K.K. Sharma, J.
1. This is an appeal by the plaintiff against the appellate judgment and decree of the learned Civil Judge, Baran dated 23-8-1952.
2. The plaintiff-appellant filed a suit out of which this appeal has arisen for the recovery of Rs. 1193-8-9 on the allegations that he had purchased seven bags of Dhania Dal at the rate of Rs. 92/- per maund from Messrs. Bheralal Duli-chand, Commission Agents of Baran on 27-6-1950. The Dhania Dal weighed 13 mds. 38 seers and 4 chhataks. The cost of empty bags was Rs. 8-12-0 at the rate of Rs. 1-4-0 per bag and 0-12-9 was on account of Dhannada (charity). Thus the total amount came to Rs. 1293-8-3. The plaintiff pledged this Dhania Dal on 1-7-1950 with the defendant-respondent for a sum of Rs. 1293-8-3 and paid this amount to Messrs. Bherulal Dulichancl. The plaintiff asked the defendant several times that he should deliver the Dhania to the plaintiff on payment of the pledge money.
The defendant, however, did not deliver the said commodity in spite of oral request and demand by a note. The plaintiff claimed the price of Dhania at the rate of Rs. 180 per maund from the defendant which came to Rs. 2512-2-0 and prayed that after deducting the sum of Rs. 1293-8-3 and the interest for six months at the rate of 6 per cent per annum and the rent of godown for six months at the rate of 2 annas per bag a sum of Rs. 1184-5-9 on account of the balance of the price of Dhania and Rs. 8-12-0 on account of empty bags and 7 annas on account of the expenses of notice, a total sum of Rs. 1193-8-9, be decreed against the plaintiff.
3. The defendant respondent filed a written statement. He denied that the Dhania in dispute had actually been purchased by the plaintiff. He pleaded that there was some dispute between him and one Govindram Puranmal on account of a transaction of Imli and the said Govindram Puranmal in order to put undue pressure upon the defendant purchased 7 bags of Dhania Dal from the defendant at the rate of Rs. 108 per maund on 14-6-1950.
The defendant came to know immediately about the device of Govindram Puranmal and therefore called upon the same to at once pay up the price of Dhania Dal in cash to the defendant. Govindram Puranmal did not pay the price in cash and did not take delivery of the Dhania Dal. On this the defendant in order to find out as to what profit or loss could ensue sent the said Dhania to the Arhtiya Bherumal Dulichand and asked the plaintiff who was servant at that time to bid at the auction of the Dhania on his behalf, and if his was the highest bid to purchase the Dhania for the defendant in his name.
The Dhania was auctioned by Bherulal Dulichand and the highest bid was on Rs. 92 per maund by the plaintiff on behalf of the defendant. The total amount of the purchase price came to Rs. 1293-8-3 and the said sum was remitted by the defendant to the Arhtiya Bherulal Dulichand. As the Dhaniya was purchased ostensibly in the name of the plaintiff, entries were accordingly made in the account books of the defendant and a suit was filed against Govindram Puranmal for the recovery of the loss suffered on account of the Dhania. The defendant denied that any interest had passed to the plaintiff in the Dhania in dispute, or that he had pledged this Dhania with the defendant. He said that the transaction was altogether Benami and the purchase was in fact for the defendant although ostensibly in the name of the plaintiff.
4. The learned Munsif, Baran, who tried the suit, framed several issues. The following issues are material for the purposes of this appeal:
Issue No. 1 : Whether the plaintiff had pledged Dhania weighing 13 mds. 38 seers and 4 chhataks for a sum of Rs. 1293-8-3 with the defendant?
Issue No. 7 : Whether the plaintiff had purchased the Dhania in dispute in the capacity of the servant of the defendant according to the instructions of the defendant and what effect it has got upon the suit?
5. Both the parties produced their evidence. The plaintiff relied upon an entry in the cash book of the defendant dated 1-7-1950. In this entry a sum of Rs. 1293-8-3 had been debited against Noor Mohd. plaintiff on account of 7 bags of Dhania Dal. The plaintiff also produced oral evidence and examined one Gulam Hussain as one of his witnesses who supported the defendant's case.
The learned Munsif decided both these issues in favour of the plaintiff and gave a decree to the plaintiff for the delivery of 13 mds. 38 seers and 4 chhataks of fresh Dhania Dal of good quality No. 2 on payment of Rs. 1337-8-9 by the plaintiff within a month. In case the plaintiff failed to pay the said amount, it was ordered that the defendant would be entitled to sell the said bags and deduct the pledge money from the price fetched,
6. Against this decree of the first court the defendant went in appeal and the learned Civil Judge, Baran, who heard the appeal, decided the two issues in favour of the defendant and allowing the appeal dismissed the plaintiff's suit.
7. Against this judgment and decree of the learned Civil Judge the plaintiff has come in second appeal to this Court.
8. The respondent has not appeared and therefore the appeal proceeds exparte against him. I have heard Sri Gaffarali on behalf of the appellant. He has argued that the case of the defendant-respondent was most improbable and should not have been believed in the face of the entry in his own cash book. It was argued that the plaintiff had served the defendant with a notice, but he did not reply to it and therefore the plaintiff's case ought not to have been dismissed by the lower appellate court. His second argument is that no oral evidence could be admissible against the entry in the cash book of the defendant because Section 92 of the Indian Evidence Act bars any such oral evidence.
So far as the first argument of Sri Gaffar Ali is concerned, the decree of the first court cannot be interfered with in second appeal on this ground. Both the parties produced their evidence and the lower appellate court believed the evidence of one party specially as it was supported by Gulam Hussain, a witness produced by the plaintiff himself. So far as the belief or non-belief of the evidence is concerned, the first appellate court was the final judge of it, and I have no reason to disturb the finojng of fact arrived at by the first appellate court on a consideration of evidence.
