KERALAL UDOCHAND Vs. AMARNATH

JUDGEMENT

(1.) THIS is plaintiffs second appeal. Their suit for damages for breach of contract of lease has been dismissed by the trial Court and that decree has been upheld by the Additional District Judge, Damoh.

(2.) THE facts, briefly, are that respondent No. 3 Jagannath and Ranchoreshankar were brothers. Ranchoreshankar was the father of respondent No. 1, Amarnath, and husband of respondent No. 2 Shantibai. On 8th October 1946 this Ranchoreshankar executed a patta in favour of the plaintiffs, leasing fields named Talaiya Bandhan and Baram Deo Gohari of 3 1/2 Manis acreage for a consideration of 3 Manis grain which, as recited in the document, was received in advance. The lease was to be for the year. Samvat 2004 (1947 -48). In that year the plaintiffs were not put in possession of the fields leased, and these fields were cultivated in that year by Ranchoreshankar. The plaintiffs, therefore, claimed damages for breach of the contract.

(3.) AFTER hearing the arguments on this point, 1 have come to the conclusion that, looking to the wording of proviso (3) to section 92, there is no substance in the contention raised; and the question is also covered by several decisions, including a decision by the Privy Council in Tyagaraja Mudaliyar vs. Vedathanni : A.I.R. 1936 P.C. 70. In that case a document had been executed on December 28, 1912, by the plaintiff and by her husband's brother affirming the undivided status of the family and purporting to make provision for the plaintiff's maintenance. It was distinctly understood that this document was not to be the final contract for the plaintiffs maintenance, but was solely intended as a voucher establishing the joint undivided nature of the family, it being agreed that the plaintiff's claim for maintenance on a scale commensurate with the position and status of the family was to be left over for future settlement. Consequently, the provision for maintenance in the deed was never given effect to, or acted on by the parties. It was held by the Courts below, in that case, that there was no agreement and therefore no contract. The appeal was taken to the Privy Council on the sole point, whether under the provisions of sections 91 and 92 of the Indian Evidence Act oral evidence was admissible to establish that it had been agreed that the provisions for the plaintiff's maintenance were not to be acted upon, and that the document was only intended to create evidence of the undivided status of the family. Their Lordships discussed the provisions of these sections of the Evidence Act and observed that there is no proviso in either section making oral evidence to show that there was no agreement, and therefore no contract, inadmissible. It was held that section 92 only excludes oral evidence to vary the terms of the written contract, and has no reference to the question whether the parties bad agreed to contract on the terms set forth in the document. It was, therefore, observed that the objection must be based on section 91, which only excludes oral evidence as to the terms of a written contract, and it was held that, under that section, a defendant sued upon a written contract purporting to be signed by him, cannot be precluded in disproof of such agreement from giving oral evidence; that his signature was a forgery. Their Lordships referred to Pym vs. Cambbell, (1856) E & B 370, and other cases, both Indian and English, and held that there is nothing in either section to exclude oral evidence that (notwithstanding a written instrument which purports to embody a contract) there was no agreement between the parties and therefore no contract. It was also held that the oral evidence showing that the document, though signed by the party impugning it, was not intended to be acted upon, but was intended to be used solely for another purpose, was rightly admitted.