# Smt. Jeet Kaur v. Sri Mishri Lal

- **Citation:** (2024) 1 ILRA 123
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-21
- **Case number:** Second Appeal No. 2053 of 1980
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-jeet-kaur-v-sri-mishri-lal-50858
- **Pages:** 13

## Headnote

A. Civil Law - Code of Civil Procedure,
1908-Section
100-Specific
Relief
Act,1963-Sections
16
&
20-Indian
Evidence Act, 1872-Sections 91 & 92Specific performance-Agreement to sellRespondent
executed
a
registered
agreement of sell in favour of petitioner-
Suit was decreed by Trial Court, but the
decree has been modified in appeal by
Lower Appellate Court, substituting the
direction for specific performance with an
order for refund of the admitted earnest
money-Whether
in
a
case
where
substantial part of the sale consideration
is paid, discretion can be exercised by the
124 INDIAN LAW REPORTS ALLAHABAD SERIES
court
against
granting
specific
performance under section 20 of the Act
of 1963-Whether court can go behind
terms of agreement in view of sections
91 and 92 of Evidence Act?-Trial Court
has found plaintiff is going by terms of
suit agreement and also evidence of
breach thereof followed by that about
readiness
and
willingness-Defendant
simply said that agreement embodies a
transaction
different
from
what
the
parties entered into-Trial Court rightly
taken
into
account
the
terms
of
registered
agreement
executed
inter
partes
without
looking
into
parole
evidence and other circumstances to
judge if the suit agreement indeed
embodied
the
transaction
that
is
apparent-Since a substantial part of sale
consideration
was
paid,
discretion
generally ought not to be exercised
against granting specific performance
under
section
20
of
Act
of
1963Impugned decree as passed by Lower
Appellate Court set aside and that of Trial
Court restored.(Para 26 to 42)

The appeal is allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,833 of 44,435. This is a partial read: ask again with offset=39833 for what follows._

1 All. Smt. Jeet Kaur Vs. Sri Mishri Lal
123
circumspectly, with a primary focus on
serving the end of justice rather than
causing harm to the legally prescribed
procedural framework.

36. Unless an exceptional case is
made out with compelling evidence of
gross misuse of power, particularly when
such misuse is evident on the face of the
investigation, the Court should ideally
intervene in the investigative process, a
domain
statutorily
entrusted
to
law
enforcement and the executive branch of
government. In essence, in instances of a
demonstrated malicious exercise of power
by a police officer, the Court shall
intervene in the change of investigation or
fresh invention, as the facts of the case may
demand.

37. If the legal proceedings are
aborted at this stage at the behest of the
accused, in the given facts-circumstances,
in which a young lady has died under
mysterious circumstances at in-laws' house
within seven years of her marriage, and
where there are allegations of dowry
demand and cruelty, the petition cannot be
allowed merely on the basis averments
contended by the petitioner-husband that
the brother of his deceased-wife had an
affair with a lady who had no connection of
whatsoever nature with the in-laws family,
Additionally, considering the letter dated
19.10.2022 (Annexure-17 to the writ
petition) and certain social media posts
(Annexure-12 to the writ petition) amounts
to conduct of a mini-trial within the
purview of writ jurisdiction, which is
impermissible in law. The letter dated
19.11.2022, at its zenith, could serve as the
petitioner's
defence.
However,
its
evidentiary merits and pertinence will
undergo scrutiny during the trial in
accordance with the Evidence Act, 1872.

38. In the foregoing discussions, the
petition is devoid of merit and hence
dismissed.

39. The observations made herein are
expressly confined to the disposition of this
case and hold no relevance or impact on the
ongoing proceedings within the trial court
under the jurisdiction of the District &
Sessions Judge, Mainpuri.
----------
(2024) 1 ILRA 123
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.11.2023

BEFORE

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

Second Appeal No. 2053 of 1980

Smt. Jeet Kaur ...Appellant
Versus
Sri Mishri Lal ...Respondent

Counsel for the Appellant:
Sri G.N. Verma, Sri A.N. Verma, Sri Omuir
Babu, Sri Vishnu Sahai

Counsel for the Respondent:
Sri S.N. Singh, Sri Ashok Kumar Srivastava,
Sri R.N. Singh

