, Supreme Court of India, 2021
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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[2021] 10 S.C.R. 676
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PLACIDO FRANCISCO PINTO (D) BY LRs. & ANR
v.
JOSE FRANCISCO PINTO & ANR.
(Civil Appeal No. 1491 of 2007)
SEPTEMBER 30, 2021
[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
Contract Act, 1872 – s.25 – Suit for possession and accounts
filed by appellant no.1 against his younger brother-respondent no.1
(defendant no.1) and his wife-(defendant no.2) alleging that he
had purchased the suit property from them by way of registered sale
deed, after settling the creditors of defendant no.1 – Sale denied by
defendants, who filed another suit for declaring the sale deed as
null and void – Appellant’s suit decreed by trial court, respondents’
suit dismissed – First appellate court allowed appeals filed by the
respondents – Affirmed by High Court – On appeal, held: As per
s.25, a registered sale, on account of natural love and affection,
between the parties in near relation, even if it is without
consideration, would not be void – Parties are in near relations,
therefore, if the appellant no.1 being the elder brother had come to
the help of the younger brother who was facing auction of the
property gifted by the parents of the parties, and discharged his
debtors and executed a sale deed mentioning a nominal sale
consideration, it cannot be said to be a sale without consideration
– Further, once there is an admission of the respondent no.1 of
discharge of his debts by appellant, the sale deed registered in
normal course of official duties carries the presumption of
correctness – Respondent no.1 tactically admitted execution of the
sale deed, his only stand is ignorance of the nature of document on
which his signatures were obtained – On facts, such ignorance is
not an instance of misrepresentation/fraud – Decree passed by the
trial court in the suit filed by appellant no.1 is restored – Suit filed
by respondents is dismissed – Evidence Act, 1872 – s.92 – Code of
Civil Procedure, 1908 – Deeds and Documents – Fraud.
Evidence Act, 1872 – s.92 & proviso (1) – Scope of –
Discussed.
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Code of Civil Procedure, 1908:
Or.VI, r.2 – Pleadings – Held: Every pleading shall contain,
and contain only, a concise statement in form of the material facts
on which the party pleading relies upon, but not the evidence by
which they are supposed to be proved.
Or.VI, r.4 – Held: A party if relies on any misrepresentation,
fraud or undue influence, shall state in the pleadings the particulars
with dates and items.
 Allowing the appeal, the Court
HELD: 1.1 The sale deed (Ex.P/1) had a recital that the
suit property was sold for a sum of Rs.3,000/-. Section 25 of the
Contract Act is to the effect that an agreement without
consideration is void but if a document is registered on account
of natural love and affection between the parties standing in a
near relation to each other, then such an agreement is not void.
The parties are in near relations, the appellant No.1 being the
elder brother and the sale was executed to help his younger
brother who was facing auction of the property gifted by the
parents of the parties. Even the defendants’ witnesses have
admitted that there was a notice of Court auction of the property
in question by beat of drum. Therefore, if elder brother had come
to the help of the younger brother, discharging his debtors and
executing a sale deed mentioning a nominal sale consideration,
it cannot be said to be a sale without consideration. It is admitted
by respondent No.1 that a sum of Rs.12,000/- was paid by the
appellant No. 1 to
discharge his debts. Once there is an admission
of the respondent No. 1 of discharge of his debts by appellant
No.1, the sale deed registered in normal course of official duties
carries the presumption of correctness which cannot be said to
be illegal only on the basis of feigned ignorance that his signatures
were obtained on papers which respondent No. 1 and his wife did
not know. [Paras 20, 21][686E, F-G; 687-C-E]
Bellachi (Dead) by LRs v. Pakeeran (2009) 12 SCC 95
: [2009] 4 SCR 823 – relied on.
1.2 The only stand of respondent No.1 is ignorance of the
nature of the document on which his signatures were obtained.
