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Gurubasappa and ors. Vs. Gurulingappa - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. (H) 175 of 1956
Judge
Reported inAIR1962Kant246; AIR1962Mys246; ILR1961KAR878
ActsEvidence Act, 1872 - Sections 91 and 92
AppellantGurubasappa and ors.
RespondentGurulingappa
Appellant AdvocateJagannathrao Chandarki, Adv.
Respondent AdvocateManoharrao Jagirdar, Adv.
Excerpt:
- labour & services. dismissal from service: [subhash b. adi, j] dispensation of disciplinary enquiry - electricity (supply) act (54 of 1948) section 79 and karnataka electricity board employees (conduct, discipline, control & appeal) regulations, 1987, regulation 14 petitioner alleged to have been involved in theft - criminal complaint also lodged in this regard - however, based on same evidence criminal court held that charge of theft is not proved and also recovery is not proved by prosecution - disciplinary authority relying upon admission of criminal charge by petitioner before investigation officer and in charge sheet, passing order of dismissal held, not proper, particularly, when enquiry was dispensed with and petitioner had no opportunity before disciplinary authority. further,.....iqbal husain, j.(1) the important question to be decided in this appeal is which the document executed by the plaintiffs -- appellants father siddappa in favour of the defendant -- respondent is a 'viswasi bai' and not an out and out sale as contended by the appellants. the plaintiffs- appellants were successful in the trial court which decreed their suit for declaration of their title and perpetual injunction in respect of the suit properties. but the judgment and decree so passed in their favour were reversed by the learned district judge, gulbarga in appeal no. 35/4 of 1953-54. the plaintiffs filed a second appeal before the hyderabad high court which , on transfer, was heard by a bench of this court consisting of his lordship justice m.a. ali khan and myself.by an order dated 27th day.....
Judgment:

Iqbal Husain, J.

(1) The important question to be decided in this appeal is which the document executed by the plaintiffs -- appellants father Siddappa in favour of the defendant -- respondent is a 'Viswasi Bai' and not an out and out sale as contended by the appellants. The plaintiffs- appellants were successful in the trial Court which decreed their suit for declaration of their title and perpetual injunction in respect of the suit properties. But the judgment and decree so passed in their favour were reversed by the learned District Judge, Gulbarga in Appeal No. 35/4 of 1953-54. The plaintiffs filed a second appeal before the Hyderabad High Court which , on transfer, was heard by a Bench of this Court consisting of His Lordship justice M.A. Ali khan and myself.

By an order dated 27th day of February 1959 the case was remanded under the provisions of Order 41 Rule 25 CPC for the determination of the market value of the disputed Land at the time when the sale deed Exhibit. A-1 was executed. Thereupon, the learned Munsiff, after recording fresh evidence and also taking into consideration the evidence on the points already recorded gave his finding that the plaintiffs - appellants have failed to prove that the value of the suit Land at the time of the sale was Rs. 80/- to Rs. 100/- per acre as alleged by them, but on the other hand, excluding the uncultivable portion about 3 to 4 acres thereof the price per acre was Rs. 25/- to Rs. 30/- in 1340 F viz., the year of the sale of the property in favour of the defendant -- respondent. This finding of the learned Munsif if also challenged by Sri Chandarki the learned advocate appearing for the appellants.

(2) The facts leading up to this appeal are briefly as follows: the plaintiffs- appellants allege that the western half portion measuring 13 acres 11/2 guntas in Survey No. 67 of Ankalga Village, Afzalpur Taluka is their ancestral property which is in their possession and enjoyment. On 12.10.1950 the defendant --respondent interfered with the plaintiffs possession of the suit Land. Hence their suit for declaration of title and perpetual injunction against the defendant --respondent. The defendant --respondent, on the other hand, alleged that he is the rightful owner of the suit property inasmuch as the same was sold to him by the registered sale deed dated 11th 0 1340F by the plaintiffs father for a valuable consideration of Rs. 250/-. The defendant -respondent was put in possession of the suit land in pursuance of the condition in the sale deed. Hence the plaintiffs have no right, title or interest in the suit property.

