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Civil Appeal No. 11 of 1983, decided on 26th May, 1986.
(On appeal from the judgment and order, dated 29‑1‑1983 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in R. F. A. No. 1/1982).
‑‑‑ S. 92‑Document‑Intention of parties‑Oral evidence as to intention of parties to document is inadmissible and express term of document cannot be contradicted by any oral evidence of intention of parties where both parties rely on document in which case there is prohibition to admit oral evidence qua intention of parties to document.
Principles and Digest of the Law of Evidence by M.Monir p. 887 ; Balkishen Das v. Legge 22 A 149 (P C) and K. S. Mian Feroz Shah v. Sohbat Khan, etc. 1933 P C 178 ref.
-----S. 92‑Document‑Intention of parties‑‑Oral evidence‑Admis sibility.
By reason of section 92 of the Evidence Act, 1872 no oral evidence of intention was admissible for the purpose of construing the deeds or ascertaining the intention of the parties, and the case had to be decided on a consideration of the contents of the documents themselves with such extrinsic evidence of surrounding circumstances as may be required to show in what manner the language of the document is related to existing facts.
Balkishen Das and others v. W. F. Legge I L R 22 All. 149 ref:
-----S. 92‑Document‑Oral evidence‑Where validity of sale‑deed is in question either because of misrepresentation, fraud, mistake, or failure of consideration, oral evidence cannot alter term of document but can prove its invalidity only.
Balkishen Dos arid others v. W. F. Legge I L R 22 All. 149 ref.
‑‑‑ S. 92‑Document‑Validity‑Rule of evidence does not fetter powers of Court to unveil real transaction where validity of docu ment itself is challenged and to ascertain real nature of transaction.
If the transaction itself is invalid then parol evidence can be led to establish its real nature which will not be hit by section 92 of the Evidence Act, but covered by the first proviso which is an exception to the rule.
Even if there were no provisos to section 92, Evidence Act, 1872 still evidence could be led to prove the invalidity of the document. Such being the case, proviso (1) to section 92 of the Evidence Act, opens the door for the Court to inquire into the real nature of the transaction between the parties.
The rule of evidence does not fetter the powers of the Court to unveil the real transaction where the validity of the document itself is challenged and to ascertain the real nature of the transaction.
Laxmibai and another v. Keshav Annaji Pokharkar and another A I R 1916 Bom. 239 ; Tyagaraja Mudaliyar and another v. Vedathanni A I R 1936 P C 70 ; 16 I A 233 ; 38 Mad. 226; Baijnath Singh v. Hajee Vally Mohammad Hajee Abba A I R 1925 P C 75 ; Nasir Ahmad Khan v. Asmat Jehan Begum P L D 1967 Pesh. 328 ; Muhammad Azim Khan and others v. Raja Saiyid Muhammad,.Saadat All Khan and others A I R 1931 Oudh. 177 ; Ram, andan Prasad v. Chandradip Narain A I R 1940 Pat. 504 ; Smt Gangabai v. Sint. Chhabubai A I R 1982 S C 20 ; Mst. Sultan Begurn v. Saraj‑ud‑Din A I R 1936 Lab. 183 ; Pym v. Campbell 6 E & B 370 ; Baijnath Singth v. Hajer. Vally Mohammad 1925 P C 75 ; Muhammad Azim v. Muhammad Saadat Ali A I R 1931 Oudh 177 and Gopi Nath v. Rup Ram A I R 1930 All. 786 ref.
---S. 92‑Transfer of Property Act (IV of 1882). S. 54‑Registration Act (XVI of 1908), S. 60‑Sale‑deed‑Admission as to receipt of sale consideration before Registrar, not conclusive.
Admission as to the receipt of the sale consideration before the Registrar is not conclusive.
Parol evidence could be led to contradict the recital in the deed acknowledging the receipt of consideration to show that it was, in fact, not paid and section 92 of Evidence Act, 1872 was not a bar to the admis sibility of this evidence.
Where the vendor alleges and' proves that the consideration, the receipt of which was acknowledged in the sale‑deed did not, in fact, pass the case falls within the first proviso to section 92 of the Evidence Act and the vendor is at liberty to prove either that the full amount was not paid or only a part of it was paid.
A false acknowledgement of receipt of the price by a recital in a deed does not estop the seller from giving evidence as against the buyer that he has not received payment.
Notwithstanding an admission in a sale‑deed that the consideration has been received, it is open to the vendor to prove that no consideration has been actually paid.
A presumption of correctness attaches to the certificate endorsed on the sale‑deed by the Registration Officer only for the purpose of proving that the document has been duly registered. But as regards the receipt of consideration by the vendor, only a presumption arises out of the admission made by the vendor which could be contradicted by independent evidence as that relates to want of consideration and exercise of undue influence.
The endorsement of the Registrar as to the receipt of the consideration is rebuttable, and it is always open to the vendor to refute it on the ground that the amount shown therein was fictitious.
A formal recital as to the price having been received is a very weak piece of evidence between the parties to the deed. This is so because there is only a presumption attached to it which can be refuted.
Mere registration of the sale‑deed does not operate to pass the title to the vendee or to pass any interest in the property purported to have been sold to him where there was no proof of the transfer of possession of the property, nor of the delivery of the sale‑deed nor of the payment of consideration. In such a case the provision of section 54 of the Transfer of Property Act, 1882 is of no avail.
Motilal Sahu v. Ugrah Narain Sahu and others A I R 1950 Pat. 288 ; Muhammad Murtaza Hussain v. Abdul Rehman A I R 1949 Pat. 364 ; Chuni Bibi v. Basanti Bibi 24 I C 661 ; Mulla's Transfer of Property Act, p. 454 ; Shah Lal Chand v. Indarjit (1900) 22 All. 370 ; Qazi Altaf Hussain v. Ishfaq Hussain N L 81981 S C J 451 and Wahid Bakhsh v. Muhammad Shafi P L D 1976 Lah. 1069 ref.
----S. 54‑Price of share sold not ascertained‑Provision of S. 54, Transfer of Property Act, 1882, held, would have no application as one of conditions of sale was not fulfilled.
---S. 54‑Sale‑Consideration stipulated in deed not price and even if it could be assessed in money value it was vague and uncertain Transaction, held, could not be rated as sale nor its registration would have legal consequence of conveying an interest in property Question as to whether sale price was uncertain would hardly arise to bring case out of ambit of S. 54.
Dip Narain Singh v. Nageshar Prasad A I R 1930 All. 1 ; Prem Singh v. District Board Rawalpindi A 1 R 1934 Lah. 917 ; Allah Ditta v. Nazar Din 1916 P R 53 ; A I R 1934 Lah. 917 ; State of Kerala v. The Cochin Chemical Refineries Ltd. A I R 1968 S C 1361 ; Tatia v. Bubaji I L R 22 Bom. 176 ; Rashik Lal v. Ram Narain I L R 34 All. 273 and Madhavrao Moreshvar Pant Amatva v. Kashibai I L R 34 Bom: 287 ref.