PLACIDO FRANCISCO PINTO (D) BY LRs. v. JOSE FRANCISCO
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Such ignorance is not an instance of misrepresentation or a fraud
in the facts of the present case which would vitiate a sale deed
executed and registered with the Sub-Registrar. It has been
admitted by respondent No. 1 that he went to the Sub-Registrar’s
office with his wife, signed once outside the Municipal Building
and once before the Officers, shows that tactically he has admitted
execution of the sale deed without expressly stating so. The
findings of the Courts below that the document is without
consideration or the consideration having not pleaded in the plaint
or the fact that appellant No. 1 has discharged the debtors of
respondent No. 1 will not render the document of sale deed as
void. Order VI Rule 2 of the Code of Civil Procedure, 1908 is to
the effect that every pleading shall contain, and contain only, a
statement in a concise form of the material facts on which the
party pleading relies upon for his claim or defence as the case
may be, but not the evidence by which they are supposed to be
proved. Appellant No.1 has relied upon the sale deed which
contains the recital of payment of Rs.3,000/- as the sale
consideration. The evidence in support of such sale deed was
not required to be pleaded in the plaint filed by the appellant.
Still further, in terms of Order VI Rule 4 of the Code, in all cases
in which the party pleading relies on any misrepresentation, fraud,
or undue influence shall state in the
pleadings the particulars
with dates and items in the pleadings. The extract from the written
statement or the plaint does not show that there is any pleading
of misrepresentation or fraud. The evidence led by the
respondents is not indicative of any instance of fraud or
misrepresentation as well. The findings recorded by the Courts
below that the sale deed was result of fraud or misrepresentation
are clearly not sustainable. [Paras 22, 23][687-F-H; 688-A-E]
1.3 The oral evidence of a written agreement is excluded
except when it is sought to be alleged the document as a sham
transaction. A sale deed is required to be registered i.e. a
document required by law to be reduced to the form of a document.
Therefore, no evidence of any oral agreement or statement shall
be admitted for the purpose of contradicting, varying, adding or
subtracting from its terms. The proviso (1) of Section 92 of the
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Evidence Act is a proof of such fact which would invalidate any
document 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. The respondents were
free to prove fraud in execution of the sale deed. However,
factually, the respondents have not alleged any fraud in their suit
or in the written statement in the suit filed by appellant No. 1.
The feigned ignorance about the nature of document cannot be
said to be an instance of fraud. In the absence of any plea or proof
of fraud, respondent No.1 is bound by the written document on
which he admitted his signatures and of his wife. There is no oral
evidence which could prove fraud, intimidation, illegality or failure
of consideration to permit the respondents to lead oral evidence
to dispute the sale deed. The judgment and decree passed by
the trial court in Special Civil Suit No. 55/77/I is restored. Special
Civil Suit No. 71/80/I is dismissed. [Paras 27-30][691-E-H;
692-C-D, F]
Smt. Gangabai w/o Rambilas Gilda v. Smt. Chhabubai
w/o Pukharajji Gandhi (1982) 1 SCC 4 : [1982] 1 SCR
1176; Roop Kumar v. Mohan Thedan (2003) 6 SCC
595 : [2003] 3 SCR 292 – distinguished.
Case Law Reference
[2009] 4 SCR 823
relied on
Para 17
[1982] 1 SCR 1176
distinguished
Para 24
[2003] 3 SCR 292
distinguished
Para 24
CIVIL APPELLATE JURISDICTION: Civil Appeal No.1491 of
2007.
From the Judgment and Order dated 16.08.2006
of the High Court
of Bombay at Goa in Second Appeal Nos.168 and 139 of 2005.
Ms. Binu Tamta, Dhruv Tamta, Advs. for the Appellants.
Dhruv Mehta, Sr. Adv., Yashraj Singh Deora, Ms. Sonal
Mashankar, Ms. Prakriti Roy for M/s Mitter & Mitter Co., Advs. for the
Respondents.
PLACIDO FRANCISCO PINTO (D) BY LRs. v. JOSE FRANCISCO
PINTO
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The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. The legal representatives of the plaintiff have appealed before
this Court, aggrieved by the judgment and decree of the First Appellate
Court dated 6.7.2005 affirmed by the High Court in the Second Appeal
on 16.8.2006.
