Bhargavi Amma vs Parukutty Amma

K.A. Abdul Gafoor, J.—The plaintiff lost her suit in both the Courts below. Therefore, this Second Appeal. She claimed recovery of possession of plaint schedule property extending about 3 cents which forms part of a larger extent of 7.625 cents, based on Ext.Al sale deed dated 22.3.62. Defendant No. I is her own sister. She owned the said larger extent of the property in terms of Ext.B 15 document. Out of that, according to the plaintiff defendant No. 1 sold three cents as per Ext.A 1. They were living together until 10.10.90 when the plaintiff shifted to another residence. She seeks recovery of the said three cents, said to be purchased by her as per Ext.A 1.

The suit was contested by the defendant No. 1 who is no more now. Defendants No.2 and 3 are her legal representatives. Defendant No.2 was already on record at the initial stage of the suit. The suit was contested on the ground that Ext.A I was only a sham document and it was never intended to be acted upon. No possession of the property passed on to the plaintiff, at any time. The defendant at all point of time was in possession of the property it was executed only to help the plaintiff to obtain a non-refudnable advance from her provident fund account. Even after Ext.A 1 deed the defendant No. 1 had obtained licence of reconstruction of the building, latrin, cow shed etc., from the Corporation oYCochin and such constructions were made in the property covered by Ext.A 1. Therefore, the plaintiff was not entitled to get the relief in the suit. It was also contended that Ext.A 1 was bad in terms of S.8(2) of the Hindu Minority and Guardianship Act as no sanction from the Court had been obtained. The property, as per Ext.B 15 was in the joint ownership of defendant No. 1 as well as defendant No.2 and 3 who were at the relevant time minors. Therefore on that count also nothing flowed out of Ext.A 1 to the plaintiff, being ajvoid document.

These two contentions wece found in favour of defendant No. 1 to dismiss the suit. In the appeal by the plaintiff, the decree of the trial Court as confirmed. It is in the above circumstances this second appeal mainly raising two substantial questions of law. First one is centered around S.92 of the Evidence Act to the effect that no evidence regarding any oral agreement could be adduced with reference to a document in writing between the parties. In other words when Ext.A 1 document had been executed by the defendant No. 1 in favour of plaintiff, the defendant No. 1 in the light of the said provision, could not contend that it was not supported by consideration nor was it intended to be acted upon. The second one is with reference to S.8(3) of the Hindu Minority and Guardianship Act, 1955 to the effect that the document concerning the property of any minor shall only be avoidable at the instance of the minor and within the prescribed period. Therefore, the finding of the both the Courts below are illegal and liable to be interfered.

Elaborating these two points it is contended that Ext. A1 was voluntarily executed by the defendant No. 1 transferring a portion of the property held by her and other two defendants as per Ext.B15. Ext.Al evidenced that transfer. Ext.Al speaks about the consideration passed on between the parties. In such circumstances, Ext.Al speaks by itself and there arise no question of any further evidence being adduced by the defendants to the effect that Ext. A1 as not intended to be acted upon nor was there any consideration. In other words, the defendant No. 1 cannot now avoid Ext.A 1 in any count, that being a registered document evidencing the transfer of plaint schedule property. Therefore, findings of the Courts below accepting the evidence tendered by defendant No.T to the effect that Ext.Al was not intended to be acted.upon and that it was a sham document and was without any consideration, are bad. It is further contended that, even though defendant Nos.2 and 3 were minors on the ate of Ext. A1 they did not opt to avoid Ext.A 1 within three years of their attaining majority. In such circumstances, S.8(3) of the Hindu Minority and Guardianship Act, 1955 will operate and defendants cannot avoid Ext.Al document as they did not elect so within the time allowed. The appellant re-enforces this contention relying on the decision reported in Divya Dip Singh and others Vs. Ram Bachan Mishra and others, .

Respondent No.2, the available contesting defendant, in this appeal contended that the document Ext.A 1 was never been denied. That was duly executed by his mother deceased defendant No. 1. The contention was that it was never intended to be acted upon and there was no consideration. The possession was also never been handed over to the plaintiff. In such circumstances, S.91 or 92 of the Evidence Act is not attracted as the attempt of the defendant was not to adduce any evidence against the contents of the document but to the effect that such a transaction itself had never taken place. In support of this contention, the decisions reported in AIR 1936 70 (Privy Council) and in Smt. Gangabai Gilda Vs. Smt. Chhabubai Gandhi, are relied on. It is further contended, relying on the decision reported in Iruppakkatt Veettil Viswanathan''s wife Santha Vs. Deceased Kandan''s L.Rs. Wife Cherukutty and Others, , that the transaction covering the minors property by the natural guardian need not be avoided. That can be inferred from the conduct of the parties.

In the above circumstances it is necessary to examine whether the findings of the Courts below are apposed to S.92 of the Evidence Act. Ext. A1 is dated 23.2.1962. It was contended by the defendant that such a document was executed in order to enable the plaintiff to obtain a non-refundable advance from the provident fund. Immediately before such execution, it is on evidence that, the plaintiff had filed Ext.B5 application before her employer, on 24.1.1962 seeking an advance. Ext.BI is an application for house building advance submitted by the plaintiff to her employer. That application is dated 6.6.1973. That contain a declaration, which is marked as Ext.BI (a) to the effect that neither she nor her husband owned house/property. It is contended that if Ext.A1 had been acted upon by the parties, necessarily the ownership over property on its strength should have been made mention of in Ext.B 1 (a) dated 6.6.1973, an application made after about a decade of Ext.Al transaction, that the plaintiff did not include or declare or disclose, the ownership of property on the strength of Ext.Al was sufficient according to the respondent, to conclude that Ext. A1 was never acted upon by the parties. It is also contended on the strength of Ext.B6, an approved plan from the Corporation with building permit dated 9.3.1962, that the defendant had constructed the building in a larger extent of plot extending about 7.62 cents covering the property made mention of in Ext.Al as well. This is more evident from the Commissioner''s Report and sketch appended thereto, including Ext.C 1 (a) and Ext.C 1 (b). Ext.C 1 (a) demarcates separately the property covered by ExtA 1 and the balance remaining out of Ext.B 15. Ext.C 1 (b) denotes the residential building, cattle shed, latrin etc., constructed within the larger extent of 7.62 cents. It further shows that all these are extending to the three cents indicated in Ext. A1. If it was intended to be acted upon, the respondents submit that the plaintiff would have necessarily objected to such construction. Ext.B7 is another plan for the construction of the latrin, sanctioned by the Corporation in 1977. It is true that at that point of time the plaintiff was residing along with the defendants in the very same property. Even then she did not object or obstruct such construction. That shows that the possession was with defendants and not with the plaintiff. It is in this perspective the finding of the lower Appellate Court to the following effect shall be looked into. The lower Appellate Court in para 11 of the judgment found as follows:

P.W.I is the plaintiff. She did not go to the Sub Registry Office for effecting registration. In the Box she swears that after the execution of the document she paid the consideration. Lower down, she swears that the payment was made subsequent to the registration. At another place she says that she entrusted the amount to her nephew who in turn paid the amount to the 1st respondent. PW2 says that he had involvement in this transaction. According to him at that time fist defendant was hard pressed for money. He says that first defendant was not present at the time of execution of Ext.Al. Plaintiff was not present. He accompanied first defendant to execute the document. He was told that an amount of Rs.800/- has to be shown in the document as sale consideration. He went to the Sub Registry Office. When they returned to the home he entrusted the amount with fist defendant. Such a version is highly unbelievable because the plaintiff and first defendant were living under a roof. The payment could have been made in the house itself without the junction of PW2. Some sort of artificiality is seen in the deposition of PW2. Thus there is want of evidence for the payment of consideration shown in Ext.A1. Such a conclusion is fortified by the testimony of DW1 who swears that at that time first defendant had no liabilities to be discharged. Ext.BI is the photo copy of the application submitted by the plaintiff for availing of a non refundable amount from the Provident Fund. Accordingly, the amount was granted by her employer. That loan was sought for constructing a residential building. That application is dated 6.6.73. Ext.Al is dated 23.2.62. In Ext.BI there is a declaration that the claimant (plaintiff) does not own house/property. She did not include the suit property in Ext.BI (a). These circumstances will eloquently demonstrate that Ext.Al was not intended to be acted upon.

Thus according to the lower Appellate Court the consideration was never proved and the plaintiff did have inconsistent version at different stages with regard to the payment of consideration and the staring document Ext.BI wherein she declared that she did not have properties. These are sufficient to hold that the document was never intended to be acted upon. In such circumstances, the defendant was entitled to adduce evidence to show that the document was a sham one with no intention to act upon as held by the Privy Council in Thyagaraja''s case that "oral evidence is admissible to show that a document executed by a person was never intended to operate as an agreement but was brought into existence solely for the purpose of creating evidence about some other matter". It was held by the Supreme Court in Smt. Gangabai Gilda Vs. Smt. Chhabubai Gandhi, , as follows:

The bar imposed by sub-s.(1) of S.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 arises 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, as entered into between the parties.

In this case, on the strength of the document examined above, the defendants had discharged the burden to prove that the document was never intended to be acted upon. In such circumstances the first question of law is answered against the appellant.

When the document was thus found to be a sham one, there arise no relevance for the second question of law raised. Appeal fails and is dismissed. No costs.