Section 92 Evidence Act - Oral Evidence Admissible Only To Show That The Document Is Sham: Supreme Court

The Supreme Court has observed that Section 92 of the Indian Evidence Act bars giving of oral evidence on a written document except to prove that the document reflects a sham transaction.

"...the oral evidence of a written agreement is excluded except when it is sought to be alleged the document as a sham transaction", a bench comprising Justices Hemant Gupta and V Ramasubramanian observed in the case  Placido Francisco Pinto (D) by LRs & Anr vs Jose Francisco Pinto & Anr.

The Court observed that oral evidence is admissible under Section 92 of the Indian Evidence Act to show that the document is a sham deed.

The judgement authored by Justice Hemant Gupta made the observations in a matter dealing with a property dispute wherein it was alleged that the sale deed was obtained by fraud and misrepresentation.

Factual Background

The Appellant and Respondent were brothers who had inherited the two-halves of an ancestral property from their father. The Respondent fell into debt and upon failure to discharge his debts the Appellant repaid the debt on the Respondent's behalf. Subsequently, the Appellant purchased the Respondent's portion of the property by a registered sale deed after settling the creditors. Subsequently, the Appellant filed a suit relying upon the sale deed and calling upon the Respondent to vacate the property. The Respondent pleaded that they had never executed any dale deed in favour of the Appellant nor received any amount for consideration of the sale.

The Trial Court held that the evidence presented by the Respondents failed to prove that the sale deed was obtained by fraud. It also rejected the second suit holding that it is barred by the principle of res judicata.

Thereafter, upon appeal the First Appellate Court held that

• The Appellant had produced oral evidence and such oral evidence is barred by S.91 of the Evidence Act as there was no recital in the sale deed that he had paid all dues.
• The Appellant has not pleaded that he had paid Rs.3000 in consideration under the sale deed and therefore, the sale deed is null and void for want of consideration.
• The signatures on the sale deed were obtained by misrepresentation and fraud.

The First Appellate Court relied on oral evidence produced by the Respondents to show that sale deed was obtained by misrepresentation. The First Appellate Court's findings were affirmed by the High Court.

Assailing this judgment and order of the First Appellate Court and the High Court, the Appellant contented that it was incorrect to say that the sale deed was without consideration.

The Bench held that it was incorrect to say that the sale deed was without consideration. Relying on S.25 of the Indian Contract Act, 1872 it held that:

"Section 25 of the Contract Act is to the effect that an agreement without consideration is void but if a document is registered on account of natural love and affection between the parties standing in a near relation to each other, then such an agreement is not void." (Para 20)

Observing that the parties are in near relations and in the present case the elder brother had come to the help of younger brother by discharging his debts, the Bench held that the sale deed cannot be said to be without consideration.

Further, the Bench affirmed the Appellant's reliance on Bellachi (Dead) by LRs v Pakeeran, which held that:

"The burden of proof regarding the genuineness of document lies upon the vendee and that in case of a registered document, there is a presumption that it was executed in accordance with law."(Para 17)

In response to the First Appellate Court's finding that the evidence in support of sale deed was not pleaded in the plaint filed by the Appellant, the Bench observed that:

"Order VI Rule 2 of the Code of Civil Procedure, 1908 is to the effect that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies upon for his claim or defence as the case may be, but not the evidence by which they are supposed to be proved. Appellant No.1 has relied upon the sale deed which contains the recital of payment of Rs.3,000/- as the sale consideration. The evidence in support of such sale deed was not required to be pleaded in the plaint filed by the appellant." (Para 23)

In response to the Respondents argument that the sale deed was obtained by misrepresentation and fraud, the Bench held that:

" in terms of Order VI Rule 4 of the Code,in all cases in which the party pleading relies on any misrepresentation, fraud, or undue influence shall state in the pleadings the particulars with dates and items in the pleadings. The extract from the written statement or the plaint does not show that there is any pleading of misrepresentation or fraud". (Para 23)

In response to Senior Advocate Dhruv Mehta's reliance on Smt. Gangabai w/o Rambilas Gilda vs Smt. Chhabubai w/o Pukharajji Gandhi and Roop Kumar v. Mohan Thedani, to argue that the Respondents can lead oral evidence to rebut the contents of the document as per S.92 of the Evidence Act , the Bench observed that:

"...it was open to the plaintiff to assert that the document was never intended to acted upon and the document is a sham. Such question arises when one party asserts that there has been a different transaction altogether than what is recorded in the document. It is for that purpose oral evidence is admissible." (Para 25)

Further, the Bench observed that the import of the Roop Kumar Case would be that:

"The oral evidence of a written agreement is excluded except when it is sought to be alleged the document is a sham transaction." (Para 27)

Thus, having distinguished the findings of Roop Kumar Case and Gangabai Gilda case with respect to S.91 and S.92 of the Evidence Act, the Bench held that the Respondents could not lead oral evidence to argue that the sale deed was obtained by fraud. The held that:

"There is no oral evidence which could prove fraud, intimidation, illegality or failure of consideration to permit the respondents to lead oral evidence to dispute the sale deed" (Para 29)

"The respondents have not alleged any fraud in their suit or in the written statement in the suit filed by appellant No. 1. The feigned ignorance about the nature of document cannot be said to be an instance of fraud. In the absence of any plea or proof of fraud, respondent No.1 is bound by the written document on which he admitted his signatures and of his wife. " (Para 29)

The Bench set aside the recordings of the First Appellate Court and the High Court and restored the decree passed by the Trial Court.

Case: Placido Francisco Pinto (D) by LRs & Anr vs Jose Francisco Pinto & Anr

Case No: Civil Appeal No.1491 of 2007

Citation: LL 2021 SC 528

Coram: Justice Hemant Gupta, Justice V. Ramasubramanian.

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