2. The plaintiff filed a suit1 (Special Civil Suit No. 55/77/I) seeking
possession and accounts from his younger brother-defendant No. 1
(respondent No. 1) who was given the southern portion of the property
in question by virtue of a gift deed dated 10.5.1957 executed by the
parents of the parties involved. The northern portion was allotted to the
plaintiff by the same gift deed.
3. The plaintiff had inter-alia pleaded that Defendant No. 1 –
Jose Francisco Pinto earlier sold his one of his properties to the plaintiff
due to failure in timely discharging the debts raised by him in the year
1962. Subsequently, the plaintiff purchased the southern portion of the
property from defendant No. 1 by a registered sale deed after settling
the creditors of defendant No. 1 so as to save their ancestral property.
The plaintiff, as an elder brother, allowed his younger brother to stay in
the house for five years. Defendant No. 1 collected rents from the other
defendants as well during this period. The plaintiff filed the first suit on
10.5.1977 relying upon the sale deed executed on 14.9.1970 and registered
on 23.9.1970 in respect of southern half of the
property called “Pedda”.
It is pleaded that defendant Nos. 3 to 9 are occupying the premisesas
tenants of the six tenements existing in the premises.
4. The plaintiff had pleaded that the suit property after the same
was purchased from the defendant No. 1 and his wife Defendant No. 2,
the said defendants had created several charges and encumbrances
thereon and the plaintiff to prevent its compulsory auction-sale at the
instance of one of the creditors, had paid and cleared all those charges
and encumbrances thereby spending much more than the market value
of the suit property, and that the Defendant No. 1 executed sale deed in
favour of the plaintiff on 14.9.1970. Since defendant No. 1 did not vacate
the property after the expiry of five years, an Advocate’s notice was
sent by registered post on 6.11.1976 calling upon him to surrender the
suit property and also to stop collecting rent from the other defendant
1 Hereinafter referred to as the ‘first suit’
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Nos. 3 to 9. Therefore, the suit was filed claiming vacant possession of
the house occupied by defendant Nos. 1 and 2 and directing defendant
Nos. 1 and 2 to render accounts of the money received by him from
defendant Nos. 3 to 9 as rent. In the written statement filed on 11.8.1977,
the defendant Nos. 1 and 2 have pleaded as under:
“2. With reference to paragraph 2 of the plaint, these defendants
submit that they are not aware of any property sold by these
defendants to the plaintiff. Defendants however recollect that the
plaintiff had represented to them in the office of the Sub Registrar
of Margao certain documents purported to be a document in
respect of an amount of Rs.12000/- which was paid by him to the
creditors of defendant no. 1. Under such pretext the plaintiff
managed to obtain the signatures of the defendants no. 1 and 2
who do not know to read or write except that they write their own
name. These defendants deny having sold their property to the
plaintiff mentioned in paragraph 2 of the plaint.”
5. Another suit, namely, Special Civil Suit No. 71/80/I2 was filed
by the respondents on 1.7.1980 against the appellants, inter alia, on the
ground that they had never sold the southern half of the suit property to
the appellants nor intend to sell the same to any person. It was also
claimed that they had never executed any sale deed in favour of the
appellants nor received any amount as consideration of the sale. It was
specifically pleaded as under:
“13. The plaintiffs state that they never executed the sale deed of
the suit property and they had never gone in the office of the Sub-
Registrar of Margao to register the sale deed. However, the
defendant no. 1 in the year 1970 had taken the plaintiffs in the
office of Sub-Registrar, Margao and asked them to sign the stamp
paper purported to be a document in respect of the loan amount
of Rs. 12000/- (Rupees twelve thousand only) paid by the
defendant no.1 to the creditors of the plaintiff no. 1. He further
explained that it is necessary for him to take in writing from the
plaintiff about the amount paid to the creditors of plaintiffs and
that amount was due to him by the plaintiffs. The writings on the
stamp was in Roman scripts and the language not known to the
plaintiffs and now learnt that it is in Portuguese.”
