Alokmoy Banerjee v. Chatturaman Ghosh — 1979 DIGILAW 208 (CAL)

Judgment This appeal is from the judgment and decree passed by the learned Additional Subordinate Judge at Burdwan reversing those of the learned Munsif pasted in a suit for recovery of a sum of rupees one thousand being according to the plaintiff appellant the unpaid consideration money in respect of a sale of land effected by a kobala (Ext) A1 2 The plaintiff-appellant brought the present suit for recovery of rupee one thousand on the following allegations: 3. The plaintiff executed the kobala (Ext. A) without receiving the consideration money. The circumstances in which, according to the plaintiff, the Kobala (Ext. A) was executed without plaintiff receiving the consideration money are that after the kobala was written out and made ready for execution and registration one of the defendants who was present at the Registration Office gave out for the first time that he could not procure the consideration money and requested the plaintiff to execute and get registered the kobala (Ext. A) on the defendants undertaking to pay the consideration money within 2 or 3 day. and that Sadananda who was a relation of defendant No 2 also requested the plaintiff to execute and get registered the kobala (Ext.A) on the uf1dustanding that defendants would pay the consideration money within 2 or 3 days 4 The further case of the plaintiff is that in the circumstances aforesaid the plaintiff in good faith did execute the said kobala and got it registered and that later in spite of demands the defendants did not pay the consideration money and the plaintiff was accordingly constrained to file the present suit. 5. The defendants in their written statement denied the material allegations contained in the plaint. Their case is that the consideration money was paid on the date of execution and registration, that the payment was made in the parlour of one Lal Mohan Ghosh (D.W.2) and that after receiving the consideration money the plaintiff went to the registration office and executed and got registered the kobala (Ext. A) and endorsed the receipt for taking delivery of the kobala. A) and endorsed the receipt for taking delivery of the kobala. It is the further case of the defendants that thereafter the defendants could not get possession of the suit property as Balaram Ghosh, a bargadar refused to deliver khas possession to the defendants and to deliver even the owner's share of produce to the defendant’s and that the defendants on finding it difficult to get possession of the suit property were compelled to sell the same to the daughter of said Balaram at a lesser value, than the amount of consideration paid by them 6. The learned Munsif decreed the suit on contest with costs against the defendants On appeal, the learned Subordinate Judge set aside the judgment and decree passed by the learned Munsif and dismissed the suit on contest with costs. 7. Mr. S.K. Lahiri the learned Advocate for the plaintiff appellant contends that the judgment of reversal passed by the court of appeal below was wrong, for the learned Judge proceeded on be assumption that oral evidence was inadmissible as under the law of the and the contents of a registered document cannot be improved upon by adducing oral evidence. Mr. Lahiri further urges that the learned Subordinate Judge was also wrong in requiring the plaintiff to discharge his onus regarding proof of fraud. Mr. Lahiri further urges that the judgment of the court of appeal below would show that it did not at all apply its mind to the facts and circumstances of the case in coming to a finding different from that arrived at by the learned Munsif. 8. The following observations were made by the learned Subordinate judge regarding the law to be applied: .'........ .......there is endorsement in the kobala itself and it is a registered document and it is very difficult to prove against the contents of such a document and this is a gravest sort of allegation of fraud and the alleger of such thing must prove it to the hills. It is worth while to remember that oral evidence to improve the contents in a registered document or for the matter of that against such contents would be admissible under the law of our land inasmuch as fraud vitiates everything, burden of proof rests on the plaintiff to prove first of all the fraud". 9. It is worth while to remember that oral evidence to improve the contents in a registered document or for the matter of that against such contents would be admissible under the law of our land inasmuch as fraud vitiates everything, burden of proof rests on the plaintiff to prove first of all the fraud". 9. While laying down the law as aforesaid the learned Subordinate Judge was presumably thinking of the provisions of S. 91 and S. 92 of the Indian Evidence Act the relevant part of the provisions of S. 91 is as follows. When the terms of a contract or of grant or of any ocher disposition of property have been reduced to the form of a document and in all cases in which any matter is required by law to be reduced of the form of a document no evidence shall be given in proof of the terms of such contract grant or other disposition of property or of such matter except the document itself, or secondary evidence of its contents in cues in which secondary evidence is admissible under the provisions hereinbefore contained." 