1. This appeal arises out of a suit which was brought to recover the balance with interest of the consideration money due to the plaintiff under a deed of putowa executed by him in favour of the defendant. The putowa recites that the bonus fixed was Rs. 2,000, and it further recites that that amount had been paid to the plaintiff in cash in one lump sum. The plaintiff's case is that, although there is this recital, the whole of the consideration money was not actually paid but only Rs. 150, and the present suit is brought for the balance. The defence was that the plaintiff was not entitled to recover Rs. 1,820 but only Rs. 850, it having been agreed between the parties that the remaining Rs. 1,000 were to be set off against the debt due to the defendant from one Mohadeo Lal, a relation of the plaintiff.
2. The lower Courts have allowed oral evidence to be adduced to prove the allegation made in the written statement of the defendant. The Subordinate Judge upon that evidence came to the conclusion that the defendant's case was not made out. The District Judge upon the same evidence has come to the opposite conclusion. He is of opinion that the allegation in the written statement upon this point was substantiated. He has accordingly awarded a decree in favour of the plaintiff for only Rs. 850.
3. One of the questions raised before the lower Appellate Court was, whether, having regard to the provisions of Section 92 of the Evidence Act, the defendant was competent to adduce oral evidence to vary the terms of the written contract between the parties. The District Judge, with reference to this point, says: 'Something has been said by the respondent's pleader as to the operation of Section 92 of the Evidence Act of 1872 in excluding oral evidence. If the stipulation as to payment in the deed had been that the amount of the consideration was to be paid in cash, I am disposed to think that oral evidence as to the contemporaneous contract for a set-off would have been inadmissible. The fact is, however, that the plaintiff has followed the prevailing custom of untruly reciting in the deed, with some emphasis of diction, that he has already received the consideration in full, and that nothing whatever remains due. In these circumstances he can scarcely, with advantage to himself, in suing for a portion of the consideration, insist on the Court confining itself within the four corners of the document.'
4. The same objection has been taken before us, and that is the only question for decision in this second appeal. We agree with the District Judge that oral evidence was admissible to prove the defendant's allegation regarding the consideration money.
5. It seems to us that the plaintiff was allowed under proviso 1 of Section 92 to prove by oral evidence that the whole of the consideration money had not been paid, although it was recited in the putowa pottah that it had been paid. Under this proviso a party to a1 contract may prove a fact such as 'want or failure of consideration; but then if a party to a contract under that proviso be allowed to prove want or failure of consideration, it seems to us that his opponent would not be bound by the recital in the contract, but would be competent, in answer to the case made by the other side, to adduce evidence in order to prove that the 'consideration' was different from that recited in the contract. This principle is laid down in Shah Makhanlall v. Srikrishna Singh 2 B.L.R. (P.C.) 44. The passage to which we refer is to be found at page 48. That was a suit for redemption of a mortgage, and the rate of interest fixed in the mortgage deed was 9 per cent, per annum. The mortgagor insisted that an account should be taken upon the footing of 9 per cent, being the stipulated interest. The mortgagee, on the other hand, claimed 12 per cent, interest, and in support of that claim relied upon other transactions between the parties which he contended were part of the original mortgage transaction. The Sadr Dewani Adalat allowed interest only at the rate of 9 per cent, per annum, that is to say, the rate fixed in the contract. Their Lordships of the Judicial Committee, with reference to this point, say: 'The rules of evidence and the law of estoppel forbid any addition to, or variation from, deeds or written contracts. The law, however, furnishes exceptions to its own statutory protection, one of which is, when one party for the advancement of justice is permitted to remove the blind which hides the real transaction, as, for instance, of fraud, illegality, and redemption, in such cases the maxim applies, that a man cannot both affirm and disaffirm the same transaction, show its true nature for his own relief, and insist on its apparent character to prejudice his adversary.'
6. Applying this principle to this case, it is quite clear that the plaintiff appellant cannot affirm that the recital in the contract is not correct; and at the same time prevent the defendant from showing the real character of the consideration that was fixed between the parties. If the plaintiff be allowed to show that notwithstanding the recital in the contract the consideration money had not been actually paid in, it would be open to the defendant, in answer to that case, to show that it was not paid, because the other side refused to abide by the real contract between them, which was that out of Rs. 2,000 the amount fixed in the contract, Rs. 1,000 were to be set off against the debt due to the defendant from one Mohadeo Lal, a relation of the plaintiff.
7. The District Judge has overruled this objection virtually upon this ground, and we think that his decision upon this point is correct.
8. There is also another ground upon which we think that oral evidence in this case was admissible. What the defendant substantially stated was, yes; the consideration money was fixed at Rs. 2,000, and it was to be paid in cash; but there was another separate oral agreement to the effect that out of Rs. 2,000 consideration money to be paid in cash, the plaintiff should refund to him, the defendant, Rs. 1,000, being the amount of a debt due from Mohadeo Lal, a relation of the plaintiff. If that was substantially the agreement set up by the defendant, it seems to us that it comes within proviso 2 to Section 92 of the Evidence Act, which is to the following effect:
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.' In this case the agreement would not be inconsistent with the terms of the written contract. The stipulation that out of Rs. 2,000 paid in cash the plaintiff was to refund Rs. 1,000 in liquidation of a debt from one Mohadeo Lal, is not in our opinion inconsistent with the recital as to the consideration in this contract.
9. Upon both these grounds, we are of opinion that the District Judge was right in overruling the objection taken before him by the plaintiff as to the inadmissibility of oral evidence to vary the terms of a written contract upon which the suit was brought. The appeal is dismissed with costs.