2 Hereinafter referred to as the ‘second suit.’
PLACIDO FRANCISCO PINTO (D) BY LRs. v. JOSE FRANCISCO
PINTO [HEMANT GUPTA, J.]
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6. The parties went to trial on following issues in the first suit:
“(i) Whether the plaintiff proves that the defendant nos. 1 and 2
sold to the plaintiff the southern half of the property Peda situated
Navelim and identified in paragraph 2 of the plaint?
(ii) Whether the plaintiff proves that he allowed the defendants
no. 1 and 2 to continue to live in the corresponding portion of the
house for five years free of any charge?
(iii) Whether the plaintiff proves that he suggested to the defendant
No. 1 to surrender the suit premises after 5 years had passed?
(iv) Whether the defendant Nos. 1 and 2 prove that the sale deed
was obtained by fraud by the plaintiff?
(v) What relief, what order?
(vi) Whether the defendants prove that the suit is undervalued.”
7. The plaintiff examined himself as PW-1 and deposed as pleaded
by him in the plaint filed. Silvester Coutinho (PW-2) deposed that there
was some beat of drum on the road in front of the Chapel near the house
of the plaintiff and that his house is situated behind the plaintiff’s house.
The Bailiff told the witness that the house of the defendant is being
auctioned by the Court. Devidas Chari (PW-3) had seen the parties
residing at one and the same place.
8. Defendant No. 1 appeared as DW-1. In examination-in-chief,
he deposed as under:
“I know the plaintiff who is my brother. The suit property including
the house has been divided between us into two halves. I have
not
obtained any loan at any time in respect of the half of the
house and the property belonging to me I have obtained loan of
Rs.12,000/- but this has no connection of whatsoever nature in
respect of my half of the share in respect of the suit property and
my house. The loan of Rs.12,000/- which I secured has been
repaid by my brother (plaintiff). I have not repaid the suit amount
to my brother. But on one occasion the plaintiff asked me in my
house as to when I am going to repay the amount which is paid on
my behalf. As I could not paid the amount the plaintiff asked me
to execute a document mentioning therein that he would pay
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Rs.12,000/- which he had paid. The plaintiff then asked me to
come to a hotel near Margao Municipality in order to execute the
said document. The plaintiff three days thereafter once again he
came to my house and asked me to come near the Municipality in
order to prepare the said documents. This he told me at 2:30 at
my house. Accordingly myself and my wife came near the
Municipality to execute the said documents.
 After me and my wife came near my municipality the obtained
my signature and also my wife signature on the stamp papers.
The plaintiff, however did not explained to me and my wife the
contents of the documents on which he obtained my signature
and my wife. I say that he and his wife made two signatures each
on the said stamp paper. Out of said two signatures made by each
of us signature was obtained outside the Municipal Building and
other signature was obtained in side the M. Building. Even when
the plaintiff obtained second signature from me and my wife, we
were not explained the contents of the documents. The person
before whom me and my wife made signatures in the M. Building
did not explain to use the contents of the said documents. I do not
know to read and to write English so is the case of my wife. I
have not sold the half of the house in my possession and belonging
to me and also my land to anyone.”
9. In cross-examination, defendant No. 1 admitted that the plaintiff
has repaid two of his loans. One loan was of Jose Minguel Pereira of
Chandor amounting to Rs.6,000/-. He further deposed that he went along
with the plaintiff to execute a document in connection with the loan
amount of Rs.12,000/- paid by the plaintiff on his behalf. He further
deposed that he did not ask the Officer to explain the contents of the
said document to him. He and his wife were present on the said day. He
further denied selling the property to the plaintiff vide sale deed dated
14.9.1970 (Ex.P/1).
10. DW-2 is Eduardo Pinto. In cross-examination, he stated that
the loan taken by defendant No. 1 from one Mr. Pareira was cleared by
the plaintiff. He further admitted that the plaintiff had filed a criminal
case against him for the theft of his cow. Romeo D’Costa (DW-3)
deposed that in the year 1970 on Carnival Day, two persons from the
Court had come to the suit property with a beating drum in order to
attach the property. At that time, the appellant told the employees of the
PLACIDO FRANCISCO PINTO (D) BY LRs. v. JOSE FRANCISCO
PINTO [HEMANT GUPTA, J.]
