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Mohammad Taki Khan Vs. Jang Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1935All529
AppellantMohammad Taki Khan
RespondentJang Singh
Cases ReferredChunni Bibi v. Basnti Bibi
Excerpt:
- - ' under proviso 1, however any fact which would invalidated any such document can be proved and by way of illustration it is mentioned that, want or failure of consideration can,;be proved. obviously such want or failure of consideration as can be proved must be one which would invalidate the document. the trial court did not come to the finding that the transaction was wholly fictitious and holding it to be a deed of gift, dismissed the plaintiff's claim for recovery of the sale price as well. 16. at the same time i am clearly of the opinion that the case of hanif-unnissa v. 298. it is precisely because in the latter case those considerations were not present that i consider that that ruling is incorrect in assuming that the facts in that ruling' were similar to the facts in the.....sulaiman, c.j.1. three questions have been referred to this full bench far answer by the division bench before which the plaintiff's appeal arising out of a suit for sale on the basis of a mortgage-deed came up for hearing. on 17th august 1926, a sale deed, was executed by the plaintiff and his uncle along with their wives in favour of the two vendees including the present defendant. the sale deed purported to be for rs. 11,400, out of which a part was paid in cash and another part was set off against a previous debt and the balance of rs. 5,000 was stated to have remained in the hands of the vendees who were liable to pay the amount to the vendors. on the same date a mortgage deed was executed by one of the vendees in favour of the plaintiff and his uncle for this sum of rs. 5,000, under.....
Judgment:

Sulaiman, C.J.

1. Three questions have been referred to this Full Bench far answer by the Division Bench before which the plaintiff's appeal arising out of a suit for sale on the basis of a mortgage-deed came up for hearing. On 17th August 1926, a sale deed, was executed by the plaintiff and his uncle along with their wives in favour of the two vendees including the present defendant. The sale deed purported to be for Rs. 11,400, out of which a part was paid in cash and another part was set off against a previous debt and the balance of Rs. 5,000 was stated to have remained in the hands of the vendees who were liable to pay the amount to the vendors. On the same date a mortgage deed was executed by one of the vendees in favour of the plaintiff and his uncle for this sum of Rs. 5,000, under which the mortgagor agreed to pay this amount to the two vendors and hypothecated his immovable property as security for the amount. There was, of course, an admission that this sum was due under the contemporaneous sale deed and would be paid later. The present plaintiff admits to have received some payments and brought the suit to recover Rs. 3,300, the balance out of Rs. 5,000 which according to him had remained unpaid. The defendant set up the defence that the principal consideration of the sale deed was not Rs. 11,400 but only Rs. 8,400 and that the extra sum of Rs. 3.000 had been entered therein fictitiously in order to defeat and delay possible preemptors. A question arose whether it was open to the defendant to adduce evidence to show that a part of the sale consideration was really fictitious. Such evidence was allowed by the Courts below and they have come to the concurrent finding that this amount was in fact fictitious. The first question referred to the Full Bench is:

Whether evidence tending to show that the consideration for the said sale was a lesser sum than that stated in the sale-deed of the 17th August 1926 was admissible.

2. The answer to this question depends on an interpretation of Sections 91 and 92, Evidence Act. Under the latter section when the terms of any contract have: been proved, no evidence of any oral agreement is to be admitted as between the parties to any such instrument or their representatives, 'for the purpose of contradicting, varying, adding to, or substracting from, those; terms.' Under proviso 1, however any fact which would invalidated any such document can be proved and by way of illustration it is mentioned that, want or failure of consideration can,; be proved. Obviously such want or failure of consideration as can be proved must be one which would invalidate the document.

3. There are several cases in support: of the plain tiff-appellant's case, which, may be first mentioned briefly. In the case of Adityam Iyer v. Rama Krishna Iyer 1915 Mad 868, it was laid, down that the amount of the price-agreed to be paid is an essential term, of a contract of sale and that no evidence of an oral agreement at variance with the provisions of the deed is admissible. Accordingly the vendor in that case was not allowed to show that, the true sale consideration instead of the ostensible amount of Rs. 35,00O was really Rs. 36,000, the extra sum. of Rs. 1,000 having been agreed to be written off after delivery of possession. See also the cases of Annada Charan v. Hargobinda 1923 Cat 570 and Krishanyya v. Mohammad Galeb Sahib 1930 Mad 659.

