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Shivlal Bhurabhai Vora Vs. Bai Sankli - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 434 of 1929
Judge
Reported in(1931)33BOMLR490
AppellantShivlal Bhurabhai Vora
RespondentBai Sankli
Excerpt:
.....of 1872), section 92, proviso (3)--written agreement--agreement for maintenance--contemporaneous oral agreement--condition of chastity in widow--condition not president.;a hindu widow became entitled to maintenance under an agreement executed in her favour by her husband's brothers which was acted upon for four years. in a suit to recover maintenance, the brothers sought to prove a contemporaneous oral agreement by which the widow agreed not to demand maintenance if she did not remain chaste:--;that the oral agreement could not be proved under section 92, pro. (3), of the indian evidence act, 1872, since it was not a condition precedent to the operation of the written agreement or the attachment of any obligation tinder it:;jugtanund misser v. nerghan singh (1880) i.l.r. 6 cal. 433,..........october 13, 1924. the defendants contended that they were entitled to prove a contemporaneous oral agreement by which the plaintiff agreed not to receive maintenance if she did not behave well and assure the defendants that she continued chaste.2. the learned subordinate judge, relying on the decision in the case of bhup singh v. lachman kunwar (1904) ilr all. 321, held that such an oral agreement was not admissible in evidence.3. it is urged on behalf of the applicants that the agreement falls within proviso (3) of section 92 of the indian evidence act, the proviso runs as follows:--the existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved. 4. it is.....
Judgment:

Patkar, J.

1. In this case, the plaintiff, the sister-in-law of the defendants, had certain disputes in connection with her husband's property which culminated in a family arrangement in the shape of an agreement by the defendants to pass an annuity bond in favour of the plaintiff for maintenance. The plaintiff brought this suit to recover Rs. 87-8-0 on the annuity bond dated October 13, 1924. The defendants contended that they were entitled to prove a contemporaneous oral agreement by which the plaintiff agreed not to receive maintenance if she did not behave well and assure the defendants that she continued chaste.

2. The learned Subordinate Judge, relying on the decision in the case of Bhup Singh v. Lachman Kunwar (1904) ILR All. 321, held that such an oral agreement was not admissible in evidence.

3. It is urged on behalf of the applicants that the agreement falls within proviso (3) of Section 92 of the Indian Evidence Act, The proviso runs as follows:--

The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.

4. It is urged that before any obligation to pay any of the installments accrued, the oral agreement set up by the defendants was a condition precedent to the enforcement of that obligation. In Jugtanund Misser v. Nerghan Singh ILR (1880) Cal. 433 it was held that the condition falling within proviso (3) of Section 92 was a condition of such a nature that until the condition was performed, there was in fact no written agreement at all, and it was further held that the true meaning of the words 'any obligation' in proviso (3) is any obligation whatever under the contract, and not, as is contended by the defendants, some particular obligation which the contract may contain. The condition, therefore, in order that it should fall under proviso (3) of Section 92 must be a condition non-fulfillment of which would preclude the agreement coming into force or having any operation at all. In the present case the annuity bond was acted upon from 1924 to 1928, and it cannot be said that the oral agreement set up on behalf of the defendants was a condition precedent to the operation of the written agreement or the attachment of any obligation under it. The view taken in Jugtanund Misser v. Nerghan Singh has been followed in Tiruvengada v. Rangasami ILR (1883) Mad. 19 and Ramjibun Serowgy V. Oghore Nath Chatterjee ILR (1897) Cal. 401 and Walter Mitchell v. A.K. Tennent ILR (1925) Cal. 677 and by this Court in Vishnu Ramchandra v. Ganesh Krishna ILR (1921) 43 Bom. 1155, 23 Bom. L.R. 488. I think, therefore, that the view taken by the lower Court is right and the oral agreement set up in this case is not admissible in evidence. It is further urged that the plaintiff sues for maintenance, and she cannot recover maintenance under the Hindu law if she is unchaste. The answer to that contention is obvious that the plaintiff claims maintenance not in her capacity as widow entitled to it under Hindu law, but under a specific agreement of annuity arrived at by a family arrangement between the parties. The present case resembles in its essential features the case of Bhup Singh v. Lachman Kunwar.

5. We would, therefore, discharge the rule with costs.

Broomfield, J.

6. The plaintiff's husband and the defendants were brothers and carried on a family business. After the death of her husband the plaintiff claimed a share in the business. There was a dispute between them which was referred to arbitration and as it appears, owing to the efforts of the arbitrators, a compromise was effected and drawn up in the form of an annuity bond. The bond is Exhibit 18 and it is dated October 13, 1924. It referred to the fact of the dispute between the parties regarding the joint business and stated that the dispute had been mutually compromised and it had been decided that the defendants and their heirs and assignees should pay the plaintiff during her lifetime Rs. 175 per annum by two equal installments. There were certain other provisions in the document with which we are not concerned. It appears that the installments were duly paid for four years after the execution of the bond, and that then the defendants declined to pay on the allegation that the plaintiff had become unchaste. The plaintiff accordingly brought a suit to recover certain installments due under the bond.

