DAGDU SADU NAHAVI Vs. NAMA SALU

JUDGEMENT

(1.) The learned Judge, for the reasons stated in, the appendix to his judgment, is of opinion that a person who wishes to set aside an ostensible sale-deed can do so on proving that a representation was made to him at the time of execution that it would not be enforced as a sale-deed, and he accordingly states as the first question which arises for decision in the appeal before him : Did the defendant at the time of the execution of the sale-deed represent to the plaintiff that the sale- deed would not be enforced as such ? In other words, did the defendant promise the plaintiff that the sale-deed would not be enforced as such ? Stated in this form the question propounded by the learned Judge is whether or not there was a contemporaneous agreement between the parties inconsistent with the written document executed by them.

(2.) We think it is clear upon the authorities binding upon us that no evidence of such an agreement, or promise, or representation can be admitted. The view of the law expressed in Balkishen Das V/s. W.F. Legge (1899) I. L. R. 22 All. 149 was acted upon in Datto V/s. Ramchandra (1905) 7 Bom. L.R. 669 and again in Keshavrao V/s. Raya and in Achutaramaraju V/s. Subbaraju (1901) I.L.R. 25 Mad. 7.

(3.) Mr. Justice Batty in Keshavrao V/s. Ray a said : "... the fraud which under proviso I, Section 92, may be proved, must be fraud which would invalidate the document, and, therefore, subsequent fraud in respect of the document not such as to invalidate it, could not be a ground for admitting extraneous oral evidence under Proviso I of Section 92. The real effect of admitting such evidence would not be to prove fraud in the execution of the document, but the existence of a different intention than that which appears on the document itself. In other words, it would be an attempt to prove a different contract from that expressed in the document without proving any fraud in the preparation of the document which would invalidate it".