1. This was a suit for specific performance of a contract entered into by the first defendant with the plaintiff for the sale of certain land for a sum of Rs. 7,000 besides the amount due on a mortgage. The contract was entered into on 15th January 1920 by means of a writing appearing in the books of one Chanbasappa. It was signed by both parties and witnessed. The first defendant had after the contract sold the property to defendants Nos. 2 to 5 who were accordingly made parties to the suit. In the written statement the defendant said that the agreement appearing in the book did not contain the whole of the agreement arrived at between the parties, but there was an oral agreement that if any body else perchance offered more than Rs. 500 to the first defendant above the agreed amount before the expiry of the period in the agreement, the agreement with the plaintiff was to be treated as null and void.
2. The plaintiff called Chanbasappa as his witness, and in cross-examination he said that it had been agreed before that in case defendant got a customer to offer him more than Rs. 200 above the price fixed between the plaintiff and defendant No. 1, he was free to sell it to him for it was then talked that Rs. 7,000 was not quite an adequate price for the land.
3. Then, as the Judge remarks, no further evidence was called and we may assume for the purposes of this judgment that the plaintiff was prepared to accept the statement made in cross-examination by Chanbasappa. The question is, whether this evidence is admissible to alter or add to the terms of the written contract. The learned Judge thought that Section 92 of the Evidence Act had no application because he was satisfied that the parties never intended that the entry made in the book should contain the whole agreement between them. I do not think that is a correct view to take. It may very well be that writing may be an imperfect agreement, of which a Court cannot decree specific performance, but if, on the face of it, it contains all the terms which would entitle it to be considered as a perfect agreement which could be enforced, then undoubtedly no parol evidence could be adduced so as to alter or add to its terms unless they came within one of the provisos of Section 92 of the Evidence Act. Mo attempt has been made to bring this evidence within the first proviso. No fraud intimidation, illegality, want of due execution, or want of capacity in any contracting party or want or failure of consideration is suggested. Nor can it be said that this statement comes within proviso 2, as the agreement is that the defendant should not be obliged to perform his agreement with the plaintiff if he got a higher offer within the period of the contract. It is certainly inconsistent with the terms of the contract which is an absolute contract for sale of the land.
4. Lastly, it was urged that there was an oral agreement contemporaneous with the written agreement constituting a condition precedent to the attaching of any obligation under the contract. But it must be remembered that Rs. 2.00 were paid as earnest-money when the agreement was signed in Chanbasappa's books, so that there was part performance of the contract and it could not be said that it was intended by the parties that there should be no contract in existence until the period mentioned in the contract had expired, without the first defendant receiving a higher offer for the property. It seems to me, therefore, that under the rules of evidence the oral agreement could not be proved to vary, add to or subtract from the terms of the written contract. In any event, the Judge was wrong in not directing a return of the Rs. 200 deposited by the defendant as earnest-money. The appeal must be allowed with costs throughout. Judgment must be given for plaintiff as prayed by him in his plaint.
5. It is not disputed that defendants Nos. 2 to 5 had notice of the agreement, therefore, they entered into their contract with the first defendant subject to its being set aside on the plaintiff taking steps to enforce his agreement.