In reply, however, the plaintiffs- appellants allege that the sale deed executed by their father Siddappa was not actually a sale deed but was a 'Viswasi Bai'; that the defendant --respondent delivered possession of the suit Land to the plaintiffs in 1357F as per a decision of the panchayathi on the plaintiffs paying a sum of Rs. 250/- the amount due to the defendant -respondent in respect of the suit Lands and the plaintiffs are in possession thereof ever since. But the defendant- respondent has denied both the panchayathi as well as the payment of Rs. 250/- as alleged by the plaintiffs. Hence the important question for determination is regarding the ownership of the suit Land : whether the defendant is the owner thereof as per the terms of the registered sale deed dated 11th Ardebehast 1340 F and marked as Exhibit A-1 in the case or whether the said sale deed is what is called a 'Viswasi Bai' as alleged by the plaintiffs -respondents.

(3) As per the sale deed exhibit A-1, plaintiffs father Siddappa sold the suit Land to the defendant -respondent and put him in possession thereof with a stipulation in the said deed that henceforth neither he nor his heirs have any right, title or interest in the said lands. In other words, a close scrutiny of its terms, indicates, that it envisages an absolute sale. Both the learned advocates for the plaintiffs -appellants as well as for the defendant -respondent are agreed that the terms of the document considered by themselves envisage an out and out sale. But Sri Chanderki, the learned advocate for appellants, contends that the surrounding circumstances have to be taken into consideration. If so done, the intention of the parties to treat the transaction not as an out and out sale as alleged by the defendant -respondent but as a 'Viswas Bai' will be manifest. He contends that oral evidence is admissible to prove the conduct of the parties which , when taken into consideration, supports the plaintiffs case.

On the other hand, it is urged by Sri Jagirdar, the learned advocate for respondent, that section 92 of the Evidence Act excludes the consideration of oral agreement or statement which would vary the terms of a written contract. According to him, the contract between the parties is reduced into writing and is evidence by exhibit A-1, the sale deed, by which document, ownership and possession of the property was transferred to the defendant. It does not, therefore, lie in the mouth of the plaintiffs to contend that the evidence contradicting varying, adding to or subtracting from the terms of the contract thereby changing the very nature of the suit transaction, should be either considered or given effect to.

(4) The term 'Viswas Bai' which looms large in this case appears to be a happy hunting ground for the parties in this case who like to escape from the rigorous of the terms and conditions of the transaction. What exactly is the connotation of this term 'Viswas Bai'? 'Viswas' as per common parlance is love and affection; 'Bai' in Urdu indicates a sale transaction. In other words, it means a sale as a result of good feelings amongst the parties or because of the trust, reliance or confidence that one reposes in the other. Applying that to the present case, it means a sale which has come about on account of the confidence reposed by the vendor in the purchaser. Sri Chanderki was definitely asked to indicate the nature of the transaction that was entered into be the plaintiffs father as indicated by the term 'Viswas Bai'. Is the transaction between the parties of the nature of mortgage or of a nature of a conditional sale? Cleverly, however Sri Chanderki would not like to pin the plaintiffs case to any of these nomenclatures perhaps with the apprehension in his mind that by so doing the plaintiffs case would be hit by the provisions of section 92 of the Evidence Act. He, therefore, contended himself by stating that it is not possible for him to give the exact nature of the transaction but at any rate, it is not an out and out sale. That is evident, according to him from the circumstances of the case.

