Supreme Court of India
VIMAL CHAND GHEVARCHAND JAIN & ORS.versusRAMAKANT EKNATH JAJOO
- Citation
- 2009 INSC 387
- Decided
- 23 March 2009
- Disposal
- Appeal(s) allowed
- Bench
- S B SINHA
Holding
A registered deed of sale is presumed genuine; the respondent failed to prove it was a security, so the plaintiff's suit for possession must be decreed.
Summary
The appellant partnership firm claimed title to four godowns in Nasik based on a registered deed of sale executed in 1974 by the respondent's father. The respondent occupied the property as a licencee and later contested the deed, alleging it was a security for a Rs.50,000 loan. The trial court dismissed the suit, holding the deed was a sham; the appellate courts upheld that view. The Supreme Court held that a registered deed of sale carries a presumption of genuineness, the burden to prove it was a security lay on the respondent, and he failed to discharge that burden. The compensation stipulation in the deed was deemed an indemnity and not material to the nature of the transaction. The Court also ruled that new pleas cannot be raised for the first time before it and that the respondent could not claim equitable relief as he did not come with clean hands. Consequently, the appeal was allowed and the suit for possession was decreed.
Issues considered
- The validity and genuine nature of the registered deed of sale versus its alleged character as a security for a loan
- Whether the burden of proof to show the deed was a sham lies on the defendant
- Whether the compensation clause in the deed affects the nature of the transaction
- Whether a new plea can be raised for the first time before the Supreme Court
- Whether equitable relief is available when the defendant does not come with clean hands
- Admissibility of extrinsic oral evidence under Sections 91 and 92 of the Evidence Act
Legislation cited
- Code of Civil Procedure, 1908s. Order XU Rule 27
- Indian Evidence Act, 1872s. 91, s. 92
- Transfer of Property Act, 1882s. 54
Subjects
deed of saleregistered documentpresumption of genuinenessburden of prooflicencee possessionlegal fictionequitable reliefclean handsextrinsic evidenceamendment of pleadingscompensation clauseTransfer of Property Act
Judgment
(2009] 4 S.C.R. 794
A VIMAL CHAND GHEVARCHAND JAIN & ORS.
v. •""'"
RAMAKANT EKNATH JAJOO
Civil appeal No. 1784 of 2009
MARCH 23, 2009
B
[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]
Transfer of Property Act, 1882- s. 54 - Sale by registered
deed of sale in favour of plaintiff by defendants - Stipulation
in the deed that if plaintiff dispossessed, defendant was to pay
c compensation - Defendant continuing in possession of the
property as a licencee - On failure to pay licence fee, suit for
recove1y of possession - At trial stage defendant proving his
possession - Suit dismissed - At appellate stage defendant
disputing the sale deed stating that it was executed only as
D security for a money-lending transaction between the parties
- Appellate Court a/so dismissing the suit - On appeal, held :
The suit was liable to be decreed - The Sale deed being a
registered document carries presumption as regards
genuiness of the transaction - The onus to prove that the sale
E deed was a sham, was on the defendant, and he failed to
discharge the burden - The deed of sale was required to be
considered in its proper perspective - On facts, legal fiction is
created in terms whereof owner becomes dispossessed and
regains possession in different capacity- Stipulation regarding
F compensation not material as it did not affect real nature of
transaction - The question regarding compensation not
entertainable since raised before this court for the first time -
Defendant also not entitled to equitable relief as he did not
approach the court with clean hands - Legal Fiction - Deeds
and Documents - Practice and Procedure - Equity.
G "
Plea:
Alternative <?r inconsistent pleas can be raised but not
mutually destructive pleas.
H 794
VIMAL CHAND GHEVARCHAND JAIN & ORS. V 795
RAMAKANT EKNATH JAJOO
• New Plea - Raising of, for the first time before Supreme A
Court - Held : Not permissible.
Practice and Procedures - Raising of new plea - Before
Supreme Court - Held : Not permissible.
Deeds and Documents : Interpretation of document - B
Held: A document must be construed in its entirety
A deed of sale was executed by father of respondent
in favour of a partnership firm. The deed was registered.
Respondent himself was a witness to the deed. Thereafter
the father of respondent was put in possession of the C
property as a licencee at an agreed licence fee. After
dissolution of the firm, appellant became the owner of the
property.
Appellant filed a suit for recovery of possession as 0
• the cheque issued by the respondent towards licence fee
was dishonored. Respondent disputed the transaction
and examined three witnesses to prove his possession.
Trial court dismissed the suit holding that the appellant-
p la i ntiff failed to prove that the suit property was
purchased by the sale deed; and that the circumstantial E
evidence shows that the deed was executed only as a
security for a money-lending transaction between the
parties.
Appellants preferred appeal. During pendency F
thereof, respondent amended the Written Statement,
stating that the sale deed was executed as a security for
the loan amount taken from the partnership firm having
money-lending business. Respondent also examined
himself as a witness. It. was also stated that loan amount G
has been repaid. First appellate court framed an additional
issue whether the sale deed was executed as a security
for the money lent. Appellate court dismissed the suit.
However, disbelieving the case that loan has been repaid,
held that the appellant-plaintiff was entitled to loan amount H
796 SUPREME COURT REPORTS [2009] 4 S.C.R
A with interest. Second appeal was dismissed by High
Court. Hence the present appeal.
Allowing the appeal, the Court
HELD: 1.1 In the facts and circumstances of this case,
B the plaintiff's suit should have been decreed. The deed of
sale was a registered one. It, therefore, carries a
presumption that the transaction was a genuine one.
Respondent was the son of the vendor. He was an
attesting witness. In his written statement, he categorically
denied execution of the said deed of sale. He also denied
C that he had attested the document. He even did not
examine himself before the trial judge. His witnesses
merely proved his possession. The fact that the
respondent's father was put in possession was not in
dispute. What was in dispute was the character of his
D possession, which was not considered in its proper
perspective by the courts below. [Paras 13 and 26]
[822-B; 813-F-H; 814-A]
1.2 The First Appellate Court had arrived at a
conclusion first and then started to assign reasons in
E support thereof. It did not pose unto itself the correct
questions. 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
F 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. [Para 21] [820-B-C]
1.3 It is true that the written statement was permitted
G to be amended. Additional evidence pursuant thereto was
also permitted to be adduced. The first appellate court,
however, had a duty to properly appreciate the evidence
in the light of the pleadings of the parties. While doing so,
it was required to pose unto itself the correct questions.
