V.R. Newaskar, J.
1. This appeal is directed against an order of remand passed by the lower appellate Court in exercise of its powers under Order 41 Rule 23 Civil Procedure Code.
2. The circumstances leading to the present appeal are as follows:-
Plaintiff filed a suit for possession of a house on the strength of a sale-deed dated 13-1-1954 executed by the defendant in his favour. The defence to the plaintiff's suit was that the sale-deed had not been executed as to operate as a sale-deed. It was executed as a sequel to another transaction of agreement to sale which the defendant entered into with the plaintiff regarding the sale of his land in Mouja Pipalgaon Pargana Kasrawad in plaintiff's favour for a consideration of Rs. 850/-. The plaintiff had paid Rs. 500/- towards this agreement of sale and the defendant executed the sale-deed in question for this amount of Rs. 500/- in respect of the other transaction so that he may not back out from it. The transaction of sale of house was not intended by both the parties to operate as such. The sale-deed of the house was executed to ensure to the plaintiff that the defendant would complete the transaction of sale with regard to the land.
3. On the basis of this plea of the defendant an issue was raised to the following effect:-
Whether it is competent for the defendant to take the plea detailed out by him in para 3 of his written statement If so, what is its effect upon the suit?
4. It may be stated that Para 3 of the written statement contained the plea described above.
5. This issue was treated as a preliminary issue and the trial Court, after hearing arguments, came to the conclusion that in view of the provisions of Sections 91 and 92 of the Evidence Act the plea sought to be raised by the defendant on the only issue between the parties is incompetent. As a result of this finding the trial Court decreed the plaintiff's suit.
6. The defendant preferred appeal against this decision and the appellate Court reversed the decision. It held, relying upon the decisions reported in 1957 MP LJ 399 Keralal v. Amarnath, AIR 1938 PC 198, Rowland v. Administrator General of Burma and AIR 1932 Cal 25 Nabio Chandra v. Shuna Mala Ghose, that it is not incompetent for the defendant to establish the plea incorporated in the aforesaid issue. According to the lower appellate Court neither Section 91 nor Section 92 of the Evidence Act was a bar to the raising of such a plea. He therefore set aside the decree passed by the Court below and remanded the case in exercise of his powers under Order 41 Rule 23 Civil Procedure Code for recording evidence upon the issue found against the defendant.
7. The present appeal is directed against that order.
8. It is contended by Mr. Warune, who appeared under authority of Mr. Pande, that the Court below was not justified in permitting the defendant to prove his contention in Para 3 of his written statement. According to him such a plea would run counter to the provision of Section 92 of the Evidence Act and is not saved by any of the provisos. The learned counsel relied upon the decision of the Supreme Court reported in AIR 1954 SC 345, Chunchun Jha v. Ebadatali and in 139 Ind Cas 891 : (AIR 1932 PC 255) Tsang Chuen v. Li Po Kwai, in support of his contention.
9. On the other hand Mr. Sanghi for the respondent pointed out that the defence in the present case can well be established in view of the Proviso (3) to Section 92 of the Evidence Act. He besides the decisions referred to by the Court below, sought to rely upon the decision reported in AIR 1936 PC 70, Tyagaraja v. Vedathanni. He also contended that Proviso (i) to Section 92 of the Evidence Act may also enable the defendant to establish his pleas.
10. In order to appreciate the contentions of the learned counsel in this case it will be necessary to refer to the material provisions of Sections 91 and 92 of the Evidence Act.
11. Section 91 of the Evidence Act provides that when the terms of a contract, grant or of any disposition of the property have been reduced to a form of a document no evidence shall be given in proof of the terms of such contract, grant or disposition of the property except the document itself or secondary evidence of its contents where such evidence is admissible tinder the provisions of the Evidence Act.
12. Section 92 of the Evidence Act provides that when the terms of any such contract, grant or disposition of property have been proved by the production of the document itself or by the secondary evidence of its contend where it is possible no evidence of any oral agreement or statement shall be admitted as between the parties tosuch instrument or their representatives in interest for the purpose of contradicting, varying, adding so, or subtracting from, its terms.
13. Then come the provisions which are material for our purpose. They are as under:-
'Proviso (1):-
Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration or mistake in fact or law.
Proviso (3) :-
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.'
14. Proviso (1) permits the prpof of want of failure of consideration while proviso (3) enables a party to prove any separate oral agreement which constitutes a condition precedent to the attachingof any obligation under the contract or dispositionof property in question.
15. In the present case, having regard to the nature of the defence, the defendant wants to prove that the amount of Rs. 500/-, which had been received by him, was not a consideration for the sale-deed in suit but it formed consideration of another agreement of sale made by the defendant in plaintiff's favour. Secondly the defendant wants to establish that the sale-deed was not to operate as a sale-deed of the house in question but had come into existence for a different purpose, This was, according to the defendant, common idea of both the parties. The question is, whether Provisos (1) and (3) to Section 92 of the Evidence Act will permit him to make out this defence or apart from these provisos whether he could make out the defence since there is nothing either in Section 91 or 92 of the Evidence Act which would come in his way to do that. For this purpose it would be necessary to refer to some of the decisions relied upon by either side.
16. In AIR 1938 PC 198 their Lordships observed at page 202 :-
'It is 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, or, to put it in another form, it is necessary to distinguish an agreement in defeasance of the contract from an' agreement suspending the coming into force of the contract ...
