TMI Blog2021 (9) TMI 1386X X X X Extracts X X X X X X X X Extracts X X X X ..... ow that the sale deed was result of fraud or misrepresentation are clearly not sustainable. 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 Act on 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. 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im 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 execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property. At that time, the appellant told the employees of the 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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. Pakeeran (2009) 12 SCC 95 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: 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 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind 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 Gandhi (1982) 1 SCC 4 and Roop Kumar v. Mohan Thedani (2003) 6 SCC 595 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 Act, 18728 did not prevent plaintiff from establishing the true nature of the transaction. In appeal, this Court held that f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded 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 Act on 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 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 agre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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