H The deed of sale being a registered one and apparently
VIMAL CHAND GHEVARCHAND JAIN & ORS. V 797
RAMAKANT EKNATH JAJOO
containing stipulations of transfer of right, title and interest A
by the vendor in favour of the vendee, the onus of proof
was upon the defendant to show that the said deed was,
in fact, not executed or otherwise does not reflect the true
nature of transaction. Evidently, with a view to avoid
confrontation in regard to his signature as an attesting B
witness as also that of his father as vendor in the said
sale deed, he did not examine himself. An adverse
inference, thus, should have been drawn against him.
[Para 15] [814-C-E]
Kamakshi Builders v. Ambedkar Educational Society and c
Ors. AIR 2007 SC 2191 - referred to.
1.4 When a true character of a docume·nt is
questioned, extrinsic evidence by way of oral evidence is
admissible. Therefore, it was open to the respondent to
• D
adduce oral evidence in regard to the nature of the
document. But, 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. Symbolical possession if not actual physical E
possession, thus, must be held to have been handed over.
.. It was acted upon. Appellants started paying rent in
respect of the said property. No objection thereto has
been raised by the respondent. [Para 20, 21] [819-B-D]
F
R. Janakiraman vs. State Rep. by Inspector of Police,
CBI, SPE, Madras (2006) 1 SCC 697; Roop Kumar vs. Mohan
Thedani (2003) 6 SCC 595; State Bank of India and Anr. vs.
Mula Sahakari Sakhar Karkhana Ltd. (2006) 6 SCC 293 -
.- .. referred to .
G
1.5 Respondent paid certain amount by cheque
towards the licence fee. It was for him to show on what
account the money was paid. Only because the parties
had other transactions, by itself was not sufficient to hold
that the defendant has discharged his onus. If the sum of H
798 SUPREME COURT REPORTS [2009] 4 S.C.R.
A Rs.50,000/- was the amount of loan wherefor the deed of
sale was executed by way of security, having regard to
his admission that the firm is an income-tax payee and
maintains books of account in regular course of business,
failure on his part to produce any documentary evidence
B merited drawing of an adverse inference. [Para 21] [819-E-G]
1.6 Pleadings of the parties, it is trite, are required to
be read as a whole. Defendants, although are entitled to
raise alternative and inconsistent plea but should not be
permitted to raise pleas which are mutually destructive of
c each other. It is also a cardinal principle of appreciation
of evidence that the court in considering as to whether
the deposition of a witness and/or a party is truthful or
not may consider his conduct. Equally well settled is the
principle of law that an admission made by a party in his
D pleadings is admissible against him proprio vigore.
Therefore, the deed of sale was required to be construed
in proper perspective. Indisputably, the deed of sale
contained stipulations as regards passing of the
consideration, lawful title of the vendor, full description
E of the vended property, conveyance of the right, title,
interest, use, inheritance, property, possession, benefits,
claims and demands at law and in equity of the vendor.
[Paras 16 and 17] [815-C-F]
F Ranganayakamma and Anr. v. K.S. Prakash (0) By Lrs.
and Ors. (2008) 9 SCALE 144 - referred to.
1.7 A document, must be construed in its entirety.
Reading the document in question in its entirety, there
cannot be any doubt whatsoever that it was a deed of
G sale. It satisfies all the requirements of a conveyance of ....
sale as envisaged u/s. 54 of the Transfer of Property Act.
[Para 19] [817-E]
Bishwanath Prasad Singh v. Rajendra Prasad and Anr.
H
(2006) 4 sec 432 - relied on.
, VIMAL CHAND GHEVARCHAND JAIN & ORS. V 799
RAMAKANT EKNATH JAJOO
lshwar Dass Jain v. Sohan Lal (2000) 1 SCC 434, Roop A
Kumar v. Mohan Thedani (2003) 6 SCC 595 - referred to.
1.8 It is assumed that the parties entered into an
arrangement as a result whereof the father of the
respondent was to continue in possession. The character
of his possession, however, changed from that of an B
owner to a licensee. A legal fiction in a situation of this
nature is created in terms whereof the owner becomes
dispossessed and regains possession in a different
capacity, namely, as a licensee. [Para 21] [820-G]
-4
1.9 Right of possession over a property is a facet of
c
title. As soon as a deed of sale is registered, the title
passes to the vendee. The vendor, in terms of the
stipulations made in the deed of sale, is bound to deliver
possession of the property sold. If he does not do so, he
D
makes him liable for damages. The indemnity clause
should have been construed keeping in view that legal
principle in mind. The stipulation with regard to payment
of compensation in the event appellants are dispossessed
was by way of an indemnity and did not affect the real
nature of transaction. In any event, the said stipulation E
could not have been read in isolation. Such a case had
never been made out and hence cannot be allowed to be
.. raised for the first time before this court. [Paras 21, 22 and
24] [820-D-E; 821-D-F, H; 822-A-B]
F
1.10 In any event, in view of the conduct of the
respondent, he cannot claim equity. An equitable relief can
be prayed for by a party who approaches the court with
clean hands. (Para 25] (822-F-G]
., Case Law Reference G
AIR 2007 SC 2191 Referred to. Para 15
(2008) 9 SCALE 144 Referred to. Para 16
(2006) 4 sec 432 Relied on. Para 19
H
800 SUPREME COURT REPORTS [2009] 4 S.C.R '
....
A (2000) 1 sec 434 Referred to. Para 19
(2003) 6 sec 595 Referred to. Para 19
(2006) 1 sec 697 Referred to. Para 20
(2003) 6 sec 595 Referred to. Para 20
B
(2006) 6 sec 293 Referred to. Para 20
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1784
Of 2009
,.__
c From the Judgement and Order dated 20.02.2007 of the
High Court of Judicature at Bombay, in Second Appeal No. 758
of 2006.