10. I also quote hereunder the relevant part of the provisions of S, 92 : "When the terms of any such contract grant on 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 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 term. 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” 11. In this case decidedly the onus lies on the plaintiff to prove that no consideration did pass from the defendants to the plaintiff at or before the time of execution and registration of the kobala (Ext.A). In this case decidedly the onus lies on the plaintiff to prove that no consideration did pass from the defendants to the plaintiff at or before the time of execution and registration of the kobala (Ext.A). Now the question is whether the provisions of the Indian Evidence Act referred to above do in any way stand on the way of any oral evidence being adduced on behalf of the plaintiff with a view to proving his case. A hare perusal of the provisions quoted above even without the authority of any judicial decision would show clearly that when the terms of a contract or a grant or any other disposition of a property have been reduced in the form of a document no evidence shell be given in proof of the terms of such contract, grant or other disposition of any property except the document itself That is so according to the provisions of S. 91. according to S. 92 when the terms of any such contract, grant or other disposition of property has been proved according to the last section, meaning S 91, no evidence of any oral agreement of statement shall be admitted for the purpose of contracting, varying adding to or subtracting from its terms of the present clue. Mr. Lahiri very fairly concedes that if what the plaintiff was to prove by adducing out evidence would result in contracting varying. adding to or subtracting from, the terms of the contract such oral evidence would be inadmissible in view of the provisions of SII. 91 and 92. Admittedly, the deed (Ext,A) was proved to have been executed Mr. Lahiri. however. relies on the provision (1) to S, 92. quoted above. and contends that the proviso permits the letting in of evidence for the purpose of proving that there was either want or failure of consideration. That to my mind, follows from the plain reading of the said proviso (1). In the present case whit is sought to be proved by oral testi-many is that at the time of the execution and registration of the kobala (Ext A) the defendants had no money and that at their request the plaintiff did execute and got registered the kobala (Ext.A) when the defendant promised two pay within two or three days the entire consideration money. 12, In view of what has been stated above it is patent that the court of appeal below in deciding the appeal proceeded on a wrong assumption that law does not permit the plaintiff to adduce oral evidence to prove his case. This vitiated the entire judgment which was rendered by the Subordinate Judge on the basis of a legal proposition which was entirely wrong 13. Mr. Lahiri, the learned Advocate for the appellant while contending that oral evidence would be admissible for purpose of proving went of consideration relies on a number of decision namely, Annada Charan Sil & anr v Hargobinda Su & ors. 27 CWN 496. Motilal Singh & ors. V. Mt. Fulia & ors AIR 1978 Pat 61 & Bal Hira Debi & ors Official Assignee of Bombay & ors. AIR 1955 Bom 122 . In the case of Annada Charan Sil (supra) their Lordships lay down that while want or failure or difference in kind of the consideration could be proved evidence to vary the amount of consideration in a registered sale deed is inadmissible. In the present case the amount of consideration is not sought to be varied but what was to be proved by the plaintiff was only the want of consideration. Thus, the view take by me as above finds support from this decision. The1 said Patna case also takes the name view. There it is held that under said proviso (1) evidence may be reduced to prove want or failure of consideration. There it is rightly pointed out that a statement in a document that the consideration has been paid is really a recital in the deed and does not constitute one of the terms of the contract but the amount of Consideration is obviously a term of the deed and. that being one of the terms, it is not open to a party to adduce evidence with a view to proving that amount of consideration was different from that stated in the deed. This decision of the Patna High Court took note of the view taken in the case of Annada Charan Sil (Supra) and approved of the same. that being one of the terms, it is not open to a party to adduce evidence with a view to proving that amount of consideration was different from that stated in the deed. This decision of the Patna High Court took note of the view taken in the case of Annada Charan Sil (Supra) and approved of the same. In the Bombay case referred to above it is held that when a party tried to established that the deed of gift but a conveyance of property for consideration it would bit contradicting an important term of the deed and al such oral evidence to prove such a cue would not have been admissible but evidence may be adduced in a Case to prove that there was want or failure of consideration. Thus regard being had to the discussion aforesaid the position at law may be taken as established that a recital in a deed regarding payment of consideration is not in itself a conclusive evidence of such payment and that accordingly oral evidence is admissible to prove non-payment of consideration. 