(5) It is urged by Sri Jagirdar, the learned advocate for the respondent that the evidence of conduct sought to be relied upon by the plaintiffs appellants in this case cannot be looked into as the same is to be excluded as per provisions of section 92 of the Indian Evidence Act. There appears to be great force in this argument. The terms of the document evidencing the transaction is the primary evidence. If the terms are specific, clear and unambiguous, they speak for themselves. Hence, it is unnecessary to consider the meaning the connotation of those terms by a reference to the intention of the parties expressed by either the surrounding circumstances or the conduct of parties. In case of doubt or ambiguity in the terms of the document evidencing the transaction, in order to interpret the terms thereof, one has to resort either to the conduct of the parties or the surrounding circumstances or both. In a decision of the Supreme Court of Chunchun Jha v. Ebadat Ali, : [1955]1SCR174 the question that was to be decided was whether the transaction was a mortgage by conditional sale or a sale outright with a condition of repurchase and their Lordships held :

'Where a document has to be construed, the intention must be gathered, in the first place, from the document itself. If the words are express and clear, effect must be given to them and any extraneous enquiry interest what was thought or intended is ruled out. The real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used. If, however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended'.

Applying the said principles to the facts of the present case, as stated by make supra, the terms of the deed are specific and clear and there is no ambiguity about them. Hence they afford the best evidence possible of the intention of the parties. In such a case there is no necessity to look to extraneous circumstances outside the terms of the document.

(6) A recent case of this High Court has come to my notice and that is the case of Rajaram Rao v. Hanumantha Bhatta, 39 Mysore LJ 522 which follows the case of Chunchun Jha referred to above. His Lordship Somnath Iyer J. on the facts of that case has held that a document entitled as a sale was only a mortgage and held further as follows:

'The question whether a document which is ostensibly a sale deed is in reality a sale deed or only a pretence for a mortgage deed is in every case a question of fact to be determined by the contents of the document with such extrinsic evidence of the surrounding circumstances as might be required to show the relation to existing facts'.

In that case the early part of the document indicated that it purported to evidence the sale of the suit properties. But in the very same document it contained a recital that if the alleged vendors paid up the sum which formed the consideration for the document within a specified period they would 'get the Land freed' a charge was also created on the properties for the payment of the said sum. Taking into consideration all these circumstances, it was held that the relationship of debtor and creditor existed between the parties and that the terms of the document indicated that the executants had the right to retain the property. These aspects are, however, non-existent in the present case. No such terms are to be found in the document exhibit A-1. Hence by no stretch of imagination could it be interpreted as anything else than a sale deed.

(7) Can the terms of exhibit A-1 be interpreted or construed as though they do not connote a sale but something else or could the conduct of the parties be taken into consideration to come to the conclusion that though ostensibly it is a sale, what was intended by the parties was something else? The clear terms of section 92 of the evidence Act prevent a resort to the latter course. The relevant portion of the section runs as follows.

'When the terms of any such .............. disposition of property .......... have been proved according to the last section (section 91) 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.'

(8) There are six provisos to this section. Proviso 1 deals with fraud etc., invalidating a document. This has no application to the present case. Proviso 2 deals with the existence of separate oral agreement as to any matter on which the document is silent. Even this does not apply as it is not alleged that the document exhibit A-1 is silent regarding any matter in issue. Proviso 3 deals with a condition precedent which is not alleged in the present case. Proviso 4 deals with subsequent oral agreement rescinding or modifying the disposition of the property. Even this is inapplicable. So also proviso 5 deals with usage or custom. The last proviso is important. It States that any fact may be proved which shows in what manner the language of a document is related to the existing facts. It is very laconic and hence it has given rise to various schools of interpretation.

(9) Some of the Indian High Courts applying this proviso (proviso 6) at one time held that the conduct of the parties is admissible in evidence to show in what manner the language of the document is related to the existing facts. In other words they postulated that oral evidence of that conduct could be given which indicated that the document of sale or mortgage executed by the parties was intended to be not actually a sale or a mortgage. The existing facts prove the conduct of the parties and if the conduct of the parties was at variance with the terms of the grant or contract, evidence of the former should be considered by Courts of law as admissible evidence. Such was the view of the Calcutta and Hyderabad High Courts. A contrary and a stricter view was taken by the Madras and some other High Courts. This proviso in fact thus became the despair of the Judges and the joy of the lawyers. But after the decision of several cases of the Privy council, the matter is now well settled. No evidence regarding the conduct of the parties tending to vary or contradict the terms of the grant can now be admitted into evidence. The leading case is that of Bala Kishen Das v. W. F. Legge, ILR 22 All 149 (PC) which has been followed in a later decision of the Privy Council in Maung Kyin v. Ma Shwe Law, AIR 1917 PC 207 which lays down that oral evidence is not admissible for the purpose of ascertaining the intention of parties to a written document.

