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2011 DIGILAW 972 (KER)

C. v. Suresh VS Tobin (Minor)

2011-09-05

K.HEMA

body2011
JUDGMENT : K. Hema, J. - If payment of price for sale is disputed, can such fact be proved by mere production and marking of a registered sale deed? Is it necessary to adduce oral evidence to prove such fact? Is there any bar under Section 91 or, Section 92 of Indian Evidence Act, 1872 ('Evidence Act', for short) to adduce oral evidence to prove payment of price for sale or existences of sale of property? 2. Can a fact stated or narrated in a document to proved by mere production and marking of the document? If necessary to adduce oral evidence to prove such fact? what is meant by "contents of documents" for the purpose of section 59, 61 and 62 of Evidence Act? Is there any difference between "contents of documents" and "facts" stated in the document? These are some of the substantial questions of law to be considered in this second appeal. 3. Facts briefly: The sole defendant is the appellant in this appeal. As per the averments in the plaint, he sold plaint schedule property in favour of first plaintiff (who is his sister's son and a minor) vide Ext.A 1-registered sale-deed. Thereafter, first plaintiff and second plaintiff (minor's father) are in possession of plaint schedule property, which is having an extent of 5 cents of property. The defendant, however, started interfering in plaintiffs' peaceful enjoyment of the property and hence, the suit was filed for permanent prohibitory injunction from trespass, obstruction to enjoyment of the property etc. (The suit is filed by PW-1, who is the mother of first plaintiff). 4. The defendant filed written statement and admitted execution of Ext.A-l, but, according to him, Ext.A-1 is not a sale deed. No sale consideration was paid for the alleged sale. Ext.A-1 is only a gift deed, which was later revoked as per Ext.A3-cancellation deed, after issuing sufficient notice to first plaintiff. There is no attesting witnesses to Ext.A-1. It was executed at the request of his sister (PW 1). Even if Ext.A-1 is construed as "gift deed", it is invalid since it contravenes Sections 123, 59 and 3 of Transfer of Property Act ('the T.P. Act' for short) and Section 16 of the Contract Act. The defendant is the absolute owner of the property and he is in possession of the property. He is paying basic tax for the property. 5. The defendant is the absolute owner of the property and he is in possession of the property. He is paying basic tax for the property. 5. The plaintiffs are not in possession of the plaint schedule property. The property is not identifiable either by description in the schedule in Ext.A-1 or in the plaint. It is a part of an extent of property consisting of 49 cents of land. After filing the written statement, plaint was amended, inter alia, stating that since the transaction is only a sale, it cannot be revoked as per Ext.A-3. After execution of sale deed-Ext.A-1, defendant has no right over the property. Ext.A-3 is null and void and not binding on the plaintiffs. Since Ext.A-3 would cast a cloud ontl title of first plaintiff over plaint schedule property, a declaration is sought for that Ext. A-1 is null and void. 6. The main issues framed by trial court are whether Ext.A-1 is a sale deed or a gift deed and whether first plaintiff obtained title over plaint schedule property by virtue of Ext.A-l. Both the courts below interpreted the recitals in Ext.A-l (mainly a particular vernacular expression contained in the said document) and concurrently held that Ext.A-1 is a sale deed. It was also held that sale consideration was fixed at Rs. 12,000/- and that it was 'paid' to defendant; 'received' by him, but he 'gave up' the amount. 7. The trial court also held that since Ext.A-l is a sale-deed, execution of Ext.A3- cancellation deed executed by defendant is of no consequence. On the above findings, a decree was granted by Munsiff Court, declaring that Ext.A-3 is null and void and not binding on the first plaintiff or his right over the plaint schedule property. A decree of permanent prohibitory injunction was also granted against trespass etc., as prayed for. The said decree and judgment were confirmed in appeal by the District Court and those are challenged in this second appeal. 8. Heard both sides. Perused the records. The following substantial questions of law were framed in this second appeal, with notice to both sides and both of them were heard: (1) Can this court interfere in the concurrent findings of facts on question of title, in a second appeal? 8. Heard both sides. Perused the records. The following substantial questions of law were framed in this second appeal, with notice to both sides and both of them were heard: (1) Can this court interfere in the concurrent findings of facts on question of title, in a second appeal? (2) If payment of price for the alleged sale is disputed, can it be proved by mere production and marking of the registered sale-deed and by merely interpreting the recitals therein ? (3) Is there any bar under Section 91 or Section 92 of Evidence Act to adduce oral evidence to prove payment of price for sale or existence of sale of property? (4) What is meant by "contents of documents", for the purpose of Sections 59 and 61 of Evidence Act? (5) Can the "facts" stated/narrated in a document be treated as "contents of document" and can such "facts" be proved by mere production and marking of such document? (6) Is oral evidence necessary to prove the facts stated in a document? 