(DASARI) LAKSHMIAYYA Vs. (KOPPOLU) MURAHDRI

JUDGEMENT

(1.) The plaintiff sued to set aside a sale deed which he executed to defendant 1, a dancing girl, upon the allegation that it was intended not to confer an absolute title upon her but merely to afford security for her maintenance as long as she lived with him. The sale deed recites a consideration of Rs. 1,500 and it was defendant 1's case that this money actually passed. Defendant 2 is a purchaser of the suit property from defendant 1. Defendant 1 further denied that the plaintiff had been keeping her. The District Munsiff found that relations of this character had subsisted between them, that defendant 1's allegation with reference to the consideration of Rs. 1,500 was untrue and that the plaintiff was precluded by the terms of Section 92, Evidence Act, from establishing his plea that the transaction was other than the sale deed makes it out. He then found upon the evidence that there was a valid transfer and that the consideration for it was past cohabitation of defendant 1 with the plaintiff. He accordingly dismissed the suit. The plaintiff appealed to the District Court, Guntur, and the learned vakil who appeared for him conceded it to be true that the plaintiff had been keeping defendant 1, who did not dispute that her version with regard to the consideration was untrue, and further agreed that the view of the District Munsiff that Section 92, Evidence Act prevented the plaintiff from establishing his case was correct. Both the lower Courts, I may add, have found that the sale deed could not have been executed merely nominally in order to screen the properties from creditors (a plea not actually raised in the plaint) but that it was intended to be acted upon. The only argument that remained for the learned District Judge to consider, therefore, was whether on the finding that the consideration consisted in previous cohabitation the plaintiff was entitled to a decree because this was an immoral purpose.

(2.) The grounds raised here in second appeal are firstly that the pleader who appeared for the plaintiff was wrong in giving up the argument with regard to Section 92 and secondly that the finding as regards previous cohabitation upon which the lower Courts acted runs counter to the pleadings.

(3.) Upon the first of these points a number of cases have been cited to me to establish the principle that an erroneous admission upon a point of law made by a legal adviser does not bind his client, and stated in the abstract, there is no doubt ample authority, as, for instance, Krishnasami Ayyangar V/s. Rajagopala Ayyangar [1395] 18 Mad. 73, Rama Iyengar v. Kasanivendi Iyengar , Beni Pershad Koeri V/s. Dudhnath Roy [1900] 27 Cal. 156, and Secy. of State V/s. Silaprasad Jana [1918] 27 C.L.J. 447. Whether this doctrine extends to such circumstances as the present, where to re-open the topic which was closed might entail the remanding of the case to the lower Court for a further finding on facts I am not very clear. The inconvenience of allowing such an indulgence is manifest. I decided, however, to hear what the appellant had to say upon the application of Section 92, Evidence Act, and in view of what I propose to hold the other question may remain open. The sale deed Ex. 1 professes to sell to defendant 1 wet land for Rs. 1,500 the amount having been received and delivery having been given. It declares her free to keep the same in her possession thence forward and the plaintiff promises that neither he nor his heirs shall raise any dispute in respect of it. It is clearly an absolute conveyance. It is equally clear that the document of the nature referred to in the plaint would be of a totally different character. It can scarcely be doubted, therefore, that proof of any oral agreement to show that the sale deed is in fact a document of that character would be excluded by the terms of Section 92. It is sought to bring the case under proviso 6, which says that any fact may be proved which shows in what manner the language of a document is related to existing facts.