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Court in presence of defendant No. 1 that he would clear the debt on the
property and seek release of the property. In cross-examination, he admits
that when the Court employees came with a drum for announcement,
he was present in the house of the appellant but he was unaware of the
amount of debt accrued by the defendant.
11. The learned trial court found that the evidence presented by
the defendants does not rebut the duly registered sale deed (Ex.P/1) in
respect of Issue Nos. 2 and 3, which were decided in favour of the
plaintiff. However, in respect of Issue No. 4, the Court returned the
following finding:
“12. From the deposition of D.W.1 it is borne out that there has
never been any intention on the part of the plaintiff to deceive the
defendants nor they have caused any inducement to them to enter
into any contract. The silence which has been discussed in the
evidence of D.W.1 shows willingness of a person to enter into a
contract. It is the duty of the person keeping silent to speak or
unless he is silent it is equivalent to speech. Thus, none of the
ingredients of section 17 have bene fulfilled by the defendants in
this case.”
12. Thus, it was held that the defendants had failed to prove that
the sale deed was obtained by fraud. The first suit was decreed on
24.2.1997.
13. The second suit filed by the respondents was to declare the
registered sale deed dated 14.9.1970 as null and void. In the said suit,
the
defendants pleaded that no consideration was received by them for
sale. The second suit was dismissed on 16.1.2001, inter alia, holding
that the suit is barred by the principle of res judicata and the sale deed
is valid.
14. The respondents herein filed two appeals from the judgment
and decree passed in the first and second suit. Such appeals were heard
and decided together. The respondents sought amendment in the written
statement and also in the plaint in the first and second suit respectively
during the pendency of the appeal before the First Appellate Court. Such
amendments were allowed on 8.9.2004 after many years of filing of the
suit and the written statement. The first appeals against both the judgment
and decree were allowed by the learned First Appellate Court, inter
alia, on the following grounds:
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(i)
The appellant has produced oral evidence contrary to the
terms of the sale deed. Therefore, such oral evidence is
barred by Section 91 of the Evidence Act as there is no
recital in the sale deed that he has paid and cleared all dues
of respondent No. 1 for purchasing the suit property.
(ii)
The appellant has not pleaded that he had paid Rs.3,000/-
as consideration under the sale deed. Therefore, the sale is
null and void for want of consideration.
(iii)
The fact that respondent No. 1 continued to occupy the
house goes to show that respondent No. 1 was not given to
understand that it was a sale deed. The signatures on such
sale deed by respondent No. 1 were obtained by
misrepresentation and concealment.
(iv)
The sale consideration is inadequate; therefore, the consent
of the vendor was not freely given.
15. It is an admitted fact that consequent to the amendment in the
plaint and in the written statement, no evidence was led. Mr. Dhruv
Mehta, learned senior counsel for the respondents stated that the evidence
was already on record in respect of misrepresentation leading to fraud,
therefore, the pleadings were amended so as to support the evidence.
16. The learned counsel for the appellants has argued that the
amendment of the pleadings should not have been allowed at the first
appeal stage and that the second suit is barred by the principle of res
judicata. But we do not find that such questions need to be examined
as the first suit and the second suit
were pending in appeal and were
decided by the common judgment. Still further, since the amendment in
the plaint and the written statement has been allowed in exercise of
discretion vested with the First Appellate Court, we do not find that such
amendment can be permitted to be disputed at this stage.
17. The appellants relied upon judgment of this Court in Bellachi
(Dead) by LRs v. Pakeeran3 to contend that the burden of proof
regarding the genuineness of documents lies upon the vendee. In case
of a registered document, there is a presumption that it was executed in
accordance with law. This Court held as under:
3 (2009) 12 SCC 95
PLACIDO FRANCISCO PINTO (D) BY LRs. v. JOSE FRANCISCO
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“17. In a given case it is possible to hold that when an illiterate,
pardanashin woman executes a deed of sale, the burden would
be on the vendee to prove that it was (sic) the deed of sale was a
genuine document. It is, however, a registered document. It carries
with it a presumption that it was executed in accordance with
law. Again a concurrent finding of fact has been arrived at that
the appellant was not an illiterate woman or she was incapable of
understanding as to what she had done.”
