R.M.S. Khandeparkar, J.
1. Heard learned advocate for the appellants, the respondent Nos. 1, 4 and 5. None present for the remaining respondents though served.
This appeal arises from the Judgment dated 28-1-1987 passed by the learned Single Judge in First Appeal No. 88/1967. The learned Single Judge while allowing the said first appeal has set aside the decree of dismissal dated 1-2-1967 passed by the Civil Judge, Senior Division, Chandrapur in Special Civil Suit No. 16/1965.
2. The trial Court had dismissed the suit on merits as well as on the point of limitation, whereas the learned First Appellate Court held the suit to have been filed within the period of limitation and further directed partition of the land with direction to defendants to put the plaintiff in possession of his half share in the suit property and further direction for enquiry regarding the mesne profits.
3. Few facts relevant for the purpose of decision are that : The property bearing Survey Nos. 57, 58, 60 and 158 having total area of 51.13 acres, out of which 25.50 acres of area, is the subject-matter of the present dispute. On 5-10-1949, the appellant who was the original defendant No. 1 in the suit had borrowed sum of Rs. 5000/- from the respondent No. 1 who was the original plaintiff, and had executed a Deed in relation to the suit property for sum of Rs. 5700/-. The suit property was resold to the appellant by the respondent No. 1 by sale deed dated 1-6-1950. Again on 20-9-1951 the appellant borrowed a sum of Rs. 6000/- from the respondent and executed a deed in favour of the respondent No. 1 in relation to the suit property for a sum of Rs. 7500/-. At the same time an agreement was executed for re-conveyance of the suit property to the appellant on repayment of the said loan on or before 3-6-1952. As the said loan was accordingly repaid, the respondent No. 1 executed a sale deed dated 3-6-1952 in respect of the suit property conveying the same in favour of the appellant for a sum of Rs. 7500/-. Thereafter, on 27-8-1952 the appellant again borrowed a sum of Rs. 8000/- from respondent No. 1 and executed a sale deed in respect of the suit property for a sum of Rs. 10,000/-, while executing a separate document as Kararnama agreeing to repay the loan on or before 6th of June, 1953 and thereupon the respondent No. 1 agreeing to re-convey the suit property in favour of the appellant. In spite of execution of such sale deeds since 1949 and even after execution of sale deed dated 27-8-1952, the possession of the said property continued with the appellant. The appellant failed to repay the loan amount of Rs. 10,000/- by 6-6-1953. The parties thereupon on mutual oral agreement delivered the possession of 12 acres 33 gunthas out of the total area of 25.46 acres to the respondent No. 1, so that he could enjoy crops therefrom for 12 years and thereby appropriate the income towards the repayment of loan and on expiry of 12 years to redeliver the possession to the appellant. Since then the half of the suit property had being retained by the respondent No. 1 while remaining half was being enjoyed and possessed by the appellant. On 26-8-1964, the respondent No. 1 filed suit before the Civil Judge, Junior Division, Warora seeking the possession of the remaining half of the suit property on the ground that the same was already sold to the respondent No. 1 under the sale deed dated 27-8-1952. The suit thereafter was withdrawn as the valuation of the suit was shown as Rs. 25,000/- which was in excess of the jurisdiction of Civil Judge, Junior Division and the same was presented in the Court of Civil Judge, Senior Division, Chandrapur and it was registered as Special Suit No. 16/1965. Trial Court after hearing the parties, by decree dated 1-2-1967 though dismissed the suit being barred by law of limitation, held that the plaintiff had otherwise good case on merits against the defendants. The matter was carried in appeal by the respondent No. 1 being First Appeal No. 88/1967 and the learned Single Judge of this Court by the impugned judgment and decree allowed the appeal as stated above. It is also to be noted that meanwhile the respondent No. 1 sold the area of 70 decimal of survey No. 158 in favour of the respondent No. 5. Further on 14-7-1961, the respondent No. 1 sold an area of 2.50 decimals from survey No. 158 to the respondent Nos. 6 and 7 for a sum of Rs. 4,000/-. Again on 14-3-1963 the respondent No. 1 sold one acre of land out of survey No. 158 to the respondent No. 8 for a sum of Rs. 1500/-. Further in July, 1964 the respondent No. 1 sold to respondent No. 9 the area of 1.50 acres out of survey No. 158 for a sum of Rs. 3000/-.
