MOHAMMAD TAKI KHAN Vs. JANG SINGH

JUDGEMENT

(1.) Three questions have been referred to this Full Bench far answer by the Division Bench before which the plaintiff's appeal arising out of a suit for sale on the basis of a mortgage-deed came up for hearing. On 17 August 1926, a sale deed, was executed by the plaintiff and his uncle along with their wives in favour of the two vendees including the present defendant. The sale deed purported to be for Rs. 11,400, out of which a part was paid in cash and another part was set off against a previous debt and the balance of Rs. 5,000 was stated to have remained in the hands of the vendees who were liable to pay the amount to the vendors. On the same date a mortgage deed was executed by one of the vendees in favour of the plaintiff and his uncle for this sum of Rs. 5,000, under which the mortgagor agreed to pay this amount to the two vendors and hypothecated his immovable property as security for the amount. There was, of course, an admission that this sum was due under the contemporaneous sale deed and would be paid later. The present plaintiff admits to have received some payments and brought the suit to recover Rs. 3,300, the balance out of Rs. 5,000 which according to him had remained unpaid. The defendant set up the defence that the principal consideration of the sale deed was not Rs. 11,400 but only Rs. 8,400 and that the extra sum of Rs. 3.000 had been entered therein fictitiously in order to defeat and delay possible preemptors. A question arose whether it was open to the defendant to adduce evidence to show that a part of the sale consideration was really fictitious. Such evidence was allowed by the Courts below and they have come to the concurrent finding that this amount was in fact fictitious. The first question referred to the Full Bench is: Whether evidence tending to show that the consideration for the said sale was a lesser sum than that stated in the sale-deed of the 17 August, 1926 was admissible.

(2.) The answer to this question depends on an interpretation of Secs.91 and 92, Evidence Act. Under the latter section when the terms of any contract have: been proved, no evidence of any oral agreement is to be admitted as between the parties to any such instrument or their representatives, "for the purpose of contradicting, varying, adding to, or substracting from, those; terms." Under proviso 1, however any fact which would invalidated any such document can be proved and by way of illustration it is mentioned that, want or failure of consideration can,; be proved. Obviously such want or failure of consideration as can be proved must be one which would invalidate the document.

(3.) There are several cases in support: of the plain tiff-appellant's case, which, may be first mentioned briefly. In the case of Adityam Iyer V/s. Rama Krishna Iyer 1915 Mad 868, it was laid, down that the amount of the price-agreed to be paid is an essential term, of a contract of sale and that no evidence of an oral agreement at variance with the provisions of the deed is admissible. Accordingly the vendor in that case was not allowed to show that, the true sale consideration instead of the ostensible amount of Rs. 35,00O was really Rs. 36,000, the extra sum. of Rs. 1,000 having been agreed to be written off after delivery of possession. See also the cases of Annada Charan V/s. Hargobinda 1923 Cat 570 and Krishanyya v. Mohammad Galeb Sahib 1930 Mad 659.