18. The primary finding recorded by the First Appellate Court as
affirmed by the High Court is that the signatures of respondent No. 1
were obtained by misrepresentation. Mr. Mehta vehemently argued that
misrepresentation is another facet of fraud and the oral evidence of sale
consideration led by the plaintiff had been rightly not accepted.
19. We have heard the learned counsels for the parties and find
that the findings of the First Appellate Court as affirmed by the High
Court are clearly erroneous. Respondent No. 1 in the written statement
has admitted payment of Rs.12,000/- to his creditors by the appellant
No.1. It is also admitted by him that his and his wife’s signatures were
obtained outside the Municipal Office and also before the Officers in
the Municipal Building when there were about 10-12 people in the office.
20. The sale deed (Ex.P/1) had a recital that the suit property
was sold for a sum of Rs.3,000/-. The First
Appellate Court returned a
finding that such sale consideration was not mentioned in the plaint and
that the evidence has come on record that there were loans which were
settled by the appellant No.1 which fact is also not recited in the sale
deed. Thus, it is a sale without consideration. Reliance was placed upon
Section 25 of the Indian Contract Act, 18724. We find that such finding
is not correct in law. Section 25 of the Contract Act is to the effect that
an agreement without consideration is void but if a document is registered
on account of natural love and affection between the parties standing in
a near relation to each other, then such an agreement is not void. Section
25 of the Contract Act reads as under:
“25. Agreement without consideration void, unless it is in writing
and registered, or is a promise to compensate for something done,
or is a promise to pay a debt barred by limitation law. - An
agreement made without consideration is void, unless—
4 For short, the ‘Contract Act’
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(1) it is expressed in writing and registered under the law for the
time being in force for registration of documents, and is made on
account of natural love and affection between parties standing in
a near relation to each other; or unless
(2)
xx
xx
In any of these cases, such an agreement is a contract.
xx
xx
xx
Illustration (b). A, for natural love and affection, promises to give
his son, B, Rs.1,000. A puts his promise to B into writing and
registers it. This is a contract.”
21. The parties are in near relations, the appellant No.1 being the
elder brother and the sale was executed to help his younger brother who
was facing auction of the property gifted by the parents of the parties.
Even the defendants’ witnesses have admitted that there was a notice
of Court auction of the property in question by beat of drum. Therefore,
if elder brother had come to the help of the younger brother, discharging
his debtors and executing a sale deed mentioning a nominal sale
consideration, it cannot be said to be a sale without consideration. It is
admitted by respondent No.1 that a sum of Rs.12,000/- was paid by the
appellant No. 1 to discharge his debts. Once there is an admission of the
respondent No. 1 of discharge of his debts by appellant No.1, the sale
deed registered in normal course of official duties carries the presumption
of correctness which cannot be said to be illegal only on the basis of
feigned ignorance that his signatures were obtained on papers
which
respondent No. 1 and his wife did not know. The Judgment of this Court
in Bellachi supports the argument raised by the appellants.
22. The only stand of respondent No.1 is ignorance of the nature
of the document on which his signatures were obtained. Such ignorance
is not an instance of misrepresentation or a fraud in the facts of the
present case which would vitiate a sale deed executed and registered
with the Sub-Registrar. It has been admitted by respondent No. 1 that
he went to the Sub-Registrar’s office with his wife, signed once outside
the Municipal Building and once before the Officers, shows that tactically
he has admitted execution of the sale deed without expressly stating so.
We find that the findings of the Courts below that the document is without
consideration or the consideration having not pleaded in the plaint or the
fact that appellant No. 1 has discharged the debtors of respondent No. 1
will not render the document of sale deed as void.
PLACIDO FRANCISCO PINTO (D) BY LRs. v. JOSE FRANCISCO
PINTO [HEMANT GUPTA, J.]
