{"id":258354,"date":"2009-07-06T00:00:00","date_gmt":"2009-07-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mannarsamy-naicker-died-vs-nagammal-on-6-july-2009"},"modified":"2018-02-09T20:56:47","modified_gmt":"2018-02-09T15:26:47","slug":"mannarsamy-naicker-died-vs-nagammal-on-6-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mannarsamy-naicker-died-vs-nagammal-on-6-july-2009","title":{"rendered":"Mannarsamy Naicker (Died) vs Nagammal on 6 July, 2009"},"content":{"rendered":"
Madras High Court<\/div>\n
Mannarsamy Naicker (Died) vs Nagammal on 6 July, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 06\/07\/2009\n\nCORAM\nTHE HONOURABLE MR.JUSTICE M.M.SUNDRESH\n\nA.S.No.842 of 1992\n\n1.Mannarsamy Naicker (Died)\n\n2.M.Mahendran\n  (Appellant 2 was brought on record\n   as Lrs of the deceased sole appellant\n   vide order of Court dated 12.08.2008\n   made in M.P.(MD)No.3 of 2006 by ASJ)\n\t\t\t... Appellants\/Plaintiffs\n\nVs.\n\n1.Nagammal\n\n2.Rajammal\n\n3.Ravi Shankar\n\n4.Nachiar Ammal\n\t\t\t... Respondents\/Defendants 1, 2, 4 & 5\n\nPrayer\n\nThis First Appeal has been filed under Section 96 of the Civil\nProcedure Code, against the judgment and decree made in O.S.No.136 of 1986 dated\n28.02.1989, on the file of the Subordinate Judge, Srivilliputhur.\n\n!For Appellants  ... Mr.V.Ramajegadeesan\n^For Respondents ... Mr.A.Sivaji\n\n:JUDGMENT\n<\/pre>\n
\tThe plaintiff is the appellant herein, has preferred the present appeal
\nagainst the judgment and decree made in O.S.No.136 of 1986 dated 28.02.1989, on
\nthe file of the learned Subordinate Judge, Srivilliputhur, for recovery of money
\non a mortgage for a sum of Rs.48,629\/- and for a sum of Rs.26,000\/- along with
\nat the rate of 6% p.a.<\/p>\n
\t2. The brief facts of the case in the nutshell is as follows:
\n\tOn 16.12.1971, a registered mortgage has been executed by the second
\ndefendant on behalf of the defendants in favour of the plaintiff.  In the said
\ndocument, it is mentioned that a sum of Rs.10,000\/- was received by the
\ndefendants, which is used for the re-purchase of the properties sold in favour
\nof one Narayanasamy Naicker and the said sum has been paid by the plaintiff in
\nthe presence of the defendants to Narayanasamy Naicker.  The document also says
\nthat another sum of Rs.6,000\/- has been received for family necessity and for
\nsmall loans and a further sum of Rs.10,000\/- has to be utilised by the plaintiff
\nfor clearing the debts of the defendants from one Alagarsamy Naicker.  It is
\nfurther mentioned in the said document that the plaintiff will have to receive
\nthe promissory note from the said Alagarsamy Naicer after payment of Rs.10,000\/-
\n.  According to the plaintiff, he has paid the said sum of Rs.10,000\/- to
\nAlagarsamy Naicker as evidenced by Ex.A7.  But the defendants have not paid the
\namount mentioned in the mortgage deed, as marked in Ex.A6.  Therefore, the
\nplaintiff was constrained to issue notice, to which the second defendant replied
\nsaying that  repayment will be made in the month of July, 1979.  Since no amount
\nhas been paid, the plaintiff was constrained to issue a legal notice and after
\nreceiving the reply, denying the contents of the legal notice, he was
\nconstrained to file the suit for recovery of amount as mentioned in the mortgage
\ndeed. \tThe defendants have filed the written statement stating that it is
\nno doubt true that Ex.A6 has been executed by the second defendant but only a
\nsum of Rs.10,000\/- has been received for the purpose of purchasing the property
\nfrom Narayanasamy Naicker and thereafter, a sum of Rs.3,000\/- alone was received
\ntowards the expenses for the execution of the mortgage deed.  The defendants
\nspecifically denied that a sum of Rs.6,000\/- has been received for clearing the
\nfamily debts and family necessity.  The defendants has also denied that there is
\nno loan due to Alagarsamy Naicker and it is further denied that no promissory
\nnote has been executed in favour of the Alagarsamy Naicker and therefore, there
\nis no question of discharge of the said loan by the plaintiff.  It is the
\nfurther case of the defendants that out of the sum of Rs.13,000\/- received, a
\nsum of Rs.8,000\/- has been repaid to the plaintiff.  Hence, the defendants
\nprayed for dismissal of the suit.\n<\/p>\n
