Thongam Ningol Mema v. Thongam Bokul Singh — 1962 DIGILAW 10 (GAU)

Judgement JUDGMENT:- This is a second appeal filed by the defendants in Title Suit No.15 of 1956 in the Court of the Munsiff Imphal, against the decision of the District Judge, Manipur, in Civil Appeal No.78 of 1957, by which he reversed the decision of the Munsiff dismissing the suit filed by the respondent-plaintiff and passed a decree as prayed for by him. 2. The respondent as plaintiff filed the suit for redemption of a mortgage in respect of the land under patta No.33/1027-Th.T. His case was that he mortgaged the land for Rs.150/- in favour of Thongam Bokul Singh, his cousin, who Was defendant No.1, and whoso legal representatives are now appellants 1 and 2, but that on the representation of the said Bokul Singh, the document Ext.1 dated 5-2-1954 was written in the form of a sale deed for Rs.150/-. But the land continued to remain in the possession of the respondent himself. The said Bokul Singh executed a collusive and fraudulent sale deed (the original of Ext.5) dated 7-6-1954, in favour of Kongkham Lakhol Singh (Defendant No.2 and appellant No.3) for Rs.800/-. In spite of the two sale deeds, the patta was not transferred and the respondent himself continued to pay the revenue. He also said that the real value of the land was not less than Rs.700/-. He therefore prayed for redemption of the mortgage. 3. Bokul Singh and Lakhol Singh filed a joint written statement contesting the suit. They stated that the sale deed -Ext.1 was an out and out sale. It is a curious written statement in which they did not specifically deny the allegations in the plaint that possession was not transferred after the sale - Ext.1, that the real Value of the land was not less than Rs.700/- and that the respondent himself was paying the revenue of the land. Nor was there any plea by Lakhol Singh that he was a bona fide purchaser for value without notice of the circumstances under which Ext.1 was executed. 4. But still I find that the learned Munsiff framed issues and took evidence on the questions (1) whether Lakhol Singh was a bona fide purchaser for value, (2) who was in possession and (3) whether possession was not delivered because Ext.1 was a mortgage. 4. But still I find that the learned Munsiff framed issues and took evidence on the questions (1) whether Lakhol Singh was a bona fide purchaser for value, (2) who was in possession and (3) whether possession was not delivered because Ext.1 was a mortgage. He also gave findings on the said issues holding that Lakhol Singh was a bona fide purchaser for value and further that the respondent was in possession in spite of the sale deed Ext.1, but that mere non-delivery of possession cannot, modify a registered sale deed and make it a mortgage. He further held on issue 5 that Section 92 of the Evidence Act, prevented the respondent from letting in any evidence to show that Ext.1 was a mortgage and not a sale deed and further stated that proviso 6 to Sec.92 required that the respondent should prove the existence of fraudulent circumstances and that the respondent had failed to prove any such fraud practised by Bokul Singh on him. For all these reasons he dismissed the suit. 5. In appeal, the learned Distract judge disagreed with the Munsiff and held relying on two decisions Kashinath v. Hurrihur Mookerjee, ILR 9 Cal 898 and Baksu Lakshman v. Govinda Kanji, ILR 4 Bom 594 that evidence about the conduct of the parties can be gone into to decide whether a document executed in the form of a sale deed was only a mortgage or not. He then proceeded to consider the evidence relating to the conduct of the parties subsequent to the sale and found that the respondent was in possession throughout in spite of the sale as held by the Munsiff. He also found that the consideration mentioned in the sale deed, namely, Rs.150/- was far less than the real value of the land. He also found that the respondent had paid the revenue of the land even after Ext.1 and that neither Bokul Singh nor Lokhol Singh got the patta mutated in their names or paid any revenue for the land. Considering all these circumstances he held that Ext.1 was really a mortgage. He then proceeded to consider the question whether Lakhol Singh was a bona fide purchaser and held that the evidence showed that no consideration passed for Ext.5 and that it was a collusive document. He therefore allowed the appeal and passed a decree for redemption of the mortgage. 6. He then proceeded to consider the question whether Lakhol Singh was a bona fide purchaser and held that the evidence showed that no consideration passed for Ext.5 and that it was a collusive document. He therefore allowed the appeal and passed a decree for redemption of the mortgage. 6. It was argued before me in second appeal for the appellants that the learned District Judge was wrong in holding that the conduct of the parties can be gone in to in deciding the question whether the document was a mortgage or a sale deed. It was pointed out that proviso 6 of section 92 of the Evidence Act would come into play only if there was any ambiguity in the terms of the document and that where a document was quite clear in its terms and showed that it was a sale deed, no question of proving any fact which showed in what manner the language, of a document was related to existing facts would arise at all and that therefore the learned District Judge should not have gone into the conduct of the parties subsequent to the execution of Ext.1 to decide whether it amounted to a mortgage or a sale. My attention was also drawn to section 19 of the Indian Contract Act, regarding the voidability of an agreement entered into without free consent and it was pointed out that in the present case there was no misrepresentation or fraud or coercion as the respondent knew full well that the document was being executed as a sale deed and that under the exception in section 19 of the Contract Act, if the party whose consent was caused by misrepresentation or by silence fraudulent within the meaning of section 17 of the Contract Act had the means of discovering the truth with ordinary diligence, the contract was nevertheless, not voidable and it was pointed out that it was the exception in section 19 which would apply in the present case. 7. I am unable to agree, with the appellants. What section 92 of the Evidence Act prohibits is the admission of evidence of any oral agreement or statement for the purpose of contradicting, varying or adding to or substracting from the terms of a document. 