1. Whilst the first plaintiff was being examined in - chief by Mr. Laud and was deposing to an interview between himself and plaintiffs Nos. 2 and 3 accompanied by a broker named Narayandas Budhwani and the first defendant and one Chandrakant Thakore, he deposed to the terms which were offered by the first defendant in regard to the businesses of Femina Stores and Meghdoot Restaurant which were proposed to be taken by the Plaintiffs under a conducting agreement, along with ac option to purchase the same. The first plaintiff deposed that after those terms were proposed, there was a discussion which went on for about half - hour. The first plaintiff was then put a question, 'what happened then ?' At the stage Mr. Shah on behalf of the defendants Nos. 1 to 5 raised an objection to the effect that in view of the plaintiffs' own case in para 7 of the plaint that the agreement in question had been reduced into writing in the form of annexure 'A' to the Plaint, no oral evidence could be permitted to be given having regard to the provisions of Sections 91 and 92 of the Indian Evidence Act. I have heard counsel on both sides at considerable length on that question of admissibility. Mr. Laud's contention on that question was two fold. First he contended that S. 91 barred the leading or oral evidence in cases in which a contract had been reduced into writing only in regard to the 'terms' of that contract, and the statement contained in the concluding part of annexure 'A' to the Plaint that the transaction was subject to an agreement to conduct - cum - sale being entered within a month cannot be said to be a term of the contract between the parties. Mr. Laud pointed out that all the other statements contained in annexure 'A' to the plaint were terms of the contract which were in conformity that the oral contract pleaded in para 6 of the plaint. Fro that purpose, Mr. Laud also relied on Explanation 3 to Section 91 of the Evidence Act. The second contention of Mr. Laud was that he was in any event entitled to lead oral evidence for the purpose of showing the circumstances in which the provision relating to the execution of an agreement within a month came to be inserted in annexure 'A' to the plaint under proviso 6 to Section 92 of the Evidence Act which permits any fact to be proved which shows in what manner the language of a document is related to existing facts.
2. I will now proceed to deal with the first contention of Mr. Laud. I may stated at the very outset that neither counsel has cited any authorities before me except authorities in the nature of standard works and dictionary to show that is the precise legal connotation of the expression 'terms' in relation to a contract. Turning first to the plaint language of Sections 91 and 92 of the Evidence Act, in my opinion, when those sections refer to the 'terms' of a contract they necessarily postulate that there is a contract in existence, the statements contained in which are the nature of terms. As a matter of plain language and grammatical construction I have, therefore, no hesitation in taking the view that the expression 'terms' of a contract in Section 91 and the corresponding expression in Section 92, have no application to a statement contained in a writing which is in the nature of a condition precedent to the very formation of that contract. It is the contention of Mr. Shah himself that the concluding words of annexure 'A' to the Plaint are in the nature of a condition precedent to the very formation of the contract, and that condition not having been fulfilled, no contract ever came into existence. As against that, it is the case of Mr. Laud for the plaintiffs that the statement contained in the concluding words of annexure 'A' is a mere expression of a desire as to how the transaction was to go through. In either view of the matter, therefore, it cannot be said to be a term of the contract. In Murray's English Dictionary (1919 edn.) the expression 'term' is given as having several meanings some of which have relation to the concept of a period of time with which we are not concerned. One of the meanings which however is applicable to the present case is given as 'limiting condition' and the plural of the expression 'term' is given as having the meaning of conditions or stipulations limiting what is proposed to be granted or done. It is then stated that the expression is rarely used in the singular, and the meaning of the expression when used in the singular is stated to be 'that which is so required or demanded, a condition or pre - requisite of something'. The expression 'terms' in the plural, therefore, means according to Murray's Dictionary a condition or stipulation which limits what is to be granted or done, and in my opinion, therefore, it cannot apply to something which is in the nature not of a limitation of what is to be done under a contract, but of a condition precedent to the very formation of the contract. In distinguishing between 'representations' and 'terms' in relation to a contract, Anson on the Principles of the English Law of Contract (22nd edn) at p. 114 appears to give to the expression 'terms' the meaning of representation or assurances intended to be an integral part of the agreement. This again would, in my opinion, show that it can have no application to a statement or representation which is in the nature of a condition precedent to the very formation of the contract. On pp. 119 - 120 Anson deals with the distinction in the law relating to sale of goods between a condition and a warranty, but that I am afraid, is not of much assistance for the purpose of ascertaining the meaning of the expression 'terms' used in Ss. 91 and 92 of the Indian Evidence Act. In dealing with the question of classification of terms, Chitty on Contracts (23rd edn.) Vol I p. 279 para 595 also deals with the distinction between conditions and warranties and the statements made in that paragraph are, therefore, also not of direct assistance for the purpose of determining