4. In the case of Lala Singh v. Basdeo Singh 1923 All. 429, Walsh, J., declined to allow evidence to be considered which was intended to show that the true consideration; of Rs. 3,000 mentioned in the sale deed., was in fact Rs. 2,500 only, and he thought that an attempt to prove that a sale really took place for one sura when the deed says that it took place for another sum was not. within the proviso of Section 92 and could not be allowed to be made. The learned advocate for the defendant had to concede that this case is a direct authority in favour of the plaintiff-appellant. He however relies first on certain earlier cases in support of his contention that evidence is admissible.

5. In the case of Bal Kishen Das v. W.F. Legge (1900) 22 All. 149, their Lordships of the Privy Council disallowed oral evidence for the purpose of ascertaining the intention of the parties to the deeds in question, but laid down that the question whether the document was an out and out sale or whether it was a mortgage by conditional sale could be decided on a consideration of the documents themselves with only such extrinsic evidence of such surrounding circumstances as may be required to show in what manner the language of the document is related to existing facts. By the very definition of mortgage by conditional sale as now contained in the Transfer of Property Act, a transaction which is ostensibly one of sale would be a mortgage by conditional sale, if there is an agreement to re-convey the property.

6. In the case of Sah Lal Chand v. Indrajit (1900) 22 All. 370, their Lordships of the Privy Council affirmed the judgment of this Court and approved of the proposition that where there had been a false acknowledgement by recital in a deed of sale of the payment by the purchaser of the consideration money and its receipt by the vendor, it is open to the latter to prove that no consideration money was actually paid. Their Lordships took care to point out that Section 92 did not indicate that no statement of fact in a written instrument was to be contradicted by oral evidence. Accordingly when there was a mere acknowledgment of a receipt of consideration it was laid down that there was no infringement of that section to accept proof that by a collateral arrangement between the parties, the consideration money had in fact remained with the purchaser in his hands for the purposes and under the conditions agreed between them. These cases therefore do not support the contention urged on behalf of the defendant.

7. But great reliance is placed by the learned Counsel on the case of Hanifunnissa v. Faiz-unnissa (1911) 33 All. 340, decided by their Lordships of the Privy Council. In that case Hanifunnissa had executed a document which purported to be a sale deed for a sum of Rs. 60,000 in favour of her daughter and had acknowledged the receipt of the entire consideration in the deed. She brought a suit on the allegations that the document was a fictitious document and that really no interest in the property had passed to the transferee. In the alternative she claimed that it was a sale deed, the consideration for it had not been paid to her and she should be given a decree for the full amount. The defendant on the other hand denied that the transaction was a fictitious transaction, but at the same time did not admit that it was a sale transaction and pleaded that it was a transaction of gift under which she was not liable to pay any amount at all. The trial Court did not come to the finding that the transaction was wholly fictitious and holding it to be a deed of gift, dismissed the plaintiff's claim for recovery of the sale price as well. On appeal before the High Court only one point appears to have been pressed on her behalf, for the judgment of the High Court opened with the remark:

The only point involved in this appeal is whether or not extrinsic evidence is admissible for the purpose of showing that a document which purports to be and is on the face of it a deed of sale is in reality a deed of gift,

8. The learned Judges came to the conclusion that the defendant was debarred from showing a different nature of the transaction and that Section 92, Evidence Act, was in her way, and accordingly decreed the plaintiff's claim for recovery of Rs. 60,000 on the footing that it was a sale transaction, though not a fictitious transaction. When the matter went up in appeal before their Lordships of the Privy Council, their Lordships thought that the decree appealed from could not be sustained and were of the opinion that the proper course was to remand the case to the High Court to be dealt with on the evidence. The case was accordingly remanded. Another Division Bench of this Court then disposed of the appeal and dismissed the suit holding that the transaction was one of gift, pure and simple.