(10) Sri Chanderki, the learned Advocate for the appellants relied on full Bench decision of five Judges of the Hyderabad High Court in case of Eknath v. Mehtaji 13 Dec. LR 341 where the document evidencing the suit transaction was a sale, taking into consideration the surrounding circumstances and the conduct of the parties, oral evidence was relied upon to indicate that the transaction was a mortgage and it was held that such oral evidence was not hit by the provisions of section 76 of the Hyderabad Evidence Act. Reliance was placed by their Lordships of the Full Bench on the decision of the Calcutta High Court in the case of Khankar Abdur Rahaman v. Ali Hafez, ILR 28 Cal 256 which along with similar decisions was in the opinion of their Lordships of the Privy Council 'definitely ceased to be of binding authority'. The learned District Judge of Fullberga against whose order the present appeal is filed states in a part of his judgment as follows:

'The pleader for the respondent (present appellant) keeping his reliance upon the rulings reported in 13 D.L.R 341, 30 Dec L R 85, 33 Dec. D.L.R 278 argued that under section 76 of the Hyderabad Evidence Act, conduct of the parties against the spirit of the document can be proved. I admit this principle of law, but I think it is not at all applicable to this case'.

Though the learned District Judge holds correctly that the conduct of the parties in this case does not lead to the conclusion that it is a 'Viswas Bai' or mortgage with which view I am in complete agreement, perhaps following the decision of the Hyderabad High Court referred to supra he admits the principle of law laid down therein in spite of the fact that the Privy Counsel has taken a contrary view. The later decision of the Hyderabad High Court in the case of (S) AIR 1955 Hyderabad 179 follows the principle laid down by the Privy Counsel. It holds that the Calcutta decision on which their Lordships of the Hyderabad High Court in the Full Bench case of 13 Dec. LR 341, rely has been expressly disapproved and overruled by the Privy Council which held that:

'Oral evidence is not admissible for the purpose of ascertaining the intention of the parties to a written document and though attempts have been made to engraft an exception on this rule in favour of evidence relating to acts and conducts of the parties, it is now settled that such evidence is inadmissible'.

Similar is the view of the later decision of the Andhra Pradesh High Court in the case of Bolu MalDharma Das Firm v. G. Venkatachelapathi Rao : AIR1959AP612 which held that if a document on the face of it amounts to a sale deed, a party to it cannot be permitted to seek to establish that was intended to operate only as a mortgage. His Lordship Chandra Reddy C.J. delivering the judgment of the Court has summed up as follows:

'........... any attempt to let in extrinsic evidence to prove the intention of the parties for construing an instrument will violate section 92 of the Evidence Act which could be read only subject to the exceptions contained in several of the provisos. That being so, it is not for a Court to look into the evidence of surrounding circumstances to find out whether a document, which purported to be an out and out sale was intended to take effect only as a security bond'.