the point of admissibility with which I am dealing. This much would, however, follow from the way in which the distinction between conditions and warranties has been dealt with both in Anson as well as in Chitty, that the expression 'terms' connotes both conditions as well as warranties and that contracts are normally made up of a number of terms, some of which are regarded as major or essential terms and are, therefore, called warranties. From this also it would follow that the expression 'terms' applies to provisions contained in contracts which have already come into existence and are legally enforceable, The proposition that Sections 91 and 92 are not applicable to just anything and everything that is contained in a written contract does not really need authority, but if authority were needed it is to be found in the decision of a Division Bench of the Madras High Court in the case of Venkatasubbiah Chetty v. Govindarajulu Naidu ilr (1908) 31 Mad 45, where it was held that oral evidence was admissible to show that the party liable on the contract contracted for himself and as the agent of his partners, and that such partners are liable to be sued on the contract though no allusion is made to them in the written contract. In that connection, referring to Ss. 91 and 92 of the Indian Evidence Act, it was stated in the Judgment (at p. 47) that the question as to who the contracting parties were was not one of the 'terms of a contract' within the meaning of those sections. I hold that the expression 'terms' in Ss. 91 and 92 of the Indian Evidence Act must relate to statements, assertions or representations contained in a written contract which relate to the subject - matter of the contract and to something to be done or not to be done under the Contract, and has no application to a provision in the nature of a condition precedent to the very existence or formation of a contract. On that ground alone, therefore, the objection raised Mr. Shah to the admissibility of oral evidence for the purpose of showing the circumstances in which that provision came to be inserted in the writing annexure 'A' to the plaint must be rejected, and it is really not necessary for me to deal with the second ground which is urged by Mr. Laud to repel that objection. I will, however, briefly deal with the same also as it has been argued at some length.
3. The real question which arises in connection with the same is in regard to the scope and application of proviso 6 to Section 92 of the Evidence Act. It has been contended by Mr. Shah on behalf of defts Nos. 1 to 5 that the said proviso must be limited in its application to cases which fall within one or other of the sections of Chapter VI of the Evidence Act, which follow that proviso viz. Sections 93 to 98 thereof. The scope of Sections 91 to 98 of the Indian Evidence Act, including proviso 6 to Section 92 has been considered by me in the case of Belapur Co. Ltd. v. Maharashtra State Farming Corporation, : AIR1969Bom231 in which after considering various authorities on the point, I have summarised the legal position in the following terms (para 24) :-
'The propositions that emerge from a consideration of these authorities on the subject are as follows : (1) Cases in the English Courts of Chancery have no application to the law of India as laid down in the Evidence Act. (2) In view of the provisions of Section 91 of the Evidence Act, no extrinsic evidence, oral or documentary, can be admitted to prove the terms of a contract, grant or other disposition of property, except the document itself or secondary evidence of its contents when admissible under the relevant provisions of that Act and the court must find out the expressed intention of the parties. The fundamental rule of construction is to ascertain the intention from the words used in the document which is considered to be the written declaration of the mind of the author. (3) If the words are clear in expressing that intention and the language applies to existing facts, extrinsic evidence is not admissible for constructing the deed or for ascertaining the real intention of the parties e.g. surrounding circumstances cannot be considered with a view to holding that a document which is on the face of it as a sale deed was intended to operate as a mortgage. (4) If, however, the words are such that one may suspect that they do not convey the intention correctly or in other words, there is some doubt as to what the words mean or how they are to be applied to the circumstances of the writer or to the facts existing at the time when the document was executed, extrinsic evidence is admissible, both under proviso (6) to Section 92 of the Evidence Act as well as in English Law. In such cases, extrinsic evidence is admissible for the purpose of finding out the meaning of the words which have actually been employed, or what is same thing, in order to translate the language of the document by assigning a definite meaning to terms capable of such explanation or by connecting them with the proper subject - matter, or in other words for the purpose of throwing light on the meaning of the words used with a view to arrive at the true effect of the transaction to which the document relates. The whole object in such cases is to place the Court, as near as may be, in the position of the parties to the document. (5) The subsequent conduct of the parties is, however, not relevant or admissible for the purpose of construing a written document (6) If the language employed in the document is ambiguous, the question of admissibility or otherwise of extraneous evidence would be regulated by the provisions of Section 93 to 98 of the Evidence Act. The plain meaning of the word 'ambiguous' is, obscure, or of double meaning (Concise Oxford Dictionary). (7) In view of Section 92 of the Evidence Act, oral evidence can, in no event, be admitted to contradict, vary add to or subtract from the terms of the document, as far as the parties to that document are concerned.'