\t3. The trial Court has framed the following issues for consideration which
\nare as follows:\n<\/p>\n
\t“1. Whether the suit mortgage is not supported to the extent of
\nRs.13,000\/- as alleged by the defendants in para 5 of the written statement is
\ntrue?\n<\/p>\n
\t2. Whether the allegation of the defendants that they had paid Rs.8,000\/-
\ntowards the suit mortgage during 1972 is true?\n<\/p>\n
\t3. Whether the defendants are entitled to the benefits of debt relief act
\n13\/80 and Act 13\/82?\n<\/p>\n
\t4. To what relief if any is the plaintiff entitled?”\n<\/p>\n
\t4. On behalf of the plaintiff\/appellant, 14 documents have been marked and
\ntwo witnesses have been examined including the plaintiff as P.W.1.  Similarly,
\non behalf of the defendants, three documents have been marked and only one
\nwitness has been examined, who is none other than the first defendant.\n<\/p>\n
\t5. The trial Court has granted a decree for a sum of Rs.16,000\/- by
\nholding that the amount given to the Narayanasamy Naicker by the plaintiff and
\nthe amount of Rs.6,000\/- given to the defendants are true and genuine.  The
\ntrial Court has rejected the contentions of the plaintiff regarding the
\nremaining amount of Rs.10,000\/- by which, the plaintiff is said to have
\ndischarged the loan of the defendants, by holding that the plaintiff has not
\nproved the same.  Similarly, the Court below has rejected the contentions of the
\ndefendants that a sum of Rs.8,000\/- has been paid.  Therefore, challenging the
\nsaid judgment and decree of the Court below, the plaintiff\/petitioner has
\npreferred the present appeal.\n<\/p>\n
\t6. It is also brought to the knowledge of this Court by both the learned
\ncounsels that the defendants has also filed an appeal before the Hon’ble High
\nCourt in A.S.No.109 of 1992, but the same was dismissed as abated for not taking
\nsteps.  However, the plaintiff has taken steps in the present appeal.
\nTherefore, the only issue  which is to be considered is as to whether the
\nplaintiff is entitled to get a decree as sought for, in the plaint of not?\n<\/p>\n
\t7. The appellant in his evidence has stated that the promissory note
\nobtained from Alagarsamy Naicker dated 21.04.1971 was misplaced and therefore,
\nhe produced Ex.A7, which is a receipt signed by the said Alagarsamy Naicker.
\nThe trial Court has held that non-production of the promissory note raised doubt
\nabout the case of the plaintiff, that there was no mention of the same in Ex.A1
\nnotice and there is no explanation as to why the said amount has not been paid
\nimmediately.  The trial Court has also found fault with the appellant that no
\nwitnesses have signed in Ex.A7 receipt.  Therefore, on those grounds, the trial
\nCourt has rejected the relief sought for by the appellant.  In so far as the sum
\nof Rs.10,000\/- is concerned, it is said to have been given in favour of
\nAlagarsamy Naicker for discharging the debts of the defendants.\n<\/p>\n
\t8. The contentions of the learned counsel for the appellant is as follows:
\n\tThe learned counsel for the appellant submitted that admittedly Ex.A6,
\nmortgage deed is a registered document and indisputably signed by the second
\ndefendant.  The second defendant has also admitted the execution.  Therefore,
\nthe learned counsel for the appellant submitted that the trial Court ought to
\nhave decreed the suit as prayed for, by passing reliance upon the Sections. 91 &
\n92 of the Indian Evidence Act<\/a>, 1872.  According to the learned counsel that the
\ndefendants have admitted the execution and they cannot question the contents of
\nthe document that too after admitting the portion of the same.  It is further
\nsubmitted that the Court below has wrongly rejected Ex.A7 and put the onus on
\nthe plaintiff whereas, it is heavily on the defendants.\n<\/p>\n
\t9. Per contra, the learned counsel for the respondents submitted that in
\nthe absence of any evidence on behalf of the appellant to prove the existence
\nand discharge of the debts, the appeal is liable to be dismissed.\n<\/p>\n
\t10. I have considered the rival submissions of the learned counsels for
\nthe parties.\n<\/p>\n
\t11. It is the admitted fact that Ex.A6 has been executed by the second
\ndefendant on her own as well as   on behalf of the other defendants as well.
