# VIMAL CHAND GHEVARCHAND JAIN & ORS v. RAMAKANT EKNATH JAJOO •""'"

- **Citation:** [2009] 4 S.C.R. 794
- **Court:** Supreme Court of India
- **Decided:** 2009-03-23
- **Case number:** Civil appeal No. 1784 of 2009
- **Bench:** S.B. Sinha, Dr. Mukundakam Sharma
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vimal-chand-ghevarchand-jain-ors-v-ramakant-eknath-jajoo-25749
- **Pages:** 29

## Headnote

Transfer of Property Act, 1882- s. 54 - Sale by registered
deed of sale in favour of plaintiff by defendants - Stipulation
in the deed that if plaintiff dispossessed, defendant was to pay
c compensation - Defendant continuing in possession of the
property as a licencee - On failure to pay licence fee, suit for
recove1y of possession - At trial stage defendant proving his
possession - Suit dismissed - At appellate stage defendant
disputing the sale deed stating that it was executed only as
D security for a money-lending transaction between the parties
- Appellate Court a/so dismissing the suit - On appeal, held :
The suit was liable to be decreed - The Sale deed being a
registered document carries presumption as regards
genuiness of the transaction - The onus to prove that the sale
E
deed was a sham, was on the defendant, and he failed to
discharge the burden - The deed of sale was required to be
considered in its proper perspective - On facts, legal fiction is
created in terms whereof owner becomes dispossessed and
regains possession in different capacity- Stipulation regarding
F
compensation not material as it did not affect real nature of
transaction -
The question regarding compensation not
entertainable since raised before this court for the first time -
Defendant also not entitled to equitable relief as he did not
approach the court with clean hands - Legal Fiction - Deeds
G and Documents - Practice and Procedure - Equity.
"
Plea:
Alternative <?r inconsistent pleas can be raised but not
mutually destructive pleas.
H
794
VIMAL CHAND GHEVARCHAND JAIN & ORS. V
795
RAMAKANT EKNATH JAJOO
•
New Plea - Raising of, for the first time before Supreme A
•
Court - Held : Not permissible.
Practice and Procedures - Raising of new plea - Before
Supreme Court - Held : Not permissible.
Deeds and Documents : Interpretation of document -
B
Held: A document must be construed in its entirety
A deed of sale was executed by father of respondent
in favour of a partnership firm. The deed was registered.
Respondent himself was a witness to the deed. Thereafter
the father of respondent was put in possession of the C
property as a licencee at an agreed licence fee. After
dissolution of the firm, appellant became the owner of the
property.
Appellant filed a suit for recovery of possession as 0
the cheque issued by the respondent towards licence fee
was dishonored. Respondent disputed the transaction
and examined three witnesses to prove his possession.
Trial court dismissed the suit holding that the appellantp la i ntiff failed to prove that the suit property was
purchased by the sale deed; and that the circumstantial E
evidence shows that the deed was executed only as a
security for a money-lending transaction between the
parties.
Appellants preferred appeal. During pendency F
thereof, respondent amended the Written Statement,
stating that the sale deed was executed as a security for
the loan amount taken from the partnership firm having
money-lending business. Respondent also examined
himself as a witness. It. was also stated that loan amount G
has been repaid. First appellate court framed an additional
issue whether the sale deed was executed as a security
for the money lent. Appellate court dismissed the suit.
However, disbelieving the case that loan has been repaid,
held that the appellant-plaintiff was entitled to loan amount H
796
SUPREME COURT REPORTS
[2009] 4 S.C.R
A
with interest. Second appeal was dismissed by High
Court. Hence the present appeal.
Allowing the appeal, the Court
HELD: 1.1 In the facts and circumstances of this case,
B
the plaintiff's suit should have been decreed. The deed of
sale was a registered one. It, therefore, carries a
presumption that the transaction was a genuine one.
Respondent was the son of the vendor. He was an
attesting witness. In his written statement, he categorically
denied execution of the said deed of sale. He also denied
C that he had attested the document. He even did not
examine himself before the t

## Text

_Characters 0–39,937 of 53,578. This is a partial read: ask again with offset=39937 for what follows._

(2009] 4 S.C.R. 794
A
VIMAL CHAND GHEVARCHAND JAIN & ORS.
v.
RAMAKANT EKNATH JAJOO
•""'"
Civil appeal No. 1784 of 2009
B
MARCH 23, 2009
[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]
Transfer of Property Act, 1882- s. 54 - Sale by registered
deed of sale in favour of plaintiff by defendants - Stipulation
in the deed that if plaintiff dispossessed, defendant was to pay
c compensation - Defendant continuing in possession of the
property as a licencee - On failure to pay licence fee, suit for
recove1y of possession - At trial stage defendant proving his
possession - Suit dismissed - At appellate stage defendant
disputing the sale deed stating that it was executed only as
D security for a money-lending transaction between the parties
- Appellate Court a/so dismissing the suit - On appeal, held :
The suit was liable to be decreed - The Sale deed being a
registered document carries presumption as regards
genuiness of the transaction - The onus to prove that the sale
E
deed was a sham, was on the defendant, and he failed to
discharge the burden - The deed of sale was required to be
considered in its proper perspective - On facts, legal fiction is
created in terms whereof owner becomes dispossessed and
regains possession in different capacity- Stipulation regarding
F
compensation not material as it did not affect real nature of
transaction -
The question regarding compensation not
entertainable since raised before this court for the first time -
Defendant also not entitled to equitable relief as he did not
approach the court with clean hands - Legal Fiction - Deeds
G and Documents - Practice and Procedure - Equity.