9. Question No.1: The maintainability of this appeal itself is under challenge. Learned counsel for respondents vehemently argued that there are concurrent findings by the courts below that Ext.A-1 is a sale deed and hence, question of title cannot be re-opened or set aside in this second appeal. He cited a decision of the Supreme Court in Vidhyadhar v. Manik Rao, (1999) 3 SCC 573 , in support of his argument. The relevant portion from the above decision is extracted hereunder: "23. The findings of fact concurrently recorded by the trial court as also by the lower appellate court could not have been legally upset by the High court in a second appeal under Section 100 Civil Procedure Code unless it was shown that the findings were perverse, being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion. 24.xxxxxx 25.xxxxxx 26. 24.xxxxxx 25.xxxxxx 26. In the face of the findings recorded by the trial court as also by the lower appellate court on the question of execution of sale deed by 2nd defendant in favour of the plaintiff with the further finding that it was a valid sale-deed which properly conveyed the title of the property in question to the plaintiff, it was not expected of the High Court to set aside those findings merely on the ground that the circumstances which had already been considered by the lower courts appeared to suggest some other conclusion from proved facts". 10. Learned counsel for appellants, however, argued that since a question of interpretation of a document is involved in this case which by itself is a substantial question of law and hence, the second appeal is maintainable under Section 100 of the Code of Civil Procedure ('CPC' for short). According to him, both the courts below went wrong in interpreting a vernacular expression in Ext.A-1, without looking into the intention of the parties to hold that there was sale. Therefore, the concurrent findings require interference in this second appeal, it is argued. 11. On hearing both sides and also on a reading of the decision referred above, I find that there can be no blanket ban for interfering with concurrent findings of question of title in a second appeal. If such findings are perverse, being based on no evidence, this Court can certainly intervene. Further, in my considered opinion, if the subordinate courts enter any finding on disputed question of facts, by merely interpreting contents of document, in the absence of oral evidence on such fact, this Court can certainly intervene such findings in a second appeal. 12. In this case, both the courts below relied solely upon the recitals contained in the purported sale-deed and interpreted the same to enter concurrent findings on disputed question of tile. This was done in the absence of any oral evidence to prove that there there was payment of price for the alleged sale. The court proceeded as though the recitals in Ext.A-1 amount to substantive evidence for proof of payment of price for sale. This is illegal (further details will be discussed in detail in the appropriate context). Hence, this second appeal is perfectly maintainable. 13. Question Nos. The court proceeded as though the recitals in Ext.A-1 amount to substantive evidence for proof of payment of price for sale. This is illegal (further details will be discussed in detail in the appropriate context). Hence, this second appeal is perfectly maintainable. 13. Question Nos. 2 to 6: The main controversy in the suit is relating to payment of price for the alleged sale. The appellant raised a contention that there was no payment of any money to him for the alleged sale covered by Ext.A-1, a registered sale deed and hence, there was no sale at all as per Ext.A-1. The respondents took up a contention that Rs. 12,000/- was paid as sale consideration and this fact is revealed from Ext.A I itself. There can be no doubt that in the light of the above controversy, first plaintiff/first respondent must prove that there was payment of price for the sale, if he has to succeed in the suit. The burden is upon the first plaintiff/first respondent to prove there was payment of price for the alleged sale. 14. According to learned counsel for respondents, the registered sale deed itself is produced and marked in the suit as Ext.A-1 and appellant has admitted its execution also. Therefore, the contents of Ext.A-1 will amply prove that Rs. 12,000/- was paid as sale consideration and hence, the burden of proof is discharged by respondents. Admittedly, no oral evidence was adduced by respondents to prove that there was payment of price for the alleged sale. The respondents have no case that direct oral evidence is not available to prove such fact. But, it is strongly contended that the recitals in Ext.A-1 would suffice to prove the disputed fact. 15. It is not very unusual to find such arguments being raised in courts. In many cases, mere production of a registered sale-deed is taken as sufficient to prove