Whether the daughter can get a partition of ancestral property by disowning relinquishment deed?

 The plaintiffs, while admitting the execution of sale deed Ex.A-2, refute the release deed. The recital in the release deed refers the execution of sale deed Ex.A-2 in respect of 0.91 cents and about the receipt of Rs. 2,32,060/- each by the plaintiffs 1 and 2, as consideration for relinquishing their right in the remaining property, left by their father.{Para 11}

12. Two reasons are mentioned in Ex.A-4 for the cancellation of the release deed Ex.A-3. First, it was obtained by fraud and misrepresentation. They came to know about it, when they applied for encumbrance certificate. Second, the plaintiffs were not paid the full amount agreed by the defendants 1 to 5. These two reasons found in the deed of cancellation conspicuously not mentioned in the plaint. Further, for the first reason, the plaintiffs have not mentioned the date of their application for E.C (encumbrance certificate) or evidence to show they applied for E.C (encumbrance certificate). For the second reason (i.e.,) short payment of the money agreed, the amount paid and the exact amount unpaid neither pleaded nor proved.

13. By filing the partition suit, the plaintiffs disown their own document namely the release deed Ex.A-4 duly registered and presumed to be an official act performed regularly. If the terms of contract reduced into writing and duly registered is sought to be excluded by oral evidence, the burden is on the plaintiffs to adduce evidence sufficient to exclude the written evidence, as per section 92 of the Evidence Act.

16. Section 91 and section 92 proviso (i) of Indian Evidence Act, clearly lay down the rule when a written evidence could be excluded by oral evidence is permissible. In this case, the due execution of release deed Ex.A-3 is proved through the document and through the attesting witness D.W-2. To disprove it, the plaintiffs have not placed sufficient evidence to establish same was executed by misleading them and the consideration mentioned in the release deed not paid to them.

19. After executing a release deed (Ex.A-3) on 12.07.2006, the plaintiffs had cancelled the said release deed (Ex.A.4) on 17.08.2006 without any notice to the beneficiary of the release deed. Later, without any further relief of declaration in respect of those deeds, the suit for partition filed. When Section 34 of the Specific Relief Act, restrains the Courts from entertaining suits filed for mere declaration as to right when the plaintiffs are able to seek further relief, and same omitted to do so. Therefore, for the reasons stated above, this Court confirms the decree and judgment of the Additional District Court, Fast Track Court No. V, Coimbatore and dismissed the Appeal with costs.

 In the High Court of Madras

(Before G. Jayachandran, J.)

Tmt. Karuppathal  Vs P. Ponnusamy, (deceased) 

A.S. No. 809 of 2009

Decided on February 17, 2021,

Citation: 2021 SCC OnLine Mad 677

The Judgment of the Court was delivered by

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Whether it is necessary to adduce oral evidence to prove terms of lease deed?

 Section 91 of the Indian Evidence Act deals with evidence of terms of contracts, grants and other dispositions of property reduced to the form of documents. The lease deed is a document within the meaning of Section 91 and, therefore, no amount of oral evidence is required for elucidation of the terms and conditions stipulated under the said lease deed. The document speaks for itself. So also Section 92 is relevant in the present case which relates to exclusion of evidence of oral agreement. When the document itself is admitted, no oral agreement can improve the defendant's case.

IN THE HIGH COURT OF CALCUTTA

G.A. No. 1058 of 2016 and C.S. No. 100 of 2009

Decided On: 14.02.2018

Kanak Projects Limited  Vs.  Hooghly Printing Company Limited

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Whether defendant can adduce evidence contrary to contents of agreement of sale?

