HONOURABLE MRS.JUSTICE N.MALA S.A.[MD].No.424 of 2008 and MP.[MD].No.1 of 2008 Sivan Pandi S/o.Esakki Thevar, 23-A, Subash Chandra Bose Street, Karungulam, Melapalayam, Palayamkottai Taluk. … Appellant / Plaintiff Vs 1. P.Murugaiah, S/o.Pandaram 2.Minor Sumathi, D/o.P.Murugaiah, 3.Minor Subha, D/o.P.Murugaiah (R2 and R3 represented by father 1st respondent) (All residing at Thanthai Periyar Street, Karungulam, Melapalayam, Palayamkottai Taluk). … Respondents / Defendants PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code, against the judgment and decree dated 26.10.2007, passed in A.S.No.58 of 2006 on the file of the 1st Additional District Court, Tirunelveli modifying the judgment and decree dated 28.04.2006, passed in O.S.No.28 of 2004, on the file of the 1st Additional Sub Court, Tirunelveli. For Appellant : Mr.S.Meenakshi Sundaram Senior Advocate for Mr.T.Selvan For Respondents : No appearance JUDGMENT Against the modifying judgment of
THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 24.02.2026
PRONOUNCED ON : 30.04.2026
CORAM:
THE HONOURABLE MRS.JUSTICE N.MALA
S.A.[MD].No.424 of 2008
and
MP.[MD].No.1 of 2008
Sivan Pandi
S/o.Esakki Thevar,
23-A, Subash Chandra Bose Street,
Karungulam,
Melapalayam,
Palayamkottai Taluk. … Appellant / Plaintiff
Vs
1. P.Murugaiah,
S/o.Pandaram
2.Minor Sumathi,
D/o.P.Murugaiah,
3.Minor Subha,
D/o.P.Murugaiah
(R2 and R3 represented by father 1st respondent)
(All residing at
Thanthai Periyar Street,
Karungulam, Melapalayam,
Palayamkottai Taluk).
… Respondents / Defendants
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code, against the judgment and decree dated 26.10.2007, passed in A.S.No.58 of 2006 on the file of the 1st Additional District Court, Tirunelveli modifying the judgment and decree dated 28.04.2006, passed in O.S.No.28 of 2004, on the file of the 1st Additional Sub Court, Tirunelveli.
For Appellant : Mr.S.Meenakshi Sundaram
Senior Advocate for Mr.T.Selvan
For Respondents : No appearance
JUDGMENT
Against the modifying judgment of the lower Appellate Court, the plaintiff has filed above second appeal. The plaintiff is aggrieved by the judgment of the lower Appellate Court, in so far as the relief of declaration of title, recovery of possession and damages stood rejected.
GIST OF PLEADINGS:
2.The suit property is a house (Door No.25, Ward 34, Tirunelveli Corporation). Minor defendants 2 and 3 are the children of the 1st defendant and they form a Joint Hindu Family. The suit property was acquired by the 1st defendant under a partition deed in Ex.A1, dated 17.01.1989. The plaintiff stated that the 1st defendant in his capacity as the Karta of the Joint Hindu Family, borrowed a sum of Rs.32,000/- for his family expenses and executed a mortgage deed under Ex.A2 on 04.06.1998, in favour of the plaintiff, agreeing to repay the same with interest. Whileso, the 1st defendant approached the plaintiff and expressed his intention to sell the suit property for settling an antecedent mortgage debt of Rs.7,500/- payable to one Jamuna Rani. The plaintiff agreed to purchase the suit property for a sale consideration of Rs.1,37,656/- by acceding to the 1st defendant’s request to discharge the mortgage debt under Ex.A2, at a later point of time. According to the plaintiff the entire sale consideration was paid on 10.09.2000, and prior to the registration of the sale Deed on 11.09.2000, the defendant executed a Yadhast/Memorandum, Ex.A3 on 10.09.2000, acknowledging the receipt of the entire sale consideration and seeking 3 months time to vacate the suit property. Thereafter, the 1st defendant as Karta of the Joint Hindu Family, executed the registered sale Deed, Ex.A4 (Ex.A.15 original) on 11.09.2000. However, the 1st defendant failed to keep up his promise of repaying the mortgage loan and vacating the premises by the end of December 2000. When the plaintiff questioned the 1st defendant on his breach of promise, he prayed for further time to vacate and also executed a pronote, Ex.A5 dated 21.01.2001, for repayment of Rs.32,000/- borrowed by him from the plaintiff. Since the 1st defendant was acting against the interest of the plaintiff and started harassing him by lodging false complaints, the plaintiff issued a legal notice to the defendant on 22.07.2002, calling upon him to vacate and surrender possession of the suit property and repay the loan. The defendant neither complied with the demands of the plaintiff nor issued a reply notice and therefore, the plaintiff left with no other alternative filed the suit for declaration of his title, recovery of possession, damages for unauthorised use and occupation and for recovery of the loan amount of Rs.32,000/- with interest.
