Judgment : K. Sreedhar Rao, J. All the three appeals arise out of the four suits decided by a common judgment passed by the Civil Judge (Senior Division), Mangalore between the same parties and the same subject-matter. 2. The material facts disclose that Lucy Margaret Pareira (L.M. Pareira) plaintiff in O.S. No. 297 of 1996 is the owner of the suit property. One Mrs. Joyce Albuquerque-plaintiff in O.S. No.298 of 1996 is the fostered daughter of L.M. Periera and claims to have obtained a registered permanent lease deed dated 4-7-1992 from L.M. Periera in respect of suit property. One Mr. Cyprian Menezes and B. Sudhakar Shenoy-plaintiffs in O.S. No.115 of 1995 contend that L.M. Periera had executed agreement for sale dated 3-10-1991 in respect of suit property for a consideration of Rs. 12,00,000/-and that they have paid an advance of Rs. 6,65,000/-, hence filed a suit for specific performance. 3. Mrs. Joyce Albuquerque got herself impleaded as 2nd defendant in O.S. No. 115 of 1995 and resisted the suit for specific performance on the ground that she holds a registered permanent lease from L.M. Periera besides. she had filed O.S. No. 121 of 1997 and O.S. No. 670 of 1994 for permanent injunction not to disturb their possession and enjoyment of the suit property. 4. In the course of discussion the plaintiffs in O.S. No. 115 of 1995 would be referred to as plaintiffs, the L.M. Periera (plaintiff in O.S. No. 296 of 1996) would be referred to as defendant 1 and Mrs. Joyce Albuquerque (plaintiff in O.S. No. 121 of 1997) would be referred to as defendant 2 for convenience. 5. L.M. Periera died during the pendency of the appeals. Hence, R.F.A. No. 605 of 2000 filed by LMP is closed as abated. Only the three appeals would remain for consideration. 6. At the earliest, the defendant 2 filed a suit for permanent injunction in O.S. No. 670 of 1994 against the L.M. Periera and others for permanent injunction on the basis of the registered permanent lease deed dated 4-7-1992. The defendant 1 seriously disputed the execution of the permanent lease deed. The defendant 2 later on filed O.S. No. 121 of 1997 against the plaintiffs and two others for permanent injunction. 7. The defendant 1 (L.M. Periera) filed C.S. No. 297 of 1996 for a declaration that the registered permanent lease deed Ex. The defendant 1 seriously disputed the execution of the permanent lease deed. The defendant 2 later on filed O.S. No. 121 of 1997 against the plaintiffs and two others for permanent injunction. 7. The defendant 1 (L.M. Periera) filed C.S. No. 297 of 1996 for a declaration that the registered permanent lease deed Ex. D. 1 dated 4-7-1992 as null and void. It is stated that the defendant 2 under misrepresentation and suppression of facts has obtained Ex. D. 1. It is stated that the consideration amount of Rs. 20,000/-in Ex. D. 1 is neither paid nor received. 8. The plaintiffs filed a suit in O.S. No. 115 of 1995 seeking specific performance of contract of agreement for sale marked at Ex. P. 1 dated 3-10-1991 executed by defendant 1. The defendant 2 got impleaded and in the written statement contends that the defendant 1 has executed permanent registered lease deed in her favour and that suit for specific performance is bad in law, the agreement at Ex. P. 1 is concocted. 9. The Trial Court decreed the suit of the defendant 1 in O.S. No. 297 of 1996 and held that the perpetual lease deed-Ex. D. 1 is void and directed the cancellation of the document. The O.S. No. 115 of 1995 of the plaintiffs for specific performance is decreed directing the defendant 1 to execute the registered sale deed by receiving the balance sale consideration. The suits for permanent injunction filed by the defendant 2 in O.S. No. 121 of 1997 and O.S. No. 670 of 1994 (renumbered as O.S. No. 298 of 1996) are dismissed. The defendant 1 after the disposal of the suits has executed a registered sale deed in favour of the plaintiffs. 10. The defendant 2 has filed the above appeals aggrieved by the judgment and decrees granted by the Trial Court. 11. Upon hearing, the Counsel the following points would arise for consideration. .(1) Whether the permanent lease deed-Ex. D. 1 is in fact a permanent lease in law, otherwise what is it’s effect? .(2) Whether there is no passing of consideration for executing the permanent lease deed-Ex. D. 1? If so whether the document is void? .(3) Whether Ex. D. 1 was concocted by defendant 1 and defendant 2 to defeat the rights of plaintiffs under Ex. P. 1? .(2) Whether there is no passing of consideration for executing the permanent lease deed-Ex. D. 1? If so whether the document is void? .(3) Whether Ex. D. 1 was concocted by defendant 1 and defendant 2 to defeat the rights of plaintiffs under Ex. P. 1? .