# Kashi Ram v. Ramji Lal

- **Citation:** (2023) 9 ILRA 718
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-07
- **Case number:** Second Appeal No. 1486 of 1999
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kashi-ram-v-ramji-lal-50739
- **Pages:** 25

## Headnote

A. Civil Law - Civil Procedure Code,1908Section 100-Specific Relief Act. 1963Section 9 & 10 - Indian Evidence Act,
1872-
Section
91
&
92-specific
performance-In this case the plaintiff not
only entered into the first suit agreement,
but before time under it came to an end,
got the second suit agreement executed
extending obligations between parties for
a further period of one year-There is also
evidence to show that he got a notice
issued to the defendant to come forth and
execute the sale deed specifying a date to
appear before the Sub-Registrar-On the
date indicated in the notice , the plaintiff
remained
present
before
the
SubRegistrar , but the defendant did not
appear, a fact regarding which the two
Courts below are unanimous- This conduct
of the plaintiff in chasing the defendant to
execute a sale deed is relevant, which the
Courts
below
have
taken
into
consideration
while
exercising
their
discretion
in
granting
specific
performance-There is an added feature
about
the
conduct
of
parties.
The
defendant in Paragraph Nos.2 and 11 of
the written statement has denied the
plaintiff's case that he received a sum of
Rs.60,000/- in earnest from the plaintiff,
but Rs.40,000/- alone, about which it is
pleaded that it was a sum of money
borrowed to pay off another person.
However, in his examination-in-chief, the
defendant has acknowledged the fact that
he borrowed a sum of Rs.60,000/- from
the
plaintiff,
of
which
he
needed
Rs.40,000/- to pay off . In his crossexamination, he has acknowledged the
fact again that he borrowed a sum of
Rs.60,000/- from the plaintiff, of which
Rs.20,000/- were paid before execution of
the first suit agreement and Rs.40,000/-
at the time of registration of the said
agreement. Though, the defendant has
described in his testimony the nature of
the transaction as a loan, but has
acknowledged the fact that he received a
sum of Rs.60,000/- from the plaintiff,
Rs.20,000/- before the registration of the
first suit agreement and Rs.40,000/- at
the time of its registration. This is in stark
contrast to his stand in Paragraph Nos. 2
and 11 of the written statement, where he
says
that
he
borrowed
a
sum
of
Rs.40,000/- from the plaintiff and not
Rs.60,000/-. The nature of the transaction
has been opined by the Courts below not
to be a loan, which has been approved by
this Court while answering Substantial
Question of Law (1); but that is not
relevant for the purpose of the present
question. The principle, about a party who
does not rely on a written document, but
says that the intention of the transaction
embodied therein was entirely different
from the express words, is free to show
that different intention, by parole or
extrinsic evidence, was enunciated by
their Lordships of the Supreme Court in
Gangabai's Case.(Para 1 to 69)

B. What bears on the question here is the
fact that the conduct of the defendant has
not been fair in dealing with the plaintiff
and
before
the
Court
as
well.
He
deliberately came up with a case in his
pleadings that he had borrowed a sum of
Rs.40,000/- alone, denying the plaintiff's
case that he had paid the defendant a sum
of Rs.60,000/-. Later, in his testimony, the
defendant accepted the fact that he had
received from the plaintiff a sum of
Rs.60,000/- until time when he executed
the first suit agreement. This too is
conduct relevant because it shows that
the defendant had been trying to evade
his obligations under the contract by
misquoting the sum of money that he had
received from the plaintiff relative to the
transaction. A reading of the impugned
judgments clearly show all these facts
have weighed with the Courts below in
granting specific performance, though
they might not have scripted their reasons
for the exercise of that discretion. As
already said, it may always be desirable
for the Court to give reasons why specific
720 INDIAN LAW REPORTS ALLAHABAD SERIES
performance was granted because the
exercise of discretion is subject to scrutiny
by the Appe

## Text

_Characters 0–39,839 of 86,971. This is a partial read: ask again with offset=39839 for what follows._

718 INDIAN LAW REPORTS ALLAHABAD SERIES

"...that every judgment must be read as
applicable to the particular facts proved, or
assumed to be proved, since the generality of the
expressions which may be found there are not
intended to be expositions of the whole law, but
governed and qualified by the particular facts of
the case in which such expressions are to be
found. The other case is only an authority for what
it actually decides."

29. It is also well settled that a decision is
precedent on its own facts. Each case presents its
own feature. It is not everything said by a Judge
while giving judgement that constitutes a
precedent. The only thing in Judge's decision
binding a party is the principle upon which the
case is decided and for this reason it is important
to analyze a decision and isolate from it the ratio
decidendi.

30. This Court always respects any view
expressed by the Apex Court like the view
expressed in the case of Brijendra Singh (Supra)
but the conflicting view appeared to exist on the
same point of meaning of expression ''evidence'
used in Section 319 Cr.P.C., the decision of
Hon'ble Apex Court in the case of Hardeep
Singh (Supra) rendered by Bench of larger
composition shall prevail upon the case of
Brijendra Singh (Supra) and another decision.
Therefore, the judgment of the Apex Court in the
case of Brijendra Singh (Supra) does not apply
in the facts of the present case.