Shyam Divan, Gaurav Kejriwal, Vasuman Khandelwal, with
him, for the Appellants.
D
Jaideep, Su brat Birla (for S.C. Birla), for the Respondents.
The Judgement of the Court was delivered by
S.B. SINHA, J.
E 1. Leave granted.
2. Plaintiff is the appellant before us.
Father of the respondent was owner of four god owns and
the land surrounding them admeasuring 1 acre and 4 guntas
F being Survey No.462, situated at Village Saikheda, Taluka
Niphad. District Nasik. The said godowns were numberd as
Grampanchayat No. 753 to 761.
Indisputably, a deed of sale was executed by the father of
the respondent in favour of Vim al Chand Ghevar Chand Jain &
G Co .. a partnership firm, on or about 29.6.1974. The said deed
of sale was registered at Mumbai. Respondent himself was a
witness to the said deed of sale.
On or about 1. 7 .1978, the possession of the said property
was allegedly handed over to the father of the respondent as a
H
VIMAL CHAND GHEVARCHAND JAIN & ORS. V. 801
RAMAKANT EKNATH JAJOO [S.B. SINHA, J.]
licensee at an agreed licence fee of Rs.1,257.50 per month. A
The said partnership firm was dissolved pursuant whereto the
appellant became the owner of the said property. Appellants
contend that the respondent had made payments towards
licence fee by a cheque but when deposited, the same was
dishonoured. B
On the said contention, appellant filed a suit for recovery
of possession which was marked as Special Suit No.330 of
1987 praying, inter alia, for the following reliefs:
(a) That it be declared that the Defendant has no right, c
title or interest of any nature whatsoever in respect of
the property, viz., being the plot of land admeasuring
one acre four gunthas or thereabouts, that is 5,324
sq. yards (44 gunthas x 121 sq. yds.) equivalent to
4451.53 sq. meters, along with 6 (six) corrugated
D
iron-sheet god owns, one house and one well thereon,
known as Kandechichawli situated at Gram
Panchayat Nos.753 to 761 in the village Saykheda,
Sub-District Niphad, District Nasik or say part
thereof, or to store or keep any goods, articles or
things therein or to use, enter upon or remain upon E
the said property or any part thereof, and that the
.4 Defendant is in wrongful use and occupation of the
said property.
(b) That the Defendant be ordered to remove himself, F
his servants, agents and all his goods, articles and
things from the said property.
(c) That the Defendant by himself, his servants and
agents or otherwise howsoever be restrained by a
. perpetual order and injunction of this honourable Court G
from in any manner storing or keeping any goods,
articles or things or using, occupying or entering upon
or remaining in use and occupation of the said
property or any part thereof.
H
802 SUPREME COURT REPORTS [2009] 4 S.C.R.
A (d) That the Defendant be ordered and decreed to pay
to the Plaintiffs the sum of Rs.45,270/- being the
•
arrears of storage charges and/or compensation for
the period of three years prior to the institution of the
suit at the rate of Rs.1,257 .50 per month with interest
B on Rs.45,270/- at the rate of 18% per annum from
the date of filing of the suit till the Defendant remove
himself, his servants and agents and his goods,
articles and things from the said property.
(e) That pending the hearing and final disposal of the
c suit, the court receiver or some other fit and proper
be appointed Receiver of the said property, with all
powers under Order 40, Rule 1 of the Code of Civil
Procedure.
(f) That pending the hearing and final disposal of the
D
suit, the Defendant by himself, his servants and
agents or otherwise howsoever, be restrained by an
Order and Injunction of this Hon'ble Court, from in
any manner, storing or keeping any goods, articles
or things or using or entering upon or remaining in
E use or occupation of the said property or any part
thereof.
(g) That pending the hearing and final disposal of the
suit, the Defendant, his servants and agents or
F otherwise howsoever, be restrained by an order and
Injunction of this Hon'ble Court from in any manner
dealing with or disposing of, or alienating or
encumbering or creating any right, title or interest in
favour of any one in respect of the said property or
any part thereof."
G .,
3. Respondent, in his written statement, denied and
disputed the said transactions. We may notice some of the
statements made therein :
"25. The title of the suit property was with my Advocate.
H
VIMAL CHAND GHEVARCHAND JAIN & ORS. V. 803
RAMAKANT EKNATH JAJOO [S.B. SINHA, J]
After that I have received the title. Plaintiffs have never A
objected to that. I was never the owner nor having
possession after this suit. I have made a wrong
application to put my name as owner. And enclosed
statement in English. Plaintiffs are calling th is
statement in English as Sale Deed. Neither me nor B
my father have executed any Sale Deed. We have
never sold the suit property.
26. Thinking that, I store onions in the suit property the
plaintiffs have created a wrong story of storage
charges and asked for a big amount from me which c
is not acceptable by me. Plaintiffs are doing business
of earning interest illegally for which they use various
names. Various firms are being opened. All these
firms and names are bogus. Few days back plaintiffs
in the plaint. One bogus firm was opened in 1981 by D
the plaintiffs. Some relations have been shown by
that firm with me. That firm has given some cheques
to me. Some entries have been made by that firm for
that cheque given to me. After some neat calculation
it has been shown that the cheque is for storage E
charges has started in the plaints. Plaintiffs have
collected a lot of information on about me. I understand
.; that plaintiffs are making open plans and skillfully
make some transactions and showing some relation
file suits and get orders. F
27. The relation of licensor and licensee was never
existing between us and no Deed has been executed.
Plaintiffs have applied for title name in record of rights
after filing the suit and thus various wrongs have been
~· committed. Plaintiffs have pressurized my servants G
and given them attraction of money and succeeded
obtaining various xerox copies of some papers. After
arranging many things various photos have been
taken. Besides this, plaintiffs are doing various other
business. H
804 SUPREME COURT REPORTS [2009] 4 S C.R
A 28. Plaintiffs have arranged to pay taxes of the suit
property, and paid the taxes of Saikheda on 11 1.88
and 23.1.88 and received the receipt. The cashier
accepting the tax does not have a responsibility of
inquiring that who is paying the tax and 1s been never
B inquired ..