\nThe defendants also admitted that they have received a sum of Rs.10,000\/- for
\nre-purchasing the property from one Narayanasamy Naicker.  Therefore, this Court
\nis of the opinion that it is not open to the defendants to contend that they
\nhave not received the amount mentioned in Ex.A6 and the onus is on the plaintiff
\nto prove about his debts and the subsequent discharge by the plaintiff.
\nFurther, it is seen that it is not specifically pleaded that Ex.A6  is a sham
\nand nominal document, which is obtained by fraud, intimidation or want of
\ncapacity to execute the said document.  In this connection, it is useful to
\nrefer the provisions of Sections.91 and 92 of the Indian Evidence Act<\/a>, 1872,
\ncontained in Chapter 6.\n<\/p>\n
\t12. Chapter 6 speaks about the execution of oral documentary evidence.\n<\/p>\n
\ta) Section 91<\/a> of the Indian Evidence Act 1872 is extracted hereunder for
\nready reference:\n<\/p>\n
\tEvidence of terms of contracts, grants and other dispositions of property
\nreduced to form of document.- When the terms of a contract, or of a grant, or of
\nany other disposition of property, have been reduced to the form of a document,
\nand in all cases in which any matter is required by law to be reduced to the
\nform of a document, no evidence shall be given in proof of the terms of such
\ncontract, grant or other disposition of property, or of such matter, except the
\ndocument itself, or secondary evidence of its contents in cases in which
\nsecondary evidence is admissible under the provisions herein before contained.\n<\/p>\n
\tb) Section 92<\/a> of the Indian Evidence Act, 1872 is also extracted hereunder
\nfor ready reference:\n<\/p>\n
\tExclusion of evidence of oral agreement.-When the terms of any such
\ncontract, grant or other disposition of property, or any matter required by law
\nto be reduced to the form of a document, have been proved according to the last
\nsection, no evidence of any oral agreement or statement shall be admitted, as
\nbetween the parties to any such instrument or their representatives in interest,
\nfor the purpose of contradicting, varying, adding to, or subtracting from, its
\nterms:\n<\/p>\n
\tProviso (1).-Any fact may be proved which would invalidate any document,
\nor which would entitle any person to any decree or order relating thereto; such
\nas fraud, intimidation, illegality, want of due execution, want of capacity in
\nany contracting party, [want or failure] of consideration, or mistake in fact or
\nlaw.\n<\/p>\n
\tProviso (2).-The existence of any separate oral agreement as to any matter
\non which a document is silent, and which is not inconsistent with its terms, may
\nbe proved.  In considering whether or not this proviso applies, the Court shall
\nhave regard to the degree of formality of the document.\n<\/p>\n
\tProviso (3).-The existence of any separate oral agreement, constituting a
\ncondition precedent to the attaching of any obligation under any such contract,
\ngrant or disposition of property, may be proved.\n<\/p>\n
\tProviso (4).-The existence of any distinct subsequent oral agreement to
\nrescind or modify any such contract, grant or disposition of property, may be
\nproved, except in cases in which such contract, grant or disposition of property
\nis by law required to be in writing, or has been registered according to the law
\nin force for the time being as to the registration of documents.
\n\tProviso (5).-Any usage or custom by which incidents not expressly
\nmentioned in any contract are usually annexed to contracts of that description,
\nmay be proved:\n<\/p>\n
\tProvided that the annexing of such incident would not be repugnant to or
\ninconsistent with, the express terms of the contract.\n<\/p>\n
\tProviso (6).-Any fact may be proved which show in what manner the language
\nof a document is related to existing facts.\n<\/p>\n
\t13. A perusal of the above said provisions would clearly show that when a
\nparty to a document admits its due execution then, he cannot turn round and
\nchallenge the terms contained therein.  However, it is still open to the said
\nperson to contend that the document is sham and nominal and vitiated by fraud.
