SAHDEO SHRAWAN Vs. NAMDEO ATMARAM MANKAR

JUDGEMENT

(1.) THIS is a second appeal by an unsuccessful plaintiff whose first appeal has failed. The defendant executed an isar chithi in the plaintiff's favour acknowledging receipt of Rs. 75 and promising to sell his field for Rs. 250 and that he would get a registered sale-deed executed within 8 days, when the balance of Rs. 175 was to be paid. No registered sale-deed was executed, and the plaintiff brought a suit for specific performance. The defendant pleaded that there was a condition that the plaintiff should execute a deed of reconveyance and that as the plaintiff avoided doing so the sale-deed was not executed by the defendant. Oral evidence as to this agreement was led and it has been accepted in both the Courts below, and in the lower appellate Court it was held that evidence as to this oral agreement, which was not implemented by the plaintiff, was admissible under proviso (3) of Section 92, Evidence Act, which provides that the existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.

(2.) THE plaintiff has preferred this second appeal and in the first place contends that the transaction proposed was to be a mortgage by conditional sale, but as the condition of reconveyance was not in the document produced, which could not be deemed by the proviso to Section 58(c), T.P. Act, to be a mortgage, it was an out and out sale. This argument, however, is of no avail as the stage of executing the deed transferring the property had not been reached. Next it is contended that none of the provisos to Section 92 can apply and that no evidence can be afforded which varies the terms of the agreement to sell which was reduced to writing. The cases however which have been cited in support of this contention all deal with registered deeds transferring title, and the authorities cited on behalf of the respondent affirm the correctness of the view taken in the lower appellate Court that what the defendant sought to establish was a condition precedent to the implementing of the agreement to sell. In Tyagaraja Mudaliyar v. Vedathanni A.I.R. (23) 1936 P.C. 70 their Lordships of the Privy Council referred to the decision in Pym v. Campbell (1856) 119 E.R. 903 and pointed out that statutory effect had been given to this decision by proviso (3) to Section 92, Evidence Act. In Pertap Chunder Ghose v. Mohendranath Purkait 16 I.A. 238 (P.C.), their Lordships stated that it was admissible to prove that there had been in fact no intention to act on an agreement, and again in Rowland Ady v. Administrator General of Burma A.I.R. (25) 1938 P.C. 198 that it was necessary to distinguish a collateral agreement which alters the legal effect of the instrument from an agreement that the instrument should not be an effective instrument until some condition is fulfilled. The fact that there was such an oral agreement has been established, and it his clear that the defendant had no intention of executing a sale deed until the plaintiff had performed his part of executing a deed of reconveyance. That is clearly a condition precedent which the defendant was entitled to prove and which the Courts below have held that he has proved. There is here no agreement to defeat a deed of sale or to vary the terms thereof but an agreement which would suspend the implementing of the terms contained in the Isar Chitti. As that agreement was broken by the plaintiff it necessarily follows that he is not entitled to the specific performance of the agreement to have a sale deed executed.

(3.) THE result is that the appeal fails and is dismissed with costs.