H SSHAMA RAO Vs. PATEL KANAKE GOWDA AND

JUDGEMENT

(1.) This Second Appeal involves the construction of proviso (1),(2) and (3) to section 92 of the Evidence Act. The question arises in this way. On October 28, 1952, defendant 1 executed in favour of the plaintiff a sale deed (Exhibit I) , by which he purported to convey to the plaintiff a house which is the subject-matter of the suit for a sum of Rs. 800/-. The sale deed was presented for registration by the plaintiff on March 14, 1953 and was registered on April 25, 1953 by the Sub-Registrar although the plaintiff was not present before the Sub-Registrar on that day. Defendant 1 who appeared before the Sub-Registrar admitted execution of the document, but nevertheless pleaded that the document should not be registered amount by the plaintiff. The translation of what he stated before the Sub-Registrar in Kannada reads:

(2.) The main defence to the suit was that there was a condition which had been agreed to by the plaintiff to the effect that, if the plaintiff did not pay the consideration in the presence of the Sub-Registrar at the time of registration of the sale -deed, the sale deed should be regarded as cancelled and become null and void. This was the stand taken by defendant and also by defendant 2 in whose favour, very cursory, a sale deed was executed by defendant 1 in respect of the suit house of May 30, 1953, after the institution of the suit.

(3.) Both the Courts below recorded a finding that the oral agreement set up by the defendants 1 and 2 was proved and accordingly dismissed the plaintiff 's suit. The plaintiff appeals.