1. The facts necessary for disposal of this appeal are: the plaintiff had to pay off the mortgage amount due on a mortgage over property sold to him by the defendant under a document of sale, Ex. A, dated 19th June, 1918. That contains a statement that
if in respect of this any dispute arises from any quarter, I shall, at my own expense, set the same at rest and see that the sale is given effect to without any obstruction whatever. In respect of the said property I have not created as yet any right or interest in favour of any.
2. The defendant himself had obtained the property in a Court sale in execution of a money decree against a judgment-debtor Ibrahim Sahib who had previously mortgaged the property. It was this mortgage that the plaintiff had to pay off when it had ripened into a decree and the decree had been followed by execution proceedings. In order to preserve the property for himself the plaintiff discharged it. He has sued to recover from the defendant the amount of the loss and damage sustained by him in consequence. The defence was that the plaintiff was at the time of the sale fully aware of the mortgage and had orally agreed to pay it off and that he obtained the property cheaply in consequence. The defendant sought to give evidence of that oral agreement, but both the Lower Courts have held that in view of the wording in Exhibit A such evidence would be in contravention of Section 92 of the Indian Evidence Act. They refused to admit it and decreed the plaintiff's suit. The defendant appeals and the point argued is this question of admissibility of the evidence of the case put forward by the defence.
3. The consideration named in Exhibit A is Rs. 280. 'I have sold,' the document says, 'to you for Rs. 280 the immoveable property, etc.' The defendant urges in effect that the consideration was something more than Rs. 280, that it was Rs. 280 plus an undertaking to discharge the existing mortgage on the property. Section 92 forbids the admission of evidence for the purpose of contradicting, varying, adding to, or subtracting from, the terms of the document as expressed by the written disposition of the property, except as allowed under various provisos, only one of which is relevant in this case, proviso No. 2:
The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved.
4. The interpretation which this section has received at the hands of various Courts is varied, and it is well to see how it has been interpreted, especially by the Privy Council. In Sha Lal Chand v. Indarjit the Privy Council laid down that Section 92 is no bar to the evidence showing that a recital in a sale deed that the consideration had been paid was false. That ruling, it must be clearly pointed out, does not touch on the question of the amount of consideration, but only on the question whether the consideration, whatever its amount, had or had not been paid. It was held that the recital of payment Was not a term of the contract, so that Section 92 did not apply to that recital. It appears to me also that the Judicial Committee took for granted here that the amount of consideration is a term of the contract. They say 'the contract was to sell for Rs. 30,000 which was erroneously stated to have been paid'. The other Privy Council case cited is Hanif-un-nissa v. Faiz-un-nissa a very short judgment differing from the High Court of Allahabad in its judgment reported at Faiz-un-nissa v. Hanif-un-nissa I.L.R.(1905) A. 612 itself relying on the Privy Council case in Balkishen Das v. W. F. Legge . In Hanif-un-nissa v. Faiz-un-nissa it was held that it is open to a party to what was nominally a sale deed for consideration to show that no consideration did pass, and that what was nominal sale was a real gift. The scope of that Privy Council judgment has been considered by this Court in several later cases, as the judgment therein is so short that it may be imperfectly understood and even misused. See Nara Reddiar v. Doraisami Reddi : (1916)31MLJ96 , Ramaswami Chettiar v. Lodd Govinddoss Krishnadoss : AIR1926Mad35 and Putti Sesha Aiyar v. Kuppachar (1918) 10 L.W. 1. (In the last case the headnote about consideration not being a term of the contract is a misquotation of what the learned Judge has said in his judgment.) The net result of that discussion of the Privy Council case is that it is open to a party to prove want of consideration or failure of consideration or a difference in kind of consideration but it is not open to him to prove a variation in the amount of consideration. As to evidence being admissible to show a difference in kind of consideration I own to some doubt, as such evidence appears to me to be an attempt to vary the term in the document as to consideration. The difference in kind, I take it, must be absolute; that is, the consideration mentioned must be wholly false; a mere omission to mention some portion of the consideration will not come within the proviso, since such an omission is clearly a variation in the terms of the contract. Recitals then as