29. Plaintiffs have been recorded in cross-examination
at the time of making application from title names in
record of rights at Saykheda. At that time plaintiffs
have accepted many many things which are stated
C here. At that time, false Sale deed was produced
which plaintiffs have stated as registered. Revenue
authorities have ordered to mention plaintiffs names
in the column of 'other rights'. Out of such other rights
plaintiffs does not get any right to the property. Further,
D order of revenue authorities is illegal, and is out of
the law and out of their rights of making order and
such order is a nullity. Because of such order plaintiffs
does not get any rights and therefore plaintiffs suit is
wrong not tenable."
E 4. Before the learned Trial Judge, the defendant-
respondent did not examine himself. He, however, examined
three witnesses in support of his plea with regard to possession.
The learned Trial Judge, inter alia, framed the following
F issues:
"1. Does plaintiff prove that was In affirmative
registered as Mis Kewalchand
Baniram & sons
2. Does the plaintiff prove that he In Negative
G
purchased the suit property by
registered sale deed dated
29.6.78 as alleged?
3. Does plaintiff prove that the In negative"
H defendant is licensee and
VIMAL CHAND GHEVARCHAND JAIN & ORS. V. 805
RAMAKANT EKNATH JAJOO [S.B. SINHA, J.]
that he was paying the storage A
charges Rs.1257.50 ps. P.m. to
the plaintiff?
5. One of the issues, as noticed hereinbefore, framed is
as to whether the plaintiff purchased the property. The learned
Trial Court held that Sections 91 and 92 of the Indian Evidence 8
Act has no application. It was opined that the circumstantial
evidences show that the sale deed was executed only by way
of a money lending transaction. It was held that the appellants
have failed to prove that the suit property was purchased by
them by reason of the aforementioned deed of sale dated C
29.6.1978.
On the said findings, the suit was dismissed.
An appeal was preferred by the appellant thereagainst.
During the pendency of the said appeal, the written statement D
was amended by inserting paragraph 25A therein which reads
as under:
"25A) Along with the said sale deed of the said dated
29/6/1978 this defendant is saying this also that this sale E
deed is nominal and of the bogus nature that was never
implemented and through it the plaintiff had never got any
type of ownership and he is not getting it and the same
-1 was not in the mind of the father of plaintiff and defendant
and oever he was not keeping this in his mind. The
possession of the property was never given to the F
appellant. In this matter the true fact is such that the firm
of the plaintiff namely M/s. Ghevarchand Bhaniram & Co.
and its partners are doing the business of money lending.
His other firms also doing the money lending business.
The Firm and its partners and their other firm and the G
father of the defendant in between them many transactions/
dealings was taken place and now it is also inexistence.
There was no reason to purchase the property by the said
firm afsiya Kheda and not at all. There is a necessity of the
money amount to the father of the defendant. Therefore, H
806 SUPREME COURT REPORTS [2009] 4 S.C.R.
A the father of the defendant had taken the amount of
Rs.50,000/- (Fifty Thousand Rupees) as a loan from the
said firm and its co-sharers. And the mortgage of the said
amount is given in writing the said sale deed at Bombay
by the father of the defendant. There is no intention of the
B implementation of that sale deed and never and the same
was not in the mind of both the persons (plaintiff and
defendant) and never it in their minds at all. And according
to it the possession is not given and never possession is
taken. The returning back of the payment of loan is done
c in time to time. In this way the said sale deed is mortgaged
as the money lender transaction and through it the plaintiff
or its firm had not obtained any ownership and they did
not obtained its actual possession. Therefore, the contents
written in the said contents written in the said sale deed
are not admitted by the defendant and he is not accepted
D
it and before it the suit which is brought by the plaintiff
cannot be maintained. Therefore, the suit of the plaintiff
should be cancelled."
Respondent examined himself thereafter. He, inter alia,
E by way of an affidavit, stated :
"3. Appellant/plaintiffs have filed the present suit on the
sale deed dated 29/6/1978 and plaintiff claim to have
I·
owner by means of the said sale deed and claim that the
respondent are licensee and the suit is filed forobtaining
F possession from respondents. I have in my written
statement denied plaintiffs claim of ownership and have
claimed that said sale deed is sham and without effect
and plaintiffs do not get any ownership rights because of
the said sale deed. Said sale deed is without any legal
G effect and is sham document in the nature of security for
money lending.
4. In respect to the sale deed dated 29.6.1978 present
respondent states that said sale deed is sham and was
never given effect to and the plaintiff did not and presently
H
VIMAL CHAND GHEVARCHAND JAIN & ORS. V. 807
RAMAKANT EKNATH JAJOO [S.B. SINHA, J.]
do not acquire any ownership rights by the said sale deed A
and respective fathers of the plaintiff and the respondent
had no such intention. The possession of the property had
never been handed over to the appellant. The fact is that
plaintiff's firm M/s. Ghevarchand Bhaniram and Co. and
its partners carry the business of money lending. There B
other firm also carries the same business of money
lending. There were and there are many money lending
transactions between the said firms and defendant's father.
Said firm had no reason to purchase the property at
Saikheda. As defendant's father was in need of money he C
had borrowed as a loan a sum of Rs.50,000/- from said
firm and its partners and defendant's father had executed
the said so called sale deed dated 29.6.1978 as a security
for the said loan amount. As the plaintiff firm and its
partners have no license for money lending business they
have obtained the said so called sale deed from D
defendant's father at Mumbai. It was never meant to be
given effect to and is not presently meant to be given
effect to and accordingly possession was not transferred
and is not transferred. Plaintiff's loan amount was repaid
from time to time and said sale deed was executed as a E
document for security for the money lending transaction
and the plaintiff or his firm has not & never acquired any
-1 ownership rights because of the said sale deed and has
not acquired actual possession. Therefore, said so called
sale deed and its contents are not admitted to defendant F
and the suit filed on its basis cannot be maintained
plaintiff's suit be dismissed."
