SUNDAR BAI Vs. DWARKADAS PARPIA

JUDGEMENT

(1.) WE think in this, case the evidence which the defendant wished to lead to show what was the real, agreement between the parties ought not to have been disallowed. The plaintiff was suing for specific performance of a written contract and to such a suit Section 26 of the Specific Relief Act applies. The defendant has set up a variation, namely, that the consideration was Rs. 5,500 plus the right of residence in certain rooms; and he alleges she signed the agreement on the understanding that that was the consideration which was mentioned in the contract. The Judge has found, presumably from examination of the parties after issues had been raised, that this agreement actually was made. But evidence must be led by the defendant to prove what she alleges. Illustration (b) to Section 26 of the Specific Relief Act appears to be applicable to the case without having recourse to the provision of Section 92 of the Evidence Act, because where specific performance is asked for, the law provides that the plaintiff must do equity and extends the provisions of the Evidence Act, by giving the defendant an opportunity to prove a variation which he sets up. The appeal must be allowed, the decree of the lower Court set aside and the case remanded to the lower Court to take evidence and decide on the issues which have been raised.