Mahalakshmi Amma vs Krishna Holla

Abdur Rahman, J.—The only point that has been urged in this appeal is that the defendant was debarred from raising the plea u/s 92 of the

Indian Evidence Act. The document Ex. A which is the basis of the suit, only states that as the defendant''s wife was sickly and that the plaintiff had

been serving him and looking after his children and had no other means of livelihood, the defendant would continue to give certain quantity of

paddy to the plaintiff during her lifetime. It was also mentioned in the document that the defendant was a relation of the plaintiff''s.

It was contended before me that the defendant should not have been permitted to adduce any evidence against the contents of this document. I

might say at the outset that there is a great deal of difference between the terms of a contract and the recitals of facts which are mentioned in a

document. Section 92 of the Indian Evidence Act debars a person, who is a party to a contract from adducing any evidence which may

contradict, vary, add to or subtract from its terms"", but there is no justification for holding that the recitals of facts mentioned in the document

cannot be contradicted by evidence.

Taking the particular document in question I find for instance a statement of a fact that the plaintiff was a relation of the defendant. The plaintiff

herself in the witness-box denied it. Can it be urged with any justification that the defendant would not be able to traverse this recital contained in

Ex. A?. There can only be one answer to the question.

A great deal of stress was laid then by the counsel for the appellant on the contention that the plea raised and evidence led on behalf of the

defendant to the effect that the defendant was only to receive paddy during her lifetime only if she served his wife and children could not be raised

or substantiated by evidence as this was not covered by either proviso (J) or any other proviso to Section 92 of the Evidence Act. I do not agree

with the contention. The defendant''s plea amounted really, in my opinion, to a plea of a failure of consideration. The defendant''s case was that the

plaintiff was entitled to recover the paddy for as long as services were rendered by her. He was therefore willing to pay for the period for which

the plaintiff served his wife and children after the document was executed by him.

It may be stated at once that the document on the basis of which the suit was filed does not mention any consideration at all. But even if it did,

evidence of the absence or failure of consideration could always be adduced under proviso (1) to Section 92 of the Evidence Act. The plaintiff''s

assertion that future, services might have been a motive but did not form a consideration for the document is also untenable.

I would therefore repel the contention raised on behalf of the appellant that the evidence led on his behalf could not be adduced.

The result is that the appeal fails and is dismissed with costs.