SAJAN KUMAR RASIA Vs. ROOP SINGH

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree dated 29th March, 1993 in Civil Suit No.10 -A of 1984 by II Additional District Judge, Raigarh, whereby the suit of the plaintiffs/respondents has been decreed and the sale -deed executed by Rasia on 14.05.1974 has been declared to be ineffective and not binding on them. The suit was initially filed by the plaintiffs against appellant Sajan Kumar and Rasia. Rasia died during the pendency of the suit. Therefore, his L.R.S. respondents 4 -A to 4 -D were brought on record. The plaintiffs' case was that the suit -house No.19, Darogapara Ward, Raigarh was the ancestral property of the plaintiffs. The plaintiffs has right, title and interest therein. The plaintiffs' father Rasia obtained a loan of Rs.1,000/ -from the appellant Sajan Kumar and by way of security for the said loan, executed a sale -deed, as desired by the appellant. Rasia had agreed to pay interest @4% per month on the above loan amount. In lieu of interest, a rent -note was got executed by the appellant from Rasia. Rasia had repaid Rs. 1,225/ -towards the said loan. The suit -house was worth Rs.20,000/ - at the time of above transaction. It was also averred that it could not have been alienated by Rasia. However, since the appellant claims to be the owner of the suit -house, on the basis of above documents, executed regarding transaction of loan, hence the plaintiffs/respondents 1 to 3 filed the suit for declaration that the sale -deed dated 14.05.1974 was null and void and not binding on them.

(2.) THE suit as above was resisted by the appellant/defendant No.1. According to him the execution of sale -deed dated 14.05.1974 evidences real transaction of sale. He denied that it was executed as security towards loan obtained by Rasia. He, therefore, prayed that the suit be dismissed. The trial Court held that the suit -property was the ancestral property of the plaintiffs/respondents 1 to 3 and their father Rasia. He had no right to transfer the same. It was also held that the sale -deed (Ex. D/1) dated 14.05.1974 executed by Rasia was by way of security to the loan obtained by him. Accordingly, the suit of the plaintiffs/respondents 1 to 3 was decreed and it was declared that the sale -deed dated 14.05.1974 executed by Rasia was not binding and would not affect the interests of the plaintiffs. Learned counsel for the appellant submitted that as sale -deed (Ex.D/1) dated 14.05.1974 was executed by Rasia, which clearly indicated that there was a transaction of sale between him and Rasia, therefore, no evidence can be permitted to be led in order to change or vary the terms thereof and it has to be accepted in the terms contained therein. Therefore, it has been contended that the respondents/plaintiffs were precluded from challenging the sale -deed. It has further been submitted that the property having been purchased by the defendant for valuable consideration, the respondents cannot challenge his title. As against this, the learned counsel for the respondents has submitted that they were entitled to establish that the document (Ex. D/1) was, in fact, not a deed of sale and the real nature of transaction between the parties was that of loan, in security of which Rasia executed the said document (Ex. D/1). It has been submitted that the evidence as above has been duly led by the respondents and on its scrutiny, has been found to be reliable by the learned trial Court. It has been submitted that, therefore, the suit of the respondents has been rightly decreed by the trial Court. In view of the contention as above of the learned counsel for the appellant, it may be noted that u/s. 92 of the Evidence Act, oral evidence regarding the terms of the contract, which are required by law to be reproduced in the form of a document is excluded.

(3.) IN the classical case on the point, Tyagaraja Mudaliyar and another v. Vedathanni ( : AIR 1936 PC 70), it was observed : - The bar imposed by sub -section(1) of section -92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub -section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arieses when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose, oral evidence is admissible to show that the document executed was never intended to operate as an agreement, but that some other agreement altogether, not recorded in the document, was entered into between the parties. Similarly, as laid down in Smt. Krishnabal Ganpatrao Deshmukh v. Appasaheb Tuljaramrao Nimbalkar and others (AIR 1979 SC 1880) where there is a dispute in regard to the true character of a writing, evidence dehors the document can be led to show that the writing was not the real nature of the transaction, but was only an illusory, fictitious and colourable device which cloaked something else, and that the apparent state of affairs was not the real state of affairs. Reference in the above connection may also be made to Bhagwan Dayal (since deceased) and thereafter his heirs and legal representatives Bansgopal Dubey and another v. Mst. Reoti Devi (deceased and after her death,) Mst. Dayavati, her daughter ( : AIR 1962 SC 287). In view of the above, it is clear that oral evidence as to the real nature of transaction that actually took between the parties, i.e., the appellant and deceased Rasia can be considered; as has rightly been done by the trial Court.