Lawrence Jenkins, K.C.I. E., C.J.
1. The plaintiffs sue for redemption asking that an account may be taken under the provisions of the Dekkhan Agriculturists' Relief Act.
2. Their case in the plaint is that the transaction in respect of which they have brought this suit is a mortgage.
3. The defendant by his written statement asserts that the land was not mortgaged to him, but sold out-and-out.
4. If the document evidencing the transaction be looked at (and that alone), then it is clear that the transaction was, as the defendant states, a sale out-and-out.
5. The lower Courts, however, have decided this suit in the plaintiffs' favour holding that the transaction was a mortgage and not a sale.
6. The defendant appeals from the decree of the lower appellate Court.
7. For the appellant, in this Court, it is pointed out that neither Court has observed the principles established in the case of Balkishen Das v. W.F. Legge ILR (1899) All. 149 : 2 Bom L.R. 522, and that no attention has been paid to the decision of the Madras High Court in Achutaramaraju v. Subbaraju ILR (1901) Mad. 7 or of this High Court in Dalto v. Ramchandra (1905) 7 Bom. L.R. 669.
8. It appears to us that this contention is not without foundation. It is clear that evidence of intention cannot be given for the purpose merely of construing a document such as that with which we are now concerned; and Section 92 of the Evidence Act, subject to the proviso therein contained, forbids evidence to be given of any oral agreement or statement for the purpose of contradicting, varying, adding to, or subtracting from the terms of any contract, grant or other disposition of property the terms of which have been reduced to writing as mentioned in that section.
9. We think the provisions of Section 92 have not been sufficiently observed by the lower Courts.
10. But at the same time it would be wrong for us to reverse the decree of the lower appellate Court, for the lower Courts seem to have erred in form and not in substance. While there are the restrictions on the admissibility of oral evidence to which we have referred, Section 92 in its first proviso recognizes that facts may be proved by oral evidence which would invalidate a document or entitle any person to any decree or order relating thereto. And where one party induces the other to contract on the faith of representations made to him, any one of which is untrue, the whole contract is in a Court of Equity considered as having been obtained fraudulently : see Pertap Chunder Ghose v. Mohendranath Purkait ILR (1889) Cal. 291 P.C.
11. This, we think, must have been in the mind of the Judge of the first Court when he raised the first issue in the form he did; that issue tuns as follows:-
12. Whether the plaintiffs prove the existence of circumstances entitling them to prove that the transaction was a mortgage and not a sale?
13. We think, however, that the defendant is entitled to have the issue framed with greater particularity that he may have due warning of the case he has to meet. The materials before us do not enable us to do this with as much precision as we could wish, and the only issues we can frame are these:-
Do the plaintiffs prove any fact which would invalidate the document or entitling them to any decree or order relating thereto ?
ii. Are the plaintiffs entitled to any and what relief ?
14. The investigation in the lower Courts has been inadequate; therefore, the parties will be at liberty to adduce further evidence.
15. The return should be made in three months.
16. The frequency of the complaint that agriculturists are entrapped into the execution of documents of sale in the belief that the right to redeem still remains with them, leads us to express the hope that there may be early legislation which will enable the Courts, at least where an agriculturist is concerned, to investigate and determine the real nature of the transaction, unfettered by Section 92 of the Evidence Act, and to award such relief as the justice of the case may require.