14. Mr. Lahiri fairly draws my attention to an averment in the said kabola (Ext.A) to the effect that the kobala is being executed on receipt of the entire consideration money. It is common practice and I may take note thereof that ordinarily besides such a statement as that in the body of the kobala there is almost invariably receipt incorporated in the deed showing payment by the vendee of the consideration money and acknowledgment of receipt thereof by the vendor. Such a receipt as that is wanting in the present kabala (Ext A) Further, Mr Lahiri rightly contends that the statement appearing in the kobala referred to above may at best amount to an admission or for the matter of that it may be a piece of evidence but such an admission cannot be conclusive as to the truth of the matters stated therein. In the circumstances there is no reason why evidence cannot be adduced with a view to showing that the admissions was an erroneous one. In this regard Mr. Lahiri relies on the decisions in Nagubai Ammal & ors v. B. Shama Rao reported in AIR 1956 SC 593 . In the circumstances there is no reason why evidence cannot be adduced with a view to showing that the admissions was an erroneous one. In this regard Mr. Lahiri relies on the decisions in Nagubai Ammal & ors v. B. Shama Rao reported in AIR 1956 SC 593 . There it has been laid down that an admission is not conclusive as to the truth of the matters contained therein, that is on a piece of evidence, the weight to be attached to such evidence must depend on the circumstances and which it is made and that it can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment when it might become conclusive by way of estoppels. In the present case it will appear from the materials on record that on behalf of the plating evidence was adduced with a view to showing that the kobala was already written out and at that stage one of the defendants who was present at the registration office informed the plaintiff that he could not procure the consideration money. The further evidence is that defendant wanted the plaintiff to evidence and get registered the kabala (Ext.A) and assured the plaintiff that payment of the consideration money would be made within two or three day. In view of the decision in the case of Nagubai Ammal (Supra) the plaintiff can very well adduce oral evidence with a view to proving his case to that effect. The view that was taken in Nagubai Ammal's case is was also approved of by the Supreme Court to the case of K.S. Srinivasan v. Union of Inia reported in AIR 1958 SC 419 . In the present case there is nothing to indicate that the defendant did in any way relying on the faith of any representation made by the plaintiff change their petitioner to their detriment. It the plaintiff succeeds in proving that there was no payment of consideration money the defendant did have then knowledge of the fact that the redial regarding payment was wrong and in such circumstances there can be no question of the defendant relying on any representation made by the plaintiff. 15. Mr. It the plaintiff succeeds in proving that there was no payment of consideration money the defendant did have then knowledge of the fact that the redial regarding payment was wrong and in such circumstances there can be no question of the defendant relying on any representation made by the plaintiff. 15. Mr. Lahiri further argues that it will appear from the impugned Judgment that the learned Subordinate Judge did not at an apply his mind to the fact and circumstances of the case and the decision arrived at by him was had on that account as well the learned subordinate Judge stated that P.W.1 Sadanands was neither an identifier nor an attesting witness to the document of meaning the kobala (Ext. A). The learned Subordinate Judge did depend on this fact to a large extent in discarding the testimony of P.W.1 Sadananda. Here the learned Subordinate Judge was entirely wrong, the kobala (Ext. A) would show that P.W. 1 Sadananda was both and identifier and one of the attesting witnesses. This betray utter carelessness on the part of the learned Subordinate Judge. 