3.The 1st defendant contested the suit contending inter alia, that he had never borrowed Rs.32,000/- from the plaintiff and that he had borrowed only Rs.20,000/-, and that amount was repaid, albeit in excess. The defendant contended that the plaintiff was a money lender and that the plaintiff by exploiting the poverty and ignorance of the 1st defendant created many documents. The defendant contended that none of the documents relied on by the plaintiff were legally valid. The 1st defendant contended that the plaintiff in collusion with Jamuna Rani, who was illegally running a chit business, created the suit documents. The defendant contended that mortgage deed in favour of the plaintiff was not true and also that the sale Deed dated 11.09.2000, was illegal and unsustainable. The defendant denied the execution of the Pronote by contending that it was a fabricated document. The defendant contended that as he was in lawful possession of the suit property, the plaintiff was not entitled to the relief of declaration, recovery of possession and damages. The defendant therefore prayed for the dismissal of the suit.
4.The trial Court on the basis of the pleadings framed the following issues:
1) Whether the plaintiff is entitled for declaration as prayed for?
2) Whether plaintiff is entitled for past and future mesne profits?
3) Whether plaintiff is entitled for interest?
4) Whether plaintiff is entitled for decree as prayed for?
5.The trial Court on consideration of the recitals in Ex.A15, the Sale Deed, and the contradictions in the evidence of the plaintiff and his witnesses, found that the Sale Deed was not supported by consideration and therefore on issue no.1, held that the plaintiff was not entitled to the relief of declaration of title.
6.The trial Court on issue no.2, held that though the plaintiff claimed purchase from the 1st defendant as Kartha of the Joint Hindu Family, the documents (Ex.A.1 & Ex.A.15) did not support this. The trial Court also found that the property was acquired under a partition, making it the self-acquired property of the 1st defendant. The trial Court rejected Ex.A.5 as not properly proved and hence found that the plaintiff failed to prove payment of sale consideration (Rs.1,37,000/-). The trial Court opined that the sale said to have been made without discharging the mortgage was unacceptable as no prudent person would fail to adjust the loan against the sale consideration. The trial Court found that the plaintiff had misused the defendant’s signatures obtained during loan transactions to create documents without valid consideration. Hence, the claim for ownership, possession, and mesne profits was rejected.
7.On issue nos.3 and 4, the trial Court in view of P.W1’s admission that no consideration passed at the time of execution of the Promissory note and considering that no mention was made in it regarding past consideration, held that the Promissory note was invalid. The trial Court held that the plaintiff’s claim of purchasing the property by paying full consideration was unbelievable, particularly when the mortgage amount was not adjusted and also because the sale deed (11.09.2000) did not mention about payment of consideration. The trial Court concluded that the plaintiff misused the defendant’s signatures obtained during loan transactions, suppressed facts, and did not come to Court with clean hands. The trial Court on such findings dismissed the plaintiff’s suit.
8.The plaintiff, whose suit was dismissed, filed an appeal challenging the decree declining the reliefs of declaration of title, recovery of possession, mesne profits and other reliefs.