4. Though the impugned decree is sought to be challenged on various grounds including the ground of limitation, it is not necessary to deal with all those issues. Suffice to consider the issue regarding the nature of transaction between the parties. It is the contention on behalf of the appellant that the sale deed dated 17-8-1952 and Kararnama executed on the same day, taken together reveal a money lending transaction and execution of documents for security towards the repayment of the loan with assurance to re-convey the property on repayment of such loan and that it was not a sale transaction as such. On the other hand, it is the contention on behalf of the respondent No. 1 that the document ex-facie discloses conveyance of the title in the suit property in favour of the respondent No. 1 by the appellant and it being a registered document there is a presumption in relation to the correctness of the contents of the said document and the appellant has failed to rebut the said presumption. It is also the contention on behalf of the respondent No. 1 that there are concurrent findings regarding the construction of the documents in question and therefore, there is no case for interference therein in Letters Patent Appeal.
5. The first point which arises for our consideration is whether the document dated 27-8-1962 executed as the sale deed and the agreement executed as Kararnama relate to one and the same transaction or they relate to two different transactions. As a prelude to this question the point which arises relates to the intention of the parties behind the execution of those documents.
6. Undisputedly, the appellant had borrowed a sum of Rs. 8000/- from the respondent No. 1 on 27-8-1952, and the parties had executed two documents, one being a sale deed for the consideration of Rs. 10,000/- and another being Kararnama for re-conveyance of the property to the appellant on repayment of the loan amount to the respondent No. 1. Both the documents relate to the same property and were executed simultaneously on the same day. The loan amount was required to be repaid by 6-6-1953 and thereafter the property was required to be re-conveyed. The appellant, however, failed to pay the loan by 6-6-1953.
7. It is also not in dispute that on earlier occasions i.e. on 5th October, 1949 and on 20th September, 1955, the appellant had borrowed a sum of Rs. 5000/- and Rs. 6000/- respectively and on both the occasions sale deeds in respect of the same property for higher amount were executed by the appellant in favour of the respondent No. 1 and while simultaneously agreeing to re-convey the property on repayment of the loan amount within stipulated period and in fact on repayment of said loan amount, the property was re-conveyed under sale deeds dated 1-6-1950 and 3-6-1952, respectively.
8. One more undisputed fact which is to be noted is that on 6-6-1953, by oral agreement, the half of the area of the suit property i.e. to the extent of 12.33 acres was delivered to the respondent No. 1 on account of failure on the part of the appellant to repay the entire amount within the stipulated period.
9. The document in question i.e. Deed dated 27-8-1952 is undoubtedly stated to be a sale deed and it is also registered document. Being so certainly there is presumption as regards the document having been executed by the parties. However, merely because a document is a registered document, and merely because it is referred to as a sale deed, there is no presumption regarding the correctness of the recitals in such document. In a case where the correctness of recitals in such document is disputed, burden lies upon the party seeking to rely upon the correctness of the recitals in such document to establish the same with cogent evidence. The law on this point is well settled, and reiterated by the Apex Court in 2005 (9) SCC 359, Gangamma and Ors. v. Shivalingaiah. Referring to the presumption which is spoken of under Section 90 of the Indian Evidence Act, the Apex Court has held that:
A bare perusal of the aforementioned provision would clearly go to show that in terms thereof merely a presumption is raised to the effect that signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting and in case a document is executed or attested, the same was executed and attested by the persons by whom it purports to be executed and attested.
It was further held that -
We may furthermore notice that even if a formal execution of a document is proved, the same by itself cannot lead to a presumption that the recitals contained therein are also correct. The mere execution of a document, in other words, does not lead to the conclusion that the recitals made therein are correct and subject to the statutory provisions contained in Sections 91 and 92 of the Evidence Act, it is open to the parties to raise a plea contra thereto.
