Basil Scott, Kt., C.J.
1. The learned Judge, for the reasons stated in, the appendix to his judgment, is of opinion that a person who wishes to set aside an ostensible sale-deed can do so on proving that a representation was made to him at the time of execution that it would not be enforced as a sale-deed, and he accordingly states as the first question which arises for decision in the appeal before him : Did the defendant at the time of the execution of the sale-deed represent to the plaintiff that the sale-deed would not be enforced as such In other words, did the defendant promise the plaintiff that the sale-deed would not be enforced as such Stated in this form the question propounded by the learned Judge is whether or not there was a contemporaneous agreement between the parties inconsistent with the written document executed by them.
2. We think it is clear upon the authorities binding upon us that no evidence of such an agreement, or promise, or representation can be admitted. The view of the law expressed in Balkishen Das v. W.F. Legge ILR (1899) All. 149 was acted upon in Datto v. Ramchandra (1905) 7 Bom. L.R. 669 and again in Keshavrao v. Raya : (1906)8BOMLR287 and in Achutaramaraju v. Subbaraju ILR (1901) Mad. 7.
3. Mr. Justice Batty in Keshavrao v. Ray a said : '... the fraud which under proviso I, Section 92, may be proved, must be fraud which would invalidate the document, and, therefore, subsequent fraud in respect of the document not such as to invalidate it, could not be a ground for admitting extraneous oral evidence under Proviso I of Section 92. The real effect of admitting such evidence would not be to prove fraud in the execution of the document, but the existence of a different intention than that which appears on the document itself. In other words, it would be an attempt to prove a different contract from that expressed in the document without proving any fraud in the preparation of the document which would invalidate it'.
4. The learned pleader for the respondent in order to escape from this decision has contended that the representation or promise which the learned District Judge held in this case to be proved amounted to fraud as defined by Section 17 (3) of the Indian Contract Act where it is said that fraud means and includes a promise made without any intention of performing it.
5. There is in this case, however, no finding that the defendant at the time of making the promise had no intention of performing it. He may have made the promise in good faith and changed his mind afterwards when he found the value of the property in dispute had increased and that it was more advantageous for him to rely upon the sale evidenced by the written document than upon the mortgage which the plaintiff alleges was the real agreement between the parties.
6. We hold that the document executed by the plaintiff must be treated, as it appears on its face to be, as a sale-deed and not as a mortgage.
7. We, therefore, reverse the decree of the lower Court and Dismiss the suit with costs throughout on the plaintiff.