9.The lower Appellate Court framed the necessary issues. The lower Appellate Court rejected Ex.A3, since on comparison of signatures between Ex.A3 and Ex.B1, it found that there was variance of signature of the defendant in the two documents. The lower Appellate Court found the conduct of the plaintiff strange for not adjusting the outstanding mortgage debt under Ex.A2, from the sale price of Ex.A15, moreso, since the plaint allegations revealed that the defendant offered to sell the suit property only to discharge the outstanding debts. The lower Appellate Court relying on the judgment of the Hon’ble Supreme Court in the case of Bajranglal Shivchandrai Ruia vs. Shashikant N. Ruia and others, reported in (2004) 5 SCC 272 held that in a suit for possession based on title acquired under a revenue auction sale, the defendant could plead invalidity of the sale without seeking to setaside it. The lower Appellate Court found that Ex.A15 was not genuine and that it was entered into without an intention to transfer title to the property. The lower Appellate Court found that Ex.A5, Promissory note was replaced Ex.A2, and therefore it was supported by consideration. The lower Appellate Court therefore partly allowed the appeal by directing the defendant to pay to the plaintiff the debt of Rs.32,000/- along with 18% interest per annum from 21.01.2001, till the date of suit, and thereafter 6% interest per annum till realisation.
10.The trial Court dismissed the suit in toto and the Appellate Court partly decreed the suit. Aggrieved by the rejection of the reliefs of declaration of title, recovery of possession and for damages, the plaintiff has filed the above second appeal.
11.At the time of admission of the second appeal the following substantial question of law was framed by this Court.
“Whether the judgment and decree of the Court below is perverse on account of its misconstruction of the document in Ex.A.4?”
12.Despite service of notice and several opportunities given to the respondent, there was no representation for the respondents and hence the second appeal was heard in their absence.
13.The 1st defendant filed cross objection in CMP.Sr.No.23512 of 2008, challenging the judgment of the lower Appellate Court in directing him to pay the sum of Rs.32,000/- with interest at 18% per annum from 21.01.2001 till 19.01.2014 (date of suit) but the Cross Objection appears to have been dismissed for default at the SR stage.
14.The learned counsel for the appellant submitted that the Court’s below erred in not drawing a presumption on the validity and genuineness of the suit sale Agreement, which was registered in accordance with the provisions of the Registration Act. The learned counsel further submitted that the Court’s below failed to note that extraneous evidence to ascertain the true intention of the parties in the absence of any ambiguity in the terms of the registered document was inadmissible under the provisions of Section 91 and 92 of the Evidence Act. The learned counsel therefore submitted the Court’s below by misapplying the legal principles and by misconstruing the document Ex.A4, returned a perverse finding, which deserved to be set aside in the second appeal.
15.The first question is whether for construction the document Ex.A4 (Ex.A15) the surrounding circumstances, oral evidence relating to the intention of the parties and regarding the failure of consideration could be looked into, in the teeth of the provisions of Section 91 and 92 of the Evidence Act, which bars the receipt of oral evidence, when the terms of the contract are reduced into writing.
Section 92 of the Indian Evidence Act, 1872 reads as follows:
“92. Exclusion of evidence of oral agreement.-
When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, 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, varying, adding to or subtracting from, its terms :
Proviso (1).– Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, [want or failure] of consideration, or mistake in fact or law.
Proviso (2).– The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.
Proviso (3).– The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
Proviso (4). – The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
Proviso (5).– Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved: Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.
Proviso (6).– Any fact may be proved which shows in what manner the language of a document is related to existing facts.”
16.The first provisio to Section 92 speaks of facts invalidating the document. In the present case the document, Ex.A4 is assailed on the grounds of non-passing of consideration and absence of any intention on the part of the defendant to convey the property in favour of the plaintiff. In view of this Court, under the first proviso to Section 92, oral evidence to establish the above grounds is permissible. In this regard useful reference can be made to the following judgments:
1) (1979) 4 SCC 60 (Krishnabai Bhritar Ganpatrao Deshmukh Vs. Appasaheb Tuljaramarao Nimbalkar and others)
2) (2007) 11 SCC 660 (Hindustan Fasteners (P) Ltd. Vs. Nasik Workers’ Union)
3) AIR 1988 SC 367 (Uday Chand Dutt (deceased) through his lrs. Vs. Saibal Sen (deceased) through his lrs.)
In (1979) 4 SCC 60, it was held as follows:
“25. We are unable to accept Shri Desai’s argument that the process adopted by us would involve contravention of Section 92 of the Evidence Act.
26. Firstly, in this process, which is essentially one of construction of the deed, Ex. 39, no question of contradicting, varying, adding to or subtracting any term of the disposition is involved….