A. Civil Law - Code of Civil Procedure,
1908-Section
100-Specific
Relief
Act,1963-Sections
16
&
20-Indian
Evidence Act, 1872-Sections 91 & 92Specific performance-Agreement to sellRespondent
executed
a
registered
agreement of sell in favour of petitioner-
Suit was decreed by Trial Court, but the
decree has been modified in appeal by
Lower Appellate Court, substituting the
direction for specific performance with an
order for refund of the admitted earnest
money-Whether
in
a
case
where
substantial part of the sale consideration
is paid, discretion can be exercised by the
124 INDIAN LAW REPORTS ALLAHABAD SERIES
court
against
granting
specific
performance under section 20 of the Act
of 1963-Whether court can go behind
terms of agreement in view of sections
91 and 92 of Evidence Act?-Trial Court
has found plaintiff is going by terms of
suit agreement and also evidence of
breach thereof followed by that about
readiness
and
willingness-Defendant
simply said that agreement embodies a
transaction
different
from
what
the
parties entered into-Trial Court rightly
taken
into
account
the
terms
of
registered
agreement
executed
inter
partes
without
looking
into
parole
evidence and other circumstances to
judge if the suit agreement indeed
embodied
the
transaction
that
is
apparent-Since a substantial part of sale
consideration
was
paid,
discretion
generally ought not to be exercised
against granting specific performance
under
section
20
of
Act
of
1963Impugned decree as passed by Lower
Appellate Court set aside and that of Trial
Court restored.(Para 26 to 42)

The appeal is allowed. (E-6)

List of Cases cited:

1. Smt Raghuberi deceased & ors. Vs Ved Pal
& ors.(2011) AIR Utt 38

2. Bishwanath Prasad Singh Vs Rajendra Prsad
& anr. (2006) 4 SCC 432

3. Dass Jain (dead) thru LRs Vs Sohan Lal
(dead) by LRs (2000) 1 SCC 434

4. Roop Kumar Vs Mohan Thedani (2003) 6
SCC 595

5. Kashi Ram Vs Ramji Lal (2023) 9 ADJ 370

6. Gangabai Vs Chhabubai (1982) 1 SCC 4

7. Vimal Chand Ghevarchand Jain & ors. Vs
Ramakant Eknath Jadoo (2009) 5 SCC 713

8. Placido Francisco Pinto Vs Jose Francisco
Pinto (2021) SCC Online SC 842
9. Anantha Raju & anr. Vs T.M Narasimhan
(2021) AIR SC 5342

10. Mangala Waman Karandikar Vs Prakash
Damodar Ranade (2021) 6 SCC 139

11. Rajendra Singh Vs Chandra Pal (2016) 7
ADJ 564

12. Mahendra Singh Vs Ramesh Singh (2020) 10
ADJ 93

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

1. This is a plaintiff's second appeal
arising
out
of
a
suit
for
specific
performance of contract. The suit was
decreed by the Trial Court, but the decree
has been modified in appeal by the Lower
Appellate Court, substituting the direction
for specific performance with an order for
refund of the admitted earnest.

2. By a registered agreement to sell
dated 13.06.1974 executed by Mishri Lal in
favour of Smt. Jeet Kaur, Jeet Kaur, the
plaintiff, alleged that Mishri Lal had
covenanted
to
transfer
for
a
sale
consideration of Rs.9000/- his one-fourth
share in the property, subject matter of
contract. The property, agreed to be sold in
terms of the registered agreement dated
13.06.1974, shall be called hereinafter as
'the suit property'. The details of the suit
property are:

Sl. No. Plot No. Area
Location
1.

854
3
Bigha
15
Biswa1 Biswansi
Village
Bain
Kalan,
Pargana
Gangeri,
Tehsil
Atrauli,
District
Aligarh
2.
856
14 Biswa
15 Biswansi
Do
3.

858-Ba

3 Bigha 13 Biswa
11 Biswansi
Do
4.
858-Aa
4 Biswansi
Do
1 All. Smt. Jeet Kaur Vs. Sri Mishri Lal
125

3. According to Smt. Jeet Kaur, the
sole plaintiff-appellant, now represented by
her heirs and LRs, plaintiff-appellant
Nos.1/1 and 1/2, who shall hereinafter be
referred to as 'the plaintiff', executed an
agreement to sell dated 13.06.1974, for
short, 'the suit agreement' covenanting that
the defendant, Mishri Lal had received in
earnest a sum of Rs.7900/- until time of
execution of the last mentioned agreement;
the balance of Rs.1100/- was covenanted to
be paid by the plaintiff to the defendant at
the time of execution of the sale deed. The
plaintiff's further case is that the defendant,
Mishri Lal agreed that he would secure for
the suit property a bhumidhari sanad and
within the time period of a month of its
receipt, would execute a registered sale
deed, as covenanted, upon receipt of the
balance sale consideration of Rs.1100/-.
The defendant, Mishri Lal, who is now
represented on record by his sole heir and
LR, Natthi Singh, his son, as respondent
No.1/1, shall hereinafter be referred to as
'the defendant'.

4. According to the plaintiff, the
defendant had agreed that upon receipt of
the bhumidhari sanad, he would inform the
plaintiff by notice about the fact, calling
upon the latter to execute the conveyance.
The plaintiff averred in his plaint that the
defendant, in terms of the suit agreement,
did not give him any information about
receipt of the bhumidhari sanad, despite
the plaintiff verbally inquiring of the
defendant time over again regarding the
fact aforesaid. As such, the plaintiff caused
a notice dated 31.01.1977 to be served
upon the defendant to the effect that the
defendant may, in terms of the suit
agreement,
receive
the
balance
sale
consideration from the plaintiff and execute
the covenanted sale deed at the earliest, and
get the same registered.