 In so far as the submission of the learned counsel for the
plaintiff that the defendant no.1 could not have been permitted to lead
evidence contrary to the contents of the agreement to sale dated 17th
October 1995 is concerned, the first appellate Court has held that the
defendants were entitled to adduce oral evidence to show that the real
intention of the parties behind the agreement for sale dated 17th October
1995 was to secure the loan. The first appellate Court has considered the
several judgments including the judgments of the Supreme Court in the
cases of Udai Chand Dutt Vs.Saibal Sen, reported in AIR 1988 SC
367, M/s.Hindustan Fasteners Vs. Nashik Workers Union, reported in
2007 11 SCC 660, Krishna Bai Vs. Appasahen, reported in AIR 1979
SC 1880 and Tyagaraja Mudaliar Vs.Vedathani, reported in AIR 1936
PC 70 and has followed the principles of law laid down in that judgments
and held that there was no hurdle to adduce other evidence to show that
the document executed by the party was sham and was not to be acted
upon.
22. In so far as the first submission of the learned counsel for the
plaintiff that the defendant no.1 could not have been permitted to lead
evidence to contradict the contents of the agreement to sale dated 17th
October 1995 in view of Sections 91 and 92 of the Indian Evidence Act,
1872 is concerned, in my view, the defendant no.1 had not led evidence
to contradict the contents of the said agreement for sale dated 17th
October 1995. The case of the defendants before the trial Court was that
the said transaction entered into between the parties was not to be acted

upon as the same was to be kept as a security in favour of the plaintiff
and was not to be acted upon as an agreement to sale. The defendant no.1
had disputed the entire transaction and thus could lead evidence in that
regard in view of Section 92 of the Indian Evidence Act, 1872. The first
appellate Court, in my view, has rightly adverted to the judgments of the
Supreme Court referred to aforesaid and has rightly rejected the
contention raised by the plaintiff. In my view, there is no substance in
this submission of the learned counsel for the plaintiff.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.144 OF 2016

Manohar Pamandas Jani 
 V
 Madhukar Trimbak Waychal 
 CORAM : R.D. DHANUKA, J.
 DATE :  25th October 2016
Citation: 2017(1) ALLMR102

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Whether the court can permit defendant to plead contrary to registered Sale deed ?

Order 7 Rule 11, Order 12 Rule 6 - Evidence Act, 1872 - Section 91, 92 - Possession - Sale deed - Title - Rejection of counter-claim - Decree on admission - By way of a registered sale deed defendant transferred the suit property to the plaintiffs - Total consideration of Rs. 1,65,00,000 was paid - Sale deed was registered in the office of the Sub-Registrar - Right of possession of plaintiffs was recognized in the sale deed - Despite the receipt of the entire consideration and execution of the sale deed, the defendant has failed to handover the physical vacant possession of the suit property - Defendant claimed that the amounts received by him were towards loan, and not towards sale consideration - Defendant has not produced any document to show that amounts were received by way of loan - Defense set up by the defendant is barred under section 91 and 92 of the Evidence Act - Since the title of the plaintiffs in respect of the suit property stands established, suit of the plaintiff for possession has to succeed - Defendant has failed to establish any right or title in the suit Property - Defendant may have occupied the suit property as a licensee - License stands terminated - Cause of action pleaded by the defendant in the counter claim is the so-called oral agreement that the plaintiffs shall re-transfer - No cause of action has arisen to seek the cancellation of the sale deed - Counter claim of the defendant is rejected - Possession was never delivered to the plaintiff would not deprive the plaintiff to claim ownership on the basis of their title derived from the sale deed, and to claim possession of the suit property - Applications of the plaintiffs are allowed - Suit is decreed in respect of the relief of possession.

IN THE HIGH COURT OF DELHI

CS (OS) 1633/2012, CC 18/2013 and I.A. Nos. 10623 and 16134/2012

Decided On: 26.03.2014

 Karan Madaan and Others

Vs.

 Nageshwar Pandey

Hon'ble Judges/Coram:Vipin Sanghi, J.

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Whether oral evidence in respect of Auction sale is admissible?