To the same effect are the two decisions of the Patna High Court in the case of Chandra Sekhar v. Mural Gope : AIR1957Pat673 and Ramlochan Singh v. Pradip Singh, : AIR1959Pat230 . In view of the above discussion when the terms of the document are clear and unambiguous and envisage an out and out sale, no oral evidence of the conduct of the parties could be admitted in evidence to vary or contradict its terms by indicating that the said document was not a sale but a 'Viswas Bai'

(11) Much more so this principle applies to the facts of the present case. At the time when this case came up before this Bench on a former occasion, great emphasis was laid down by Sri Chanderki on the fact that the value of the Lands as mentioned in the sale deed exhibit A-1 viz., Rs. 250/- bears no comparison to their actual market price at the time of the sale. In other words, the price is far below the true value of the property. According to him that is a pointer and determining test as to whether the transaction is a sale, as ostensibly it appears to beam or only a 'Viswas Bai'. After remand, the finding of the learned Munsiff on this aspect of the case given after due consideration of all the oral and documentary evidence and particularly, the fact that there are two cart tracts running in the suit Land and there is a burial ground also in a part of it, points out that the price paid at the time or exhibit A-1, is the fair price prevailing at the date of the sale. We have perused the order made by the learned Munsiff with care and we see no reason to differ from his view in this respect. Moreover no grounds by way of objections as per order 41 Rule 26 C.C. are raised in this case against the findings of the Munsiff.

(12) One other aspect which has to be taken into consideration is the possession of the property. As per the terms of the sale deed, the possession of the Land was given to the vendee, viz., the defendant -respondent. The document evidencing the sale was with the vendee and was also produced by him into Court. Yet the plaintiffs allege that they are in possession of the Lands.

(13) There are a few facts which militate against this contention. There were proceedings between the parties under section 148 of the Hyderabad Code of Criminal Procedure (Corresponding to section 145 of the Indian Cr. Procedure Code) in the Court of the Magistrate at Bashirabad. As per the orders of the learned Magistrate marked as exhibit A-2 dated 25th of Aban 1354 F, it is evident that it is the defendant who was in possession of the properties. Hence the contention of the plaintiffs that they were in possession of the same in the year 1344 F appears to be untrue. In order to counteract this circumstances, the plaintiffs have come out with the theory of two panchayats.

Sri Chanderki, the learned advocate for the appellants submits that the first Panchayat said to have taken place in the year 1344F is to the effect that possession of the Land should be given to the defendant for a period of eight years and after that period, the property should be handed back to the plaintiffs. In pursuance thereof at the close of the year 1351 F, possession was given to the plaintiffs. If so, possession must have continued with the plaintiffs thereafter. But as a matter of fact, as per the findings of the magistrate referred to supra, it was the defendant who was in possession of the property in the year 1354 F. Perhaps in order to get over this hurdle, the plaintiffs have come out with the theory of the second panchayathi which , according to them, took place in the year 1357F. As per the terms of the said Panchayathi, possession of the properties was given to the plaintiffs on the latter paying a sum of Rs. 250/- to the defendant. If a sum of Rs. 250/- was paid by them as alleged, ordinary prudence would have impelled them to arm themselves with a document in taken thereof either in the form of a receipt or a document reconvening the property to them. No such document is forthcoming.

(14) Thus, the facts of this case reveal that the plaintiffs have failed to prove any conduct on their part revealing that the parties to the document treated the transaction as a 'Viswas Bai'; that they treated it not as a sale deed but either as a mortgage or a conditional sale with the stipulation of repurchase on payment of the original consideration. Moreover, they have not taken any document to evidence the alleged repayment of the sale price of Rs. 250/-. Neither have they taken any steps to secure the original sale deed from the defendant viz., the vendee. There is no evidence that they have paid any interest in respect of the loan. There is no substance also in their contention that the consideration of the sale deed exhibit A-1 is absolutely inadequate. All these circumstances point out that their allegation that the suit transaction does not evidence a sale but a 'Viswas Bai' is without any foundation whatsoever.

(15) While concluding his arguments Sri Chanderki relied upon the decision of the Privy Council in Sara Veeraswami v. T. Narayya, reported in AIR 1949 PC 32. But the facts of that case are distinguishable from those of the present case. In that case, oral agreement as to reconveyance did not contradict, vary or subtract from the terms of the sale deed within the meaning of section 92 of the Indian Evidence Act and was, therefore, admissible in evidence. The agreement for reconveyance added a further stipulation respecting the Lands sold, but it could not be said to have added to the terms of the sale deed within the meaning of section 92 of the Evidence Act. Their Lordships held that to adjourned a stipulation which is quite unconnected with the terms of the same is not an addition of the kind struck at by the section.