17. Mr. Sanghi contended that in the present case the transaction of sale was not operative at once and could remain suspended until the agreement of sale has not fallen through. There is no attempt on the part of the defendant to contend that the document has a different legal effect than what the terms themselves signify. It is not assailed on that ground. What is contended is that the parties had agreed that the sale should not be operative as sale. It was executed to put a fetter upon the defendant in case he, after receiving Rs. 500/- as earnest money for the bargain as to land, later tried to resile from it.
18. As I see the written statement the defenceis that the transaction of sale would stand suspended until the refusal takes place as regards theagreement of sale of land. What is asserted isthat the sale-deed was sham and was notintended to be operative as a sale-deedin view of the circumstances mentioned inpara 3 of the written statement. Theplea is not that it is to become operative onthe happening of a certain condition precedent butit is not to operate at all as a sale-deed. Strictlyspeaking therefore the plea does not exactly fallunder Proviso (3) of Section 92 of the EvidenceAct. However in view of Proviso (1) to Section92 it would be permissible for the defendant toprove that Rs. 500/- which are mentioned to havebeen paid towards this sale transaction were notpaid for it but were for a collateral transaction ofagreement to sale of land. Moreover the plea canbe read as invalidating the transaction as a sale-deed.
19. The next case to be referred is AIR 1936 PC 70. In that case their Lordships observed :-
'In their Lordships' opinion oral evidence in disproof of the agreement (1), that as in (1856) 6 E. and B. 370 Pym v. Campbell, the signed document was not to operate as an agreement until a specified condition was fulfilled, or (2) that as in the present case, the document was never intended to operate as an agreement but was brought into existence solely for the purpose of creating evidence of some other matter stands exactly on the same footing as evidence that the defendant's signature was forged.'
Their Lordships further observed :-
'In ILR 38 Mad 226 : (AIR 1915 Mad 855), Mottayappan v. Palani Goundan, Banseon and Sundara Ayyar, JJ., have expressed the opinion that oral evidence to show that a document was never intended to operate according to its terms, but was brought into existence, as in the present case, solely for the purpose of creating evidence about some other matter is admissible under proviso (1) to Section 92, 'any fact may be proved which would invalidate any document.' This may well be so, but in their Lordships' opinion, even if there were no provisos to either section, the result in the present case would be the same, because there is nothing in either section to exclude oral evidence that there was no agreement between the parties and therefore no contract. It was also contended that the case came with Section 92, because of the provision recognising the widow's title to the jewels in her possession. The High Court have found that this provision was not intended to operate as an agreement, but was introduced to give verisimilitude to the document, it being usual to make such a provision in agreements for a widow's maintenance. Further it was held by this board in the passage already cited from the judgment in 16 Ind App. 233 (PC), Pertab Chunder Ghose v. Mohendra Nath Purkait, that if the defendants were told that any stipulation in the agreement would not be enforced, they could not be held to have assented to it. Consequently the document was not the real agreement between the parties, and the plaintiff could not sue upon it.'
20. In AIR 1939 Pat 495 Umraosingh v. Raunak Singh, Patna High Court had to consider the question as to the applicability of Section 92 of the Evidence Act under the following circumstances. Plaintiff filed a suit on a promissory note. The defence was that the defendant had executed the hand-note as an agent on behalf of Mst. Ramsawari Kuer from whom the plaintiff had agreed to buy certain properties and that the amount mentioned in the note had been given to her as an earnest money for this purchase; that later the plaintiff committed default and Mst. Ramsawari Kuer therefore forfeited the earnest money and the hand-note had been executed by him only as nominal document in proof of the payment made by the plaintiff. The admissibility of oral evidence to establish defence was sought to be led but was refused by the trial Judge. The High Court on revision - held the defence provable in the manner proposed. Dhavlc, J. who decided the case relied upon the decision in AIR 1924 Bom 44 Ahmad Saheb Bapu Saheb v. Ubhaiya Harsi and AIR 1936, PC 70, in support of the view taken by him.
21. Having regard to these decisions, it appears that it is permissible to establish by oral evidence that a written agreement was not intended to operate as an agreement but was brought into existence solely for the purpose of creating evidence of some other matter. In the present case the-respondent seeks to establish that the sale-deed was agreed not to be operative but was to be under the control of the plaintiff until the transaction of agreement of sale of land is completed or falls through. Such defence, to my mind, does not run counter either to Section 91 or to Section 92 of the Evidence Act.
22. The decision in AIR 1954 SC 345, upon which the learned counsel for the appellant relies, has no application. There it was held that where there is prima facie an absolute conveyance containing nothing to show that a relationship of a debtor and a creditor is to exist between the parties the said document does not cease to be an absolute conveyance and become a mortgage merely because the vendor stipulates that he shall have a right to repurchase. What was sought to be done in that case was to try to give a different legal effect to a document than what its terms purported to signify. Their Lordships in that case emphasised that the real question in the matter of construction of a document is not what the parties intended or meant but what is the legal effect of the words which they used. That controversy would arise where a party wishes to say that although the document expressed the transaction to be in one form he meant it to have it differently. In the present case the defendant does not say that it is not a sale-deed. He accepts that it is a sale-deed but says that it was commonly agreed that it was not to be operative as a sale-deed but should remain with the plaintiff for a different purpose namely for securing completion of another bargain. The plea is dehors the term of the agreement.
23. I, therefore, do not see any reason todiffer from the conclusions reached by the Courtbelow and would dismiss the appeal with costs.