‑‑ S. 92, provisos‑Document ‑ Oral evidence‑Admissibility‑‑Principle that when document is reduced into writing no parol evidence can be led to establish its terms referring to any earlier agreement, held, would have no relevance to evidence led to bring case within provisos to S. 92, Evidence Act, 1872.
Muhammad Akbar Khan v. Sultan Ghani 1970 S C M R 696 ; Principles and Digest of the law of Evidence by M. Monir p. 861 ; Diwan Singh v. Gurbachan Singh and others A I R 1932 Lah. 276 distinguished.
Punjab National Bank v. S. B. Chaudhry A I R 1943 Oudh 392 ; Nazir Khan and another v. Ram Mohan Lai and another A I R 1931 All. 183 ; Kuppuswami v. Chinnasxvami A I R 1928 Mad. 546 and Dinkerrai Lalit Kumar and others v. Sukhdayal Rambilas and others A I R 1947 Bom. 293 ref.
‑‑--S. 92‑Sale‑deed‑Oral evidence‑Admissibility‑No legal bar to admissibility of parol evidence to unveil real. transaction which led to the bringing into existence of sale‑deed.
A. R. Shaikh, Senior Advocate and Muhammad Aslam Chaudhry Advocate‑on‑Record for Appellants.
S. M. Zafar, Senior Advocate Supreme Court of Pakistan and M. A. Siddiqi, Advocate‑on‑Record for Respondent.
Dates of hearing : 30th November and 1st December, 1985.
This is a direct appeal under Article 185(2) of the Constitution of the Islamic Republic of Pakistan, 1973, and is directed against the judgment, dated 29‑1‑1982 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, in R. F. A. No. 1 of 1982, by which it was accepted and the suit of the appellants was dismissed with costs throughout.
These are the facts:
The respondent is owner of property bearing No. A/93 situate at City Saddar Road, Rawalpindi. It comprises five shops and a vacant site. By a sale‑deed executed on 19‑7‑1968, the respondent transferred 4/5th share in the property to the appellants who are related inter se in equal shares for a sale consideration of Rs. 60,000 and retained 1 /5th share for himself in the property. There is also a recital in the sale‑deed of the receipt of sale consideration. This sale‑deed was presented for registration on the next day and the respondent appeared in person and admitted its execution and receipt of Rs. 60,000 as its sale consideration. 1t was duly attested by two witnesses. The Registrar of documents recorded his state ment on the sale‑deed. About a month and fourteen days thereafter the parties entered into a deed of partnership on 1‑9‑1968 and agreed to jointly carry on hotel business as partners in the name and style of 'Hotel Jav‑e‑Dan". Paras. 4 and 9 of this deed are relevant and are reproduced as under:
"Para. 4:
That the capital of the firm shall be contributed by the partners as under:
Partners Nos. 1, 2 and 4 ... Rs. 40,000 each
3 ... Rs. 50,000
5 ... Rs. 20,000
6. Rs. 60,000
which amount may be invested gradually according to the needs and requirements of the business of construction of the building.
Further provided that any more capital required may be invested in the above ratio proportion or by any one of the partners mutually agreed or the amount may be borrowed from a third party or from any Bank or Government's organization who may give loan for this purpose, by the mutual consent or all the partners and the interest payable on any such loan shall be deemed to be the business expense and the loan will have priority for repayment.
Para. 9
That the construction of the hotel will be stated after the building plan is approved by the Improvement Trust, Rawalpindi, the building plan, at present, is under preparation, and will be submitted to the Improvement Trust, Rawalpindi for approval, as when it is prepared and as and when the hotel building is completed and is fully equipped the business shall start and the first accounts shall be closed after one year from that day : provided that minor changes may be made on this account by the mutual consent of all the partners, thereafter the accounts shall be closed every year to determine the profit and loss, which shall be divided and apportioned as under:
Partners Nos. 1, 2, 4
and 5 ... 15 percent. each
3 and 6 ... 20 percent. each."
It was further provided in this document that the firm shall come into existence on the 1st of September, 1968, i. e., on the date of the execution of this document.,
It appears that some dispute arose over the contribution of the capital r raising the hotel between the parties and the appellants thereupon filed suit in the Court of the Administrative Civil Judge, Rawalpindi, on 21st of July, 1972, for possession by partition of 4/5th share in the property, for rendition of account of rents, earnings and income of the said property realised by the respondent and for awarding the amount found due.
The reliefs in the suit turned on the averments in the plaint that the appellants wanted to have their separate shares for the better enjoyment of the property as regards its mesne profits qua their shares as till then the possession was joint under the sale‑deed, dated 19th of July, 1968. The respondent resisted the suit on the ground that the appellants were not in possession of the property nor did they pay the sale consideration, and for that matter they had by practising fraud and misrepresentation on him succeeded in getting the sale‑deed executed which was a "nullity in the eye at law".
The further facts alleged by the respondent were that the appel lants approached him and gave out a proposal to build a huge hotel his property on the terms that the entire construction would be carried r by them at their own cost which was estimated at Rs. 20,00,000. whereafter they again approached the respondent and represented that as entire amount on the construction would be spent by them, therefore, should transfer 4/5th share in the property to them. And as for the consideration for the property it would be paid to him "in the shape of amount" which should be spent by them on construction of the hotel and that after the hotel was constructed, they would be the owners in the property to the extent of 1/5th share each, i. e., one share each of the respondent and the appellants The respondent acted on their re‑presenta tion and executed the sale‑deed transferring 4/5th share to the appellants against a sale consideration of Rs. 60,000 for the purpose of giving to it a legal colour, although this amount was neither paid before the Registrar nor at any time earlier As a security for the due performance of their undertaking the appellants had also handed over the original sale‑deed to the respondent who continued to remain in possession of the property and realised rents from the tenants. In the meantime they also submitted plane for the proposed construction of the hotel to the Improvement Trust. On these averments, the respondent resisted the sale, partition of the property and rendition of accounts as the appellants had failed to perform their part of the transaction.
In the replication filed by the appellants, they denied having practised fraud or misrepresentation on the respondent and 'claimed that the respon dent being the co‑sharer held the property for himself and on behalf of all the co‑sharers namely, the appellants who were the vendees under the sale‑deed. Further, while admitting that the hotel building was proposed to be constructed, they contended that the respondent had to contribute his share in the construction of the building just as other co‑sharers had to do. The appellants also relied on the deed of partnership and stated that the respondent had also signed the building plan which was submitted to the Rawalpindi Improvement Trust for approval, but later resiled from his earlier commitment to do joint business and refused to abide by the terms agreed upon. As to the non‑payment of the sale consideration, the appellants re‑affirmed that the sum of Rs 60,000 was duly paid to hits, and that as the sale was unconditional the respondent had obtained a clearance certificate from the Income‑tax Department and also paid Capital Gains Tax. Lastly, the appellants admitted that the respondent had been collecting rents from the tenants of the shops.