9. The learned advocate for the defendant relies on this case strongly and urges before us that this is a conclusive authority that evidence should be allowed to show that the sale consideration was not what was recited in the deed. It should however be borne in mind that in that case although the plaintiff's case that the document was fictitious had apparently been abandoned in the High Court and was certainly not made the basis of the decision by the High Court, there was an admission by the plaintiff that the whole of the consideration had been paid to her and that nothing was due and owing to her from the defendant. The deed on the face if it therefore showed that there was no longer any pecuniary liability on the transferee at all. The defendant took up the same position that there was no further pecuniary liability on her, but explained this circumstance by showing that although there was a recital that money had in fact been paid, the true fact was that it was understood between the parties that no money should ever be paid and was therefore not paid. The decision of their Lordships of the Privy Council is accordingly no authority for the proposition that where a part of the sale consideration is on the face of the document still outstanding and is agreed between the parties to be payable in future, it is open to the vendee to show that that sum was a fictitious amount.

10. This Privy Council case was followed by a Division Bench of this Court in the case of Chunni Bibi v. Basnti Bibi 1914 All. 298. In that case the ostensible sale consideration stated in the deed was Rupees 40,000 but the vendor had admitted receipt of Rs. 37,600 and had acknowledged payment in the deed; the balance of Rs. 2,400 was to be paid in cash at the time of the registration. The vendor however brought the suit for recovery of Rs. 24,874 out of the sum of Rs. 37,600 on the allegation that although it had been admitted in the deed that the sum had been paid, it had in fact not been paid. The defendant turned, round and although denying liability to pay this amount pleaded that this sum had been fictitiously entered in the deed and that it was wrongly stated to have been paid, the true fact was that it was never intended between the parties that it should be paid and that accordingly it had not been paid. The Bench purporting to follow the decision of their Lordships of the Privy Council held that such evidence was admissible. One of the reasons suggested was that where a plaintiff is allowed to go back upon the recital in the the deed, the defendant is also entitled to produce oral evidence in support of her own allegations. It is not possible to admit oral evidence on any such equitable ground. The question whether evidence is admissible or not is a legal question which is to be decided on the proper interpretation of the relevant sections of the Indian Evidence Act.

12. Under Section 91 when the terms of a contract have been reduced to the form of a document, no evidence can be given in proof of terms of such contract except where secondary evidence of its contents is admissible. It follows that if the contract between the parties has been reduced to the form of a. document, they cannot be allowed to set up any other contract at variance with the terms of the document.

13. Section 92 Evidence Act, provides that where a contract has been entered into between two parties and certain terms have been reduced to the form of a document, then neither party, with certain exceptions, can be allowed to go back upon the written document and either contradict, vary, add to or substract its terms. Both parties must be tied down to the agreement which they chose to reduce into writing. The exceptions are contained in the various provisions. The section therefore prevents a party from varying the terms of the document in a way which would be contrary to its plain language, but where other evidence is sought to be produced in order to invalidate the document itself, then, of course, there is no prohibition because obviously the invalidation of a document is not a variation of its terms, but its very negation.