Mr. Almeida, learned Counsel for the defendants,
contended that in terms of Section 91 of the Evidence Act, oral
evidence with respect to the said auction sale in order to
establish that the auction sale is not only of the property
registered under no. 27202 but also in respect of 1/5th of the
property registered under no. 29845, is not admissible. On the
contrary, the contention of Mr Usgaonkar, learned Counsel for
the plaintiffs is that in respect of auction sale no document was
required to be executed by the Court and therefore Section 91 of
the Evidence Act does not bar such evidence. He relied upon the
Judgment of Division Bench of Patna High Court in the case of
“Tribeni Prasad Singh Vs. Ramasray Prasad Chaudhury”,
reported in A.I.R. 1932 Patna 80. In the case supra, the learned
Division Bench has observed that Section 65 of Civil. P.C. says
that where immovable property is sold in execution of a decree
and such sale has become absolute, the property shall be
deemed to have vested in the purchaser from the time when the
property is sold and not from the time when the sale becomes
absolute. It has been held that it is clear that the title of the
auction-purchaser is derived from the sale and not from the sale
certificate. It has been further held that the sale certificate is
merely evidence of title of the auction-purchaser and not the
title deed in the sense that the title is conveyed or created by it.
It is further observed that the word “sale certificate” itself
denotes that it is only a certificate by the Court that the auctionpurchaser
has purchased the property. It is further observed
that no provision of law has been placed before the Court to
show that the title of the auction-purchaser is derived from the
sale certificate. In the case supra, mortgaged property was
purchased by the decree holder in execution proceedings but no
sale certificate was obtained nor any document of delivery of
possession under Rule 95 or order XXI of C.P.C. was applied for
and obtained. In terms of Rule 94 of Order XXI of C.P.C., when
a sale of immovable property has become absolute, the Court
shall grant certificate specifying the property sold and the name
of the person who at the time of sale is declared to be the
purchaser and such certificate shall bear the date the day on
which the sale became absolute. An omission to obtain the
certificate does not destroy or take away the title of the
purchaser and the purchaser in such case can prove his title and
purchase by evidence aliunde. But when there is order of
confirmation of sale, the production of the same is sufficient to
prove the title of the auction-purchaser. The certificate of sale
may not by itself create title but is certainly evidence of title.
The facts and circumstances in the case of “Tribeni Prasad
Singh” (supra) are different. The ratio in the said judgment
does not apply to the facts of the present case. In the present
case, the property was not purchased in execution proceeding
and hence the provisions of order XXI of C.P.C. would not apply.
Auction was held in a Partition Suit No. 3450/1964. The said
document of auction proceedings was signed by Dr. Eurico Das
Dores Santana Da Silva, the learned Civil Judge Senior Dicision;
by Mr. Abel Agnelo Da Piedade Noronha, the Escrivao/Clerk of
that Court; by Mr. Antonio Coelho, the bailiff of the Court and by
the purchasers namely Maria Purificacao Jesuina Consolacao
Miranda Gomes and Soter Paulo Menino Gomes. It is stated in
the said document of auction proceedings that the said written
proceedings are being sent to Land Registration Office in terms
of the law. The document further shows that on 25/08/1972, the
executing parties namely Maria Jesuita Miranda Gomes and her
husband Soter Paulo admitted execution of the so-called
certificate of sale, before the Sub-Registrar, Salcete. On
26/09/1972, the execution of the said document of auction-sale
has been registered in the Land Registration Office of Salcete
under No. 1371 of Book No. 1, Vol. 99 at pages no. 335 to 340.
Section 91 of the Evidence Act, inter alia, provides that in all
cases in which matter is required by law to be reduced to the
form of a document, no evidence shall be given in proof 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. In my view, the
learned First Appellate Court has rightly held that on account of
Section 91 of the Evidence Act, oral evidence in respect to the
auction sale in order to show that the auction sale was not only
in respect of the property registered under no. 27202 and
matriz no. 345 but also in respect of the property bearing
registration no. 29845 and matriz no. 344, is not admissible.
Hence the substantial question no. (1) above is answered in the
negative i.e. against the plaintiffs.
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO. 85 of 2009
 Smt. Dea Lima Gomes Alemao,

Versus
Smt. Aurora Silva e Diniz,

CORAM :- U. V. BAKRE, J.
 Reserved on : 8thAugust, 2014.

