BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06/07/2009 CORAM THE HONOURABLE MR.JUSTICE M.M.SUNDRESH A.S.No.842 of 1992 1.Mannarsamy Naicker (Died) 2.M.Mahendran (Appellant 2 was brought on record as Lrs of the deceased sole appellant vide order of Court dated 12.08.2008 made in M.P.(MD)No.3 of 2006 by ASJ) ... Appellants/Plaintiffs Vs. 1.Nagammal 2.Rajammal 3.Ravi Shankar 4.Nachiar Ammal ... Respondents/Defendants 1, 2, 4 & 5 Prayer This First Appeal has been filed under Section 96 of the Civil Procedure Code, against the judgment and decree made in O.S.No.136 of 1986 dated 28.02.1989, on the file of the Subordinate Judge, Srivilliputhur. !For Appellants ... Mr.V.Ramajegadeesan ^For Respondents ... Mr.A.Sivaji :JUDGMENT
The plaintiff is the appellant herein, has preferred the present appeal
against the judgment and decree made in O.S.No.136 of 1986 dated 28.02.1989, on
the file of the learned Subordinate Judge, Srivilliputhur, for recovery of money
on a mortgage for a sum of Rs.48,629/- and for a sum of Rs.26,000/- along with
at the rate of 6% p.a.
2. The brief facts of the case in the nutshell is as follows:
On 16.12.1971, a registered mortgage has been executed by the second
defendant on behalf of the defendants in favour of the plaintiff. In the said
document, it is mentioned that a sum of Rs.10,000/- was received by the
defendants, which is used for the re-purchase of the properties sold in favour
of one Narayanasamy Naicker and the said sum has been paid by the plaintiff in
the presence of the defendants to Narayanasamy Naicker. The document also says
that another sum of Rs.6,000/- has been received for family necessity and for
small loans and a further sum of Rs.10,000/- has to be utilised by the plaintiff
for clearing the debts of the defendants from one Alagarsamy Naicker. It is
further mentioned in the said document that the plaintiff will have to receive
the promissory note from the said Alagarsamy Naicer after payment of Rs.10,000/-
. According to the plaintiff, he has paid the said sum of Rs.10,000/- to
Alagarsamy Naicker as evidenced by Ex.A7. But the defendants have not paid the
amount mentioned in the mortgage deed, as marked in Ex.A6. Therefore, the
plaintiff was constrained to issue notice, to which the second defendant replied
saying that repayment will be made in the month of July, 1979. Since no amount
has been paid, the plaintiff was constrained to issue a legal notice and after
receiving the reply, denying the contents of the legal notice, he was
constrained to file the suit for recovery of amount as mentioned in the mortgage
deed. The defendants have filed the written statement stating that it is
no doubt true that Ex.A6 has been executed by the second defendant but only a
sum of Rs.10,000/- has been received for the purpose of purchasing the property
from Narayanasamy Naicker and thereafter, a sum of Rs.3,000/- alone was received
towards the expenses for the execution of the mortgage deed. The defendants
specifically denied that a sum of Rs.6,000/- has been received for clearing the
family debts and family necessity. The defendants has also denied that there is
no loan due to Alagarsamy Naicker and it is further denied that no promissory
note has been executed in favour of the Alagarsamy Naicker and therefore, there
is no question of discharge of the said loan by the plaintiff. It is the
further case of the defendants that out of the sum of Rs.13,000/- received, a
sum of Rs.8,000/- has been repaid to the plaintiff. Hence, the defendants
prayed for dismissal of the suit.
3. The trial Court has framed the following issues for consideration which
are as follows:
“1. Whether the suit mortgage is not supported to the extent of
Rs.13,000/- as alleged by the defendants in para 5 of the written statement is
true?
2. Whether the allegation of the defendants that they had paid Rs.8,000/-
towards the suit mortgage during 1972 is true?
3. Whether the defendants are entitled to the benefits of debt relief act
13/80 and Act 13/82?