the disputed facts stated in the recitals, if execution of document is admitted. It is also very common to find the courts resolving a crucial factual dispute, solely based on the recitals in a registered sale-deed and by interpreting the same, even if the facts stated therein are disputed. In cases in which execution of document is admitted, subordinate courts mostly proceed on an assumption that all the facts stated in the document stand proved, even if those facts are disputed. In cases in which execution of document is admitted, subordinate courts mostly proceed on an assumption that all the facts stated in the document stand proved, even if those facts are disputed. Such a course was adopted by the lower courts in this case also. 16. In such circumstances, the main substantial question of law arising for consideration in this case is whether the recitals in a document like Ext.A-1 -registered sale deed alone will prove that there was payment of price for the sale, especially in the absence of any oral evidence to prove alleged payment of price. To answer this question, it is necessary to understand first, what is meant by "fact". "Fact" is defined in Section 3 of the Indian Evidence Act, 1872 ('Evidence Act' for short) as follows: "Fact".- "Fact" means and includes :- (1) any thing, state of things, or relation of things, capable of being perceived by the senses; (2) any mental condition of which any person is conscious. Illustrations (a) xxxxx. (b) That a man heard or saw something, is a fact. (c) That a man said certain words, is a fact. (d)xxxxxxxxx (e)xxxxxxxxx 17. "Fact", as per Section 3 of Evidence Act, means and includes, any "thing" which is capable of being perceived by the senses. That a man said certain words, is a fact; that a man heard or saw something, is a fact; that a person did some thing, is also a fact, since all such things can be perceived by the senses. Therefore, `A' paid price to `B' for the sale is also a "thing" which is capable of being perceived by the senses and hence, it is a "fact", going by definition of"fact" in Section 3 of Evidence Act. 18. So, the next question is, how can a "fact" be proved as per Evidence Act? Section 59 of Evidence Act lays down how a "fact" can be proved, Section 59 reads as follows: "59. Proof of facts by oral evidence.- All facts, except the contents of documents or electronic records, may be proved by oral evidence". 19. So, how can "contents of documents" be proved, as per Evidence Act? Section 61 of Evidence Act lays down how "contents of documents" can be proved. Section 61 reads as follows: "61. Proof of contents of documents.- The contents of documents may be proved either by primary or by secondary evidence". 19. So, how can "contents of documents" be proved, as per Evidence Act? Section 61 of Evidence Act lays down how "contents of documents" can be proved. Section 61 reads as follows: "61. Proof of contents of documents.- The contents of documents may be proved either by primary or by secondary evidence". 20. What is meant by "primary evidence" is stated in Section 62 of Evidence Act? The said provision (excluding portions which are not relevant for disposal of this appeal) is extracted hereunder: "62. Primary evidence.- Primary evidence means the document itself produced for the inspection of the Court." 21. Thus, "contents of documents" cannot be proved by oral evidence, by virtue of Section 59 of Evidence Act. All facts, except "contents of documents" may be proved by oral evidence, it is laid down in Section 59. As per Section 61 of Evidence Act, "contents of documents" can be proved either by primary or by secondary evidence. As per Section 62, "primary evidence" means the document itself produced for the inspection of the Court. Therefore, a joint reading of Sections 59, 61 and 62 of Evidence Act reveals that "contents of documents" can be proved by production of the document itself for the inspection of the court or by secondary evidence. But, what is meant by the expression, "contents of documents"? 22. I could not come across with any precedents laying down the meaning of "contents of documents". The expression, "contents of documents" is not defined in Evidence Act. "Contents" as per 'Oxford Advanced Learner's Dictionary' (7th Edition) means, "the things that are contained in something: for example, contents of a box, contents of a book, stomach etc. The word. "content", usually is used in plural. If a box contains chocolates, books and pencils, those are its contents". Hence, contents of a document means ail the things which are contained in the document. 23. What is meant by a "document"? "Document", as per Section 3 of Evidence Act, means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used or which may be used, for the purpose of recording that matter. 