Richard Garth, C.J. and Beverley, J.
1. We think that the Subordinate Judge is substantially right in the conclusion at which he has arrived.
2. The suit was brought by the plaintiff for the rent of certain land upon a kabuliat given by the defendant, which fixed the rate of rent for two years at Rs. 16; and which kabuliat is admitted to have been given by the defendant to the plaintiff.
3. The defendant's answer, as alleged in his written statement, was this, that the plaintiff was not the owner of the land at all, and had nothing to do with it; and that the real owner was the defendant himself, who, as well as his father before him, had been in possession of it for many years; but that he, the defendant, had, in collusion with the plaintiff, given this kabuliat to the plaintiff in order that the plaintiff might sell it to some third person for a high price, paying the defendant Rs. 282 out of the price, and obtaining also for him from the purchaser a mourasi pottah for the homestead land.
4. The Munsif did not believe this story of the defendant, but the Subordinate Judge found that it was true. There was some contradictory evidence, but he found as a fact that the kabuliat was executed in order to enable the plaintiff to sell the land, which really belonged to, and was in the possession of, the defendant, for a large price, and to give the defendant out of the purchase money Rs. 282 besides securing him the homestead under a mourasi pottah. In other words, he found that this agreement was not a bona fide, lease, but a fraudulent and collusive transaction entered into between the parties, for the purpose of enabling the plaintiff to cheat some third person; and that there never was any intention that rent should be paid by the defendant.
5. The word 'fraudulent,' it is true, is not used by the Subordinate Judge. He merely deals with the question, whether evidence ought to have been admitted for the purpose of contradicting the plain language of the kabuliat. But there is no doubt, we think, what he intends to find; and there is no doubt, if the plaintiff's story is true, that the transaction was a gross fraud.
6. That being so, any evidence given for the purpose of proving the fraud would be admissible. Section 23 of the Contract Act says; that where the consideration or object of an agreement is forbidden by law, or is fraudulent, the consideration or object of it is said to be unlawful and the agreement itself is void, so that neither of the parties can enforce it against the other.
7. Then the section of the Evidence Act which shows that under these circumstances evidence was admissible to prove fraud is Section 92, which, after stating that 'no evidence of any oral agreement or statement shall be admitted as between the parties to any instrument in writing for the purpose of contradicting, varying, adding to, or subtracting from its terms,' enacts in the first proviso that any fact 'may be proved for the purpose of invalidating any document on the ground of fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party,' and so on.
8. It is clear, therefore, that the transaction, which is found by the Subordinate Judge to have been entered into, is a fraudulent transaction, and that evidence of the fraud was admissible.
9. The appeal must, therefore, be dismissed with costs.