7. The defendants contended that they were entitled to adduce oral evidence in proof of an alleged contemporaneous oral agreement to the effect that the installments of the plaintiff's annuity were only to be paid provided that the defendants were satisfied of the plaintiff's good conduct. The defendants claim to give evidence as to this oral agreement under provisos (2) and (3) to Section 92 of the Indian Evidence Act. The trial Court held that the evidence was inadmissible and on that ground the present revisional application has been made to this Court.

8. In support of the application Mr. Divatia has put forward two contentions, firstly, that the evidence of the alleged oral agreement is admissible under the two provisos to Section 92, i.e., provisos (2) and (3), and, secondly, that the payments agreed to be made to the plaintiff are payments by way of maintenance and they are subject to the ordinary rule of Hindu law that a widow is only entitled to maintenance dum casta.

9. The first argument, it may be mentioned, was raised before the trial Court, the second was not. Nothing has been said before us with regard to proviso (2) which says that the existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved, We may take it, therefore, that any contention based on this proviso is not now pressed, and the reason is obvious, namely, that any provision to the effect that the payment should only be made to the plaintiff as long as she continued to be chaste, would be clearly inconsistent with the express terms of the annuity bond, by which the defendants bound themselves to make these payments every year for the period of the plaintiff's life.

10. Proviso (3) is as follows:--

The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.

11. As regards that the trial Judge considered that the case was on all fours with the case of Bhup Singh v. Lachman Kunwar ILR (1904) All. 321. In that case there was an agreement under which an annuity was provided by way of compromise of a claim--not a claim for maintenance, but a claim of title to immoveable property. The facts, therefore, were similar to those of the present case. The fact that the plaintiff in this case claimed a share in the family business and not a share in immoveable property would not appear to make any material difference. The provisions of Section 92 of the Indian Evidence Act were not, however, considered by the Court in Bhup Singh v. Lachman Kunwar, and it becomes necessary, therefore, for us to consider the effect of proviso (3) to Section 92. The question is, what is the meaning of 'a condition precedent' as that expression is used in the proviso. The meaning of the words 'a condition precedent' has been considered in a number of cases referred to by my learned brother, Jugtanund Misser v. Nerghan Singh ILR (1880) Cal. 433, Tiruvengada v. Rangasami ILR (1883) Mad. 19, Vishnu Ramchandra v. Ganesh Krishna ILR (1921) 45 Bom. 1155, 23 Bom. L.R. 488, Walter Mitchell v. A.K. Tennent ILR (1923) Cal. 677 and others. It is not necessary for me to go into them in detail. The general effect of these decisions is that a condition precedent within the meaning of proviso (3) to Section 92 is a condition without the fulfillment of which there is in effect no written agreement at all, and no contractual obligation of any description arises. It cannot be said that that applies to the case here. The obligation to make these annual payments to the plaintiff admittedly has arisen and payments have been made under it for four years already. Mr. Divatia argued that the annuity bond could be construed as an agreement under which the liability arises at the time of each and every installment when it becomes payable, that is to say twice a year. The point is an interesting one but it is not one which, in my opinion, can take this case out of the authority of the series of cases to which I have referred. It cannot be said that the alleged agreement could be regarded as a condition precedent to the attaching of any obligation under the contract.

12. As regards the contention that the plaintiff is in effect claiming maintenance, and maintenance under the Hindu law is only claimable by a widow as long as she continues chaste, it is sufficient to say, as my learned brother has pointed out, that the plaintiff is not here claiming maintenance under the Hindu law, but certain sums which she is entitled to receive under an express agreement in that behalf. In Sathyabhama v. Kesavacharya ILR (1915) Mad. 658 the case of Bhup Singh v. Lachman Kunwar ILR (1904) All. 321 was referred to and distinguished on the ground that it related to a compromise which was arrived at regarding a claim of a widow for possession of property as heir, It was held accordingly that that decision had no bearing upon a case in which a suit was brought by a Hindu widow for maintenance, and where, although the rate of maintenance was fixed by agreement, the claim was made not on the basis of the agreement but under the provisions of the Hindu law. The case before us is similar to the case of Bhup Singh v. Lachman Kunwar, and clearly distinguishable from that of Sathyabhama v. Kesavacharya.

13. I agree with my learned brother that the rule should be discharged.


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