"
Plea:
Alternative <?r inconsistent pleas can be raised but not
mutually destructive pleas.
H
794
VIMAL CHAND GHEVARCHAND JAIN & ORS. V
795
RAMAKANT EKNATH JAJOO
•
New Plea - Raising of, for the first time before Supreme A
•
Court - Held : Not permissible.
Practice and Procedures - Raising of new plea - Before
Supreme Court - Held : Not permissible.
Deeds and Documents : Interpretation of document -
B
Held: A document must be construed in its entirety
A deed of sale was executed by father of respondent
in favour of a partnership firm. The deed was registered.
Respondent himself was a witness to the deed. Thereafter
the father of respondent was put in possession of the C
property as a licencee at an agreed licence fee. After
dissolution of the firm, appellant became the owner of the
property.
Appellant filed a suit for recovery of possession as 0
the cheque issued by the respondent towards licence fee
was dishonored. Respondent disputed the transaction
and examined three witnesses to prove his possession.
Trial court dismissed the suit holding that the appellantp la i ntiff failed to prove that the suit property was
purchased by the sale deed; and that the circumstantial E
evidence shows that the deed was executed only as a
security for a money-lending transaction between the
parties.
Appellants preferred appeal. During pendency F
thereof, respondent amended the Written Statement,
stating that the sale deed was executed as a security for
the loan amount taken from the partnership firm having
money-lending business. Respondent also examined
himself as a witness. It. was also stated that loan amount G
has been repaid. First appellate court framed an additional
issue whether the sale deed was executed as a security
for the money lent. Appellate court dismissed the suit.
However, disbelieving the case that loan has been repaid,
held that the appellant-plaintiff was entitled to loan amount H
796
SUPREME COURT REPORTS
[2009] 4 S.C.R
A
with interest. Second appeal was dismissed by High
Court. Hence the present appeal.
Allowing the appeal, the Court
HELD: 1.1 In the facts and circumstances of this case,
B
the plaintiff's suit should have been decreed. The deed of
sale was a registered one. It, therefore, carries a
presumption that the transaction was a genuine one.
Respondent was the son of the vendor. He was an
attesting witness. In his written statement, he categorically
denied execution of the said deed of sale. He also denied
C that he had attested the document. He even did not
examine himself before the trial judge. His witnesses
merely proved his possession. The fact that the
respondent's father was put in possession was not in
dispute. What was in dispute was the character of his
D
possession, which was not considered in its proper
perspective by the courts below. [Paras 13 and 26]
[822-B; 813-F-H; 814-A]
1.2 The First Appellate Court had arrived at a
conclusion first and then started to assign reasons in
E
support thereof. It did not pose unto itself the correct
questions. Apart from wrongly placing the burden of proof
on the plaintiff, even adverse inference against the
defendant had not been drawn. The pleadings were
required to be considered provided any evidence in
F
support thereof had been adduced. No cogent evidence
had been adduced by the respondent to show that the
deed of sale was a sham transaction and/or the same was
executed by way of a security. [Para 21] [820-B-C]
1.3 It is true that the written statement was permitted
G to be amended. Additional evidence pursuant thereto was
also permitted to be adduced. The first appellate court,
however, had a duty to properly appreciate the evidence
in the light of the pleadings of the parties. While doing so,
it was required to pose unto itself the correct questions.
H
The deed of sale being a registered one and apparently
•
..
.-
..
VIMAL CHAND GHEVARCHAND JAIN & ORS. V
797
RAMAKANT EKNATH JAJOO
containing stipulations of transfer of right, title and interest A
by the vendor in favour of the vendee, the onus of proof
was upon the defendant to show that the said deed was,
in fact, not executed or otherwise does not reflect the true
nature of transaction. Evidently, with a view to avoid
confrontation in regard to his signature as an attesting B
witness as also that of his father as vendor in the said
sale deed, he did not examine himself. An adverse
inference, thus, should have been drawn against him.
[Para 15] [814-C-E]
Kamakshi Builders v. Ambedkar Educational Society and c
Ors. AIR 2007 SC 2191 - referred to.
1.4 When a true character of a docume·nt is
questioned, extrinsic evidence by way of oral evidence is
admissible. Therefore, it was open to the respondent to D
adduce oral evidence in regard to the nature of the
document. But, did not discharge the burden of proof in
respect thereof which was on him. The document in
question was not only a registered one but also the title
deeds in respect of the properties have also been handed E
over. Symbolical possession if not actual physical
possession, thus, must be held to have been handed over.
