V.Govindasamy v. S.Natarajan
2026:MHC:3141 · A.S. NO.839 OF 2020
Coram: Justice R. Sakthivel
Yes. Where a party attacks the very nature of the document by contending that it was executed for altogether a different transaction, Sections 91 and 92 of the Indian Evidence Act, 1872 do not stand as a bar and he is entitled to lead evidence in support of that contention, although he cannot vary the terms of the agreement in other aspects. The bar arises only when the document is relied upon and its terms are sought to be varied and contradicted; oral evidence is admissible to show that the document was never intended to operate as an agreement.
Indian Evidence Act, 1872 — s.91 — s.92 — Specific Relief Act, 1963 — s.16 — s.20 — Sale Agreement as security for a loan transaction — Readiness and willingness — Discretionary relief —
Indian Evidence Act, 1872 — ss.91 and 92 — Sale Agreement — Plea of an altogether different transaction —
Held: Where a party attacks the very nature of the document by contending that it was executed for altogether a different transaction, Sections 91 and 92 do not stand as a bar, though he cannot vary its terms in other aspects. (¶16, 18)
Specific Relief Act, 1963 — s.16 — Readiness and willingness — Mere averment is not sufficient —
Held further: Under the explanation to Section 16 the plaintiff need not jingle his coins, yet must establish readiness and willingness throughout by producing his bank statement or any other document. Mere averment is not sufficient, and one seeking this equitable relief must come with clean hands. (¶23, 24)
Specific Relief Act, 1963 — s.20 — Discretionary relief — 2018 Amendment is prospective —
Held further: Under Section 20 as it stood before the 2018 Amendment specific performance is a discretionary relief, and may be denied even where the nature of the document is proven to be true. The amendment is prospective in nature. (¶26)
Specific Relief Act, 1963 — Alternate relief — Return of advance amount must be prayed for —
Held further: The alternate relief of return of the advance amount cannot be granted unless prayed for in the plaint, but where the defendant himself agrees to return it a money decree may be passed to avoid multiplicity of proceedings. Appeal Suit allowed in part. (¶27, 29)
In the Court's own words
Paragraph 16As the first defendant attacks the very nature of the document by contending that it was executed for altogether a different transaction, Sections 91 and 92 of the Indian Evidence Act, 1872 would not stand as a bar and the first defendant is entitled to lead evidence in Page No.12 of 29 A.S. NO.839 OF 2020 support of his contention, although he cannot vary the terms of Ex-A.2 - Suit Sale Agreement in other aspects. In this regard, reliance is placed on a Division Bench Judgment of this Court in Kamireddi Sattiaraju -vs- Kandamuri Boolaeswari, reported in 2007 3 L.W. 580, wherein by referring to Roop Kumar -vs- Mohan Thedani, reported in 2003 3 L.W. 261 : (2003) 6 SCC 59 and Parvinder Singh -vs- Renu Gautam, reported in 2004 4 L.W. 53 : (2004) 4 SCC 794, it was clarified thus: "14. … … … At the outset, it will have to be stated that existence of Ex.A-1 agreement was never in dispute. As far as application of Section 92 of the Indian Evidence Act is concerned, by virtue of Section 91, and having regard to the existence of Ex.A-1 agreement, the terms contained in Ex.A-1 are to be considered without any reference to any other oral evidence insofar as it related to the terms contained therein. In that respect, Sections 91 and 92 of the Indian Evidence Act are inter-dependent. In the light of the evidence available on record, both oral and documentary, as well as the application of Section 92 of the Indian Evidence Act, there is no scope to permit the appellants to contradict, vary or subtract the terms contained in Ex.A-1 agreement. Therefore, even taking Ex.A-1 agreement on its face value, what has to be considered is whether the contention put forward on behalf of the appellants that it was never intended to be acted upon, requires consideration. On this aspect, we find that the decisions relied on by learned counsel for the Page No.13 of 29 A.S. NO.839 OF 2020 appellants Mr. R. Subramanian as reported in 2003 (6) SCC 595 (supra) and 2004 (4) SCC 794 (supra) fully support his contention. 15. In the judgment reported in 2003 (6) SCC 595, in paragraph 22, the Supreme Court has stated the legal position as regards the substantive part of Section 92 of the Indian Evidence Act in the following words: "22. This Court in Gangabai v. Chhabubai (1982 1. SCC 4 : AIR 1982 SC 20) and Ishivar Dass Jain v. Sohan Lal (2000 (1) SCC 434 : AIR 2000 SC 426) with reference to Section 92(1) held that it is permissible to a party to a deed to contend that the deed was not intended to be acted upon but was only a sham document. The bar arises only when the document is relied upon and its terms are sought to be varied and contradicted. Oral evidence is admissible to show that document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties." 16. In the decision reported in 2004 (4) SCC 794, the Supreme Court has held as under in paragraph 9: "… An enquiry into reality of transaction is not excluded merely by availability of writing reciting the transaction. Tyagaraja Mudaliyar v. Page No.14 of 29 A.S. NO.839 OF 2020 Vedathanni (AIR 1936 PC 70 : 64 IA 126) is an authority for the proposition that the oral evidence in departure from the terms of a written deed is admissible to show that what is mentioned in the deed was not the real transaction between the parties but it was something different."
Paragraph 18This Court is not in consonance with the contention of the learned Counsel for the respondent / plaintiff, for two reasons. Reason No. (i), the Division Bench Judgment relied on by him does not draw any support from any Apex Court Verdict, whereas that in Kamireddi Sattiaraju's Case [cited supra] relied on by this Court, is based on two Apex Court Judgments. Reason No.(ii), in the Judgment relied by him, the defendant's Counsel conceded that the bar under Section 92 of the Indian Evidence Act, 1872 was applicable. It could be seen from the afore- extracted portion, viz., Paragraph No.5, that the decision of the Court was inter-alia based on that concession. For these two reasons, this Court is of the view that Nanjammal's Case [cited supra] would not come to the aid of the plaintiff. This Court concludes that the first defendant is not barred under Sections 91 and 92 of the Indian Evidence Act, 1872 to contend that the Suit Sale Agreement in Ex-A.2 was executed for altogether a different transaction and also to lead evidence to support the same. Page No.17 of 29 A.S. NO.839 OF 2020
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