14. Where the dispute is as to whether the transferee had agreed to pay Rs. 5,000 or Rs. 3,000 in future the agreement is certainly a part of the terms of the document and contains a promise of the transferee and therefore an obligation and liability on him to pay the stated amount. On the other hand, where the dispute is as to whether a sum of Rs. 5,000 stated to have already been paid and received was in fact Rs. 5,000 and not a smaller. sum of Rs. 3,000, the question is one of fact, and relates to the exact amount which was paid and received. Substantially this is no part of the terms of the contract, for there is now further obligation on the transferee to pay the stated amount. In reality the question what was the actual amount paid in the past, i.e., the recital of the amount said to have been received, is not very material if both parties admit that that amount is no longer due. A recital as to the past payment is a recital of a fact and therefore is no estoppel against the person who made the admission. There is only a presumption against him arising out of his admission, but that presumption is by no means conclusive or irrebutable. On the other hand, where there is a promise to pay a certain amount in future, it is by no means a statement of a fact which may be shown to be incorrect, but is the undertaking of a liability under a written document which cannot be allowed to be departed from. By trying to show that the recital is wrong, the party is merely trying to show that it made a wrong admission; while by attempting to show that the amount promised to be paid was different he is attempting to alter one of the conditions in the deed which still remains to be fulfilled. It seems to me that there is under this section no prohibition against the party to a document restraining him from trying to show that a statement of fact contained in the document was in reality not true, but there is a prohibition against him from attempting to show that one of the essential terms of the document which creates an existing liability on him was wrong, and therefore not binding upon him.... If the admission has been obtained by means of fraud, force or misrepresentation or is in any other way invalid, It is open to the party aggrieved to have the document set aside, in which case it would fall to the ground on account of its invalidity, but a party cannot accept a part of the document and its terms and repudiate the other parts. Where a defendant says that the transaction in question was not a sale but a mortgage or that it was not a sale but a gift, fee is attempting to show that the true nature and character of the transaction was different from what it ostensibly was. He need not necessarily be varying its terms provided such, terms can be gathered from the documents in existence and, as laid down by their Lordships, from the surrounding circumstances showing the relation to existing facts. But where a party admits that a transaction was of the nature and character as appears from the document, but wishes to show that the consideration still payable was less or more than what was entered therein, he is accepting the transaction in part and trying to alter another part of it. Such a course is certainly not open to the party.

15. Speaking personally for myself, I think the case of Hanif-unnissa v. Faiz-unnissa (1911) 33 All. 340 decided by their Lordships of the Privy Council could not be distinguished in Chunni Bibi v. Basnti Bibi 1914 All. 298. It is suggested that the distinction was that in that case the plaintiff had at first alleged that the transaction was wholly a fictitious one, though at a later stage that position was actually abandoned. It would, to my mind, have made no difference even if she had brought a suit on the simple allegation that the sum of Rs. 60,000 was due to her on the sale deed, for the defendant would still have been allowed to prove that what she had admitted to have received and therefore admitted was not due from the defendant was in fact not due because it had never been agreed to be paid. Their Lordships no doubt sent the case back for decision on the merits. But I would take it that their Lordships meant that the case should be decided on the evidence which the High Court had declined to examine, thinking that Section 92 was a bar, that is to say evidence relating to the question as to whether the transaction was a gift transaction that is such that there was no consideration outstanding. When the case came back to the High Court, the only point that was considered was whether the transaction was a gift, or a sale and the finding being in favour of the defendant, the suit was dismissed. Had the further question as to whether the transaction was a fictitious one also arisen, the enquiry would not have been confined to these natures of the transaction only. It was on taking this view of the Privy Council decision that the Division Bench in the case of Chunni Bibi v. Basnti Bibi 1914 All. 298, allowed evidence to be given to show that part of the consideration which had been admitted by the plaintiff in that suit to have been received and therefore no longer due was in fact no longer due though on the ground that it had been understood that nothing would be payable at all. In view of the decision of their Lordships of the Privy Council, I am unable to hold that this view was in any way erroneous.

16. At the same time I am clearly of the opinion that the case of Hanif-unnissa v. Faiz-unnissa (1911) 33 All. 340 did not decide the wider question that it is open to the defendant to show that the consideration mentioned in the sale deed was fictitious even though there was under the deed an existing liability on the defendant to pay such an amount. The distinction to my mind is this: Where the written document purports to show that property was transferred by one party to the other and that there was no longer any further liability on the latter to pay any amount to the former and goes on to add that this is so because the additional amount which the latter was liable to pay had already been paid previously, then the defendant is entitled to say that there was a contract of transfer of the property and that property passed from one to the 'Other and further to agree that there was no longer any liability on him to pay any additional amount, but may say that the reason why there is no longer any liability on him is not that the amount stated to have been paid previously was in fact paid, butt that it had never been agreed upon that it would be paid at all and was therefore not paid. The dispute between the parties whether the amount which was admitted by one party to have been paid and was therefore not due or whether it was agreed by both the parties not to be payable and was therefore not payable, does not raise any question of the existing rights and liabilities between the parties under the document, but merely recites a past event. 1 therefore do not consider that there is any attempt to vary the terms affecting the rights and liabilities of the parties, if it is tried to be shown that the recital of the past event was slightly inaccurate,' although the effect of the document was the same as appears from it.