It was acted upon. Appellants started paying rent in
respect of the said property. No objection thereto has
been raised by the respondent. [Para 20, 21] [819-B-D]
F
R. Janakiraman vs. State Rep. by Inspector of Police,
CBI, SPE, Madras (2006) 1 SCC 697; Roop Kumar vs. Mohan
Thedani (2003) 6 SCC 595; State Bank of India and Anr. vs.
Mula Sahakari Sakhar Karkhana Ltd. (2006) 6 SCC 293 -
referred to .
G
1.5 Respondent paid certain amount by cheque
towards the licence fee. It was for him to show on what
account the money was paid. Only because the parties
had other transactions, by itself was not sufficient to hold
that the defendant has discharged his onus. If the sum of H
798
SUPREME COURT REPORTS
[2009] 4 S.C.R.
A
Rs.50,000/- was the amount of loan wherefor the deed of
sale was executed by way of security, having regard to
his admission that the firm is an income-tax payee and
maintains books of account in regular course of business,
failure on his part to produce any documentary evidence
B
merited drawing of an adverse inference. [Para 21] [819-E-G]
1.6 Pleadings of the parties, it is trite, are required to
be read as a whole. Defendants, although are entitled to
raise alternative and inconsistent plea but should not be
c
permitted to raise pleas which are mutually destructive of
each other. It is also a cardinal principle of appreciation
of evidence that the court in considering as to whether
the deposition of a witness and/or a party is truthful or
not may consider his conduct. Equally well settled is the
D
principle of law that an admission made by a party in his
pleadings is admissible against him proprio vigore.
Therefore, the deed of sale was required to be construed
in proper perspective. Indisputably, the deed of sale
contained stipulations as regards passing of the
E
consideration, lawful title of the vendor, full description
of the vended property, conveyance of the right, title,
interest, use, inheritance, property, possession, benefits,
claims and demands at law and in equity of the vendor.
[Paras 16 and 17] [815-C-F]
F
Ranganayakamma and Anr. v. K.S. Prakash (0) By Lrs.
and Ors. (2008) 9 SCALE 144 - referred to.
1.7 A document, must be construed in its entirety.
Reading the document in question in its entirety, there
cannot be any doubt whatsoever that it was a deed of
G sale. It satisfies all the requirements of a conveyance of
....
sale as envisaged u/s. 54 of the Transfer of Property Act.
[Para 19] [817-E]
Bishwanath Prasad Singh v. Rajendra Prasad and Anr.
H
(2006) 4 sec 432 - relied on.
,
-4
..
.,
VIMAL CHAND GHEVARCHAND JAIN & ORS. V
RAMAKANT EKNATH JAJOO
799
lshwar Dass Jain v. Sohan Lal (2000) 1 SCC 434, Roop A
Kumar v. Mohan Thedani (2003) 6 SCC 595 - referred to.
1.8 It is assumed that the parties entered into an
arrangement as a result whereof the father of the
respondent was to continue in possession. The character
B
of his possession, however, changed from that of an
owner to a licensee. A legal fiction in a situation of this
nature is created in terms whereof the owner becomes
dispossessed and regains possession in a different
capacity, namely, as a licensee. [Para 21] [820-G]
c
1.9 Right of possession over a property is a facet of
title. As soon as a deed of sale is registered, the title
passes to the vendee. The vendor, in terms of the
stipulations made in the deed of sale, is bound to deliver
possession of the property sold. If he does not do so, he D
makes him liable for damages. The indemnity clause
should have been construed keeping in view that legal
principle in mind. The stipulation with regard to payment
of compensation in the event appellants are dispossessed
was by way of an indemnity and did not affect the real E
nature of transaction. In any event, the said stipulation
could not have been read in isolation. Such a case had
never been made out and hence cannot be allowed to be
raised for the first time before this court. [Paras 21, 22 and
24] [820-D-E; 821-D-F, H; 822-A-B]
F
1.10 In any event, in view of the conduct of the
respondent, he cannot claim equity. An equitable relief can
be prayed for by a party who approaches the court with
clean hands. (Para 25] (822-F-G]
Case Law Reference
G
AIR 2007 SC 2191
Referred to.
Para 15
(2008) 9 SCALE 144
Referred to.
Para 16
(2006) 4 sec 432
Relied on.
Para 19
H
800
SUPREME COURT REPORTS
[2009] 4 S.C.R
'
....
A
(2000) 1 sec 434
Referred to.
Para 19
(2003) 6 sec 595
Referred to.
Para 19
(2006) 1 sec 697
Referred to.
Para 20
B
(2003) 6 sec 595
Referred to.
Para 20
(2006) 6 sec 293
Referred to.
Para 20
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1784
Of 2009
c
From the Judgement and Order dated 20.02.2007 of the
,.__
High Court of Judicature at Bombay, in Second Appeal No. 758
of 2006.
Shyam Divan, Gaurav Kejriwal, Vasuman Khandelwal, with
him, for the Appellants.