On the pleadings of the parties, the trial Court framed the following issues:
(1) Whether the suit has been correctly valued for the purposes of court‑fee and jurisdiction O. P. P.
(2) It issue No 1 is not proved in the affirmative, what is the correct valuation O. P. P.
(3) Whether the suit property has been properly described O. P: P.
(4) Whether the plaintiffs own 4/5th share in the suit property O. P. P.
(5) Whether the sale‑deed, dated 19‑7‑1968 and registered on 20‑7‑1968 is without consideration and a result of fraud and misrepresentation and a nullity in the eye of law O. P. D.
On issues 4 and 5 which involve the main controversy, the Trial Court after reviewing the evidence held that the sale‑deed was not a nullity in the eye of law as no fraud or misrepresentation was practised on the respondent nor that it was without consideration. Necessarily, therefore under the sale‑deed, dated 20th of July, 1968, the appellants became the owners of 4/5th share in the property. The findings on other issues are not of any particular value at this stage of the litigation. As a result therefor, the suit was decreed by the Trial Court in favour of the appellants on 6th of January 1982.
The respondent thereupon went in fast appeal to the High Court and succeeded as the decision of the trial Court on these issues was reversed.
In the context of the arguments raised, the High Court examined, in detail the evidence on record, and reached the conclusion firstly, that the sale-deed was not an independent transaction, but was linked with the partnership deed secondly, that thus was no evidence to show that the sale consideration of Re. 60,000 was paid to the respondent as acknow ledged by him in the sale‑deed thirdly, that after the execution of the sale‑deed he continued to remain in possession of the property and as his name still figured as the exclusive owner of the property, he continued to pay the taxes till the suit was filed and enjoyed its refits and profits ; fourthly that the consideration for the sale of the disputed property was his 1/5th shoe in the hotel building which was to tae constructed and as none was constructed, the consideration for the transfer of the 4/5th share in the property failed; and, lastly, that the respondent was duped to execute the sale-deed as a result of the misrepresentation and fraud practised on him.
Mr. A. R. Sheikh, learned counsel for the appellants contended Andy, that the sale‑deed was an independent transaction and no oral evil can be led to contradict its terms by reason of the embargo placed by section 92 of the Evidence Act; and, secondly, that payment of sale consideration is not a sine qua non of the sale transaction and for this reason the sale‑deed does not become invalid as it can be paid or promised or part paid a part promised. For this be relied on the definition of the word "sale" in section 54 of the Transfer of Property Act, and further contended that the remedy in such an event for the vendor is to sue for the recovery of the sale consideration if not paid.
Mr. S. M. Zafar, learned counsel for the respondent, in reply, contended that parol evidence is admissible to show the invalidity of the document either by reason of fraud or misrepresentation or failure of consideration, and such other grounds as are mentioned in the provisos to section 92 of the Evidence Act. He asserted that in such a case the extrinsic evidence is not led to contradict, vary, add to, or subtract from its terms but to prove that the document itself was invalid. He next contended that as the sale‑deed was fictitious, therefore, there was no conveyance of any interest in the disputed property. Consequently, section 54 of the Transfer of Property Act had no application.
Before I advert to the factual aspect of the case it would be proper to resolve the legal controversy. In support of his first contention as to die inadmissibility of the oral evidence Mr. A. R. Sheikh, relied on a passage in the Principles and Digest of the Law of Evidence by M. Monir it page 887 which runs as under:
"The Privy Council has distinctly ruled that in construing a document oral evidence of the intention of the parties to the document is inadmissible and that the express terms of a document cannot be contradicted by any oral evidence of the intention of the parties."
(Bulkishen Das v. Legge 22 A 149 (P C) and K. S. Mian Feroz Shah v. Sohbat Khan etc. A I R 1933 P C 178).
"The general rule," says Chief Justice Tindal in Shore v. Wilson I take to be that where words of any written instrument are free from ambiguity in themselves and where external circumstances do not create any doubt or difficulty as to the proper application of those words to claimants under the instrument or the subject‑matter to which the instrument relates, such instrument is always to be construed according to the strict plain common meaning of the words themselves, and that in such case evidence dehors the instrument for the purpose of explaining it according to the surmised or alleged intention of the parties to the instrument is utterly inadmissible. If it were otherwise, no lawyer would be safe in advising upon the construction of a written instrument nor any party in taking under it, for the ablest. advice would be controlled and t e clearest title undermined if, at some future period, parol evidence of the particular meaning which the party affixed to his words, or of his secret intention in making the instrument, or of the objects he meant to take benefit under it, might be set up to contradict or vary the plain language of the instrument itself.
It may here be said that the principle cited is applicable only where both the parties rely on the document in which case there is prohibition to admit oral evidence qua the intention of the parties to the document.
The learned counsel next relied on Balkishen Das and others v. W. F. Legge (ILR 22 All. 149), a case decided by the Privy Council in which the facts were that alongwith the sale‑deed there was an agreement between the parties to enable the vendor to purchase back, the property on payment of considera tion to the vendee on a fixed future date. There was transfer of possession of the property to the vendees who appropriated the profits. The vendor did not exercise his right of repurchase and after many years gave notice of his intention to redeem the property and brought a suit against the vendee to enforce his right of redemption as upon a mortgage by conditional sale. The dispute between the parties on these facts was whether the two deeds together constituted a mortgage of the land or an out and out sale with a contract of repurchase. The evidence of the respondent and of another person was admitted by the Trial Court for the purpose of proving the real intention of the parties and such evidence was relied on to some extent by the Courts below. In regard to the admissibility of this evidence their Lordships held that by reason of section 92 of the Evidence Act, no oral evidence of intention was admissible for the purpose of constrain the deeds or ascertaining the intention of the parties, and the case had to be decided on a consideration of the contents of the documents themselves with such extrinsic evidence of surrounding circumstances as may be required to show in what manner the language of the document is related to existing facts.
There cannot be any cavil with this principle. But in Ralkishen Das and others (supra), the Privy Council while construing section 92 of the Evidence Act nevertheless said that this was subject to the provisos. In effect, therefore, where the case is one where the validity of the sale-deed itself is in question either because of misrepresentation, fraud, mistake, or failure of consideration, the evidence led is not intended to alter the terms of the documents but to prove its invalidity.
Mr. S. M. War, learned counsel for the respondent, relied on a plethora of case‑law to support his contention. He first cited Laxmibai and another v. Keshav Annaji Pokharkar and another (A I R 1916 Bom. 239). In this case the plaintiffs sued B and C for specific performance of the contract, executed by B alone while C was described as a broker. Parol evidence was led to establish that the real parties were the plaintiffs and C and that B was only a Benamidar. The question arose as to whether such evidence could be admissible under section 92 of the Evidence Act. In this connection the following observations were made in regard to the applicability of the section, at page 246:
"Now it is perfectly obvious that under section 92, Evidence Act, it would not be open to parties to such a contract to give parol evidence of the true nature of the transaction underlying it; nor would this difficulty be surmounted or in any way touched by calling the transaction a Benami transaction.