17. In the present case however the sum of Rs. 5,000, was expressly stated to be still due from and payable by the vendees. Indeed, they executed a separate mortgage deed in order to secure this amount. To allow one of the vendees now to go back upon this covenant would be to allow them to repudiate their liability to pay Rupees 5,000 which under the document, they were bound to pay. I do not consider that such a covenant is a mere recital of a fact which can be shown to be wrong; it would really be varying the terms of the document if evidence to show the contrary were permitted.

18. I have therefore no hesitation in holding that where under a written document there is some amount still outstanding which under its terms has to be paid by the transferee, then it is not open to the transferee to produce oral evidence to show that there was a separate contemporaneous oral arrangement under which it was agreed that this sum would not be payable, for such a course would be allowing him to contradict the terms of the document and would be contrary to the provisions of Section 92, Evidence Act. The second question referred to the Full Bench is:

Whether evidence tending to show that the mortgage of the 17th August 1926 was for a lesser gum than that stated in the mortgage deed o that date was admissible.

19. So far as the amount of the mortgage money as stated in the mortgage deed is concerned, it is always open to the mortgagor to say that he had not received the full consideration, because the admission that so much had been paid by the mortgagee to the mortgagor is a mere acknowledgment of the receipt of the amount paid in the past and is therefore a recital as to a fact and there is nothing in Section 92, which would debar a mortgagor from saying that although he admitted having received the full amount, he had not in fact received it. On the other hand, if a dispute arose as to whether the exact amount mentioned in the mortgage deed to be paid in future was the amount agreed to be advanced or was more or less, then both parties would be estopped from going behind the recital, because there would be an implied promise on the part of the mortgagee to advance the whole of that amount.

20. The present defendant in my opinion is not debarred from producing oral evidence in this case because of the terms entered in the mortgage deed, but the bar is really created by the execution of the sale deed, for in my opinion he is entitled to say that the money sought to have been borrowed by him had not in fact been borrowed though he cannot be allowed to say that the balance of the sale consideration was not for Rs. 5,000. The third question referred to us is:

In any event whether it was open to the defendant respondent to say that the sums stated in the two documents were not the true sums having regard to the fact that it was his case that the consideration in the sale deed was in-correotly stated in order dishonestly to defeat the possible rights of a third person.

21. In view of the answers given to the first two questions, as to which all of us are agreed, though perhaps for different reasons, it is not necessary to answer the third question. There is the further difficulty that facts have not been gone into by the Courts below as to whether any person was in fact defrauded. Where a plaintiff comes to Court and wants to go back upon the terms of a contract entered into by him on the ground that such terms had been fraudulently entered by himself in order to cheat a third person and such fraud has actually succeeded, there can be no doubt that the plaintiff would be estopped from alleging his own fraud and setting it up as against the defendant. The question whether a defendant can in similar circumstances be allowed to plead that the terms were fraudulent and that accordingly he may be allowed to show that there was a fraud because the plaintiff was also a party to it, may be a different question. It is however unnecessary to answer it in this case.

Beninet, J.

22. I am in agreement with the replies of the Hon'ble Chief Justice in the negative to questions 1 and : 2 referred to this Full Bench and I also agree that question 3 need not be answered. I desire to add some remarks in regard to the ruling of a Bench of this Court in Chunni Bibi v. Basnti Bibi 1914 36 All. 537. On p. 544 it is stated:

The main contention of the learned advocate for the appellant (defendant) was that if the respondents (plaintiffs) are entitled, as they undoubtedly are, to go behind the recital and admission in the deed and prove that the entire consideration has not been paid, it is open to the appellant to produce oral evidence as to the true mature and extent of the consideration.