6. In his cross-examination, however, he accepted that his
firm named 'Eknath Gondiram Jadoo' was an income-tax payee
• from 1954-55. He had also been paying income-tax individually. G
Books of account have been maintained by the firm regularly.
He accepted his signature in the cheque having been issued
as proprietor of his firm. He furthermore admitted that his firm
had business relations with Ghevarchand Bhaniram & Co. He
moreover stated : H
808 SUPREME COURT REPORTS (2009] 4 S.C.R.
A "I have been shown Sale deed in the plaint. This deed
bears my signature as a witness. I was personally present
at the time of registration of this Sale Deed. At that time
me and my father were residing in Mumbai. My father was
very old. For the sake of convenience, we have registered
B the sale deed in Mumbai, since me, my father and Shri
Ghevarchand Seth were staying in Mumbai. We have not
taken any legal opinion before registration. Account of
this transaction was privately kept by me. I do not
remember that at time of registration, Sub-Registrar had
c told my father about the Deed of sale of property. It is not
true that possession was given at the time of registration
of Sale Deed. At the time of Sale, my father has a/so
handed over the original title documents of the property,
from whom we have purchased the property; to Shri
Ghevarchand Sheth. My father has not given any notice
D
that he has not sold the property to Shri Ghevarchand
Sheth's firm. When this transaction occurred, we owe
Rs.50,000/- to Shri Ghevarchand Sheth's Firm. To show
this loan, I have written proof and oral. The proof has not
been produced in the Court for which I have no reason to
E say. After this transaction of loan I won't be able to say
whether I have taken any other loans from them. In the
Accounting year 1978-79, my firm owe to Shri
Ghevarchand firm Rs.50,000/- was not shown in our Ale
books. It is a/so true that even in income tax return I have
F not shown this loan taken from Ghevarchand firm,
because I was not to repay this money to them even
afterwards. I have shown suit property as my firms property
in Registrar of firm. I cannot answer this question. It is not
true that my father has sold his private property to
G Ghevarchand Bhaniram. The possession is given, this
clause in sale deed is not true Rs.50,000/-was red. By my
father as is mentioned in the Sale Deed by my father, I
cannot say anything about it."
(Emphasis supplied)
H
VIMAL CHAND GHEVARCHAND JAIN & ORS. V 809
RAMAKANT EKNATH JAJOO [S.S. SINHA, J.]
7. The First Appellate Court framed an additional issue as A
to whether the deed of sale deed of sale was executed as a
security for the amount of money lending of Rs.50,000/- and
was not intended to be acted upon as a sale deed.
Upon taking into consideration the evidence brought on
record by the parties, the learned Trial Court enumerated the 8
following circumstances to hold against the appellant :
"(i) For the property of Rs.50,000/- the monthly charges
for its occupation of Rs.1,257.50 appear excessive.
With such amount in 4 years, the entire price of the c
property can be realized which is not befitting to the
common course of transaction.
(ii) There is evidence on record that for the god own, the
society is paying Rs.45/- per month only to the
defendant. D
•
(iii) The plaintiffs are businessmen and were not likely to
allow the rent/licence fee accumulated for 40 morths.
During this period there would have been a demand
in writing.
E
(iv) The second cheque of Rs.10,000/- at Exh.93 is
similar type of cheque paid after 15 months of the
earlier. Charges of 15 months were to the extent of
Rs.18,862.50. How such part payment after 15
months is accepted even though the earlier cheque F
was dishonoured and no steps for the recovery are
taken is not explained by the plaintiffs. In fact, when
the monthly charges ere agreed, the payments would
have been made regularly by the defendant and if
not so, would have been insisted by the plaintiffs.
G
The dealing between the parties, however, are not
accordingly."
8. The High Court also enumerated the circumstances in
favour of the appellants.
H
810 SUPREME COURT REPORTS [2009] 4 S.C.R.
A In regard to the question that the defendant-respondent
never took the plea of transaction being that of a loan, the
Appellate Court held that the said defect was cured by reason
of the alternative stand taken by the respondent, holding:
"It is no doubt true that the alternative defence is raised at
B a very late stage. There is no substance in the submission
of the coun~el for the appellants that the intention behind
executing a document is the state of mind of that person
and he must disclose about it, at the earliest opportunity.
That if he discloses later on, it can be considered as an
c afterthought
But then in the present case the strong circumstantial
evidence discussed above, when makes out a reasonable
probability of the execution of the sale deed with otherwise
intention, omission on the part of the defendant to state it
D specifically will not affect him much. Moreover, we cannot
forget that in our system the pleadings are drafted by the
•
advocates on the basis of the information given by their
clients. Pleadings are prepared by the Advocates as per
their knowledge and experience and if any wrong is
E committed by the Advocate in making out the deference
or if any material thing is omitted, the same is glaringly
coming before us emerging out before us from the
circumstance then we need not attach much importance ;.
to the defects in the pleadings and omission. The settled
F position of law, therefore, says that moffusil pleadings are
to be liberally construed."
9. The First Appellate Court, however, did not believe that
part of the case of the appellant that the amount of loan had
been repaid.
G
It was in the aforementioned situation directed :
"1. The appeal is partly allowed with costs.
2. Judgment and decree of the Trial Court is hereby set
aside and the suit is partly decreed as under :
H
VIMAL CHAND GHEVARCHAND JAIN & ORS. V. 811
RAMAKANT EKNATH JAJOO [S.B. SINHA, J.]
The plaintiff's suit for mandatory injunction as well as A
prohibitory injunction and for the storage charges at the
monthly rate of Rs.1,257.50 stands dismissed.
The plaintiff are, however, entitled to the amount of
Rs.50,000/- with interest thereon @ 6% per annum from
29.6.1973 till its realization. B
The plaintiffs are entitled to the costs of the suit.