(16) In the result, this appeal fails and is dismissed with costs.

Ahmed Ali Khan, J.

(17) I agree with the conclusions arrived at by my learned brother. But I wish to add a few more lines. The circumstances for the dispute leading to this litigation have been fully stated in the judgment by him. I agree fully with his conclusions that the appellants have failed to prove the surrounding circumstances relation to the conduct of the parties to indicate that the transaction was a 'Viswas Bai' as alleged by them. Even otherwise, I am of opinion that the appeal is unsustainable.

(18) The defendant respondent alleged that he is the owner in possession of the suit property on the basis of a registered sale deed exhibit A-1 executed by the father of the appellants in his favour. The appellants admitted the sale deed exhibit A-1 but the contention is that the intention of the party was to treat the transaction not as an out and out sake but as a 'Viswas Bai' i.e., an ostensible sale. It has been argued by the learned advocate for the appellants that parol evidence is admissible to prove the surrounding circumstances and the conduct of the parties to show their intention. Thus the principal point which arises in this appeal is whether the appellants were entitled to lead oral evidence with a view to show that the transaction is not an out and out sale but only a 'Viswas Bai' i.e., an ostensible sale. In deciding this question, it would be necessary to consider the true scope and effect of sections 91 and 92 of the Evidence Act. Chapter VI of the Evidence Act which begins with section 91 deals with the exclusion of oral evidence by documentary evidence, section 91 of the Act provides:

'When the terms of a contract, or a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained'.

The normal rule is that the contents of a document must be proved by primary evidence which is the document itself in original. Section 91 is based on what is described as best evidence rule. The best evidence about the contents of a document is the document itself and it is the production of the document that is required by section 91 in proof of its contents. In a sense the rule enumerated by section 91 can be said to be an exclusive rule inasmuch as it excludes the admission of oral evidence for proving the contents of a document except in cases where secondary evidence is allowed to be led under the relevant provisions of the Evidence Act.

(19) Section 92 of the Evidence Act runs as follows:

'When the terms 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'. It is manifest that section 92 excludes the evidence of oral agreement and it applies to cases where the terms of a contract, grant or other disposition of property have been proved by the production of the relevant documents themselves under section 91 of the Act. In other words, after the document had been produced to prove its terms under section 91, the provisions of section 92 of the Act come into operation for the purposes of excluding the evidence of any oral agreement or the statement for the purpose of contradicting, varying, adding to or subtracting from its terms. It would be noticed that sections 91 and 92 are in effect supplementary to each other. Section 91 would be frustrated without the aid of section 92 and section 92 would be inoperative without the aid of section 91. Since section 92 excludes the admission of oral evidence for the purpose of contradicting, varying, adding to or subtracting from the terms of the document properly proved under section 91, it may be said that it makes the proof of the document conclusive of its contents. Like section 91, section 92 can be said to be based on best evidence rule.

(20) It is clear from the terms of section 92 of the Act that the evidence of any oral agreement of statement is excluded for any of the purposes indicated therein unless it falls under any one of the provisos. Sri Jagannath Rao Chanderki the learned advocate for the appellants contends that oral evidence of the acts and the conduct of the parties is admissible to prove that the deed of sale was intended to operate as a 'Viswas Bai' and the admissibility in evidence can be used as a piece of conduct to establish the true nature of the transaction. He urged that the case falls under proviso (6) to section 92 of the Act. The question therefore is whether the instant case is covered by proviso (6) of section 92. This proviso runs as follows :

'Any act may be proved which shows in what manner the language of a document is related to existing facts'.

The language of the document i.e., the sale deed exhibit A-1 in the instant case is clear, specific and unambiguous and it is not disputed by the evidenced therein is an absolute sale. If the meaning of the words are clear route unequivocal and the intention of the parties is easily deducible therefrom, it is not permissible to lead parol evidence of the acts and the conduct of the parties or the surrounding circumstances to show that the document was not really it purported to be.

