VELAPPA GOUNDER Vs. S. BOMMA PANDITHAN

JUDGEMENT

(1.) A short and interesting point of law arises in the second appeal. The facts as found by the Courts below are these :

(2.) The defendant-respondent borrowed a sum of Rs. 3,000 from the plaintiff-appellant and adding another sum of Rs. 3,000 of his own, he purchased the suit property under the original of Exhibit A-1, dated 22nd October, 1960 but the purchasers were shown as the plaintiff and defendant. It was the case of the defendant that as security for the loan of Rs. 3,000, the plaintiff's name was also shown as a purchaser under the document but no title was intended to be conferred on the plaintiff or was in fact conferred. The plaintiff filed the suit for partition and separate possession of his one-half share alleging that he was a real purchaser having contributed Rs. 3,000 towards the sale consideration and that the plea raised in defence is barred under Section 92 of the Evidence Act. Both the Courts below have held that the borrowing was true and that the defendant had also not discharged the debt. The Courts below also held, relying on the decision Salt Balumal Dharamdas Firm v. Venkata Chalapathi Rao, 1955 AIR(Mad) 78 and certain observations in Rakkiayappa Goundar v. Ghinnu Goundan, 1954 AIR(Mad) 84 that the defendant was not barred under Section 92 of the Evidence Act from pleading that no title passed to the plaintiff under the original of Exhibit A-1.

(3.) In this second appeal, the learned Counsel for the appellant submitted that it was not open to the defendant to plead an oral agreement to treat Exhibit A-1 as security for the payment of the loan of Rs. 3,000 which is directly contradictory to the terms of the document itself. He also submitted that the defendant also could not rely on the surrounding circumstances in support of his plea.