23. What is meant by a "document"? "Document", as per Section 3 of Evidence Act, means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used or which may be used, for the purpose of recording that matter. As per the illustrations, a writing is a document; words printed, lithographed or photographed are documents; a map or plan is a document; an inscription on a metal plate or stone is a document; a caricature is a document, etc. 24. A document may, thus, contain several "things", such as writing, figures, marks, print, inscription, etc. It may also contain various other things than mere writing. Therefore, all the things as may be contained in the "document", as defined under Section 3 of Evidence Act, constitute "contents of a document". That a document contains a particular writing; that it contains a type-written matter or a particular handwriting, a writing in ink, an erasure, interpolation, painting, fold, etc. constitute "contents of documents". 25. "Contents of a documents" itself is treated as a "fact", as per Section 59 of Evidence Act. This is clear from the expression "all facts except contents of documents" (All flowers in the basket except lily are red means lily is also a flower). So, contents of a document itself is a "fact" and it is so treated by the legislature, for the purpose of Evidence Act. Therefore, all the "things" that can be perceived by the senses on inspection of a document can be said to be "contents of the document". Whatever is seen or can be read from a document or perceived by any other senses on an inspection of the document by the court can be said to be the "contents of a document", for the purpose of Sections 59 and 61 read with Section 62 of Evidence Act. 26. If, on perusal or inspection of a document, it is found to contain a writing, figures, marks, print, inscription, signature, painting and date, those things are its contents. If there is an interpolation, smuggling, folding or, erasure in the document, those are also its contents. If it contains a printed matter, a handwriting or type-writing, all those things are "contents of documents" because all those things contained in the document are visible on an inspection of document by court. 27. If there is an interpolation, smuggling, folding or, erasure in the document, those are also its contents. If it contains a printed matter, a handwriting or type-writing, all those things are "contents of documents" because all those things contained in the document are visible on an inspection of document by court. 27. However, if a "fact" which falls under Section 3 of Evidence Act is written in a document, such "fact" incorporated in the document can be treated only as a 'statement of fact' relating to such "fact". Such a 'statement of fact' may be treated as one of the "contents of document" but, the "fact" written in the document as such, will not constitute "contents of document". This is for the reason that on an inspection of the document by court, the court can only see that the document contains a 'statement of fact' referring to a "fact" but, it cannot see or perceive by any sense truth or existence of the said "fact" written in the document. 28. Thus, there is a clear distinction between "contents of documents" and the "facts" stated or narrated in the document. An example will make this position clearer. If it is stated/written in a document that "A gave a flower to B"; "the flower has a sweet fragrance and it is white in colour" or "C killed D", such writing is only a statement contained in the document referring to such facts. On production of such a document, it can be said that the document contains a "statement of facts" to the effect that "A gave a flower to B" etc. But, on mere inspection of such a document, the court cannot perceive by any sense whether actually `C' killed `D'; whether `A' gave a flower to `B'; whether the flower was white in colour or it had any a sweet fragrance or not. 29. That "A gave a flower to B"; "the flower has a sweet fragrance and "it is white in colour" and "C killed D" are things which, by themselves, are perceivable by the senses. Those are not things which can be seen or smelt on a mere inspection of the document or reading of the same. Those are things which might have occurred elsewhere, on a particular date, time and place other than date and place of preparation of the document. Those are not things which can be seen or smelt on a mere inspection of the document or reading of the same. Those are things which might have occurred elsewhere, on a particular date, time and place other than date and place of preparation of the document. Therefore, a mere production of document will not prove existence of the "facts" stated in the document, even though it will prove that the document contains 'statement of fact' referring to such fact or facts. 30. If "facts" as defined under Section 3 are stated or narrated in a document, production of document may prove that the document contains a "statement of facts" relating to such "facts". But, it will not prove whether the "facts" stated or narrated therein exist or are true. Such "facts" will not stand proved by mere production of the document, since they do not constitute "contents of document". By virtue of Section 59 of Evidence Act, such facts have to be proved by oral evidence itself. 