5. The plaintiff pleads that despite
service of the said notice, the defendant is
not ready to execute the covenanted sale
deed, in breach of the suit agreement. There
is then the plaintiff's case that she has, in
terms of the suit agreement, been always
ready and willing, and is still ready and
willing
to
secure
execution
of
the
covenanted sale deed. It may be remarked
here that the precise words in the pleading
employed in Paragraph No.7 of the plaint
are: सदैि बैनािा कराने क तैयार थी और अब
भी है।

6. This Court noticed that the pleading
on the point does not mention the Hindi
equivalents of ready and willing, which are
concomitants of the cause of action under
Section 16 of the Specific Relief Act, 1963.
The Hindi equivalents of ready and willing
are 'तत्पर' and 'इच्छुक'. Here, the word
employed is a single word 'तैयार', an Urdu
vernacular,
which
may
not
precisely
represent the two distinct ideas of readiness
and willingness postulated by the statute.
However, since there was no issue raised
about this matter before the Courts below,
this Court does not propose to examine the
matter any further and leaves it to rest here.

7. The plaintiff's further case is that
the defendant's estate has been enlarged
into a bhumidhari in view of the 1977
Amendment
to
the
U.P.
Zamindari
Abolition and Land Reforms Act, and that
now without securing a bhumidhari sanad,
the defendant is competent to execute the
covenanted sale deed. Alleging a breach of
the suit agreement by the defendant, the
present suit for specific performance was
instituted by the plaintiff on 02.07.1977.

8. A written statement was filed on
behalf of the defendant, where the pleas
126 INDIAN LAW REPORTS ALLAHABAD SERIES
raised in the plaint were generally denied.
In the additional pleas, it was averred that
no cause of action arose to the plaintiff to
bring the present action. The defendant
never entered into the suit agreement
covenanting to convey the suit property for
a sum of Rs.9000/- or any other sum of
money in the plaintiff's favour. According
to the defendant, the value of the suit
property was at least Rs.25,000/-, and,
therefore, the defendant would never
execute an agreement to sell covenanting to
convey the suit property in favour of the
plaintiff for a sum of Rs.9000/-. The
defendant alleged that the plaintiff was his
cousin, his father's brother's daughter. The
defendant would trust her much. He was in
need of a sum of Rs.4000/-. He received a
sum of Rs.2500/- in loan from the plaintiff
to be repaid with interest @ 2% per month.
The sum of Rs.2500/- lent to the defendant
at the time of execution of the registered
instrument was done on the understanding
that the balance sum of loan would be paid
to the defendant by and by, against receipts
to be executed by the defendant. Since, the
defendant was not in need of any further
sum of money, he did not receive the
balance of the agreed loan from the
plaintiff.

9. There is an averment to the effect
in the written statement that the plaintiff's
case that a sum of Rs.5400/- had already
been paid to the defendant is absolutely
incorrect, without basis and a falsehood.
The defendant says that he is an illiterate
and rustic villager. The entire transaction
and execution of the suit agreement has
been undertaken by the plaintiff's husband,
Pratap Singh, an experienced litigant and a
clever man. It is he, who has got the suit
agreement executed employing a scribe and
witnesses, who enjoy his confidence. The
defendant has admitted that he would have
no objection to repay the plaintiff the sum
of Rs.2500/- and the accrued interest
thereon. The defendant next avers that he is
a member of a scheduled caste and by the
law not competent to transfer the suit
property in the plaintiff's favour. Therefore,
according to the defendant, the suit
agreement cannot be acted upon. It is again
pleaded that the suit property is not worth
less than Rs.25,000/-. The defendant is
entitled to the benefits of Section 20 and 22
of the Specific Relief Act. The defendant
says that the suit deserves to be dismissed
with costs.

10. On the pleadings of parties, the
following issues were framed:

"1. Whether the defendant agreed
to sell the land in dispute for Rs.9000/- to
the plaintiff as alleged and executed the
agreement dated 13/6/74?