D
Jaideep, Su brat Birla (for S.C. Birla), for the Respondents.
The Judgement of the Court was delivered by
S.B. SINHA, J.
E
1. Leave granted.
2. Plaintiff is the appellant before us.
Father of the respondent was owner of four god owns and
the land surrounding them admeasuring 1 acre and 4 guntas
F
being Survey No.462, situated at Village Saikheda, Taluka
Niphad. District Nasik. The said godowns were numberd as
Grampanchayat No. 753 to 761.
Indisputably, a deed of sale was executed by the father of
G
the respondent in favour of Vim al Chand Ghevar Chand Jain &
Co .. a partnership firm, on or about 29.6.1974. The said deed
of sale was registered at Mumbai. Respondent himself was a
witness to the said deed of sale.
On or about 1. 7 .1978, the possession of the said property
H
was allegedly handed over to the father of the respondent as a
.4
..
VIMAL CHAND GHEVARCHAND JAIN & ORS. V.
801
RAMAKANT EKNATH JAJOO [S.B. SINHA, J.]
licensee at an agreed licence fee of Rs.1,257.50 per month. A
The said partnership firm was dissolved pursuant whereto the
appellant became the owner of the said property. Appellants
contend that the respondent had made payments towards
licence fee by a cheque but when deposited, the same was
dishonoured.
B
On the said contention, appellant filed a suit for recovery
of possession which was marked as Special Suit No.330 of
1987 praying, inter alia, for the following reliefs:
(a)
That it be declared that the Defendant has no right,
title or interest of any nature whatsoever in respect of
the property, viz., being the plot of land admeasuring
one acre four gunthas or thereabouts, that is 5,324
sq. yards (44 gunthas x 121 sq. yds.) equivalent to
4451.53 sq. meters, along with 6 (six) corrugated
iron-sheet god owns, one house and one well thereon,
known as Kandechichawli situated at Gram
Panchayat Nos.753 to 761 in the village Saykheda,
Sub-District Niphad, District Nasik or say part
thereof, or to store or keep any goods, articles or
things therein or to use, enter upon or remain upon
the said property or any part thereof, and that the
Defendant is in wrongful use and occupation of the
said property.
(b)
That the Defendant be ordered to remove himself,
his servants, agents and all his goods, articles and
things from the said property.
(c)
That the Defendant by himself, his servants and
agents or otherwise howsoever be restrained by a
perpetual order and injunction of this honourable Court
from in any manner storing or keeping any goods,
articles or things or using, occupying or entering upon
or remaining in use and occupation of the said
property or any part thereof.
c
D
E
F
G
H
802
SUPREME COURT REPORTS
[2009] 4 S.C.R.
A
(d)
That the Defendant be ordered and decreed to pay
to the Plaintiffs the sum of Rs.45,270/- being the
•
arrears of storage charges and/or compensation for
the period of three years prior to the institution of the
suit at the rate of Rs.1,257 .50 per month with interest
B
on Rs.45,270/- at the rate of 18% per annum from
the date of filing of the suit till the Defendant remove
himself, his servants and agents and his goods,
articles and things from the said property.
(e)
That pending the hearing and final disposal of the
c
suit, the court receiver or some other fit and proper
be appointed Receiver of the said property, with all
powers under Order 40, Rule 1 of the Code of Civil
Procedure.
D
(f)
That pending the hearing and final disposal of the
suit, the Defendant by himself, his servants and
agents or otherwise howsoever, be restrained by an
Order and Injunction of this Hon'ble Court, from in
any manner, storing or keeping any goods, articles
E
or things or using or entering upon or remaining in
use or occupation of the said property or any part
thereof.
(g)
That pending the hearing and final disposal of the
suit, the Defendant, his servants and agents or
F
otherwise howsoever, be restrained by an order and
Injunction of this Hon'ble Court from in any manner
dealing with or disposing of, or alienating or
encumbering or creating any right, title or interest in
favour of any one in respect of the said property or
G
any part thereof."
.,
3. Respondent, in his written statement, denied and
disputed the said transactions. We may notice some of the
statements made therein :
H
"25. The title of the suit property was with my Advocate.
VIMAL CHAND GHEVARCHAND JAIN & ORS. V.
803
RAMAKANT EKNATH JAJOO [S.B. SINHA, J]
After that I have received the title. Plaintiffs have never A
objected to that. I was never the owner nor having
possession after this suit. I have made a wrong
application to put my name as owner. And enclosed
statement in English. Plaintiffs are calling th is
statement in English as Sale Deed. Neither me nor B
my father have executed any Sale Deed. We have
never sold the suit property.
26. Thinking that, I store onions in the suit property the
plaintiffs have created a wrong story of storage
charges and asked for a big amount from me which c
is not acceptable by me. Plaintiffs are doing business
of earning interest illegally for which they use various
names. Various firms are being opened. All these
firms and names are bogus. Few days back plaintiffs
in the plaint. One bogus firm was opened in 1981 by D
the plaintiffs. Some relations have been shown by
that firm with me. That firm has given some cheques
to me. Some entries have been made by that firm for
that cheque given to me. After some neat calculation
it has been shown that the cheque is for storage E
charges has started in the plaints. Plaintiffs have
collected a lot of information on about me. I understand
.;
that plaintiffs are making open plans and skillfully
make some transactions and showing some relation
file suits and get orders.