31. From the above discussion, it will be clear that if a buyer pays price for the sale to the seller and such fact is stated in a document (whether it be in a letter or a registered document), it constitutes only a "statement of fact" incorporated in the document. By mere production of the document, all what may be proved is that the document contains a "statement of fact" that the buyer paid price for sale to the seller, but, whether such payment was actually made or not will not be proved by such production or marking. The fact that there was payment of price has to be proved by oral evidence, going by Sections 3 and 59 read with Sections 61 and 62 of Evidence Act. 32. Section 60 of Evidence Act lays down that oral evidence must be direct. Hence, if oral evidence is to be adduced to prove payment of price for the sale, it must be direct. If such direct oral evidence is adduced to prove such fact, any 'statement of facts' contained in a document relating to such fact can be relied upon to corroborate or contradict such oral evidence, as a former statement. Hence, if oral evidence is to be adduced to prove payment of price for the sale, it must be direct. If such direct oral evidence is adduced to prove such fact, any 'statement of facts' contained in a document relating to such fact can be relied upon to corroborate or contradict such oral evidence, as a former statement. But, in the absence of oral evidence, mere production of document which contains a narration of a past event will not suffice to prove the facts stated therein, in the light of Section 59 read with Sections 61 and 62 of Evidence Act. 33. Of course, if no direct oral evidence is available to prove a fact, circumstantial evidence can be adduced. Such circumstances sought to be proved may also constitute "facts" as defined in Section 3 and such facts have to be proved by oral evidence, as per Section 59 of Evidence Act. A document, if any, can be used to corroborate the version given by a witness. Even then, mere production of a document, in the absence of oral evidence, will not prove the facts stated in the document. 34. There is no presumption that all "facts" stated in a document are true or that they exist. Even if execution of the document is admitted by the executant, if he disputes the correctness, truth or existence of facts stated in the document and those are in issue, such facts will have to be proved, as per evidence which is admissible, in accordance with law. The mere admission of execution of a document may prove that such a document is executed but that will not further prove that the facts stated in the document exist or that those are true, especially if such facts are disputed and are in issue. 35. Therefore, if payment of price for the sale is disputed and it is in issue, mere admission of execution of a sale-deed which contains a narration of a past or future event of payment of price for the sale will not prove that there was payment. Such fact cannot be proved by mere production and marking of a sale-deed. The admission or even proof of execution of a document may only prove that it was created, prepared or caused to be prepared by the maker. Such fact cannot be proved by mere production and marking of a sale-deed. The admission or even proof of execution of a document may only prove that it was created, prepared or caused to be prepared by the maker. But, such admission will not further prove that the disputed facts stated in the document exist or those are true or correct. It has to be borne in mind that there are several instances wherein the facts written in a document turn out to be not true or correct or non-existent. 36. There is no provision of law which prohibits a person from disputing the correctness or truth of the facts stated in a document, even if he admits execution of a document. So, if existence or truth of the facts stated in a document is disputed, it to be proved by oral evidence of the person or persons who have perceived those facts by the senses and who can vouchsafe for the truth of such fact by virtue of Section 59 of Evidence Act. The truth or existence of the facts stated in a document cannot be proved by mere production or marking of the document by virtue of Section 3 read with Sections 59 to 62 of Evidence Act, especially if such facts are disputed and are in issue. 37. In the decision of the Supreme Court, reported in Ramji Dayawala & Sons (P) Ltd. v. Invest Import, (1981) 1 SCC 80 , reference is made to proof of facts stated in a document and it is dealt with therein. Though the meaning of "contents of documents" and other aspects which are considered by me in this judgment at length are not seen considered in the above decision, I gain support to the views expressed by me in this judgment from the dictum laid down in Ramji Dayawala. Hence, I quote the relevant portion from the above decision, which is as follows: "If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue" (emphasis supplied). The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue" (emphasis supplied). 38. Thus, it is clear that truth of the "facts" stated in a document will not be proved by mere production or marking of the document or even admission or proof of its execution. Such facts have to be proved by oral evidence of person or persons who can vouchsafe for the truth of the facts which are in issue. The above decision in Ramji Dayawala is quoted with the approval in various other decisions of the Supreme Court to hold that the facts stated in a document will not be proved by mere production or marking of the document or admission of execution of the document. 