Oral evidence contradicting, varying, adding to or subtracting from the terms of a disputed document is permissible under Section 40(6) of the Bengal Money Lenders Act, even though such provision is absent in the Evidence Act.

Jyotirmay Bhattacharya, J.

1. This second appeal is directed against a judgment and decree passed by the learned Additional District Judge, Fast Track 1st Court, Tamluk, Purba Medinipur on 19th February, 2010 in Title Appeal No. 07 of 2006 affirming the judgment and decree dated 29th June, 1987 passed by the learned 2nd Munsif Court, Tamluk in Title Suit No. 159 of 1975 at the instance of the plaintiffs/appellants.

2. Let us now consider the merit of the appeal to find out as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure or not.

3. Admittedly Amulya Charan Nayak was the owner of the suit property. A sale deed was executed by the said Amulya Charan Nayak in favour of Nitai Charan Das in respect of the suit property. Such sale deed was executed by Amulyababu on 9th March, 1966. The said sale deed was registered on 10th June, 1966. Long thereafter on or about 7th November, 1975, the legal heirs of Amulyababu filed the present suit for declaration that the said transaction was not an out and out sale, but a loan transaction. It was contended by them that Amulyababu was in urgent need of some money for running his business and as such, he approached Nitaibabu for accommodation of loan. According to them, such loan was granted by Nitaibabu to Amulyababu and by way of security for payment of loan amount and the interest thereon, Amulyababu executed the said deed of sale as mentioned in schedule “KA” of the plaint. It was further alleged that Nitaibabu also executed an agreement for re-conveyance wherein it was mentioned that on payment of the loan amount together with interest within a stipulated period, the property will again be re-conveyed by Nitaibabu to Amulyababu. It was further alleged that possession of half of the property sold, was transferred to Nitaibabu so that the interest to be accrued on such loan amount can be realised out of the usufruct of half of the property sold. It was further alleged that even after execution and registration of the said deed of sale, Amulyababu remained in possession of half of the suit property. It was further alleged that the value of the suit property is much more than the actual payment which was made by Nitaibabu to Amulyababu.

4. Nitaibabu was the defendant no. 1 in the said suit. He transferred the said properties to the remaining defendants. One of such defendants, viz., defendant no. 4 contested the said suit by filing written statement denying the allegations made out by the plaintiffs in the said suit. He claimed that Amulyababu sold and transferred the suit property to Nitaibabu on acceptance of the consideration money for such transaction and since the time of such purchase, Nitaibabu possessed the suit property until a part thereof was transferred to the said defendant. The said defendant claims that the said defendant has been possessing a part of the said property since the time of his purchase. He, thus, prayed for dismissal of the suit by challenging that the sale transaction held between Amulyababu and Nitaibabu was not a loan transaction. He claimed that the said transaction was a product of out and out sale.

5. The parties led evidence in support of their respective claims. Learned Trial Judge dismissed the said suit by holding that the disputed sale transaction is not a product of loan transaction. Learned first Appellate Court held that the said transaction was an out and out sale made by Amulyababu in favour of Nitaibabu. Execution of the deed of re-conveyance by Nitaibabu could not be proved by the plaintiffs in the said suit. Hence, the suit was dismissed.

6. Challenging the said judgment and decree of the learned Trial Judge, the plaintiffs preferred an appeal before the learned first Appellate Court. Learned first Appellate Court dismissed the said appeal by affirming the findings of the learned Trial Judge.