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23. Order VI Rule 2 of the Code of Civil Procedure, 19085 is to
the effect that every pleading shall contain, and contain only, a statement
in a concise form of the material facts on which the party pleading relies
upon for his claim or defence as the case may be, but not the evidence
by which they are supposed to be proved. Appellant No.1 has relied
upon the sale deed which contains the recital of payment of Rs.3,000/-
as the sale consideration. The evidence in support of such sale deed
was not required to be pleaded in the plaint filed by the appellant. Still
further, in terms of Order VI Rule 4 of the Code, in all cases in which
the party pleading relies on any misrepresentation, fraud, or undue
influence shall state in the pleadings the particulars with dates and items
in the pleadings. The extract from the written statement or the plaint
does not show that there is any pleading of misrepresentation or fraud.
The evidence led by the respondents is not indicative of any instance of
fraud or misrepresentation as well. Respondent No. 1 was candid enough
to admit that there were debts of Rs.12,000/- which were paid off by
appellant No.1. He also admits that he was taken to the Municipal Office
and signed once outside the Municipal Office and once inside the
Municipal Office. His wife had accompanied him. With such facts on
record, we find that the findings recorded by the Courts below that the
sale deed was result of
fraud or misrepresentation are clearly not
sustainable.
24. Mr. Dhruv Mehta relied upon judgments of this Court reported
as Smt. Gangabai w/o Rambilas Gilda v. Smt. Chhabubai w/o
Pukharajji Gandhi6 and Roop Kumar v. Mohan Thedani7 to contend
that the respondents can lead oral evidence to rebut the contents of the
document but not the appellants who had relied upon the sale deed. In
Gangabai, the plaintiff entered into an agreement with the appellant for
a loan of Rs.2,000/- and it was decided that simultaneously the plaintiff
would execute a nominal document of sale and a rent note. It was alleged
by the plaintiff that documents were never intended to be acted upon.
The trial court decreed the suit holding that the sale deed was never
intended to be acted upon but the First Appellate Court held that the sale
has taken place but the transaction between the parties constitutes a
mortgage. The High Court held that Section 92 of the Indian Evidence
5 For short, the ‘Code’
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7 (2003) 6 SCC 595
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Act, 18728 did not prevent plaintiff from establishing the true nature of
the transaction. In appeal, this Court held that first proviso to Section 92
permits any fact which may prove which would invalidate any document,
such as fraud, intimidation, illegality, want of due execution can be led
into evidence. This Court while dismissing appeal of the defendant held
as under:
“11. …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…”(Emphasis
Supplied)
25. A reading of the aforesaid judgment would show that it was
open to the plaintiff to assert that the document was never intended to
be acted upon and the document is a sham. Such question arises when
one party asserts that there has been a different transaction altogether
than what is recorded in the document. It is for that purpose oral evidence
is admissible.
26. In Roop Kumar, this Court was seized of an appeal filed by
the defendant arising out of a suit for possession and for rendition of
accounts. The plaintiff claimed that he entered into an agency-cum-
deed of license with the appellant-defendant on 15.5.1975 and the terms
of such agency-cum-licensing agreement was incorporated in an
agreement dated 15.5.1975.The stand of the defendant was that he was
8 For short, the ‘Evidence Act’
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in lawful possession as a tenant under the plaintiff. The trial court decreed
the suit holding that the transaction between the respondent and the
appellant evidenced by an agreement dated 15.5.1975 amounts to license
and not sub-letting. The question before the High Court was whether a
relationship between the parties is that of a licensor and licensee or that
of a lessor and lessee. The first appeal was dismissed. This Court held
that it is general and most inflexible rule that in respect of written
instruments, any other evidence is excluded from being used either as a
substitute for such instruments, or to contradict or alter them. This is a
matter both of principle and policy. It was held that in Section 92 of the
Evidence Act, the legislature has prevented oral evidence from being
adduced for the purpose of varying the contract, such contract can be
proved by production of such writing. It was held that Section 91 is
concerned with the mode of proof of a document with limitation imposed
by Section 92. If after the document has been produced to prove its
terms under Section 91, provisions of Section 92 come into operation for
the purpose of excluding evidence of any oral agreement or statement
for the purpose of contradicting, varying, adding or subtracting from its
terms. This Court held as under:
“17. It is likewise a general and most inflexible rule that wherever
written instruments are appointed, either by
the requirement of
law, or by the contract of the parties, to be the repositories and
memorials of truth, any other evidence is excluded from being
used either as a substitute for such instruments, or to contradict
or alter them. This is a matter both of principle and policy. It is of
principle because such instruments are in their own nature and
origin, entitled to a much higher degree of credit than oral evidence.