9. It was argued that Gulam Hussain, although produced by the plaintiff, was defendant No. 2 himself. It may be, but it was for the first court to say as to which witness was to be believed and winch not and even though a witness be a party in a suit, it was for the first appellate court to give a final opinion as to whether that witness's evidence was believable or not.
10. So far as the second argument is concerned, Section 92 of the Indian Evidence Act runs as follows :
'Section 92--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 or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms.''
Now if a contract, grant or other disposition of property or any matter required by law to be reduced to the form of a document has been proved, then no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to or subtracting from its terms. This section does not forbid any party to a document showing that the transaction appearing from it was fictitious or Benami.
It is only in case the contract, grant etc., are admitted or proved and their real nature is not challenged that this section would bar oral evidence to contradict, vary .... from its terms. In the pre- sent case the case of the defendants is that in fact the transaction was on behalf of the defendant, but it was made to appear in the name o the plaintiff on account of certain expediency.
It has been clearly stated in the written statement that the sale in the name of the plaintiff was Benami for the defendant. Under such circumstances it has been held that oral evidence to show the real nature of the transaction is not prohibited, In a Full Bench case of Calcutta High Court -- Beni Madhab Dass v. Sadasook Kotary, ILR 32 Cal 437 (A), -- Woodroffe J., observed as follows :
'If the validity of a written agreement is impeached it is no defence to point to the apparent rectitude of the document and to claim protection from enquiry under the rule embodied in Section 92 of the Evidence Act, which exists against the contradiction and variance of the terms only of those instruments, the validity of which is not in question. The instances mentioned in proviso (i) of that section are illustrative and not exhaustive.'
In that case the document represented that the transactions were quite genuine and delivery was contemplated. The defendant alleged that the eon-tracts were merely for differences, and, in effect were wagering contracts, and consequently the defendant claimed that he was entitled to produce evidence to prove this. The plaintiff contended that having regard to the decision of a Division Bench of Calcutta High Court in the case of Jaggernauth Sew Bux v. Ham Dayal, ILR 9 Cal 791 (B), the defendant could not do this. The question was whether the law laid down in Jaggernauth Sew Bux v. Ram Dayal (B), case was the correct law. The question was referred to the Full Bench consisting of Sir Francis W. Maclean, C. J., Brett, Stephen, Mitra and Woodroffe, JJ. Maclean C. J., observed as follows :
'With every respect to the learned Judges, who decided that case, I should have been of opinion, apart from the expression of Judicial opinion in the case which I shall refer to in a moment, that, upon the true construction of section 92 of the Indian Evidence Act, and specially having regard to provision (i) of that section, that case had not been properly decided. It seems to me that the learned judges have not given sufficient effect to the proviso in question. Without going into detail, it seems to me that it would be very difficult to hold that the case here did not fall within the precise terms of that proviso. But if there were any doubt upon this, it seems to me that that doubt is set at rest by the observations of their Lordships of the Judicial Committee in the case of Kong Yee Lone and Co. v. Lowjee Nanjee, 27 Ind App 239 (C).'
The observations of Woodroffe J., have been given, above and the remaining three Judges agree with the Chief Justice. Thus there is the Full Bench authority of Calcutta High Court on the point that oral evidence to show the real nature of document is not barred u/s 92 of the Indian Evidence Act. Before the Chief Court of Oudh reliance was placed upon a gift-deed executed by the husband in favour of the wife.
The husband admitted that he had executed a deed of gift in favour of his wife, but he alleged that he had no intention of gifting away the property, or that in short he had no animus contrahent (intention of entering into a contract or gift) when he executed the deed of gift and contended that the evidence to prove such a defence was admissible & did not violate the provisions of Section 92 of the Indian Evidence Act. It was held that there was no force in the contention of the learned counsel for the wife that the husband was estopped by Section 92 of the Evidence Act from pleading that the deed of gift was same and not fictitious transaction. In Tyagaraja Mudalliar v. Vedathani, 63 Ind App 126: (AIR 1936 PC 70) (D), a written agreement by a Hindu widow was set up by the members of the husband's family of the Hindu widow.
She wanted to produce evidence that she was induced to sign the document on the verbal assur-ance by the brother of her husband that the document was only intended to create evidence of the undivided status of the family and that the provision therein for her maintenance, which she considered inadequate, was not to be the final contract, and that her claim for maintenance on a more suitable scale was to be left over for future settlement. It was held by their Lordships of the Privy Council that there is nothing in either Section 91 or Section 92 of the Indian Evidence Act, 1872 to exclude oral evidence to establish that there was an agreement that the provision in the document for the widow's maintenance was not to be acted upon.
11. In a Full Bench case of Asaram v. Ludhe-shwar, AIR 1938 Nag 335 (E), it was observed by Vivian Bose, J., that 'all that Section 92, Evidence Act excludes is oral evidence to contradict, vary, add to or subtract from the terms of a contract which has been reduced to writing. It docs not preclude a party from showing that the writing was not really the contract between the parties but was only a fictitious or colourable device which cloaked some-thing else. Benami transactions afford a common illustration of this rule. Another learned Judge Digby J., observed as follows :
'Though the contract is apparently valid in form or matter, extrinsic evidence is always admissible in variance of or in addition to the contract to show that the transaction is illegal and therefore void, even in the case of a covenant or contract under seal.'
12. It would thus appear that Section 92 does not exclude oral evidence to prove as to whether a transaction evidenced by a written document is fictitious or Benami. There is therefore no force in the argument of the learned counsel for the appellant.
13. The appeal is dismissed, but as the respondent has not appeared I make no order as to costs.