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Uttarakhand High Court · body

2011 DIGILAW 21 (UTT)

Raghuberi ‘deceased’ v. Ved Pal

2011-01-04

SUDHANSHU DHULIA

body2011
JUDGMENT Hon’ble Sudhanshu Dhulia, J. (oral) 1. Heard Sri Sharad Sharma, Senior Advocate assisted by Sri Kamlesh Lohani, Advocate for the defendants/appellants and Sri A.K. Sharma, Advocate for the plaintiffs/appellants. 2. This is defendants’ second appeal. The father of the plaintiffs/respondents had filed a suit for specific performance against the defendants/appellants praying that there is a registered agreement for sale between the parties dated 10.5.1978, by which an advance payment of ` 2700/- was given to the plaintiff by the defendant for sale of a certain property i.e. land. The sale deed was to be executed within a period of two years. The plaintiff was always ready and willing to execute the sale deed but since it was not done, the plaintiff filed a suit for specific performance. 3. The trial court came to the conclusion that although there is a registered agreement for sale between the parties dated 10.5.1978, it relied upon another unregistered agreement executed between the parties on the same day where it was agreed between the parties that in case within two years the remaining amount is returned by the defendant to the plaintiff, plaintiff will not press for execution of sale deed. The contention of the defendant, in other words, was that there actually no agreement for sale between the parties and the defendant had actually taken a loan of ` 7,700/- from the plaintiff and the agreement for sale was an additional protection given to the plaintiff by the defendant. It was also contended that plaintiff is a money lender, etc., etc. 4. The trial court did not find it a suitable case where a decree of specific performance was to be granted, and relying upon the unregistered deed stating that if Rs. 7,700/- has been returned by the defendant to the plaintiff, the sale deed will not be executed In other words, the specific conditions of a registered agreement are being changed by another document which is unregistered, though of the same date. 5. The appellate court framed an additional issue which is whether the plaintiff was ready and willing to execute the sale deed. While deciding the issue, the appellate court came to the conclusion that the plaintiff was ready and willing to execute the sale deed. Reliance on unregistered deed by the trial court was totally bad and hence the appellate court decreed the suit for specific performance. While deciding the issue, the appellate court came to the conclusion that the plaintiff was ready and willing to execute the sale deed. Reliance on unregistered deed by the trial court was totally bad and hence the appellate court decreed the suit for specific performance. Aggrieved, the defendants filed the present second appeal before the High Court of Judicature at Allahabad, where it was admitted on the following substantial question of law :- “Whether paper no. 12-ka-1 (Ex. A-1) being not a document which purported to create or extinguish title in relation to a property, the view that since the aforesaid document was unregistered, it could not be taken into evidence, is at all sustainable in law?” 6. Counsel for the plaintiffs/respondents argues that no substantial question of law, as has been made in the second appeal and has raised his argument on this point. Counsel for the defendants/appellants has contested that the trial court has rightly relied upon unregistered document (Ex. A-1) and thus refused to grant decree of specific performance and at the same time the lower appellate court has wrongly relied upon the registered agreement for sale and has granted decree of specific performance. Counsel for the defendants/appellants relies upon Sections 91 and 92 of the Evidence Act, which are relevant for our purposes. Section 91 of the Evidence Act reads as follows : “91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document.- When the terms of a contract, or of a grant, or of any other 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 to 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 cases in which secondary evidence is admissible under the provisions hereinbefore contained. Exception 1. – When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved. Exception 2. – Wills [admitted to probate in [India]] may be proved by the probate. Explanation 1. Exception 1. – When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved. Exception 2. – Wills [admitted to probate in [India]] may be proved by the probate. Explanation 1. – This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document, and to cases in which they are contained in more documents than one. Explanation 2. - Where there are more originals than one, one original only need to be proved. Explanation 3. – The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact.” 7. Section 92 of the Evidence Act reads as follows : “92. Exclusion of evidence of oral agreement – When the terms of any such contract, grant or 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, no 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 terms : Proviso (1). – Any fact may be proved which would invalidate any 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. Proviso (2). – The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document. Proviso (3). – The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved. Proviso (4). In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document. Proviso (3). – The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved. Proviso (4). – The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents. Proviso (5). – Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved : Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract. Proviso (6). – Any fact may be proved which shows in what manner the language of a document is related to existing facts.” 8. Since the substantial question of law on which the second appeal has been admitted encompasses a narrow area, this Court will only take up this legal issue. The fact of the matter is that plain reading of Sections 91 and 92 clearly stipulates that once the contents of written document have been proved, as it has been proved in the present case in the form of registered agreement for sale dated 10.5.1978, nothing which is contrary to or varying to or adding or subtracting to this contract shall be taken into consideration by the court. The existence of any condition which is there in an unregistered document (Ex. A-1) stipulates that if the defendant returns the agreed amount i.e. Rs. 7,700/- within a period of 2 years, the plaintiff shall not press upon the execution of the sale deed, is a document which cannot be relied upon in view of the clear cut separate provision contained in the written agreement for sale which was registered. Any reliance on it will be in violation of Sections 91 and 92 of the Indian Evidence Act. Any reliance on it will be in violation of Sections 91 and 92 of the Indian Evidence Act. Therefore, it is the clear opinion of this Court that registered document for agreement for sale was misinterpreted and the reliance on the unregistered document (Ex. A-1) was clearly wrong. 9. The substantial question of law on which the second appeal was admitted is, therefore, answered in negative. The unregistered document (Ex. A-1) could not have been relied upon as a piece of evidence by the trial court. Second appeal, therefore, fails and is hereby dismissed. 10. No order as to costs.