AI Structured Summary
Not yet generated for this judgment
Judgment
P.K. Tare, J.
This is an appeal by the Defendant against the decree, dated 31-8-1962, passed by the Additional District Judge, Ambikapur, in Civil Appeal No. 6-B of 1962, modifying the decree, dated 2-12-1961, passed by the Civil Judge, Class I, Ambikapur, in Civil Suit No. 5-B of 1959.
The Respondent sued for recovery of money on a bond, dated 18-3-1955 (Ex. P-1) executed by the Appellant, in which the entire consideration of Rs. 2,001 was recited to be in cash.
The Appellant''s defence was that a part of the consideration of the old bond was an old debt of Rs. 1,300 which was time-barred. He had been coerced into executing the bond. Therefore, he denied his liability on the same.
Both the learned Judges of the Courts below negatived the Defendant''s contention as to undue influence or coercion. The trial Judge decreed the Plaintiff''s claim for the entire amount, although finding that the consideration of the bond consisted of Rs. 1,001 in kind towards the consideration of the old time-barred debt of Rs. 1,300. On an appeal by the Plaintiff, the learned appellate Judge modified the decree by upholding it in respect of the cash consideration and in setting aside the same in respect of the consideration in kind, The learned appellate Judge expressed the opinion that an acknowledgment of a time-barred debt would not constitute a valid consideration. So far as that proposition is concerned, it may be right. But in the instant case it was a promise to pay a time-barred debt which was valid by virtue of Section 25(3) of the Contract Act. However, it is not necessary to consider that aspect as the Respondent has not filed an appeal or cross-objection. Therefore, the dismissal of that part of his claim has become final, which cannot be challenged in this appeal.
The only question urged by the Learned Counsel for the Appellant is that it is not open to the Respondent to prove a different consideration from the one recited in the deed, and Section 92 of the Indian Evidence Act will be a bar to the admissibility of parole evidence. Therefore, according to the Learned Counsel, the Respondent is not entitled to succeed even in respect of the cash consideration paid at the time of execution of the bond.
In support of his contention, the Learned Counsel invited attention to two decisions of Single Benches of two different High Courts. One is the case of Ram Kumar v. Gajendra Chandra AIR 1957 Assam 68. In that case the Plaintiff had sold to the Defendant certain lands with houses for consideration of Rs. 7,000 under a registered deed. On the same day, an agreement was arrived at between the parties, according to which the Defendant was to construct a hospital on a portion of the land. If he failed to do it, he was liable to pay compensation of Rs. 2,000. The said agreement was unregistered. Therefore, the question arose u/s 92 of the Evidence Act whether the recital in the unregistered document could vary an important term of the registered sale-deed. The learned Chief Justice held that the agreement purported to show as if the consideration of the sale deed was Rs. 9,000; whereas in the registered deed, it was recited at Rs. 7,000. This variation of an important term of the registered document could not be permitted and Section 92 of the Evidence Act would be a bar to such variation. The learned Chief Justice referred to some cases of some of the High Courts and also observed that the case of Turner v. Forwood and Anr. (1951) 1 All E R 746. did support the argument of the Learned Counsel for the Appellant for the proposition that the consideration not forming a term of the deed can be proved differently than what is recited in the deed. The learned Chief Justice, on a consideration of the cases, came to the conclusion that the amount of consideration would constitute an important term of the document; and therefore, it could not be varied by evidence aliunde except under circumstances falling under proviso 1 to Section 92 of the Evidence Act or some other proviso.
To the same effect are the observations of another Single Bench of the Patna High Court in Motilal Singh and Others Vs. Mt. Fulia and Others, ., wherein the learned Judge, referring to the cases, observed that although the consideration may not be a term of the deed, the amount of consideration stated in the deed would be a term; and, therefore, Section 92 of the Evidence Act would exclude evidence trying to prove a different amount of consideration.
With due respect to the learned Judges, I an unable to appreciate the line of reasoning adopted by them, which I find contrary to what their Lordships of the Privy Council in some cases have laid down, which have been mainly relied on by Bose J. in Pandurang v. Vishwanath 1939 N L J 33 : AIR 1939 Nag. 20. and a host of other cases of different High Courts taking the same view. Although the learned Judges constituting the Single Benches of the Assam High Court and the Patna High Court recognised the fact that consideration would not be a term of the deed, but the extent of consideration, in their opinion, would constitute such a term. In fact, consideration is an ingredient of the preliminaries of a contract making it valid under the law. A contract without consideration would be void. Therefore, consideration in no case can be said to be a term of the document. The only question is whether the extent or the amount of consideration recited in the deed can be said to constitute a term of the deed.
In this connection, I might refer to the observations of their Lordships of the Privy Council in Shah Lal Chand v. Indrajit ILR 22 All. 7370 (PC) as follows:
The point which was chiefly pressed on their Lordships by the Learned Counsel for the Appellant was also raised in the High Court and considered by the learned Judges, viz. that no evidence should have been received of the agreement alleged by the Respondent because it varied or contradicted the written contract, and was therefore inadmissible u/s 92 of the Evidence Act. Their Lordships, agreeing with the High Court, regard it as settled law that, notwithstanding an admission in a sale deed that the consideration has been received, it is open to the vendor to prove that no consideration has been actually paid. If it was not so facilities would be afforded for the grossest frauds. The Evidence Act does not say that no statement of fact in a written instrument may be contradicted by oral evidence, but that the terms of the contract may not be varied, etc.