But it is also clear, as soon as the contents of the whole transaction are examined, that it is a case in which parol evidence might be given under section 92 to serve a different purpose. For where the owner of property purports to transfer for consideration, his real purpose being to conceal or protect his property. it necessarily follows that the nominal purchaser has paid no consideration, and a party may always show that the transaction is bad for failure of consideration."
Here what is laid down is that if the transaction itself is invalid the parol evidence can be led to establish its real nature which will not be hit by section 92 of the Evidence Act, but covered by the first proviso which is an exception to the rule. So far as the Benami transaction was concern ed, the sear tied Judge was in grave doubt to what extent parol evidence would be admissible to a establish the real pares to the agreement.
He next relied heavily on Tyagaraja Mudaliyar and another v. Vedathanni (A I R 1936 P C 70). In this case a document was executed on 28th of December, 1912, affirming undivided status of the family and purporting to make provision for the widow's maintenance, but it was not given effect to as it was distinctly understood not to be the final contract for the plaintiff's maintenance, but solely intended as a voucher establishing the joint undivided nature of the family. It, however, being agreed that the widow's claim for the maintenance on a scale commensurate with the position and status of the family was to be left over for future settlement at leisure. But this was not done as her brother‑in‑law failed to make due provision for her maintenance which he had repeatedly promised to do so and died. It also appears that on the demise of her husband a settlement deed was drawn three days thereafter by her brother‑in‑law whet under she was to have the jewels in her possession with full powers of alienation; and as soon as she decided to live apart from him, she was to enjoy for her life the income of the lands and to live in the house men tioned in the settlement deed. In consideration of this provision she relinquished her claim for maintenance. She was unwilling to sign this document, but on the representation made that this was not to be acted upon and only intended to provide evidence of the undivided status of the family that she consented to sign it.
The widow filed a suit for the recovery of arrears of maintenance. The Courts below upon a consideration of the material held in regard to this document that there was no agreement, and, therefore, no contract. The question which arose for consideration before the Board was whether oral evidence was admissible under the provisions of sections 91 and 92 of the Evidence Act to establish that it had been agreed that the provisions for the widow's maintenance were not to be acted on, as the document was only intended to create evidence for the undivided status of the family. In deciding the question, their Lordships also referred to their own judgment published in 16 I A 233 and said:
"Clearly under that section a defendant sued, as in the present case, upon a written contract purporting to be signed by him could not be precluded in disproof of such agreement from giving oral evidence that his signature was a forgery. In their Lordships opinion oral evidence in disproof of the agreement (1), that as in 6E & B 370(2) the signed document was not to operate as an cement until a specified condition was fulfilled, or (2) that as in the present case, the document was never intended to operate as an agreement but was brought into existence solely for the purpose of creating evidence of some other matter stands exactly on the same footing as evidence that the defendant's signature was forged."
Again while commenting on the case reported in 38 Mad. 226, their Lordships expressed:
"In 38 Mad. 226(3) Benson and Sundara Ayyar, JJ., have expressed the opinion that oral evidence to show that a document was never intended to operate according to its terms, but was brought into existence, as in the present case, solely for the purpose of creating evidence about some other matter, is admissible under proviso 1 to section 92, any fact may be proved which would invalidate any document'. This may well be so, but in their Lordships' opinion, even if there were no provisos to either section, the result in the present case would be the same, because there is nothing in either section to exclude oral evidence that there was no agreement between the parties and, therefore, no contract."
And finally, their Lordships held that the document was not the real agreement between the parties and the widow could not sue upon it. This judgment goes further in laying down that even if there were no" provisos still evidence could be led to prove the invalidity of the‑docu ment. Such being the case, proviso (1) to section 92 of the Evidence Act, opens the door for the Court to inquire into the real nature of the transaction between the parties. This principle is again declared in Baijnath Singh v. Hajee Vally Mahomed Hajee Abba (A I R 1925 P C 75), in the following words:‑‑
"The preamble to the Evidence Act, recites that 'it is expedient to consolidate, define and amend the Law of Evidence,' and section 92 merely prescribes a rule of evidence; it does not fetter the Court's power to arrive at the true meaning and effect of a transaction in the light of all the surrounding circumstances."
In Nasir Airman Khan v. Asmat Jehan Begum (P L D 1967 Pesh.328). it was held that where the document itself is to be adjudged as fictitious and having been executed with no intention to enforce it, parol evidence was admissible tinder sections 91 and 92 of the evidence Act. In Muhammad Azim Khan and others v. Raja Saiyid Muhammad Saadat Ali khan and others (A I R 1931 Oudh 177), the donor admitted that he had executed the gift but alleged that he had no intention of gifting away his property, that is, he had no animus contra hendi when he executed the document, it was held:
"And evidence to prove such a defence is admissible and does not violate the previsions of section 92, Evidence Act. Pym v. Campbell 25 L J Q B 277 has been reported to 119 E R 908. In Halsbury's Laws of England, Vol. 13, p. 567, para. 775, are collected a large number of instances where the rule as to the exclusion of extrinsic evidence does not apply, and one of these is that where the docu ment was neither intended by the parties to be an agreement at all, evidence to show the true nature of the transaction was held admissible."
The case of Baijnath Singh v. Mohammad Abba (supra) was also noted and the dictum laid down therein was taken in support of the conclusion.
In Ramnandan Prasad v. Chandradip Narain (A I R 1940 Pat. 504), the question arose for consideration whether evidence is admissible to show that the property ostensibly mortgaged was not, in fact, intended to be mortgaged, and it was held that there was nothing in section 92 to render such evidence inadmissible as it was not a case where it purported to vary the terms of a written document as between the parties, and that such evidence which tends to render the document invalid is admissible under the first proviso to section 92 of the Evidence Act.
In Smt. Gangabai v. Smt. Chhabubai (A I R 1982 S C 20), it was held that where the document is not relied upon and alleged to be ‑fictitious on the ground of existence of a different transaction, oral evidence could be led to establish the plea and in such a case the bar imposed by section 92(1) will not apply as that only covers the case where the parties seek to rely on the document embodying the terms of the transaction.
In Mst. Sultan Begtrm v. Saraj-ud-Din (A I R 1936 Lah. 183), the facts were that in the deed of marriage the dower was fixed at Rs.1 lacs, but the defendant, a brother of the deceased, in repudiation to the claim of the widow led evidence to prove that it was never intended to be paid or received in full, and that she was only entitled to the customary dower, that is, Rs. 10,000. The trial Court altered one of its terms although the docu ment was accepted as a repository of the contract of marriage and a written record of the amount of dower fixed by the parties. Agha Haider, J., while considering the admissibility of this evidence held that the trial Court could not subtract anything from this term of the contract as it was hit by section 92 of the Evidence Act. However, Tek Chand, J., differed from him and held that the evidence led was not for any of the purposes laid down in section 92 but it was an attempt of the defendant to prove that there was no real agreement relating to the fixation of the dower, at all, and that whatever was mentioned therein was a "mere sham" to the knowledge of both the parties and that understanding was that no effect was to be given to it. Accordingly. he held that the evidence was admissible. In holding so he relied on the case of Pym v. Campbell (6 E & B 370) Baijnath Singh v. Hajee Vally Mohammad (A I R 1925 P C 75) and Muhammad Azim v. Muhammad Saadat Ali (A I R 1931 Oudh 177). This view was later upheld in A I R 1936 PC70.
In Gopi Nath v. Rap Ram (A I R 1930 All. 786), Sulaiman, J., while construing section 92 of the Evidence Act held at page 791:
"It cannot be doubted that an allegation that one item of the properties covered by an instrument was not intended to be sold amounts to a variation in the terms of that document, and would prima facie come within the scope of the substantive portion of section 92, but there is a proviso to that section which states that any fact may be proved which would invalidate and document such as fraud ...... illegality, etc. Thus, the very section provides an exception in a case where a fact sought to be proved though varying the terms of the instrument, would invalidate the document itself. By way of illustration cases of fraud and illegality are specially mentioned. It seems to us that the section contemplates that no party to an instrument or his representative should be allowed to uphold the written contract and yet try to establish a contemporaneous oral agreement so as to vary the terms of it; but, it does not prevent even a party to such an instrument from establishing any fact which would make the document itself invalid, or establish any fraud, or show the transaction to be illegal, for the effect of such a plea is not to vary the terms of the document, but to nullify it."
All this discussion leads me to conclude that the rule of evidence does not fetter the powers of the Court to unveil the real transaction where the validity of the document itself is challenged and to ascertain the real nature of the transaction.
The learned counsel for the appellant laid great emphasis on the admission of the respondent as to the receipt of the sale consideration before the Registrar. But this admission is not conclusive. In Motilal Sah v. Ugrah Narain Sahu and others (A I R 1950 Pat. 288), it was held, while considering the implication of section 54 of the Transfer of Property Act, that where a registered sale‑deed contained a recital for the passing of the full considera tion and the delivery of possession to the vendee but in point of fact not a farthing passed under the sale‑deed and the possession of the property and the registered sale‑deed remained with the vendor, the inference was irresistible that the intention of the parties was that title would not pass unless consideration money was paid; and as no money was paid title in the property remained with the vendor. The case of Muhammad Murtaza Hussain v. Abdul Rehman (A I R 1949 Pat. 364), was followed in Motilal Sahu v. Ugrah Narain Sahu and others (supra), in which it was held that parol evidence could be led to contradict the recital in the deed acknowledging the receipt of consideration to show that it was, in fact, not paid and section 92 was not a bar to the admissibility of this evidence. In Chuni Bibi v. Baranti Bibi (24 I C 661), it was held that where the vendor alleges and proves that the consideration, the receipt of which was acknowledged in the sale‑deed did not, in fact, pass, the case falls within the first proviso to section 92 of the Evidence Act and the vendor is at liberty to prove either that the full amount was not paid or only a part of it was paid.
In Mulla's Transfer of Property Act at page 454 it is said:
"A false acknowledgment of receipt of price by a recital in a deed does not estop the seller from giving evidence as against the buyer that he has not received payment. The Privy Council in Shah Lai Chand v. Indarjit (1900) 22 All. 370 said that it was settled law, that notwith standing an admission in a sale‑deed that the consideration has been received, it is open to the vendor to prove that no consideration has been actually paid. If it was not so, facilities would be afforded for the grossest frauds. But such a recital may give rise to a presumption of payment."
In Qazi Altaf Hussain v. Ishfaq Hussain (N L R 1981 S C J 451), it was held by this Court that under section 60 of the Registration Act, a presumption of correctness attaches to the certificate endorsed on the sale‑deed by the Registration Officer only for the purpose of proving that the document has been duly registered. But as regards the receipt of consideration by the vendor, only a presumption arises out of the admission made by the vendor which could be contradicted by independent evidence as that relates to want of consideration and exercise of undue influence.
In Wahid Bakhsh v. Muhammad Shafi (P L D 1976 Lah. 1069) it was held that the endorse ment of the Registrar as to the receipt of the consideration is rebuttable and it is always open to the vendor to refute it on the ground that the amount shown therein was fictitious. In Dharm Singh v. Kirpal Singh a others (A I R 1923 Lah. 31(2)), it was held that a formal recital as to the price having been received is a very weak piece of evidence between the parties to the deed. This is so because there is only a presumption attached to it which can be refuted.
In Parshotam Das v. Yar Ali (A I R 1928 Oudh 439), it was held that the mere registration of the sale‑deed does not operate to pass the title to the vendee or to pass any interest in the property purported to have been sold to hi where there was no proof of the transfer of possession of the property nor of the delivery of the sale‑deed nor of the payment of consideration In such a case the provision of section 54 of the Transfer of Property Act is of no avail.
In support of his second contention Mr. A. R. Sheikh relied on Dip Narain Singh v. Nageshar Prasad (A I R 1930 All. 1), in which it was held that there was a clear distinction between .a contract to sell which still remains to be performed and the transfer of immovable property under the Transfer of Property Act by deed of sale duly registered which operates as a conveyance of interest in property. In so relying on it, the emphasis was on the registration of the sale‑deed as conclusive for the transfer of the row in the property regardless of the consideration not having been paid. The learned counsel next referred to Prem Singh v. District hoard, Rawalpindi (A I R 1934 Lah. 917), in which it was held that the payment of price is not necessarily sine qua non to the completion of sale unless there was anything in the agreement to sell laying down that the sale shall not be taken to be completed unless the entire sale money was paid. It was further held that if the price was not paid the seller cannot on that account repudiate the sale and his only remedy was to sate for the price or the balance of the price not paid.
In Allah Ditra v. Nazar Din (1916PR53), while referring to the definition of the word "mortgage" in section 58 of the Transfer of Property Act, it was held that in the absence of conveyance or stipulation to the contrary a mortgage is complete, that is, the transfer of interest is effected not when the consideration for it is paid or made good but when the mortgage contract is entered into regardless of whether and when the consideration is paid or made good. It was further held that the presumption would be in favour of the immediate transfer but this presumption could be rebutted by proof of an express stipulation to the contrary or by proof of facts and circumstances from which such contrary intention might reasonably be inferred. Here the transfer of interest is qualified by any stipulation to the contrary as was also held in the case of ownership qua the sale in A I R 1934 Lah. 917. In State of Kerala v. The Cochin Chemical Refineries Ltd (AIR1968SC1361), the mortgagee had failed to advance money undertaken by him and the question arose as to its effect. It was held that the transac tion of mortgage formally executed does not become void or ineffective merely because the mortgagee fails to advance the amount of money undertaken to be advanced by him. In holding so it was observed :‑
In Tatia v. Babaji I L R 22 Both. 176, Farran, C. J. observed:
"I am not, however, prepared to assent to the train of thought which puts conveyance of lands in the Mofussil perfected by possession or registration where the consideration expressed in the conveyance to have been paid has not in fact been paid in the same category as contracts void for want of consideration."
Similar observations were made in Rash& Lai v. Ram Narain (I L R 34 All. 273), where Karamat Hussain, J., observed at p. 276:
"A mortgage under the Transfer of Property Act is a transfer of an interest in the land mortgaged, and sot a mere contract. It, therefore, follows that no sooner a valid mortgage deed is registered, an interest in the property mortgaged, in the absence of any contract to the contrary, vests in the mortgagee notwithstanding the fact that the mortgage moray has not been paid by the mortgagee to the mortgagor. The mere non‑payment of the mortgage money cannot have the effect of rendering the mortgage invalid."
Sulaiman, J., in Dip Narain Singh v. Nageshar Prasad I L R 52 All 338‑A I R 1930 All. I observed that once a document transferring immovable property has been registered, the transaction passes out of the domain of a mere contract and into one of a conveyance. Such a completed transaction is governed by the provisions of the Transfer of Property Act and so much of the Contract Act as is applicable thereto.
In the cases cited above, the invalidity of the sale‑deed or mortgage deed was in question on the grounds mentioned in the provisos to section 92 of the Evidence Act and what was observed was with regard to the meaning of the terms "sales" or "mortgage" as defined in sections 54 and 58 of the Transfer of Property Act qua the non‑payment of the sale price or the money, payable under the mortgage deed. Hence the validity of the sale‑deed cannot be regarded as immune by reason of the definition of this term in the Transfer of Property Act as because the price is promis ed to be paid, or part paid and pact promised.
Here I would dispose of an argument urged at the Bar against the applicability of section 54 of the Transfer of Property Act. It was contended by Mr. S. M. Zafar that price meant money or equivalent of money and not an unascertained consideration. In this connection, he invited our attention to the fictitious amount shown in the sale‑deed as the sale consideration which was not only disproportionate to the market value of the 4/5th share sold, but also did not represent the value of his 1/5th share in the proposed hotel building and business, which was agreed to be the consideration for the transfer of the 4/5th share in the property. As the price of ‑ the 4/5th share sold to the appellant was not ascertained, section 54 of the Transfer of Property Act had no application as one of the conditions of sale was not fulfilled. In this connection he relied on Madhavrao Moresh ar Pant Amatya v. Kashibai (I L R 34 Bom. 287). In this case in consideration of the services already rendered and thereafter to be rendered by the defendant the predecessor‑in‑interest of the plaintiff executed two documents where under he released the defendant from paying to him the assessment of certain lands. But these documents were not stamped or registered and later he filed a suit for the recovery of the arrears of assessment from the defendant, who pleaded exemption under the two documents. The first appellate Court found the transaction to be one of hale, and ordered the plaintiff to pay to the defendant what the Court had calculated to be the equivalent of purchase‑money before he could recover the assessment. It was held by the High Court that the transaction could not be regarded as sale, as the consideration stipulated therein was not price and even if it could be assessed in money value then it was vitiated by the fact that it was vague acid uncertain as to future services, Here if I may say so the transaction cannot be rated as a sale for its validity has been impeached on various grounds in which case section 54 of the Transfer of Property g Act, would not, in any case, be applicable nor its registration will have the legal consequence of conveying an interest in the property. Therefore, the question as to whether the sale price was uncertain would hardly arise to bring the case out of the ambit of section 54 of the Transfer of Property Act.
Lastly, Mr. A. R. Sheikh, learned counsel for the appellants, contended that the cases cited by Mr. S. M. Zafar, were those in which either fraud is established or an intention not to pass the title, which was not the case here. In support of this proposition, the learned counsel relied on Muhammad Akbar Khan v. Sultan Ghani (1970 S C M R 696). In this case the receipt of the consideration turned on the facts of the case as after the sale‑deed was executed and possession delivered to the vendee, the vendor forcibly entered the land on the plea that the sale price fixed at Rs. 60,000 had not been paid to him, The vendee thereupon filed a suit for posses sion. The concurrent findings of the Courts below on the question of payment of consideration were against the vendor. It was in these circumstances. that this Court held that the vendor was precluded under the provisions of sections 91 and 92 of the Evidence Act to refute the recital of the receipt of consideration in the sale‑deed and that he bad no right or interest left in the land. This observation, however, does not stand by itself as it was further said:
"it was not his case that the sale was vitiated by fraud, intimidation, want of due execution, want of capacity to contract, want of failure of consideration or mistake in fact or law within the second proviso to section 92. As no such case was set up by the appellant, the suit for possession brought by the respondent on the basis of the sale‑deed was rightly decreed by the Courts below."
In this case there was a dispute as to the correct amount of the sale consideration in the deed and as to the manner of its payment. In the context of the concurrent findings of Courts below against the vendor, this Court observed that the vendor was precluded from going behind the recital in the sale deed as to the entire sum of Rs. 60,000 having been paid to him in view of sections 91 and 92 of the Evidence Act. However, it was made clear that as no case was set up within the four corners of the provisos to section 92 the suit for possession was rightly decreed. The observations of this Court are in line with the settled interpretation of the provisos to section 92 of the Evidence Act. Accordingly, this cannot be of any assistance to the contention of the appellant.
The learned counsel next relied on a passage from Principles and Digest of the Law of Evidence by M. Monir at page 861, which runs as under :‑
"When the parties reduce the terms, orally agree upon, to writing, then the document becomes, under section 91, the only means by which the terms can be proved in a Court of law. It is not open to any of the parties thereafter to seek to prove the terms of the contract by referring to the original oral agreement."
What obviously is meant is that when the document is reduced into writing no parol evidence can be led to establish its terms by referring to any earlier agreement. There cannot be any dispute with this proposition, but this is not the case here. Accordingly, it would have no relevance to the evidence led to bring the case within the provisos to section 92 of the Evidence Act.
Similar are the observations in Punjab National Bank v. S. B. Chaudhry (AIR 1943 Outh 392), but there is a rider in the following words:
"It is only in cases where the terms of documents themselves require explanation, that extrinsic evidence can be led within the restrictions laid down by section 91, proviso (6)."
In Nazir Khan and another v. Ram Mohun Lal and another (AIR 1931 All 183), it was held that where the document is not admissible for want of proper stamp, the plaintiff is not entitled to set up a case independent of the document in view of section 91 of the Evidence Act, and also he cannot recover money by proving orally the terms of the contract. I do not find any relevance of this observation to the instant case.
In Diwan Singh v. Gurbachan Singh and others (AIR 1932 Lah. 276), it was held that in a case of sale, other evidence of the transaction than the deed itself is barred by the provisions of section 91 of the Evidence Act. As a proposition of law, there cannot be any cavil with it but again how this observation is relevant, I am unable to understand in the facts and circum stances of the case.