2. Weather the defendant is a member
of scheduled caste and as such he is not
competent to sell his land?

3. Whether the defendant is
entitled to get benefit of Sections 20 and 22
of Specific Relief Act?

4. Whether the defendant was
given only Rs.2500/- and not Rs.7900/- as
alleged in paras 10 and 11 of WS?

5. To what relief, if any, is the
plaintiff entitled?"

11. Issues Nos.1 and 4 were decided
together by the Trial Court, answering Issue
No.1 in the plaintiff's favour and No.4
against the defendant. The execution of the
suit agreement contracting a sale of the suit
property was held established and it was
further held that the defendant received
from the plaintiff a sum of Rs.5400/- and
Rs.2500/-, the former, prior to execution of
the suit agreement, and the latter, at the
time of its registration, leaving a balance of
1 All. Smt. Jeet Kaur Vs. Sri Mishri Lal
127
Rs.1100/- to be paid at the time of
execution of the registered sale deed. Issue
No.2 was decided against the defendant and
likewise Issue No.3. The suit was, in
consequence, decreed with costs directing
the defendant to specifically perform his
obligations by executing a sale deed in the
plaintiff's favour upon receiving the
balance sale consideration of Rs.1100/-, all
to be done in the time period of 30 days
from the date of the decree; in default the
plaintiff was given liberty to secure
execution of the sale deed in his favour at
the defendant's expense through process of
Court.

12. The defendant appealed the decree
to the District Judge, Aligarh in forma
pauperis. The appeal was, therefore,
registered as Misc. Case No.135 of 1978.
The application to appeal as an indigent
was rejected by the learned District Judge
vide order dated 15.12.1979. The defendant
paid the requisite court-fee on 06.04.1980
leading to registration of the appeal on the
file of the learned District Judge, numbered
as Civil Appeal No.156 of 1980.

13. The appeal was heard and
determined by the learned District Judge
vide
judgment
and
decree
dated
14.07.1980. The learned Judge allowed the
appeal, set aside the decree granting
specific performance and substituted it by
one directing refund of Rs.2500/- paid in
earnest with interest @ 17% per annum
from 13.06.1974 upto 02.07.1977. The
plaintiff was also held entitled to pendente
lite and future interest on the sum of
Rs.2500/-
@
6%
per
annum
until
realization upon payment of court-fee in
the execution department. The parties were
held entitled to costs proportionate to their
failure and success throughout. The learned
District Judge in deciding the appeal
formulated three points for determination,
upon which he pronounced. These are: (1)
Whether plaintiff paid a sum of Rs.5400/- to
defendant as advance on 13.6.1974 prior to
the execution of the agreement for sale
(Ex.1)?, (2) Whether defendant is entitled to
the benefit of Sec.20 and 22 of Specific Relief
Act? And, (3) To what relief, if any, is the
plaintiff entitled? The learned District Judge
decided Point No.(1) in the negative holding
that the advance of Rs.5400/- was not paid by
the defendant to the plaintiff on 13.06.1974 at
her home while her husband was away. Point
No.(2) was decided in the affirmative holding
that in the totality of circumstances and
having regard to the conduct of parties, their
relationship, the manner in which the
defendant fell prey to the sharp practice of his
brother-in-law, Pratap Singh, it is just and
proper to refuse specific performance. Point
No.3 was decided in the manner that the
plaintiff was held entitled to the relief of
refund of the earnest in the sum of Rs.2500/-.
In addition to it, he was held obliged to pay
interest at the rate of Rs.17/- per annum from
13.06.1974 to 02.07.1977. She was further
held entitled to pendente lite and future
interest on the principal at the rate of 6% per
annum until payment, upon payment of
necessary
court-fee
in
the
execution
department.

14. On these findings, the learned
District Judge set aside the decree for
specific performance and substituted it with
one for refund of the earnest. So much of
the findings of the Lower Appellate Court
on these points, would be alluded to during
the course of this judgment as are necessary
to answer the substantial questions, on
which this appeal has been heard before us.

15. Aggrieved by the appellate decree,
the plaintiff has preferred this second
appeal.
128 INDIAN LAW REPORTS ALLAHABAD SERIES

16. This second appeal was admitted
to hearing vide order dated 19.08.1980
saying in that order that Grounds Nos.1, 2
and 3 raise substantial questions of law. No
substantial question of law, however, was
formulated by the Court in accordance with
the requirements of the statute. The appeal
came up before this Court on 13.05.2022
for hearing, when it was noticed that
substantial questions, though mentioned in
the order of admission with reference to
grounds taken in the appeal, had not been
formulated by the Court. Accordingly, on
13.05.2022,
the
following
substantial
questions of law were framed:

(i) Whether in a case where
substantial part of the sale consideration is
paid at the time of the suit agreement or
thereafter before the suit is instituted,
discretion can be exercised by the Court
against granting specific performance
under Section 20 of the Specific Relief Act,
1963?

(ii) Whether Court can go behind
the terms of the agreement executed
between the parties in view of the
provisions of Sections 91 and 92 of Indian
Evidence Act, 1972?

17. Heard Mr. Raghav Arora, learned
Counsel for the plaintiff and Mr. Ashok
Kumar
Srivastava,
learned
Counsel
appearing on behalf of the defendant.

