LAXMIBAI Vs. KESHAV ANNAJI POKHARKAR

JUDGEMENT

(1.) The plaintiffs, Laxmibai and Anandrao, sue the defendants, Keshav and Punamchand, for specific performance of a contract to buy certain immoveable property made on the 4th of March 1914, and in form made and executed by Keshav alone. There is an alternative, prayer for damages, and at the conclusion of the case the plaintiffs expressed a desire, in view of certain anticipated difficulties, to abandon their claim for specific performance and confine it to damages.

(2.) The case has occupied a considerable time in hearing owing to the difficulties which I felt from the beginning in drawing the line between what was, and what was not, open, first, to the plaintiffs, and, secondly, to the first defendant to prove in explanation or variation of the written contract.

(3.) The difficulties created by Section 92 of our Evidence Act appear to me to be obvious. In the English Courts, in somewhat analogous if not exactly similar cases, they have been surmounted by processes of reasoning which, with great respect to the very eminent and learned Judges using them, do not appear to me to be adequate. Nothing could well be plainer than the provisions of Section 92 of the Indian Evidence Act. Where Courts have to deal with a written contract, the law of this country absolutely prohibits parol evidence being given except within the limits very carefully laid down in Section 92 itself. Although, no doubt, the law of England was intended to be in substance the same as the law to which expression has thus hem given in Section 92,; the Judges had no definitely worded Statute to interpret and by which to be bound as the Courts in India have. Speaking generally, the rule laid down in England and considered to be settled by the decision in the leading case of biggins v. Senior (1841) 8 M. & W. 831 was that where there was a written agreement or contract not under seal, the obligor might not give parol evidence to evade his liability even though the facts upon which he relied were within the plaintiff s knowledge: while, on the other hand, the plaintiff might pass over the actual obligor of the contract if he chose to do so and seek the real maker behind him. In other words, if A contracted as an agent in such a form as to make himself personally liable, his principal being B, the plaintiff might, at his option, show by parol, notwithstanding what appeared on the face of the document, that his contract was really with B, A, however, could not by way of defence prove by parol that he was not, as he appeared to be on the face of the document, liable under it. So far the distinction is perfectly intelligible, though I think it would be extremely difficult to reconcile it with the strict language of Section 92 of the Indian Evidence Act. In the long and elaborate argument on behalf of Mr. William Senior, the learned and eminent Counsel engaged repeatedly admitted that the substitution of the real for the merely nominal contracting party was a variation of the written contract. Indeed it is more than a variation. It amounts to making a new contract totally different from that which has been expressed in the writing. And it appears to me, looking at this matter logically, that this must inevitably be so. The attempts of the learned Judges concerned to distinguish upon the ground, that the addition of a party not appearing on the face of the document as a party liable, along with the party expressed in the document to be so liable, in no variation but merely an addition, seems to me to be a super refinement of reasoning which could not be consistently sustained. It must be a very different thing for a person contracting that A shall pay him certain money, afterwards to insist that not A but B shall pay him that money. And to say that it is not a term of the contract that the promisor contracts to pay the stipulated price or supply the stipulated goods so long as somebody else is put into his shoes can easily be exhibited as a glaring fallacy, if we once subtract from the cases that have come before the Courts the knowledge of the plaintiff himself. Where the plaintiff knew that a person appearing on the face of the document as the contracting party was not so but was acting for a principal, then it is easy enough to argue, though the argument reveals, in my opinion, some laxity of thought, that proving the truth is proving no more than what the plaintiff knew to be the real as distinct from the apparent agreement and, therefore, that the substitution of the unnamed but real for the named but nominal contracting party appearing on the document is in no sense a variation of any of the terms of the contract. But suppose that the plaintiff knows of no one but the person with whom he contracts and who signs the writing as principal; then I do not believe that any Court or any one of the Judges who have so frequently subscribed to and approved of something like the reasoning I have just outlined, would hear of such a person being allowed to prove that notwithstanding the plaintiff s ignorance he was really acting for some third party of whose existence the plaintiff had no knowledge. Still less could it then be said that if the plaintiff contracted with A, and A alone, being allowed to prove that he in turn was acting for X, and, therefore, X ought to be made liable to the plaintiff, was not a variation of the only contract which the plaintiff intended to enter into and of the existence of which he was aware, namely, the contract between himself and A.