Panchapakesa Ayyar, J.
1. This is rather an interesting case raising the question of the applicability of Section 92, Evidence Act, in a peculiar set of circumstances which so far as I know has not come up for decision before this High Court till now.
2. One Kamalamina, plaintiff 1 In O. S. No. 124 of 1948 on the file of the District Munsif, Beliary, owned the suit house. Defendant 1 Bhagya-lakshmamma, related to her closely, wanted to buy that house. Kamalamnia's husband is a Sub-Inspector of Police called Anantha Setty. He has been impleacled as plaintiff 2 in the suit later on. As is usual in India, Kamalamma acted through her husband Anantha Setty, and Bhagyalakshm-amma acted through her husband, Satyanarayana. Gupta. These two men entered into an agreement Ex. A. 1, dated 10-1-48, under which defendant 2 obviously on behalf of defendant l agreed to purchase the suit house from plaintiff 1 for Rs. 2625 and paid Rs. 350 as advance at once, thus leaving a balance of Rs. 2275 to be paid. Accord-Ing to him, he paid Rs. 1275 out of this Rs. 2275 to plaintiff 2 because plaintiff 2 insisted that, before the sale deed of the house could be executed by plaintiff 1 in defendant 1's favour, this sum of Rs. 1275 representing the costs of improvement and repairs, executed to the house by him, should be paid. After this amount was paid, according to the defendants, the sale deed, Ex. A. 2 was executed by plaintiff 1 in favour of defendant 1, for the balance of Rs. 1000. Plaintiff 1, not having herself received the difference of Rs. 1275 filed this suit against both the defendants for recovering that amount with subsequent interest and costs.
(2a) The defendants raised various contentions, including the payment of Rs. 1275 to plaintiff 2, thus leaving not a pie out of Rs. 2625 under Ex. A. l unpaid. The learned District Munsif framed the following issues:
1. Is the plaintiff entitled to plead that the price fixed was more than Rs. 1000?
2. Is the suit opposed to Stamp and Registration Acts, and is the plaintiff entitled to plead her fraud?
3. What was the agreed amount for the sale; was it paid in full?
4. Are defendants entitled to costs under Section 35A,. Civil P. C.? B. To what relief?
On issues 1 and 2, which he tried, as preliminary issues, he held that the suit prayer was opposed to public policy and, that no oral evidence could be allowed, or even the agreement for the sale of the house for Rs. 2625 allowed to be proved, because of Section 92, Indian Evidence Act. In that view, he did not give any finding regard-Ing the defendants' contentions that the whole Of the agreed amount of Rs. 2625 under Ex. A. 1 had been paid in full, or give any finding on the issue as to whether the defendants were entitled to compensatory costs under Section 35A, Civil P. C. He dismissed the suit with ordinary costs.
3. In appeal, the learned Subordinate Judge held that Section 92, Evidence Act would not apply to plaintiff 2, who was not a party to the sale deed or a representative of a party to it, under the ruling in -- 'Parattakath Mayan v. Mammad Kunhi', AIR 1949 Mad 852 (A). He, therefore, remanded the suit to the trial Court for fresh disposal, after allowing both parties to adduce further evidence and directed the costs of the appeal to abide the result, and refunded the stamp duty paid on the memorandum of appeal. The defendants have filed this civil miscellaneous appeal against the judgment and decree of the learned Subordinate Judge.
4. Z have absolutely no doubt in agreeing with the learned Subordinate Judge's view that Section 92, Indian Evidence Act will have no application to plaintiff 2 in the facts of the case. Indeed, I go further and hold that even plaintiff 1 is not estopped under Section 92. This is not a case where the plaint and written statement went on the basis that Rs. 1000 was the agreed price (and full consideration) for the suit house. The agreement for Rs. 2625 Ex. A. 1 was not seriously disputed even by the defendants, their contention being that Rs. 350 were paid immediately after the agreement and a sum of Rs. 1275 was paid to plaintiff 2 shortly thereafter, and before registration of the sale deed, and the balance of Rs. 1000 was paid before the Registrar under the sale deed, Ex. A. 2 and that not a pie therefore. remained out of the sum of Rs. 2625 to be paid under Ex. A. 1. It may be that the Government tost some stamp duty by the agreed price of Rs. 2625 not being recited in the sale deed Ex. A. 2. But I cannot call it strictly a fraud; it will only be 'unworthy conduct' not amounting to fraud. The defendants' case is that plaintiffs 1 & 2 had together received Rs. 1625 under Ex. A. 1 and had to receive only Rs. 1000 more. In such cases, to the countryside, the vendor, who loses nothing by it, puts only the balance still due as the con-sideration for the sale deed, and executes the sale deed, leaving the Government in the lurch regarding the stamp duty on the amount already paid before the execution of the sale deed. I do not think that public policy can be invoked to defeat a suit like this, though I do not give any opinion as to whether the practice is strictly legal and whether the Government cannot take suitable steps to prevent such practices either by amending the Stamp Act or by any other ap-propriate means.
5. Coming to Section 92, Indian Evidence Act. I do not see how it can be applied to a case like this, where the parties did not want to dispute the fact of the recital of Rs.1000 as the consideration stilt due under the sale deed and where they only omitted to mention the prior payments under Ex. A. 1. Besides, Ex. A. l is a written agreement and not an 'oral agreement' excluded under Section 92.
6. Even Mr. Ramanarasu, for the defendants, admitted that Rs. 350 paid under the agreement Ex. A. 1 to plaintiff 1 represented part of the consideration for the suit house and was not included in the sum of Rs. 1000 recited in the sale deed and paid before the Sub-Registrar. So the defendants have to prove strictly that they paid Rs. 1275 to plff. 2 on behalf of plaintiff l or independently, and thus prove their story in the written statement to be true, instead of taking shelter under Section 92, Indian Evidence Act, which will, in my opinion, not apply to the facts of this case. Of course. Mr. Ramanarasu is right when he says that plaintiff 1 should not only prove that Rs. 1275 was not paid to plaintiff 2 as alleged In the written statement, but that she is entitled to that amount, and not her husband, plaintiff 2 and that she is also entitled to a vendor's lien in respect of that amount. But all that can be covered by appropriate issues at the fresh hearing. The trial Court will also be free to frame any other proper and necessary issue at the request of either party. In cases like this, where definite allegations of fact are made, and are disputed, and where Section 92, Evidence Act will not apply it will, in my opinion, not be conducive to justice, if instead of making the parties to prove their allegations & get at the real truth the parties are allowed to invoke the extended shadow of Section 92, Indian Evidence Act (by relying on analogy) and take refuge in that shadow. Of course Mr. Ramanarasu is right in stating that plaintiff 2 did not state specifically that Rs. 1275 out of Rs. 2625 agreed to be paid under Ex. A. 1 and alleged to have been paid to plaintiff 2 by the defendants was not really paid but that is more or less implicit in the filing of the suit and will therefore only be a reason for disallowing the plaintiffs their costs in the appeal. The remand was amply justified in the circumstances and will be valid under the ruling in -- 'Abdul Karim Abu Ahmad Khan v. Allahabad Bank Ltd.', AIR 1917 Cal. (B). This civil miscellaneous appeal deserves to be and is hereby dismissed, but, in the peculiar circumstances, without costs.