9911796707
TMI Blog1972 (11) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the second defendant was proposing to purchase certain properties from the plaintiff's friend, one T. K. Mani who had nominally conveyed them to various persons in July, 1961, that pending finalisation of the transaction between the second defendant and the said T. K. Mani a post-dated cheque was issued in the name of the plaintiff in the first week of July, 1961 and that payment for the cheque was stopped because the said Mani did not complete the transaction as agreed by the first week of October, 1961. 2. The trial Court went into the question as to whether the cheque was issued towards part-payment of the consideration for the sale under Exhibit A-3 as alleged by the plaintiff or whether it was given as a security for performance of certain obligations undertaken by the said T. K. Mani as alleged by the defendants. After considering the evidence on record, both oral and documentary, it came to the conclusion that the cheque Exhibit A-1 was given by the second defendant for the sale of the plaintiff's properties to T. K. Mani and that therefore, it was fully supported by consideration. In that view it decreed the plaintiff's suit as prayed for. 3. On app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Exhibit A-3 who later on sold the property covered by Exhibit A-3 along with his other properties to the second defendant under Exhibit A-4. He has deposed that the sale consideration under Exhibit A-3 was ₹ 15,000 and that the second defendant paid a sum of ₹ 10,000 by cash and the balance of the sale consideration was paid by the cheque, Exhibit A-1. Explaining the circumstances under which the second defendant came to pay the sale consideration, he has stated that as there was a prior understanding between him and the second defendant for his purchase of the suit property along with others, the second defendant came to pay the sale consideration. It appears from the evidence of P.W. 2 that the properties covered under Exhibit A-3 is part of an estate called Knoll Estate in Coonoor consisting of 90-58 acres in extent. The estate was jointly purchased by T. K. Mani's granduncle Narayanaswami and one Rose Mary Dias on 25th June, 1920. After the death of Narayanaswami, T. K. Mani succeeded to the half share in the estate. Subsequently T. K. Mani sold some portion of the estate in small bits in favour of various parties, including the plaintiff. Exhibit A-2 dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the plaintiff is entitled to plead and establish that the consideration for the sale under Exhibit A-3 was ₹ 15,000 as against the sale consideration of ₹ 4,500 recited in the document. 5. As already stated, the lower appellate Court has relied on the decision in Motilal Singh v. Mt. Fulia AIR1958Pat61 . In that case it was held that a statement in a document of sale that a consideration has been paid is really a recital and does not constitute one of the terms of the sale deed but that the amount of consideration is obviously a term of the sale deed and that therefore, it is not open to a party to set up and prove a variation in the amount of consideration. The decision in that case was based on Section 92 of the Evidence Act which provides that when the terms of any contract, grant or, any other disposition of property, or any matter required by law to be reduced to the form of a document have been proved according; to Section 91, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, adding to or subtracting from its terms. In that case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the party to the document or his representative-in-interest are at liberty to lead evidence of oral agreement notwithstanding the fact that such evidence, if believed, may contradict, vary, add to or subtract from its terms. The rule of exclusion enunciated by Section 92 applies to both parties to the document and is based on the doctrine of mutuality. It would be inequitable and unfair to enforce that rule against a party to a document or his representative-in-interest in the case of a dispute between the said party or his representative-in-interest on the one hand and the stranger on the other. The same view has been earlier expressed by this Court in Parattakath Mayan v. Mummad Kunhi (1949)1MLJ382 where Satyanarayana Rao, (sic) held that under Section 92 the prohibition with reference to the proof of an oral agreement applies only as between the parties to the instrument or their representatives-in-interest and not between one of the parties to the instrument and a third party. 6. In Bhagyalakshmamma v. Kamalammal (1953)2MLJ249 . here was an agreement for sale of a house for ₹ 2,625 and a sum of ₹ 350 was paid as advance on the date of the agreement. Subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 9. The learned Counsel for the respondents would further contend that permitting the plaintiff to adduce oral evidence to establish a different consideration than the one mentioned in the sale deed would defeat the provisions of the Stamp Act. Reference is made to Sections 27 and 64 of the Stamp Act. Section 27 enjoins that the consideration and all other facts and circumstances affecting the chargeability of any instrument with duty, shall be fully and truly set forth therein, and Section 64 makes the omission to comply with the provisions of Section 27 penal and punishable. According to the respondents' learned Counsel the plaintiff being a party to a document which does not set forth full and true consideration is punishable under Section 64, and therefore, he should not be permitted to take the plea that the real consideration is different from the stated consideration. But it has to be borne in mind that even if the parties understate the value of the property and pay a lesser stamp duty the instrument will not become void or inadmissible in evidence for that reason. The parties may be liable for punishment under Section 64 for attempting to defraud the Revenue. Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the Court and if the person invoking the aid of the Court is himself implicated in the illegality. It matters not whether the defendant has pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves the illegality the Court ought not to assist him. But the above observations indicate that that decision rested mainly on the fact that the contract sought to be enforced was tainted by illegality. But by no stretch of imagination the transaction of sale under Exhibit A-3 can be said to be illegal. 11. In Bhushayya v. Chinnappareddi AIR1960AP39 . while dealing with the question whether non-showing of the full consideration in a sale deed will amount to opposed to public policy it was held that where the statute merely imposes a penalty without declaring a contract to be illegal or void, the imposition of penalty by itself does not have the effect of making the contract made in contravention of a specific provision of the statute illegal or void unless it is further shown that the statute was designed as a whole t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on cannot be, therefore, supported. In the face of the evidence of the vendor and the vendee that the real consideration agreed between them was ₹ 15,000, it is not open to the second defendant to rely merely on the : term of the sale deed reciting a lesser consideration and defeat the plaintiff on that ground. I am also inclined to accept the view taken by the trial Court that the cheque has been given by the second defendant only towards part payment of the sale consideration and not by way of security in respect of another transaction as alleged by the second defendant. As a matter of fact, there is absolutely no evidence to show, except the ipse dixit of the second defendant, that the cheque was given only as a security. The plaintiff had nothing to do with the arrangement between the second defendant and T. K. Mani, and it is not clear as to why the second defendant issued a cheque in favour of the plaintiff, who according to the evidence of the second defendant, is an utter stranger. I have to, therefore, set aside the finding of the lower appellate Court that the cheque is not supported by consideration. 14. The result is the second appeal is allowed and the decree ..... X X X X Extracts X X X X X X X X Extracts X X X X
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