1. This appeal has arisen out of a suit for rent. Plaintiffs' case is that both the defendants, defendant 1 and his wife defendant 2, took settlement of two hals of land and that a kabuliat was executed by defendant 2 for both the defendants. The defence is that defendant 1 did not take any settlement, that defendant 1 was indebted to the plaintiffs and other creditors, and that he transferred 10 hals of land in favour of the plaintiffs on condition that the plaintiffs would allow him two hals of land free of rent and make a gift of one hal out of these two hals in favour of defendant 1's son. Defendant 1 has been occupying one hal and his wife the other hal under these conditions since the sale. Both Courts have found that out of the two hals in the possession of the defendants one was held rent free and the other rent paying at rate of Rs. 70-15-6, namely the rate stated in the kabuliat.
2. This appeal by the plaintiffs is based on the argument that inasmuch as the land is held on the basis of the kabuliat, evidence should not have been admitted to vary the terms of the kabuliat. The finding of the lower Appellate Court is that the tenancy is not based on the terms of the kabuliat and that there was a separate contract which must be ascertained in order to give the proper relief to the plaintiff's. The learned Judge based his finding on a separate contract as evidence from the deposition of defendant's witness No. 2 Badhan. This witness stated that the plaintiffs promised to make a gift of one hal of land in favour of the defendant's son and to allow defendant 1 to remain in possession of that land as before without charging any rent for the same, but he did not support the further allegation of defendant 1 that the plaintiffs also undertook to allow the defendant's wife to possess another hal or another two hals of land rent free. It appears that defendant 1 is in possession of two hals of land and according to the kabuliat, settlement was made with his wife agreeing that she should hold these two hals on payment of Rs. 70-15-6 per hal and the claim of rent is accordingly Rs. 141-15-0 and Rs. 8-1-0 as compensation.
3. It is difficult to bring this case under one of the exceptions to the provisions of Section 92, Evidence Act, by which oral evidence for the purpose of contradicting or varying the terms of a document is excluded. The cases which have been decided in support of the admission of such evidence appear either to come under the provisions of proviso (1) or to cases in which there was an agreement ab initio that the document would not take effect. In Tyagaraja Mudaliyar v. Vedathanni it was held that the oral evidence to show that a document was never intended to operate according to its terms, but was brought into existence solely for the purpose of creating evidence about some other matter, is admissible under proviso (1) to Section 92, on the ground that any fact may be proved which would invalidate a document. In expressing this opinion, their Lordships referred to the case in Mottayappan v. Palani Goundan (1915) 2 AIR Mad 855 and added that in their opinion, even if there were no proviso to either section (91 or 92), the result in that case would be the same, because there is nothing in either section to exclude oral evidence that there was no agreement between the parties and therefore no contract. The present case is not of that nature, because here it is admitted that there was an agreement between the parties and in fact the Courts have decreed the case by a modification of the agreement between the parties by which two hals of land were settled with the defendants at the kabuliat rate. The other case referred to on behalf of the respondent is the case in Satyendra Nath Roy Choudhury v. Pramananda Haldar (1935) 39 CWN 888. In that case it was held that oral evidence is admissible to show that there was an agreement ab initio that the terms of which had been embodied in a written instrument were not intended to be acted upon. In that case the kabuliat rate was Rs. 16-11-6 but from the beginning the rent realized had been at the rate of Rs. 12-15-10. It was not a case where the rent had been varied by a subsequent agreement but the plea was that there was a distinct verbal agreement for payment at the lower rate. It was held that the evidence was admissible but not for the purpose of contradicting the contract as to the amount of rent payable, but for the purpose of showing that the intention of the parties was from the first that the agreement was not to be acted upon. In this case it has been found that whereas the written agreement was to pay rent at the rate of Rs. 70-11-6 for the two hals, there was a separate oral agreement that one hal would be given rent free. The Courts have accordingly decided that one hal should be rent free and as regards the remainder of the lands the kabuliat was to be acted upon. The witness whose oral evidence was accepted did not support the allegation of the defendants that the plaintiffs undertook to allow the defendant's wife to possess two hals of land rent free.
4. The effect of the findings of the Courts below appears to be that defendant 1 is held to be a tenant of the plaintiffs under the kabuliat but only as regards one hal instead of two hals of land. Had it been found that the kabuliat was not intended to be acted upon at all, Proviso 1, Section 92 would have applied, but the terms of the kabuliat have been varied by the evidence that the plaintiffs promised to make a gift of one hal in favour of defendant's son and to allow him to remain in possession of the land without charging rent. This is in contravention of the provisions of Section 92, Evidence Act. A point was also raised that the kabuliat being in the name of defendant 2 is not an agreement between the parties and therefore does not come under the terms of Section 92. But clearly the finding is that the kabuliat was executed by defendant 2 on behalf of defendant 1 and that the parties were really the plain-tiffs and defendant 1. So there is no substance in this point. This appeal is accordingly allowed. The plaintiffs are entitled to recover the rent as claimed, namely Rs. 141-15.0, and compensation of Rs. 8-1-0. The plaintiffs-appellants are entitled to get half the costs throughout.