Lawrence Jenkins, K.C.I.E., C.J.
1. The only question in this suit is whether the plaintiffs are entitled to show that a transaction is not an out-and-out sale.
2. The document evidencing the transaction is in form an absolute sale, and the case therefore falls within Section 92 of the Evidence Act, whereby it is provided, subject to certain provisos, that 'when the terras of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from its terms.'
3. This section has been the subject of judicial determination in Balkishen Das v. Legge ILR (1899) All. 149.
4. But by the first proviso contained in the section, it is enacted that 'any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality, want of due execution, want of capacity, in any contracting party want or failure of consideration, or mistake in fact or law.'
5. The case here made is not only that there was a failure of consideration, but also that there was a representation that the transaction was not a sale and would never be enforced as a sale.
6. It is conceded that direct evidence of that representation cannot now be produced, because the person by whom the document was executed, viz. Hariba, is dead. But it is said that the circumstances conclusively point to the view that there was a representation of this class.
7. The lower Courts have held the transaction not to be a sale, and for the respondent it is contended before us that this conclusion rests on the representation that the document would not be enforced as a sale-deed.
8. No doubt there is much in the judgment that justifies that argument, but there is not a clear and definite finding on the point.
9. We must, therefore, send back the case for the determination of the following issue:-
Whether the plaintiffs prove any fact which would invalidate the document or entitle them to any decree or order relating thereto?
10. In dealing with this issue the Court may profitably have regard to the decision of the Privy Council in Pertap Chunder Ghose v. Mohendranath Purkait ILR (1880) Cal. 297, where it is said '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. If such a representation had not been made, the tenants might have refused to sign the Kabuliyat. Further, if there is any stipulation in the Kabuliyat which the plaintiff told the tenants would not be enforced, they cannot be held to have assented to it, and the Kabuliyat is not the real agreement between the parties, and the plaintiff cannot sue upon it'.
11. So in this case if the plaintiffs were told that the document which in form is a sale-deed, would not be enforced as such against them and on the faith of that representation Hariba executed the document, then the sale-deed cannot be upheld as against him or the plaintiffs as a sale-deed.
12. We think it unnecessary that there should be further evidence as our only reason for sending down the case is that though we think the Court probably meant to hold in the way we have indicated, there has not been a sufficiently definite finding.
13. To be returned within two months.