Skip to content


Banapa and anr. Vs. Sundardas Jagjivandas - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1877)ILR1Bom333
AppellantBanapa and anr.
RespondentSundardas Jagjivandas
Excerpt:
indian evidence act (i of 1872), section 92--evidence of oral agreement contemporaneous with a deed of sale. - .....defendants, however, allege that, contemporaneously with the deed of sale, they entered into an oral agreement with haridas that the deed of sale was to be merely a security for the sum of rs. 1,000 paid, as already mentioned by him, to venkan bhat and rs. 80 for his trouble, and that they would repay him that amount of rs. 1,080 by yearly instalments of rs. 125. they also averred that they had repaid him rs. 821, and that only the balance remained due to haridas or his representative. the subordinate judge admitted evidence of the alleged oral agreement contemporaneous with the deed of sale, and held that oral agreement to be proved. the assistant judge has reversed that decree, because he was of opinion that, whatever may have been the former state of the law as to the admissibility.....
Judgment:

Michael Westropp, C.J.

1. The deed (Exhibit No. 3), dated 20th May 1868, purports to be a sale of the property mentioned therein by the defendants to Haridas, since deceased, and who is represented by his brother Sundardas as his heir. That sale is, in the deed, stated to be in consideration of Rs. 1,000 paid to Venkan Bhat, who was a creditor of the defendants to that amount. The plaintiff seeks to eject the defendants from a house at Bijapur forming part of the property mentioned in the deed. The defendants admit that they executed the deed, and do not allege that they were induced so to do by fraud or intimidation on the part of Haridas, the vendee, or that they were under any mistake in fact or in law, or any fact invalidating it, or other circumstance bringing them within the exceptions in Proviso 1 to Section 92 of the Indian Evidence Act, I of 1872. The defendants, however, allege that, contemporaneously with the deed of sale, they entered into an oral agreement with Haridas that the deed of sale was to be merely a security for the sum of Rs. 1,000 paid, as already mentioned by him, to Venkan Bhat and Rs. 80 for his trouble, and that they would repay him that amount of Rs. 1,080 by yearly instalments of Rs. 125. They also averred that they had repaid him Rs. 821, and that only the balance remained due to Haridas or his representative. The Subordinate Judge admitted evidence of the alleged oral agreement contemporaneous with the deed of sale, and held that oral agreement to be proved. The Assistant Judge has reversed that decree, because he was of opinion that, whatever may have been the former state of the law as to the admissibility of such evidence, it was excluded by Section 92 of the Indian Evidence Act; and in that opinion we concur, inasmuch as the oral agreement, alleged to have been entered into contemporaneously with the deed, was wholly inconsistent with the terms of the deed, and we are unable to conceive a case in which Section 92 would exclude evidence of an oral agreement if it would not do so in this case. The defendants do not contend that they supposed the deed of sale when they executed it to be other than what it purports to be; but they say it is modified by the contemporaneous oral agreement, and it has been argued for them that it is a fraud on the part of Haridas to treat the deed of sale as such; but that would not be a contemporaneous but a subsequent fraud, or rather a breach of the oral contract; and, if we were to hold that to be such fraud as is contemplated by the first proviso to Section 92, we should be rendering that section nugatory; for, in every case in which a party stood upon the written contract, and declined to act upon the alleged oral contract, fraud might be equally imputed, and the apparent object of the section--viz., the discouragement of perjury--would be frustrated. There would appear to have been some conflicting decisions on the state of the law on such a point before the Indian Evidence Act came into force--see ex. gr., Dada Honaji v. Babaji Jagushet (2 Bom. H.C. Rep., 36), Guddalur v. Kunnattur (7 Mad. H.C. Rep., 189), and Bholanath Khettri v. Kaliprasad Agurwalla (8 Beng. L.R., 89) on the one side and the Full Bench case Kasheenath Chatterjee v. Chundy Churn Banerjee (5 Cal. W.R., 68 Civ. Rul.), and the authorities there cited. It is unnecessary for us to give any opinion as to which of these decisions was light, inasmuch as we think that such cases as the present were those in which the Legislature, by Section 92 of the Indian Evidence Act, intended to exclude evidence of oral agreements contemporaneous and inconsistent with written agreements. The circumstances in the case of Muttyloll Seal v. Annundo chunder Sandle (5 Moore Ind. Ap., 72), were very special. There were a bond and warrant of attorney to confess judgment with a defeasance thereupon indorsed, prior to the release, and lease of even date with the release, which tended to show that the release, though absolute in form, was intended to be a mortgage, which prevent that case from being applicable on the present occasion where all of those circumstances are absent.

2. The decree must, we think, be affirmed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //