MAHAMMAD SULTAN MOHIDEEN AHMED ANSERI Vs. AMTHUL JALAL

JUDGEMENT

(1.) THE father of plaintiff and defendant purchased some property under Ex. 1 on 15th October 1897. It appears from the original sale-deed that in the preamable the names of both the plaintiff and defendant were entered and in the body of the document it was recited that Schedule A properties were to go to the plaintiff and Schedule B properties were to go to the defendant but when it was taken for registration the Sub-registrar seems to have objected to the recitals that the Schs. A and B should be separately enjoyed by the two vendees and thereupon clauses relating to the separate enjoyment of the two schedules were scored out. THE father, in pursuance of his intention that the plaintiff should enjoy one schedule and the defendant the other, seems to have asked the municipal authorities to register the two schedules in the separate names of the plaintiff and defendant. THE present contention of the appellant is, that, inasmuch as the sale deed was taken in the joint names of both the plaintiff and defendant, each of them is entitled to a moiety of the whole property, and no evidence could be adduced to show what the father intended that each should take. THE argument of Mr. Lakshmanna is that Section 92, Indian Evidence Act is a bar to any evidence being. let in to show what the father intended.. THE document is silent as to the share of the plaintiff and the defendant. Reading the document as a whole as it stands it. simply means that property was purchased by the father in the names of the plaintiff and the defendant who were minors at that time. THE mere fact that the document stands in the name of two persons does not prevent either of them from showing to what share each of them is entitled to. If both of them were majors I don t think it could be contended with any show of reason that the vendees could not adduce evidence as to the share that each intended or is entitled to take. That would depend upon the arrangement among the vendees. In this case both the vendees being minors, the father's intention as to in what way the property should be enjoyed could certainly be proved. His intention before the document was executed and his conduct in carrying out his intention after the execution of the document could be proved. What Section 92 prohibits is the proof of any contemporaneous oral agreement between the parties in variance of the terms of the document. Section 92 runs as follows: When the terms of any such contract or grant or other disposition of property or any matter required by law to be reduced to the form of a document have been proved according to the last section, no evidence of any oral agreement or settlement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying or adding to or subtracting from its terms;

(2.) NOW the arrangement that is proved is not against the terms of the document which evidences a completed contract of sale. As it does not in so many words refer to the share or the portion that the plaintiff and defendant should take I fail to see how Section 92 could be a bar to the proof of facts which would establish the right of the plaintiff and the defendant to the separate items of property conveyed to them. This point has been specifically dealt with in Mulchand V/s. Madho Ram [1882] 10 All. 421 and I do not see any reason to differ from the conclusion arrived at by the learned Judges in that case. The extension of the principle of Section 92 as contended for by Mr. Lakshmanna would lead to this result. If two persons buy some property in their joint names without defining their share in it then they would not be able to prove afterwards what share each is entitled to. That is not the object of Section 92. That being so, I dismiss the second appeal with costs.