10. It is also to be noted that the Registration Act, 1908 under Section 49 makes a specific provision regarding effect of non-registration of documents which is otherwise required to be registered under the provisions of the Registration Act. However, the said statute nowhere gives any presumption to the correctness of the recitals of the documents which are registered thereunder. At this stage, it is worthwhile to take note of the decision of this Court reported in : AIR1983Bom1 Om Prakash Berlin and Anr. v. Unit Trust of India and Ors. wherein it has been clearly held that mere exhibition of document in evidence by itself does not amount to proof of the contents of the document, so exhibited. The law on the point that mere exhibition of a registered document in evidence by itself does not amount to discharge of the burden upon the party who is otherwise required to establish the correctness of the recitals of the documents being well settled, it will have to be seen whether in the case in hand the respondent No. 1 who is heavily relying upon the document dated 27-8-1952 has discharged such burden and whether this issue has been properly appreciated by the learned trial Court as well as by the first appellate Court.
11. It is to be noted that in the written statement filed by the appellant, there was a specific plea raised that the transaction evidenced by the sale deed does not disclose the true nature of transaction between the parties and taking into consideration the sale deed and Kararnama which discloses agreement to execute re-conveyance on repayment of the loan amount, definitely revealed that the transaction was in the nature of security for the repayment of loan and at the most it could be called as English Mortgage. Though it may be difficult to accept the plea that the transaction is in the nature of English Mortgage, the fact remains that the plea raised by the appellant clearly disclosed that the document stated to have been sale deed was not at all a sale deed in real sense but it was executed towards the security for repayment of loan and further, that Kararnama was to the effect that on repayment of loan, the property should be re-conveyed to the appellant. Added to this, the execution of the so called sale deed admittedly did not accompany delivery of possession of the property described in the deed. The conduct of the parties and the past history also revealed the similar documents were executed by the parties, but they were never treated as sale deeds but mere documents for security to repay the loan amount. In the background of these facts and considering the pleadings of the parties as already observed above it was absolutely necessary for the respondent No. 1 to discharge the burden regarding the case put forth by the respondent No. 1 that deed dated 27-8-1952 was a deed conveying the suit property in favour of the respondent No. 1 without any reservation and without any conditions attached to it.
12. If one peruses the testimony of the respondent No. 1/plaintiff, there is absolutely no evidence led by the respondent No. 1 to establish the correctness about the recitals of the document dated 27-8-1952 which was termed as a sale deed. In comparison to this testimony if one peruses the testimony of the appellant/ defendant No. 1, the same discloses the series of transactions which were entered into between the parties even prior to execution of the document dated 27-8-1952 and each time the document in the nature of sale deed having been executed towards the security for the repayment of the loan, taken by the appellant from the respondent No. 1 and on actual repayment of such loan, the re-conveyance being executed by the respondent No. 1 in respect of the same property. Apart from the fact that the such pleadings in the written statement were not controverted by the respondent No. 1 in the course of recording of evidence the claim in that regard by appellant in his testimony has also not been challenged. Elaborate testimony of the appellant on this aspect clearly reveals the circumstances, under which the document of 27-8-1952 was executed as well as the intention of the parties behind execution of such document and the same is further corroborated by the Kararnama placed on record. In other words apart from oral testimony of the appellant on the aspect of the real intention behind the execution of the document dated 27-8-1952, the same is corroborated by the documentary evidence in the form of Kararnama of 27-8-1952 executed by both the parties.
13. It is then sought to be contended that Section 92 of the Evidence Act clearly disentitles the appellant to contend contrary to the written document in the form of deed dated 27-8-1952 under which the property was conveyed in favour of respondent No. 1.
14. While replying the said contention, the learned advocate for the appellant has drawn our attention to the decision in Smt. Gangabai v. Smt. Chhabubai reported in : [1982]1SCR1176 , wherein the Apex Court while dealing with the scope of Section 92 of the Evidence Act and clearly ruled thus :
It is clear to us that the bar imposed by Sub-section (1) of Section 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The Sub-section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question 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 was entered into between the parties.