18. It would be more convenient to
take up for consideration Substantial
Question of Law No. (ii), first.

19. It is submitted by Mr. Raghav
Arora, learned Counsel for the plaintiff that
in order to understand the legislative
scheme underlying Sections 91 and 92 of
the Indian Evidence Act, one has to look to
the principle behind the need for reducing
transactions between parties into writing.
The purpose of reducing a transaction
into writing is to perpetuate the memory
of the transaction so as to avoid
confusion about what that transaction is.
Also, if the transaction has to be proved,
the mandate of Sections 91 and 92 of the
Evidence Act is that it can be proved by
the document alone; not by parole
evidence. This, Mr. Arora says, is also
called the principle of exclusivity of
documentary evidence. He has invited the
attention of the Court to Section 91 of the
Evidence Act to say that it provides:
'when the terms of a contract, or of a
grant, or of any other disposition of
property, have been reduced to the form
of a document, and in all cases in which
any matter is required by law to be
reduced to the form of a document, no
evidence shall be given in proof of the
terms of such contract, grant or other
disposition of property, or of such matter,
except the document itself,......', to
borrow the precise phraseology of the
statute. He submits that Section 91
embodies the rules of exclusivity of
documentary evidence.

20. Mr. Arora next submits that
Section 92 of the Evidence Act provides
that when the terms of any such contract
have been reduced to the form of a
document and proved according to Section
91 of the Evidence Act, no evidence of any
oral agreement or statement shall be
admissible
inter
partes
or
their
representatives in interest, for the purpose
of contradicting, varying, adding to, or
subtracting
from,
the
terms
of
the
document. It is argued that Section 91 of
the Evidence Act is a prohibitive provision.
It places a bar upon parties proving the
terms of a contract reduced to writing by
extrinsic evidence. It permits proof of the
1 All. Smt. Jeet Kaur Vs. Sri Mishri Lal
129
transaction
reduced
to
writing
by
documentary evidence and prohibits it by
any oral evidence.

21. Section 92 of the Evidence Act
also carries a prohibition. It prohibits proof
of a document proved under Section 91 by
any other evidence, particularly, oral, that a
party may seek to lead in order to modify,
add to or subtract from anything what the
document says. Mr. Arora has placed
reliance
upon
the
decision
of
the
Uttarakhand
High
Court
in
Smt.
Raghuberi 'deceased' and others v. Ved
Pal and others, AIR 2011 Utt 38, where it
is observed:

"8. Since the substantial question
of law on which the second appeal has been
admitted encompasses a narrow area, this
Court will only take up this legal issue. The
fact of the matter is that plain reading of
Sections 91 and 92 clearly stipulates that
once the contents of written document have
been proved, as it has been proved in the
present case in the form of registered
agreement
for
sale
dated
10.5.1978,
nothing which is contrary to or varying to
or adding or subtracting to this contract
shall be taken into consideration by the
court. The existence of any condition which
is there in an unregistered document (Ex.
A-1) stipulates that if the defendant returns
the agreed amount i.e. ` 7,700/- within a
period of 2 years, the plaintiff shall not
press upon the execution of the sale deed, is
a document which cannot be relied upon in
view of the clear cut separate provision
contained in the written agreement for sale
which was registered. Any reliance on it
will be in violation of Sections 91 and 92 of
the Indian Evidence Act. Therefore, it is the
clear opinion of this Court that registered
document for agreement for sale was
misinterpreted and the reliance on the
unregistered document (Ex. A-1) was
clearly wrong."

 Bishwanath
Prasad
SinghBishwanath Prasad Singh

22. He has further relied upon the
decision
of
the
Supreme
Court
in
Bishwanath Prasad Singh v. Rajendra
Prasad and another, (2006) 4 SCC 432,
which in turn refers to Ishwar Dass Jain
(dead) through LRs v. Sohan Lal (dead)
by LRs, (2000) 1 SCC 434 and Roop
Kumar v. Mohan Thedani, (2003) 6 SCC
595. It is urged on the foot of all these
authorities that this is a case where the suit
agreement carries a recital to the effect that
the defendant had received from the
plaintiff Rs.5400/-. The suit agreement also
covenants that the defendant will receive a
sum of Rs.2500/- before the Sub-Registrar.
The execution and registration of the
document is admitted to the defendant. The
suit agreement had been duly proved by the
plaintiff during trial, a fact clearly found by
the Trial Court in the plaintiff's favour. The
parole evidence of the defendant to the
effect that he never received a sum of
Rs.5400/- from the plaintiff as per the
recitals in the suit agreement, cannot be
looked into or considered. The reason is
that the terms of the contract cannot be
contradicted or proved incorrect by oral
evidence
on
the
point,
which
is
inadmissible under Sections 91 and 92 of
the Evidence Act.

