Ganga Nath, J.
1. This is a plaintiff's appeal and arises out of a suit brought by him against the defendants-respondents for preemption of the property sold on 1st September 1932 by defendant 3 to defendants 1 and 2. The plaintiff's ease was that though Rs. 1500 were entered in the sale deed as the sale consideration, the real consideration was only Rs. 800. The defendant contested the suit on the ground that the plaintiff had no preferential right and that the real sale consideration was Rs. 1500. The plaintiff is a co-sharer in the patti in which the property has been sold. The defendants vendees set up a gift deed alleged to have been executed in their favour by the vendor on 30th August 1933. The trial Court found that this gift deed was fictitious and consequently the defendants vendees did not acquire any right under it. As regards the sale price, it found that it was Rs. 1500. It decreed the plaintiff's suit. On appeal the learned Civil Judge found that the gift deed was valid and genuine and that the evidence to show that the gift deed was fictitious was barred by Section 92, Evidence Act. He allowed the appeal and dismissed the suit.
2. The lower Appellate Court has not recorded any finding on the question as to whether the gift deed was or was not fictitious. The vendees' own evidence shows that the gift deed was fictitious and was never intended to operate as such. As stated above, it was executed by the vendor himself only a day before the sale deed. The vendor was produced by the vendees as their witness. He stated that it had been agreed between the parties (vendor and vendees) that the property purporting to be transferred under the gift deed would be returned to the executant after the expiry of the period of limitation for the suit for preemption. There is no reason to disbelieve his evidence and it proves beyond any doubt that the gift deed never intended to transfer any property under it, inasmuch as the property which purported to be transferred under it was to be re-transferred by the donee to the donor.
3. It is urged by the learned Counsel for the respondents that the evidence on the point as to whether there was any agreement between the parties to the gift deed for the return of the property was barred by Section 92, Evidence Act. Section 92, Evidence Act, only excludes oral evidence to vary the terms of the written contract, and has no reference to the question whether the parties had agreed to contract on the terms set forth in the document. So also, Section 91 only excludes oral evidence as to the Germs of a written contract. Oral evidence is admissible therefore to show that a document executed by a person was never intended to operate as an agreement, but was brought into existence solely for the purpose of creating evidence about some other matter. Even if there were no provisos to Sections 91 and 92, there is nothing in either section to exclude oral evidence in such a case to show that there was no agreement between the parties and therefore no contract. If a party to an agreement embodied in a document is told that any stipulation in the agreement would not be enforced, he cannot be held to have assented to it. The document does not amount to real agreement between the parties. The gift deed in question was never intended to operate as such and consequently it was nothing but a sham transaction. No title passed to the vendees under this gift deed and they cannot be said to have become co-sharers in the same patti. The plaintiff has therefore evidently preferential right.
4. As regards the sale consideration, both the lower Courts have concurrently found that it is Rs. 1500. This finding is not challenged. It is therefore ordered that the appeal be allowed with costs. The decree of the lower Appellate Court be set aside and the decree of the trial Court be restored with the modification that the plaintiff will pay the sale price within 30 days from to-day. In case of default of payment of the sale price within the time allowed, the suit shall stand as dismissed with costs.