Varghese Chacko v. Sivarman Nair Padmanabhan Nair and Krishnakumari

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** ## **MONDAY, THE 7TH DAY OF OCTOBER 2013/15TH ASWINA, 1935** ## **SA.No. 642 of 2001 ( )** ## **---------------------------------AGAINST THE JUDGMENT IN AS 74/1995 of ADDL. SUB COURT, KOTTAYAM, DATED 24/11/1999** ## **AGAINST THE JUDGMENT IN OS 61/1991 of MUNSIFF COURT, KANJIRAPPALLY, DATED 06/03/1995** ## **APPELLANT(S):** ## **------------------------** **VARGHESE CHACKO, RESIDING AT POOVELIKKUNNEL VADAKKUMBHAGOM KARA, CHIRAKKADAVU VILLAGE** ## **BY ADV. SRI.T.I.ABDUL SALAM** ## **RESPONDENT(S):** - **----------------------------** ## **1 SIVARAMAN NAIR PADMANABHAN NAIR SREETANGAM HOUSE, VADAKKUMBHAGOM MURI CHIRAKKADAVU VILLAGE** - **2 KRISHNAKUMARI, W/O. PADMANABHAN NAIR OF** - **---------------------DO--------------------DO----------------------** ## **R1 BY ADV. SRI.M.NARENDRA KUMAR** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** das ## **N.K.BALAKRISHNAN, J.** ========================== **S.A. No. 642 of 2001** =================================== **Dated this the 7[th] day of October, 2013** ## **JUDGMENT** Plaintiff is the appellant. The suit was filed for declaration of title, recovery of possession, fixation of boundary and injunction. The suit was decreed by the trial court but it was reversed by the appellate court and hence, the plaintiff has filed this second appeal. 2. The case of the plaintiff is that, as per Ext.A1 sale deed dated 6.9.1985, the first defendant had sold the suit property to the plaintiff's predecessor (DW2). The consideration shown therein is Rs.6,000/-. The recital therein is to the effect that the property was sold to the plaintiff's predecessor Thomas Thomas, who sold that property to the plaintiff as per Ext.A2 sale deed of 1987. It is contended that the plaintiff is in possession of that property and the defendants did not allow the plaintiff to measure the property. 3. The suit was resisted by the first defendant (hereinafter referred to as defendant) contending that though S.A.No.642/2001 2 Ext.A1 document was executed it was only a sham document since it was never intended to be acted upon, but was executed only as a security for the loan amount. The contention that just for a sum of Rs.6,000/- borrowed by the defendant an extent of 15 cents of land was sold, itself would unravel the fallacy of a sale deed having been executed in favour of DW2, the learned counsel for the respondents submits. 4. The following substantial question of law has been framed in this appeal: (1) When Ext.A1 is shown to be a sale deed executed by the respondents, is the lower appellate court justified in relying upon the oral evidence to hold that Ext.A1 was not intended as a sale deed ? 5. The learned counsel for the appellant vehemently argued that, in view of Sec.91 and 92 of the Evidence Act no parole evidence can be admitted so as to contradict the terms of Ext.A1 sale deed. That argument was not accepted by the lower appellate court following the decisions in **Gayatri v. Chhavuba (AIR 1982 SC 20)** and **Bhagavan v. Parukuttyamma (1999 (3) KLT 306).** Extrinsic evidence is admissible to show that the document executed was never intended to be acted upon S.A.No.642/2001 3 between the parties and that the document is a sham document. When it is alleged that the document in question is a sham document, it cannot be found that the document is not executed and registered. But at the same time, the parties can assail that document on the ground that it is a sham document which was never intended to be acted upon as a sale deed. It is open to the party who so assails to plead and prove that fact. There is sufficient pleading to that effect in the plaint. The learned counsel for the appellant has relied upon the decision of this court in **Moosa v. Moideed (2001 (1) KLT 183)** in support of her argument that a reading of Ext.A1 would make it clear that it is a sale deed and that the plea raised by the respondents that it was intended to be only a security cannot be accepted at all. The aforesaid decision was relied upon by the learned counsel for the appellant also in support of her submission that in view of the interdiction contained in Sec.92 of the Evidence Act, no oral evidence can be accepted to vary the terms of Ext.A1. But here, what was pleaded and intended to be proved is not to vary the terms of document, but to prove that the transaction in question was entirely a different one. S.A.No.642/2001 4 6. To prove the true character of a document in question extrinsic evidence by way of oral evidence is admissible as has been held in **Janakiraman v. State (2006 (1) SCC 697** . It was held by the Hon'ble Supreme Court in **Ishwar Dass Jain (dead) through Lrs v. Sohanlal (Dead) by Lrs. (2000 (1) SCC 434:** This court has held in _Gangabai v. Chhabubai_ that in spite of Section 92(1) of the Evidence Act, it is permissible for 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. In the above case, it was observed by D.A.Desai, J. as follows: (SCC Headnote) “The bar imposed by Section 92(1) applies only when a party seeks to rely upon the document embodying the terms of the transaction and not 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.” ## 7. It was also held by