The defendant do deposit the said amount or pay the
same to the plaintiffs immediately failing with the plaintiff
can recover it through the court." C
10. The High Court dismissed the Second Appeal
preferred thereagainst, inter alia, opining :
"It is true that initially such defence was not raised in the
written statement, however, in the first appec;il the D
amendment of the pleadings was sought and it was
allowed by the court and by way of the amendment the
respondent-defendanfraised such contentions. The order
of allowing the amendment was not challenged by the
appellant in further proceedings. In view thereof the E
submissions of Mr. Sugadre, learned counsel for the
appellant that in the absence of substantive pleadings the
courts below have committed error in entertaining the plea
that the sale deed was not intended to be acted upon and
it was a money transaction must be rejected. F
The submission of Mr. Sugdare based on the judgment of
the Supreme Court in Roop Kumar (supra) also deserves
to be rejected outright. It is true that under Section 91 of
the Evidence Act, oral evidence against the terms of
contract is not permissible, but to this provision exception G
is made out by Section 92 which allows such oral evidence
as per the third proviso thereto. It is well settled, that a
plea that title has not passed on the execution of the sale
deed can be raised to rebut the contents. of the document
and intention of the parties behind executing the document H
812 SUPREME COURT REPORTS [2009] 4 S.C.R.
A can be gathered from the recitals in the document or by •
other attending circumstances. It is thus clear that from the
circumstantial evidence if it is inconsistent with the recitals
of the document, it is open for the court to infer that the
contents of the document are rebutted. This is what exactly
B the courts below have done. Taking overall facts and
circumstances of the case into consideration, in my opinion,
the courts below have rightly held that the document was
not intended to be acted upon and it was executed by way
of security. I find no reason to interfere with the findings of
c fact. I find sufficient material on record to sustain those
findings. In the circumstances the appeal deserves to be
rejected. Order accordingly."
11. Mr. Shyam Diwan, learned senior counsel appearing
on behalf of the appellant would urge :
D
(i) The courts below committed a serious error insofar ,
as they failed to adhere to the best evidence rule as
contained in Sections 91 and 92 of the Indian
Evidence Act.
E (ii) First Appellate Court as also the High Court
furthermore committed a serious error insofar as they
failed to take into consideration that subsequent plea
raised by the respondent by way of amended written
statement and his evidence could not have been
F relied upon; particularly when he has utterly failed to
prove either taking of loan or repayment thereof.
12. Mr. Jaideep Gupta, learned senior advocate appearing
on behalf of the respondent, on the other hand, contended
i) Three courts having arrived at concurrent findings of
G
fact, this Court should not interfere therewith.
ii) The purported deed of sale spells out the real
transaction between the parties as would be evident
from the following :
H
VIMAL CHAND GHEVARCHAND JAIN & ORS. V. 813
RAMAKANT EKNATH JAJOO [S.B. SINHA, J.]
" "It is a condition of this sale that in case the Purchasers A
shall be deprived of possession of the said property (said
premises) or any part thereof by virtue of any act of Vendor
or his heirs or assigns or successors in interest or by any
person claiming title thereto vendor and his estate shall
be bound to compensate the Purchasers for such loss or 8
damage arising from such act and shall be liable to refund
the purchase money with interest or by any person claiming
title thereto the Vendor and his estate shall be bound to
compensate the Purchasers for such loss or damage
arising from such act and shall be liable to refund the c
purchase money with interest from the date of the
deprivation or accrual of such loss."
(iii) Nature of transaction being a money lending one as
would appear from the purported deed of sale itself
and the plaintiff-appellant having failed to prove its D
a
case of creation of leave and licence, the judgment
of the Trial Judge is unassailable in view of the
extrinsic evidence that the transaction was a sham
one and, thus, could not be eschewed and for the
said purpose Section 92 of the Indian Evidence Act E
does not debar adduction of additional evidence.
(iv) Although the burden of proof was on the respondent,
he must be held to have discharged the same fully.
-
13. The deed of sale dated 29.6.1978 was a registered F
one. It, therefore, carries a presumption that the transaction was
a genuine one. Respondent was the son of the vendor. He was
an attesting witness. In his written statement, he categorically
denied execution of the said deed of sale. He also denied that
he had attested the document. He even did not examine himself G
before the learned Trial Judge. His witnesses merely proved
his possession. The fact that the respondent's father was put in
possession with effect from 1.7.1978 was in dispute. What was
in dispute was the character of his possession. Did he continue
to possess the godown as owner thereof or on the basis of leave
H
A
814 SUPREME COURT REPORTS [2009] 4 S.C.R.
and licence was the question, which was not considered in its
-
proper perspective by any of the three courts below.
14. The learned Trial Judge without any pleading in that
behalf proceeded to determine the nature of transaction and
opined that in effect and substance, the transaction was a money
B lending one.
No such issue was framed as no such contention was
raised in the written statement. Respondent realized his mistake.
He, therefore, amended his written statement and examined
c himself as a witness.
15. It is true that the written statement was permitted to be
amended. Additional evidence pursuant thereto was also
permitted to be adduced. The First Appellate Court, however,
had a duty to properly appreciate the evidence in the light of the
D pleadings of the parties. While doing so, it was required to pose
unto itself the correct questions. The deed of sale being a
registered one and apparently containing stipulations of transfer
of right, title and interest by the vendor in favour of the vendee,
the onus of proof was upon the defendant to show that the said
E deed was, in fact, not executed or otherwise does not reflect
the true nature of transaction. Evidently, with a view to avoid
confrontation in regard to his signature as an attesting witness
as also that of his father as vendor in the said sale deed, he did
not examine himself. An adverse inference, thus, should have
F been drawn against him by the learned Trial Court. {[See
Kamakshi Builders v. Ambedkar Educational Society & Ors.
[AIR 2007 SC 2191]}.
16. The First Appellate Court, however, having regard to
the amendment carried out in the written statement setting up a
G totally inconsistent plea from the one taken before the learned
Trial Court by the respondent posed a question as to whether
the respondent has discharged the burden placed on him.
For the said purpose, critical analysis of the prevarication
of the stand taken by the respondent from stage to stage also
H
VIMAL CHAND GHEVARCHAND JAIN & ORS. V. 815
RAMAKANT EKNATH JAJOO [S.B. SINHA, J]
• became relevant. It is true that when a pleading is amended, it, A
subject to just exceptions. takes effect from the date when
original one is filed. It is also true that the Appellate Court, in
exercise of its discretionary jurisdiction and subject to fulfillment
of the conditions laid down under Order XU Rule 27 of the Code
of Civil Procedure, may allow the parties to adduce additional B
·evidence.
Pleadings of the parties, it is trite, are required to be read
as a whole. Defendants, although are entitled to raise alternative
and inconsistent plea but should not be permitted to raise pleas · .
which are mutually destructive of each other. It is also a cardinal C
principle of appreciation· of evidence that the court in
considering as to whether the deposition of a witness and/or a
party is truthful or not may consider his conduct. Equally well
settled is the principle of law that an admission made by a party
in his pleadings is admissible against him proprio vigore. [(See D
Ranganayakamma & Anr. v. K.S. Prakash (DJ By Lrs. & Ors.
[2008 (9) SCALE 144]
17. It is for the aforementioned purpose, the deed of sale
was required to be construed in proper perspective. Indisputably,
the deed of sale contained stipulations as regards passing of E
the consideration, lawful title of the vendor, full description of the
vended property, conveyance of the right, title, interest, use,
inheritance, property, possession, benefits, claims and
demands at law and in equity of the vendor. The said clause .
uses the terms "granted, released, conveyed and assured or F
intended or expressed so to be with their and every of their rights,
members and appurtenances unto and to the use and benefits
of the said purchasers for ever subject to payment of all rent,
rates taxes ... "
G
It was stipulated :
"He, the Vendor has now has in himself good right, full
power and absolute authority to grant, release, convey
and assure the said premises hereby grants, released,
assured or intended to be unto and to the use of the H
816 SUPREME COURT REPORTS [2009] 4 S.C.R
A Purchasers in the manner aforesaid and that shall be lawful
for the purchasers from time to time and at all times
hereafter peaceably and quietly to hold, enter upon, have
occupy, possess and enjoy the said premises hereby
granted with their appurtenances and receive the rents,
B issues and profits thereof and every part thereof to and for
their own use and benefits without any suit. lawful eviction,
in eruption, claim and demand whatsoever from or by the
Vendor or by any person or persons lawfully or equitably
claiming or to claim by, from under or in trust for him or any
c of him AND that free and clear and freely and clearly and
absolutely acquitted, exonerated released and for ever
discharged or otherwise by the Vendor well and sufficiently
saved, defended, kept harmless and indemnified of, from
and against all former and other estates, titles, charges
and incumbrances whatsoever either already or to be
D
hereafter had made, executed occasions or suffered by
the Vendor or by any other person or persons lawfully or
equitably claim or to claim by, from under or in trust for him
or any of him AND FURTHER that the Vendor and all
persons having or lawfully or equitably claiming any estate,
E right, title and interest or law or in equity in the said
premises hereby granted, released, conveyed, assured
or intended so to be or any part thereof by, from under or
in trust for him the vendor or any him shall and will from
time to time and all times hereafter at the test and costs
F execute all such further and other lawful reasonably acts,
deeds, things matter conveyances and assurances in law
whatsoever for the better, further and more perfectly and
absolutely, granting, realizing conveying and assuring the
said premises and any part thereof hereby granted,
G released, conveyed and assured unto and to the use of
the purchasers in manner aforesaid as shall or may be
reasonably required by the purchasers, their successors
or assigns or their counsel in law."
18. It further contains a stipulation that the purchaser had
H
VIMAL CHAND GHEVARCHAND JAIN & ORS. V. 817
RAMAKANT EKNATH JAJOO [S.B. SINHA, J]
been in possession of the property and the original sale deed A
dated 15.7.1968 was handed over. One of the stipulations in
regard whereto the contention of the_ respondent that the deed
of sale in fact was a money lending transaction was raised reads
as under: ·
"It is a condition of this Sale that in case 'the Purchasers 8
shall be deprived of possession of said property (said
premises) or any part thereof by virtue of any act of Vendor
or his heirs or assigns or successors in interest or by any
person claiming title thereto the vendor and his estate
shall be bound to compensate the Purchasers for such C
loss or damage arising from such act and shall be liable
to refund the purchase money with interest or by any person
claiming title thereto the Vendor and his estate shall be
bound to compensate the Purchasers for such loss or
damage arising from such act and shall be liable to refund D
the purchase money with interest from the date of the
deprivation or accrual of such loss."
19. A document, as is well known, must be construed in its
entirety. Reading the said in its entirety, there cannot be any E
doubt whatsoever that it was a deed of sale. It satisfies all the
requirements of a conveyance of sale as envisaged under
-' Section 54 of the Transfer of Property Act.
In Bis.,wanath Prasad·Singh v. Rajendra Prasad& Anr.
[(2006) 4 SCG 432], this Court held : F
"16. A deed as is well known must be construed having
regard to the language used therein. We have noticed
hereinbefore that by reason of the said deed of sale, the
right, title and interest of the respondents herein was
f
conveyed absolutely in favour of the appellant. The sale G
deed does not recite any other transaction of advance of -
any sum by the appellant to the respondents which was
entered into by and between the parties. In fact, the recitals
made in the sale deed categorically show that the
respondents expressed their intention to convey the H
818 SUPREME COURT REPORTS [2009] 4 S.C.R.
A property to the appellant herein as they had incurred debts
by taking loans from various other creditors.
It was furthermore observed :
"19. It is of some significance to note that therein the
B expressions "vendor", "vendee", "sold" and "consideration"
have been used. These expressions together with the fact
that the sale ·deed was to be executed within a period of
23 months i.e. up to June 1978, evidently the expression
"vaibulwafa" as a condition was loosely used.
c 20. Furthermore, the agreement was also executed for a
fixed period. The other terms and conditions of the said
agreement (ekrarnama) also clearly go to show that the
parties understood the same to be a deed of reconveyance
and not mortgage or a conditional sale.
D
21. The terminology "vaibulwafa" used in the agreement
does not carry any meaning. It could be either "bai-ul-
wafa" or "bai-bil-wafa".
22. It will bear repetition to state that with a view to ascertain
E the nature of a transaction the document has to be read
as a whole. A sentence used or a term used may not be
determinative of the real nature of transaction."