In Kuppuswami v. Chinnaswami (A I R 1928 Mad. 546) and Dinkerrai Lalit Kumar and others v. Sukhdayal Rambilas and others (A I R 1947 Bom. 293), there are similar Observations which appear to me to be hardly helpful.
There being no legal bar to the admissibility of the parol evidence to unveil the real transaction which ltd to the bringing into existence of the sale‑deed, I now propose to dwell on the factual aspect of the case.
In support of the sale‑deed as being an independent and a valid transaction, the learned counsel for the appellants relied on Exh. P‑1 incorporating the statement of the respondent that he had sold the property bearing No. A/93, situate on Jinnah Road, Rawalpindi, for Rs. 60,000 which he made in connection with the assessment of the capital gains tax.
Raja Imtiaz Hussain, a Clerk in the office of the Excise and Taxation Officer, Kawalpindi, was examined to establish that the respondent had himself submitted the form on 22nd of July, 1970, which was marked by the Excise and Taxation Officer to the Sub‑Inspector, and, as was usual, he recorded his statement, where-after the capital gains tax was assessed at Rs. 945.85 out of which he paid Rs. 500 on 20‑7‑1971. The respondent, however, denied that he had gone himself for the assessment of the gains tax and for its payment. His plea in the examination‑in‑chief was that it was Ghulam Mustafa, who may have. paid the part of the amount assessed. The cross‑examination of this witness also discloses that questions were put to him to disprove the making of the statement or the presentation of the form or part payment of the capital gains tax, but as this is a matter of record it hardly stands to reason as to why an official of the Government department would involve himself in the fabrication of the statement and the proceedings initiated thereupon for the payment of the tax and its actual payment. The fact nonetheless remains that the part payment of the amount towards the capital gains tax was either partly paid by the respondent or by someone else on his behalf, and if according to him it was Ghulam Mustafa then such a question should have been put to him which was not done.
Reliance was next placed on the statement of Muhammad Sadiq (P. W. 1), an Inspector of the Income‑tax Department, Circle 'B', Rawalpindi, who deposed to the issuance of the Income‑tax Clearance Certificate issued under the Act although the certificate itself was not produced as it was a privileged document. He was not cross‑examined and no question was put to Allah Dad in regard to the authenticity of the statement made of the witness. Soofl Ghulam Sarwar (P. W. 3), Cashier, Rawalpindi Improvement Trust, was examined to prove that the development charges and fee for the building plan were paid against receipts Exhs P‑2 and P‑3, but as to who actually paid the amounts is not apparent from the receipts which were issued in favour of Muhammad Shafi and others. If, at all, the payments were made by the respondent then these receipts should have been put to hint to elicit his explanation which was not done.
The execution of the sale‑deed was sought to be established by the testimony of Zaheer‑ud‑Din (P. W. 4), Registration Clerk, in the Office of the Registrar of documents, who deposed to the fact that be had entered the registered document at Serial No. 2434, and obtained the signatures of the respondent in the relevant register. Next, Jehandad (P. W. 6), a Petition Writer, was examined to produce the register bearing the entry of the document scribed by him. The document is entered at Serial No. 1334 bearing the date 19‑7‑1968 and according to him it was scribed at the instance of Allah Dad and related to the sale of 4/5th share in the property in favour of Muhammad Shall, Muhammad Rafiq, Ghulam Mustafa, Mazharul Haq and Muzaffarul Haq. In cross‑examination, he admitted the presence of Muhammad Shafi and the other vendees, and also stated that after taking the details from the parties he had scribed the sale‑deed. He also disclosed that the amount had not to be paid in the presence of the Registrar of documents and that in return of Rs. 60,000 the appellants would construct a hotel in which the respondent would have 1/5th share. Having said so he stated that he bad no knowledge whether there was any talk about this amount between the parties and ended his statement saying that he does not remember.
Zaheer‑ud‑Din (P. W. 7) a shopkeeper, was examined to establish the execution of the partnership deed Exh. P‑1, and he deposed to the fact that it was signed by the parties and that he had signed the document as an attesting witness.
Lastly; Ghulam Mustafa (P. W. 8) one of the appellants entered the witness‑box and examined himself. His version regarding the transac tion is that he had purchased the 4/5th share in the disputed property for Rs. 60,000 and thereafter there was an agreement to jointly construct a hotel in regard to which a partnership deed was executed, but this document was not acted upon. However, a building plan was prepared which was duly signed by all the parties. This hotel could not be constructed as. the respondent refused to pay his share towards the price of the construction. This witness, however, says in cross‑examination that about a month and a half before the execution of the sale‑deed there was a talk between the parties on the suggestion made by the responder: that he would retain 1/5th share in the property agreed to be sold anti that 4/5th share would go to the appellants and that in the hotel proposed to be constructed, he would have 1 /5th share and the rest 4/5th share would go to the appellants. This talk had taken place in the Ahata of the respondent and there was no one else except himself and the respondent. The sale consideration was determined at Rs. 60,000 and this amount was paid to the respondent at the place but no receipt was taken and no one else witnessed the payment. As to his contribution in the building proposed to be constructed, the respondent had to pay his share namely Rs. 60,000 and the remaining amount bad to be proportionately contributed by the others. The amount paid as sale consideration was not drawn from any bank but he possessed this amount himself as he often carried such amounts with him. He admitted that the assessed rental of the premises in 1968 was Rs. 20,100 per year, but expressed his ignorance as to the market value of the property. He also admitted that the stamp paper for scribing the sale. deed and the partnership agreement were purchased by his brother Muhammad Rafiq. He also admitted that he made an application to the Excise and Taxation Officer for transfer of the ownership which request was refused. As for the original sale‑deed, the witness stated that it remained with the respondent and the respondent himself paid the taxes and remained in possession of the property and collected Pent from tenants. And as for the talk in regard to the construction of be building which apparently had taken place before the execution of the ale‑deed itself, the witness was asked as to why he had not mentioned it in the sale‑deed to which he stated that he did not consider it necessary to be mentioned. Lastly, he stated that apart from the partnership deed there was no other agreement, and he has no knowledge if any such other agreement is stated in the replication. Another significant feature in his cross‑examination is that although his father Muhammad She had, from amongst the vendees alone, signed the sale‑deed and it was witnessed by Muhammad Younas and Ghulam Ghaus but none of them was produced in evidence although according to Jehandad, Muhammad Shafi was present and was one of the persons who had given details of the transaction at the time when the document was being scribed by him.
In rebuttal the respondent examined himself and two other witnesses to disprove the case of the appellants and to establish fraud practised on him as a result of which the appellants manoeuvred to get the sale deed executed in their favour which bad no legal validity.
