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TMI Blog2022 (4) TMI 1647X X X X Extracts X X X X X X X X Extracts X X X X ..... force or fraud, that he has read the document properly and understood it and only then he has affixed his signature thereon, otherwise no signature on a document can ever be accepted. In Prem Singh v. Birbal [2006 (5) TMI 517 - SUPREME COURT] the Apex Court held that there is a presumption that a registered document is validly executed. The registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In Vimal Chand Ghevarchand Jain and Ors. v. Ramakant Eknath Jadoo [2009 (3) TMI 997 - SUPREME COURT] the Apex Court held that a registered deed of sale carries the presumption that the transaction was a genuine one and that if the execution of sale deed is proved, onus is on the defendant to prove that the deed is not executed and it was a sham document. In the present case, the plaintiff failed to lead cogent evidence to rebut the presumption available to a registered document - In the case on hand, the plaintiff failed to establish evidence on the touchstone of the principles discussed above to establish the existence of an oral contract as pleaded. Apart from the interested testimonie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efly narrated below:- 2.1. The plaint schedule property is 59.5 cents of land comprised in S. Nos. 1422/2 and 1423/2 of Alathur Village. The property originally belonged to the plaintiff. The plaintiff executed a sale deed in respect of this property as deed No. 2689/04 dated 25.8.2004 (Ext. B1) in favour of the defendant. 2.2. The plaintiff pleaded that on the date of execution of the sale deed, the plaintiff had borrowed a sum of Rs. 1,00,000/- from the defendant, who is a money lender, and as a security for the transaction Ext. B1 sale deed was executed. According to the plaintiff, he had retained possession of the plaint schedule property with him. The plaintiff further pleaded that on 25.8.2004 itself, the parties entered into an oral agreement in which the defendant had agreed to re-convey the plaint schedule property on payment of Rs. 1,00,000/- with interest at the rate of 12% per annum. Towards the oral karar, the plaintiff paid Rs. 10,000/- on 5.3.2005 and Rs. 14,500/- on 30.7.2005 as advance. On 4.8.2006, the plaintiff requested the defendant to reconvey the plaint schedule property after receipt of the amount due to him. The defendant refused to execute the sale deed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the presumption with regard to the principle that possession follows title, applicable to this case since the title of the defendant covered by Exhibit B1 deed of assignment was obtained from the plaintiff himself, which itself speaks volumes about the transfer of title and possession of the plaint schedule properties? 3. In the absence of pleadings or evidence impugning the validity or execution of Exhibit B1 deed of assignment, instead of admitting its execution, whether the plaintiff is entitled to the benefit of Section 91 or the proviso to Section 92 of the Evidence Act to tender evidence assailing the execution and the validity of Exhibit B1, and whether the appellate court is justified in reversing the decree and judgment of the trial court accepting the evidence rendered by the plaintiff as sufficient to rebut the presumptive value of Exhibit B1 of assignment. 4. Is not the plaintiff burdened to prove the borrowal of an amount of Rs. 1 lakh from the defendant, in exchange of execution of Exhibit B1 deed of assignment, and in the absence of any evidence with regard to the borrowal of an amount of Rs. 1 lakh and also to substantiate the plea of oral agreement for sale, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n true, the market value of the entire plaint schedule property would have been much more higher than the consideration stated in Ext. B1; (4) The plaint schedule property is lying contiguous with the remaining properties owned and possessed by the plaintiff which supports the case of the plaintiff that he has been in possession of the plaint schedule property; (5) The fact that prior title deeds were also obtained by the plaintiff along with Ext. B1 indicates that the transaction was not a sale but, a money transaction.; (6) The evidence regarding a complaint before the Police, wherein the defendant had promised to reconvey the property on payment of the amount with interest, would probabilise the case of the plaintiff. 12. The learned counsel for the appellant/defendant contended that Ext. B1 sale deed, a registered document, carries a mandatory presumption under Section 34(2) of the Registration Act with regard to execution and registration and in the absence of pleadings and cogent evidence tendered from the side of the respondent/plaintiff to rebut such a presumption, the First Appellate Court was not justified in granting a decree for specific performance. The learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DW1 admitted that he had received Rs. 24,500/- but it was towards the value of a jack fruit tree sold to the plaintiff. According to DW1, he had paid Rs. 1,78,500/- towards the sale consideration of the plaint schedule property at the time of execution of Ext. B1. He deposed that he had received Exts.B2 and B3, the prior title deeds in respect of the property, at the time of the assignment of the property. DW1 remitted land tax in respect of the property as per Ext. B4. 