MAHAMMAD ARAJ Vs. ABDUL GOFUR

JUDGEMENT

(1.) This appeal arises out of a suit for khas possession of 1 k. 2? gds. of land as described in the plaint on establishment of the plaintiff's jote right thereto. The land in suit forms part of Dag No. 741 and this Dag and Dag No. 740 were formerly the property of Umed Ali, the father of the plaintiff, Umed Ali died leaving the plaintiff his son and two daughters, defendants Nos. 5 and 6, as his heirs. After their father's death the heirs came to an amicable arrangement; and the plaintiff's is that by this arrangement the daughters got Dag No. 740, and he got Dag No. 741, including the land in suit. This claim of the plaintiff is supported by a nadabi or a deed of release admittedly executed by the two daughters. The first Court gave the plaintiff a decree, but that decree has been reversed by the lower Appellate Court on the finding that the nadabi was a fraudulent, document and the land in suit was made over to the daughters at the time of the amicable arrangement between the heirs.

(2.) It is first contended that, on the fasts found by the lower Appellate Court, the plea of fraud has not been established. The finding amounts to this that the deed nadabi did not represent the true arrangement between the parties and that under that deed the daughters were shown to have accepted the two kanis of land in Dag No. 740 though a greater part of that Dag had already been sold. It is not stated in the judgment that the daughters executed the deed in ignorance of its contents, but that must be what the learned District Judge means. On the facts that have been found I cannot say that the finding as to fraud is wrong in law.

(3.) The next point argued is, that if this nadabi deed was fraudulent, its effect was to make the contract not void but voidable. But in this ease it is not a question of setting aside a contract on the ground of fraud, it is a question whether a written document under Section 92 of the Evidence Act bars the proof of an oral contract between the parties, I have some doubt whether a deed of release is in itself a contract of, grant or other disposition of the property to which Section 92 is applicable, but, even assuring that it is, on the finding of fraud the case is brought within proviso, 1, to that section and the authorities show that, when a case can be shown to come within the proviso, evidence of a contemporaneous oral agreement contradicting the document san be admitted. If this evidence is admitted, the decision of the lower Appellate Court must stand, and the finding of fact is that after executing the nadabi the defendants Nos. 5 and 6, the daughters treated the, 1 k, 2? gdas. of land as their own and it is also found that the plaintiff was never in possession of this plaint land since that amicable settlement The, land is valued for the purpose of this suit at Rs. 40, and is certainly under Rs. 103, in value and could be transferred by the amicable arrangement without any document being necessary. On the findings of fast it must be held, act withstanding the deed of release, that title to the land in suit was transferred to defendants Nos. 5 and 6 and subsequently by sale to defendants Nos. 1 to 4, who are contesting this suit. I must, therefore, hold that the decree of the lower Appellate Court is right and dismiss this appeal with casts.