F
27. The relation of licensor and licensee was never
existing between us and no Deed has been executed.
Plaintiffs have applied for title name in record of rights
after filing the suit and thus various wrongs have been
~·
committed. Plaintiffs have pressurized my servants G
and given them attraction of money and succeeded
obtaining various xerox copies of some papers. After
arranging many things various photos have been
taken. Besides this, plaintiffs are doing various other
business.
H
804
SUPREME COURT REPORTS
[2009] 4 S C.R
A
28.
Plaintiffs have arranged to pay taxes of the suit
property, and paid the taxes of Saikheda on 11 1.88
and 23.1.88 and received the receipt. The cashier
accepting the tax does not have a responsibility of
inquiring that who is paying the tax and 1s been never
B
inquired ..
29. Plaintiffs have been recorded in cross-examination
at the time of making application from title names in
record of rights at Saykheda. At that time plaintiffs
have accepted many many things which are stated
C
here. At that time, false Sale deed was produced
which plaintiffs have stated as registered. Revenue
authorities have ordered to mention plaintiffs names
in the column of 'other rights'. Out of such other rights
plaintiffs does not get any right to the property. Further,
D
order of revenue authorities is illegal, and is out of
the law and out of their rights of making order and
such order is a nullity. Because of such order plaintiffs
does not get any rights and therefore plaintiffs suit is
E
F
G
H
wrong not tenable."
4. Before the learned Trial Judge, the defendantrespondent did not examine himself. He, however, examined
three witnesses in support of his plea with regard to possession.
The learned Trial Judge, inter alia, framed the following
issues:
"1.
Does plaintiff prove that was
In affirmative
registered as Mis Kewalchand
Baniram & sons
2.
Does the plaintiff prove that he
In Negative
purchased the suit property by
registered sale deed dated
29.6.78 as alleged?
3.
Does plaintiff prove that the
In negative"
defendant is licensee and
VIMAL CHAND GHEVARCHAND JAIN & ORS. V.
RAMAKANT EKNATH JAJOO [S.B. SINHA, J.]
that he was paying the storage
charges Rs.1257.50 ps. P.m. to
the plaintiff?
805
5. One of the issues, as noticed hereinbefore, framed is
A
as to whether the plaintiff purchased the property. The learned
Trial Court held that Sections 91 and 92 of the Indian Evidence 8
Act has no application. It was opined that the circumstantial
evidences show that the sale deed was executed only by way
of a money lending transaction. It was held that the appellants
have failed to prove that the suit property was purchased by
them by reason of the aforementioned deed of sale dated C
29.6.1978.
On the said findings, the suit was dismissed.
An appeal was preferred by the appellant thereagainst.
During the pendency of the said appeal, the written statement D
was amended by inserting paragraph 25A therein which reads
as under:
"25A)
Along with the said sale deed of the said dated
29/6/1978 this defendant is saying this also that this sale E
deed is nominal and of the bogus nature that was never
implemented and through it the plaintiff had never got any
type of ownership and he is not getting it and the same
-1
was not in the mind of the father of plaintiff and defendant
and oever he was not keeping this in his mind. The
possession of the property was never given to the F
appellant. In this matter the true fact is such that the firm
of the plaintiff namely M/s. Ghevarchand Bhaniram & Co.
and its partners are doing the business of money lending.
His other firms also doing the money lending business.
The Firm and its partners and their other firm and the G
father of the defendant in between them many transactions/
dealings was taken place and now it is also inexistence.
There was no reason to purchase the property by the said
firm afsiya Kheda and not at all. There is a necessity of the
money amount to the father of the defendant. Therefore, H
806
A
B
c
D
SUPREME COURT REPORTS
[2009] 4 S.C.R.
the father of the defendant had taken the amount of
Rs.50,000/- (Fifty Thousand Rupees) as a loan from the
said firm and its co-sharers. And the mortgage of the said
amount is given in writing the said sale deed at Bombay
by the father of the defendant. There is no intention of the
implementation of that sale deed and never and the same
was not in the mind of both the persons (plaintiff and
defendant) and never it in their minds at all. And according
to it the possession is not given and never possession is
taken. The returning back of the payment of loan is done
in time to time. In this way the said sale deed is mortgaged
as the money lender transaction and through it the plaintiff
or its firm had not obtained any ownership and they did
not obtained its actual possession. Therefore, the contents
written in the said contents written in the said sale deed
are not admitted by the defendant and he is not accepted
it and before it the suit which is brought by the plaintiff
cannot be maintained. Therefore, the suit of the plaintiff
should be cancelled."
