JATASHANKER FULCHAND MEHTA Vs. MAVJI TRIKAM

JUDGEMENT

(1.) Thfs appeal raises an important question which is referred to the Division Bench by our learned brother Sheth, J. as to the correctness of the ratio of the decision of Shah J. in Harilal Bhagwanji v. Shastri Hamshanker Umiashankar. AIR 1958 Bom 8, that when a possessory mortgage and a lease back to the mortgagor formed part of the same transaction, the lease being a mere device to secure interest, is not legally enforceable and that it does not create any relationship of landlord and tenant.

(2.) The short facts which have given rise to this appeal are as under :-

(3.) The essential question in this appeal is the question of the construction of the two documents Exs. 10, the registered mortgage which is a possessory mortgage and the contemporaneous document viz. registered rent note Ex. 5 dated 11-6-44. The question will have to be resolved by recourse to Sections 91 and 92 of the Indian Evidence Act, 1872. hereinafter referred to as "the Act". Both these sections are based on the best evidence rule. Under Section 91 of the Act 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 Act. The original documents would conclusively prove the contents. Section 92 is only supplementary to Section 91 and it in terms excludes oral evidence as between the parties or their representatives for the purpose of contradicting, varying, adding to, or subtracting from, the terms of the document which are proved under Section 91 by the document itself. Section 92. however, contains six provisos which permit oral evidence in certain cases. In so far as the present case is concerned, proviso (1) would have been relevant if any fact was sought to be proved which would invalidate any document, by reason of fraud, intimation, illegality, want of due execution, want of capacity in any contracting party, and want of failure of consideration or mistake in fact or law. In the present case, however, there is no pleading or proof of any such Invalidating circumstances, proviso (2) also would not be applicable as it is not the contention of any party that the document was silent on any matter. The last proviso (6) which is material enacts that any fact may be proved which shows in what manner the language of a document is related to existing facts. The scope of this proviso is illustrated by Sections 93 and 94 which show that where there is ambiguity, evidence regarding intention may be led to clear that ambiguity or when the sense of the word is not clear except in those limited cases which are provided in the provisos the bar of Section 92 would be absolute in so far as the parties or the representatives in interest are concerned and they cannot be permitted to lead any oral evidence as to the intention of the parties for the purpose of contradicting, varying, adding to or subtracting from the terms, Unless the case falls in any of the provisos to Section 92, the parties and their representatives would be bound by this salutary rule in Section 92 and the document would be conclusive as regards its contents. The obvious exception is the case of stranger, as specifically provided in Section 99 to whom Section 92 would not apply. Besides the prohibition is only as regards the different terms being sought to be established but there is no prohibition from proving that the transaction is different than what it purports to be. The oral evidence as regards intention would, therefore, always be admissible to prove the real nature of the transaction. In case of inconsistency or repugnancy between various clauses the document would have to be interpreted as one whole and attempt would have to be made to reconcile various clauses and it is only the last resort if harmonious reconciliation is not possible that earlier provision would be given effect to so as to override the later provision. In Radha Sundar v. Mohd. Jahadur Rahim, AIR 1959 SC 24, at p. 27, their Lordships pointed out that it is well settled that no evidence is admissible on a question of construction of a contract or grant, which must be based solely on the terms of the document, there being no suggestion before their Lordships that there was any dispute as to how the contents of the document were related to existing facts. (Vide Balkishen Das v. Legge, (1899) 27 Ind App. 58 at page 65 (PC) and Maung Kyin v. Ma Shwe La, 44 Ind App 236 at p. 243 = (AIR 1917 PC 207 at p. 209), At page 29 their Lordships stated that it was a settled rule of interpretation that If there be admissible two constructions of a document, one of which would give effect to all the clauses therein, while the other would render one or more of them nugatory, it was the former that should be adopted on the principle expressed in the maxim "ut res magis valeat quam pereat." At page 30 their Lordships observed if in fact there was a conflict between the earlier clause and the later clauses and it was not possible to give effect to all of them, then the rule of construction was well established that it was the earlier clause that must override the later clauses and not vice versa, relying upon the rule stated by Lord Wrenbury in Forces v. Git, AIR 1921 PC 209 at p. 211. These principles of construction of documents are applied by their Lordships of the Supreme Court in Commissioner of Income-tax v. Motors and General Stores (P) Ltd., AIR 1968 SC 200. At page 204 their Lordships observed that the doctrine that in revenue cases the 'substance of the matter' might be regarded as distinguished from the strict legal position was erroneous. In the absence of any suggestion of bad faith or fraud the true principle was that the taxing statute had to be applied in accordance with the legal rights of the parties to the transaction. When the transaction was embodied in a document the liability to tax depended upon the meaning and content of the language used in accordance with the ordinary rules of construction. At page 205 their Lordships observed that a transaction which, on its true construction, was of a kind that would escape tax, was not taxable on the ground that the same result could be brought about by a transaction in another form which would attract tax. It is therefore, clear that the question of construction of all these two documents must be approached on the settled principles of construction which are merely incorporated in these relevant sections of the Evidence Act. If there is no inconsistency and if the language of the document is not ambiguous or obscure and the case does not fall in any of the six provisos of Section 92, the document would have solely to be construed on its own terms. Of course, if the document falls in two parts, both the parts would have to be read as a whole and all the clauses of the document must be given effect to. It is only as a last resort, when the provisions are destructive, repugnant or inconsistent and no harmonious construction is possible that the earlier constructions would be allowed to prevail by resort to the aforesaid principles of construction, which question however does not arise in the present case as we are of the view that there is no inconsistency whatever between the two documents in question.