It is to be noted that their Lordships have used the phrase ''it is almost settled law''. Thus the matter does not admit of any doubt that a different consideration than the one recited in the deed can be proved by a party. If this were not permitted, then their Lordships have indicated that grossest kind of frauds might be perpetrated; and in their Lordships'' opinion, Section 92 is no bar to prove that.
I may further refer to the case of Pandurang Ganpatrao Tidke v. Vishivanath Pandurang 1939 N L J 33 : AIR 1939 Nag. 20., wherein Bose J. (as he then was) referred to a series of Privy Council cases with the following observations:
The underlying principle has been broadly stated by their Lordships of the Privy Council in Mukhun Lall v. Shree Kishan Singh (12 M I A 157 at p. 185. The rules of evidence, and the law of estoppel, forbid any addition to, or variation from deeds or written contracts. The law however furnishes exceptions to its own salutary protection; one of which is, when one party, for the advancement of justice, is permitted to remove the blind which hides the real transaction.... In such cases the maxim applies, that a man cannot both affirm and disaffirm the same transaction, show its true nature for his own relief, and insist on its apparent character to prejudice his adversary. This principle, so just and reasonable in itself, and often expressed in the terms, that you cannot both approbate and reprobate the same transaction, been applied by their Lordships in this Committee to the consideration of Indian appeals, as one applicable also in the Courts of that country, which are to administer justice according to equity and good conscience. The maxim is founded, not so much on any positive law, as on the broad and universally applicable principles of justice.
''The principle has also been stated in a narrower form, more appropriate to the present case, in this way, namely that it is open to a party to a transaction to show that the true and real consideration was, even if that means contradiction, other than that stated in the deed. Lata Himmat Sahai Singh v. Llewhellen ILR II Cal. 486at p. 490.; Indrajit v. Lalchand ILR 18 All. 168 at p. 171.; Chunui Bibi v. Basanti Bibi ILR 36 All. 537 at p. 539.; Hukumchand v. Hiralal ILR (1878) 3 Bom. 159 at p. 160.; and Ramswami Chettiar v. Lodd Govindass 49 MLJ 414 at p. 417. In Ramswami Chettiar v. Lodd Govindoss 49 MLJ 414 at p. 417. the rule was put in still another way:
What the first party tries to prove in such a case is failure of consideration and that brings it under Proviso (1); the second party can then clearly prove in rebuttal of the first party''s case that there was in truth no failure of consideration and for that purpose show what the real consideration was''.
But, it does not much matter how the rule is viewed. The proposition itself is in my opinion beyond doubt. It is significant that both Ameer Ali and Sarkar reproduce the rule in the words given by me without comment: See Ameer Ali''s evidence, Edition 9th, page 660 and Sarkar''s Evidence, Edition 7th. pp. 680 and 681. In Shah Lal Chand v. Indrajit ILR (1900) 22 All. 370 at pp. 375 and 376. the Judicial Committee allowed a collateral agreement under which the purchase price of a sale was to remain in the vendee''s hands to be proved notwithstanding the fact that the sale deed recited that the consideration of Rs. 30,000 /- had been fully paid. The decision affords yet another illustration of the general rule.
In this connection, I may refer to the general rule as was enunciated by the English Court of Appeal in Turner v. Forwood and Anr. (1951) 1 All E R 746., wherein Lord Goddard C.J., made the following observation:
That is a perfectly clear statement by the Judicial Committee approving the Vice-Chancellor that it is not a contradiction of an instrument to prove a larger consideration than that which is stated in it. For myself, I can see no difference between saying, where the consideration is stated to be 10s., that it was in fact & 215-as was done in this case-and saying as was done in Clifford v. Turrell 62 E R 826.-that, while the consideration stated in the deed was 10 s., the true consideration was a payment of �40 a year for life and a house worth �10 a year. It seems to me, therefore, that on the authorities the evidence was admissible.
It is to be noted that the said English case as also the Privy Council case referred to above, does not recognise any limitation, or does not draw a distinction between the kind of consideration and the extent of consideration. I am really unable to appreciate the not-existent line of demarcation sought to be drawn by the learned Judges constituting the Single Benches of the Assam and the Patna High Courts. If it can be proved that the consideration is different, why can it not be proved that the consideration was larger as in the English case, or the consideration was much less. In my opinion, if it is open to a party to prove a different consideration, no limitation can be placed that he can prove a different kind of consideration, but cannot challenge the amount or the extent of consideration stated in the deed. That is a distinction without any basis.
Therefore, it is clear that the view expressed in the two Single Bench Cases of the Assam and the Patna High Courts is contrary to the settled law, as laid down by their Lordships of the Privy Council. Therefore, I prefer to understand the Privy Council case in the light that Bose J. understood it in Pandurang v. Vishwanath 1939 NLJ 33 : AIR 1939 Nag. 20.
If a party can prove a different consideration, the other party cannot say that the former is not entitled to a decree even in respect of the proved consideration. Therefore, I reject the contention of the Learned Counsel for the Appellant and affirm the decree of the first appellate Court. The Respondent shall be entitled to his costs of this Court. Counsel''s fee in this Court according to schedule or certificate, whichever be less. The costs of the Courts below shall be borne as directed by the first appellate Court.