Respondent examined himself thereafter. He, inter alia,
E
by way of an affidavit, stated :
F
G
H
"3. Appellant/plaintiffs have filed the present suit on the
sale deed dated 29/6/1978 and plaintiff claim to have
owner by means of the said sale deed and claim that the
respondent are licensee and the suit is filed forobtaining
possession from respondents. I have in my written
statement denied plaintiffs claim of ownership and have
claimed that said sale deed is sham and without effect
and plaintiffs do not get any ownership rights because of
the said sale deed. Said sale deed is without any legal
effect and is sham document in the nature of security for
money lending.
4. In respect to the sale deed dated 29.6.1978 present
respondent states that said sale deed is sham and was
never given effect to and the plaintiff did not and presently
I·
VIMAL CHAND GHEVARCHAND JAIN & ORS. V.
807
RAMAKANT EKNATH JAJOO [S.B. SINHA, J.]
do not acquire any ownership rights by the said sale deed A
and respective fathers of the plaintiff and the respondent
had no such intention. The possession of the property had
never been handed over to the appellant. The fact is that
plaintiff's firm M/s. Ghevarchand Bhaniram and Co. and
its partners carry the business of money lending. There B
other firm also carries the same business of money
lending. There were and there are many money lending
transactions between the said firms and defendant's father.
Said firm had no reason to purchase the property at
Saikheda. As defendant's father was in need of money he C
had borrowed as a loan a sum of Rs.50,000/- from said
firm and its partners and defendant's father had executed
the said so called sale deed dated 29.6.1978 as a security
for the said loan amount. As the plaintiff firm and its
partners have no license for money lending business they
have obtained the said so called sale deed from D
defendant's father at Mumbai. It was never meant to be
given effect to and is not presently meant to be given
effect to and accordingly possession was not transferred
and is not transferred. Plaintiff's loan amount was repaid
from time to time and said sale deed was executed as a E
document for security for the money lending transaction
and the plaintiff or his firm has not & never acquired any
- 1
ownership rights because of the said sale deed and has
not acquired actual possession. Therefore, said so called
sale deed and its contents are not admitted to defendant F
and the suit filed on its basis cannot be maintained
plaintiff's suit be dismissed."
6. In his cross-examination, however, he accepted that his
firm named 'Eknath Gondiram Jadoo' was an income-tax payee
•
from 1954-55. He had also been paying income-tax individually. G
Books of account have been maintained by the firm regularly.
He accepted his signature in the cheque having been issued
as proprietor of his firm. He furthermore admitted that his firm
had business relations with Ghevarchand Bhaniram & Co. He
moreover stated :
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SUPREME COURT REPORTS
(2009] 4 S.C.R.
"I have been shown Sale deed in the plaint. This deed
bears my signature as a witness. I was personally present
at the time of registration of this Sale Deed. At that time
me and my father were residing in Mumbai. My father was
very old. For the sake of convenience, we have registered
the sale deed in Mumbai, since me, my father and Shri
Ghevarchand Seth were staying in Mumbai. We have not
taken any legal opinion before registration. Account of
this transaction was privately kept by me. I do not
remember that at time of registration, Sub-Registrar had
told my father about the Deed of sale of property. It is not
true that possession was given at the time of registration
of Sale Deed. At the time of Sale, my father has a/so
handed over the original title documents of the property,
from whom we have purchased the property; to Shri
Ghevarchand Sheth. My father has not given any notice
that he has not sold the property to Shri Ghevarchand
Sheth's firm. When this transaction occurred, we owe
Rs.50,000/- to Shri Ghevarchand Sheth's Firm. To show
this loan, I have written proof and oral. The proof has not
been produced in the Court for which I have no reason to
say. After this transaction of loan I won't be able to say
whether I have taken any other loans from them. In the
Accounting year 1978-79, my firm owe to Shri
Ghevarchand firm Rs.50,000/- was not shown in our Ale
books. It is a/so true that even in income tax return I have
not shown this loan taken from Ghevarchand firm,
because I was not to repay this money to them even
afterwards. I have shown suit property as my firms property
in Registrar of firm. I cannot answer this question. It is not
true that my father has sold his private property to
Ghevarchand Bhaniram. The possession is given, this
clause in sale deed is not true Rs.50,000/-was red. By my
father as is mentioned in the Sale Deed by my father, I
cannot say anything about it."
(Emphasis supplied)
•
VIMAL CHAND GHEVARCHAND JAIN & ORS. V
809
RAMAKANT EKNATH JAJOO [S.S. SINHA, J.]
7. The First Appellate Court framed an additional issue as A
to whether the deed of sale deed of sale was executed as a
security for the amount of money lending of Rs.50,000/- and
was not intended to be acted upon as a sale deed.
Upon taking into consideration the evidence brought on
record by the parties, the learned Trial Court enumerated the 8
following circumstances to hold against the appellant :
"(i)
For the property of Rs.50,000/- the monthly charges
for its occupation of Rs.1,257.50 appear excessive.
With such amount in 4 years, the entire price of the
property can be realized which is not befitting to the
common course of transaction.
(ii)
There is evidence on record that for the god own, the
society is paying Rs.45/- per month only to the
defendant.
