KHUMAJI GAJAJI AND CO Vs. DAMAJI KORSEY

JUDGEMENT

(1.) The question in this suit is whether a person who has executed a promissory note personally can be permitted to show by oral evidence that he signed it merely as a surety for another person. The suit is brought on three promissory notes executed by the two defendants personally. Defendant No. 1 does not appear, but has put in a written statement admitting the notes but questioning the amount. Defendant No. 2 pleads that he executed the promissory notes merely as a surety for defendant No. 1, and that by reason of certain compromise arrived at between the plaintiffs and defendant No. 1 he is discharged from his liability under Section 135 of the Contract Act.

(2.) When the issues were raised it struck me that it was not open to defendant No. 2 to lead oral evidence to prove that he was a surety when on the face of the promissory notes he appeared to be a joint debtor. The learned counsel appearing in the case were not prepared to argue out the point, Mr. M.S. Vakil for defendant No. 2 stating that he had been briefed in the suit just at the time the case was called on. I stood the case over to enable counsel to refer to authorities, and this morning Mr. Vakil fairly admitted that the decisions of some of the High Courts in this country were against him. The question thus raised has not come up specifically for decision in this Court though it has been decided in a number of decisions of the other High Courts, to some of which I shall refer presently.

(3.) Apart from authority the position seems to me to be simple. Section 92 of the Indian Evidence Act prohibits oral evidence being given for the purpose of contradicting, varying, adding to, or subtracting from, the terms of any contract in writing, unless the case comes in any of the exceptions to the section. Whatever the current of decisions in this country has been before the decision in Balkishen Das V/s. Legge (1899) L.R. 27 I.A. 58, it is clear that since that decision the Court in considering whether oral evidence can be given or not has to look to the Indian Evidence Act, and the equitable considerations which have influenced the English Courts in cases like this have no application in this country. The view taken in Balkishen Das v. Legge has since been confirmed in Maung Kyin V/s. Ma Shwe La (1918) L.R. 44 I.A. 236