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) {Para 22}
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 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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1491 OF 2007
PLACIDO FRANCISCO PINTO (D) by LRs Vs JOSE FRANCISCO PINTO
Author: HEMANT GUPTA, J.
Dated: SEPTEMBER 30, 2021.
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
1 Hereinafter referred to as the ‘first suit’
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 premises as
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
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/-
2 Hereinafter referred to as the ‘second suit’
(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.”
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 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 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:
(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:
“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.
3 (2009) 12 SCC 95
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’
(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.
23. Order VI Rule 2 of the Code of Civil Procedure, 1908, For short, the ‘Code’ 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 Gandhi 6 (1982) 1 SCC 4 and Roop Kumar v. Mohan Thedani 7 (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, 1872,For short, the ‘Evidence Act’ 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 agencycum-
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 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 subletting.
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, 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.
xx xx xx
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 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 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.
.............................................J.
(HEMANT GUPTA)
.............................................J.
(V. RAMASUBRAMANIAN)
NEW DELHI;
SEPTEMBER 30, 2021.
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