A. Samindra Shripati Choudhari & ... vs Rajaram Bhau Shinde
2012 Latest Caselaw 296 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                               
                        CIVIL APPELLATE JURISDICTION




                                                      
                       SECOND APPEAL NO. 22 OF 1990

    Shripati Ramchandra Choudhari
    (since deceased through his heirs
    & legal representatives)




                                                     
    1A. Samindra Shripati Choudhari & Ors.)             ..Appellants
          -Versus-
    Rajaram Bhau Shinde
    (since deceased)




                                          
    1(a) Akkatai Rajaram Shinde & Ors.                  ..Respondents
                            ig        ..........
    Mr.P.J.Thorat, Advocate for Appellants.

    Mr. S.R.Page, Advocate for the Respondents.
                          
                                    ..........
                                 CORAM : MRS.MRIDULA BHATKAR, J.
                                 DATE : 31ST OCTOBER 2012.

    JUDGMENT :

1 This second appeal is preferred against the judgment and order

dated 25.08.1989 passed by the District Judge thereby confirming the

judgment and decree of the trial court dated 30.04.1984. The appellant is

an unsuccessful plaintiff who has filed regular civil suit no.262/1979

against the respondent(defendant) for partition and separate possession

of one half share in the suit property based on the title.

2 The brief facts of case are as follows :

A piece of land was purchased by the respondent (defendant)

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along with Pramilabai Patil on 16.4.1962 jointly. Thus, defendant being a

co-owner, owns one half share in the said piece of land. This one half

share is the suit property. It is the case of the plaintiff that at the time of

purchase of the said property, he has contributed Rs.2,500/- i.e. 50% of

the price and thus, he has one fourth share in the entire piece of land. It

is the case of the plaintiff that though the sale-deed was executed in the

name of the defendant alone, he had handed over the possession of the

half portion of the suit land to the plaintiff and the plaintiff and the

defendant are co-sharers in the suit property. Subsequently, on

25.3.1968, the appellant i.e. the plaintiff purchased one half share of the

suit land from the defendant by registered sale-deed for Rs.1,000/-. The

plaintiff and the defendant both were having business transactions in

leather business and as they were on good terms and the defendant

used to give the share of the crop in the suit land to the plaintiff till 1974,

the plaintiff did not ask for the partition. However, said relations got

strained and when demanded, the defendant failed to hand over one half

share of the suit property. The appellant was constrained to file a suit for

partition and possession of one half share of the suit land. The trial court

dismissed the suit and the judgment was confirmed by the first appeal

court.

    3        The trial court held that the sale-deed dated 25.03.1968 was

    ms.s.k.talekar                                                                    2 / 10





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without consideration and it was, in fact, executed as security therefore

the suit was dismissed. The first appeal court upheld the judgment and

order passed by the trial court hence this second appeal.

4 The second appeal was admitted on 10.10.1990 and the ground

nos.1 to 3 and 7 are considered as substantial questions of law, which

reads as under :

1 The substantial question of law which arises for determination in this second appeal is whether the

transaction dated 25.3.1968 was an absolute sale or was merely a security for the advance paid by the appellant ?

2 The substantial question of law which arises for determination in this second appeal is whether in the absence of any evidence to show as to what was the

price of the suit land at the relevant time, it could be said that the amount of Rs.1000/- paid by the

appellant was inadequate consideration and therefore the factor operating against the interest of the plaintiff ?

3 The learned Judges committed error of law in

holding error of law in holding that the appellant was not in possession of the suit land although the recitals in sale-deed at exh.53A sufficiently evidenced that the opponent had given the possession of the suit land on the very day and that revenue authorities had rightly held that the sale-deed was accepted by both the

parties and that the possession was handed over on that day itself.

4 The lower courts committed an error of law in holding that the sale-deed had been executed as a security for the re-payment of the loan advanced whereas on face of the said sale-deed it is indicated

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that the said sale-deed dated 25.3.1968 was not by way of security for loan but was an out and out sale.