23. In that case the plaintiffs sued for the alleged balance of the purchase money although the sale deed acknowledged payment in full. This could be done under Section 92, proviso (1), Evidence Act, as this allows proof of want of consideration and it is to be noted that Sections 91 and 92 do not deal with the question of mere receipts or acknowledgments that consideration was received. The defendant in reply desired to produce oral evidence that the sale consideration was less than that stated in the sale deed. On p. 547, Chamier, J., stated what he conisidered was the reason for the decision of their Lordships of the Privy Council in Hanif-unnissa v. Faiz-unnissa (1911) 33 All. 340, as follows:

In some of the cases the decision rests upon a ground which applies as much to one kind of case as to the other, namely, that it one party to a deed alleges and proves that the consideration, the receipt of which was acknowledged in the deed, did not pass, the case falls within the first proviso to Section 92 of the Evidence Act, and the other party is at liberty to prove what the real consideration was. It appears to me that it must have been upon this ground that their Lordships of the Privy Council admitted the evidence tendered by the defendant in that case

24. He further held:

On the authorities I would hold that as the respondents (plaintiffs) have alleged and proved that the whole of the consideration receipt of which is acknowledged in the deed did not pass, the appellant is entitled to produce oral evidence in support of her allegations.

25. The late Banerji, J., held on p. 549 in regard to the ruling of their Lordships of the Privy Council quoted:

Their Lordships of the Privy Council reversed this decision and held that oral evidence could be given by the defendants to prove the real nature of the transaction. Apparently their Lordships were of opinion that the case would come within the first proviso to Section 92. I am unable to distinguish the present case from the principle of the ruling above mentioned. In view of that ruling I must hold that the appellant is entitled to produce oral evidence to prove her allegations.

26. It is clear therefore that both the learned Judges in this case admitted oral evidence for the defence because they considered that the case was covered by the ruling of their Lordships of Hanif-unnissa v. Faiz-unnissa (1911) 33 All. 340. Now in the ruling of their Lordships to which reference was made no reasons have been given for the decision. Their Lordships merely state on p. 341:

Their Lordships think the decree appealed from cannot be sustained. They are of opinion that the proper course will be to remit the case to the High Court to be dealt with on the evidence.

27. I consider that if this ruling of their Lordships is to be taken as an authority for a proposition of law then that proposition of law must be applied to a case where the facts are similar. Is it correct to say that the facts in Chunni Bibi v. Basnti Bibi 1914 All 298, cannot be distinguished from the facts in Hanif-unnissa v. Faiz-unnissa (1911) 33 All. 340? The facts of the case before their Lordships of the Privy Council are quoted in some greater length in the report of the judgment of this Court in Faizunnissa v. Hanifunnissa (1905) 27 All. 612, and I have also referred to the paper book of this case which was before their Lordships of the Privy Council. In para. 3 of the plaint it was set out:

After the death of Kunwar Abdul Ghafur Khan, Abdush Shakur Khan, son of the plaintiff, became a great prodigal and profligate person and always compelled the plaintiff to give her money by exercising undue influence on her. Therefore under a pretence to protect herself against his undue influence, the plaintiff executed a fictitious sale deed on the 27th day of September 1889, in respect of the property mentioned below, in favour of all the three defendants (who were minors), merely with a view to change the names, by entering Rs. 60,000 in it as the amount of consideration.

28. These defendants were the defendants first party, the daughter of the plaintiff and her grandson and granddaughter. The first relief asked for was the recovery of possession of the property and a declaration that the document of 27th September 1889 had no effect and that the defendants have thereunder acquired no right in the property claimed. The second relief was:

If the Court does not think it proper to award possession of the property claimed to the plaintiff, it may pass a decree in her favour for Rs. 60,000 the amount of consideration entered in the sale deed, etc.

