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Afar Alias Godai Morol and ors. Vs. Surja Kumar Ghose and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in7Ind.Cas.842
AppellantAfar Alias Godai Morol and ors.
RespondentSurja Kumar Ghose and ors.
Cases ReferredWebb v. Bing
Excerpt:
landlord and tenant - qabulyat, construction of--rent, partly in money end partly in kind--grant in prepetuity--oral evidence, not admissible to vary terms of qabulyat--evidence art (i of 1872), section 92. - .....judgment of the district judge is erroneous inasmuch as he has allowed the plaintiffs to prove by oral evidence an alleged variation of the written contract in contravention of the provisions of section 92 of the indian evidence act.3. it has not been disputed and, in our opinion, it cannot be successfully disputed that, upon a true construction of the lease, the plaintiffs are entitled, upon failure of the defendants to deliver the paddy, to realise only rs. 12 as its value. what the plaintiffs assert is that although the lease on the face of it shows that the plaintiffs are entitled to realise only a fixed sum, yet the real intention of the parties was to entitle the plaintiffs to realise the market-value, from time to time, of the paddy not duly delivered. the suggestion is that rs......
Judgment:

1. This is an appeal on behalf of the defendants in a suit for rent. The tenancy was created by a lease executed on the 5th April 1885. The contract provided that Rs. 11-3 a year was to be paid by the tenant for 12 bighas of land 3 aris of paddy on account of another 4 bighas of laud and Rs. 3 on account of costs. In substance, therefore, the rent was payable partly in cash and partly in kind. The lease further provided that if the tenant neglected to pay the fixed rent and paddy, the landlord would be entitled to realise amicably or by action at law Rs. 12 as the price of the paddy and Rs. 11-3 as the cash rent and Rs. 3 the amount of costs, in all Rs. 26 3. There were also provisions for payment of interest on overdue instalments to which special reference is not needed ft r our present purposes.

2. The plaintiffs have sued to recover rent for the years 1312 and 1313 and they claim the price of the paddy at the market rate. The defendants resisted the claim on the ground that they were liable for the value of the paddy at the rate mentioned in the lease, namely, Rs. 12 for 3 aris. The Court of first instance found in favour of the defendant. Upon appeal the learned District Judge has reversed that decree upon the authority of the decision of this Court in the case of Shohobat Ali v. Abdool Ali 3 C.W.N. 151. The defendants have now appealed to this Court and on their behalf it has been contended that the judgment of the District Judge is erroneous inasmuch as he has allowed the plaintiffs to prove by oral evidence an alleged variation of the written contract in contravention of the provisions of Section 92 of the Indian Evidence Act.

3. It has not been disputed and, in our opinion, it cannot be successfully disputed that, upon a true construction of the lease, the plaintiffs are entitled, upon failure of the defendants to deliver the paddy, to realise only Rs. 12 as its value. What the plaintiffs assert is that although the lease on the face of it shows that the plaintiffs are entitled to realise only a fixed sum, yet the real intention of the parties was to entitle the plaintiffs to realise the market-value, from time to time, of the paddy not duly delivered. The suggestion is that Rs. 12 was mentioned in the lease as the value of the paddy, only for the purpose of ascertainment of the registration fee payable. The plaintiffs have attempted to prove this allegation by oral evidence. In our opinion, it was not competent to them to do so in view of the provisions of Section 92 of the Indian Evidence Act. The learned Vakil for the plaintiffs-respondents has contended that the cases of Shohobut Ali v. Abdool Ali 3 C.W.N. 151 : Akbar Ali v. Durga Kirpa S.A. No. 1773 of 1898 and Sheikh Isop v. Gopal Chandra Das 14 C.W.N. CXII, indicate that such an understanding between the parties to the lease may be proved by oral evidence. An examination of the judgments in these cases shows, however, that the Court was not invited to consider the effect of Section 92 of the Indian Evidence Act. In the case before us, the lease was granted in perpetuity, the rent was made payable partly in kind and partly in cash and the parties expressly provided that if the rent payable in kind was not duly delivered, the tenant would be liable for a specified fixed sum. We are now invited to read the instrument as if it were provided that upon failure to pay the paddy, the landlord would be entitled to realise, not Rs. 12 as its price at the rate of Rs. 4 per ari, but its price at the current market-rate. It is obvious that oral evidence is not admissible to prove an agreement of this description which subsequently varies the rights and liabilities of the parties as explicitly set out in the instrument. If any authority is needed, to show that this is not permissible, reference ' may be made to the case of Lakhalutla Sheikh v. Biswambhar Rai 6 Ind. Cas. 577 : 2 Ind. Cas. 160. It is quite clear in the case before us that the lease cannot possibly be construed to mean that Rs. 12 was the then value of the paddy deliverable, as was the case in Baneswar Mukerjee v. Umesh Chandra Chakrabarti 37 C. 626 : 14 C.W.N. CLxxxiv : 7 Ind. Cas. 875. The case of Bepra Charan v. Suchand Roy 14 C.W.N. ccxxxii is of no assistance to the respondents, because the learned Judges there allowed the price of the paddy calculated not at the market-rate, but at its value as mentioned in the lea e. We feel no doubt whatever that the case before us indicates an attempt on the part of the plaintiffs to supersede the clear and unambiguous provisions of the lease. If the allegation of the plaintiffs is true, their obvious remedy is to have the instrument rectified. The learned Vakil for the respondents keenly appreciated the difficulty of the situation and was constrained to argue that the case fell within the sixth proviso to Section 92, which lays down that any fact may be proved which shows in what manner the language of a document is related to existing facts. Obviously, this proviso is of no assistance to the respondents. No question of the interpretation of the language of the document arises here. No external information, in the words of Wood, V.C. in Webb v. Bing 1 K. and J. 580 : 69 E.R. 591 : 1 Jur. (N.S) 696, is requisite to construe this instrument. Even if such information was needed, we would be constrained to restrict ourselves, within the words of the instrument, and the investigation must stop as soon as the whole of the words were exhausted. In our opinion, the District Judge has allowed parol evidence of an oral agreement to contradict and subsequently vary the terms of the lease. This it was clearly not competent for him to do.

4. The result, therefore, is that the appeal must be allowed, the decree of the District Judge set aside and that of the Court of first instance restored with costs both here and in the Court below. This judgment, it is conceded, will govern S.A. No. 2036 of 1908.


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