1. This appeal arises in a suit brought by the respondents for an alleged balance of purchase money and interest thereon.
2. On July 21st, 1909, the respondents sold some zemindari property to the appellant for Rs. 15,000. Part of the property had been sold in execution of a decree and it was intended that the appellant should get the execution sale set aside. But it was discovered that according to Order XXI, Rule 89, as then interpreted neither the vendors nor the purchaser could get the sale set aside. Accordingly the appellant relinquished her interest in the property by a registered deed. The respondents then raised on a mortgage of the property in favour of one Parsotam Das a sum sufficient to pay off the decree-holder and in one course the sale was set aside. On October 28th, 1909, the respondents executed in favour of the appellant a deed whereby they sold to her the property which had been the subject of the earlier sale together with some other property for the stated sum of Rs. 40,000. The deed contains a recital that the respondents have received the whole of this sum and have out of it paid off Parsotam Das and discharged other debts. Before the Sub-Registrar they received a sum of Rs. 2,400 and acknowledged the receipt of Rs. 37,600. On the same day they gave the appellant a receipt for Rs. 37,600.
3. The present suit was instituted on November 3rd, 1912, the last day of limitation. The respondents allege that they were obliged to sell the property in order to raise some cash and pay off some creditors, that certain persons acting on behalf of the appellant induced them to acknowledge the receipt of the consideration in full and to sign the receipt for Rs. 37,600 by representing that they would after the registration of the deed pay off certain creditors of the respondents and make over to them proof of the payment and account for the balance, but that they had paid only Rs. 11,726 to Parsotam Das giving the appellant credit for that amount, for Rs. 1,000 spent in connection with the execution of the deed and for Rs. 2,400 paid at registration. The respondents claimed a decree for the balance Rs. 24,874 and interest thereon. The appellant's defence was that the real consideration for the sale was Rs. 15,126 made up of the three sums of Rs. 11,726, Rs. 1,000 and Rs. 2,400 mentioned above and that the property was not worth more. She said that Parsotam Das wished to buy the property but for reasons of their own the respondents did not wish to sell to him, therefore, they gave out that they were selling the property for Rs, 40,000, a sum which Parsotam Das was not prepared to pay, and they induced the appellant to agree to this sum being entered in the sale-deed in order that Parsotam Das might have no cause for complaint.
4. The question for decision is whether the appellant is entitled to produce oral evidence in proof of her allegations. The Court below has held that she is not. On behalf of the appellant it was contended that her allegation if proved would entitle her to have the sale-deed rectified or rescinded, also that it was a case of mistake, therefore, the case fell within the first proviso to Section 92 of the Evidence Act. It, was also urged that all the terms of the contract had not been embodied in the deed, therefore, Section 91 of the Act, and consequently Section 92 also, did not apply and we were referred to the case of Jumna Doss v. Srinath Roy 17 C. 176 note. But none of these arguments was seriously pressed and it seems unnecessary to consider them.
5. The main contention of the learned Advocate for the appellant was that if the respondents are entitled, as they undoubtedly are, to go behind the recital and admission in the deed and prove that the entire consideration had not been paid it is open to the appellant to produce oral evidence as to the true nature and extent of the consideration. Among the cases relied upon were those of Shah Muhhun Lal v. Baboo Sree Kishen Singh 12 M.I.A. 157 : 11 W.R. P.C. 19 : 2 B.L.R. P.C 44 : 2 Suth. P.C.J. 190 : 2 Sar. P.C.J. 403 : 20 Eng. Rep. 299, Himmat Sahai v. Llewhellen 11 C .486. Hukumchand v. Hiralal 3B. 159. Indarjit v. V. Lal Chand 18 A. 168 : A.W.N. (1895) 16. affirmed on appeal in Sah Lal Chand v. Indrajit 22 A. 370 (P.C) : 4 C.W.N. 483 : 27 L.A. 93, Kailash Chandra v. Harish Chandra 5 C.W.N. 158., Nathu Khan v. Musammat Sewak Koeri 9 Ind. Cas. 161 : 15 C.W.N. 408. Muhammad Yusuf v. Muhammad Musa A.W.N. (1907) 181 : 4 A.L.J. 441. and Hanif-un-nissa v. Faiz-un-nissa 11 Ind. Cas. 398 : 8 A.L.J. 373 : 15 C. W.N .521 : 13 C.L.J. 510 : 13 Bom.L.R. 391 : 10 M.L.T. : 23 : (1911) M.W.N. 370 : 21 M.L.J. 1126 : 38 I.A. 85 : 33 A. 340 (P.C.).
