1. The plaintiff sued to recover Rs. 50 from the defendants, who are the widow and children ofhis deceased brother Yasinmiya, alleging that he and certain other persons were sharers in certain property set apart for religious purposes, and he and the other Bharers enjoyed the property by turns of five years each, his turn being from July 1919 to July 1924, During his term, as he has had no children and as his brother Yasinmiya had a large family, he passed a deed of gift in favour of his brother Yasinmiya, and subsequently Yasinmiya passed a settlement deed to the plaintiff agreeing to pay Rs. 12 a month after July 8, 1924, on which day the plaintiff's turn expired. The plaintiff sued to recover the profits of the property for the last year of his term, alleging that though the gift deed was accompanied by possession, there was an agreement between him and his brother Yasinmiya that he was to receive the profits up to the expiry of his term. The first Court held that the oral agreement was proved, and the plaintiff was entitled to share in the income between April 17,1923, and July 8, 1924, and directed accounts to be taken to determine the income. The defendants appealed, and on appeal the Assistant Judge at Ahmedabad after considering the rulings quoted on either side, came to the conclusion that oral evidence was admissible, and dismissed the appeal with a slight variation in the date from which the profits were to be calculated. The defendants make this second appeal.
2. The only point in appeal is whether oral evidence can be admitted to vary the terms of the document. Various cases have been quoted by the learned advocate on either side, all of which have been considered by the learned Assistant Judge. In every case of this character we have to decide on the terms of the document. In the present case the possession of the property was given by the plaintiff under the gift deed, and there was a corresponding agreement by Yasinmiya that he would pay the plaintiff, his brother, Rs. 12 a month during his lifetime after July 8,1924, i.e., when the plaintiff's turn expired, and prima facie, if the plaintiff was to receive Rs. 12 a month as consideration for his having given up his interest in the land in favour of his brother out of brotherly affection, and possession was given immediately under the gift deed, it would be only natural that he should receive the income of the property or some portion of it during the un-expired period of his term. The gift deed does not deal at all with the question of the income of the property, and, therefore, under Section 92, proviso (2), of the Indian Evidence Act the oral agreement as to the apportionment of the income prior to July 1924, is a matter on which the document is silent, and is not inconsistent with its terms. The learned advocate for the appellant has relied on Mottayappan v. Palani Goundan I.L.R. (1913) Mad. 226 which has been considered by the lower Court, in which it was held that an executant of an instrument cannot be permitted to set up or prove that the instrument, which according to its tenor vested the property in the grantee at once, was in reality intended to vest it only at a future time or after the death of the executant; and Section 92, proviso (1), of the Indian Evidence Act has no application to a case where the instrument represents what the parties intended to put down in writing, though it might not be in accordance with what they intended to do and with the legal effect that they secretly wanted to bring about but which for some reason they did not want to put in writing. That case, as the Assistant Judge has observed, does not strictly apply to the facts of this case, as it deals with the vesting of the property, whereas here we are dealing only with the income. In Vishnu v. Ganesh : AIR1921Bom449 oral evidence was sought to be produced that a promissory note payable on demand will not be presented until certain incumbrances had been discharged, and it was held that it was absolutely inconsistent with the terms of the document On the other hand, the learned advocate for the respondent has relied on two Privy Council cases, one in Motobhoy Mulla Essabhoy v. Mulji Haridas : (1915)17BOMLR460 in which it is held by the Privy Council that it is allowable under Section 92 of the Indian Evidence Act, 1872, to urge an oral agreement which will have the effect of leaving matters otherwise than if they had depended on the written agreement alone, but such oral agreement must be clearly proved, and the onus lies on him who sets it up, and in Baijnath Singh v. Hajee Vally Mahomed (1924) 27 Bom. L.R. 787p.c. it was held that though Section 92 of the Indian Evidence Act precludes oral evidence of intention for the purpose of construing deeds or proving the intention of the parties, it merely prescribes a rule of evidence, and does not fetter the Court's power to arrive at the true meaning and effect of a document in the light of all the circumstances surrounding the transaction. I do not think this case applies to the point before us. But in view of the ruling in Motabhoy Mulla Essabhoy v. Mulji Haridas : (1915)17BOMLR460 and in view of the fact that the alleged oral agreement refers to a matter on which the document is eilent and is not inconsistent with its terms, I think the view of the learned Assistant Judge, which is based also on certain other cases which he has quoted, should be upheld. There is evidence that as a matter of fact Yasinmiya during his lifetime did give profits. It is only since his death that his heirs have disputed their liability to pay. It has been contended by the learned advocate for the respondent that they cannot do so when the person in whose favour the document was passed did not challenge the arrangement, and carried it out.
3. The appeal is dismissed with costs.