RINCY Vs. ASHA

JUDGEMENT

(1.) The defendant, who suffered a decree setting aside Exts.A1 and A2 sale deeds dtd. 02/06/2009 executed by the husband of plaintiff in his favour, came up in appeal. These two documents were executed on 02/06/2009 by the husband, who passed away in a motor vehicle accident in the year 2010. His wife, the legal heir, came up with the suit, claiming that her husband and the husband of the defendant were doing a partnership business and the husband of the defendant prevailed over the will of her husband and obtained two registered sale deeds, Exts.A1 and A2 under threat and coercion. It is also contended that, no consideration as recited in the document much less any consideration passed over in connection with Exts.A1 and A2 sale deeds. The trial court found that no consideration was passed over under Exts.A1 and A2 documents.

(2.) The bar under Sec. 91 of the Indian Evidence Act in adducing parole evidence as against a document which was reduced into writing would come into play only with respect to the terms of contract incorporated therein and may not have any application regarding the passing of consideration. Necessarily, parole evidence is permissible regarding passing of consideration. It is a case wherein two documents were executed on the very same day by the deceased husband of plaintiff and registered in accordance with the provisions of the law. Necessarily, the presumption would come into play, that it was duly executed and registered. But regarding the consideration as discussed earlier it will not be a term of contract and parole evidence is permissible. Since the burden to be proved that the document is not supported by consideration, being a negative one, it would shift on the person who claims that the document is supported by consideration. The defendant did not mount on the box to give any direct evidence so as to test its credibility by cross- examination. The document produced itself will not discharge the burden of the defendant since consideration is not a term of contract.

(3.) Admittedly, the defendant was not having any amount with her at the time when the documents were executed though the respective consideration comes to Rs.1,10,000.00 and Rs.1,60,000.00. The case of borrowal alleged by her has got its own improbability and not specific. Nothing was pleaded in the written statement as to from whom she had borrowed the amount and no evidence was let in. The person from whom she had borrowed the amount was not examined as a witness. The alleged illicit relationship was also taken into consideration by the trial court. There is utter failure on the part of the defendant to prove the consideration to the abovesaid sale deeds and it would lend support to the case advanced by the plaintiff. There is no reason for any interference with the decree and judgment of the trial court, hence the appeal is liable to be dismissed. I do so.