\nIn other words, if the above said party, who executes the document is able to
\nsatisfy the provisos, the said party is entitled to succeed in his contentions.\n<\/p>\n
\t14. While making such a plea, the party concern who speaks against the
\nregistered document will have to make out a strong case in support of his
\ncontentions.  In such a situation, the onus is heavily on the party who speaks
\nagainst the document.\tTherefore, it is permissible to a party to a document to
\ncontend and prove that the deed was intended to acted upon but only a sham and
\nnominal document.  However, the said party cannot go against the terms of the
\ndocument  after admitting the character of the document.  In other words, the
\nterms of the documents in which a person is a party cannot be varying on
\ncontradicting by oral evidence to that of the document itself as sham and
\nnominal is one thing and to say that the content of the document is not correct
\nis another thing.  In this connection, it is useful to refer the judgment of the
\nHon’ble Supreme Court reported in 2003 (6) SCC 595 (Roop Kumar Vs. Mohan
\nThedani) wherein, the Hon’ble Supreme Court has read as follows:\n<\/p>\n
\t“19. Sections 91<\/a> and 92<\/a> apply only when the document on the face of it
\ncontains or appears to contain all the terms of the contract.  Section 91<\/a> is
\nconcerned solely with mode of proof of a document with limitation imposed by
\nSection 92<\/a> relates only to the parties to the document.  If after the document
\nhas been produced to prove its terms  under Section 91<\/a>, provisions of Section 92<\/a>
\ncome into operation for the purpose of excluding evidence of any oral agreement
\nor statement for the purpose of contracting, varying, adding or subtracting from
\nits terms.  Sections 91<\/a> and 92<\/a> in effect supplement each other.  Section 91<\/a>
\nwould be inoperative without the aid of Section 92<\/a>, and similarly Section 92<\/a>
\nwould be inoperative without the aid of Section 91<\/a>.”\n<\/p>\n
In 2007 (3) MLJ 467 (Bhandari Construction Company Vs. Narayan Gopal Upadhye)
\nwherein, the Hon’ble Supreme Court has held is hereunder extracted for useful
\nreference:\n<\/p>\n
\t“15. When the terms of the transaction are reduced to writing, it is
\nimpossible to lead evidence to contradict its terms in view of Section 91<\/a> of the
\nEvidence Act.  There is no case that any of the provisos to Section 92<\/a> of the
\nAct are attracted in this case.  Why the case that was sought to be spoken to by
\nthe respondent was not set up by him in the complaint was not explained.  The
\ncase set up in evidence was completely at variance with the case in the
\ncomplaint.  There was no evidence to show that the consideration was to be
\nR%s.9,00,000\/-, especially, in the light of the recitals in the registered
\nagreement.  There was also no document to show the payment of Rs.4,00,000\/- by
\nway of cash.  Hence, this was no evidence to show the balance amount due under
\nthe agreement after the admitted payment of Rs.5,00,000\/- was paid.  The
\naffidavit produced before the State Forum and the evidence of the colleague of
\nthe respondent is clearly inadmissable and insufficient to prove any such
\npayment.  Thus, the case set up by the respondent in his evidence was not
\nestablished.  It is in that situation that the District Forum, taking note of
\nthe payment of Rs.5,00,000\/- and the failure of the respondent to encash the
\ncheque for Rs.5,00,000\/- that was returned by the company, ordered the
\ncomplainant to pay the balance amount due under the transaction as evidenced by
\nthe written instrument and take delivery of the premises in question and in the
\nalternative, gave him the option to take back the sum of Rs.5,00,000\/- with
\ninterest.  Neither the State Commission, nor the National Commission has given
\nany sustainable reason for differing from the conclusion of the District Forum.