(4) Whether the plaintiffs were in possession pursuant to the agreement of sale at Ex. P. 1 or the defendant 2 was in possession pursuant to Ex. D. 1? 12. Sri Tarakaram, Senior Counsel appearing for one of the plaintiffs submitted the following grounds to resist the appeals and to support the judgment and decrees of the Trial Court. .(i) The defendant 2 has not produced the original of Ex. D. 1. The plaintiff has produced the certified copy of the perpetual lease deed at Ex. D. 1 and it is not confronted to defendant 1 in the evidence. Mere marking of certified copy does not prove the contents and its execution. No evidence is let-in to permit production of secondary evidence. Hence, Ex. D. 1 is inadmissible. .(ii) The defendant 2 has admitted in her evidence that during the year 1992 she was staying with her husband at Kuwait. Her husband was unemployed and ailing. Whatever the salary she was earning at Kuwait was spent for maintenance of the family and to the medical needs of her husband. The evidence clearly suggests that she had no money to pay the consideration mentioned in Ex. D. 1. (iii) The recitals in Ex. D. 1 regarding payment of consideration is inconsistent and self-contradictory with para 1 of the covenant of the deed. It is mentioned that “in consideration of the premium amount of Rs. 20,000/-agreed to be paid by the lessee to the lessor”. The said words would suggest that the consideration amount was only agreed to be paid but not paid. The para 2 of the covenant declares that “the lessee has already paid to the lessor a sum of Rs. 20,000/-“. In the evidence, 2nd defendant states that the consideration amount was paid on the date of Ex. D. 1 in the Sub-Registrar’s office. There are inconsistent versions with regard to the time and place of payment of consideration. Hence, the consideration amount is not paid under Ex. D. 1. That apart, the transaction in Ex. D. 1 is not acted upon and possession was never delivered to defendant 2. (iv) Ex. D. 1 in the Sub-Registrar’s office. There are inconsistent versions with regard to the time and place of payment of consideration. Hence, the consideration amount is not paid under Ex. D. 1. That apart, the transaction in Ex. D. 1 is not acted upon and possession was never delivered to defendant 2. (iv) Ex. P. 1 and the oral evidence of plaintiffs clinchingly establish the execution of agreement for sale and receipt of part consideration of Rs. 6,60,000/-. The recitals of Ex. P. 1 further disclose that the possession was delivered to the plaintiffs on 28-4-1992 upon payment of half of the consideration. Therefore, the sale deed executed in favour of plaintiffs pursuant to the decree is sound and proper. 13. Sri I. Taranth Poojari, appearing for one of the plaintiffs adopted the arguments of Sri Tarakaram, Senior Counsel and submitted the further additional grounds to support the judgment and decrees: .(i) The defendant 2 is not in possession of the suit property at any time. Admittedly, properties are in possession of the tenants who are not examined. The total extent of area is 0027.85 cents. The 2nd defendant admittedly has put up construction in the suit vacant area to an extent of 4 cents. The evidence does not disclose that the 2nd defendant is in effective or constructive possession of the entire suit property. .(ii) The defendant 1 pursuant to the specific performance has executed registered sale deed. Therefore, the plaintiffs have become absolute owners of the property. (iii) The defendant 2 has not proved the capacity to pay the consideration under Ex. D. 1. .(iv) The defendant 2 had really bona fide desire to reside in the suit property, she should have chosen to stay in the suit property instead she is staying at different places. .(v) The evidence of defendant 1 discloses that she was in occupation of the suit premises till her death. Other portions were tenanted by the defendant 1. The defendant 1 never parted with the possession with defendant 2. The defendant 2 has not examined the tenants in occupation to prove that she received the rents from the tenants to prove her constructive possession. (vi) The material witnesses viz., attesting witnesses to Ex. D. 1, tenants and husband of defendant 2 who is said to be present at the time of Ex. D. 1 are not examined. 14. The defendant 2 has not examined the tenants in occupation to prove that she received the rents from the tenants to prove her constructive possession. (vi) The material witnesses viz., attesting witnesses to Ex. D. 1, tenants and husband of defendant 2 who is said to be present at the time of Ex. D. 1 are not examined. 