23. It is urged next that if for the sake
of argument oral evidence regarding the
terms of the suit agreement be held
admissible, the defendant has averred in his
written statement that he has not received
the sum of Rs.5400/- from the plaintiff as
recorded in the said agreement. This is a
fact which had to be proved by the
defendant. The defendant failed to prove
this fact before the Trial Judge that he
130 INDIAN LAW REPORTS ALLAHABAD SERIES
actually did not receive the sum of
Rs.5400/- from the plaintiff, a fact that is
part of recitals in the suit agreement. It is
next argued by Mr. Arora that Sections 103
and 106 of the Evidence Act would cast
burden of proof upon the defendant to
establish that he did not receive the sum of
Rs.5400/- from the plaintiff, a fact
otherwise established by the recitals in the
suit agreement. It is further urged that the
Lower Appellate Court, by going behind
the terms of the suit agreement, shifted the
burden away from the defendant that he
bears under Sections 103 and 106 of the
Evidence Act, placing it in manifest error
upon the plaintiff's shoulders to prove that
the plaintiff had paid Rs.5400/- to the
defendant in terms of the suit agreement.
According to learned Counsel, the plaintiff
has duly discharged his burden by proving
the execution of the suit agreement, a fact
found for him by the Lower Appellate
Court.

24. The learned Counsel for the
defendant has submitted that the provisions
of Sections 91 and 92 of the Evidence Act
do not come into play at all in this case,
forbidding the defendant from leading oral
evidence, inasmuch as the defendant
disputes the character of the suit agreement
and says that it was never the intention of
parties to enter into a bargain for the sale of
the suit property. Since the case of the
defendant is that the document that he
executed was understood by him to be one
securing repayment of the agreed loan of
Rs.4000/-, out of which he received
Rs.2500/- alone, the bar under Section 92
would never be attracted. If a party to a
contract pleads that the document embodies
a transaction different from that recorded,
the principle is well settled that parole
evidence about what was truly intended by
parties can be given, unhindered by the
provisions of Section 92 of the Evidence
Act.

25. We have given our thoughtful
consideration to the submissions advanced
by learned Counsel and perused the record.

26. It is true for a salutary principle
that the terms of a solemn document, which
embodies the terms of a contract entered
into between parties, must generally and
always be considered according to its
apparent tenor and read as a complete
embodiment of the terms of contract that
the parties entered into, to the exclusion of
all other evidence about it. This is the
substance of the Rules embodied in
Sections 91 and 92 of the Evidence Act.
While Section 91 of the Evidence Act
postulates a rule of exclusion of oral
evidence, where the terms of a contract
etc., have been reduced to writing, the rule
in Section 92 makes what is exclusively
provable in accordance with Section 91,
conclusive between parties. Thus, while
Section 91 makes documentary evidence of
a transaction reduced to writing exclusive
about its proof, Section 92 makes it
conclusive. There is little quarrel about
these well established principles and we do
not think that there is any cavil about these
arising from whatever the learned Counsel
for the parties have mooted before this
Court. What seems to have been missed by
the learned Counsel for the plaintiff in
relying upon the complementary rules in
Sections 91 and 92, is the fact that Section
92 does not prohibit a party from showing
the true character of a transaction embodied
in a document, if he says that it is different
from what was really entered into between
parties. A party, therefore, urging a plea of
non est factum or saying that what he
signed was understood by him to be
something essentially different from what
1 All. Smt. Jeet Kaur Vs. Sri Mishri Lal
131
the writing is, is not at all hindered by
Section 92 of the Evidence Act from
leading parole evidence about what he
intends to prove.

27. I had occasion to consider this
question in Kashi Ram v. Ramji Lal, 2023
(9) ADJ 370, where after reference to
relevant and high authority bearing on the
point, in particular, the decisions of the
Supreme
Court
in
Gangabai
v.
Chhabubai, (1982) 1 SCC 4, Vimal
Chand Ghevarchand Jain and others v.
Ramakant Eknath Jadoo, (2009) 5 SCC
713, Roop Kumar (supra), Ishwar Dass
Jain (supra), Placido Francisco Pinto v.
Jose Francisco Pinto, 2021 SCC OnLine
SC 842, V. Anantha Raju and another v.
T.M. Narasimhan, AIR 2021 SC 5342
and Mangala Waman Karandikar v.
Prakash Damodar Ranade, (2021) 6 SCC
139, the principle was summarized thus:

"41. On principle, the prohibition
on admitting parole evidence, where parties
have entered into a solemn and written
deed or contract, is the rule. About the
exceptions, a close look at authority
demonstrates that the conservative view is
to permit oral evidence to be admitted
contrary to the terms of a written deed,
agreement or document, in case one or the
other exceptions, mentioned in the six
provisos to Section 92 of the Evidence Act
is attracted, or one of the exceptions in
Sections 93, 95, 96, 97, 98, 99 and 100 of
the Act last mentioned. In a case, where the
statutory exceptions to the rule in Section
92 do not apply, there is this judicially
evolved principle operating in a very
narrow field and subject to very exacting
standards of burden on the party, seeking to
introduce oral evidence, which applies in
those cases alone, where a party does not
seek to plead anything contradicting,
varying, adding to or subtracting from the
terms of the written document, but show that
the parties in fact intended to enter into a
transaction, very different from what is
ostensible.
Therefore,
this
exception,
judicially recognized, applies to cases,
where the party, intending to lead oral
evidence, does not rely on the document, but
says that it is sham, and that the intention of
parties was entirely different than the
recitals.

