SUBHADRA Vs. KESAVAN

JUDGEMENT

(1.) By Ext. A dated 13-6-1124 M. E. (26-1-1949 A. D.) the three defendants agreed to sell a piece of land 2 acres 75 cents in extent to the plaintiff for Rs. 1,425/-, the transaction to be put through within a year. The property was at that time, along with another property, the subject matter of a decree for sale in O. S. 413/1111 of the Quilon Munsiff's Court for the recovery of about Rs. 1,370/-. (Ext. I is a copy of the decree). Ext. A said nothing about this decree charged on the property. No sale was effected in pursuance of Ext. A, and the defendants having ignored his notice Ext. III dated 22-9-1951, demanding a sale, the plaintiff instituted the present suit on 5-11-1951 asking for specific performance and other ancillary reliefs. The 1st defendant alone contested the suit and his principal defence was -- and that is the only defence with which we are now concerned -- that there was a contemporaneous oral agreement that the plaintiff should, with his own money, pay the amount due under the decree and then pay the defendants the further sum of Rs. 1,425/- stipulated in Ext. A for obtaining the sale. The plaintiff having failed to discharge the decree, Ext. A was unenforceable. This defence found favour with the first court which held that evidence of this contemporaneous oral agreement was admissible under the third proviso to S.92 of the Evidence Act. On appeal by the plaintiff, the lower appellate court found against the alleged oral agreement and held further that evidence thereof was inadmissible under S.92 of the Evidence Act, the third proviso thereto being inapplicable. It therefore decreed the plaintiff's suit, and the legal representatives of the 1st defendant (who were brought on record as respondents 4 to 8 on the death of the 1st defendant pending the appeal) have come up with this second appeal.

(2.) Regarding the truth of the alleged oral agreement I am inclined to agree with the lower appellate Court that the first court misread the evidence of D. W. 2, the principal witness in the case, a lawyer who had often acted for both the plaintiff and the 1st defendant and who at their request drafted Ext. A, but who nevertheless thought fit to appear for the plaintiff in this case until he was compelled to give up his appearance on being cited as a witness by the 1st defendant. His evidence is clear. The understanding between the parties was that the decree should be paid from out of the consideration of the proposed sale, the very purpose of that sale being to free, by the sale of a portion, the entire property covered by the decree from the encumbrance thereunder. Therefore his statement that the arrangement was that the plaintiff should pay up the decree could only have meant, as the lower appellate court understood it to mean, that the plaintiff should make the payment from out of the price fixed in Ext. A (which according to the witness was fixed having regard to the amount due under the decree and the incidental expenditure, so much of the property being sold as was necessary to clear the charge under the decree) and not as the first court understood it to mean, namely, that the plaintiff was to pay the amount due under the decree, and, over and above that, pay the price mentioned in Ext. A. But I do not think it necessary to consider this question at length for I hold, in agreement with the lower appellate court, that evidence of the alleged oral agreement is inadmissible. The plaintiff was in no way liable under the decree, and, if he was to pay it, that could only have been as part of the price for the suit property. In other words the case of the 1st defendant amounted to this, namely, that the price agreed was not the sum of Rs. 1,425/- mentioned in Ext. A, but that sum plus the further sum of Rs. 1,370/-or so due under the decree. But the terms of the contract for sale between the plaintiff and the defendants, including the term of the price, having been reduced to writing in the shape of Ext. A, no proof of such terms is admissible under S.91 of the Evidence Act apart from Ext. A itself; and S.92 rules out evidence of any oral agreement or statement for the purpose of contradicting, varying, adding to, or subtracting from its terms -- to say that there was an oral agreement that the price should be Rs. 2,7951- instead of the price of Rs. 1,425/- mentioned in the document is surely to do this. The decision in Mothey Krishnayya v. Mohamad Galeb ( AIR 1930 Mad. 659 ) relied upon by the lower appellate Court is exactly in point. The facts therein are similar. That decision contains a full discussion of the question with reference to the decided cases and with the conclusion therein that evidence of an oral agreement like the present is inadmissible, I am in respectful agreement. It is true that in that case it was on proviso 2 rather than on proviso 3 to S.92 that reliance was placed but in my view neither proviso can apply. The price is a term of the contract; the document mentions the price and is therefore not silent about it; and to say that there was an oral agreement that a higher price should be paid is to say something at variance with the terms of the document. Hence proviso 2 is ruled out. And, as for proviso 3, it seems to me meaningless to say that there was a separate oral agreement, constituting a condition precedent, that a higher price should be paid than the price mentioned in the document. If a contradiction or variation of the terms of a document could be pleaded as constituting a condition precedent to the attaching of any obligation thereunder, then the purpose of S.92 of the Evidence Act would be largely defeated. In Maung Mon v. Ma Kin Oh and one ((1927) V Rangoon 636) the evidence that was allowed and accepted was that an admitted payment of Rs. 300/- was not towards the price stipulated in the document but on some other account so that in effect the evidence was to disprove the plaintiff's plea of part payment and establish the defendant's plea of failure of consideration, not to vary the price mentioned in the document. If that decision lays down that evidence of an oral agreement to pay a higher price is admissible I must express my respectful dissent.

(3.) Great reliance is placed on behalf of the appellants on Turner v. Forwood ((1951)1 All E. R. 746). But although we have it on the high authority of Rowland v. Administrator - General (AIR 1938 P. C. 198 at page 201) that S.92 of the Evidence Act states the Indian law in terms which are in accord with the English law, it must be remembered that English cases do not construe the Indian statute and that however useful they may be for understanding the law on which the statute is based, they are scarcely direct authority regarding its construction on which alone must depend the decision in a case governed by statute. If it were necessary for me to distinguish this English case, I would say that unlike as in the present case, the consideration mentioned in the document therein was on the face of it nominal so that it was apparent on the very face of the document that that could not have been the consideration which the parties had agreed upon. It was as if the document were silent on the question of consideration so that other evidence in proof of that term of the contract would not be shut out either by S.91 or S.92 of the Evidence Act. Or, if the consideration mentioned were to be read literally, it would on its very face be so obviously not what the parties intended that an action for rectification would lie and evidence for ascertaining the real intention of the parties and for giving effect to it would be admissible. Although Lord Goddard C. J. who delivered the leading judgment seems to have been inclined to the view that it did not matter whether the consideration mentioned in the document was nominal or not and that evidence of consideration additional to what was stated in the document was admissible, it would appear from the judgment of Singleton L. J. and Denning L. J. that they rested the decision on the circumstance that, on the face of the document, it appeared that the consideration was no more than nominal. With great respect, I think that the judgment of Denning L. J. sets out the true position quite clearly. It is a very short judgment and runs thus: