Thatha Rao Dada Rao vs JummarIal Dhanji and Another

Palnitkar, J.—This appeal has been filed on behalf of Thatha Rao Defendant 2. The facts of. the case briefly are that Jummarlal Plaintiff-Respondent 1 filed a suit for cancellation of the sale deed dated 23rd Dai 1347 F and for possession of the suit land stating that the, Plaintiff who was originally of Salegaum was, living in the village of Korhal. The plaint allegation is that the villagers of Salegaum having become inimical towards him, he left that place and came to live in Korhal. He possessed the suit land in Salegaum. The Plaintiff, had eternal trouble from his enemies and he was not able, to manage and enjoy his property peacefully. The Defendants made believe that if the Plaintiff sold the land to them the enmity will vanish and disappear in due course of time. They made him believe that during the duration of enmity they would pay half the produce of the land to the Plaintiff and after the cessation of the hostilities the land would be returned to him.

The Plaintiff alleged that the Defendants failed to give half the produce of< the land and did not return the land as agreed and that he realised that the Defendants had committed fraud. He therefore filed a suit for cancellation of the sale on the ground of fraud. Defendant 2 filed a written statement stating that there was no element of fraud in the contract of sale, that the land was sold on 23rd Dai 1357 F. for Rs. 5,000/- which was already paid to the Plaintiff, thai the sale deed was duly registered and that there was no agreement as stated in the plaint for the return of the land. The Defendants stated that there was not only a sale deed but subsequent to the sale deed there was a decree passed against the Plaintiff for declaration of the patta and rights of Defendant 2 and shikmi rights of Defendant 1 and that the Plaintiff admitted in that case the genuineness of the sale deed.

Defendant 1 Baba Rao did not file his written statement and the case was decreed ''ex parte'' against him. The first Court after recording of evidence decreed the suit which was affirmed by the appellate Court on 30th Dai 1359 F. Against the latter judgment and decree Defendant 2 filed this appeal before us. Normally when the two lower Courts are concurrent on the evidence of fact, it is not the practice of this High Court to interfere with regard to the appreciation of evidence. But we find that the judgment of the lower appellate Court is not in consonance with the provisions of Section 595, Hyderabad CPC corresponding to O., 41, R. 31, Indian CPC It was the first appeal before the lower Court and the learned Judge has not referred to various witnesses as to whether on what grounds he agrees or disagrees with the trial Court. Therefore, we at the request of the parties perused thoroughly the evidence in the case, and as the evidence was complete, we did not think it. necessary to remand the case to the first appellate Court. (After discussing evidence his Lordship proceeds:),

The obvious facts that are against the case set up by the Plaintiff are that the sale deed in question is a registered sale deed. There is a recital in the sale deed that the Plaintiff received Rs. 5000/- towards the pur chase money from the Defendants. The same recital is repeated before the Registrar who registered the sale deed. Secondly, there is the admission by the Plaintiff in the civil suit filed by the Plaintiff for declaration of patta and shikmi rights in which Plaintiff clearly admits receipt of Rs. 5000/-. Thirdly, there is the admission of the Plaintiff before the criminal Court referred to above.

Under the circumstances, the burden of proof was heavily against Plaintiff to prove that the consideration for sale was not paid and not only that, but it was never the intention in the very beginning that the Defendant would not pay the money which was the consideration for the sale deed. The evidence produced on behalf of the Plaintiff is to this effect that there was a contract of sale between the Plaintiff and the Defendants, but simultaneously there was a contract that after the cessation of hostilities as referred to by the Plaintiff the sale deed and the land in dispute would be returned to the Plaintiff. In other words the Plaintiff alleges that a contract different from what was written in the sale deed was entered into by the parties. We have to consider the question whether u/s 76, Hyderabad Evidence Act corresponding to Section 92, Indian Evidence Act such evidence can be admissible. We are clearly of the opinion that in view of the wording of Section 92, Indian Evidence Act such evidence cannot be allowed to be admitted.

Mr. Abul Wafa Mohamed Kasim the learned Advocate for the Respondents relies upon proviso (4) to Section 76 corresponding to proviso (1) to Section 92 and argues that any fact may be proved which would invalidate any document or which would entitle any person to any decree such as fraud, intimidation, illegality etc. But it is to be remembered that only a fact which would invalidate a document such as fraud can be proved. It clearly means that fraud was committed in the execution of. the document or that a document which was not intended to be executed was executed fraudulently in favour of the Defendants. Such is not the allegation of the Plaintiff in this case.

Plaintiff alleges that there was no fraud whatsoever with regard to the writing of the sale deed. The sale deed was written clearly with the open intention that only a sale deed has to be written. Hence, we are of the opinion that the evidence for proving that the sale deed was not intended to be written cannot be led, where no question of fraud arises with regard to the execution of the sale deed. Therefore we have to consider the argument of the learned Advocate for the Respondents whether there was fraud u/s 17, Hyderabad Contract Act corresponding to the same Section of the Indian Contract Act Sub-section (3) that Defendants made a promise that they would return the land without any intention of performing it. The two lower Courts have not given such a finding that the intention of the Defendants was not to perform the promise and that they have given a promise that they would return the land after the lapse of the so-called enmity.

On carefully considering the evidence of the parties we are of the opinion that there is no material on the record to prove that Defendants intended to do any act without the intention of performing the same. We are therefore of the opinion that the fraud as alleged by the Plaintiff is not proved in the case or that there is any substance in the allegation of the Plaintiff that Defendants entered into a promise with the object of not performing the same. We are supported in our view by the judgment of the. Bombay High Court in � Dagudu v. Nana 35 Bom 93 (A) in which it has-been held that u/s 92 such evidence cannot be admitted and parties cannot be allowed to prove a different contract from that expressed in the document without proving any fraud in the preparation of the document. Moreover, as alleged by the Plaintiff, assuming that he received the produce for 4, 5 years and afterwards Defendants changed their mind and stopped giving him the produce or refused to return the land, that does not go to establish initial intention of not performing the promise as alleged by the Plaintiff. The Defendants may have changed their mind subsequently and such a change of mind does not necessarily mean that there was an initial intention which is a necessary element to constitute fraud.

On the evidence on record we are satisfied that there was neither such a promise by the Defendants nor the case of fraud as alleged by the Plaintiff is proved. In cases of fraud, the important thing which has got to be proved is the intention to defraud. This point has been very lucidly dealt with by their Lordships of the Supreme Court in � Yeswant Deorao Deshmukh Vs. Walchand Ramchand Kothari, . Such an intention to Commit fraud has not been proved in this case. We therefore allow the appeal, set aside the judgments and decrees of the two lower Courts and dismiss the Plaintiff''s suit with costs throughout.

One more fact which agitated our mind was whether to dismiss the suit in toto or dismiss so far as Defendant 2 (Appellant) is concerned because Baba. Rao (Defendant 1) in his statement on behalf of the Plaintiff has given evidence in support of the Plaintiff''s case though bis evidence is certainly not worth any credit. But as we have taken the view that the sale deed is regular and genuine and no fraud is proved, it would not be fair and just to pass a decree against Baba Rao Defendant 1 and in favour of Plaintiff to the extent of half share as that is merely on his evidence as Plaintiff''s witness. If the Plaintiff has any right on the basis of the said evidence, he may have recourse to such remedy as may be available 16 him in law. Appeal allowed. Costs of all the Courts will be given to the extent of the costs of the Appellant.

Srinivasa Chari, J.

I entirely agree with my learned brother that this appeal should be allowed and as an interesting question as to whether what would constitute fraud has to be determined in this case I desire to add a few lines. That there was an intention to defraud at the time when the transaction took place it is not always possible to lead direct evidence but a party would be permitted to show by the subsequent conduct of the opposite party that at the time when the transaction took place there was no intention to carry out the terms of the contract or to fulfil the promise that was made. This view is supported by a decision of the Supreme Court in Yeswant Deorao Deshmukh Vs. Walchand Ramchand Kothari, . It has to be observed that it would constitute fraud only where either there has been a promise made without any intention of performing it or where there has been an active concealment of fact by one having knowledge or belief of the fact.

So far as the facts of this case are concerned the first contingency is not to be found because the Plaintiff has not been able to prove by the evidence of the conduct of the Defendants that there was no intention on the part of the Defendants to carry out the terms of the contract. For a period of four years the Defendants did conform to the terms of the contract by giving the Plaintiff a portion of the produce as agreed upon. They however stopped giving $$ share in the produce after 1351 F and this failure on their part to give a share in the produce from the year 1351 F cannot be regarded as a conduct which would lead to an inference that the Defendants had no intention of performing the contract or keeping up the promise. At the worst this act of the Defendants could be regarded as a breach of the promise or a violation of the agreement entered into at the outset for which the Plaintiff has his own remedy.

The other contingency of the Defendant having concealed from the Plaintiff any material fact which they had knowledge or belief of does not also arise in this case because the Plaintiff entered into this arrangement with open eyes and according to him it was with a view to avoid the interference by his enemies of his possession of the land so that it could not be said that there was any fact which Defendant concealed from the Plaintiff in inducing him to execute the sale deed. When those facts are not borne out by the evidence no fraud could be held to have been established and the Plaintiff cannot succeed.