7. I am unable to agree, with the appellants. What section 92 of the Evidence Act prohibits is the admission of evidence of any oral agreement or statement for the purpose of contradicting, varying or adding to or substracting from the terms of a document. This no doubt prevents any evidence of the executants or the scribe or the attestors to the document being let in to show that though the document was executed as a sale deed, the parties intended that it shall be a mortgage. The intention of the parties is conclusive from the terms of the document, if the terms are unambiguous and clear. Thus, in the present case, a reading of Ext.1 makes it clear that it is an out and out sale. No evidence shall be given for the purpose of contradicting or varying or adding to or substracting from the said document. There is also no plea of fraud in the present case and hence proviso 1 to section 92 will not apply. 8. But proviso 6 to section 92 permits any fact to be proved which shows in what manner the language of a document is related to existing facts. Thus, where, for example, a sale deed is executed and the value of the land is found to be far more than the consideration mentioned therein, the vendee does not take possession and allows the vendor to remain in possession, the vendee does not mutate his name as the owner of the land and the vendor continues to pay the revenue and this state of affairs continued for a long time, evidence of these existing facts and the manner in which the language of the document is related to such existing facts will certainly have to be allowed. All these facts really act as an estoppel on the vendee from claiming that the sale deed really conveyed title to him and was not a mortgage. It is this principle of estoppel, which is enacted in proviso 6 to section 92 of the Evidence Act. 9. It is this principle which has been laid down in the decisions Kashi Nath Chatterjee v. Chandi Charan Banerji 5 Suth W R 62 (FB), ILR 4 Bom 594, Hem Chunder Soor v. Kally Churn Das, 9 Cal 528. These are the leading cases on the point. 9. It is this principle which has been laid down in the decisions Kashi Nath Chatterjee v. Chandi Charan Banerji 5 Suth W R 62 (FB), ILR 4 Bom 594, Hem Chunder Soor v. Kally Churn Das, 9 Cal 528. These are the leading cases on the point. In all these cases, evidence of the surrounding circumstances under which the document was executed and the conduct of the parties was adduced to show that the document had all along been treated as a mortgage and was intended to operate as such. Subsequent decisions of the Privy Council in Balkishen Das v. W.F. Legge, ILR 22 All 149 (PC) and Narasingerji Gyanagerji v. P. Parthasarathi Garu, AIR 1924 PC 226 have both held that extrinsic evidence of circumstances as might clearly show the relation of the written language to existing facts can be allowed. The said two Privy Council Rulings were strongly relied on in the decision of the Madras High Court-Sait Balumal Dharmadas, Firm v. Venkata Cholapathi Rao, (S) AIR 1955 Mad 78 in which also evidence of existing facts was admitted to show in what manner the language of the document was related to such facts. 10. It is clear therefore that oral evidence, though not of the parties or attesting witnesses or the scribes, to show that at the time of the execution of the document the parties agreed as between themselves that the document was not a sale but a mortgage, will be admissible to show the surrounding circumstances or the conduct of the parties which will show that it was only a mortgage and not a sale deed. Thus, when we turn to he present case, I have already pointed out that the defendants did not traverse in their written statement, the allegations in the plaint that value of the land was over Rs.700/-, that the plaintiff was in possession of the land after the sale or that the plaintiff was paying the revenue even after the sale deed Ext.1. But in the course of the evidence, I find that they tried to show that for 3 years after the sale deed Bokul Singh was in possession. This was, however, disbelieved and rightly so by both the Courts below. But in the course of the evidence, I find that they tried to show that for 3 years after the sale deed Bokul Singh was in possession. This was, however, disbelieved and rightly so by both the Courts below. Bokul Singh had executed a sale deed of the land within 4 months of Ext.1 to Lakhol Singh and it was not explained how Bokul Singh could continue in possession for 3 years after Ext.1. Actually, the suit itself was filed in February, 1956, that is, within 2 years of the sale deed Ext.1. Thus it was a totally false defence case set up by the defence. Nor did the defendants say that patta was transferred in their names or that they even paid the revenue for the land. Thus even without admitting any evidence in the case it was clear even from the allegations in the plaint which were not traversed in the written statement that the respondent was in possession in spite of the sale deed Ext.1, that the patta was not transferred in the name of the vendee, that the respondent himself paid the revenue after the sale and that the value of the land was far more than the consideration mentioned in Ext.1. This was sufficient to decree the suit in favour of the respondent. Really, the Munsiff was wrong in allowing the defendants to let in evidence on matters on which they did not contest the suit at all. The respondent let in evidence on all these circumstances and the evidence was rightly admitted by the Munsiff. After admitting the evidence, the Munsiff refused to consider the same as he fell that section 92 of the Evidence Act stood in the way of the respondent. That was certainly wrong on the part of the Munsiff. The learned District Judge was right in having allowed the appeal on the evidence in the case. 11. I see no merits at all in this second appeal and it is therefore dismissed with the costs of the respondent. Appeal dismissed.