6. The first of these cases was a suit for redemption of a mortgage purporting to make interest payable at the rate of Rs. 9 per cent. The plaintiff put forward other documents executed at about the same time and proved that they evidenced a single transaction and were a continuance to evade the usury laws. He thus put himself in a position to redeem the mortgage before the date fixed by one of the documents. He wished, however, to have the interest calculated at Rs. 9 per cent. The defendant pleaded that the rate agreed upon was Rs. 12 per cent. Their Lordships of the Privy Council dealing with this matter said :
The rules of evidence, and the law of estoppel, forbid any addition to, or variation from, deeds or written contracts. The law, however, furnishes exceptions to its own salutary protection : one of which is when one party, for the advancement of justice, is permitted to remove the blind which hides the real transaction : as, for instance, incases of fraud, illegality, and redemption, in such cases the maxim applies, that a man cannot both affirm and disaffirm the same transaction, show its true nature for his own relief, and insist on its apparent character to prejudice his adversary.
7. In the second case a deed recited payment of Rs. 2,000 in a lump sum to the executant who, however, sued for recovery of Rs. 1,850 alleging that only Rs. 150 had been paid. The defendant admitted that no more than Rs. 150 had been paid and that Rs. 850 were still due. As regards the remaining sum of Rs. 1,000 he was allowed to prove by oral evidence an agreement to the effect that it was to be retained by him on account of a debt due to him by a relative of the plaintiff. The Court held that it was under the first proviso to Section 92 of the Evidence Act that the plaintiff was entitled to go behind the recital and prove that only Rs. 150 had been paid, and on the strength of the passage cited above from the judgment of their Lordships of the Privy Council they went on to hold that the defendant was entitled to prove that the consideration was different from that stated in the deed.
8. In the third case the defendant challenged the title of the plaintiff who relied upon a sale-deed purporting to transfer the property to him in consideration of Rs. 100 already received in cash. The plaintiff was allowed to moot the defendant's case by proving that the consideration consisted of Rs. 63-12-0 due on a bond and Rs 38-4-0 paid in cash. The Court were of opinion that there was no real variance between, the statement in the deed and the statements of the plaintiff's witnesses, but in the course of their judgment they observed that Section 92 of the Evidence Act does not prevent a party to a contract from showing that there was no consideration or that the consideration was different from that described in the contract.
9. In the fourth case there was a recital in the sale-deed that the whole of the consideration money had been received, but their Lordships of the Privy Council ruled that in such a case it was open to the vendor to prove that no consideration had passed and they held that evidence was admissible to prove an agreement that the consideration money should remain in the hands of the purchaser for certain purposes and to be accounted for later. In the judgment of the High Court in a passage which perhaps went further than was necessary it was said : '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.' The second and third cases above mentioned were referred to in this connection.
10. The fifth case was a suit to set aside a sale-deed on the ground that there had bean no consideration for it and that it had been obtained by unfair means. The deed recited that Rs. 500 had been received in cash. The plaintiff gave evidence that nothing had been paid and the defendant was permitted to adduce evidence that there was some and that ample consideration for the transaction, though not the amount stated in the deed. The Court seem to have been of opinion that it was under the first proviso to Section 92 of the Evidence Act that plaintiff was entitled to go behind the recital and it was laid down by both the learned Judges that in such a case the other party was entitled to prove that there was some consideration for the deed. The Chief Justice relied upon the second and third cases mentioned above and Banerjee, J., referred to one of them with approval.
11. In the sixth case the plaintiff, sued far Rs. 800, the consideration stated in a kabala and there in acknowledged to have been received. The plaintiff proved that it had not been paid and the defendant was allowed to prove that the stated consideration was fictitious and that the real consideration was services rendered by the defendant.
12. In the seventh case two sisters had agreed to exchange properties. Each executed in favour of the other a sale-deed in which the consideration was stated to be Rs. 1,000 and payment in full was acknowledged. In a, suit by one of the sisters for the amount of the consideration the defendant was allowed to prove that the real consideration was the property given in exchange in the eighth case the plaintiff had executed in favour of the defendant what purported to be a sale-deed of property for Rs. 60,000 the receipt of which was acknowledged in the deed. The plaintiff on certain grounds asked that the deed should be set aside and in the alternative claimed a decree for the sum of Rs. 60,000. She proved that the money had not been paid and the defendant was allowed to prove that the executant had intended to make a gift of the property and had never intended to take any part of the alleged consideration.