5 The learned counsel for the appellant submitted that the claim for

partition and possession is based on the title and the appellant has

proved the title by production of sale-deed dated 25.03.1968. He

submitted that this sale-deed was executed by the defendant in favour of

the plaintiff in the presence of Registrar. The sale-deed is a registered

document and is proved. He submitted that in the evidence, the

defendant has admitted execution of the sale-deed. On the 3 rd page of

the sale-deed, the defendant has signed and has acknowledged the

receipt of Rs.1,000/- towards consideration. Hence, courts below

committed an error to hold that the sale-deed was executed without any

consideration. The learned counsel relied on Section 92 of the Evidence

Act, 1872. He argued that once the registered document is produced

showing the sale transaction of the property, then the oral evidence is

excluded. He argued that the appellant-plaintiff has examined witnesses

on the point of payment of Rs.1,000/- before the Registrar. On the point

of presumption of the truthfulness of the registered document, he relied

"Bellachi (Dead) by L.Rs. Vs. Pakeeran, reported in (2009) 12 SCC 95".

He submitted that when a document is registered document then in

accordance with law presumed to be true and genuine. The learned

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counsel argued that the plaintiff has discharged the burden to show that

he has purchased one half share of the suit land which was purchased by

the defendant. It was the defendant to prove that the contents in the

document which was executed and registered i.e. exhibit 53A are not

meant as they are, but the purpose of the execution and the registration

of the document was different. The learned counsel submitted that this

onus is not discharged by the defendant and the first appeal court, so

also the trial court ought to have appreciated this issue correctly. He

submitted that the defendant though was aware of the execution of the

sale-deed of the suit land in 1968 and if, it was not for the sale, then he

ought to have taken steps for the cancellation of the sale-deed which, he

did not take till today. He further submitted that the plaintiff had

contributed the amount to purchase the half share of the entire plot in the

year 1962, and therefore, he paid Rs.1,000/- more towards his share and

has purchased one half share of the land purchased by Rajaram and the

defendant. The learned counsel thus, argued that the first appeal court

and the trial court have committed an error in not accepting the contents

of the sale-deed and discarded the said document as a sale-deed.

6 Per contra, the learned counsel for the respondent submitted that

the entire piece of land was purchased by Pramilabai and the defendant

on 16.04.1962 in equal shares for amount of Rs.10,000/-. The defendant

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has paid half the amount of the total consideration amount i.e. Rs.5,000/-.

He submitted that no documentary proof of the payment of Rs.2,500/- is

produced by the appellant in support of his pleadings that he contributed

Rs.2,500/- towards the purchase of half the share of the land in 1962. He

submitted that the amount of Rs.1,000/- was not paid on the date and

time of the execution of sale-deed, i.e. exhibit 53A, the plaintiff was not

present at the office of the Registrar. This shows that the intention of the

sale or intention of purchase of one half portion of the suit land was not

present at the time of the said document. He read over the evidence of

the plaintiff and the defendant and pointed out that in the evidence of the

the defendant-Rajaram, he has deposed that the price of the suit land in

the year 1962 was less and however, the price of the land in the year

1976 was ten times from that of 1968. He pointed out from his evidence

that Rajaram has taken loan of Rs.1,000/- from the plaintiff and towards

the security, to that loan amount, he had executed the sale-deed in favour

of the plaintiff in the office of the Registrar. He also read over the

evidence of Rajaram on the point that he spent money for the

development of the suit land by constructing water pond and other

necessary digging work. he submitted that the plaintiff and the defendant

were not having any connection in the business. However, he has repaid

the loan amount by depositing the same in the bank account of the

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plaintiff time to time and thus it shows that he repaid the amount which is

shown as the amount of consideration. The learned counsel thus, stated

that the judgment and order passed by the first appeal court and the trial

court is to be maintained.

7 All the four questions of law revolve around the core issue whether

the sale-deed dated 25.3.1968 is a true document or it was sham and not

intended to sell the property, but it was the security of payment of

Rs.1,000/-? The plaintiff has produced the sale-deed which is marked as

53A. It is a registered document and execution is not challenged. The

execution of the sale-deed dated 23.03.1968 before the office of the

Registrar dated 25.3.1968. These basic facts are admitted by both the

parties. Thus, the plaintiff has discharged his initial burden on the point

of proof of sale-deed and the payment of Rs.1,000/-. As the plaintiff has

discharged his initial burden of proof of execution of the registered sale-

deed, the onus shifted on the defendant who claimed that the document

of sale-deed is not to be read as a sale-deed in true sense but it is a

sham document and it was intended to give guarantee against the

payment of loan of Rs.1,000/-.