4. To what relief if any is the plaintiff entitled?”
4. On behalf of the plaintiff/appellant, 14 documents have been marked and
two witnesses have been examined including the plaintiff as P.W.1. Similarly,
on behalf of the defendants, three documents have been marked and only one
witness has been examined, who is none other than the first defendant.
5. The trial Court has granted a decree for a sum of Rs.16,000/- by
holding that the amount given to the Narayanasamy Naicker by the plaintiff and
the amount of Rs.6,000/- given to the defendants are true and genuine. The
trial Court has rejected the contentions of the plaintiff regarding the
remaining amount of Rs.10,000/- by which, the plaintiff is said to have
discharged the loan of the defendants, by holding that the plaintiff has not
proved the same. Similarly, the Court below has rejected the contentions of the
defendants that a sum of Rs.8,000/- has been paid. Therefore, challenging the
said judgment and decree of the Court below, the plaintiff/petitioner has
preferred the present appeal.
6. It is also brought to the knowledge of this Court by both the learned
counsels that the defendants has also filed an appeal before the Hon’ble High
Court in A.S.No.109 of 1992, but the same was dismissed as abated for not taking
steps. However, the plaintiff has taken steps in the present appeal.
Therefore, the only issue which is to be considered is as to whether the
plaintiff is entitled to get a decree as sought for, in the plaint of not?
7. The appellant in his evidence has stated that the promissory note
obtained from Alagarsamy Naicker dated 21.04.1971 was misplaced and therefore,
he produced Ex.A7, which is a receipt signed by the said Alagarsamy Naicker.
The trial Court has held that non-production of the promissory note raised doubt
about the case of the plaintiff, that there was no mention of the same in Ex.A1
notice and there is no explanation as to why the said amount has not been paid
immediately. The trial Court has also found fault with the appellant that no
witnesses have signed in Ex.A7 receipt. Therefore, on those grounds, the trial
Court has rejected the relief sought for by the appellant. In so far as the sum
of Rs.10,000/- is concerned, it is said to have been given in favour of
Alagarsamy Naicker for discharging the debts of the defendants.
8. The contentions of the learned counsel for the appellant is as follows:
The learned counsel for the appellant submitted that admittedly Ex.A6,
mortgage deed is a registered document and indisputably signed by the second
defendant. The second defendant has also admitted the execution. Therefore,
the learned counsel for the appellant submitted that the trial Court ought to
have decreed the suit as prayed for, by passing reliance upon the Sections. 91 &
92 of the Indian Evidence Act, 1872. According to the learned counsel that the
defendants have admitted the execution and they cannot question the contents of
the document that too after admitting the portion of the same. It is further
submitted that the Court below has wrongly rejected Ex.A7 and put the onus on
the plaintiff whereas, it is heavily on the defendants.
9. Per contra, the learned counsel for the respondents submitted that in
the absence of any evidence on behalf of the appellant to prove the existence
and discharge of the debts, the appeal is liable to be dismissed.
10. I have considered the rival submissions of the learned counsels for
the parties.
11. It is the admitted fact that Ex.A6 has been executed by the second
defendant on her own as well as on behalf of the other defendants as well.
The defendants also admitted that they have received a sum of Rs.10,000/- for
re-purchasing the property from one Narayanasamy Naicker. Therefore, this Court
is of the opinion that it is not open to the defendants to contend that they
have not received the amount mentioned in Ex.A6 and the onus is on the plaintiff
to prove about his debts and the subsequent discharge by the plaintiff.
Further, it is seen that it is not specifically pleaded that Ex.A6 is a sham
and nominal document, which is obtained by fraud, intimidation or want of
capacity to execute the said document. In this connection, it is useful to
refer the provisions of Sections.91 and 92 of the Indian Evidence Act, 1872,
contained in Chapter 6.
12. Chapter 6 speaks about the execution of oral documentary evidence.
a) Section 91 of the Indian Evidence Act 1872 is extracted hereunder for
ready reference:
Evidence of terms of contracts, grants and other dispositions of property
reduced to form of document.- When the terms of a contract, or of a grant, or of
any other disposition of property, have been reduced to the form of a document,
and in all cases in which any matter is required by law to be reduced to the
form of a document, no evidence shall be given in proof of the terms of such
contract, grant or other disposition of property, or of such matter, except the
document itself, or secondary evidence of its contents in cases in which
secondary evidence is admissible under the provisions herein before contained.
b) Section 92 of the Indian Evidence Act, 1872 is also extracted hereunder
for ready reference:
Exclusion of evidence of 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 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.