29. The main case therefore of the plaintiff was that the document in question was a fictitious document. The pleading of the contesting defendants, who were transferees from the persons in favour of whom the document had been executed, was that the transaction was indeed fictitious in the sense that it was not a sale deed but that there was a transfer by way of gift. The finding of the trial Court was that the transaction amounted to a gift, and the suit of the plaintiff was dismissed. The plaintiff appealed to the High Court, and the first ground of appeal set out in the memorandum was:

Because upon the evidence it has been fully established that the deed of sale dated 27th September 1889...was fictitious and not a real transaction, and that no transfer of property took place thereunder.

and the second ground set out that the plaintiff continued in possession of the property, and the third ground set out that in the absence of consideration and transfer of possession the said deed was invalid and void under the Mohammadan Law. It was only when we come to the sixth ground that the claim was put forward:

Because in any case the Court below ought to have decreed the claim for the consideration of the sale claimed in the suit.

30. There is nothing whatever to show on. the record that the appallent-plaintiff abandoned her first three grounds in the memorandum of appeal. It is true that the judgment of this Court contained in Faizunnissa v. Hanifunnissa (1905) 27 All. 612, begins by stating:

The only point involved in this appeal is whether or not extrinsic evidence is admissible for the purpose of showing that a document which purports to be and is on the face of it a deed of sale is in reality a deed of gift.

31. Now it is impossible to say what were the reasons which induced their Lordships of the Privy Council to allow oral evidence in this case because their Lordships considered that this was not a case in which any general principle should be laid down, and for that reason apparently they did not formulate their reasons. It is therefore in my opinion an extension of the doctrine of this particular case to apply it to a case such as Chunni Bibi v. Basnti Bibi 1914 All. 298, where the conditions which I have set out do not exist. It may have been that their Lordships considered, that where the plaintiff herself set out in the plaint that the document was a fictitious document she could not at the same time claim that under Section 92, Evidence Act, the defendant was debarred from proving what the real nature of the transaction was. It is to-be noted that in Section 92 the language used is:

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 etc.

32. Now, in Section 91, the last section, k is laid down, that:

When the terms of a contract or of 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 itfelf.

33. In a case where a party produces a document and relics on the document to prove the terms of a transaction of the nature stated in these: Sections 91 and 92, then that party may claim the protection of these sections; and say that it is not open to the opposite party to produce oral evidence, contrary to the sections. But it would be obviously a different proposition to state that where a plaintiff produces a document and alleges it to be fictitious, at the same time the plaintiff can rely on these sections, for preventing oral evidence by the opposite party of the real nature of the transaction. Some argument was made that a plaintiff might be allowed to make a pleading in the alternative as was done in this case. That I may, possibly be so, but in my opinion a party cannot give evidence in the alternative. The sections relate to the case of where a document has been I proved. I do not consider that a plaintiff can appear in a witness-box in a Court of law and state in the alternative: 'I executed this document as a genuine sale' and also 'I executed this document merely as a fictitious document.'

34. When it is a question of evidence I a statement must be precise. The plaintiff executed the document. It was within her knowledge whether she in. tended to be a genuine transfer or, merely a fictitious document. I do not think that she can place her evidence; in the alternative before the Court stating at the same time that the document was both genuine and fictitious. It is not possible for me to say that these were considerations which weighed with their Lordships of the Privy Council in the case of Hanif-unnissa v. Faiz-unnissa (1911) 33 All. 340, but I can and do point out that: these considerations were present in that case and that there were no similar considerations present in the case of Chunni Bibi v. Basnti Bibi 1914 All. 298. It is precisely because in the latter case those considerations were not present that I consider that that ruling is incorrect in assuming that the facts in that ruling' were similar to the facts in the ruling in Hanif-unnissa v. Faiz-unnissa (1911) 33 All. 340, apart from the alleged authority in the ruling of their Lordships of the Privy Council. The ruling in Chunni Bibi v. Basnti Bibi 1914 All. 298 does not set out any definite authority for the proposition it lays down and it does not attempt to show how the proposition which it lays down can be brought under the terms of Section 92, Evidence Act. As I have indicated the ruling of their Lordships of the Privy Council can be brought under the terms of that section but the ruling in Chunni Bibi v. Basnti Bibi 1914 All. 298, cannot in my opinion be brought under Section 92, Evidence Act. For these reasons I consider that the extension of the doctrine of their Lordships of the Privy Council to a different set of circumstances by Chunni Bibi v. Basnti Bibi 1914 All. 298 is an extension which, should not be followed by this High Court.

35. As a result I consider that the following three propositions of law are established, and I understand that my learned brother, Harries, J., agrees with them all and that the learned Chief Justice agrees with the first two: (1) The amount of sale consideration is a term of a deed of sale. When the terms of a deed of sale have been proved according to Section 91, Evidence Act, no evidence of any oral agreement or statement shall be admitted as between the parties to the deed of sale or their representatives for the purpose of contradicting, varying, adding to, or substracting from the amount of sale consideration. (2) The acknowledgment of receipt of the whole or part of the sale consideration in a deed of sale is not a term of the deed of sale and oral evidence may be given to show that the amount acknowledged or any part of it was not received. (3) When one party tendors oral evidence to prove that the amount acknowledged or any part of it was not received, this does not give the other party a right to produce evidence of any oral agreement or statement that the amount of sale consideration was less than what is entered in the deed of sale.

Harries, J.

36. I agree that, the questions should be answered in the manner indicated by the Hon'ble Chief. Justice. The price stated in a sale deed, is in my view a term of the contract and that being so, it is not open to either party to tender oral evidence with a view to showing that the price stated in the sale deed is greater or less than the actual price agreed between the parties.

37. It has been urged before us however that the decision of their Lordships of the Judicial Committee of the Privy Council in Hanif-unnissa v. Faiz-unnissa (1911) 33 All. 340 does allow a party to give oral evidence to vary the price stated in a written contract. The facts in that case were peculiar and exceptional. Both parties to the sale deed admitted that there never was a sale at all and that the sale deed as such was a purely fictitious document. It was common' ground that the deed in no sense represented the transaction between the parties and that when the deed was executed there was no intention on the part of either of the parties to enter into a contract of sale. In those circumstances their Lordships of the Judicial Committee of the Privy 'Council held that oral evidence could be admitted to show what was the real nature of the transaction between the parties. As pointed out by my learned brother, Bennet, their Lordships give no reason for their decision and in my judgment the decision must be confined to the particular facts of that case. I entirely agree with the Hon'ble Chief Justice and my learned brother Bennet that the case of Hanif-unnissa v. Faiz-unnissa (1911) 33 All. 340, is no authority for the general proposition that a party may tender oral evidence with a view to showing that the price stated in a contract is not the true price.

38. In the case of Chunni Bibi v. Basnti Bibi 1914 All. 298 a Division Bench of this Court purported to follow the case of Hanif-unnissa v. Faiz-unnissa (1911) 33 All. 340. In that case the vendor tendered evidence to show that, though it was stated in a sale deed that the consideration had been paid, it had not in fact been so paid. In those circumstances it was held that it was open to the other party to the contract, to show that the price stated in the sale; deed was not the true price agreed; between the parties. The statement' that the money has been received is a mere statement of fact and is in no way a term of the contract. That being so oral evidence may be adduced to contradict such a statement of fact, as the admission of such evidence in no way contravenes the provisions of Section 92, Evidence Act, which deals only with evidence tending to contradict, vary, add to, or substract from the terms of a contract, grant or other disposition of property. It is difficult however to understand why in a case where one party to a contract is entitled to tender oral evidence to contradict a statement of fact contained in a written contract, the other party to the, contract should be entitled to give evidence which is made inadmissible by Section 92, Evidence Act. In my judgment there is nothing in the case of Hanif-unnissa v. Faiz-unnissa (1911) 33 All. 340 to warrant the view taken by the Bench of this Court in Chunni Bibi v. Basnti Bibi 1914 All. 298 and I agree with my learned brother Bennet that this latter case cannot be regarded as good law and should not be followed. In conclusion I desire to add that I agree with the three propositions of law enunciated by my learned brother Bennet in the concluding portion of his judgment.

39. The answer to the first question is in the negative. The answer to the second question is that it is not open to a mortgagor to say that the mortgage transaction was not for the sum stated therein, but it is open to him to show that he had not in fact received the full amount of the mortgage money. The third question remains unanswered.


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