Section 92 of Evidence Act = whether the plaintiff or the defendant can let in oral evidence contradicting or varying the terms of the written contract. “Section 92 excludes the evidence of oral agreements and it applies to cases where the terms of contracts, grants or other dispositions of property have been proved by the production of the relevant documents themselves under S. 91; in other words' it is after the document has been produced to prove its terms under S. 91 that the provisions of S. 92 come into operation for the purpose of excluding evidence of any oral agreement or statement, for the purpose of contradicting, varying, adding to or subtracting from its terms. The application of this rule is limited to cases as between parties to the instrument or their representatives in interest. There are six provisos to this section with which we are not concerned in the present appeal. It would be noticed that Ss. 91 and 92 in effect supplement each other. Section 91 would be frustrated without the aid of S. 92 and S. 92 would be inoperative without the aid of S. 91. Since S. 92 excludes the admission of oral evidence for the purpose of contradicting, varying, adding to or subtracting from the terms of the document properly proved under S. 91, it may be said that it makes the proof of the document conclusive of its contents. Like S. 91, S. 92 also can be said to be based oil the best evidence rule. The two sections, however, differ in some material particulars. Section 91 applies to all documents, whether they purport to dispose of rights or not, whereas S. 92 applies to documents which can be described as dispositive. Section 91 applies to documents, which are both bilateral and unilateral, unlike S. 92 the application of which is confined only to bilateral documents. Section 91 lays down the rule of universal application and is not confined to the executant or executants of the documents. Section 92, on the other hand, applies only between the parties to the instrument or their representatives in interest. There is no doubt that S. 92 does not apply to strangers who are not bound or affected by the terms of the document. Persons other than those who are parties to the document are not precluded from giving extrinsic evidence to contradict, vary, add to or subtract from the terms of the document. It is only where a question arises about the effect of the document as between the parties or their representatives in interest that the rule enunciated by S. 92 about the exclusion of oral agreement can be invoked. This position is made absolutely clear by the provisions of S. 99 itself. Section 99 provides that " persons who are not parties to a document or their representatives in interest may give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document." Though it is only variation which is specifically mentioned in S. 99, there can be no doubt that the third party's right to lead evidence which is recognized by S. 99 would include, a right to lead evidence not only to vary the terms of the document, but to contradict the said terms or to add to or subtract from them. If that be the true position, before considering the effect of the provisions of S. 92 in regard to the appellants' right to lead oral evidence, it would be necessary to examine whether s. 92 applies at all to the present proceedings between the official assignee who is the respondent and the donees from the insolvent who are the appellants before us.” According to the learned counsel for the appellant, the case falls under proviso 4 to Section 92 of the Act, which reads as follows: “(4).-- The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.” 21. There is no dispute that when a party wanted to contradict or vary the terms of the document by virtue of a subsequent document, then it must be registered. So, such a registration has not been done in the instant case because it is the specific case of the respondent herein that there was an oral understanding between the parties that the sale amount is Rs.3,65,000/- per acre. Section 92 of the Act, which reads as follows: “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.” In view of the above proviso, it is clear that a recital in a document as to the payment of consideration is not in itself conclusive evidence of such payment and oral evidence is admissible to rebut such payment. It is open to a party to show want or failure of consideration; that no consideration was passed; that the actual consideration was different from what was stated in the deed; that the payment of consideration was postponed and that what was the mode agreed upon as to the payment of it, notwithstanding the recital in the document as to the payment of consideration. Therefore, the evidence of P.W.1 to the effect that the sale price agreed is Rs.3,65,000- per acre, but due to the intimidation made by the defendant it was mentioned as Rs.1,00,000/- per acre in Ex.A.1, can be accepted for the simple reason that his evidence remained unchallenged. - Once a fact has been stated by a witness and the same is neither denied nor disputed in the cross examination, such fact can be said to be admitted. Further, the evidence of P.W.1 would go to show that the defendant purchased the land agreeing to pay Rs.3,65,000/- per acre and that the defendant, who is an influenced person in Gowdavelli Village, has threatened the plaintiff to give back the post dated cheques issued by him for the remaining amount, and therefore, the plaintiff approached the police, but they have not taken any steps as the defendant is the real brother of the then Home Minister. 28. With regard to the contention of the learned counsel for the appellant that no opportunity was given to the appellant to cross examine P.W.1, and was not given any opportunity to let in evidence, no grounds were taken in the appeal on these aspects. Hence, the contention of the appellant on these aspects are untenable and devoid of merits.; The appeal is accordingly dismissed. There shall be no order as to costs.