the Hon'ble Supreme Court in **Vimal Chand Ghevarchand Jain and others v. Ramakant eknath jadoo (2009 (5) SCC 713)** : “Indisputably when the true character of a document is questioned, extrinsic evidence by way of oral evidence is admissible. (See _R.Janakiraman v. State,_ SCC para 24; _Roop_ S.A.No.642/2001 5 _Kumar v. Mohan Thedani,_ SCC para 19 and _SBI v. Mula Sahakari Sakhar Karkhana Ltd.,_ SCC oparas 23 to 32.) We would, therefore, proceed on the premise that it was open to the respondent to adduce oral evidence in regard to the nature of the document. But in our opinion, he did not discharge the burden of proof in respect thereof which was on him.” 8. In the light of the authoritative pronouncements of the Hon'ble apex court, the question that falls for consideration is whether there is pleading and evidence to show that the parties never intended to treat Ext.A1 as a sale deed. 9. The first defendant was examined as DW1. It was stated by him that there was financial stringency and so, he was compelled to borrow Rs.6,000/- from DW2 agreeing to repay the same with interest at 36% per annum. According to him, the interest was paid by him regularly during every month. It was further contended that Thomas (DW2) thereafter demanded execution of Ext.A1 as a security for repayment of the said loan amount and thus agreeing to the same, he (DW1) executed Ext.A1 sale deed, but it was specifically stated by him that the possession of the property was not handed over by him. There is also evidence to show that the property was not measured at all. 10. It is important to note that the suit property is only a portion of a larger extent. If so, if the parties intended to have S.A.No.642/2001 6 the property purchased and to treat the document as a sale deed, then certainly he would first see that the property is surveyed and demarcated and boundary is fixed, but nothing of that sort was done in this case. There is also evidence to show that DW2, who had purchased the said property from DW1, had money lending business and that he used to lend money to other persons. There is also the admission made by DW2 that there were many instances in which agreements for sale of landed properties were obtained by him for the loan advanced by him. He even admitted that there were also instances where sale deeds were also obtained as security for the amount of loan advanced. The cumulative effect of these admissions may have to be taken into account while the case set up by the defendant that Ext.A1 was not intended to be acted upon as a sale deed. 11. There is evidence to show that DW2 had also obtained promissory note for a sum of Rs.6,000/- which was the amount borrowed from him by the defendant. According to DW1, the interest payable on the said principal amount was 60%. There is also evidence to show that for the very same amount, a cheque was also obtained from the defendant and when the plaintiff presented that cheque for encashment, it was dishonoured due S.A.No.642/2001 7 to insufficiency of fund. The admission made by DW2 that he is a money lender and was conducting a bank for that purpose and that he used to take immovable property as security for the loan advanced would strengthen the case of the respondents that there was only a debtor-creditor relationship and as a security for the amount of Rs.6,000/- borrowed by him, the appellant got Ext.A1 sale deed, but it was never intended to be acted upon. The evidence given by DW2 would strengthen the case advanced by the respondents. 12. The learned counsel for the respondents would also point out another vital aspect which also would scuttle the case of the plaintiff. 15 cents of land covered by Ext.A1 was got measured by taking out a Commission. It was found that a portion of the residential house of the respondent falls in the suit property. If as a matter of fact, Ext.A1 was treated as a sale deed, then certainly the parties would have noted that the portion of the house occupied by the respondents does not form part of the property sold. 13. There is yet another aspect which also looms large against the case set up by the plaintiff/appellant. It is stated that there is a road leading to the house of the respondents and that S.A.No.642/2001 8 road actually passes through the property shown in Ext.A1. These arguments have been highlighted by the learned counsel for the respondents to demolish the case of the plaintiff that Ext.A1 is an unquestionable sale deed. 14. It is also profitable to note that DW2 has admitted that there are yielding coconut trees existing in the suit property. Though Ext.A2 was executed about two years after Ext.A1, DW2 admits that he did not take yield from those coconut trees. That also is a strong circumstance to hold that the property was not intended to be sold, it was not measured and it was never put in possession of the appellant. All these circumstances have been narrated in detail by the lower appellate court. The lower appellate court was perfectly justified in holding that Ext.A1 was a sham document which was never intended to be acted upon. I find no reason to interfere with that finding. In the result, this RSA is dismissed. Parties are directed to suffer their respective costs. ## sd/- **N.K.BALAKRISHNAN, JUDGE** Jvt/das // True copy // PA to Judge