Citation; 2016(3) ALLMR183

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Whether court can supply a word while interpreting a deed which is not used by author of document?

 In the case of “Mula Sahakari Sakhar Karkhana
Ltd.”(supra), the Hon'ble Apex Court has held that a document,
as is well known, must primarily be construed on the basis of the
terms and conditions contained therein and that it is also trite
that while construing a document the Court shall not supply any
words which the author thereof did not use. It has been further
held that surrounding circumstances are relevant for construction
of a document only if any ambiguity exists therein and not other
wise. Therefore, it is evident from the above provisions of law that
nothing can be added to the Deed of Partition by way of oral
evidence. The said document at Exhibit PW1/A-colly speaks for
itself. No doubt, there were no survey numbers as mentioned in

paragraph 2A, at the time of said Deed of Partition. But the said
Deed of Partition, in itself, does not show that the property was
divided into various plots, of various dimensions, lying at
particular places, and that some such plots were allotted to the
plaintiffs and some to the defendants. In the circumstances
above, the first substantial question of law gets answered in the
negative, since truely, the said Escritura de Divisao (Deed of
Partition) at Exhibit PW1/A-colly is merely a declaratory
document.
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO. 57 of 2004
 Mr. Lateran Max Francisco Vaz,

Versus
 Mrs. Volvetta Gomes,




CORAM :- U. V. BAKRE, J.

Pronounced on : 13 th June, 2014 .
Citation; 2015(3) ALLMR594 Goa high court

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The Word "Terms" as used in section 91 and 92 of evidence act

The expression "terms" in sec 91 and 92 of evidence act must relate to statements assertions or representations contained in written contract which relates to subject matter of contract and something to be done or not to be done under the contract and has no application to a provision in the nature of condition precedent to a very existence or formation of a contract.

Bombay High Court

P.B. Bhatt And Ors. vs V.R. Thakkar And Ors. on 27 July, 1971

Equivalent citations: AIR 1972 Bom 365, (1972) 74 BOMLR 509

Bench: Vimadalal

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Whether Sale deed signed by only vendor is valid?

Indian Evidence Act, 1872 – Sections 91 and 92 – It is not open to a party to a document to prove by oral evidence a variation in the terms of the document or as to the amount of consideration shown in the document. 

Indian Evidence Act, 1872 – Sections 91 and 92 – Parole evidence given for the purpose of proving variation in the amount of consideration shown in the document would be inadmissible under S.92 of the Evidence Act. 

Indian Evidence Act, 1872 – Sections 91 and 92 – The bar under S.91 and S.92 of the Evidence Act will not apply for proving want of consideration or failure of consideration. 

Transfer of Property Act, 1882 – Sections 5 and 54 – Indian Contract Act, 1872 – Section 10 - Sale deeds only contain the signature of the vendors thereunder and not the respective vendees - That will not render those sale deeds invalid as contracts for want of mutuality on the ground that they are only unilateral instruments. All that is necessary is to ensure that the essential parts of a modern conveyance namely, the “parties, the recitals, testatum, operative words, parcels, habendum and testimonium” are present in the instrument. 

Transfer of Property Act, 1882 – Sections 5 and 54 – Indian Contract Act, 1872 – Section 10 - There is no scope any more for anybody to contend that an agreement for sale or a sale deed (deed of conveyance) executed by the prospective vendor or the vendor, as the case may be, is a unilateral document or instrument and is not a contract which can be enforced in law. 

Transfer of Property Act, 1882 – Sections 5 and 54 – Indian Contract Act, 1872 – Section 10 - An agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of purchaser alone signing an agreement of sale.

IN THE HIGH COURT OF KERALA

A.F.A. No. 59 of 1994

Decided On: 13.01.2012

 Vasu @ Bhaskaran Vs.  Parukutty Amma & Anr.

Hon'ble Judges/Coram:
V. Ramkumar and K. Harilal, JJ.

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