42. A reading of the principle in
Mangala Waman Karandikar, (Supra)
and, also somewhat in Placido Francisco
Pinto (Supra) shows that the Court has
leaned in favour of a strict approach to admit
oral evidence, where parties have a written
deed or contract governing their rights with
exceptions only being those enumerated in
the provisos to Section 92 of the Evidence or
Sections 93, 95, 96, 97, 98, 99 and 100. But,
it is equally true that the holding in Placido
Francisco Pinto (Supra) also acknowledges
the principle that oral evidence, contrary to a
written agreement, may be led in those
cases, where the document is claimed by
one party to be sham and what the parties
contracted really being entirely different. At
this stage, it is necessary to notice the
standards by which a person, who refuses to
rely on a written record of the transaction or
contract between him and the other party
and says that what was contracted was
entirely different, must prove that fact. In
this connection, reference must be made to
Gurdial Singh, where it is said that the
inference of a different intention than the
written contract ''from the circumstances
should be an irresistible one and not merely
a matter of conjectures and surmises'', to
borrow the words of their Lordships."

28. In our opinion, the principles
deduced by this Court in Kashi Ram
(supra) does not require an elaborate
132 INDIAN LAW REPORTS ALLAHABAD SERIES
reference to all the authorities, on which it
is based. We proceed, therefore, to hold that
this is the principle, by which the
substantial question here is to be answered.

29. In this case, therefore, what this
Court is required to see is if the suit
agreement here is one, where from the
circumstances, there is an apparent and
irresistible
inference
about
the
said
agreement not being the embodiment of the
contract that was really entered into
between parties. If the inference on the
circumstances is irresistible that the suit
agreement does not embody what the
parties bargained, but something entirely
different, the rule in Mangala Waman
Karandikar
(supra)
and
Placido
Francisco Pinto (supra) laid down by the
Supreme Court and by this Court in Kashi
Ram
may
be
invoked
to
permit
consideration of parole evidence about the
terms of the contract; else, Section 92 of
the Evidence Act would forbid any such
consideration. The Trial Court has found
for the plaintiff, going by the terms of the
suit agreement, and, also, evidence of
breach thereof followed by that about
readiness and willingness. The Lower
Appellate Court, however, has chosen to
look beyond the suit agreement and
considered parole evidence and other
circumstances to judge what the transaction
really was.

30. The Lower Appellate Court seems
to have been impressed by the fact that out
of the recorded earnest in the suit
agreement, the sum of Rs.5400/- was paid
to the defendant at home, regarding which
a receipt was issued to the plaintiff, but not
produced in evidence. The Lower Appellate
Court has opined that the evidence of this
receipt being returned to the defendant
about time or just before the execution of
the suit agreement, is not believable. The
Lower Appellate Court has then gone about
the exercise of considering the oral
testimony of the three witnesses called by
the plaintiff to prove the suit agreement,
one of whom was the scribe and the other
two, witnesses of the document, properly
so called. The Lower Appellate Court has
also taken into account the fact that the
Sub-Registrar's
endorsement
mentions
payment of the sum of Rs.2500/- out of the
earnest of Rs.7900/-, that was made before
him, but not the sum of Rs.5400/- paid at
home. Though, the Lower Appellate Court,
as the last Court of fact, certainly had
jurisdiction
to
review
evidence
wholesomely, coextensive with that of the
Trial Court, but it certainly had the same
embargo to face, in looking into parole
evidence which the Trial Court would have,
in considering the suit agreement, in view
of the Rules in Sections 91 and 92 of the
Evidence Act.

31. In the clear opinion of this Court,
the Lower Appellate Court did not point to
any
circumstances,
from
which
an
irresistible inference could be drawn that
the suit agreement was not an embodiment
of the real transaction that the parties
entered into. The remarks of the Lower
Appellate Court that the receipt was not
mentioned by the plaintiff to her Counsel
and was, therefore, not part of her
pleadings, or to the scribe, who drafted the
suit agreement, making the payment of a
sum
of
Rs.5400/-
back
at
home
unbelievable, is besides the point.