31. This Court has also find substance in the
submission made by the learned counsel for
opposite party no.2 that the statements given by
the eye witnesses, namely, Rekha i.e. sister of the
deceased in the affidavit submitted before the
Investigating Officer and given before the
Magistrate under Section 164 Cr.P.C. as well as
the statements given by independent eye witness,
namely, Harendra in the affidavit submitted before
the Investigating Officer, given before the
Magistrate under Section 164 Cr.P.C. and also
given before the trial court as P.W.-2 have more
evidentiary value rather than that the statements
given by them before the Police under Section 161
Cr.P.C.. In the statements given in the affidavit
and before the Magistrate under Section 164
Cr.P.C., eye witness Rekha has categorically
stated qua the involvement of the revisionists in
the commission of the alleged crime i.e. murder of
the deceased. Similarly, in the affidavits submitted
before the Investigating Officer, in the statements
given before the Magistrate under Section 164
Cr.P.C. and in the statements given before the trial
court, both the prosecution eye witnesses, namely,
Dinesh Kumar (first informant/opposite party
no.2) and Harendra, who is also an independent
eye witness, have pin-pointed the revisionist for
commission of the alleged offence.

32 . In the light of aforesaid, the present
revision is bereft of merit. The impugned order
passed by trial judge is perfectly justified and well
within the guidelines/ parameters laid down by
Constitution Bench decision of Hon'ble Apex
Court in the case of Hardeep Singh (Supra) and
the judgments on the subject of alibi referred to
herein above.

33. The present criminal revision is
accordingly dismissed. There shall be no order as
to costs.
----------
(2023) 9 ILRA 718
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.08.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 1486 of 1999

Kashi Ram ...Appellant
Versus
Ramji Lal ...Respondent

Counsel for the Appellant:
9 All. Kashi Ram Vs. Ramji Lal
719
Sri P.C. Jain

Counsel for the Respondent:
Sri Kunal Shah, Sri Madhav Jain, Sri
Shashank Shekhar Mishra, Sri Suvansit
Kumar Jaiswal, Sri Tarun Jha

A. Civil Law - Civil Procedure Code,1908Section 100-Specific Relief Act. 1963Section 9 & 10 - Indian Evidence Act,
1872-
Section
91
&
92-specific
performance-In this case the plaintiff not
only entered into the first suit agreement,
but before time under it came to an end,
got the second suit agreement executed
extending obligations between parties for
a further period of one year-There is also
evidence to show that he got a notice
issued to the defendant to come forth and
execute the sale deed specifying a date to
appear before the Sub-Registrar-On the
date indicated in the notice , the plaintiff
remained
present
before
the
SubRegistrar , but the defendant did not
appear, a fact regarding which the two
Courts below are unanimous- This conduct
of the plaintiff in chasing the defendant to
execute a sale deed is relevant, which the
Courts
below
have
taken
into
consideration
while
exercising
their
discretion
in
granting
specific
performance-There is an added feature
about
the
conduct
of
parties.
The
defendant in Paragraph Nos.2 and 11 of
the written statement has denied the
plaintiff's case that he received a sum of
Rs.60,000/- in earnest from the plaintiff,
but Rs.40,000/- alone, about which it is
pleaded that it was a sum of money
borrowed to pay off another person.
However, in his examination-in-chief, the
defendant has acknowledged the fact that
he borrowed a sum of Rs.60,000/- from
the
plaintiff,
of
which
he
needed
Rs.40,000/- to pay off . In his crossexamination, he has acknowledged the
fact again that he borrowed a sum of
Rs.60,000/- from the plaintiff, of which
Rs.20,000/- were paid before execution of
the first suit agreement and Rs.40,000/-
at the time of registration of the said
agreement. Though, the defendant has
described in his testimony the nature of
the transaction as a loan, but has
acknowledged the fact that he received a
sum of Rs.60,000/- from the plaintiff,
Rs.20,000/- before the registration of the
first suit agreement and Rs.40,000/- at
the time of its registration. This is in stark
contrast to his stand in Paragraph Nos. 2
and 11 of the written statement, where he
says
that
he
borrowed
a
sum
of
Rs.40,000/- from the plaintiff and not
Rs.60,000/-. The nature of the transaction
has been opined by the Courts below not
to be a loan, which has been approved by
this Court while answering Substantial
Question of Law (1); but that is not
relevant for the purpose of the present
question. The principle, about a party who
does not rely on a written document, but
says that the intention of the transaction
embodied therein was entirely different
from the express words, is free to show
that different intention, by parole or
extrinsic evidence, was enunciated by
their Lordships of the Supreme Court in
Gangabai's Case.(Para 1 to 69)

