TaxTMI 
TaxTMI 
2021 (9) TMI 1386
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....f 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 valu....
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....ff 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 fi....
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.... 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 ....
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....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 ....
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.... 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....
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.... 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, 5 For short, 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 recor....
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....ate 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 8 For short, the 'Evidence Act' 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 agency- cum-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 sub- le....
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....ontract 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 docu....