1. Civil Suit No. 266 of 1836 was brought by a member of the family to which the parties belonged for partition against the other members of the family, the plaintiff, Rajaram Rao being the 3rd defendant and the present defendant, Tuljaram Rao, being the 4th defendant, in that suit. The present defendant, Tuljaram Rao, was the managing member of the family. He was held liable to account for Rs. 3,23,000 odd by the final decree passed on the original side of this Court. On appeal against the preliminary decree, he was held accountable for an additional sum of Rs. 1,40,000. The decree on the original side also declared that a half share of the Scottish Press which was purchased by Tuljaram Rao had been purchased by him on behalf of the family and that he must account to the family for a half of his drawings from the Press, which half amounted to Rs. 1,03,000 odd, so that he was accountable for a sum of Rs. 5,70,000 in all. The amount payable to the plaintiff in the present suit, who was then the 3rd defendant, amounted to over Rs. 86,000. It was also decreed that the present plaintiff and defendant were each entitled to 1/4th share of certain jewels then deposited in Court by the 5th defendant in that suit. It also held that each of them was entitled to a fourth share of certain outstandings due from the Nadar family. An appeal was filed against the final decree by Tuljaram Rao, the 4th defendant therein. While the appeal was pending, the matters in dispute between all the parties were compromised. The agreements entered into between them were embodied in separate documents. The terms of the compromise differed as between them, apparently because the circumstances were different. Exhibit BB is a memorandum of agreement between the plaintiff and the defendant and it recites that 'with a view to terminate the litigation that has been going on in the family for the past eleven years and more, and to make an amicable settlement of all matters in dispute between the several members of the family of the parties hereto' that agreement was entered into. Under Exhibit BB., the present plaintiff was to give up his claim for the Rs. 86,000 odd decreed to him; he was to enter up satisfaction of the decree in his favour for that amount; Tuljaram Rao was to withdraw his appeal which was then pending before the High Court and there were also certain other provisions to which it is unnecessary to refer. The plaintiff accordingly entered up satisfaction of the decree in his favour. The other parties did the same and the defendant Tuljaram Rao withdrew the appeal filed by him.
2. The plaintiff's case now is that, in addition to the consideration therein set forth, Tuljaram Rao further agreed to assign to him his 1/4th share of the jewels which, as we have already said, were deposited in Court by the 5th defendant and also his 1/4th share of the outstandings which were recovered from the Nadar family. The plaintiff alleged that Tuljaram Rao also agreed to give him certain other properties; but, as they are not the subject-matter of the appeal, it is unnecessary to refer to them. Wallis, J., who heard the suit, decided that it was not open to the plaintiff to adduce evidence to prove this claim as the terms of the contract between the parties had been reduced to writing and the claim now put forward is opposed to those terms. The question which we have to decide is whether the learned Judge is right in taking that view.
3. It is contended before us that this was a separate oral agreement as to a matter on which the document is silent and that it is not consistent with its terms and, as such, it may be proved under the proviso to Section 92 of the Evidence Act. This is clearly not so. Exhibit BB distinctly provided that the appeal against the decree in the civil suit was to be withdrawn, and the original decree was to regulate the right of the parties except in those cases where it was varied by the terms stated in Exhibit BB. According to that decree, Tuljaram Rao was to get his 1/4th share in the properties now in dispute. There was no provision in the memorandum of agreement which varied that decree in this respect. The agreement setup, therefore, is quite inconsistent with its terms and we are of opinion, therefore, that it cannot be proved. Nor can this be treated as a case where a contract has not been reduced to writing. Exhibit BB., itself distinctly recites that the agreement was entered into to terminate the litigation that had been going on in the family for over 11 years and to make a settlement of all matters in dispute. It must be taken, therefore, that the contract has been reduced to writing and the plea advanced before the learned Judge, so far as we can judge from the evidence, was not that the contract between the parties was not reduced to writing but that this was an independent oral agreement with reference to which the contract was silent. We must, therefore, disallow this contention.
4. Another question which was argued in appeal had reference to a loan alleged to have been advanced to the defendant. According to the plaintiff, there was a loan advanced to Messrs. Graves, Cookson and Company, and there was another loan given by the plaintiff to the defendant personally on pledge of the defendant's own jewels. According to the defendant, there was only one transaction and there were not two distinct loans. Both the Commissioner and the learned Judge had disallowed the contention of the plaintiff. The Commissioner has fully discussed the evidence in the case and we see no reason to differ from his conclusion. We confirm the learned Judge's finding on this question. We accordingly dismiss the appeal with costs.
5. The memorandum of objections is not pressed and we dismiss it, also with costs.