NARSINGDAS TAKHATMAL Vs. RADHAKISAN RAMBAKAS

JUDGEMENT

(1.) THE main argument which appealed to the learned Judge below was that having regard to the nature and circumstances of the case, it was not open to the plaintiff under Section 92, Evidence Act to lead any evidence to show shut the sale-deeds which were executed by the plaintiff in favour of Ramnath and Rampratap as above were really mortgages and that therefore he was entitled to redeem the same. The applicability of Section 92, Evidence Act has also been the subject of an elaborate argument addressed by Mr. R. B. Kotwal, who appears for the plaintiff before us. Before we proceed to discuss the applicability of Section 92, Evidence Act, we think that even though it may appear to be quite elementary, we should set out the terms of Section 92 which would fall to be construed by us in this appeal:

(2.) WHEN the terms of Section 92, Evidence Act were pointed out as debarring the plaintiff from proving anything of this type as between himself and defendants 1 to 4, it was urged that what was sought to be done was not to lead evidence of any oral agreement or a statement as between the parties to such instrument or their representatives in interest for the purpose of contradicting or varying its terms, Ramnath and Rampratap no doubt were parties to these documents of sale, but defendants 1 to 4 were not such parties and that therefore there was no ban under Section 92, Evidence Act operating against such evidence being led on behalf of the plaintiff. The documents had been executed between the plaintiff on the one hand and Ramnath and Rampratap on the other in the several years, 1907, 1909, 1919 and 1923. There was a partition between the members of the defendants' joint family in the year 1929, under the terms of which these properties had been transferred to defendants l to 4 and they had acquired absolute interest therein under the terms of the deed of partition executed, by and between the parties on 15-7-1929. The plaintiff was not a party to this deed of partition and defendants 1 to 4 were not parties to the various deeds of sale and that therefore it could not be urged that the evidence which was sought to be led was between the parties to the documents or their representatives in interest so as to come within the ban of Section. 92, Evidence Act.

(3.) BEFORE we proceed to discuss the authorities, which were cited before us, it is necessary to clear -the ground by analysing what was the true position as it obtained between the parties. The plaintiff was the owner of all these properties which were the subject matter of the various deeds of sale executed by him in favour of Ramnath and Rampratap. He had sold these several properties to them for the considerations mentioned in the several deeds of sale. Ramnath and Rampratap were the members of a joint and undivided Hindu family, Ramnath and Rampratap representing one branch of it and Rambakas representing another. Ramnath and Rampratap were alleged to represent the whole of their joint family in the matter of these deeds of sale executed by the plaintiff in their favour, with the result that even though the sale-deeds were executed in the names of Ramnath and Rampratap, they were really for the benefit of the members of their joint family. In a sense all the members of the joint family could be said to have acquired an interest in these Bijapur properties by reason of the sale-deeds executed by the plaintiff in favour of Ramnath and Rampratap. When the deed of partition came to be executed between the members of the defendants' joint family what was done was that whatever right, title and interest Ramnath and Rampratap had in these Bijapur properties was transferred by them in favour of defendants 1 to 4, defendants 1 to 4 in their turn releasing or relinquishing all right, title and interest which they had in the other properties belonging to the joint family which went to Ramnath and Rampratap on such partition. Partition is a transfer of immoveable property, but the partition effected here, so far as the plaintiff was concerned, did not and could not affect the nature of the transactions as they originally took place between him and Ramnath and Rampratap. The only thing which would require to be considered from this point of view would be what was the real nature of the transactions which had taken place between the plaintiff on the one hand and Ramnath and Rampratap on the other. If that was so, Section 92, Evidence Act would have a direct application, because whatever evidence was sought to be led would be between the parties to these documents of sale and no others, defendants to 4 being really parties to the documents, though the documents were in fact executed in favour of Ramnath and Rampratap.