8 Submissions of Mr.Thorat that when there is a registered

document, then the sale is to be considered as a genuine, would have

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been accepted if the defendant would not have challenged the truth-

fullness of the contents of the sale-deed and not contended that it is a

sham document given as a security. The case of the defendant squarely

falls under proviso Section 92 of the Indian Evidence Act, 1872.

Obviously, the burden lies on the defendant to prove that the document

executed was intended for something else than what is mentioned in the

document. Thus, the case of the defendant falls under proviso of Section

92 of the Indian Evidence Act, 1872. While considering this issue, it is

necessary to see whether the trial court and the first appeal court have

assessed properly the evidence of defendant on this point or not? The

learned counsel for the respondent has drawn my attention to the

relevant portions of the evidence of the defendant. The defendant has

specifically denied that he did not receive any amount of Rs.1,000/- on

the date of the sale-deed but was earlier paid towards loan. The courts

below have considered the evidence of Ashok and Savitribai, which, on

this point, is contradictory. Plaintiff's nephew Ashok stated that he paid

Rs.1,000/- however, there is a evidence by the witness of the plaintiff that

one lady Savitribai has paid Rs.1,000/-. This supports the case of the

defendant that on the date of the execution though he has stated that he

has received an amount, in fact, the amount was not paid to him on that

date. However, he has admitted that the plaintiff has lent the amount of

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Rs.1,000/- to him and therefore, he has acknowledged the same while

executing the said document. The said document was towards the

security. It is further pointed out that the defendant has deposed that he

has repaid the said amount time to time by depositing the said amount in

the bank account of the plaintiff. Thus, he had explained the transaction

of the sale-deed. The trial court and the first appeal court have rightly

considered the value of the suit land compared to the value of the entire

piece of land which was purchased in the year 1962. the entire piece of

land was purchased by Pramilabai and the plaintiff for Rs.10,000/- jointly,

and the defendant has contributed 50% of the amount i.e. Rs.5,000/- in

the year 1962. It is the case of the plaintiff that he paid Rs.2,500/-

towards the 50% price of the land but he could not prove this fact of

payment by reliable evidence. The evidence of the plaintiff on the point

of payment of Rs.2,500/- is rightly discarded by both the courts. The

reasonings given by the trial court that if at all, the plaintiff contributed

50% of the purchase amount and the sale-deed was in the name of the

defendant in the year 1962, then there was no need to again repurchase

the portion of the said land by paying more Rs.1,000/-.

9 In the year 1962, price of the land was Rs.5,000/- and half the

portion was of Rs.2,500/-, so, after five years, the price of the lands was

more and thus, the case of the plaintiff that he purchased one half portion

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of the land i.e. the suit land by giving more Rs.1,000/- also, cannot be

accepted in the absence of any such specific mention of the previous

payment in the sale-deed of 1968. Thus, the pleadings or the stand

taken by the plaintiff in respect of payment of Rs.2,500/- towards suit land

and the contents in the sale-deed i.e. exhibit 53A are inconsistent and

therefore, the contention of the defendant that the sale-deed was hollow

and not genuine, but it was only towards the security, is plausible. Thus,

the defendant has discharged his burden under the proviso 1 of the

Section 92 of the Indian Evidence Act. Therefore the first appeal court

and the trial court have rightly accepted the case of the defendant and

disbelieved the case of the plaintiff as of the purchase of the suit land by

execution of sale-deed dated 25.3.1968. Thus, the substantial questions

of law are decided against the appellant i.e. plaintiff. Hence, no

interference is required in the judgment and order passed by the first

appeal court and the trial court. The appeal is dismissed. Parties to bare

the costs.

10 In view of the dismissal of the second appeal, civil application, if

any stands disposed of accordingly.

                                                       (JUDGE)

    ms.s.k.talekar                                                                 10 / 10