Induben Alias Indirabaen Ramanlal Thakkar ­Defendants

1. The present First Appeal has been filed by the appellant being aggrieved and dissatisfied with the judgment and order passed in Summary Suit No.3132 of 1987 by the Learned Judge, Court No.9, Ahmedabad dated 21st November, 1994 on the grounds stated in the memo of Appeal inter alia that the Court below has failed to appreciate that the relationship between the plaintiff and the defendant was established and, therefore, the plaintiff had landed amount to the defendant. It is also contended that the Court below has failed to appreciate that the Annexures, which were placed before the Court, were concocted and have failed to appreciate material and evidence on record.

2. The appellant viz., Manilal R. Patel, who appears as party­in­person, is present and submitted that amount of Rs.1.00 lac was landed to the respondent by cheques (two cheques), which have been encashed by the respondent. He referred to the evidence and discussion in the impugned judgment and tried to submit that the Court below has failed to appreciate the evidence. He submitted that the document, Exh.34 is fabricated. He referred to the document, Exh.34 and the pleadings, particularly, reply to the notice at Exh.35 and also the leave to defend affidavit filed by the defendant. He submitted that the document, which is referred to, is not properly stamped and, therefore, as per provisions of Section 35 of the Indian Stamp Act, it is not admissible in evidence and the Court below has erred in exhibiting and relying upon the same. He also referred to the deposition of the defendant, Exh.49 and submitted that there is an admission that there was transaction for lending money as admitted in the cross­examination. It was submitted that the document, Exh.38 has been executed and it has been stated that after reading and verifying the same, it was signed. Therefore, he submitted that the Court below has failed to appreciate the said aspect and has committed an error in construing the document like Exhs.34, 38 etc. He submitted that though the premises was purchased, admittedly the separate amount of Rs.28,650/­ have been paid. He submitted that the premises were sold by the defendant to the plaintiff due to economic condition and, therefore, he submitted that the Court below has committed an error and the impugned judgment and order may be set aside. He has also referred to written arguments submitted before the Court.

3. Learned counsel, Mr.K.N. Thakkar referred to the material and evidence and submitted that as could be seen from the entire facts and evidence on record that there was a transaction regarding the premises, which was purchased and the payment has been admittedly made towards the part performance of the contract or the agreement to purchase the premises. Learned counsel submitted that two cheques were given towards the part payment of the consideration. He also submitted that in fact, the evidence of the defendant at Exh.49 would make it very clear that there was a transaction for the purchase of the premises and the payment was made by cheque for the premises and it was also understood that loan or dues of the Society would be paid, for which, separate amount has been paid. Therefore, it was submitted that the part of the consideration was received directly by the defendant and the part was paid to the Society.

Learned counsel, Mr.Thakkar submitted that the cheques were given in the name of the defendant as the premises was in the name of the defence in record and, therefore, it was drawn in the name of the defendant. He submitted that if it was given or money was lended to the husband of the defendant, cheques would not have been in the name of the defendant. He submitted that there is no evidence regarding the licence under the Money Landers Act. There is no evidence regarding lending of money. He has referred to pleadings as well as evidence and submitted that the premises in question at Upasana was agreed to be sold by her to the plaintiff­appellant in the year 1984 and, therefore, he new him. It is specifically stated that the allegation regarding the earlier acquaintance due to ticket of drama or for borrowing money is without any basis. She has categorically stated that the amount was paid towards the part payment of the consideration towards the sale of the premises in question and she has also stated that loan was to be paid by the purchaser­plaintiff­appellant. She has also stated that how the transaction took place and in the cross­examination, the suggestion regarding the furniture etc. have been denied. She has also explained that when the premises was sold to the appellant­plaintiff, they were residing at different place at Shivalaya Colony. At the same time, she has stated that the furniture was prepared at the premises in question. She had sufficient income as the husband was also earning and there was a rental income. It is in these circumstances, learned counsel, Mr.Thakkar has stated that in fact, the appellant­plaintiff is making different story about the money lending for which Suit for recovery has been filed. On the other hand, he has been saying about the amount, which was lent for the furniture without any supporting any material and evidence. He submitted that on the other hand, the defendant has sufficient evidence with regard to the transaction regarding the sale of the premises, for which, the document is also executed, which itself prima­ facie suggests that the payment would have been made towards the consideration. He has submitted that as per the provisions of the Transfer of Property Act, the part performance of the agreement or the contract, payment would be made and in view of clear evidence of the defendant, the impugned judgment is just and proper. He submitted that the plaintiff has not placed on record any evidence to support his theory about his money having been lent or advanced to the defendant and/or her husband.