THE HON'BLE SRI JUSTICE K.C. BHANU

A.S. No.715 of 2008

 

JUDGMENT:
        This appeal is preferred against the judgment and decree dated 30.06.2008 passed by the VI Additional Senior Civil Judge, (Fast Track Court), at Medchal, Ranga Reddy District, whereunder and whereby the suit filed by the plaintiff was decreed.

2.        Appellant is the defendant and the respondent is the plaintiff in the suit. For the sake of convenience, the parties hereinafter will be referred to as they are arrayed in the suit.

3.     The plaintiff filed the suit against the defendant for recovery of an amount of Rs.7,00,000/- along with  interest
@ 24% per annum from the date of institution of suit till the date of decree and future interest @ 12% per annum.
 
Originally, the grandfather of the plaintiff acquired some agricultural lands and after his death, the father of the plaintiff sold away the entire lands admeasuring Acs.26.01 gunta, which were in joint possession of the plaintiff, his father and brothers, to the defendant.  
As the plaintiff was deprived of his share amount over the above lands i.e., ¼ of Ac.26-01 guntas, he filed a suit being O.S.No.49 of 2001 against his family members and the defendant and the same is pending. 
The defendant purchased an extent of Ac 3-06 guntas of land from the plaintiff at the rate of Rs.3,65,000/- per acre, got the registered sale deed in his favour and paid an amount of Rs.20,000/- assuring him that he would pay the balance amount of Rs.8,95,000/- within a period of three months and to that extent he issued post dated cheques for Rs.3,00,000/- and Rs.2,95,000/- respectively.  
As the said cheques were dishonoured, the plaintiff issued a legal notice.  Pursuant to the same, the defendant paid Rs.5,00,000/- and still he has to pay an amount of Rs.6,68,000/-.  As the defendant failed to pay the remaining amount, the plaintiff issued another legal notice. But the defendant neither issued any reply nor paid the amount.  Hence, the plaintiff filed the above suit.

4.     The defendant filed written statement contending that he paid entire sale consideration of Rs.3,15,000/-, and the plaintiff along with his father executed the registered sale deed on 27.02.2001; 
that the plaintiff entered into an agreement with his family members for purchasing the land in other area; 
that he issued a cheque for a sum of Rs.2,50,000/- in the name of the plaintiff towards the amount payable by him to the father and brothers of the plaintiff; that the said cheque was honoured and the plaintiff received the amount; 
that the said amount was not paid towards the sale consideration under Ex.A.1 as stated by the plaintiff, but it was paid in respect of the amount, which was payable to the father and brothers of the plaintiff in respect of purchase of other land; 
that taking advantage of the same and in order to extract more money from him, the plaintiff prepared a concocted story and filed the suit and therefore, he prayed to dismiss the suit. 

5.        Basing on the respective pleadings of both the parties, the following issues were settled for trial:
(1)  Whether the plaintiff is entitled for the suit amount as prayed for?             
(2)  What relief’s if any?

6.     To substantiate the case of the plaintiff, he examined himself as P.W.1 and got marked Exs.A.1 to A.3. On behalf of the defendant, no oral or documentary evidence was let in.

7.         Considering the evidence of P.W.1, the trial Court decreed the suit directing the defendant to pay a sum of Rs.7,00,000/- with interest @ 24% per annum from the date of execution of registered sale deed till the date of filing of the suit.  Challenging the same, the defendant filed the present appeal.