\nA mere suspicion that builders in the country are prone to take a part of the
\nsale amount in cash, is no ground to accept the story of payment of
\nRs.4,00,000\/- especially when such a payment had not even been set up in the
\ncomplaint before the District Forum.  Not only that, there was no independent
\nevidence to support the payment of such a sum of Rs.4,00,000\/- except the ipse
\ndixit of the respondent.  The affidavit of the Bank employee filed in the State
\nCommission cannot certainly be accepted as evidence of such a payment.  Payment
\nof such a sum had clearly been denied by the company.  The respondent had,
\ntherefore, to prove such a payment.  His case that the purchase price was
\nRs.9,00,000\/-, itself stands discredited by the recitals in the agreement dated
\n27.07.1997 in which the purchase price was recited as Rs.7,75,000\/-.  Not only
\nthat, the respondent did not have a receipt for evidencing the payment of
\nRs.4,00,000\/- and if the amount was paid on 05.07.1997 or 08.07.1997, as claimed
\nby him, he would certainly have ensured that the payment was acknowledged in the
\nagreement for sale executed on 27.07.1997.  The agreement for sale actually
\nspeaks of his obligation to pay the balance to make up Rs.7,75,000\/- after
\nacknowledging receipt of Rs.5,00,000\/-.  The respondent is not a layman.  He is
\na practising advocate.  According to him, he specialises in documentation.  He
\ncannot, therefore, plead ignorance about the existence of the recital in the
\nagreement.  He cannot plead ignorance of its implications.”\n<\/p>\n
In the judgment reported in 2009 (2) CTC 861 (Vimal Chand Ghevarchand Jain &
\nOthers Vs. Ramakant Eknath Jajoo), the Hon’ble Supreme Court has held that a
\nheavy burden of proof lies upon the defendants to show that the transactions was
\na sham and nominal one. Therefore, on a consideration of the above said legal
\npapers, this Court is of the view that the defendants cannot contend against the
\nterms of the documents in Ex.A6.  Similarly, the trial Court has committed a
\nserious error in shifting the onus on the plaintiff to prove his case in support
\nof Ex.A6.\n<\/p>\n
\t15. In the case on hand, it is a specific case of the defendants that they
\ndid not owe any money to Alagarsamy Naicker and therefore, it is their further
\ndenial that no such amount has been discharged by the plaintiff.  Hence, this
\nCourt is of the view that there is a denial of the  debts itself and the
\nquestion of plaintiff proving the discharge does not arise for consideration.\n<\/p>\n
\t16. It is further seen that when the onus is heavily on the defendants to
\nprove as to whether the document is sham and nominal, the failure of the second
\ndefendant, who executed the document in not deposing before the court making
\nherself for examination would lead to adverse inference.  In fact, the Hon’ble
\nSupreme Court in A.I.R. 2007 SC 2191 (M\/s.Kamakshi Builders Vs. M\/s.Ambedkar
\nEducational Society & Others) has taken a view in such a case, adverse inference
\ncan be drawn against the party.  It is also seen that the Court below has
\ndecreed the suit in part and the appeal filed by the defendants was dismissed.
\nIn any case, when the document is said to have been proved and when the
\ndefendants admits their contents of the  document partially, it is not open to
\nthe defendants to turn round and say that the remaining contents of the
\ndocuments are not true.  Therefore, on considering the facts and circumstances
\nof the case, the judgment and decree of the Court below in so far as it rejects
\nthe relief of the plaintiff for a sum of Rs.10,000\/- is concerned is hereby, set
\naside and the suit is decreed to the effect that the plaintiff is entitled to
\npreliminary decree of recovery to a sum of Rs.26,000\/- with interest at the rate
\nof  6% p.a. from 01.03.1972 to the date of realization.\n<\/p>\n
\tAccordingly, the first appeal is allowed in part  and the judgment and
\ndecree made in O.S.No.136 of 1986 dated 28.02.1989, on the file of the learned
\nSubordinate Judge, Srivilliputhur is set aside to the extent as mentioned above.
\nThere shall be no order as to costs.\n<\/p>\n
DP<\/p>\n
To
\nThe Subordinate Judge,
\nSrivilliputhur.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Mannarsamy Naicker (Died) vs Nagammal on 6 July, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-258354","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nMannarsamy Naicker (Died) vs Nagammal on 6 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mannarsamy-naicker-died-vs-nagammal-on-6-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mannarsamy Naicker (Died) vs Nagammal on 6 July, 2009 - 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