Proviso (2).-The existence of any separate oral agreement as to any matter
on which a document is silent, and which is not inconsistent with its terms, may
be proved. In considering whether or not this proviso applies, the Court shall
have regard to the degree of formality of the document.
Proviso (3).-The existence of any separate oral agreement, constituting a
condition precedent to the attaching of any obligation under any such contract,
grant or disposition of property, may be proved.
Proviso (4).-The existence of any distinct subsequent oral agreement to
rescind or modify any such contract, grant or disposition of property, may be
proved, except in cases in which such contract, grant or disposition of property
is by law required to be in writing, or has been registered according to the law
in force for the time being as to the registration of documents.
Proviso (5).-Any usage or custom by which incidents not expressly
mentioned in any contract are usually annexed to contracts of that description,
may be proved:
Provided that the annexing of such incident would not be repugnant to or
inconsistent with, the express terms of the contract.
Proviso (6).-Any fact may be proved which show in what manner the language
of a document is related to existing facts.
13. A perusal of the above said provisions would clearly show that when a
party to a document admits its due execution then, he cannot turn round and
challenge the terms contained therein. However, it is still open to the said
person to contend that the document is sham and nominal and vitiated by fraud.
In other words, if the above said party, who executes the document is able to
satisfy the provisos, the said party is entitled to succeed in his contentions.
14. While making such a plea, the party concern who speaks against the
registered document will have to make out a strong case in support of his
contentions. In such a situation, the onus is heavily on the party who speaks
against the document. Therefore, it is permissible to a party to a document to
contend and prove that the deed was intended to acted upon but only a sham and
nominal document. However, the said party cannot go against the terms of the
document after admitting the character of the document. In other words, the
terms of the documents in which a person is a party cannot be varying on
contradicting by oral evidence to that of the document itself as sham and
nominal is one thing and to say that the content of the document is not correct
is another thing. In this connection, it is useful to refer the judgment of the
Hon’ble Supreme Court reported in 2003 (6) SCC 595 (Roop Kumar Vs. Mohan
Thedani) wherein, the Hon’ble Supreme Court has read as follows:
“19. Sections 91 and 92 apply only when the document on the face of it
contains or appears to contain all the terms of the contract. Section 91 is
concerned solely with mode of proof of a document with limitation imposed by
Section 92 relates only to the parties to the document. 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 contracting, varying, adding or subtracting from
its terms. Sections 91 and 92 in effect supplement each other. Section 91
would be inoperative without the aid of Section 92, and similarly Section 92
would be inoperative without the aid of Section 91.”
In 2007 (3) MLJ 467 (Bhandari Construction Company Vs. Narayan Gopal Upadhye)
wherein, the Hon’ble Supreme Court has held is hereunder extracted for useful
reference:
“15. When the terms of the transaction are reduced to writing, it is
impossible to lead evidence to contradict its terms in view of Section 91 of the
Evidence Act. There is no case that any of the provisos to Section 92 of the
Act are attracted in this case. Why the case that was sought to be spoken to by
the respondent was not set up by him in the complaint was not explained. The
case set up in evidence was completely at variance with the case in the
complaint. There was no evidence to show that the consideration was to be
R%s.9,00,000/-, especially, in the light of the recitals in the registered
agreement. There was also no document to show the payment of Rs.4,00,000/- by
way of cash. Hence, this was no evidence to show the balance amount due under
the agreement after the admitted payment of Rs.5,00,000/- was paid. The
affidavit produced before the State Forum and the evidence of the colleague of
the respondent is clearly inadmissable and insufficient to prove any such
payment. Thus, the case set up by the respondent in his evidence was not
established. It is in that situation that the District Forum, taking note of
the payment of Rs.5,00,000/- and the failure of the respondent to encash the
cheque for Rs.5,00,000/- that was returned by the company, ordered the
complainant to pay the balance amount due under the transaction as evidenced by
the written instrument and take delivery of the premises in question and in the
alternative, gave him the option to take back the sum of Rs.5,00,000/- with
interest. Neither the State Commission, nor the National Commission has given
any sustainable reason for differing from the conclusion of the District Forum.