13. The respondents rely upon the decision of the Madras High Court in Adityam Iyer v. Ramakrishna Iyer 21 Ind. Cas. 458 : (1913) M.W.N. 847 : 14 M.L.T. 382 : 25 M.L.J. 602., which will be referred to later. As regards the cases relied upon by the appellant they urge that the first of them merely lays down one of the rules subsequently embodied in Section 92 of the Evidence Act and that the passage quoted has no application to the facts of the case, inasmuch as the respondents are not seeking to remove the blind which hides the real transaction but wish merely to contradict a statement of fact contained in the deed : that the 2nd, 3rd, 4th, 6th and 7th cases are not authorities for the proposition that a party may prove by oral evidence that the consideration for a sale is leas than or different from that stated in the deed bat are only instances of parties to deeds being allowed to show that the consideration passed in a form other than that state in the deed : and that if the fifth case goes further than that it was wrongly decided. As regards the 8th case the respondents contend that it was a case of facts being proved which would invalidate a document within the meaning of the first proviso to Section 92 of the Evidence Act.
14. It is true no doubt that several of the oases relied upon by the appellant were cases in which a party to a deed sought to prove that the consideration passed in a form different from that stated in the deed, not to prove that the amount of the consideration was different in amount from that stated in the deed. But in the fifth case the defendant seems to have been allowed to prove that the amount of the consideration was different from that stated in the deed and in the 8th case the defendant was permitted to prove that the consideration did not pass at all and was never intended to pass. 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 if 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 the 8th case.
15. The Indian case relied upon by the respondents is distinguishable. It was a suit upon a mortgage. The defence set up was discharged it being contended that the discharge of the mortgage was part consideration for the sale of certain properties to the mortgagor some years after the mortgage. The discharge of the mortgage was not mentioned in the deed of sale, bat the defendant sought to prove the arrangement by oral evidence. The Court hold that such evidence was not admissible. It was not a case in which one party denied receipt of consideration acknowledged by him in a deed and the other party sought to prove that the true consideration was other than that stated in the deed.
16. On the authorities I would hold that as the respondents 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 allegation, and as the Court below did not allow her to produce such evidence I would remand the case for a fresh trial.
17. This was a suit to recover unpaid purchase money. The plaintiffs executed a sale-deed in favour of the defendant-appellant on the 28th of October 1909. The amount of consideration for the sale is stated in the sale-deed to be Rs. 40,000. The plaintiffs state that they have received out of this sum Rs. 12,726 and that the balance is due. The defendant contended that the amount of consideration specified in the sale-deed was fictitious and that the real amount agreed to be paid was that which the plaintiff admitted to have received. The question to be determined is whether in view of the provisions of Section 92 of the Evidence Act the defendant-appellant is entitled to produce oral evidence in support of her allegation.
18. A large number of rulings have been cited by the respective parties, but I deem it unnecessary to consider and discuss them as I am of opinion that the matter is concluded by the recent decision of their Lordships of the Privy Council in Hanif-un-nissa v. Faiz-un-nissa 11 Ind. Cas. 398 : 8 A.L.J. 373 : 15 C.W.N .521 : 13 C.L.J. 510 : 13 Bom.L.R. 391 : 10 M.L.T. : 23 : (1911) M.W.N. 370 : 21 M.L.J. 1126 : 38 I.A. 85 : 33 A. 340 (P.C.). In that case the plaintiff who had executed a document which on the face of it was a sale-deed for Rs. 60,000 sought to have it cancelled on various grounds and in the alternative claimed the Rs. 60,000. The defendants alleged that the transaction was in fact a gift and not a sale as it purported to be. This Court held that the defendants were precluded by the provisions of Section 92 of the Evidence Act from proving that the transaction was different from that which it purported to be and that it was in reality a gift. Their Lordships of the Privy Council reversed this decision and held that oral evidence could be given by 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 1 must hold that the appellant is entitled to produce oral evidence to prove her allegations. As the Court below did not permit her to produce such evidence the case must be remanded to that Court.
19. By the Court.--The order of the Court is that the appeal be allowed, the decree of the Court below be set aside and the case be remanded to the Court below with directions to re-admit it under its original number in the register and dispose of it according to law after allowing the parties to adduce such evidence as they may bring forward. The costs hitherto incurred will be costs in the cause. Costs in this Court will include fees on the higher scale.