Banerji and Aikman, JJ.
1. The suit out of which this appeal has arisen was brought by the plaintiff-appellant to recover the balance of the amount of consideration for a sale-deed executed by him in favor of the respondents on the 18th of February 1888.
2. The plaintiff is the son of the daughter of one Jiwa Ram, and on the death of Musammat Incha Kuar, the widow of Jiwa Ram, he succeeded to Jiwa Ram's estate, which apparently was of large value. That estate had been taken possession of by Balmakund and others, who derived title from Incha Kuar. The plaintiff had no property and no means to defray the expenses of the litigation in which it was necessary for him to embark in order to recover the property inherited by him from Jiwa Ram. He accordingly entered into negotiations with the defendants for the sale to them of half of the property, they undertaking to finance the suit. Accordingly a sale-deed was executed on the 18th of February 1888, and the amount of consideration stated in it was Rs. 30,000. It was recited in the sale-deed that the plaintiff-vendor had received the entire amount of consideration according to the following detail.-
Rs. a. p. Received in cash at the time of registration ... 25,000 0 0 Received by setting off against the previous debt due under five Bukkas in favor of Sah LalChand ... ... ... 3,000 0 0 Costs to be paid on account of remuneration to Chandi Prasad and Jagan Prasad ... 2,000 0 0
3. It was farther recited in the sale-deed that as regards the receipt of consideration the vendor had not, nor would have, any sort of objection or dispute.
4. It is alleged by the plaintiff in his plaint that the mode of payment of the amount of consideration as recited in the sale-deed was not what was actually arranged between the parties, but it was agreed that the sale consideration should remain with the vendees subject to the condition that they should defray the costs of the suit which would have to be instituted for the recovery of the property and that after the termination of the suit half of those costs should be deducted out of the amount and the balance should be paid to the plaintiff. It was further stated in the plaint that the recital as to payment of consideration in the sale-deed was untrue, and that it was made through apprehension that a plea of champerty might be raised on behalf of the persons who were in possession. It appears that the plaintiff brought a suit for Jiwa Ram's estate jointly with the defendants, and a decree was made by the Court of First Instance in their favor on the 10th of December 1888. That decree was affirmed by this Court on the 26th of May 1891. The present suit was filed on the 6th of December 1892. The plaintiff further alleged in his plaint that he had not received any part of the consideration and that his share of the costs of the litigation amounted to about Rs. 2,000. He accordingly claimed the balance of Rs. 28,000 and the interest on that amount.
5. The defence raised in the written statement of the defendants was that the consideration entered in the sale-deed had been paid in full, that no part of it was fictitious and that nothing was due to the plaintiff. The lower Court disbelieved the evidence adduced on behalf of the defendants as to the payment of consideration. But it also disbelieved the statement of the witnesses examined on behalf of the plaintiff and was of opinion that the plaintiff had failed to prove that the amount of consideration was agreed to be paid in the manner alleged in the plaint. On this ground the Court below dismissed the plaintiff's suit. The plaintiff has appealed.
6. At the outset of the argument it was objected by learned Counsel for the respondents that the plaintiff could not adduce evidence to prove that the consideration for the sale was agreed to be paid in the manner set forth in the plaint. The objection was based on the provisions of Section 92 of the Indian Evidence Act, 1872, which are to the effect that no evidence of any oral agreement or statement shall be admitted for the purpose of contradicting, varying, adding to or subtracting from the teems of a written contract. It is true that the evidence referred to above was admitted by the Court below, and that no objection was raised in that Court as to Its admission, but we agree with the contention of Me learned Counsel for the respondent that when evidence has been improperly, received in the Court below it is the duty of the Court of appeal to reject that evidence if in its opinion the evidence was legally inadmissible, even though no objection was raised to the admissibility of the evidence in the Court below. We have therefore to consider whether the objection raised by the learned Counsel for the respondents is a valid objection. 'We are of opinion that the evidence which is now objected to was legally 5, admissible. The allegation in the plaint, if true, was not an allegation which contradicted or varied the terms of the sale-deed. The terms of the contract I as agreed upon in the sale-deed were that for a consideration of Rs. 30,000 the plaintiff was to convey half of the property to the defendants. There is no dispute as to these terms. The plaintiff concedes that the amount of the consideration was Rs. 30,000. What, he says is that it was not actually I received as stated in the sale-deed, but that an arrangement was made between him and his vendees by which the payment was deferred. It is settled law 5 that, notwithstanding an admission in a sale-deed that the consideration had been received, it is open to the vendor to prove that no consideration was factually paid. In Hukum Chand v. Hira Lal I.L.R. 3 Bom. 159, it was held that Section 92 of the Evidence Act (Act No. I of 1872) does not prevent a party to a contract from showing that there was no consideration, or that the consideration is different from that described in the contract. If it is open to a party, as is undoubtedly the case, to show, notwithstanding a recital in the sale-deed, that no consideration passed, or that the actual consideration was different from that stated in the deed, it is, in our opinion, open to a party to prove under what circumstances the payment of consideration was postponed, and what was the mode agreed upon as to the payment of it. We think that to admit such evidence is not allowing evidence to be given to vary ;or contradict the terms of a written contract. This view is supported by the principle of the ruling of the Calcutta High Court in Lola Himmat Sahai Singh v. Llewhellen I.L.R. 11 Cal. 486, and of this Court in Ram Bakhsh v. Durjan I.L.R. 9 All. 392. In the case last mentioned the suit was in respect of a bond payable by instalments, and the question was whether evidence was admissible to prove that at the time of the giving of the bond it was agreed to let the creditor have possession in lieu of instalments. It was held that such evidence was admissible, that the contract alleged del not detract from, add to, or vary the original contract, but only provided for the means by which the instalments were to be paid. Similarly in this case the agreement alleged by the plaintiff did not contradict, vary or add to the terms of the original contract, but only provided for the mode in which the amount of consideration agreed upon in the sale-deed was to be paid. We are of opinion that the Court below rightly admitted the evidence tendered by the plaintiff to prove the allegations made by him in the 4th and 5th paragraphs of his plaint.
7. The judgment then went on to discuss facts of the case; but the remaining portion is not material to the purposes of this report.--Ed.