1. This appeal arises out of a suit brought by the plaintiff-appellant on the following allegations. The appellant was the owner of certain immovable property. On 17th June 1903, he created a mortgage on a part thereof. On 14th July 1903, he executed in favour of the respondents an unconditional deed of gift, reciting therein that the respondents would be liable for payment of the mortgage debt, and that he delivered possession to them in respect of the whole of the property in so far as it was capable of physical possession. After the execution, the respondents applied for mutation of names. The appellant contested this application but the Revenue Court held in favour of the other side and granted the application. The plaintiff then brought the present suit, stating that the defendants had assured him that they would redeem the mortgaged land and that they would pay him Rs. 84 a year out of the income of the estate and that on this condition, he executed a deed of gift but it was also agreed that until the mortgage was redeemed, he was to retain possession of the property, that the mortgage has not been redeemed, that he is still in possession of the property, that on the 22nd August 1904, the defendants failed to pay him Rs. 34 as agreed and that, therefore, a cause of action has accrued to him for the suit. The prayer is contained in para. 6 of the plaint. There the plaintiff prayed that it might be declared that the deed of gift of 14th July 1903 was, ineffectual and inoperative owing to material conditions and stipulations not having been fulfilled and that the defendants were not entitled to retain their names in the khewat on the basis thereof.
2. The Court of first instance dismissed the suit. The lower appellate Court, without going into the facts, has held that the suit is one falling under Article 91 of the second Schedule of the Limitation Act and that it, was barred by time in that the suit had been brought more than three years from the execution of the deed. The plaintiff on appeal urges two pleas, first, that the suit is not barred by limitation in that it falls under Article 120 and not Article 91 and second, that if it falls under the latter article, then the cause of action arose on the 22nd August 1904 when the defendants failed to pay him a sum of Rs. 84.
3. In our opinion looking to the prayer continued in the plaint the suit is clearly one which falls under Section 39 of the Specific Relief Act. The plaintiffs asked the Court to adjudge the instrument void or voidable. He asks for no declaration of his title. If he had done so, his suit might possibly have been held to fall under Section 42 of the said Act. As it stands, the suit is clearly one which falls under Section 39 of the Act and, in our opinion, there can be no doubt that Article 91 applies to it.
4. The next point urged is that the plaintiff's cause of action arose on 22nd August 1904, in that the defendants failed to pay to him the sum of Rs. 84 which they had agreed to pay. On the question of the alleged agreement, the lower Court has come to no finding whatever, but it is unnecessary to remand the case for any such finding. The agreement alleged is one which is actually contrary to the deed of gift itself, and under Section 92 of the Indian Evidence Act, the plaintiff is barred from giving any evidence in proof of the agreement. Therefore, in the absence of all proof of any such agreement, the second plea has no force whatsoever. The cause of action, if any, accrued to the plaintiff on the date of execution of the document and as the suit was not brought within 3 years thereof, it is barred by limitation.
5. In this view we dismiss the appeal with costs, including in this Court fees on the higher scale.