16 Mr. Anil Krishna Mukherjee learned Advocate appearing for the defendants-respondents contends that this Court in exercise of Its powers under S. 100 of the Code of Civil Procedure cannot while hearing a Second Appeal reverse the finding of fact arrived at by the court of appeal below which is the final court of facts, There can be no doubt that ordinarily a court exercising it powers under S. 100, of the Code of Civil Procedure cannot reverse a finding of fact arrived at by the court of first appeal Mr. Mukherjee in this regard relied on the decision in Raruha Singh v. Achal Singh & ors. AIR 1961 SC 1097 . There it is laid down that the High Court's jurisdiction in a Second Appeal is confined to question of law alone and that, it is not open to the High Court to attempt to re-appreciate the evidence which Was considered by the Court of first appeal in arriving at its conclusion regarding questions of fact Mr. Mukherjee also refers me to a single Bench decision of this Court in the case of Managing Committee of Victoria Girls' High School & ors v. Board of Secondary Education West Bengal, 73 CWN 328. Mukherjee also refers me to a single Bench decision of this Court in the case of Managing Committee of Victoria Girls' High School & ors v. Board of Secondary Education West Bengal, 73 CWN 328. There it is held that an appeal court's judgment need not be as elaborate as the trial court of that some of the reasons of the trial court may not be reversed even, that still the High court is not justified in reversing the findings of fact arrived at by the appeal Court the last court of facts. Bijayesh Mukherji, J, in delivering the said Single Bench judgment relied on Ramachandra Ayyar v, Ramalingum Chettiar" AIR 1963 SC 302 . Mr, Mukherjee also relied on the case of Afsar Shaikh, Soleman Bibi AIR 1976 SC 163 where it is laid down that broadly the effect of Ss. 100 and 101, read together is that a Second Appeal is compete at only on the ground of an error in law or procedure and not merely on the ground of an error on a question of fact It is further observed that the High Court has no jurisdiction to entertain a Second Appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be this decision then quotes S, 103 of the Code of Civil Procedure which is as follows: "In any Second Appeal, the High Court may, if the evidence on record is sufficient, determine any issue necessary for the disposal of the appeal.- (a) which has not been determined by the, lower appellate court or both by the court of first instance and the lower appellate court, or (b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in S 100" 17. There can be no dispute about the soundness of the principles laid down as aforesaid by the Supreme Court. In the present case as already pointed out the court of appeal below started with a wrong interpretation of the law contained in Ss, 91 and 92 of the Indian Evidence Act. There can be no dispute about the soundness of the principles laid down as aforesaid by the Supreme Court. In the present case as already pointed out the court of appeal below started with a wrong interpretation of the law contained in Ss, 91 and 92 of the Indian Evidence Act. This has resulted in a wrong finding of fact and in such a case interference by High Court is imperatively called for further I have pointed out that the impugned judgment clearly shows that the court of appeal below did not duly apply its mind to the facts and circumstance of the case in coming to the conclusion that the plaintiff failed to prove its case of non-payment of the consideration money. Thus even though the power of the High Court hearing a Second Appeal are very much limited, in the present case in view of what is stated above this court to my mind, is competent to interfere with the impugned decision for there is an error of law committed by the Court which vitiated its finding of fact. The impugned decision is bad firstly because the court of appeal below proceeded on the assumption that the plaintiff could not adduce oral evidence for the purpose of proving his case of non-payment of consideration money. secondly, its finding cannot be accepted in view of the fact that it railed to apply its mind and for the matter of that to exercise its jurisdiction properly. 18. the learned Munsif after considering the evidence adduced on behalf of the plaintiff and the defendants came to the finding that the plaintiff succeeded in proving that the kobala was executed and registered but the consideration money was promised to be paid within two or three days of such execution and registration. He accepted as dependable the evidence adduced on behalf of the plaintiff. P.W.4 Benoy Gopal Banerjee who was originally the plaintiff died during the pendency of the appeal in the court below and in his place the present plaintiff, who were his heirs and legal representatives were substituted. The said original plaintiff Benoy stated that consideration was Rs. He accepted as dependable the evidence adduced on behalf of the plaintiff. P.W.4 Benoy Gopal Banerjee who was originally the plaintiff died during the pendency of the appeal in the court below and in his place the present plaintiff, who were his heirs and legal representatives were substituted. The said original plaintiff Benoy stated that consideration was Rs. 1000/• but the same was not paid to him that when he was asked to