BAI ADHAR Vs. LALBHAI HIRACHAND

JUDGEMENT

(1.) THE plaintiff sued to obtain a declaration and accounts with respect to the plaint house in the city of Ahmedabad. It belonged to her step-brother Trikamlal. He mortgaged the property to the defendant on the 11 February 1912 and sold it to the defendant on the 12 October 1916, the consideration being Rs. 1081. THE plaintiff alleged that there was an arrangement that the property should be reconveyed to Trikamlal or his heirs on their repaying the total advances received, free from the burden of the alleged sale. THE plaintiff, therefore, wished to prove an oral agreement to reconvey on taking an account. It is admitted that the evidence which was sought to be adduced to prove this does not come within any of the provisos of Section 92 of the Indian Evidence Act. But a most extraordinary argument has been urged before us based on the evidence which cannot be called. It is first assumed that there was this arrangement, and then we are asked to believe that there must have been a representation made by the defendant to Trikamlal that the document was never to be enforced as a sale deed but was to be treated as a mortgage. That is not an argument which appeals to me, being contrary to the cases decided by this Court. THEre may be cases in which parties may succeed in getting the Court to agree that the evidence which is tendered may come within one of the provisos by implication, and the case relied upon by the appellant (Krishna Bai v. Rama may be one of those. But this is certainly not one of those cases which can possibly be brought within any of the provisos. THE document in suit is a plain sale-deed and it is attempted to prove by an oral agreement to reconvey and take the accounts, that it is something different. I think that the appeal must be dismissed with costs. Shah, J.

(2.) I agree. I desire to add that on the allegations in the plaint I am satisfied that the view taken by the lower Courts as to the inadmissibility of the oral evidence to prove the alleged variation of the terms of the sale-deed is right. Apart from any of the decided cases bearing on this point, it seems to me clear on these allegations that the case cannot be brought within any of the provisos to Section 92 of the Indian Evidence Act. The document in question is in terms a sale-deed, and no evidence to vary the terms of the deed can be admitted unless the case can be brought within any of the provisos. It is not easy to reconcile all the decisions of this Court on the point. But it seems to me that each case has to be decided with reference to the facts and pleadings of that case, and that there is no real conflict of any principle, though it may not be always easy to apply it in an apparently consistent manner.