It is of policy because it would be attended with great mischief if
those instruments, upon which men’s rights depended, were liable
to be impeached by loose collateral evidence. (See Starkie on
Evidence, p. 648.)
18. In Section 92 the legislature has prevented oral evidence being
adduced for the purpose of varying the contract as between the
parties to the contract; but, no such limitations are imposed under
Section 91. Having regard to the jural position of Sections 91 and
92 and the deliberate omission from Section 91 of such words of
limitation, it must be taken note of that even a third party if he
wants to establish a particular contract between certain others,
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either when such contract has been reduced to in a document or
where under the law such contract has to be in writing, can only
prove such contract by the production of such writing.
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21. The grounds of exclusion of extrinsic evidence are: (i) to admit
inferior evidence when the law requires superior would amount
to nullifying the law, and (ii) when parties have deliberately put
their agreement into writing, it is conclusively presumed, between
themselves and their privies, that they intended the writing to form
a full and final statement of their intentions, and one which should
be placed beyond the reach of future controversy, bad faith and
treacherous memory.
22. This Court in Gangabai v. Chhabubai [(1982) 1 SCC 4 : AIR
1982 SC 20] and Ishwar Dass Jain v. Sohan Lal [(2000) 1 SCC
434 : AIR 2000 SC 426] with reference to Section 92(1) held that
it is permissible to a party to a deed to contend that the deed was
not intended to be acted upon, but was only a sham document.
The bar arises only when the document is relied upon and its
terms are sought to be varied and contradicted. Oral evidence is
admissible to show that 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.”(Emphasis Supplied)
27. A perusal of the above judgment would show that the oral
evidence of a written agreement is excluded except when it is sought to
be
alleged the document as a sham transaction.
28. It is beyond dispute that a sale deed is required to be registered
i.e. a document required by law to be reduced to the form of a document.
Therefore, no evidence of any oral agreement or statement shall be
admitted for the purpose of contradicting, varying, adding or subtracting
from its terms. The proviso (1) of Section 92 of the Evidence Acton
which reliance was placed is a proof of such fact which would invalidate
any document 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. Section 92 of the Evidence Act reads as under:
“92. Exclusion of evidence or oral agreement. - When the terms
of any such contract, grant or other disposition of property, or any
PLACIDO FRANCISCO PINTO (D) BY LRs. v. JOSE FRANCISCO
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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:
Proviso (1).—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.”
29. The respondents were free to prove fraud in execution of the
sale deed. However, factually, the respondents have not alleged any
fraud in their suit or in the written statement in the suit filed by appellant
No. 1. The feigned ignorance about the nature of document cannot be
said to be an instance of fraud. In the absence of any plea or proof of
fraud, respondent No.1 is bound by the written document on which he
admitted his signatures and of his wife. There is no oral evidence which
could prove fraud, intimidation, illegality or failure of consideration to
permit the respondents to lead oral evidence to dispute the sale deed
dated 14.9.1970. Therefore, the judgments referred to by Mr. Mehta
are of no help to support his arguments. Thus, the findings recorded
by
the First Appellate Court as affirmed by the High Court are clearly
erroneous in law and are, thus, set aside.
30. Accordingly, the appeal is allowed and the judgment and decree
passed by the trial court in Special Civil Suit No. 55/77/I is restored.
Special Civil Suit No. 71/80/I is dismissed. The respondents are given
two months’ time to vacate and hand over the vacant physical possession
of the property in question.
Divya Pandey
Appeal allowed.