B. What bears on the question here is the
fact that the conduct of the defendant has
not been fair in dealing with the plaintiff
and
before
the
Court
as
well.
He
deliberately came up with a case in his
pleadings that he had borrowed a sum of
Rs.40,000/- alone, denying the plaintiff's
case that he had paid the defendant a sum
of Rs.60,000/-. Later, in his testimony, the
defendant accepted the fact that he had
received from the plaintiff a sum of
Rs.60,000/- until time when he executed
the first suit agreement. This too is
conduct relevant because it shows that
the defendant had been trying to evade
his obligations under the contract by
misquoting the sum of money that he had
received from the plaintiff relative to the
transaction. A reading of the impugned
judgments clearly show all these facts
have weighed with the Courts below in
granting specific performance, though
they might not have scripted their reasons
for the exercise of that discretion. As
already said, it may always be desirable
for the Court to give reasons why specific
720 INDIAN LAW REPORTS ALLAHABAD SERIES
performance was granted because the
exercise of discretion is subject to scrutiny
by the Appellate Court, but it is not
imperative. It is not imperative to give
reasons, howsoever desirable, for the
cause that if from the evidence considered
by the Courts below and on record, the
relevant factors to exercise discretion the
way it is done by the Court are there,
holding the decree to be vitiated on the
ground alone that reasons have not been
mentioned, would be more of a formality
than anything substantial.(Para 66, 67)

The appeal is dismissed. (E-6)

List of Cases cited:

1. Mahendra Singh Vs Ramesh Singh

2. Rajendra Singh Vs Chandra Pal

3. K. Laxmanan Vs Thekkayil Padmini & ors.

4. Mangala Waman Karandikar Vs Prakash
Damodar Ranade

5. Gangabai Vs Chhabubai (1982) 1 SCC 4 : AIR
1982 SC 20

6. Ishwar Dass Jain Vs Sohan Lal (2000) 1 SCC
434 : AIR 2000 SC 426

7. V. Anantha Raju & anr.. Vs T.M. Narasimhan

8. Roop Kumar Vs Mohan ThedaniGurdial Singh
& ors. Vs Raj Kumar Aneja & ors.
9. Madhukar Nivrutti Jagtap & ors. Vs Pramilabai
Chandulal Parandekar (dead) thru LRs & ors.
Vimal Chand Ghevarchand Jain & ors. Vs
Ramakant Eknath Jadoo

10. Placido Francisco Pinto Vs Jose Francisco
Pinto

(Delivered by Hon'ble J.J. Munir, J.)

This is a defendant's appeal arising out
of a suit for specific performance of
contract.

2. Ramji Lal instituted Suit No.538 of
1986 in the Court of the Civil Judge (now
Civil Judge, Senior Division), Agra against
Kashi Ram, seeking a decree for specific
performance of agreement to sell dated
06.07.1984 and a further agreement to sell
dated 18.06.1985, together with a direction
to deliver possession of the property,
subject matter of the suit, within time to be
stipulated by the Court; and in default, to
carry out the decree through the agency of
Court. A further decree for the award of
pendente lite and future mesne profits at the
rate of Rs.10,000/- per annum was claimed,
apart from costs of the suit.

3. The plaintiff, Ramji Lal, pleaded a
case to the effect that the plaintiff and Kashi
Ram, the defendant, entered into a bargain for
the sale of agricultural Plot No.306,
admeasuring 5 bigha 15 biswa and 15
biswansi owned by the defendant and situate
at Village Therai, Pargana Fatehabad, District
Agra. The defendant agreed to sell the plot of
land aforesaid in the plaintiff's favour for a
total sale consideration of Rs.65,000/-. A
registered agreement to sell, according to the
plaintiff, was executed by the defendant in
the former's favour on 06.07.1984. The
agreement to sell dated 06.07.1984, executed
between
parties,
was
presented
for
registration to the Sub-Registrar, Tehsil
Fatehabad, District Agra on 06.07.1984. The
aforesaid agreement, which shall hereinafter
be referred to as 'the first suit agreement',
carried all terms between parties, upon which
the defendant had covenanted to sell his
agricultural land, above described, in favour
of the plaintiff. The land, agreed to be sold
and above described, shall hereinafter be
called 'the suit property'.

4. Kashi Ram, the sole defendantappellant died pending this appeal and his
heirs and LRs have been brought on record
9 All. Kashi Ram Vs. Ramji Lal
721
as defendant-appellant Nos.1/1, 1/2, 1/3
and 1/4 to the appeal. The deceaseddefendant, Kashi Ram, now represented by
his heirs and LRs as aforesaid, shall
hereinafter be referred to as 'the defendant'.
Ramji Lal, the sole plaintiff-respondent
shall hereinafter be called 'the plaintiff'.