(iii) The plaintiffs are businessmen and were not likely to
allow the rent/licence fee accumulated for 40 morths.
During this period there would have been a demand
in writing.
(iv)
The second cheque of Rs.10,000/- at Exh.93 is
similar type of cheque paid after 15 months of the
earlier. Charges of 15 months were to the extent of
Rs.18,862.50. How such part payment after 15
months is accepted even though the earlier cheque
was dishonoured and no steps for the recovery are
taken is not explained by the plaintiffs. In fact, when
the monthly charges ere agreed, the payments would
have been made regularly by the defendant and if
not so, would have been insisted by the plaintiffs.
The dealing between the parties, however, are not
accordingly."
8. The High Court also enumerated the circumstances in
favour of the appellants.
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SUPREME COURT REPORTS
[2009] 4 S.C.R.
In regard to the question that the defendant-respondent
never took the plea of transaction being that of a loan, the
Appellate Court held that the said defect was cured by reason
of the alternative stand taken by the respondent, holding:
"It is no doubt true that the alternative defence is raised at
a very late stage. There is no substance in the submission
of the coun~el for the appellants that the intention behind
executing a document is the state of mind of that person
and he must disclose about it, at the earliest opportunity.
That if he discloses later on, it can be considered as an
afterthought
But then in the present case the strong circumstantial
evidence discussed above, when makes out a reasonable
probability of the execution of the sale deed with otherwise
intention, omission on the part of the defendant to state it
specifically will not affect him much. Moreover, we cannot
forget that in our system the pleadings are drafted by the
advocates on the basis of the information given by their
clients. Pleadings are prepared by the Advocates as per
their knowledge and experience and if any wrong is
committed by the Advocate in making out the deference
or if any material thing is omitted, the same is glaringly
coming before us emerging out before us from the
circumstance then we need not attach much importance
to the defects in the pleadings and omission. The settled
position of law, therefore, says that moffusil pleadings are
to be liberally construed."
9. The First Appellate Court, however, did not believe that
part of the case of the appellant that the amount of loan had
been repaid.
It was in the aforementioned situation directed :
"1.
The appeal is partly allowed with costs.
2.
Judgment and decree of the Trial Court is hereby set
aside and the suit is partly decreed as under :
•
;.
VIMAL CHAND GHEVARCHAND JAIN & ORS. V.
811
RAMAKANT EKNATH JAJOO [S.B. SINHA, J.]
The plaintiff's suit for mandatory injunction as well as A
prohibitory injunction and for the storage charges at the
monthly rate of Rs.1,257.50 stands dismissed.
The plaintiff are, however, entitled to the amount of
Rs.50,000/- with interest thereon @ 6% per annum from
29.6.1973 till its realization.
B
The plaintiffs are entitled to the costs of the suit.
The defendant do deposit the said amount or pay the
same to the plaintiffs immediately failing with the plaintiff
can recover it through the court."
C
10. The High Court dismissed the Second Appeal
preferred thereagainst, inter alia, opining :
"It is true that initially such defence was not raised in the
written statement, however, in the first appec;il the D
amendment of the pleadings was sought and it was
allowed by the court and by way of the amendment the
respondent-defendanfraised such contentions. The order
of allowing the amendment was not challenged by the
appellant in further proceedings. In view thereof the E
submissions of Mr. Sugadre, learned counsel for the
appellant that in the absence of substantive pleadings the
courts below have committed error in entertaining the plea
that the sale deed was not intended to be acted upon and
it was a money transaction must be rejected.
F
The submission of Mr. Sugdare based on the judgment of
the Supreme Court in Roop Kumar (supra) also deserves
to be rejected outright. It is true that under Section 91 of
the Evidence Act, oral evidence against the terms of
contract is not permissible, but to this provision exception G
is made out by Section 92 which allows such oral evidence
as per the third proviso thereto. It is well settled, that a
plea that title has not passed on the execution of the sale
deed can be raised to rebut the contents. of the document
and intention of the parties behind executing the document H
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SUPREME COURT REPORTS
[2009] 4 S.C.R.
can be gathered from the recitals in the document or by
other attending circumstances. It is thus clear that from the
circumstantial evidence if it is inconsistent with the recitals
of the document, it is open for the court to infer that the
contents of the document are rebutted. This is what exactly
the courts below have done. Taking overall facts and
circumstances of the case into consideration, in my opinion,
the courts below have rightly held that the document was
not intended to be acted upon and it was executed by way
of security. I find no reason to interfere with the findings of
fact. I find sufficient material on record to sustain those
findings. In the circumstances the appeal deserves to be
rejected. Order accordingly."
11. Mr. Shyam Diwan, learned senior counsel appearing
on behalf of the appellant would urge :
(i)
The courts below committed a serious error insofar
,
as they failed to adhere to the best evidence rule as
contained in Sections 91 and 92 of the Indian
Evidence Act.
E
(ii)
First Appellate Court as also the High Court
furthermore committed a serious error insofar as they
failed to take into consideration that subsequent plea
raised by the respondent by way of amended written
statement and his evidence could not have been
F
relied upon; particularly when he has utterly failed to
prove either taking of loan or repayment thereof.