39. It is also clear from a close reading of various decisions on the point that the "facts" stated in a document are treated differently from "contents of documents", though not in so many words. That is why it is well settled that mere production of a document will not prove its execution, even though a perusal of the document will reveal who signed it, on which date and place it was executed, etc. such facts cannot be concluded merely by a perusal of the document. Those facts have to be proved by examining person or persons who can give direct evidence on such facts. Therefore, the court shall not treat the facts stated in a document as substantive evidence. 40. Of course, if oral evidence is adduced on the disputed facts, the court may look into the recitals contained in the document also and interpret such recitals, to resolve the disputed fact. But, it must be borne in mind that such recitals are not substantive evidence relating to the disputed fact. The recitals relating to the disputed fact can be interpreted for the purpose of appreciating oral evidence on the disputed fact, but not by treating such I recitals as substantive evidence. 41. It shall not be legal for the court to rely solely upon the recitals in the document as substantive evidence to decide whether the disputed fact exists or is proved or not. 41. It shall not be legal for the court to rely solely upon the recitals in the document as substantive evidence to decide whether the disputed fact exists or is proved or not. The "facts" stated in the "contents of documents" do not constitute substantive evidence for proving existence of such facts and hence, the disputed facts cannot be resolved by merely interpreting the recitals in the document in the absence of oral evidence on such facts. 42. Now, coming to the facts of this case, it can be seen that appellant admitted that Ext.A-1, the purported registered sale-deed was executed by him. But, he contended that price was not paid to him for the alleged sale and there is no sale at all. According to respondents, sale consideration of Rs. 12,000/- was paid to appellant and it was "given up" by appellant and this fact is revealed from the recitals in Ext. A-l. 43. Admittedly, no oral evidence was adduced to prove that price was paid for the sale to appellant, even though such fact is disputed. Respondents have no case that such evidence is not available. PW-1 is first respondent's mother who allegedly paid the price to the appellant on behalf of first respondent who was a minor. She was examined in the suit but, she did not utter a word in her evidence that price was paid for the alleged sale or that it was accepted and given up etc. No other witness was also examined to prove payment of price for the sale. Thus, there is absolutely no oral evidence on record to prove that price was paid for the alleged sale. 44. But the court below held that sale consideration was "paid", "received" and "given up", by merely interpreting a vernacular, expression in the document and relying upon the contents of the sale-deed. The verbatim reproduction of the said vernacular expression contained in Ext.A-1 is "gave up-gave- received-satisfied". In my view, the above expression does not make any sense at all and such an expression alone is not sufficient to hold that price was paid for the sale, especially in the absence of oral evidence to prove such fact. 45. Therefore, courts below seriously erred in entering a finding on payment of price solely by merely interpreting the recitals in Ext.A-l, especially in the absence of oral evidence. 45. Therefore, courts below seriously erred in entering a finding on payment of price solely by merely interpreting the recitals in Ext.A-l, especially in the absence of oral evidence. The courts below proceeded as though the recitals in the sale deed constitute substantive evidence. The facts stated in Ext.A-l do not constitute substantive evidence,to prove that price was paid for the sale. In such circumstances, both the courts below committed a serious illegality in entering a finding that price was paid for the sale, solely based on the recitals in Ext.A-1. 46. It seems that both the courts below proceeded on an assumption that there is a bar under Sections 91 and 92 of Evidence Act to adduce oral evidence to prove the facts stated in Ext.A-1, which is a registered-deed. When a registered deed is produced and marked and if its execution is admitted, subordinate courts are seen very often proceeding under, an' impression that no oral evidence is permissible to prove the facts stated in the document. In my considered opinion, such impression is wrong and not consistent with the relevant provisions of law. Section 91 of Evidence Act (excluding portions which are not relevant in the present context) reads as follows: "Section 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 herein before contained., Exception 1.-xxxx Exception 2. -xxxx Explanation 1.-xxxx Explanation 2.-xxxx 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". 47. -xxxx Explanation 1.-xxxx Explanation 2.-xxxx 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". 