HUKUM CHAND Vs. SHAMBHU NATH

JUDGEMENT

(1.) THIS is an application in civil revision by a judgment-debtor asking that the order of the lower. Court refusing to certify a payment of Rupees 410 as made in satisfaction of a decree should be set aside. The judgment-debtor was a judgment-debtor under two decrees in favour of Shambhu Nath and there was also a mort gage executed by the judgment-debtor in favour of Shambhu Nath and on 7 February 1934 the judgment-debtor executed a sale deed in favour of Shambhu Nath of a half share in certain zamindari. On the same date Shambhu Nath executed a receipt for Rs. 410 stated to have been paid by Hukam Chand, who is the judgment-debtor. It is not stated in the receipt that the payment was on behalf of the decrees. The allegation of the judgment-debtor was that the payment was made towards the decretal amounts. On the other hand the decree- holder said that the receipt was not for payment of money but was a document executed by the decree-holder and deposited with one Jagat Prasad to be given eventually to Hukam Chand, applicant, in case Hukam Chand allowed arrears of rent to run against him as an exproprietary tenant of sir land and allowed himself to be ejected from that exproprietary tenancy. He further alleged that Hukam Chand obtained the receipt from the person with whom it had been deposited by deceit. The lower Court held that the story for the decree holder was correct and refused certification. In revision it is urged that the evidence of the plaintiff was inadmissible under Sec. 91, Evidence Act, and Section 92, and that as the extinction of exproprietary rights was against the policy of the Tenancy Act the Court was wrong in giving effect to agreements with that object. I do not consider that Section 91, or Section 92 bar evidence to show that the receipt was a fictitious document in the sense that no money was paid. In proviso (1), Section 92 it is stated that the failure of consideration may be proved and also any fact which would invalidate any document. As regards the third ground the agreement was not to prevent exproprietary rights arising but was to secure a surrender of those rights. An exproprietary tenant may legally surrender his rights under the Tenancy Act. Moreover the question is not whether any agreement between the parties should be carried out which is contrary to law. The question is merely whether it is proved that a payment has been made towards the decretal amount. It is open to the plaintiff to produce evidence on this point of the kind that he has produced. For these reasons I find no merits in this revision which I dismiss with costs.