Sahidullah Munshi, J. - (1.) This second appeal is at the instance of the plaintiffs against a judgment of reversal. The plaintiff/appellant filed a suit for a declaration that the disputed transaction was a loan transaction and loan in substance for Rs.1500/- only, together with interest of Rs.450/. The disputed sale deed was not an out and out sale and the agreement jointly constituted mortgage by a conditional sale. The plaint case in short is that the original plaintiff Kalipada Malik mortgaged the suit property with original defendant after receiving an amount of Rs.1500/- as loan and for this purpose an ostensible sale deed and an agreement for re-conveyance were executed wherein the amount of interest was fixed at Rs.450/- and that a total amount of Rs.2,000/- was mentioned in the ostensible sale deed agreed at Rs.1500/- and Rs. 450/- as interest and Rs.50/- as cost of the deeds. According to the plaintiff the defendant was residing in the suit premises as tenant as a monthly rental of Rs.10/- since before the transaction. The plaintiff requested the defendant on 10th July, 1971 for accounting but he refused to do so. According to the plaintiff the actual value of the suit property was Rs.8,000/- at the relevant time. The defence case is that the transaction was out and out sale; the defendant was never a tenant in the suit premises; that the defendant paid a consideration money of Rs.2,000/-; the defendant made Pucca construction of the suit premises after purchase. According to the defendant suit is liable to be dismissed.
(2.) Both the original plaintiff and defendant died and their respective heirs have been substituted. Substituted plaintiff Smt. Asalata Malik deposed for self and for her children those who were also substituted as plaintiff, has stated on oath that there was a pre-existing loan of her husband. Her such statement of pre-existing loan has been corroborated by PW4/ Tulsi Dasi. So far the possession of the suit property PW1 deposed that the defendant's possession was of a tenant and that the plaintiff's husband had constructed the suit room from kuchha to pucca construction during the tenancy tenure. PW3 corroborated her evidence deposing that he had constructed the suit room as mason who was engaged by the original plaintiff/ Kalipada Malik and paid his wages. So far the agreement for re-conveyance (marked as Exbt.1) PW2 Sayed Liyakat Hossain proved the agreement, PW5 Panchanan Das proved the execution of such agreement. The trial Court held that PW1 deposed in her evidence that the value of the suit property was more than Rs.2,000/- at the relevant date and that "she had collected rent from the defendant's tenancy. In a case framed by the plaintiff under Section 36 and 37 of the Money Lenders Act, whether the plaintiff has been able to prove the requirement under those sections to prove that the transaction is a loan in substance and that there was an agreement for re-conveyance. On consideration of the defendant's witnesses the learned trial Court disbelieved the credential of such witnesses. From the perusal of the trial Court's judgment it also appears that the statement made by the plaintiff regarding pre-existing loan has not been challenged by the defendant during cross-examination of the PW1. Therefore, such part remains uncontroverted. One of the requisites in a case under Section 36 and 37 of the Money Lenders Act is to prove the pre-existing loan which PW1 has successfully been able to prove. That apart the other criteria regarding talks of loan transaction has been corroborated by the evidence of PW4 and the possession which had been claimed by the plaintiff appears to be genuine inasmuch as the PW3 confirmed that he constructed the suit room on being paid by the original plaintiff Kalipada Malik. Therefore, the plaintiff's constructive possession over the suit room has been proved on the basis of the evidence adduced on behalf of the plaintiff which could not be shaken by the defendant's witnesses. The trial Court came to a definite conclusion that the sale deed and the agreement for re-conveyance had been established rather admitted. The learned Court below also relied on a case map of the Commissioner appointed by the Court and therefore, held that the disputed transaction was a loan in substance for Rs.1500/- only together with interest of Rs.450/- and that the disputed sale deed was not an out and out sale. The learned trail Court held that the disputed sale deed and the agreement constituted mortgage by conditional sale. The evidence also proved that the defendant was a tenant in the suit property, particularly when the defendant failed to prove by cogent evidence that after the transaction he converted the kuchha structure into a pucca construction that having not been done by the defendant. It is proved that the plaintiff retained possession at least constructively over the suit premises and that cannot lead to a conclusion that the transaction was an out and out sale. Accordingly, the suit stood decreed on contest with cost against the defendant. The said judgment and decree of the trial Court was challenged by the substituted defendants. The Appellate Court below held that the evidence adduced on behalf of the plaintiff cannot be held to be credible evidence inasmuch as, a party to a document or his representative in interest is not permitted to show by circumstances that the terms of the document represent a transaction different from those disclosed apparently in the document. The Appellate Court held that since the document (Exbt.A) does not disclose it to be a loan in substance rather out and out sale, the evidence led to prove that the document is a loan in substance, is not permitted within the proviso to Section 92 of the Indian Evidence Act. Such decision arrived at by the Appellate Court based on the proviso to Section 92 is not acceptable. Section 92 of Indian Evidence Act is set out below.. "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, 1[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."
(3.) Secondly, the learned Appellate Court below held that although, it is the plaint case that Kalipada Malik the executant of the sale deed (Exbt.A) on the day of its execution, was in need of money to meet the expenses for maintaining his family members, the contents of the sale deed (Exbt.A or Exbt.1) does not justify the story of the plaintiff that Kalipada Malik had any debt on the day of execution of the sale deed, but the learned Appellate Court below has failed to appreciate that when on evidence the PW1 disclosed about the pre-existing loan and although, she was subjected to cross-examination by the defendant no question was asked by the defence to falsify the PW1's statement that there was a pre-existing loan. Therefore, obvious conclusion is to be reached that the defendant admitted the factum of pre-existing loan or the averment in the plaint which speaks about the loan from Paddyabadi the original defendant. The third point is that the learned Appellate Court below held that since the document itself described that it was a transaction of an out and out sale no evidence can be led contrary to the recital of the deed. In that aspect the learned Appellate Court below has completely failed to take into consideration of the scope and ambit of Section 36 and 37 of the Money Lenders Act which can always be reopened and therefore, the evidence led by the plaintiff to prove contrary to the recital of the deed that the sale was not an out and out sale is permissible. The last point which the learned Appellate Court below held to be insufficient on the part of the plaintiff that the PW1 could not prove the valuation of the property in question. In the evidence in cross-examination PW1 said that she had no document to show that the market value of the suit properties at the relevant time was more than Rs.2,000/- but when the PW1 said in her evidence that the value of the suit property was more than Rs.2,000/- why such evidence should not be considered to be a credit worthy when nothing adverse could be found from the cross-examination by the defendant. Lastly, the learned Appellate Court below disbelieved the plaintiff's possession over the suit property even constructively and the evidence of PW1 that the defendant was in possession as a tenant under the plaintiff. The Appellate Court below held that since no documentary proof could be led by the plaintiff to prove construction over the suit land the trial Court went wrong in holding that the construction was made by the plaintiff. It is not proper on the part of the Appellate Court to disbelieve the factum of construction over the suit land by the plaintiff at his costs when independent witnesses have proved the same.;