4. In view of the rival submissions, it is required to be considered whether the present Appeal can be entertained or not.

5. Though the submissions have been made by party­in­ person, he has been repeatedly harping on the fact that the documents, which have been placed on record, are inadmissible because of the provisions of the Registration Act. However, it is well accepted that insufficient stamp would not make the document void and inadmissible in evidence. The submission that the document was insufficiently stamped would also not much relevance as it is difficult, which could be cured and even when the registration is required, the provisions of Section 49 of the Registration Act provides that such document would be admissible. Therefore, as per the provisions of Section 51 of the Transfer of Property Act, when the transaction has taken place and consideration has been accepted in performance thereof, the possession has also parted. The submission that the writing or document, which has been exhibited, is void and could not have been relied upon cannot be believed or accepted. Moreover, the Hon'ble Apex Court in a judgment in case of Union of India & Ors. Vs. Exim Rajathi India Pvt. Ltd., reported in (2009) 16 SCC 263 has clearly observed that the document, which is not duly stamped, can be admitted in evidence. Further, once the document is made admissible, there is no provisions to de­exhibit. Again main thirst of the argument is that the money was lent or advanced to the defendant, for which, Suit has been filed, however, there is no iota of evidence to support such theory. On the other hand, the submissions made by the learned counsel for the defendant that two cheques, which have been paid, were towards the part payment of the consideration, for which, sale of the premises is supported by the documentary evidence by sale deed itself, which has been executed between the parties like the plaintiff and the defendant.

Therefore, if the recital in the document is seen, it would make it clear that the payment was made by the appellant­plaintiff towards the consideration for the sale of the premises at Upasana Society, which he had purchased. Further, the part of the amount was paid to the defendant and the loan was to be paid is also evident from the evidence. Much emphasize is given on Exh.54, which is the receipt that it is concocted or there was some manipulation. However, as discussed in the judgment, the notice at Exh.53 was given for the production of the original receipt which the appellant failed to produce and, thereafter, the Court below exhibited the carbon copy at Exh.54. Therefore in light of the clear evidence with regard to the transaction of the sale of the premises, for which, the payment was made by way of consideration and not by way of any advances, the submission made by the party­in­person cannot be accepted. Further, he has referred to the evidence of the defence with much emphasizing on the cross­examination that there is an admission about the lending of money is also misconceived as the evidence has to be read as a whole and one cannot be pick up one line or few words and thereby tried to rest the case entirely on such statement ignoring other material and evidence including the testimony of the defendant herself if read as a whole. It may be noted that the documentary evidence in the form of sale deed, Exh.38 itself would be sufficient to disbelieve the case of the plaintiff. Further, the evidence of the Harivallabh Shah, Exh.45, who is the Secretary of the Society has supported the evidence of the defendant regarding the transaction of the sale of the premises to the respondent­defendant. He has given the detailed account and also further specifically stated that amount of Rs.26,000/­ was accepted by the plaintiff towards the consideration and the name of the respondent­defendant was taken on record. Therefore, when the plaintiff has failed to establish that any amount was advanced by him to the defendant or her husband by any evidence, the impugned order cannot be said to be erroneous. It is well accepted that the party in person has to stand on his own feet by sufficient evidence in support of the case. In the facts of the present case, there is no such evidence and on the contrary, the theory canvassed by the defendant is supported by other evidence. It is in these circumstances, it cannot be said that the impugned order is erroneous, which would call for any interference by this Court. Therefore, this Court is in complete agreement with the findings arrived at and reasons recorded. Therefore, the present Appeal deserves to be dismissed and accordingly stands dismissed.

Sd/­

(RAJESH H.SHUKLA, J.)

/patil