(21) In the case of Martand Trimbak v. Amritrao AIR 1925 Bom 501 one of the questions raised was whether the evidence of the circumstances surrounding an instrument which was expressed to be a sale deed and which was in fact intended to operate ((sic) as a mortgage) and not to take effect as a sale can be looked into. The Bench consisting of Macleod C.J. and Goyajee J. answered it is in the negative. Macleod C.J. observed thus.

'It is true that the evidence of the circumstances surrounding a document is admissible, but it is admissible only for the purpose of throwing light on its meaning. It would, we think, be not permissible to consider the surrounding circumstances with a view to holding that a document which on the face of it is a sale deed was intended to operate as a mortgage. There must be some limit to the suggestion that the surrounding circumstances can always be scrutinised so as to enable the Court to alter route change the nature of a document to something different from what it appears to be. Otherwise there could be no certainty as to the proper construction to be placed on a document which to all appearance is unambiguous'.

(22) In a later ruling of the same High Court (Bombay High Court) in Afshar M.M. Tacki v. Dharmsey Tricamdas : AIR1947Bom98 the same principle was enunciated. In that case Blagden J. Said;

'That a party cannot adduce evidence to prove that when he wrote one thing he meant quite a different thing'.

(23) In Vithoba Udebhanji v. Narayan Snood, AIR 1942 Nag 115 the question was whether a document was a mortgage or a sale with a condition to repurchase. Bose J. concurred with the view of the Courts below that a statement made by the transferor in an application of the same date as the document in question that the transferor had promised to purchase the land and pay the price and the evidence of the transferor can be taken into account and the document construct to be an absolute sale with a condition of repurchase. In reversing this, the Bench consisting of Stone C.J. and Neyogi J. observed :

'It is a well recognised rule of construction of deeds that the object of all interpretations is to discover the intention of the parties and that intention must be gathered from the written instrument itself. In other words the Court has to ascertain what the parties meant by the words they have used and to give effect to the intention which is expressed by the words used by the parties themselves'.

(24) The decisions of the Bench of the Oudh High Court in Punjab National Bank Ltd. v. S. B. Choudhry, AIR 1943 Oudh 392 and of Andhra Pradesh High Court in : AIR1959AP612 are also to the same effect.

(25) To the like effect is the statement of law contained in Tsang Chuen v. Li Po Kwai, AIR 1932 PC 255. The circumstances in which the exception contemplated by proviso (6) of section 92 of the Evidence Act so be invoked is described by their Lordships thus:

'The cases in which the parol evidence when objected to is, apart from fraud or mistake, receivable to correct written instruments are cases where, for example the evidence supplements but does not contradict the terms of the deed; or where the provisions of the deed leave the question doubtful whether merely a mortgage and not an out and out sale was intended; or where the language sought to be explained in evidence is language in an ordinary convincing form not exhaustively accurate but without an actual misstatement of fact'.

(26) In the case of ILR 22 All 149 and Narsingerji Gyanagerji v. Parthasaradhi, AIR 1924 PC 226, their Lordships of the Privy Council arrived at the decision solely on the construction of the two documents i.e., the sale deed and the agreement to repurchase. The conclusion arrived at was without reference to oral evidence but on the basis of the surrounding circumstances. But it was specifically laid down by their Lordships that the evidence of intention was inadmissible to construe an instrument or to ascertain the intention of the parties. Ever since the decision of the Judicial Committee in ILR 22 All 149 (Supra) it has been consistently held that it was not open to the parties to a sale deed to seek to establish by oral evidence that the sale deed was in fact intended to be a mortgage for such evidence would directly contradict the terms of the sale deed.

