1. This appeal is from the decision and decree passed by the learned First Additional District Judge, 24-Perganas, dismissing a suit instituted by the plaintiff-appellant for recovery of an amount of money due on a promissory note and a deed of agreement.
2. The plaintiff by two different registered documents dated October 4, 1929, sold to the defendant a rice mill standing on the lands described in the schedule to the plaint in which the total consideration was stated to be Rs. 26,000, for satisfying a mortgage in favour of the defendant in respect of the properties. Subsequent to that, there was the execution of the promissory note and the agreement in suit by the defendant in the plaintiff's favour on November 20, 1929. The promissory note contained a promise to payeRs. 5,000 while the agreement was to the following effect:
That you mortgaged your Emerald Rice Mill along with the lands on which it stands at Shah-pore to me at Rs. 26,000. As you had no other sources to pay the said loan, you agreed to sell the said mortgaged properties to me and I also agreed to pay you Rs. 5,000 over and above my mortgage dues being written off. You have already executed and registered sale-deeds in my favour on October 4, 1929. Hence I acknowledge and promise by executing this deed of agreement that for the aforesaid sum of Rs. 5,030 I have executed a hand note to-day in your favour and I shall pay up the entire aforesaid sum in different installments within three years from this date. You will not be entitled to sue me within that period.
3. On the pleadings of the parties three distinct issues were raised on the parties of the plaintiff's claim in suit:
4. Issue No. 5. What was the amount of consideration for the sale of the properties by the plaintiff to the defendant
5. Issue No. 6. Was the plaintiff to get Rs. 5,000 as alleged by her or was the price fixed to beset off against the defendant's principal mortgage dues of Rs. 26,000
6. Issue No. 7. Are the hand note and agreement in suit void for want of consideration
7. It appears that at the trial of the suit the question was raised whether the plaintiff was at liberty to adduce evidence that Rs. 5,000 payable in cash was also the consideration for the transaction evidenced by the two sale-deeds executed by the plaintiff; the contention of the defendant having been that the plaintiff was not entitled to adduce evidence and that Section 92 of the Indian Evidence Act was a bar to the same.
8. The trial Court held that Rs. 5,000 mentioned in the promissory-note and the agreement was also the consideration of the sale evidenced by the kobalas mentioned above. A decree was accordingly passed in favour of the plaintiff for the amount claimed in suit. It may be mentioned that the plaintiff's prayer made in the suit for declaration of a charge on properties was refused by the Court of first instance. On appeal by the defendant the Judge in the Court of Appeal below held that the evidence adduced by the plaintiff as to contemporaneous oral agreement contradicting the terms of the registered kobalas was wholly inadmissible in evidence and the promissory note and the deed of agreement were without consideration. It was further held by the lower Appellate Court that the promissory note and the deed of agreement were taken by the plaintiff's ammukhtear by the exercise of undue influence, fraud and coercion on the defendant. The appeal before the lower Appellate Court was allowed, and the judgment and decree of the trial Court were set aside.
9. It is necessary to state that at the hearing of this appeal the decision of the Additional District Judge that the promissory note and the deed of agreement on which the plaintiff's claim was based, were the result of undue influence, fraud and coercion on the defendant, was not supported on behalf of the defendant-respondent. The questions argued in the appeal related only to the position whether evidence relating to the consideration for the promissory note and the agreement in suit was admissible in evidence under Section 92 of the Indian Evidence Act.
10. The decision of this Court in the case of Annada Charan Sil v. Hargobinda Sil 27 C.W.N. 496 : 75 Ind. Cas. 557 : 37 C.L.J. 552 : A.I.R. 1923 Cat. 570, cited in support of the proposition that evidence to vary the, amount of consideration mentioned in a registered sale-deed is inadmissible, and that if such a course was permissible, the protection afforded by Section 92 of the Indian Evidence Act would be completely nullified, is amply supported by the wording of the section itself, and is in consonance with the decision of Courts; and we do not see any reason to depart from the salutary rule of evidence adopted in the same. The observations contained in the judgment of their Lordships of the Judicial Committee of the Privy Council in Tyogaraja Mudaliyar v. Vedaihanni , to the effect that Section 92 of the Indian Evidence Act only excludes oral evidence to vary the term of a written contract, and has no reference to the question whether the parties had agreed to contract on the terms set forth in the document, on which reliance was placed on behalf of the appellant in this Court, does not throw any light on the question arising for consideration in this case before us whether any evidence (oral or documentary) of any oral agreement or statement could be admitted as between the parties to any such instrument, for the purpose of contradicting, varying adding to its terms. This is with reference to the sale-deeds in which, the two documents taken together, the consideration was mentioned to Rs. 26,000 and the question is whether the statement contained0 in the deed of agreement, 'and I also agree to pay Rs. 5,000 over and above my mortgage dues being written off' could be proved by the evidence afforded by the promissory note, the deed of agreement and by other evidence, oral and documentary.