5. It is the plaintiff's case that the
defendant received from him a sum of
Rs.60,000/- as part of the agreed sale
consideration and covenanted to execute a
registered sale deed within one year of the
first suit agreement, after securing an
income tax certificate under Section 230-A
of the Income Tax Act, 1961. The
defendant requested extension of the period
of time to perform his part of the contract,
leading to the execution of another
registered agreement on 18.06.1985, which
enlarged the period of time for performance
of obligations under the first suit agreement
by one year i.e. up to 18.06.1986. The
registered
agreement
to
sell
dated
18.06.1985 shall hereinafter be called 'the
second suit agreement', and the first and
second suit agreements, wherever referred
to together, shall be called 'the suit
agreements'. The plaintiff says that he
asked the defendant to execute a sale deed
as covenanted under the suit agreements,
but the defendant evaded discharging his
obligation on one pretext or the other.

6. The plaintiff served a registered
notice on 29th May, 1986, calling upon the
defendant to execute the sale deed on
12.06.1986. The defendant did not turn up
at the Sub-Registrar's office at Tehsil
Fatehabad, District Agra on the said date to
execute a sale deed in the plaintiff's favour.
Instead, he sent a reply mentioning
incorrect facts. The plaintiff pleaded that he
had no alternative but to institute the
present suit. It is then pleaded by the
plaintiff that he has always been ready and
willing to perform his part of the contract
and is still ready and willing to perform his
obligations under the suit agreements. It is
also pleaded by the plaintiff that the
defendant is liable to pay him damages for
the use and occupation of the suit property
@ Rs.10,000/- per year, inasmuch as the
defendant failed to execute a sale deed as
contracted and deliver possession of the
suit property to the plaintiff, depriving the
latter of beneficial use of the said property,
which would yield him income. The
plaintiff's money has remained blocked on
account
of
the
breach
of
contract
committed by the defendant. It is on these
facts that the suit, giving rise to this appeal,
was instituted on 10.07.1986.

7. A written statement was filed on
behalf of the defendant on 15.05.1992. The
plaint allegations were generally denied,
though not the factum of execution of the
suit agreements. It was pleaded that the suit
agreements were not executed with the
intention of conveying the suit property to
the plaintiff, but as security for the sum of
Rs.40,000/-, that the defendant borrowed of
the plaintiff to pay off his creditor, Gyan
Singh, who too held an agreement to sell in
his favour executed by the defendant, also
for the purpose of securing money lent. In a
more detail of his defence, the defendant
has pleaded that he had borrowed a sum of
Rs.20,000/- from one Saudan Singh son of
Sujan Singh on or about the 14th of
September, 1979 and executed, by way of
collateral security, an agreement to sell
dated 14.09.1979, covenanting to transfer
the suit property in favour of Saudan Singh
for a total sale consideration of Rs.29,000/-.

8. It was the defendant's case that he
could pay a very small sum out of the
money borrowed from Saudan Singh until
722 INDIAN LAW REPORTS ALLAHABAD SERIES
after expiry of two years from the date of
loan. Therefore, the defendant borrowed
from Gyan Singh son of Betal Singh to pay
off Saudan Singh. In order to secure the
sum borrowed from Gyan Singh, the
defendant executed in his favour a
registered
agreement
to
sell
dated
23.09.1982, covenanting to convey the suit
property for a sum of Rs.45,000/-, where
the instrument acknowledges the defendant
to have received in earnest from Gyan
Singh
a
sum
of
Rs.40,000/-.
This
transaction was a financial arrangement to
secure the loan that the defendant had taken
from Gyan Singh to pay off the previous
creditor. It is pleaded by the defendant that
Gyan Singh demanded the money that he
had lent. In order to pay off Gyan Singh,
the
defendant
borrowed
a
sum
of
Rs.40,000/- from the plaintiff, who is the
defendant's elder brother's son. This was
done on 06.07.1984. The defendant paid off
Gyan Singh's debt on 06.07.1984, who
executed a registered instrument cancelling
the agreement to sell earlier executed by
the defendant in his favour. This instrument
of cancellation was executed by Gyan
Singh on 06.07.1984. On 06.07.1984, in
order to secure the loan of Rs.40,000/- by
his nephew (the plaintiff), the defendant
entered into the first suit agreement with
him, where the suit agreement was intended
to be nothing more than a collateral
security. It is pleaded that there was no
intention ever to sell the suit property by
the defendant in the plaintiff's favour. The
purpose of the first suit agreement was to
secure repayment of the sum of money
borrowed by the defendant to pay off Gyan
Singh.

9. The defendant has further pleaded
that since he could not repay the loan of
Rs.40,000/- to the plaintiff within the
covenanted time of one year, he executed
another agreement to sell, the second suit
agreement, also as collateral security,
extending the term by one year. The second
suit agreement, as already said, was
executed on 18.06.1985.

10. It is the defendant's further case
that at the time of renewal of obligation in
terms of the second suit agreement, that is
to say, on 18.06.1985, the defendant paid
the plaintiff in cash a sum of Rs.15,000/-
and 100 maunds of wheat, both of which,
according to the defendant, have to be set
off against the loan.

