Section 92 of Evidence Act not prevent from establishing the true nature of the transaction: SC

The plaintiff filed a suit (Special Civil Suit No. 55/77/I) seeking possession and accounts from his younger brother-defendant No. 1 who was given the southern portion of the property in question by virtue of a gift deed dated 10.5.1957 executed by the parents of the parties involved. The northern portion was allotted to the plaintiff by the same gift deed. Jose Francisco Pinto earlier sold his one of his properties to the Plaintiff due to failure in timely discharging the debts raised by him in the year 1962. Subsequently, the plaintiff purchased the defendant's property from him by a registered sale deed after settling the creditors of defendant no. 1 so as to save their ancestral property. Defendant Nos. 3 to 9 are occupying the premises as tenants of the six tenements existing in the premises. The plaintiff had pleaded that the suit property after the same was purchased from the defendant No. 1 and his wife Defendant No. 2, the said defendants had created  several charges and encumbrances thereon and the plaintiff to prevent its compulsory auction-sale. An Advocate's notice was sent by registered post on 6.11.1976 calling upon defendant 1 to surrender the property. Therefore, a suit was filed claiming vacant possession of the house. Another suit, namely, Special Civil Suit No. 71/80/I[1] was filed by the respondents on 1.7.1980 against the appellants, inter alia, on the ground that they had never sold the southern half of the suit property to the appellants nor intend to sell the same to any person.  It was also claimed that they had never executed any sale deed in favour of the appellants nor received any amount as consideration of the sale. Lower Court held that the defendants had failed to prove that the sale deed was obtained by fraud. The second suit filed by the respondents was to declare the registered sale deed dated 14.9.1970 as null and void.  The second suit was dismissed. The respondents herein filed two appeals from the judgment and decree passed in the first and second suit, both tried together and decided both the judgment and decree were allowed by the learned First Appellate Court that the sale is null and void for want of consideration. The legal representatives of the plaintiff have appealed before this Court, aggrieved by the judgment and decree of the First Appellate Court dated 6.7.2005 affirmed by the High Court in the Second Appeal on 16.8.2006. Appellants approached Apex Court. Apex court observed 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 .The parties are in near relations, the appellant No.1 being the elder brother and the sale was executed to help his younger brother who was facing auction of the property gifted by the parents of the parties.  Even the defendants’ witnesses have admitted that there was a notice of Court auction of the property in question by beat of drum.  Therefore, if elder brother had come to the help of the younger brother, discharging his debtors and executing a sale deed mentioning a nominal sale consideration, it cannot be said to be a sale without consideration. Ignorance of the nature of the document on which his signatures were obtained not an instance of misrepresentation or a fraud in the facts of the present case which would vitiate a sale deed executed and registered with the Sub-Registrar. Held Appellate Court are clearly erroneous in law . Appeal allowed. 

D.D-SEPTEMBER 30, 2021.

PLACIDO FRANCISCO PINTO (D) by LRs & ANR.  VERSUS  JOSE FRANCISCO PINTO & ANR.