8.         Learned counsel for the appellant/defendant contended that since Ex.A.1 registered document is executed by the respondent/plaintiff and his father in favour of the defendant, the plaintiff is precluded to let in oral evidence to contradict or vary the terms of the document under Sections 91 and 92 of the Indian Evidence Act, 1872 (for short ‘the Act’); 
that the details of the cheques said to have been issued for the purpose of sale transaction i.e., date, number of cheques, amount etc., have not been pleaded; that the amount claimed by the plaintiff is incorrect and that the defendant was not given an opportunity to cross examine P.W.1 and let in oral evidence and hence he prays to set aside the impugned judgment and decree. 
In support of his contentions, he placed reliance on various decisions of the Supreme Court as well as this Court, which will be referred to at appropriate time.

9.     On the other hand, learned counsel for the respondent/plaintiff contended that since the defendant is an influential person, the plaintiff was made to put a lesser amount on Ex.A.1 than the actual amount agreed to be paid for the purpose of Ex.A.1 transaction, which is Rs.3,65,000/- per acre, and that since the evidence of P.W.1 remained unchallenged, the trial Court rightly placed reliance on the evidence of P.W.1 in decreeing the suit, and therefore, the judgment and decree need no interference of this Court and hence prays to dismiss the appeal.

10.    The factual matrix is not in dispute.  The plaintiff and his father executed Ex.A.1- registered sale deed dated 05.03.2001 in favour of the defendant in respect of agricultural dry land to an extent of Acs.3.06 guntas in Survey Nos.420 and 421 of Gowdavelli Village, Medchal Mandal, Ranga Reddy District. It is the case of the plaintiff that even though the land was sold at the rate of Rs.3,65,000/- per acre, in Ex.A.1-sale deed, the sale consideration was mentioned as Rs.1,00,000/- per acre. It is the further case of the plaintiff that he has no support in the village; that the defendant was influenced person in the village and has threatened and coerced him to give back the post dated cheques and that when the plaintiff approached the Police of Gowdavelli Police Station to register a case against the defendant, the police, on coming to know that the defendant is the real brother of the then Home Minister, sent him away and advised him not to cross his limits. However, the defendant neither adduced any evidence nor cross-examined P.W.1. 

11.    The question that falls for consideration is 
whether the plaintiff or the defendant can let in oral evidence contradicting or varying the terms of the written contract.

12.    It is not in dispute that Ex.A.1 is the registered sale deed executed the plaintiff and his father in favour of the defendant. The sale consideration mentioned in Ex.A.1 is Rs.1,00,000/- per acre, whereas the case of the plaintiff is that the agreed sale price was Rs.3,65,000/- per acre. 
On this aspect, the learned counsel for the appellant placed strong reliance on the decision reported in Bai Hira Devi v the Official Assignee Of Bombay[1], wherein the Supreme Court held as under:
Section 92 excludes the evidence of oral agreements and it applies to cases where the terms of contracts, grants or other dispositions of property have been proved by the production of the relevant documents themselves under S. 91; in other words' it is after the document has been produced to prove its terms under S. 91 that the provisions of S. 92 come into operation for the purpose of excluding evidence of any oral agreement or statement, for the purpose of contradicting, varying, adding to or subtracting from its terms. The application of this rule is limited to cases as between parties to the instrument or their representatives in interest. There are six provisos to this section with which we are not concerned in the present appeal. It would be noticed that Ss. 91 and 92 in effect supplement each other. Section 91 would be frustrated without the aid of S. 92 and S. 92 would be inoperative without the aid of S. 91. Since S. 92 excludes the admission of oral evidence for the purpose of contradicting, varying, adding to or subtracting from the terms of the document properly proved under S. 91, it may be said that it makes the proof of the document conclusive of its contents. Like S. 91, S. 92 also can be said to be based oil the best evidence rule. The two sections, however, differ in some material particulars. Section 91 applies to all documents, whether they purport to dispose of rights or not, whereas S. 92 applies to documents which can be described as dispositive. Section 91 applies to documents, which are both bilateral and unilateral, unlike S. 92 the application of which is confined only to bilateral documents. Section 91 lays down the rule of universal application and is not confined to the executant or executants of the documents. Section 92, on the other hand, applies only between the parties to the instrument or their representatives in interest. There is no doubt that S. 92 does not apply to strangers who are not bound or affected by the terms of the document. Persons other than those who are parties to the document are not precluded from giving extrinsic evidence to contradict, vary, add to or subtract from the terms of the document. It is only where a question arises about the effect of the document as between the parties or their representatives in interest that the rule enunciated by S. 92 about the exclusion of oral agreement can be invoked. This position is made absolutely clear by the provisions of S. 99 itself. Section 99 provides that " persons who are not parties to a document or their representatives in interest may give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document." Though it is only variation which is specifically mentioned in S. 99, there can be no doubt that the third party's right to lead evidence which is recognized by S. 99 would include, a right to lead evidence not only to vary the terms of the document, but to contradict the said terms or to add to or subtract from them. If that be the true position, before considering the effect of the provisions of S. 92 in regard to the appellants' right to lead oral evidence, it would be necessary to examine whether s. 92 applies at all to the present proceedings between the official assignee who is the respondent and the donees from the insolvent who are the appellants before us.”