14. Sri V.K. Bhat, Counsel for the appellants (defendant 2) per contra, argued that the terms of Ex. D. 1-acknowledged the receipt of lease amount. It is impermissible for the executants to contradict the terms of a written document. In the alternative relied on the decision of this Court in Dr. Jacob Lazarus Chelly v Dokka Samuel (1995(5)Kar. L.J.692), to contend that when a property is transferred by registered deed notwithstanding the fact that the consideration amount is not paid, the title would pass in favour of transferee. The right of transferor in such a situation would be only to file a suit for recovery of consideration amount. 15. The Ex. D. 1 describes the transaction as a permanent lease. The consideration is described as premium. The para 2 of the documents states that premium amount has already been paid and that the defendant 1 acknowledge the receipt. Para 5 of the document reads thus: ‘The lessee shall be entitled to alienate by way of sale, mortgage, lessee or exchange the schedule property either wholly or in portions and in such manner as the lessee thinks fit and proper and on such terms in favour of such persons as the lessee thinks fit’. 16. The terms of the document on its close reading disclose that the terms stipulated are incompatible with the terms of lease. The contents of para 5 accords unfettered rights to alienate the property by way of sale, mortgage, lease, exchange etc. The wholesome reading of Ex. D. 1 suggests that the transaction is nothing short of a sale. 17. With regard to the financial capacity the defendant 2 has produced the bank extract of Union Bank, Managalore, account No. 1490 at Ex. D. 3. It is a joint account of defendant 2 and one Mrs. T.V. Miranda, sister of defendant 2. The account extract shows that the defendant 2 had drawn a sum of Rs. 30, 000/-on 27-6-1992, a week before the transaction. The said material clinchingly establishes her financial capacity to pay the consideration amount. D. 3. It is a joint account of defendant 2 and one Mrs. T.V. Miranda, sister of defendant 2. The account extract shows that the defendant 2 had drawn a sum of Rs. 30, 000/-on 27-6-1992, a week before the transaction. The said material clinchingly establishes her financial capacity to pay the consideration amount. On over all consideration of the material it is established that the consideration amount is paid even otherwise, Section 91 of the Indian Evidence Act, 1872 does not permit to contradict the written terms of Ex. D. 1. The decision of this Court lays down that in a situation where consideration is not paid and legal transfer is not effected by registered document the remedy for the transferor is to recover the consideration amount and that the transaction would not become void for want of consideration. 18. It is seriously argued by the Counsel for the plaintiffs that original of Ex. D. 1 is not produced and not confronted in evidence to the defendant 1. There is no evidence is let-in for production of secondary evidence, hence, Ex. D. 1 is inadmissible. We are unable to agree with discloses that the defendant 2 had come over from Kuwait to Mangalore, couple of days before executing Ex. D. 1 and it was executed on 4-7-1992. The defendant 2 stayed for two days at Mangalore and returned to Bombay. The defendant 1 admits that she collected the original of Ex. D. 1 from the office of Sub-Registrar. There is no evidence to show that the defendant 1 delivered the original of Ex. D. 1 to the defendant 2 at any point of time. The admitted evidence discloses that the original of Ex. D. 1 is with the defendant 1. That apart, the averments in the plaint and prayer in the suit does admit execution of Ex. D. 1. When the document in question is admitted, the question of producing the original or secondary evidence will be of little consequence in law. Therefore, it cannot be argued that Ex. D. 1 is inadmissible in law and that the claim of defendant 2 should fail only on the ground of non-production of original. 19. With regard to the delivery of possession, the defendant 1 takes a very strange attitude. She denies the execution of agreement for sale at Ex. P. 1 and also denies execution of Ex. D. 1. D. 1 is inadmissible in law and that the claim of defendant 2 should fail only on the ground of non-production of original. 19. With regard to the delivery of possession, the defendant 1 takes a very strange attitude. She denies the execution of agreement for sale at Ex. P. 1 and also denies execution of Ex. D. 1. The terms of Ex. P. 1 further recite that upon payment of value of half the consideration, the possession was delivered in favour of the plaintiffs on 28-4-1992. The plaintiff 2 is examined as P.W. 1. His evidence discloses that after executing Ex. P. 1 and payment of consideration amount he never interacted with the tenants in occupation and never collected the rents from the tenants at any time. This evidence would clinchingly disclose that there was no attornment of tenancy in favour of the plaintiffs. Neither physical nor constructive possession was delivered to them. Whatever the recital in Ex. P. 1 regarding delivery of possession is only a paper delivery and not an actual or constructive delivery. 