27. Secondly, there is ample authority for the proposition that when there is a dispute in regard to the true character of a writing, evidence de hors the document can be led to show that the writing was not the real nature of the transaction, but was only an illusory, fictitious and colourable device which cloaked something else, and that the apparent state of affairs was not the real state of affairs.”
In (2007) 11 SCC 660, the Hon’ble Supreme Court held as follows:
“26. Construction of a document so as to ascertain the intention of the parties is in no way controlled by the provisions of Section 91 or 92 of the Evidence Act. The document has to be interpreted applying the known principles of construction and/or canons.”
In AIR 1988 SC 367, it was held as follows:
“8……notwithstanding the provisions of Section 92 of the Evidence Act, the Court was bound to examine the surrounding circumstances to find out the true nature of the transaction. He drew our attention to the definition of the term “loan” contained in Sub-section (12) of Section 2 of the aforesaid Act. A perusal of that definition shows that any transaction which is in substance a loan except transactions of any of the categories set out in clauses (a) to (i) of that sub-section is included within the meaning of the term “loan” for the purposes of the said Act. In our view, there is no need to consider this question at all because both the courts below have, in fact, proceeded on the footing that notwithstanding the clear terms of the said document, they were bound to examine the evidence relating to the surrounding circumstances to find out the true nature of the transaction in question.”
17.The trial Court as well as the lower Appellate Court on the basis of the oral evidence of the plaintiff and the attendant circumstances, held that the defendant had no intention to sell the suit property. The lower Appellate Court, placing reliance on the testimony of P.W1, further found that the execution of Ex.A15 was occasioned by the repeated complaints lodged by the 1st defendant alleging interference with his possession. The lower Appellate Court went to the extent of observing that the plaintiff, who admittedly is a money lender, had resorted to dubious methods for securing return of loans. On a proper appreciation of the evidence on record, both the Courts below returned a categorical finding that there was no intention on the part of the defendant to sell the suit property and that the plaintiff, taking advantage of the 1st defendant’s illiteracy and poverty probably obtained his signatures from him and misused the same.
18.On the aspect of passing of consideration, both the Court’s below have concurrently held that the sale Deed was not supported by consideration. The trial Court, upon perusal of page 3 of the document, found that the sale consideration had not been paid on the date of execution of the document. It was the specific case of the plaintiff that one day prior to the registration of the sale Deed Ex.A15, Ex.A3 was executed by the 1st defendant acknowledging receipt of the sale consideration. In as much as it is the plaintiff’s own case that the consideration was not paid under Ex.A15, the oral evidence of the plaintiff (P.W1) and his witnesses, P.W2 & P.W3, the attestors to Ex.A15 was rightly examined to ascertain if the sale consideration had in fact passed. This Court is of the view that in the absence of passing of sale consideration, the sale would be rendered invalid, and in such circumstances, having regard to proviso 1 of Section 92 of the Evidence Act, the Courts below were justified in considering the oral evidence. This Court finds that on passing of sale consideration, the Court’s below meticulously analysed the evidence on record and arrived at a concurrent finding that the sale Deed was not supported by consideration. The lower Appellate Court, in particular, has relied on upon multiple circumstances to reach the conclusion that the sale Deed was not supported by consideration.
19.Under the circumstances, this Court finds no perversity or illegality in the concurrent findings of the Court’s below, warranting interference. Accordingly, the findings of the Court’s below are confirmed. Further in the facts and circumstances of the present case, the judgment relied on by the learned counsel for the appellant is found to be inapplicable.
20.In view of the above discussions, this Court answers the Substantial Question of law against the plaintiff. This Court finds no perversity either in appreciation of the evidence or the application of law by the Court’s below and hence the second appeal is found to be meritless.
21.Accordingly, the second appeal is dismissed confirming the judgment and decree of the lower Appellate Court dated 26.10.2007, on the file of the I Additional District Court, Tirunelveli. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
30.04.2026
dsn
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
Speaking Order/Non Speaking Order
To
1.The I Additional District Court, Tirunelveli.
2.The I Additional Sub Court, Tirunelveli.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court
Madurai.
N.MALA, J.
dsn
Pre Delivery Judgment in
SA.[MD].No.424 of 2008
30.04.2026