(27) This rule is in consonance with the pronouncement of their Lordships of the Supreme Court in the case of : [1955]1SCR174 . In that case the question under consideration was whether the transaction was a mortgage by conditional sale or a sale outright with a condition of repurchase their Lordships held:

'Where a document has to be contoured, the intention must be gathered, in the first place from the document itself. If the words are express and clear, effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. The real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used. If, however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended'.

On this authoritative pronouncement, it is plain that where a document is free from ambiguity in itself and is not susceptible of two interpretations, it is to be construed according to the strict, plain and common meaning of the words themselves and the evidence of extraneous circumstances is not receivable.

(28) Sri Chanderki the learned counsel for the appellants drew our attention to a full Bench decision of the rest while Hyderabad High Court in the case of Eknath v. Mehtaji reported in 13 Dec. Law Reporter p. 341. It was held in that case that oral evidence of the acts and conduct of the parties is admissible to prove that the deed of sale was intended to operate as a mortgage and that such oral evidence was not precluded by the provisions of section 76 of the Hyderabad Evidence Act which is corresponding to section 92 of the Indian Evidence Act. In that full Bench case, reliance was placed by their Lordships, on the decisions of the Calcutta High Court in the case of Preonath Shaha v. Madhusudhan Bhuiya, ILR 25 Cal 603 (FB) and ILR 28 Cal 256. But in a latter decision of the Hyderabad High Court in the case of (S) AIR 1955 Hyderabad 179, the principle laid down by the Privy Council in AIR 1917 PC 207 was followed in which (i.e., in the Privy Council case) it was held that the above referred two decisions of the Calcutta High Court and the decisions taking a similar view 'definitely ceased to be of binding authority'. In (S) AIR 1955 Hyderabad 179 mentioned above, it was observed by their Lordships:

'Lastly it was argued that apart from the ekrarnama there was oral evidence of the conduct of the parties which should be taken into consideration in arraying at a finding as to the true nature of the transaction. No doubt, the Full Bench case reported in 13 Dec. L. R. 341, supports the learned advocate for the respondent in the contention advanced by him. It seems difficult to concede to this contention, firstly because there is no evidence on the record of conduct, such as evidence of the repayment of the money, the return of the deed and the exercise of the acts of possession by the vendors as were contemplated in ILR 25 Cal 603 (FB); ILR 28 Cal 256 which had held that oral evidence of such and the like conduct was admissible and was not precluded by the provisions of section 92 of the Evidence Act corresponding to section 76 of the Hyderabad Evidence Act. Secondly even assuming that there was evidence of that nature on record, we would not be justified using it for the simple reason that the above two Calcutta cases have been expressly disapproved and overruled by the Privy Council in the case of AIR 1917 PC 207'.

(29) While concluding his argument, Sri Chandarki relied upon the decision of the Privy Council in AIR 1949 PC 32. But the facts of that case are distinguishable from those of the present case. In that case: 'the oral agreement as to reconveyance did not contradict vary or subtract from the terms of the sale deed within the meaning of section 92 and was therefore admissible in evidence. The agreement for reconveyance added a further stipulation respecting the Lands sold but it could not be said to have added to the terms of the sale deed within the meaning of section 92. It was held that to add a stipulation which is quite unconnected with the terms of the sale is not an addition of the kind struck at by the section.' Hence the decisions relied on by Sri Chandarki cannot be helpful to the appellants. Moreover the decision of the Supreme Court, : [1955]1SCR174 is a direct authority on the point which is a binding authority. Therefore viewed in any manner the contention advanced on behalf of the appellants is unsustainable.

(30) The above discussion shows that any attempt to let in extrinsic evidence to prove the intention of the parties for construing an instrument will violate section 92 of the Evidence Act which can be read only subject to the exceptions contained in the several provisos. That being so, it is not competent to the Court to look into the evidence of the surrounding circumstances to find out whether the document purported to be an out and out sale was to take effect only as a 'Viswas Bai' i.e., an ostensible sale.

(31) In the result, this appeal fails and the same is dismissed with costs.

(32) Appeal dismissed.


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