Allah Dad, respondent herein, examined himself as (D.W.3), and stated that it was Muhammad Shafi who had come to him and suggested that the disputed property had a suitable location and that after spending a considerable amount a building can be raised for sunning a hotel which would fetch profits in lacs and that he would have 1/5th share in it. The witness in reply stated that he had no money to invest, upon which Muhammad Shafi said that he would himself spend the money and so far as be was concerned instead of contributing the money, his property, which he assessed at Rs. 5 lacs, would be taken as a contribution towards his share for the construction of the hotel and after its completion he would have 1/5th share in the building and the hotel business. The remaining 4/5th share would belong to him and the other appellants. He went on to say that as Muhammad Shafi had fully assured him about the bona fide of his offer in every conceivable manner, he took it to be a genuine offer and acted upon it, in that, that after about a week and a half be went along with Muhammad Shafi to Jehan Dad, Petition Writer, to get the sale‑deed scribed on the stamp paper brought by Muhammad Shafi. It was Muhammad Shall who had disclosed to Jehan Dad that the 4/5th share in the property was to be transferred to him and the other appellants, and thereafter a hotel would be constructed on the property in which, and so also in the hotel business, Allah Dad would ‑have 1/5th share. Jehandad thereupon scribed the sale‑deed which was duly registered. Allah Dad disclosed that the sale price amounting to Rs. 60,000 shown in the deed was fictitious considering the market value of the property which was Rs. 7/8 lacs. As for assuring confidence in the bona fides of the transaction, Muhammad Shall handed over the Permanent Transfer Deed (PTD) and the original sale‑deed to Allah Dad. Later a building plan for the construction of the hotel duly sinned by him and Ghulam Mustafa, one of the vendees, was submitted for approval; and about a month and a half after the execution of the sale‑deed, on the basis of the assurance he also signed the partnership deed, and although he was illiterate yet its contents in English were not explained to him. The appellants after an interval of years went against their representation as the cost of construction had appreciated by and large and thereupon fraudulently acted to usurp the property on the basis of the sale‑deed. Allah Dad denied having received any sale consideration either before the Registrar or at any time before the registration of the document. The respondent examined Haii Muhammad Younas (D W. 1) and Ghulam Ghaus (D.W. 2) in support of his case. There is some variance in the evidence of Haji Muhammad Younus as to the place and the persons present at time when the offer was made by Muhammad Shall. However, Ghulam Ghaus has only referred to the discussion between Muhammad Shaft and Allah Dad in regard to the transaction in his presence. According to him the sale‑deed was fictitious sod he signed the document as an attesting witness knowing it to be so as Muhammad Shall insisted .that he must have an interest in the property to the extent of 45th share if the transaction was to get through.
The evidence on record has lifted the veil as to the real nature of the transaction which led to the execution of the sale‑deed. The founda tion for it is also laid in the pleadings of the respondent. Reading the evidence as a whole it will be clear that it was Muhammad Shafi who gave the assurance upon which respondent acted and executed the sale- deed.
As to the elements of the assurance there is ample indication in the evidence of the scribe that the sale consideration was not to be paid and the hotel was to be constructed in which the respondent would have 1/5th share. This, however, did not reflect the full representation made by Muhammad Shafi but it does give indication that the sale‑deed was linked with the other elements of the assurance, that is, that the respondent would have 1/5th share in the building to be constructed which in terms of money would be equivalent to 1/5th of the amount of Rs. 20 lacs to be spent in the construction of the building. That in terms would be the consideration for transferring the 4/5th share in the property. However, this witness after having said so attempted to wriggle out by saying that he had no knowledge of what transpired at the time of scribing the deed but if that was so then how was it that he was still able to mention some of the details. The fact nonetheless remains that it was the appellants' own witness who had said so. In this background Muhammad Shall who had played the main role deliberately avoided to examine himself obviously for the reason that he would have exposed. himself to a searching cross- examination on this important issue. His failure, accordingly, adversely affects the case of the appellants to the extent of the execution of the sale deed as an independent transaction.
Ghulam Mustafa one of the vendees who had examined himself was present when the sale‑deed was executed yet he did not deny what the scribe said and instead gave out that a suggestion was made about a month and a half before the execution of the sale‑deed by the respondent that he would retain 1/5th share in the property agreed to be sold and the remaining 4/5th share would go to the appellants, and that after the hotel was constructed he would have 1/5th share in it and the rest 4/5th share would go to the appellants. I am unable to comprehend as to whir the respondent would, on his own. make a suggestion of the type which is attributed to him when his property was fetching handsome rent and he had no earthly reason to sell 4/5th share for a sum of Rs. 60.000 although its market value, as according to its rental, could not be less than Rs. 7 or 8 lacs. He was illiterate and did not possess the expertise for the scheming and the construction of the hotel. Therefore, the obvious conclusion is that the offer was made by the appellants and to secure their investment they had prevailed upon the respondent to create an interest in the property in their favour as security having regard to amount required to be spent in the construction of the hotel otherwise I find no reason as to why the respondent would create an interest of the appellants, who were strangers, in his property. The other supporting reasons are that the appellants in order to prove their bona fides allowed the possession of the entire property to remain with the respondent who during all these years collected the rent and appropriated it to himself and paid the taxes. And not only this the appellants also handed over the original sale‑deed and the Permanant Transfer Deed (PTD) to the respondent. What was further was that the appellants did not assert their right to ownership in the 4/5th share until the filing of the suit. In this milieu the conduct of the respondent is understandable qua the part payment of the capital gains tax, development charges and fee for the building plan. Obviously as what he did was towards the accomplishment of the ultimate goal.
As to the assertion of the cash payment of Rs. 60,000 by Ghulam Mustafa, there is no documentary evidence available except his oral words and the acknowledgment of its receipt in the sale‑deed. As to, in fact, its payment, what was said was that it was paid in cash at some place where no one was present. However, the payer, Ghulam Mustafa, was unable to satisfactorily explain as to how he carried that much of money with him and why at all, it was paid at a place where no one else was present and no receipt was taken then and there. Hence the failure to establish the cash payment would seriously reflect against the truthfulness of the acknowledgment of its receipt in the sale‑deed and ought it be said that for this reason the respondent had not owned the receipt of the amount in the sale‑deed.
As regards the partnership deed which was scribed in English, the respondent did not own its contents, as it was not read out and explained to him. How did it come into existence if there was no assurance is again a matter which has relevant bearing with the assurance and cannot be regarded as out of its context. It is deficient in two respects: firstly, that it fails to record the 1/5th interest of the respondent in the ownership of the hotel to be constructed; and, secondly, that it provides or the contribution by the respondent to the tune of Rs. 60,000 which was not one of the elements of the assurance given to the respondent. However, this was not acted upon and in the events that followed, the appellants went back on their assurance and asserted their title to the extent of 4/5th share in the property and filed a suit for partition and rendition of accounts.
In conclusion and for the reasons given above, I agree with the conclusion of the High Court that the sale‑deed was invalid for want of consideration and further that the respondent peas duped to execute it as a result of the "fraud" and "misrepresentation" practised on him.
The appeal, accordingly, fails and is dismissed with costs.
M.B.A. Appeal dismissed.
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