1. This suit has been disposed of by the learned Trial Judge on the pleadings without taking any evidence except filing a document. He held that Section 92 of the Evidence Act barred the defendant from adducing oral evidence of his plea, as he proposed to do.
2. The plaintiff had assigned to one P.M.A.R. Muthiah Chettiar, whose legal representatives the respondents are, an 1/8th share of a mortgage decree which his father had obtained against the Rajah of Karvetnagar and others, plaintiff having succeeded to his father's rights on his death. A copy of the deed of assignment has been filed in evidence as Document No. 3159. The consideration for the assignment is recited in this deed as follows:
For a consideration of Rs. 2,89,000 to be paid by Muthiah Chettiar to Lodd Govindoss (the plaintiff) whereof Rs. 89,000 is paid in advance this day and the three promissory notes, dated 24th March, 1915, and 26th April, 1917, executed by Messrs. Tawker & Sons in favour of Muthiah Chettiar for Rs. 1,50,000 together with the four jewels pledged as security by the said Tawker & Sons are assigned in favour of the plaintiff free from any claim by Muthiah Chettiar against Tawker & Sons and the balance of Rs. 50,000 being payable at any time before the end of February, 1918.
3. The deed is dated 1st October, 1917. In this case we are not concerned with the second and third items of consideration but only with the first. The plaintiff alleges in this suit that the recital in the deed that Rs. 89,000 was paid is incorrect and that only Rs. 60,000 were paid and he seeks to recover the balance Rs. 29,000. The defendant conceded that only Rs. 60,000 were in fact paid but he pleaded that he was not liable to pay the balance. His contention amounts to an averment that the recital of payment in full of Rs. 89,000 was made in the deed deliberately and that there was no mistake about it and he wants to adduce oral evidence to show the circumstances in which that recital was made in the document. His case is that the real consideration agreed to be paid for the assignment was only Rs. 2,60,000 but that he agreed to consideration being started to be nominally Rs. 2,89,000 on condition that a recital should be made in the deed that the whole of Rs. 89,000 was paid off though only Rs; 60,000 was in reality paid. In fact the recital of consideration in the deed as Rs. 2,89,000 was according to him closely connected with and dependent on the further recital of payment of Rs. 89,000 in full though only Rs. 60,000 was paid. The document, it will be noted, further says that the amount still due under it was only Rs. 50,000 confirming the previous recital. He pleads that all these recitals were made in the circumstances above stated and that he is not bound to pay the suit amount.
4. The learned Trial Judge relying on the decision of the Privy Council in Sah Lal Chand v. Indarjit (1900) ILR 22 A 370 (PC) has allowed the plaintiff to go behind the recital of payment and to show that it is wrong as only Rs. 60,000 were actually paid, on the ground that such a recital was only an averment of fact and that it could be proved to be wrong by oral evidence, Section 92 of the Evidence Act not barring such proof. So far he is correct, but he has at the same time shut out the defendant from showing the circumstances in which the recital was made as he considered that it involved proof of a consideration different from the one recited in the deed and that such proof be parol evidence was barred by Section 92 as consideration is one of the terms of the contract.
5. I regret I am unable to follow his view on the second point. I am clearly of opinion that if one party is allowed to show by oral evidence that a recital in a document is incorrect in fact, the other party must certainly be allowed to show by similar evidence that it is not incorrect and that the recital was deliberately put in and for the purpose of showing it he must be allowed to prove what the real consideration for the document was. Section 92 does not in my opinion bar such proof, for such proof is adduced not for the purpose of varying or altering any term of the written contract but only to show that the recital in it is correct. To shut out oral evidence for the purpose will be to allow a gross fraud to be perpetrated.
6. This question was discussed in Chunni Bibi v. Basanti Bibi ILR (1914) A 537 where the learned Judges of the Allahabad High Court laid down that if one party to a deed alleged and proved that whole of the consideration, the receipt of which was acknowledged in the deed, did not pass, the case fell within the proviso 1 of Section 92 and the other party was at liberty to show what the real consideration was and parol evidence could be given of the real nature of the transactions. What the first party tries, to prove in such a case is failure of consideration and that brings it under proviso (1); the second party can then clearly prove in rebuttal of the first party's case that there was in truth no failure of consideration and for that purpose show what the real consideration was. As pointed out by the earned Judges in Allahabad, a party cannot both affirm and disaffirm the same transaction by showing its true nature for his own relief and by insisting on its apparent character to prejudice his adversary. This view is supported by the observation of the Privy Council in Shah Mukhun Lall v. Baboo Sree Kishen Singh (1868) 12 MIA 157 and also by the decision in several previous cases, namely, Lala Himmat Sahai Singh v. Llewhellen ILR (1885) C 486, Kailash Chandra Neogi v. Harischandra Biswas 5 CWN 158, Nath Khan v. Sewak Koeri 15 CWN 408 and Hanif-un-nissa v. Faiz-un-nissa ILR (1911) A 340. The last of these cases is a ruling of the Privy Council in which their Lordships had no difficulty in holding that what appeared on the face of the document to be a sale for a consideration might be shown to be in reality a gift and that parol evidence was admissible for the purpose. My learned brother, Srinivasa Aiyangar, J., refused to follow the ruling Chunni Bibi v. Basanti Bibi (1914) ILR 36 A 537 on the ground that it was in conflict with the ruling of this Court in Adityam Aiyar v. Ramakrishna Aiyar ILR (1913) M 514. With respect, I think he is wrong. The Madras case was cited to the Allahabad Judges and they distinguished it, and I think rightly. There was no question in the Madras case of a recital in a deed being allowed to be shown to be incorrect by one of the parties. That ruling does not touch the principle of the Allahabad case. It may be open to doubt whether the Madras ruling can be supported in the face of the ruling of the Privy Council in Hanif-un-nissa v. Faiz-un-nissa ILR (1911) A 340 but that question we need not consider. In my view that case has no bearing on the case before us. I think the Allahabad decision embodies a sound principle and I am, with respect, prepared to follow it. No authority has been cited to us in which the correctness of that ruling has been doubted or challenged. Following it I would hold that this case should be tried on oral evidence and as the Trial Judge had excluded such evidence the case must go back to him for a fresh trial. I would allow the appeal and remand the case for a fresh trial. The respondent must pay the costs of this appeal. The other costs will be disposed of by the Trial Judge.
Kumaraswami Sastri, J.
7. I agree.