47. Section 91 of Evidence Act lays down that 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 disposition of property, except the document itself, if terms of disposition of property have been reduced in the form of a document. On a first blush, therefore, the argument that no oral evidence can be produced to prove what is stated in a registered sale-deed may appear to be attractive. 48. But, a close reading of Section 91 of Evidence Act shows that admission of oral evidence relating to the statements made in a document is not precluded under all circumstances. It is specifically laid down in Explanation 3 to Section 91 that the statement, in any document whatever, of a fact other than the facts referred to in the above section, shall not preclude admission, of oral evidence as to the same fact. Therefore, there is no blanket ban to admit oral evidence under Section 91 of Evidence Act for proving any facts stated in a document other than those which are referred to in Section 91 of Evidence Act. 49. As per Section 91 of Evidence Act, no evidence shall be given in proof of"terms" of disposition of property or such matter, except the document itself, under certain circumstances. So, whatever restriction is contained in Section 91 for adducing oral evidence, it relates only to evidence in respect "terms" of disposition of property etc., or other matters stated in Section 91 (1). But, there is no bar under Section 91(1) of Evidence Act to adduce oral evidence to prove the very existence of disposition of property or sale. The restriction applies only to adduce oral evidence is in respect of the "terms" of disposition of property and not disposition of property itself. Only if there is disposition of property, there can be "terms" for such disposition or sale. 50. Section 54 of the Transfer of Property Act defines "sale", as a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Only if there is disposition of property, there can be "terms" for such disposition or sale. 50. Section 54 of the Transfer of Property Act defines "sale", as a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Therefore, in cases in which a claim is made that sale was effected in exchange of the price paid, payment of price is an inevitable requirement to constitute sale. If no such payment is proved, there will be no sale at all. if there is no sale, there can be no "terms" for sale. "Terms" of sale pre-supposes existence of sale. Therefore, payment of price for sale is not "terms" of sale, but it may be a legal requirement to constitute sale itself. 51. Section 91 precludes admission of oral evidence for proving only the "terms" disposition of property and hence, there is no bar to adduce oral evidence to prove existence of sale or disposition of property under Section 91 of Evidence Act. In cases in which existence of sale itself is under dispute, for want of payment of price, there is absolutely no bar under Section 91 of Evidence Act for admission of oral evidence to prove such facts. Section 91 does not preclude a party from adducing oral evidence to prove payment of price for sale or existence of sale. The restriction on admission of oral evidence under Section 91 of Evidence Act is for proving "terms" of contract, grant or other disposition of property or such matter and not any other fact. 52. Now, I shall consider scope of Section 92 of Evidence Act. The said provision (excluding portions which are not relevant in the present context), reads as follows: "92. 52. Now, I shall consider scope of Section 92 of Evidence Act. The said provision (excluding portions which are not relevant in the present context), 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 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).-xxxxxx Proviso (3).-xxxxx Proviso (4).-xxxxxx Proviso (5).-xxxxxx Proviso (6).-xxxxxxx". 53. Section 92 of Evidence Act lays down that when terms of disposition of property have been proved according to Section 91 of Evidence Act, no evidence of any oral statement shall be admitted, as between the parties to any such instrument for the purpose of contradicting, varying, adding to, or subtracting from, its terms. Therefore, Section 92 has no independent existence but it applies only to cases to which Section 91 applies. Section 92 was apply only to cases to which Section 91 applies and "terms" have been proved as stated in Section 91 of Evidence Act. 54. Therefore, in cases in which no sale exists for want of payment of price and consequently, there arises no proof of "terms" of sale as stated in Section 91(l), prohibition under Section 92 of Evidence Act whatsoever will not apply. If sale of property itself is under dispute for want of payment of price, there is no bar either under Section 91 or Section 92 of Evidence Act, to adduce oral evidence to prove such disputed fact. In short, to prove payment of price for the sale air existence of sale under Section 54 of Transfer of Property Act, there is no bar for adducing oral evidence either under Section 91 or Section 92 of Evidence Act. 55. In short, to prove payment of price for the sale air existence of sale under Section 54 of Transfer of Property Act, there is no bar for adducing oral evidence either under Section 91 or Section 92 of Evidence Act. 55. The scope of Section 92 of Evidence Act was considered by this Court from another angle as seen from Thomman v. Taluk Land Board, Mukundapuram, 1976 KLT 840 . It is held therein as follows: "The position is thus clear that evidence of non-payment of consideration under a deed which is ostensibly a sale-deed is not prohibited and it is not evidence of any oral agreement for the purpose of contradicting, varying or substracting from its terms such as is tabooed by Section 92, Evidence Act (assuming recital of consideration is a term of the contract or disposition of property). And where there is no proof of payment of price it will not operate as a sale-deed". 