11. The defendant says that the
antecedent transactions between him and
third parties, where agreements were
executed in order to secure repayment of
loans raised from these parties and then
paid off, have to be borne in mind in order
to understand the nature of the present
transaction.
The
true
nature
of
the
transaction would be better understood
when bearing in mind earlier transactions
with third parties regarding the suit
property serving as a security for the
repayment of loans raised, the blood
relationship between the parties here is kept
in mind. The present transaction embodied
in the suit agreements is nothing more than
a security for the repayment of money lent
by the plaintiff. The suit agreements never
did bind the defendant, so far as his
obigation to convey the suit property on the
terms therein is concerned. It is also the
defendant's
case
that
no
contractual
obligation binds the defendant to convey
the suit property to the plaintiff.

12. It is the further case of the
defendant that in the year 1984, the price of
agricultural land, where the suit property is
situate, was not less than Rs.30,00035,000/- per bigha. Therefore, the worth of
9 All. Kashi Ram Vs. Ramji Lal
723
the suit property would be a sum of
Rs.1,75,000/- to Rs.2,00,000/-, which the
defendant could not be expected to part with
for a trifling. The defendant has further
pleaded that except the suit property, he has
no other agricultural holding. In case, the suit
property goes out of his hands, it would cause
him extreme hardship as the defendant has no
other source of income, but the one that he
derives out of exploitation of the said
property. If a decree for specific performance
is passed, it would cause the defendant
unforeseeable hardship and, therefore, the
discretion under Section 20 of the Specific
Relief Act ought not to be exercised in the
plaintiff's favour. The defendant's liability to
pay damages for use and occupation @
Rs.10,000/- per year or at any other rate was
denied.

13. On the pleadings of parties, the
following
issues
were
struck
on
24.01.1995:

"(1)
Whether
the
defendant
executed the agreement for sale on
06.07.1984 in favour of the plaintiff?

(2) Whether the agreement for
sale
dated
06.07.1984
was
extended
through agreement dated 18.06.1985?

(3) Whether the plaintiff was
always ready and willing to perform his
part of agreement?

(4) Whether the defendant is
liable to pay the damages of Rs.10,000/-
per year as alleged in Paragraph No.7 of the
plaint?

(5) Whether the plaintiff paid
Rs.6433-20 against the recovery of the loan
due from the defendant, as alleged in
Paragraph No.4 of the replication, 48-Ga?

(6)
Whether
the
alleged
agreement to sell was a loan transaction as
alleged in the W.S.?

(7) To what relief the plaintiff is
entitled for?

14. An additional issue, numbered as
Issue No.8, was framed on 20.10.1997,
which reads:

"(8) Whether the defendant paid
Rs.15,000/- in cash and 100 maunds wheat
at the time of renewal on 18.06.1985 to the
plaintiff?"

Note:
The
issues,
set
forth
hereinabove, have been reproduced from
the order-sheet of the Trial Court. The
issues framed by the Trial Court are in the
English language. The two Courts below in
the judgments have done a Hindi rendition
of the issues framed while writing their
judgments,
which
bear
some
inconsequential differences.

15. The plaintiff filed in his
documentary
evidence
the
first
suit
agreement, Paper No.22-Ka, the second
suit agreement, Paper No.21-Ka, the
application for attendance before the SubRegistrar, Paper No.23-Ga, a copy of the
notice, Paper No.24-Ga and the reply
notice, Paper No.25-Ga. The plaintiff
examined in support of his case himself as
PW-1, Shiv Swaroop as PW-2 and Het
Singh as PW-3.

16. The defendant filed in support of
his case documentary evidence, being a
copy of the agreement to sell executed in
favour of Saudan Singh, Paper No.29-Ga,
agreement to sell in favour of Gyan Singh
dated 23.09.1982, Paper No.30-Ga and the
instrument of cancellation executed by
724 INDIAN LAW REPORTS ALLAHABAD SERIES
Gyan Singh in favour of Kashi Ram dated
06.07.1984, Paper No.90-Ga. In support of
his case, the defendant examined himself as
DW-1, Chhitariya as DW-2 and Bhimsen
as DW-3.

17. The Trial Court, upon trial of the suit,
decided Issue Nos.1, 2 and 6 together, answering
Issue Nos.1 and 2 in favour of the plaintiff and
Issue No.6 against the defendant. Issue No.3 was
answered in favour of the plaintiff and against
the defendant. Issue No.4 was answered against
the plaintiff. Issue No.5 was declined to be
decided by the Trial Court holding that it did not
arise upon pleadings of parties and the defendant
had no opportunity to answer it. It had been
framed on the basis of a miscellaneous
application. Issue No.7 was answered for the
plaintiff and against the defendant holding the
plaintiff entitled to relief of specific performance.
Issue No.8 was decided against the defendant.

18. The Trial Court, by its judgment and
decree dated 29.07.1985, decreed the suit for the
relief of specific performance, but dismissed it
for mesne profits.