32. The other remarks, disbelieving
the case for return of a the receipt,
evidencing payment of Rs.5400/- out of the
earnest, immediately before execution of
the suit agreement, is also a matter that
does not make the suit agreement shrouded
1 All. Smt. Jeet Kaur Vs. Sri Mishri Lal
133
by circumstances that may lead to the
irresistible conclusion of it being the
embodiment of a transaction different from
what the parties entered into. Rather, if the
evidence of parties for the limited purpose
of judging if the rule in Section 92 bars a
consideration of oral evidence, is looked
into, the irresistible conclusion is that the
receipt of whatever kind for the sum of
Rs.5400/-, that was earlier executed in the
defendant's favour, could very logically be
returned to the plaintiff, once the parties
formally reduced their bargain to a written
and registered contract, where receipt of the
sum of Rs.5400/- also found mention in the
recitals. The mere fact that the SubRegistrar in his endorsement, at the time of
registration,
mentioned
the
sum
of
Rs.2500/-, part of the total earnest of
Rs.7900/- alone, is also not that kind of a
circumstance, on which an irresistible
inference about the document being a sham
or
the
embodiment
of
a
different
transaction, could be drawn. Normally and
invariably, as a rule, parties ought be bound
by the terms of their written deed or
contract, and it is only in the most
extraordinary circumstances, suggesting a
sham transaction or an entirely different
one from what has been scripted in the
contract or deed, that parole evidence may
be considered contrary to the rule in
Section 92 of the Evidence Act.

33. Of course, if a party does not rely
on the terms of a contract on one or the
other grounds postulated in the six provisos
of Section 92 or one of the exceptions in
Sections 93, 95, 96, 97, 98, 99 and 100 of
the Evidence Act, oral evidence in support
of those pleas must be permitted to be led.
Here, that is not the case. The defendant
has not specifically pleaded or sought to
establish fraud, intimidation, illegality,
want of due execution, want of capacity in
him; but simply said that the agreement
embodies a transaction different from what
the parties entered into. Though, this is
permissible in view of the judicially
evolved principles, but only if by the most
exacting standards an irresistible inference
from circumstances could be drawn that the
solemn contract is not the embodiment of
the real transaction.

34. This Court is afraid that the Lower
Appellate Court has not judged the case of
parties by this standard before venturing to
consider all kind of parole evidence and
circumstances to hold against the solemn
terms of the suit agreement. In the opinion
of this Court, the Trial Court was right in
going by the terms of the registered
agreement, executed inter partes, without
looking into parole evidence and other
circumstances
to
judge
if
the
suit
agreement indeed embodied the transaction
that is apparent.

35. In view of what we have held,
there is no necessity to consider the
decision of the Uttarakhand High Court in
Smt. Raghuberi (supra) and the Supreme
Court in Bishwanath Prasad Singh
(supra) relied upon by the learned Counsel
for the plaintiff on the substantial question
under consideration.

36. In view of what has been held,
Substantial Question No.(ii) is answered
in the negative, subject to the remarks
hereinabove.

37. So far as the first substantial
question of law goes, this Court has to go
by the finding of the Trial Court about the
suit agreement and its terms. This is so
because whatever the Lower Appellate
Court has held to the contrary has not met
with our approval on principle that the
134 INDIAN LAW REPORTS ALLAHABAD SERIES
Appellate Judge ought not to have looked
into parole evidence, for reasons already
given. The terms of the suit agreement,
which is a registered instrument, clearly
indicate that the bargain embodied therein
is one for sale of the suit property for a
total consideration of Rs.9000/-. Out of the
agreed consideration, a sum of Rs.7900/-
was paid in earnest, sparing a residue of
Rs.1100/- to be paid at the time of
execution of the sale deed. Now, one of the
principles
governing
the
exercise
of
discretion to grant specific performance is
substantial compliance with his part of the
contract by the price contractee, that is to
say, the plaintiff. If out of the entire sale
consideration, the price contractee or the
vendee has paid almost the whole of the
agreed sale consideration, with a negligible
residue to be paid at the time of execution
of the sale deed, discretion normally ought
to be exercised in favour of the vendee. Of
course, there could be cases disentitling the
plaintiff to relief since specific performance
on the terms of the statute, as it stands for
the purpose of the present suit, is after all
an
equitable
relief,
and,
therefore,
discretionary. But, there is no denying the
fact
that
in
guiding
that
discretion
substantial payment by the vendee is one of
the robust factors that ought to weigh with
the Court in opting for the grant of specific
performance.

38. This question came up for
consideration
before
this
Court
in
Rajendra Singh v. Chandra Pal, 2016 (7)
ADJ 564, where it was observed:

"11. In present case the readiness
and willingness to perform his part of the
contract, as required for the grant of relief
of specific performance, is proved fact. Not
only the lower Courts had given such
finding in favour of plaintiff-appellant, but
also this fact is explicitly clear and evident
from the fact that out of total agreed sale
consideration of Rs. 80,000/- the plaintiffappellant had already paid Rs.