KHANKAR ABDUR RAHMAN Vs. ALI HAFEZ

JUDGEMENT

(1.) In this appeal, which arises out of a suit for establishment of the plaintiffs right and for confirmation of their possession in respect of certain immoveable property, two questions have been raised by the learned Vakil for the defendant-appellant, first, whether the Court of Appeal below was right in admitting extrinsic evidence to show that a certain conveyance was really a mortgage by way of conditional sale, and second, whether the Court of Appeal below was right in holding that there could be a valid surrender of an occupancy holding without a written document.

(2.) Upon the first question this is how the matter stands. The extrinsic evidence that was admitted was evidence of the acts and conduct of the parties, that is, evidence of the repayment of the money, the return of the deed, and the exercise of acts of possession by the vendor, and not evidence of any oral agreements or statements by the parties, and it was not disputed in the argument before us that that was the case. If that was so, the evidence would be admissible, as Section 92 of the Evidence Act does not exclude the evidence of acts and conduct of the parties. The view we take is supported by a Full Bench decision of this Court in the case of Preonath Saha V/s. Madhu Sudan Bhuiya (1898) I.L.R. 25 Cal. 603.

(3.) It was contended by the learned Vakil for the appellant that that decision roust be taken to have been in effect overruled by the decision of the Privy Council in the case of Balkishen Das V/s. Legge (1899) L.R. 27 I.A. 58. We do not consider this argument sound. The evidence that their Lordships considered inadmissible in the case just referred to was certain oral evidence of intention, which had been admitted in the Courts below, and the ground upon which their decision is based is that such evidence is excluded by Section 92 of the Evidence Act. Their Lordships do not lay down any rule of exclusion of evidence over and above that contained in Section 92; and Section 92 of the Evidence Act, as we have already observed, whilst it excludes evidence of any oral agreement or statement, does not exclude evidence of the acts and conduct of the parties not being in the nature of an oral agreement or statement. To understand clearly the meaning of their Lordships when they observe, "--Evidence of the respondent and of a person named Imam was admitted by the Subordinate Judge for the purpose of proving the real intention of the parties, and such evidence was to some extent relied on in both Courts. Their Lordships do not think that oral evidence of intention was admissible for the purpose of construing the deeds or ascertaining the intention of the parties "--we have referred to the judgment of the High Court reported in Indian Law Reports, 19 Allahabad, 434, and we find that the evidence which is referred to as inadmissible consisted of the statements of one of the parties to the transaction and of a pleader, which went to show that at the time when the negotiations were going on, which led to the execution of the deeds under consideration, one of the parties said that he would not execute the deed, unless it was a mortgage, and the other answered, and that answer was supported by the pleader, that the two deeds which they were going to have would together amount to a mortgage only. That was adduced as evidence of the intention of the parties, and that evidence was considered inadmissible. That evidence consisted only of oral statements of the parties, and therefore comes directly within the scope of Section 92. There was no other evidence of the acts and conduct of the parties adduced in that case, which was considered by the Privy Council. We are, therefore, of opinion that the case of Balkishen Das V/s. Legge (1899) L.R. 27 I.A. 58 does not in any way affect the rule laid down in the case of Preonaih Shaha V/s. Madhu Sudan Bhuiya (1898) I.L.R. 25 Cal. 603. The first question raised in this appeal must therefore be answered in the affirmative.