19. The defendant appealed the decree to
the District Judge, Agra, where it was registered
as Civil Appeal No.294 of 1998. The appeal
upon assignment came up for determination
before the 8th Additional District Judge, Agra on
10.08.1999. The Lower Appellate Court
dismissed the appeal with costs and affirmed the
Trial Court's decree.

20. Aggrieved, this appeal has been
preferred by the defendant.

21. The appeal was admitted to hearing on
04.05.2001 on the following substantial question
of law:

Whether the courts below have
erred in law in not considering the
agreements to sell dated 14.9.1979 and
23.9.1972 (sic 23.09.1982) executed by
Kashi Ram and as such the finding on the
question as to whether the transaction was
a loan recorded by the courts below is
vitiated?

22. When the appeal came up for
hearing before this Court on 22.09.2021,
the first substantial question of law was
rephrased, whereas a second question was
added. The appeal was, therefore, heard on
the following two substantial questions of
law, the first being merely a rephrasing of
the question formulated on 04.05.2001:

(1) Whether the suit agreement
subject matter of action, in substance,
embodies a transaction that is a loan with
the agreement serving as security?

(2) Whether it is imperative for
the Court to express reasons why discretion
to grant specific performance under
Section 20 of the Specific Relief Act, 1963
has been exercised?

23. Heard Mr. P.C. Jain, learned
Counsel for the defendant and Mr. Kunal
Shah, learned Counsel for the plaintiff.

24. Advancing his submissions on the
first substantial question of law, Mr. P.C.
Jain, learned Counsel for the defendant has
invited the attention of this Court to certain
circumstances, which according to him lead
to the inevitable conclusion that the suit
agreements were executed for the purpose
of security and not oblige the defendant to
execute a sale deed in the plaintiff's favour
as per ostensible terms. Highlighting these
circumstances, it is pointed out by Mr. Jain
that the two earlier agreements to sell, the
first in favour of Saudan Singh, and the
second, in favour of Gyan Singh, both of
9 All. Kashi Ram Vs. Ramji Lal
725
which were mutually cancelled upon
repayment of the earnest, show that the
defendant had immediately, before the
execution of the suit agreements, borrowed
money from two other men and secured its
repayment by executing an agreement to
sell with regard to the suit property. Mr.
Jain
submits
that
the
two
earlier
transactions show the inclination or the
mind of the defendant, which was about
borrowing money, creating a security on
the suit property by way of an agreement to
sell, but never the animus to transfer it.

25. According to Mr. Jain, dovetailed
into the above circumstance is the fact that
the day the first suit agreement was
executed in the plaintiff's favour, to wit,
06.07.1984, an instrument of cancellation
was executed between the defendant and
the previous lender, Gyan Singh, discharging
the agreement to sell in the latter's favour
upon receipt of the money lent. It is also
stressed by the learned Counsel for the
defendant that there is an identity in figure of
the part of the sale consideration, said to be
received before the Sub-Registrar in the first
suit agreement, and that mentioned in the
instrument of cancellation executed the same
day by Gyan Singh. Both instruments
mention a sum of Rs.40,000/- as the
consideration. It is urged by the learned
Counsel for the defendant on the foot of the
fact that a sum of Rs.40,000/- received by the
defendant from the plaintiff, shown as part of
the Rs.60,000/- earnest before the SubRegistrar, was utilized to pay off the previous
creditor, Gyan Singh, in order to secure
discharge of the agreement in the latter's
favour, that the suit agreements must be
regarded as transactions to secure the
repayment of the loan.

26. It is also pointed out by Mr. Jain
that both documents were scribed by the
same man, Shiv Swaroop, who has been
examined as PW-2, to prove execution of
both the documents. It is particularly
emphasized that DW-2, Chhitariya is a
common marginal witness to the first suit
agreement
and
the
instrument
of
cancellation. He has said in his testimony
that the first suit agreement was executed to
serve as security for the loan advanced by
the plaintiff to the defendant and not to
create any obligation to sell the suit
property. It is also emphasized that the
plaintiff, while testifying as PW-1 in the
witness-box, did not deny the previous
agreements to sell executed by the
defendant in favour of third parties and
their cancellation, but said that he did not
know anything about these transactions.

27. The next circumstance, to which
Mr. Jain has called attention of this Court,
is the fact that out of the agreed sale
consideration of Rs.65,000/-, the first suit
agreement
acknowledges
payment
of
Rs.60,000/- on 06.07.1984, leaving a
residue of Rs.5000/-. The reason indicated
for eschewing an immediate sale is the
necessity of obtaining permission from the
Income Tax Authorities under Section 230A of the Income Tax Act, which according
to the provisions of that statute is not
required in case of sale of agricultural land.
It is also emphasized that the other reason
that some time was required to arrange for
the
balance
of
Rs.5000/-
is
highly
improbable.
These
circumstances,
according to Mr. Jain, show that there was
no
real
transaction
of
sale
in
the
contemplation of parties. The extension of
time by one year in terms of the second suit
agreement does not mention anything by
way of consideration.

28. The attention of the Court has also
been drawn by the learned Counsel for the
726 INDIAN LAW REPORTS ALLAHABAD SERIES
defendant to the testimony of DW-2,
Chhitariya and DW-3, Bhimsen, where
they say that Rs.15,000/-, besides 100
maunds of wheat were given by the
defendant to the plaintiff at the time of
execution of the second suit agreement.
Learned Counsel has also pointed out that
the plaintiff in his testimony in Paragraph
No.8 of his cross-examination has spoken
of the prior loans taken by the defendant
saying that he did not know about the
earlier transactions. About PW-3, it is said
by the learned Counsel that this witness has
been relied upon by the Lower Appellate
Court as the star witness to accept the
plaintiff's case, whose testimony has been
accepted over other witnesses. About this
witness, it is pointed out that he has said
that he did not know about the previous
agreements with Saudan Singh and Gyan
Singh, and also did not know if an
instrument of cancellation was executed the
same day as the first suit agreement,
written by the same scribe, Shiv Swaroop
Gupta.

29. It is also emphasized by the
learned Counsel for the defendant that in
response to the plaintiff's notice, calling
upon the defendant to execute a sale deed,
the defendant specifically denied that the
first suit agreement was executed to create
any obligation for sale of the suit property
and said that it was meant to serve as
security for the loan advanced. The plaintiff
never disputed this reply by further
correspondence.
According
to
the
defendant, in Paragraph No.5 of the plaint,
the assertion in the defendant's reply, given
in answer to the plaintiff's notice, were not
specifically traversed, except terming the
defendant's reply as false. Similarly, in
Paragraph No.7 of his examination-inchief, the plaintiff did not deny the
allegations about the transaction being a
loan, but said that the defendant gave an
incorrect reply to his notice.

30. The judgment of the Lower
Appellate Court has been criticized with
regard to the substantial question involved
on the basis that the Lower Appellate Court
accepted the testimony of Het Singh, PW-3
about the fact that the suit agreements
embody a transaction for sale of the suit
property and not one to secure a loan. This
witness's testimony has also been accepted
about the fact that the intention was to
retain the suit property within the family
and save it from being lost to a stranger in
auction. The learned Counsel for the
defendant has criticized the above finding
as manifestly illegal, because according to
him the Courts below did not consider or
record any reason to disbelieve the
testimony of DW-2 and DW-3, both of
whom categorically say that the transaction
was one to secure the loan. The findings of
the Courts below on this score have also
been criticized by the learned Counsel for
the defendant on basis that at the time when
the suit agreements were executed, it is
nobody's case that the land was under any
kind of distress or the peril of auction. It is
urged by the learned Counsel for the
defendant that evidence extrinsic to the
contract can be looked into, when the true
character of the document is questioned. In
support of the said submission, Mr. Jain has
relied upon the decisions of the Supreme
Court in Gangabai v. Chhabubai1, Vimal
Chand Ghevarchand Jain and others v.
Ramakant Eknath Jadoo2, and Placido
Francisco Pinto v. Jose Francisco Pinto3.

31. Mr. Kunal Shah, learned Counsel
appearing on behalf of the plaintiff submits
that in principle, though there may be cases
where on the circumstances obtaining an
inference about the nature of an agreement
9 All. Kashi Ram Vs. Ramji Lal
727
to sell may be drawn that it embodies a
transaction of a character different than the
one ostensible, but for that kind of an
inference, there must be telltale facts
supported by extrinsic evidence of an
irresistible
character
that
dispels
the
apparent tenor of the contract. Learned
Counsel for the plaintiff has taken the
Court through the pleadings and evidence
of parties, both oral and documentary,
besides findings of the Courts below to
show
that
there
are
indeed
no
circumstances, so glaring, proving the real
nature of the transaction as one different
from that embodied in the suit agreements.
In support of the principle that in order to
show that the contract embodied in an
agreement to sell, is different from what it
ostensibly is, circumstances must be very
glaring and supported by extrinsic evidence
of an irresistible character, Mr. Shah has
placed reliance upon the decision of the
Supreme Court in Gurdial Singh and
others v. Raj Kumar Aneja and others4
and that in Madhukar Nivrutti Jagtap
and others v. Pramilabai Chandulal
Parandekar (dead) through LRs and
others5. He submits that in this case the
defendant's pleadings and evidence are
sketchy, contradictory and vague. It is not
one of those cases where this Court need
look behind the agreement as a case of
exception to Sections 91 and 92 of the
Indian Evidence Act, 18726 in order to find
out the real nature of the transaction that
the parties intended to enter into. It is with
reference to the pleadings and evidence of
parties, to which allusion would be made
during the course of this judgment, that Mr.
Shah submits that there is no such
perversity as may necessitate this Court to
disturb the concurrent findings of fact
recorded by the two Courts below, going
by
the
apparent
tenor
of
the
suit
agreements.