A mere suspicion that builders in the country are prone to take a part of the
sale amount in cash, is no ground to accept the story of payment of
Rs.4,00,000/- especially when such a payment had not even been set up in the
complaint before the District Forum. Not only that, there was no independent
evidence to support the payment of such a sum of Rs.4,00,000/- except the ipse
dixit of the respondent. The affidavit of the Bank employee filed in the State
Commission cannot certainly be accepted as evidence of such a payment. Payment
of such a sum had clearly been denied by the company. The respondent had,
therefore, to prove such a payment. His case that the purchase price was
Rs.9,00,000/-, itself stands discredited by the recitals in the agreement dated
27.07.1997 in which the purchase price was recited as Rs.7,75,000/-. Not only
that, the respondent did not have a receipt for evidencing the payment of
Rs.4,00,000/- and if the amount was paid on 05.07.1997 or 08.07.1997, as claimed
by him, he would certainly have ensured that the payment was acknowledged in the
agreement for sale executed on 27.07.1997. The agreement for sale actually
speaks of his obligation to pay the balance to make up Rs.7,75,000/- after
acknowledging receipt of Rs.5,00,000/-. The respondent is not a layman. He is
a practising advocate. According to him, he specialises in documentation. He
cannot, therefore, plead ignorance about the existence of the recital in the
agreement. He cannot plead ignorance of its implications.”
In the judgment reported in 2009 (2) CTC 861 (Vimal Chand Ghevarchand Jain &
Others Vs. Ramakant Eknath Jajoo), the Hon’ble Supreme Court has held that a
heavy burden of proof lies upon the defendants to show that the transactions was
a sham and nominal one. Therefore, on a consideration of the above said legal
papers, this Court is of the view that the defendants cannot contend against the
terms of the documents in Ex.A6. Similarly, the trial Court has committed a
serious error in shifting the onus on the plaintiff to prove his case in support
of Ex.A6.
15. In the case on hand, it is a specific case of the defendants that they
did not owe any money to Alagarsamy Naicker and therefore, it is their further
denial that no such amount has been discharged by the plaintiff. Hence, this
Court is of the view that there is a denial of the debts itself and the
question of plaintiff proving the discharge does not arise for consideration.
16. It is further seen that when the onus is heavily on the defendants to
prove as to whether the document is sham and nominal, the failure of the second
defendant, who executed the document in not deposing before the court making
herself for examination would lead to adverse inference. In fact, the Hon’ble
Supreme Court in A.I.R. 2007 SC 2191 (M/s.Kamakshi Builders Vs. M/s.Ambedkar
Educational Society & Others) has taken a view in such a case, adverse inference
can be drawn against the party. It is also seen that the Court below has
decreed the suit in part and the appeal filed by the defendants was dismissed.
In any case, when the document is said to have been proved and when the
defendants admits their contents of the document partially, it is not open to
the defendants to turn round and say that the remaining contents of the
documents are not true. Therefore, on considering the facts and circumstances
of the case, the judgment and decree of the Court below in so far as it rejects
the relief of the plaintiff for a sum of Rs.10,000/- is concerned is hereby, set
aside and the suit is decreed to the effect that the plaintiff is entitled to
preliminary decree of recovery to a sum of Rs.26,000/- with interest at the rate
of 6% p.a. from 01.03.1972 to the date of realization.
Accordingly, the first appeal is allowed in part and the judgment and
decree made in O.S.No.136 of 1986 dated 28.02.1989, on the file of the learned
Subordinate Judge, Srivilliputhur is set aside to the extent as mentioned above.
There shall be no order as to costs.
DP
To
The Subordinate Judge,
Srivilliputhur.