sign the kobala he asked the consideration money from defendant No.2, that thereupon the defendant No. 2 requested him to register the kobala after executing the same and promised to pay the consideration money latter as he could not than procure the same, that at first he (Benoy) was hesitant and when Harakali and Sadananda assured him about such payment he (Benoy) agreed to do so and that in spite of demand the defendants failed to pay the consideration money. This witness Benoy also denied the truth of the defence case that be went to Sibpur village and took the Consideration money before going to registration office for executing the kobala and getting it registered. This witness Benoy was corroborated in material particulars by P. W. 1 Sadananda who is admittedly relation of defendant No.2. P.W.2 Benoy Gopal Das who wrote out the kobala (Ext. A) also corroborated the statement of the original plaint if Benov. The case made out by the plaintiff also finds corroboration from what was stated by P.W.3 Huakali Mondal. It is significant to note that the witnesses examined on behalf of the plaintiff when not proved to be in any way interested witnesses. On the other hand, as already pointed out, said Sadananda was relation or one of the defendants. 19. The learned Munsif referred at length to the material discrepancies in the evidence adduced on behalf of the defendants so far as is concerned the defence case regarding payment by the defendants of the consideration money to the plaintiff Benoy at the parlour of D.W. 2 Lal Mohan I consider it needless to refer in details to the discrepancies pointed out by the learned Munsif, for that would be unduly augmenting the volume of my judgment. They were considered by the learned Munsif to be material discrepancies and I find no reason to differ from the view taken by the learned Munsif in this regard. They were considered by the learned Munsif to be material discrepancies and I find no reason to differ from the view taken by the learned Munsif in this regard. The defendant No.2 Monoranjan who was examined as D.W.1 in course of his examination-in chief stated that neither Sadananda nor Harakali was present at the registration office. This statement of defendant No. 2 is a blatant lie inasmuch as in course of cross-examination he Stated that he could not say whether Sadanand" Biswas went to the registration office. Further it will appear from the kobala (Ext.A) that Sadananda was both an identifier and one of the attesting witnesses. Even D.W. 5 Chaturanan who is defendant No. 1 stated that from the beginning to the end of the writing of the deed till the registration Sadananda Biswas was with them meaning the witness and others in the circumstances the presence of Sadananda at the registration office cannot be doubted. From statements made by him in course of cross-examination it will appear that defendant No. 2 had first tried to deny that Sadananda was a relation of his but ultimately he had to succumb to cross-examination and admit that Sadananda was a relation of his He further admitted that he had no quarrel which Sadananda and that they were not on had terms. In the circumstances aforesaid the learned Munsif was justified in placing no reliance whatsoever an defendant No.2 who was examined as D.W. 1. 20. It will appear from what is stated by some of the witnesses on behalf of the defendant that the talk of sale took place about 15 days prior to the execution and registration of the kobala and that it was then agreed that the patties would go to the registration office direct on the date of execution and registration. But the defence case that was sought to be made out is that the plaintiff wont to the parlour of D.W. 2 Lal Mohan which was situate in a village different from that of the plaintiff. The arrangement that was made at the time of the talk regarding the sale does not fit in with the defence case that was sought to be made out later. D.W. 2 Lal Mohan was examined with the obvious object of proving the defence case that at the parlour of Lal Mohan the defendants paid the consideration money to the plaintiff. D.W. 2 Lal Mohan was examined with the obvious object of proving the defence case that at the parlour of Lal Mohan the defendants paid the consideration money to the plaintiff. In the circumstance aforesaid I agree with the learned Munsif that it is difficult to accept the defence case in this regard. Accordingly, no much importance may be attached to the deposition of D.W. 2 Lal Mohan, Further D.W. 2 Lal Mohan admitted chat he was an accused with Chaturanan who is defendant No. 1 and Benukar in a criminal case filed by some persons. It was suggested in course of cross-examination of this witness Lal Mohan that be was deposing falsely on behalf of the defendants as he was a co-accused with one of the defendants in criminal cases. 