Sajan Kumar Rasia vs Roop Singh and Others

V.K. Agrawal, J.

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.

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.

In the classical case on the point, AIR 1936 70 (Privy Council) , 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 Bhagwan Dayal Vs. Mst. Reoti Devi, .

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.

In view of the above, the question to be considered is : as to whether the trial Court was justified in holding that the transaction between the parties was not that of sale, and the alleged sale-deed (Ex. D/1) was executed by deceased Rasia only as security of loan of Rs.1,000/-, which was obtained by him from the appellant/defendant ?

It may be noted in the above context that the respondents/defendants had pleaded that the house was not the exclusive property of the deceased Rasia, but was ancestral property belonging to their joint family. Therefore, Rasia had no right to alienate the same without legal necessity. It was further alleged by them that the house was worth Rs. 20,000/- and could not have been alienated for Rs. 1,000/- only, as is mentioned in the document (Ex. D/1). It was also alleged that the document was executed only by way of security to the loan of Rs. 1,000/- obtained by Rasia.

The learned trial Court has relied upon the evidence led by the plaintiffs /respondents in the above regard. I has been found that the evidence indicated that the suit-house regarding which sale-deed (Ex.D/1) was executed by Rasia was the ancestral house of the plaintiffs. The finding as above appears to be justified in view of the statement of Radheshyam Yadav (P.W.1) as well as that of Baraturam Yadav (P.W.2) The defendant/appellant Sajan Kumar could not refute the statement that the suit-house is the ancestral property of the plaintiffs. Therefore, the finding of the learned trial Court that the suit-house was ancestral property appears to be wholly justified.

It may also be noticed that Baraturam Yadav (P.W.2) has stated that the suit-house was worth Rs. 20,000/- - Rs. 25,000/- at the time of the said transaction. There appears to be no reason to disbelieve him. There is no evidence to contradict his statement. In fact, it appears that the defendant/appellant Sajan Kumar (D.W.1) feigned ignorance as to what is the diversion rent of the suit-house. He has also admitted that he even does not know the length and breadth of the suit-house. He also admits that he never received the possession of the suit-house nor did he inquire about the plot number, sheet number, etc. on which the suit-house stands. The conduct as above of the defendant/appellant would clearly show that he was not the genuine purchaser of the suit-house. His conduct in remaining totally ignorant and indifferent regarding the particulars of the suit-house clearly indicates that he, in fact, did not intend to purchase the suit-house. Consequently, the evidence and the contention of the plaintiffs/respondents that in fact a transaction of loan of Rs. 1,000/- took place between Rasia and the appellant appears to be justified. Moreover, as rightly observed by the trial Court, a person would normally not sell his property worth of Rs. 20,000/- -Rs. 25,000/- for a paltry sum of Rs. 1,000/-.

In the circumstances, it is clear that the transaction between the parties was not that of sale of the suit-house, but it was only by way of security to the loan that the sale-deed (Ex. D/1) was got executed from Rasia, by the defendant/appellant. It may also be noticed that since the property was joint, Rasia alone could not alienate the suit-property.

The learned counsel for the appellant has urged that since the learned trial Court has recorded a finding that deceased Rasia was a tenant in the suit-house and had executed a rent-note, therefore, the respondents could not challenge the said finding and were bound by it.

The contention, as above, of the learned counsel for the appellant, does not appear to be well founded and cannot be accepted. It may be noted in the above context that Order-41 Rule-22 of the C.P.C. provides that the respondent, though he may not have appealed from any part of the decree, may not only support the decree, but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour. Clearly, therefore the respondent is not precluded from challenging the finding as above recorded against him by the trial Court.

It may be noted in the above context that though the rent-note was executed analogously with the sale-deed (Ex. D/1), but the plaintiffs'' case was that the same was in lieu of interest that was agreed to be paid by Rasia. Since there is cogent evidence and a finding recorded that the transaction was not that of sale, obviously the defendant/appellant could not become the landlord of the suit-house. Similarly, it appears quite natural and probable that having got executed the sale-deed (Ex. D/1), the appellant/defendant chose to get a rent-note executed from Rasia, in lieu of the rent. Therefore, the stand of the respondents/plaintiffs in that regard also deserves to be accepted. The finding of the trial Court to that extent appears to be erroneous.

In view of the above, the decree of the trial Court declaring that the sale-deed (Ex.D/1) was not binding on the plaintiffs/respondents 1&2 appears to be wholly justified. It calls for no interference.

The appeal has, therefore, no substance and is dismissed. In the circumstances of the case, parties shall, however, bear their own costs of this appeal.