32. This Court has considered the
submissions advanced by learned Counsel
for both sides on Substantial Question of
Law (1). As a rule, a solemn contract
regarding sale of immovable property
reduced to writing and registered, the
execution and contents whereof are not in
dispute, is to be construed according to its
apparent tenor. Parole evidence of parties,
different from the written terms of the
contract, is against the rule of exclusion of
oral
by
documentary
evidence.
The
exceptions to the rule are detailed in the six
provisos to Section 92 of the Evidence Act,
besides Sections 95, 96, 97, 98, 99 and 100
of the last mentioned Act.

33. The question whether the true
character of a document, expressing a
different intention from what it ostensibly
says, can be looked into by the Court in
terms of parole evidence given about it, has
been the subject matter of frequent judicial
attention. It is a judicially approved
principle that the bar imposed by Section
92 of the Evidence Act would not apply if a
party does not rely upon the terms of a
document, but says that something different
from the ostensible terms was intended by
parties. In this connection, reference may
be made to the decision of the Supreme
Court in Gangabai (supra). The facts in
Gangabai, in order to appreciate the true
import of the principle, are very relevant
and these can be best recapitulated in the
words of their Lordships. In Paragraph
No.2 of the report in Gangabai, the facts
are described thus:

"2. The respondent filed a suit in
the Court of the Second Joint Civil Judge,
Amravati alleging that the house situated
near Sarafa Bazaar in Amravati had been
purchased by her in 1950 for Rs 4000 and
thereafter improvements had been effected
728 INDIAN LAW REPORTS ALLAHABAD SERIES
by her to the property. Being in need of
money, she entered into an agreement with
the appellant for a loan of Rs 2000 and it
was decided that simultaneously she should
execute a nominal document of sale and a
rent note. These documents were executed
on January 7, 1953. She alleged that the
documents were never intended to be acted
upon, and that the rent paid by her
represented in fact interest at 18 per cent on
the loan. She continued in possession of the
house property throughout and, it is said,
carried on repairs from time to time. It was
stated that the appellant was attempting to
enforce the document as a sale deed by
filing suits in the Court of Small Causes for
recovery of rent. As two suits had resulted
in decrees, she considered it necessary to
file the present suit for a declaration that
she was, and continued to be, owner of the
house property. In defence, the appellant
maintained that the sale deed represented a
genuine transaction, and ownership of the
house property had passed to the appellant.
It was pleaded that the decrees passed by
the Court of Small Causes operated as res
judicata barring the respondent from
pleading that the sale deed was merely a
nominal transaction. Reliance was also
placed on Section 92 of the Indian
Evidence Act."

34. The principle, about a party who
does not rely on a written document, but
says that the intention of the transaction
embodied therein was entirely different
from the express words, is free to show that
different intention, by parole or extrinsic
evidence,
was
enunciated
by
their
Lordships of the Supreme Court in
Gangabai thus:

"11. ......... 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 (Tyagaraja Mudaliyar v. Vedathanni
[AIR 1936 PC 70 : 63 IA 126 : 1936 All LJ
136 : 40 Cal WN 353] ). The trial court was
right in permitting the respondent to lead
parol evidence in support of her plea that
the sale deed dated January 7, 1953 was a
sham document and never intended to be
acted upon. ....."

35 . The principle was acknowledged
on established authority in Vimal Chand
Ghevarchand
Jain
(supra)
by
the
following remarks of their Lordships in
Paragraph No.31 of the report:

"31. Indisputably when the true
character of a document is questioned,
extrinsic evidence by way of oral evidence
is admissible. (See R. Janakiraman v. State
[(2006) 1 SCC 697 : (2006) 1 SCC (Cri)
442] , SCC para 24; Roop Kumar v. Mohan
9 All. Kashi Ram Vs. Ramji Lal
729
Thedani [Roop Kumar v. Mohan Thedani,
(2003) 6 SCC 595] , SCC para 19 and SBI
v. Mula Sahakari Sakhar Karkhana Ltd.
[(2006) 6 SCC 293] , SCC paras 23 to 32.)
We would, therefore, proceed on the
premise that it was open to the respondent
to adduce oral evidence in regard to the
nature of the document........"

36.

The
same
principle
was
enunciated by the Supreme Court in
Gurdial Singh (supra), where the lease
deed,
subject
matter
of
statutory
proceedings for eviction under the East
Punjab Urban Rent Restriction Act, 1949,
was claimed by parties in occupation of the
premises, to be in fact not a lease, but a
different transaction, never intended to be
acted upon by parties. On the issue whether
the occupants, who being not parties to the
lease deed between the owner and one
Goyal, the lessee, but sub-lessees from
Goyal, were entitled to show the true
character of the lease contrary to its
apparent tenor, it was held by the Supreme
Court:

"11. It is true that in spite of the
availability of a registered deed of lease
executed between the owners and Goyal,
the occupants are not debarred from taking
a plea that the transaction between the
owners and Goyal was not what it
apparently appears to be just by reading of
the lease deed.