to the kind of consideration or as to the actual payment of consideration may he shown to be false. Recitals as to the amount of consideration cannot so be shown to be false, since the amount of consideration is clearly a term of the contract. It is therefore not open to parties to the document to give evidence that the amount of consideration agreed upon was more or was less than what is states in the document. For this proposition the cases in Adityam Aiyar v. Ramakrishna Aiyar : (1913)25MLJ602 and Annada Charan Sil v. Hargobinda Sil (1922) 27 C.W.N. 496 are authorities. The appellant points out in connection with Adityam Aiyar v. Ramakrishna Aiyar : (1913)25MLJ602 that it has been doubted by a Bench of this Court in Ramaswami Chettiar v. Lodd Govinddoss Krishnadoss : AIR1926Mad35 which takes the Privy Council case in Hanif-un-nissa v. Faiz-un-nissa as more or less dissenting from Adityam Aiyar v. Ramakrishna Aiyar : (1913)25MLJ602 But with respect I do not think that the correctness of Adityam Aiyar v. Ramakrishna Aiyar : (1913)25MLJ602 is affected by Hanif-un-nissa v. Fais-un-nissa since the latter is not a case relating to a variation of the amount of consideration. In Ramaswami Chettiar v. Lodd Govinddoss Krishnadoss's : AIR1926Mad35 case, on which appellant relies, there was a recital in the document that Rs. 89,000 out of a total consideration of Rs. 2,89,000 had been paid in advance. The plaintiff averred, and was allowed to adduce evidence to prove, that only Rs. 60,000 was paid, that is, to show that the recital as to payment was incorrect. The defendant was also allowed to give evidence to show that it was agreed that Rs. 89,000 should be the figure shown as paid although only Rs. 60,000 was in fact paid, it being agreed at the time of sale that the total figure of consideration should be shown as Rs. 2,89,000 instead of the true figure of Rs. 2,60,000. That, I admit, seems to go very near to ruling that the defendant could adduce evidence that the total amount of consideration was not the figure given in the contract. But the judgment states very clearly that he was allowed to adduce this evidence only for the purpose of rebutting plaintiff's case, that the recital as to payment of consideration in the document was not correct, and not for the purpose of enabling the Court to decide what was the actual amount of consideration. That is, the learned Judges really laid down that the defendant could show that the figure of Rs. 2,89,000 was really the figure contracted for, so that the defendant was not really attempting to give evidence in variation of the contract but was really maintaining the correctness of the terms of the contract. The ruling in Kailash Chandra Neogi v. Harish Chandra Biswas 5 C.W.N. 158 is on the same lines and goes no further. In Gondu Ramasubbu Aiyar v. Muthiah Kone (1924) 85 I.C. 999 Mr. Justice Devadoss decided that the recital in a sale deed that there is no encumbrance on the property is not a term of the contract and therefore evidence can be given to show that the vendee knew of such encumbrance. The appellant relies on this case but it does not really help; it is not evidence of encumbrance which is here shut out, but evidence that the consideration included the discharge of the encumbrance.
5. Although I am constrained to the view that some of the cases quoted above enlarge too much the opportunities of avoiding Section 92, I think it is clear on the authorities that a party to a document of sale of immoveable property admitted to be a sale, that is, a transfer of immoveable property for a stated consideration cannot be permitted to adduce evidence to plead that the consideration was more in amount than is stated in the document. That proposition may be reinforced by emphasising what has been pointed out in Annada Charan Sil v. Hargobinda Sil 27 C.W.N. 496 that if it were not obligatory on parties to state the full amount of the consideration in their deeds of sale, a door would be opened for fraud upon the stamp revenue. In my view therefore it was not open to the defendant to plead that the consideration for the sale was more than the Rs. 280 recited in the sale deed and in that view the Lower Appellate Court's decision appears to me correct.
6. There was some discussion as to whether the defendant could prove that the agreement to discharge the mortgage was prior to the contract of sale and was therefore an independent transaction, but I do not think the point can really be taken. It is not asserted that there was any consideration for the plaintiff discharging the mortgage debt except his purchase under the sale deed, so that the separation of the two transactions is not a separation in fact. The written statement clearly implies, as the Lower Courts have held, that the discharge of the mortgage was regarded as part consideration for the sale.
7. No other points have been argued before me. I find therefore there is no error of law in the Lower Appellate Court's decision and I dismiss the appeal with costs.