16. Going by Ext. B1, what is evident is that an outright sale as provided under Section 54 of the Transfer of Property Act had taken place. Ext. B1 is a registered sale deed. The specific case of the defendant is that he had no money transaction as pleaded by the plaintiff. Both sides adduced evidence in support of their rival contentions. Apart from the interested testimonies of PWs 1 and 2, the plaintiff and his wife, there is no other convincing evidence or circumstance to enter into a conclusion that an oral agreement in respect of the sale of the property had taken place on 25.8.2004. In Grasim Industries Ltd. v. Agarwal Steel [(2010) 1 SCC 83] the Apex Court held that when a person signs a document, there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt (para 12) that "there is no clear cut evidence for proving the terms of the oral contract which is alleged to have been entered into by the plaintiff and the 1st defendant". This finding alone should have been sufficient to non-suit the plaintiff. Therefore we agree with the High Court, though for reasons other than those mentioned by it that the plaintiff has failed to prove the agreement pleaded in the plaint." 21. In Balakrishnan v. Yakoob and Others [2001 KHC 32], this Court held that even though preponderance of probability constitutes sufficient ground for decision in civil proceedings there must be cogent and reliable evidence to base a suit for specific performance on the basis of an oral agreement. In Ummer and another v. Kunhava alias Ahammedkutty [2007 (4) KHC 315], this Court held that a decree for specific performance could not be granted based on an oral agreement supported by evidence unless there is cogent evidence to prove the agreement. 22. In Brij Mohan and Others v. Sugra Begum and Others [(1990) 4 SCC 147) the Apex Court held that in a case where the plaintiffs come forward to seek a decree for specific performance of a contract of sale of immova ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g over of the prior title deeds in respect of the plaint schedule property to the defendant indicates that the transaction was not one for purchase of suit property but a money transaction. The First Appellate Court relied on the decision in Sarada v. Divakara Kurup (2012 (4) KLT SN 152 (C.No.148) in support of this finding. In Sarada's case, this Court was dealing with a case in which the genuineness of an agreement for sale in respect of a property was under challenge. The plaintiff therein pleaded that the original title deeds were also handed over along with the agreement for sale. In that situation, this Court held that handing over the original documents to the respondent at the time of execution of the sale agreement was a circumstance that indicated that the transaction was not one for purchase of the suit property but a money transaction. The ratio in Sarada's case (supra) is distinguishable on the facts. In the present case, it was after the execution of the sale deed the prior title deeds were handed over to the defendant. While dealing with the finding of the First Appellate Court in this regard, it is relevant to refer to subsection (3) of Section 55 of the Transfer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oral evidence in regard to the nature of the document. But, in the present case, the plaintiff did not discharge the burden of proof in respect of the property thereof, which was certainly on him. In the present case, a heavy burden is cast on the plaintiff to prove what actually happened on 25.8.2004 and with regard to the borrowal of Rs. 24,500/- and execution of Ext. B1 deed of assignment, the plaintiff failed to discharge the burden cast on him. 28. The First Appellate Court misconstrued the evidence and failed to draw necessary presumptions and inferences on the pleadings and evidence. The First Appellate Court lost sight of the settled principle that a decree for specific performance could not be granted based on an oral agreement unless there was cogent evidence to prove the same. The finding of the First Appellate Court that the plaintiff is in possession of the plaint schedule property is contrary to the evidence available. The First Appellate Court was not justified in reversing the decree and judgment of the trial Court. The Court also lost sight of the evidentiary burden on the plaintiff by invoking the proviso under Section 92 of the Evidence Act assailing the executi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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