56. A Division Bench of this Court in Mathew v. Lakshmanan, 1990 (2) KLT 446 , held as follows: "Consideration for the contract not being a term of the contract, it is open to the vendor to lead oral evidence to the effect that no consideration or only part thereof was actually received, notwithstanding recitals in the contract. It will therefore be competent to a party to a contract to adduce evidence to prove want or failure of consideration. Want or failure of consideration invalidates the document, so that the terms of the above proviso automatically applies". 57. In Ambikakuniari v. Ramakrishnan, 1991 (2) KLT 728 , however, a different note was struck. It is held by a learned single judge of this Court that "consideration is a term of the contract". But, it is contrary to the dictum laid down by the Division Bench of this Court in Mathew's case referred above, wherein there is a clear and unambiguous pronouncement that "consideration for the contract not being a term of the contract, it is open to the vendor to lead oral evidence to the effect that no consideration" or only part thereof was actually received. The earlier decision in Thomman's case was followed by the Division Bench in Mathew's case. 58. The earlier decision in Thomman's case was followed by the Division Bench in Mathew's case. 58. Therefore, in the light of the dictum laid down by the Division Bench in Mathew's case, the pronouncement in Ambikakumari's case that "consideration is a term of the contract" is not good law. It is also relevant to mention here that in Ambikakumari's case itself in paragraph 6 of the judgment it is held that the bar for giving oral evidence to varying or contradicting circumstance arises only in respect of the "quantum" of consideration and not, "want of consideration". In this regard, in Janakiraman v. State, (2006) 1 SCC 697 , the Supreme Court, referring to section 92 of Evidence Act, held that "the bar is to oral evidence to disprove the terms of a contract, and not to disprove the contract itself'. 59. Taking all these facts into consideration, I hold that going by the language of Sections 91 and 92 of Evidence Act, there is no bar to adduce oral evidence to prove payment of price for the sale or the very existence of sale. In such circumstances, courts below committed a serious illegality in resolving the factual dispute relating to payment of price, solely based on the recitals in Ext.A-1, in the absence of oral evidence to prove such fact. The courts below treated the contents of Ext.A-l on substantive evidence to prove payment of price which is not legal. 60. The plaintiffs-respondents failed to prove existence of the alleged sale as per Ext.A-l and the right over plaint schedule property, by adducing evidence which is admissible under law. Consequently, they also failed to prove dejure possession of plaint schedule property by first plaintiff, on the strength of title. They also failed to take out a commission to prove that they are in de facto possession of the property, despite the challenge raised by the appellant that no commission is taken to prove this fact. 61. The decree was granted by the court on the basis that Ext.A-1 is a sale deed. Since there is no legally admissible evidence to prove that there is a sale as per Ext.A-1, the decree passed cannot be sustained. In such circumstances, the decree passed in favour of respondents relating to title cannot be legally sustained. 61. The decree was granted by the court on the basis that Ext.A-1 is a sale deed. Since there is no legally admissible evidence to prove that there is a sale as per Ext.A-1, the decree passed cannot be sustained. In such circumstances, the decree passed in favour of respondents relating to title cannot be legally sustained. Since plaintiffs-respondents failed to prove that Ext.A-l is a sale deed, the very foundation for granting the decree that Ext.A-3 which is a revocation deed is null and void loses its strength and hence, the decree relating to Ext.A-1 is also unsustainable and is liable to be set aside. 62. Thus, the concurrent findings of facts are vitiated by illegalities and those are unsustainable. Learned counsel for respondents made a request for remand of the case for proving the sale. The respondents have no case that they were denied opportunity to prove their case. Long years have elapsed now. On the facts and circumstances of this case, I do not find it fit to remand the case, especially after a long lapse of time. 63. In the result, the impugned decree and judgment passed against appellant are set aside. The suit is dismissed. This appeal is allowed.