11. The reason for the judgment of this Court in the case of Nabin Chandra Chakrabarty v. Sona Mala Ghost : AIR1932Cal25 , laying down the proposition that it was permissible for parties to prove that the real consideration was not that mentioned in a document, but something else, inasmuch as the recital of the consideration is not one of the terms of a document, but the recital of a fact does not commend itself to us. That the consideration specifically mentioned in a document is merely a recital of fact, and not one of the terms of a transaction evidenced by a document, may be a proposition based upon a nice distinction; but it is difficult to follow the reason on which the distinction is based; and such proposition, in our judgment, militates with the reason for the rule of law and evidence laid down in Section 92 of the Indian Evidence Act.
12. In the case before us, it appears to be clear from the materials on record, and from the judgment of the trial Court, that the plaintiff did not want to adduce evidence for varying the amount of consideration mentioned in the deeds of sale namely Rs. 26,000 the plaintiff wanted to establish that besides the amount of Rs. 26,000 at which amount it was agreed that the mortgage-debt should be fixed and wiped out, the defendant promised to pay the further sum of Rs. 5,000. What was sought to be proved by the plaintiff, was a contemporaneous oral agreement which was a part of the consideration for the sale of the lands on a part of which the rice mill was situate, the rice mill itself with its good will, the accessories of the mill and other things of which no mention was made in the deeds of sale. The amount of Rs. 5,000 mentioned in the promissory note and the deed of agreement represented the price of all these other things not specifically referred to in the sale-deeds.
13. On the position indicated above, the plaintiff wanted to call into her aid, Proviso (2) of Section 92 of the Indian Evidence Act and prove the existence of a separate oral agreement as to matters on which the sale-deeds were silent, and which were not inconsistent with the terms of those documents. The separate agreement sought to be established was on a distinct and collateral matter, although it might have been a part of the same transaction; the test being that it should not vary or contradict the terms of the written contracts. The proviso, gives a discretion to the Court; the rule underlying the same does not and could not prevent parties to a written contract from proving that either contemporaneously or as a preliminary measure, they entered into a distinct oral agreement on some collateral matters: and the decisions of the Courts support the position referred to above: see Lindlay v. Lacy 34 L.J.C.P 7 : 17 C.B. (N.S.) 578 : 10 Jur. (N.S.) 1103 : 11 L.T. 273 : 13 W.H. 80, and Morgon v. Griffith 6 Ex. 7 : 40 L.J. Ex. 46 : 23 L.T. 783 : 19 W.R. 957. In the case of Lindlay v. Lacy 34 L.J.C.P 7 : 17 C.B. (N.S.) 578 : 10 Jur. (N.S.) 1103 : 11 L.T. 273 : 13 W.H. 80, the position was summarised by Erie, C.J. and Byles, J. thus Does it appear from the written instrument that it was meant to contain the whole that was intended to be binding between the parties. If so, nothing could be added to it. If this does not appear, then an agreement upon a distinct matter may be shown to have been made orally, and may be enforced. Whether the oral agreement precede or be contemporaneous with the agreement, is of no consequence, provided it be on a distinct collateral matter. Evidence may be given of a distinct and separate oral agreement upon a matter on which a written contract is silent, and a party is entitled to enforce the same.
14. In view of the legal position indicated above, arising from the materials on record in the case before us, the Court of Appeal below is wrong in holding that the evidence adduced by the plaintiff as to the contemporaneous oral agreement is wholly inadmissible, and the decision of that Court dismissing the plaintiff's suit cannot be supported.
15. In the case before us, the question arising upon Section 92 of the Indian Evidence Act, regard being had to proviso (2) contained in that section, is as indicated above connected with the position the plaintiff wanted to establish by evidence that Rs. 5,000 now sought to be recovered on the basis of a distinct and separate oral agreement upon a matter on which the deeds of sale executed for a consideration of Rs. 28,000 was silent, but which was incorporated in the promissory note and the deed of agreement, which were not without consideration and were enforceable under the law.
16. The case has to be remitted to the Court of Appeal below for necessary findings on evidence referred to by the Court of first instance that besides the mill and the lands, the plaintiff sold the accessories of the mill and sundry other things which were not mentioned in the deeds of sale: that there was also the good will of the mill: and Rs. 5,000 mentioned in the promissory note and the agreement in suit represented the price of all these:
17. In the result, the decision and the decree against which this appeal was directed, are set aside, and the case is remitted to the Court of Appeal below for the purpose of rehearing the appeal before it, on evidence already on record, and coming to a fresh decision in accordance with law, in the light of our decision on the question of law arising upon the statutory provisions contained in Section 92 of the Indian Evidence Act.
18. The costs in the litigation including the costs in this appeal will abide the decision on remand.