20. The Trial Court has framed issue No. 7 to the effect that ‘Whether 2nd defendant is bona fide transferee under Ex. D. 1?’. The plaintiffs have miserably failed to prove the actual or constructive possession. It may be that Ex. P. 1 is earlier in point of time to Ex. D. 1. The evidence of P.W. 1 clearly suggests that the constructive (possession was not delivered and that there was no attornment of tenancy. P.W. 1 did not even discuss or inform the tenants in occupation about the agreement of Ex. P. 1. The plaintiffs have not produced any material to show that the defendant 2 had notice or knowledge of Ex. P. 1. On the other hand, the defendant 2 has categorically pleaded and adduced in evidence that she had no knowledge of P.W. 1 and it is concocted. The defendant 2 has also stated in evidence that she is collecting rents from the tenants. May be tenants are not examined. The non-examination may not be of adverse consequence to the case of defendant 2. In fact, the transaction under Ex. D. 1 is very much a sale. It is salutary principle in law that the possession would follow title in the absence of credible evidence regarding possession. May be tenants are not examined. The non-examination may not be of adverse consequence to the case of defendant 2. In fact, the transaction under Ex. D. 1 is very much a sale. It is salutary principle in law that the possession would follow title in the absence of credible evidence regarding possession. In that view it is to be held that the 2nd defendant is a bona fide purchaser and in possession. 21. It is the contention of the defendant 1 that she never had an intention to execute the permanent lease as per Ex. D. 1. She was an old lady and was taken to Sub-Registrar office by the defendant 2 and her husband under pretext of executing the rent deed. Without disclosing the contents of Ex. D. 1, the signature of defendant 1 was taken. The version of the defendant 1 is contradictory, she admits that she is literate lady and was in a sound mind with good health on the date of Ex. D. 1. She was able to read and write English language. She admits that she had taken the original of the document from the Sub-Registrar’s office. The defendant 1 should have come to know about the nature of the document at least when she took the original of Ex. D. 1 couple of days after its execution. If really misrepresentation and exercise of undue influence, the defendant 1 should have taken legal steps immediately and not waited for about 4 years to file a suit. The Trial Court has totally misread the evidence, therefore come to the wrong conclusion that Ex. D. 1 is void. 22. In view of the aforesaid reasons, we hold that the defendant 2 is a bona fide transferee under Ex. D. 1, under that Ex. D. 1 is a sale transaction conveying absolute title in the property in favour of defendant 2. The plaintiffs have failed to prove that Ex. D. 1 is a concocted and that defendant 2 is not a bona fide purchaser. The plaintiffs have failed to prove their possession as per the terms of Ex. P. 1. On the other hand, the defendant 2 has proved the possession. 23. The judgment and decree passed in favour of the plaintiffs by the Trial Court in O.S. No. 115 of 1995 granting the relief of specific performance is set aside. Appeal is allowed. The plaintiffs have failed to prove their possession as per the terms of Ex. P. 1. On the other hand, the defendant 2 has proved the possession. 23. The judgment and decree passed in favour of the plaintiffs by the Trial Court in O.S. No. 115 of 1995 granting the relief of specific performance is set aside. Appeal is allowed. Suit is dismissed, the sale deed effected by defendant 1 in favour of plaintiffs subsequent to the decree of the Trial Court is declared as null and void. 24. The judgment and decree passed in favour of the plaintiffs in O.S. No. 297 of 1996 is set aside. The suit is dismissed. 25. The judgment of the decree of the Trial Court in O.S. No. 121 of 1997 is set aside. The appeal and the suit is allowed. 26. The plaintiffs however entitled to a decree for refund of sale consideration paid under Ex. P. 1 with interest at 6% p.a. from the date of suit till payment to be recovered from the estate of the defendant 1. Accordingly appeals are disposed of in the terms as indicated above.