13.    So from the above decision, it is clear that no oral evidence can be permitted to be let in to contradict or vary the contents of a written document, except the facts of a case fall under any one of the provisos. 

14.        Similarly, the learned counsel placed reliance on the decision reported in Ramachandran vs Y. Theva Nesom Ammal[2], wherein it was held as under:
The counsel appearing for either side advanced arguments about the applicability and non-applicability of Section 92 of Indian Evidence Act to the facts and circumstance of the case. Section 92 and Sub-clause 4 of Section 92 of Indian Evidence Act runs as follows:-
Section 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 (4) - The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
Section 92 contemplates that when terms of any contract, grant or other disposition of the property or any matter required by law to be reduced in the form of written documents have been proved, no evidence of any oral agreement or statement is permissible for the purpose of contradicting, varying, adding or subtracting the said written document.
The pith and substance of sub-clause 4 of Section 92 of Indian Evidence Act is, if a party has entered into a contract which is not required to be reduced in writing, but such a contract has been reduced in writing or it is oral, in such situation, it is always open to the parties to the contract to modify its terms and even substitute a new by oral contract and it can be substituted by parole evidence.”
15.         Similarly, he placed reliance upon the judgment in S.Saktivel (Dead) By Lrs vs M.Venugopal Pillai And Ors[3],wherein the Supreme Court held as under:
“A perusal of the aforesaid provision shows that what Section 92 provides is that when the terms of any contract, grant or other disposition of the property, or any matter required by law to be reduced in the form of document, have been proved, no evidence of any oral agreement or statement is permissible for the purpose of contradicting, varying, adding or subtracting the said written document. However this provision is subject to proviso 1 to 6 but we are not concerned with other provisos except proviso 4, which is relevant in the present case.”

16.    There is no dispute about the proposition of law laid down in the above decisions. Under Section 92 of the Act, a party cannot be permitted to let in oral evidence contradicting or varying the terms of the written agreement, but subject to provisos 1 to 6.  There cannot be any dispute that a proviso controls the section. 

17.    On the other hand, the learned counsel for the respondent placed reliance on the decision laid down in Vimal Chand Ghevarchand Jain & Ors. Vs. Ramakant Eknath Jajoo[4]wherein the Supreme Court held as under:
“…..We would, therefore, proceed on the premise that it was open to the respondent to adduce oral evidence in regard to the nature of the document. But, in our opinion, he did not discharge the burden of proof in respect thereof which was on him. The document in question was not only a registered one but also the title deeds in respect of the properties have also been handed over………………….. Apart from wrongly placing the burden of proof on the plaintiff, even adverse inference against the defendant had not been drawn. The pleadings were required to be considered provided any evidence in support thereof had been adduced. No cogent evidence had been adduced by the respondent to show that the deed of sale was a sham transaction and/or the same was executed by way of a security.”
18.    He also placed reliance on Smt. Krishnabai Bhritar Ganpatrao Deshmukh vs Appasaueb Tuljaramarao Nimbalkar[5],wherein the Supreme Court held as under:
“Secondly, there is ample authority for the proposition that when there is a dispute in regard to the true character of a writing, evidence de hors 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.”

