Deonandan Tewary and Another vs Draupadi Kuer and Another

Wort, J.—This is an appeal from the decision of the District Judge of Gaya arising out of an action in which the plaintiff claimed a declaration with regard to a sale deed on 20th June 1928 the consideration for which was Rs. 3510 divided up into several items the particulars of which are immaterial for the purpose of the decision of this case, excepting to say that the plaintiffs admitted by their plaint that part of the consideration had not been paid over to the defendants, the vendors. It appears that on the same date another share but with regard to another tauzi number was sold to a person who is now found to be a member of the same joint family as that of the plaintiffs, and in this action it was the defence of the respondents that the two transactions were one, although expressed in the two deeds as separate transactions: but perhaps to he more accurate, it should be stated that they appeared on the face of it to be two separate transactions, although the defendants said they were one.

The learned Judge in the Court below in affirming the decision of the trial Court, has gone into several matters with regard! to this question: first of all whether Jainandan Tewari was joint with the plaintiffs who were members of a joint family, and such other questions as whether the two tauzi Nos. i.e. 522 and 524, the subject-matter of the respective deeds, were cultivated jointly or separately, and matters which would lead to a conclusion one way or the other whether, as I have already said and repeat, these persons were members of a joint family.

On a consideration of these facts the Judge has come to the conclusion that the transactions were one and not two as they appeared to be. I find myself in considerable difficulty in understanding what the learned Judge means. I can well understand that an agreement, might be proved (I am not for the moment considering the question of admissibility im evidence of such an agreement) that it was agreed that this property should be sold in circumstances which would lead one to say that it was one transaction.

But whatever the original agreement may have been it is patently clear that the two deeds formed two separate transactions, and to say that they were one has no meaning in law unless it be said and proved that although separate transactions there was another agreement which was not evidenced by any writing and that they should be treated as one. I do not understand the Judge to come to the conclusion that that was the case, but I understand him to come to the conclusion that the transaction was originally intended to be one whatever may have resulted from the execution of these two separate documents. But even supposing that the case which I suggest was the case that was made and established, the question arises whether the defendants were entitled to prove such an agreement by reason of Section 92, Evidence Act. Section 92 provides that no

agreement or statement shall be admitted, as between the parties...for the purpose of contradicting, varying, adding to or subtracting from its terms,

that is to say, of an agreement which has been reduced to writing as contemplated by Section 91, Evidence Act.

On the face of it these two deeds were two separate transactions by which two separate shares of a certain property were conveyed to members of one family according to the finding, and the highest that the case can be stated in favour of the respondents is that the transactions must be treated as two transactions by the same vendors to the same purchasers. If that be the case, there is nothing to prevent the plaintiffs from bringing an action on one of these transactions, and the defendants by their defence cannot say ''you may have a right as regards one, but you also have got a right as regards the other and unless you enforce your right as regards both you are not entitled to any right as regards either''. That is in my judgment, having regard to the law of evidence, an impossible defence to set up. The enquiry which has been gone into by the Judges in the Courts below as to the consideration seems to be quite clearly an enquiry contrary to Section 92, Evidence Act.

It is not one of those cases in which it is stated that although a deed purports to show that a consideration has been paid, in fact, has not been received, yet it is not an agreement which if proved would vary the written document in law.

In my judgment therefore the finding of the learned Judge in the Court below to the effect that this is one and the same transaction cannot stand.

In those circumstances, in my opinion, the plaintiffs were entitled to the declaration which they sought in their suit. The judgments of the learned Judges of the Courts below will therefore be set aside and the plaintiffs will be entitled to a decree in the form of relief claimed in the plaint with costs throughout.

Varma, J.

I agree.