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12. Mr. Jaideep Gupta, learned senior advocate appearing
on behalf of the respondent, on the other hand, contended
i)
Three courts having arrived at concurrent findings of
fact, this Court should not interfere therewith.
ii)
The purported deed of sale spells out the real
transaction between the parties as would be evident
from the following :
•
VIMAL CHAND GHEVARCHAND JAIN & ORS. V.
813
RAMAKANT EKNATH JAJOO [S.B. SINHA, J.]
"
"It is a condition of this sale that in case the Purchasers A
shall be deprived of possession of the said property (said
premises) or any part thereof by virtue of any act of Vendor
or his heirs or assigns or successors in interest or by any
person claiming title thereto vendor and his estate shall
be bound to compensate the Purchasers for such loss or 8
damage arising from such act and shall be liable to refund
the purchase money with interest or by any person claiming
title thereto the Vendor and his estate shall be bound to
compensate the Purchasers for such loss or damage
arising from such act and shall be liable to refund the c
purchase money with interest from the date of the
deprivation or accrual of such loss."
(iii) Nature of transaction being a money lending one as
would appear from the purported deed of sale itself
and the plaintiff-appellant having failed to prove its D
case of creation of a leave and licence, the judgment
of the Trial Judge is unassailable in view of the
extrinsic evidence that the transaction was a sham
one and, thus, could not be eschewed and for the
said purpose Section 92 of the Indian Evidence Act E
does not debar adduction of additional evidence.
(iv)
Although the burden of proof was on the respondent,
he must be held to have discharged the same fully.
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13. The deed of sale dated 29.6.1978 was a registered F
one. It, therefore, carries a presumption that the transaction was
a genuine one. Respondent was the son of the vendor. He was
an attesting witness. In his written statement, he categorically
denied execution of the said deed of sale. He also denied that
he had attested the document. He even did not examine himself G
before the learned Trial Judge. His witnesses merely proved
his possession. The fact that the respondent's father was put in
possession with effect from 1.7.1978 was in dispute. What was
in dispute was the character of his possession. Did he continue
to possess the godown as owner thereof or on the basis of leave H
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814
SUPREME COURT REPORTS
[2009] 4 S.C.R.
and licence was the question, which was not considered in its
proper perspective by any of the three courts below.
14. The learned Trial Judge without any pleading in that
behalf proceeded to determine the nature of transaction and
opined that in effect and substance, the transaction was a money
lending one.
No such issue was framed as no such contention was
raised in the written statement. Respondent realized his mistake.
He, therefore, amended his written statement and examined
c himself as a witness.
15. It is true that the written statement was permitted to be
amended. Additional evidence pursuant thereto was also
permitted to be adduced. The First Appellate Court, however,
had a duty to properly appreciate the evidence in the light of the
D
pleadings of the parties. While doing so, it was required to pose
unto itself the correct questions. The deed of sale being a
registered one and apparently containing stipulations of transfer
of right, title and interest by the vendor in favour of the vendee,
the onus of proof was upon the defendant to show that the said
E
deed was, in fact, not executed or otherwise does not reflect
the true nature of transaction. Evidently, with a view to avoid
confrontation in regard to his signature as an attesting witness
as also that of his father as vendor in the said sale deed, he did
not examine himself. An adverse inference, thus, should have
F
been drawn against him by the learned Trial Court. {[See
Kamakshi Builders v. Ambedkar Educational Society & Ors.
[AIR 2007 SC 2191]}.
16. The First Appellate Court, however, having regard to
the amendment carried out in the written statement setting up a
G
totally inconsistent plea from the one taken before the learned
Trial Court by the respondent posed a question as to whether
the respondent has discharged the burden placed on him.
H
For the said purpose, critical analysis of the prevarication
of the stand taken by the respondent from stage to stage also
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•
VIMAL CHAND GHEVARCHAND JAIN & ORS. V.
815
RAMAKANT EKNATH JAJOO [S.B. SINHA, J]
became relevant. It is true that when a pleading is amended, it, A
subject to just exceptions. takes effect from the date when
original one is filed. It is also true that the Appellate Court, in
exercise of its discretionary jurisdiction and subject to fulfillment
of the conditions laid down under Order XU Rule 27 of the Code
of Civil Procedure, may allow the parties to adduce additional B
·evidence.
Pleadings of the parties, it is trite, are required to be read
as a whole. Defendants, although are entitled to raise alternative
and inconsistent plea but should not be permitted to raise pleas · .
which are mutually destructive of each other. It is also a cardinal C
principle of appreciation· of evidence that the court in
considering as to whether the deposition of a witness and/or a
party is truthful or not may consider his conduct. Equally well
settled is the principle of law that an admission made by a party
in his pleadings is admissible against him proprio vigore. [(See D
Ranganayakamma & Anr. v. K.S. Prakash (DJ By Lrs. & Ors.
[2008 (9) SCALE 144]
17.