19.    He further placed reliance on the judgment of this Court in Yerram Krishna Rao v. Muttamalla Narsamma[6]wherein it was held as under:
"Therefore, we do not see any substance in the contention of the learned Senior Counsel that R1-plaintiff cannot be permitted to adduce oral evidence to prove the nature of the document which has been exhibited as B.10”

20.        Section 92 of the Act has six provisos.  If the case of the party falls under any one of the provisos to Section 92 of the Act, in such circumstances oral evidence can be permissible to be let in.  According to the learned counsel for the appellant, the case falls under proviso 4 to Section 92 of the Act, which reads as follows:
“(4).-- The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.”

21.    There is no dispute that when a party wanted to contradict or vary the terms of the document by virtue of a subsequent document, then it must be registered.  So, such a registration has not been done in the instant case because it is the specific case of the respondent herein that there was an oral understanding between the parties that the sale amount is Rs.3,65,000/- per acre. 

22.    The learned counsel for the respondent placed reliance on proviso 1 to Section 92 of the Act, which reads as follows:
“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.”

23.    So this proviso would come into play when there is a 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. 
 Any fact may be proved which would invalidate the terms of the document. 

24.    In view of the above proviso, it is clear that a recital in a document as to the payment of consideration is not in itself conclusive evidence of such payment and oral evidence is admissible to rebut such payment.  
It is open to a party to show want or failure of consideration; 
that no consideration was passed; that the actual consideration was different from what was stated in the deed; that the payment of consideration was postponed and that what was the mode agreed upon as to the payment of it, notwithstanding the recital in the document as to the payment of consideration.

25.    The evidence of P.W.1 goes to show that for the total extent of Acs.3.06 guntas, the rate agreed per acre is Rs.3,65,000/-; that he received an amount of Rs.3,50,000/- and that the defendant issued cheque for Rs.1,50,000/- to one P.Narsimha Reddy, Advocate who used to look after his case and instituted the suit for the remaining balance amount of Rs.6,68,000/- with interest, which works out to Rs.32,000/-.  This statement of P.W.1 remained unchallenged.

26.         According to the learned counsel for the respondent there was intimidation made by the appellant and because of the intimidation and as the defendant was the real brother of the then Home Minister, less amount has been mentioned in Ex.A.1-document. In the factual background, there is a probability of mentioning less amount than the actual agreed amount between the parties, in Ex.A.1.  In view of the fact that the defendant was an influenced person, and the plaintiff has no support in the village and has no friends, the possibility of mentioning less amount in Ex.A.1 cannot be ruled out.

27.    When the probability factor is echoing in favour of the plaintiff, the same can be accepted.  
Therefore, the evidence of P.W.1 to the effect that the sale price agreed is Rs.3,65,000- per acre, but due to the intimidation made by the defendant it was mentioned as Rs.1,00,000/- per acre in Ex.A.1, can be accepted for the simple reason that his evidence remained unchallenged. 
There are no improbabilities in his evidence.  Once a fact has been stated by a witness and the same is neither denied nor disputed in the cross examination, such fact can be said to be admitted. 
Further, the evidence of P.W.1 would go to show that the defendant purchased the land agreeing to pay Rs.3,65,000/- per acre and that the defendant, who is an influenced person in Gowdavelli Village, has threatened the plaintiff to give back the post dated cheques issued by him for the remaining amount, and therefore, the plaintiff approached the police, but they have not taken any steps as the defendant is the real brother of the then Home Minister.

28.    With regard to the contention of the learned counsel for the appellant that no opportunity was given to the appellant to cross examine P.W.1, and was not given any opportunity to let in evidence, no grounds were taken in the appeal on these aspects.  Hence, the contention of the appellant on these aspects are untenable and devoid of merits.

29.    When the plaintiff deposed with regard to issuance of the cheques for the balance amount, the details of the said cheques were neither mentioned nor the said cheques were brought on record, as there is dispute about the same. So considering these facts, the trial Court rightly decreed the suit and the impugned order needs no interference by this Court.

30.    The appeal is accordingly dismissed.  There shall be no order as to costs.

 

K.C. BHANU, J

Date: 24.08.2011

va



[1] AIR 1958SC448
[2] AIR 2003 MADRAS 262
[3] (2000) 7 Supreme Court Cases 104
[4] 2009-scale-5-59
[5] AIR 1979 SC 1880
[6] 2009 ALD (6) 51

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