Despite the fact that the term 'baib-ul-wafa' was used in
the transaction, this Court held that the document in
F question was a deed of reconveyance and not a mortgage
with conditional sale, stating :
"23. Baib-ul-wafa, it was held by the trial court connotes
only an agreement for sale. In terms of Section 91 of the
G
Evidence Act, if the terms of any disposition of property is
reduced to writing, no evidence is admissible in proof of
the terms of such disposition of property except the
document itself."
It relied upon a decision of this Court in lshwar Dass Jain
H v. Sohan Lal [(2000) 1 SCC 434] and Roop Kumar v.
VIMAL CHAND GHEVARCHAND JAIN & ORS. V. 819
RAMAKANT EKNATH JAJOO [S.B. SINHA, J.]
Mohan Thedani [(2003) 6 SCC 595] to which we would A
revert to a little later.-
20. Indisputably when a true character of a document is
questioned, extrinsic ev.idence by way of..oral evidence is
admissible. {See R. Janakiraman Vs. State Rep. by Inspector
of Police, CBI, SPE, Madras (2006) 1 SCC 697 para 24]; Roop B
Kumar Vs. Mohan Thedani [(2003) 6 SCC 595, para 19]; and
State Bank of India &Anr Vs. Mula Sahakari Sakhar Karkhana
""' Ltd. ((2006) 6 sec 293 paras 23 to 32]}.
21. We would, therefore, proceed on the premise that it c
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
D
been handed over. Symbolical possession if not actual physical
possession, thus, must be held to.have been handed over. It
was acted upon. Appellants started paying rent in respect of
the said property. No objection thereto has been raised by the
respondent.
E
Respondent paid certain amount by cheque towards the
licence fee. It was for him to show on what account the money
was paid. Only because the parties had other transactions by
itself was not sufficient to hold that the defendant has discharged
his onus. If the sum of Rs.50,000/- was the amount of loan F
wherefor the deed of sale was executed by way of security,
having regard to his admission that the firm is an income-tax
payee and maintains books of account in regular course of
business, failure on his part to produce any documentary
evidence merited drawing of an adverse inference.
G
Why he did not examine himself before the Trial Court or
before the Appellate Court? He should have furnished an
explanation in this regard to prove his plea. Why he failed to
produce documentary evidence had also not been explained.
The approach of the First Appellant Court in relying upon certain H
820 SUPREME COURT REPORTS (2009] 4 S.C.R.
A circumstantial evidence was also of no use. Why the plaintiffs
have purchased the properties at village Saikheda or why they
had allowed another tenant to continue were not decisive far
less relevant for construction of a document.
The First Appellate Court had arrived at a conclusion first
B and then started to assign reasons in support thereof. It, as
indicated hereinbefore, did not pose unto itself the correct
questions. 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
c 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.
Right of possession over a property is a facet of title. As
D
soon as a deed of sale is registered, the title passes to the
vendee. The vendor, in terms of the stipulations made in the
deed of sale, is bound to deliver possession of the property
sold. If he does not do so, he makes him liable for damages.
The indemnity clause should have been construed keeping in
E view that legal principle in mind.
Although evidences had been brought on record to show
that upon grant of leave and licence, the keys of godowns had
been handed over but in respect thereof no contrary findings
F had been arrived at.
We would assume that the parties entered into an
arrangement as a result whereof the father of the respondent
was to continue in possession. The character of his possession,
however, changed from that of an owner to a licensee. A legal
G fiction in a situation of this nature is created in terms whereof
the owner becomes dispossessed and regains possession in
a different capacity, namely, as a licensee.
If the appellant was able to prove that the deed of sale
was duly executed and it was neither a sham transaction nor
H
VIMAL CHAND GHEVARCHAND JAIN & ORS. V 821
RAMAKANT EKNATH JAJOO [S.B. SINHA, J.]
represented a transaction of different character, a suit for A
recovery of possession was maintainable. A heavy onus lay on
the respondent to show that apparent state of affairs was not
the real state of affairs.
It was for the defendant in a case of this nature to prove
his defence. The First Appellant Court, therefore, in our opinion, 8
misdirected itself in passing the impugned judgment insofar as
it failed to take into consideration the relevant facts and based
its decision on wholly irrelevant consideration.
A heavy burden of proof lay upon the defendant to show c
that the transaction was a sham one. It was not a case where
the parties did not intend to enter into any transaction at all.
Admittedly, a transaction had taken place. Only the nature of
transaction was in issue. A distinction must be borne in mind in
regard to the nominal nature of a transaction which is no
0
transaction in the eye of law at all and the nature and character
of a transaction as reflected in a deed of conveyance. The
construction of the deed clearly shows that it was a deed of
sale. The stipulation with regard to payment of compensation in
the event appellants are dispossessed was by way of an
indemnity and did not affect the real nature of transaction. E
22. In any event, the said stipulation could not have been
read in isolation. The judgment of the First appellate Court was,
therefore, perverse. The High Court, thus, failed to consider the
real dispute between the parties. F
23. In view of the findings aforementioned, it is not
necessary for us to enter into the question as to whether the
extrinsic evidence was admissible to show that a transaction of
· sale was, in fact, a sham one.
G
24. We cannot also accept the contention of Mr. Gupta
that the decree should be allowed to be sustained with reference
to the aforementioned stipulation in the deed of sale that in case
the plaintiffs are dispossessed, the defendants would pay
compensation. Such a case had never been made out. Such a
H
•
822 SUPREME COURT REPORTS [2009] 4 S.C.R
A question cannot be allowed to be raised for the first time before
US.
25. In any event, in view of the conduct of the respondent,
he cannot claim equity. An equitable relief can be prayed for by
a party who approaches the court with clean hands.
B
26. We, therefore, have no hesitation in holding that in the
facts and circumstances of this case, the plaintiff's suit should
have been decreed.
27. For the reasons aforementioned, the impugned
C judgments are set aside with costs throughout. The appeal is
allowed with costs. Counsel's fee assessed at Rs.25,000/-.
K.K.T. Appeal allowed.
•
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