I have also held (page 25) that proviso 6 to Section 92 of the Evidence Act is not an exception to the rule laid down in the main part of the section, as a proviso normally is, but it is substantive provision which itself lays down the law relating to the admissibility of extrinsic evidence as an aid to the construction of a document in cases in which it is necessary to find out how the document is related to existing facts. I have further held that it has nothing whatsoever to do with the question of contradicting, varying, adding or subtracting from the terms of the document with which the man part of Section 92 deals, and does not take away or qualify anything that would, but for that proviso, have fallen within the substantive portion of that section. The position in regard to proviso (6) to Section 92 of the Evidence Act in view of what I have held in Belapur Co.'s case is that extrinsic evidence is admissible under that proviso for the purpose of finding out the meaning of the words which have actually been employed, or what is the same thing in order to translate the language of the document by assigning a definite meaning to terms capable of such explanation with a view to arrive at the true effect of the transaction in question in cases in which the words used are such that one might suspect that they do not convey the intention correctly or in other words, there is some doubt as to what the words mean or how they are to be applied to the circumstances of the writer or toe the facts existing at the time when the document was executed. The words 'subject to an agreement to conduct - cum - sale to be entered within a month' used in the concluding part of annexure 'A' to the plaint in the present case are capable of two possible meanings :one that the execution of a written agreement within a month was a condition precedent to the very formation of the contract: and that the other that it is the mere expression of a desire as to how the transaction was to go through. It is true that in English Law the words 'subject to a contract in writing' or equivalent words have generally been construed by courts in England to mean that the agreement is of no legal effect until a written document is executed (Chitty on Contracts (23rd Edn.) Vol.I p. 79 , and Anson on the Principles of the English Law on Contract (22nd Edn.) pp. 53 - 54 and Cheshire on the Law of Contract (7th Edn.) p. 33). That, however, is not an inflexible rule. In fact, in the passage from Cheshire where this point is dealt with, it is stated (at p. 33) 'Unless there is cogent evidence of a contrary intention, the courts, construe these words so as to postpone the incidence of liability till a formal document has been drawn up and signed,' and (at p. 34). 'The task of the Courts is to extract the intention of the parties both from the terms of their correspondence and from the circumstances which surround and follow it, and the question of interpretation may thus be stated . Is the preparation of a further document a condition precedent to the creation of a contract or is it an incident in the performance of an already binding obligation ?' Referring to an observation of Lord Wright it is further stated in Cheshire (at p. 36) that Judges would always seek to implement and not to defeat reasonable expectations though they could not invent a contract which the parties had been too idle to make for themselves. It is, therefore, clear that the position in English law is that even in cases in which the expression used in a written contract is 'subject to a written contract' or other equivalent expression, it would be open to the Court and indeed, it would be its duty to extract the intention of the parties and to see whether there is cogent evidence to indicate that the parties intended a binding contractual obligation to come into existence even before a writing was executed. It was sought to be contended by Mr. Shah that whatever might be the position in English Law, the powers of the court in that behalf would be limited in this country by the statutory provisions of Sections 91 and 92 of the Evidence Act , but I see no reason why they should be so limited in view of the terms of proviso (6) to Section 92 of the Evidence Act which is, inter alia, intended to meet precisely such a situation. In fact, as indicated in my judgment in Belapur's Co.'s case (para 24) the position in regard to the admissibility of extrinsic evidence under proviso (6) to S. 92 of the Evidence Act as well as in English law appears to be the same. Mr. Shah on behalf of defendants Nos. 1 to 5 relied strongly on the decision of the Privy Council in the case of Harichand v. Govind AIR 1923 PC 47 where a question similar to the question which arose before me arose before the Privy Council, the Plaintiff - purchaser contending that the two documents which formed the foundation of the suit constituted a completed contract and the defendant - vendor urging that it was only in the nature of a provisional agreement conditional on the preparation of a formal document. In the trial Court, the defendant had attempted to tender some oral evidence to show that actually took place on the occasion that the parties entered into the agreement relied upon by the plaintiff, but the trial Judge had refused the application in a single sentence in these words :'I reject that evidence : irrelevant and inadmissible'. The Privy Council took the view that the ruling of the learned trial Judge was right and that under Section 92 of the Indian Evidence Act the evidence sought to be led was rightly rejected. It is however, clear from the judgment of the Privy Council that the statement in the judgment was based practically on a concession in the course of the argument before them for it has been stated (at p. 48, col. 2) that no attempt was made on appeal to take exception on behalf of the defendant to that part of the trial Judge's order. it is for the reason that with that brief observation, the Privy Council did not thing it necessary to refer further to that point. Under these circumstances, I do not consider the decision of the Privy Council in Harichand's case on which Mr. Shah has relied as his 'trump card' to be a decision on the point which arises before me. In the event of my being wrong in the view which I have taken above, viz. that the statement contained in the concluding part of annexure 'A' to the plaint is not one of the 'terms' of the contract between the parties. I would still hold extrinsic evidence to be admissible under proviso (6) to Section 92 of the Indian Evidence Act for the purpose of showing the circumstances in which the said writing came to be prepared and executed, and this statement found place therein, with a view to arrive at the true effect of the transaction to which the document relates. I, therefore, overrule Mr. Shah's objection.
4. Order accordingly.