Ullasmoni Dasi and Others vs Sukhomani Dasi

Fazl Ali, C.J.—This is a Letters Patent appeal from the decision of a single Judge of this Court in a suit instituted by the plaintiff-respondent to recover possession of 12 bighas 7 kathas and 3 dhurs of land situated in mauza Nischchintpur. This land was originally recorded in prajali right in the name of defendant l Ullasmoni Dasi, widow of one Bhagat Patar, the former Pradhan of the village. On 7th April 1986, defendant 1 executed a registered deed of surrender in favour of Bhagat''s younger brother Raghu Patar who is the present Pradhan of the village. On 28th April 1936, defendant 1 cancelled the deed of surrender by another registered deed in which it was stated among other things that the Pradhan had got the previous deed executed in his favour after holding out various temptations and that he had not paid her any amount on account of the said deed. On 26th Agust 1937, Raghu Patar executed a patta in respect of these lands in favour of the plaintiff (who is his daughter). The plaintiff thereupon instituted the present suit against defendant 1 and defendants 2 and 3. Defendants 2 and 8 who are the landlords of the village were impleaded on the allegation that defendant 1 had given 7 bighas of the lands to them (defendants 2 and 3) in khaikhalasi (a form of usufructuary mortgage) in the year 1932 for a period of seven years and out of deference to them Raguu Patar did not take possession of this land but on the expiry of the period of the khaikhalasi patta she went to take possession but was resisted by defendants 2 and 8.

The suit was contested by all the three defendants. The defence of defendant 1 was that what was really settled between her and Raghu Pradhan was that she would surrender the land for a consideration of Rs. 300 to be paid to her in cash and there was a further understanding between her and Raghu Pradhan that half the land would be settled with her grandson, but as the Pradhan refused to perform his part of the contract, she cancelled the deed of surrender which had in fact never been acted upon and had not passed any title. Defendants 2 and 3 supported the statement of defendant 1 and further stated that the entire 12 bighas had been mortgaged to them and the mortgage had been renewed and the plaintiff had never come into possession of any part of the lands nor had she derived any title under the deed of surrender or the alleged settlement from her father. The Munsif held on the evidence that neither the Pradhan nor the plaintiff had ever obtained possession of any portion of the land but he also held that the deed of surrender having been duly executed operated to pass the title and the Pradhan was entitled to enter upon the lands ignoring all incumbrances created by the tenant. The plaintiff was accordingly given a decree for possession.

The learned Subordinate Judge upheld the finding of the Munsif that possession had never been obtained by the Pradhan or the plaintiff but dismissed the suit on the ground that the surrender deed had been obtained by fraud and mis-representation. He held that at the time of the surrender it had been represented to defendant l that she would be paid Rs. 300 and half the lands would be settled in favour of her grandson. After the suit was dismissed by the Subordinate Judge the plaintiff preferred a second appeal. The learned Judge of this Court who heard the appeal reversed the decision of the Subordinate Judge and restored the judgment of the Munsif. Hence this Letters Patent appeal by the defendant. The reasons given by the learned Judge of this Court for reversing the decision of the Subordinate Judge are fully summarised in the following passage:

In the first plaoe, the surrender transaction was embodied in a registered document. It was not open to the learned Subordinate Judge to go outside that document and accept oral evidence as to the terms of the transaction. Moreover, he ignored the fact that the so-called deed of cancellation itself made no reference to any promise to pay Rs. 300 or re-settle half the lands. There was merely a vague allegation that consideration had not been received, which as the Munsif observed, had to be put in as a ground for executing the deed of cancellation. Nor indeed was any definite case of fraud made out. It was no one''s case that Ullashmoni did not fully understand the terms of the document which she was executing, and fully intend when she eneouted it that this surrender should be effective. Her case was that she had oancelled the surrender not because she had not voluntarily executed it, but because acoording to her there were oral terms in the contract not embodied in the deed, which the Pradhan failed to carry out. That was a case whioh the defendants were not entitled to set up when the contract had been reduced to writing.

It seems that the learned Judge was greatly influenced by the fact that the deed of surrender makes no reference to the alleged promise to pay Rs. 800 and re-settled half the land. That is no doubt an important circumstance and might well have weighed with a Court which was competent to deal with the facts of the case in discrediting the case of defendant 1 with regard to the alleged promise. The question, however, still remains whether in second appeal it could be made the basis for the legal proposition that it was not open to the Subordinate Judge to accept the oral evidence adduced by the defendant in support of her case. The learned single Judge had probably in view the provisions of Section 92, Evidence Act, which runs thus:

When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of oontradicting, varying, adding to or subtracting from, its terms.

This statement, however, must be read along with the first three provisos to the section which are as follows:

Proviso 1.-Any fact may be proved which would invalidate any doeument; or whioh would entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality, want of due execution, want of capaoity in any contracting party, want or failure of consideration, or mistake in fact or law.

Proviso 2, The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.

Proviso 3. - The existenoe 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.

With reference to proviso l reference may be made to Kashi Nath v. Brindabun (84) 10 .Cal. 649. In this case the plaintiff sued to recover rent under a kabuliat. The defendant admitted execution of the kabuliat, but asserted that he executed it in order to enable the plaintiff to sell the land at a high price the plaintiff agreeing to make over to him Rs. 282 out of the purchase money and to obtain for him from the purchaser a mourasi patta of the land, it never having been intended that any rent should be payable under the kabuliat. Upon these facts, it was held by the Calcutta High Court that evidence of the oral agreement was admissible for the purpose of proving the fraudulent character of the transaction between the parties. In that case the defendant was allowed to offer evidence contrary to the purport of the document even though he was a party to the fraud. It is difficult to hold that in the present case it was not for the appellant to offer evidence of fraud even though she was herself a victim of the fraud. A party whose case is that a certain document has been obtained fraudulently is compelled in most cases to go outside'''' the document to prove the alleged fraud. In this suit defendant 1 put forward'' a very definite case of fraud in her written statement and the learned Subordinate Judge found that the case had been fully established. He pointed out that defendant 1 "is an old illiterate village woman," that there was no obvious motive for the surrender as she was living with her daughter and had a grandson and there was no dim-culty in cultivating the lands and that the Pradhan was her husband''s younger brother and she had therefore good reason to trust him. He further pointed out that these circumstances lent support to her version as to how she had been induced to execute the document. It is impossible to say that even though the whole case of defendant 1 was accepted, the document was still binding on her.

The learned Judge has expressed the opinion that in substance the case of defendant 1 was that there were oral terms in the contract which were not embodied in the deed and he has observed that the defendants were not entitled to set up such a case when the contract had been reduced to writing. But even apart from the question of fraud which I have already dealt with, Proviso 3 to Section 92 seems in my opinion to be a sufficient answer to this line of reasoning, I would, therefore, allow this appeal with costs, set aside the judgment of the learned Judge of this Court and restore the judgment of the learned Subordinate Judge.

Agarwala, J.

I agree.