(Emphasis supplied)
15. Ruling of the Apex Court clearly discloses that bar prescribed under Sub-section (1) of Section 92 to lead evidence contrary to the contents of the document which is otherwise required to be in writing, is restricted to the cases where the party seeks to rely upon such document and seeks relief on the basis of such document, and not when in answer to the case based on such document a plea is raised that the real intention behind the document is different from one which is otherwise disclosed from the recitals in such document and in such cases the proof in that regard can be led even by oral evidence. In the case in hand, apart from leading oral evidence in that regard, the appellant has placed on record a Kararnama executed in writing between the parties in relation to same transaction on the same day on which the document in question was executed. In other words, the document in question cannot be read independently of Kararnama executed by the same parties on the same date in relation to the same matter. Both the documents will have to be read together to ascertain the real intention of the parties behind execution of the document in question. Plain reading of the Judgment passed by the trial Court as well as by the learned Single Judge of this Court, nowhere disclose any such exercise having been done. Both the Courts have proceeded on the basis that the document is to be understood in terms of the recitals therein thereby and have totally ignored the well established principle in relation to the applicability of and totally ignoring the real scope of Section 92(1) of the Evidence Act, as well as the law laid down by the Apex Court in that regard.
16. As observed above, it is nobody's case that the document dated 27-8-1952 does not disclose recitals regarding the conveyance of the property. It does disclose. However, those recitals were not intended really to convey the property in favour of the respondent No. 1 and this fact has been clearly established by the testimony of the appellant as well as Kararnama referred to above. The agreement which is executed on the same date on which the document in question was executed clearly discloses that on repayment of the loan amount of Rs. 10,000/- the property was required to be re-convey in favour of the appellant. The fact that the principal amount of loan was Rs. 8000/- and the sum of Rs. 2000/- was towards interest amount was specifically stated by the appellant in his pleadings as well as in the course of testimony recorded before the Court. We do not find any challenge to the said claim of the appellant in the course of the cross-examination of the appellant on behalf of the respondent No. 1.
17. It is also pertinent to note that it was a specific case of the appellant that since the appellant was unable to repay the amount within stipulated period, there was an oral agreement entered between the parties under which the possession of the half of the suit property was delivered to the respondent No. 1 on condition that he should enjoy the same for a period of 12 years and thereafter the possession should be redelivered to the appellant and the income derived by the respondent No. 1 during the said period of 12 years from the said part of the suit property should be appropriated towards the recovery of the loan amount payable by the appellant to the respondent No. 1. The specific plea in that regard raised in the pleadings and duly corroborated by the testimony of the appellant has not been controverted or disproved by the respondent No. 1.
18. All the above facts duly established by cogent evidence on record have been totally ignored by the Courts below and merely on presumption that whatever has been stated in the concerned document of 27-8-1952 discloses the real transaction, have proceeded to hold that by the said deed the property was conveyed in favour of the respondent No. 1 and in that sense, the document is a sale deed. For the reasons stated above, the finding arrived at by both the Courts being contrary to the records as well as settled law applicable to the facts of the case, the same cannot be sustained and is liable to be set aside and it is to be held that the deed in question was purely towards security for repayment of the loan which was borrowed by the appellant from the respondent No. 1. Being so, there was no right of ownership acquired by the respondent No. 1 to the suit property on the date when the suit was filed and therefore, respondent was not entitled to seek partition or ownership share in the suit property and therefore the suit was liable to be dismissed.
19. In the circumstances, the points stated above, are answered in favour of the appellant and for the same reason the appeal deserves to be allowed and the impugned judgments be set aside. In this view of the matter, it is not necessary to deal with other issues in the matter.
20. In the result therefore, the appeal succeeds. The impugned judgments are hereby quashed and set aside. The suit filed by respondent No. 1 is hereby dismissed. The Costs by the respondent No. 1.