21. D.W. 3 Nanu Ghosh was also examined on behalf of the defendants with a view to proving the alleged payment of consideration money. This witness also admitted that one. Madhusudan Mondal filed a criminal case against him defendant No. 1 Chaturanan Benukar and Lal Mohan. This shows that D.W. 2 Lal Mahan and D.W. 3 Nanu Ghosh did belong to the camp of the defendants. They were accordingly highly interested witnesses In that view of the matter and in view of the further fact that there were material discrepancies in the statements of the witnesses examined on behalf of the defendants which were discussed at length by the learned Munsif it would not be safer to place any the least reliance on these witnesses. Said Benukar was examined as D.W. 4. He is related to defendant No.1 Chaturanan. He also admitted in course of cross-examination that some criminal cases were pending against him and that Lal Mohan and Chaturanan Were co-accused with him. Accordingly the learned Munsif was justified in not placing any reliance on D.W. 4 Benukar. Witness No. 5 on behalf of the defendants was the defendant No. 1 himself. For reasons already stated no reliance can be placed on this witness as well. 22. It is further significant to note that almost all the witnesses examined on behalf of the defendants stated that the plaintiff was a respectable man and that they had faith in him. For reasons already stated no reliance can be placed on this witness as well. 22. It is further significant to note that almost all the witnesses examined on behalf of the defendants stated that the plaintiff was a respectable man and that they had faith in him. Further, there was, in course of cross-examination of the plaintiff not even a suggestion to indicate that he had any reason whatsoever to institute a suit against the defendants making false allegations. The defendant No.2 stated that he was on good terms with the plaintiff and so did repose faith in him. D.W. 2 Lal Mohan stated that the plaintiff was a respectable man of the locality and had a good reputation in the society. D.W. 4 Benukar stated that the plaintiff was the President of the union and a respectable man of the locality and the witness and others had faith in him. Even D.W. 5 Chaturanan, the defendant No. 1, dated that the plaintiff was a man of reputation and a respectable man of the locality and that the witness was on good terms with him. In these circumstance the learned Munsif was wholly justified in believing the plaintiff and his witnesses and in placing no reliance on the witnesses examined on behalf of the defendants. 23, There is another important material emerging from the written statement and the evidence on record. Not long after the execution of kobala (Ext. A) the defendants sold the land in question to the daughter of Balaram who wall a bargadar in respect of that la an at a consideration of Rs. 600/- only. In course of cross-examination D.W.1 Manoranjan who is defendant No.2 stated that as Balaram was willing to purchase the said land in the name of his daughter the defendant did not approach any other person with a view to selling the said land He further stated that it was the defendants who made the proposal for the sale of the land for a consideration of Re. 600/• and the husband of Balaram's. daughter agreed to that proposal. 600/• and the husband of Balaram's. daughter agreed to that proposal. D.W. 5 Chaturanan defendent No. 1, on the other hand stated in course of cross-examination that he could not tell the name of those persons to whom the proposal for sale of the said land was made and that Balram on being asked to purchase the land agreed to purchase the said land at a consideration of 600/-. He further stated that he asked for the amount at which the defendant purchased the land but Balaram refused to purchase at that price. The statements of the defendant referred to above would show that they were highly discrepant. Further, if the defendants did purchase the land in question after having paid Rs. 1000/• by way of consideration there is no reason why they would sale the very same land within short time from the date of their Purchase at a much lesser price than what was paid by them. This was sought to explained by saying that they had to sell the land as Balaram the said Bargadar, refused to deliver possession. This is no convincing reason. Further it will appear from the deposition of the defence witnesses that the defendants knew of Balaram's possession before the time of their purchase. 24. In the circumstances aforesaid I cannot but agree with the learned Munsif that the original plaintiff succeeded in proving his case and the present plaintiffs are accordingly entitled to the relief asked for. 25. Accordingly I hold that the issue in question regarding non payment of consideration money by the defendants was wrongly determined by the Court of Appeal below. In view of the provisions of S. 103 of the Code of Civil Procedure this Court is competent to determine this issue particularly when this Court considers the materials and evidence on record sufficient to enable this Court to come to a determinate finding. 26. This appeal is accordingly allowed and the impugned judgment and decree are set aside and those passed by the learned Munsif are restored. In the circumstances or the case I make no order as to costs. Appeal allowed.