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1 - 10 of 13 (0.25 seconds)Adityam Iyer vs Ramakrishna Aiyar And Ors. on 19 September, 1913
6. The learned vakil for the plaintiff submitted that the amount of consideration in a deed of assignment is perhaps the most important of the terms of a contract of assignment and in the clause above set out it is clearly stated in writing that the consideration agreed to be paid and payable by the assignee to the assignor is Rs. 2,89,000, and that, therefore, under Section 92 of the Evidence Act, the defendant is not entitled to seek to adduce parol evidence to contradict this term of the contract reduced to writing between the parties. In fact his contention was that it was unnecessary for him really to go beyond the terms of the section. But he has also referred to numerous cases for the purpose of supporting his contention. The decision in Adityam Aiyar v. Ramakrishna Aiyar (1) by a Bench of this Court is a case directly in point. That case has not been sought to be distinguished from the present case and if I am bound by the decision in that case as undoubtedly I am, it is unnecessary for me to go further and discuss the various contentions raised before me by the learned vakil for the defendants, Mr. Chandrasekhara Aiyar, for the purpose of showing that that decision is wrong. But as the question, however, has been very ably argued and at great length on both sides, I might as well set out in brief my own views with regard to them.
Musammat Hanif-Un-Nisa vs Chaudhrain Faiz-Un-Nisa on 14 February, 1911
The other learned Judge, Justice Banerji, merely refers to the case of Hanif-un-nissa v. Faiz-un-nissa (1911) ILR 33 A 340 and held that as in that case their Lordships of the Privy Council decided that oral evidence can be given by the defendants to prove the real nature of the transaction, their Lordships were apparently of the opinion that the case would come within the first proviso to Section 92 and on that reasoning he agreed with the order proposed by Mr. Justice Chamier. From the statement of the case by either learned Judge in that case, I am unable to ascertain whether, apart from the clause in ., the recitals referring to the receipt of the whole consideration by the vendor, there was in the document any statement of the terms of the contract as such. From the words used by Mr. Justice Chamier I am rather inclined to think there was not. If there was not any such enumeration, then I must take it that what the deed contained was the recital of the fact of the receipt of Rs. 40,000. Such a clause should be deemed merely to be a recital of fact regarding the payment of consideration and cannot be regarded as a clause setting out the terms of the contract or the terms on which the sale was agreed to be made. As I have already observed, from such a clause of the recital of the receipt of certain consideration, the terms of the agreement could only be inferred and therefore the clause itself could not be regarded as containing in writing the terms of the agreement. The expression "terms of the disposition of property " may be considered to be either the terms of the agreement relating to the disposition of property or the terms on which the property is alleged in the deed to be disposed of. If the latter construction should be adopted numerous decisions of all the High Courts including several of the Judicial Committee of the Privy Council would have to be regarded as opposed to the clear terms of the section. The expression should therefore be construed merely as meaning the terms of the contract made with regard to the disposition of the property. So construed and bearing in mind the weight of judicial opinion with regard to the matter, it must be held that if a document merely refers to the amount of consideration in the clause reciting the fact of the receipt of it, the document is not one in which the terms are reduced to writing, within the meaning of Section 92 of the Evidence Act.
Chuni Bibi vs Basanti Bibi And Anr. on 4 June, 1914
if this view is correct and if, as I think, there was no such separate enumeration of the terms in the document in the case of Chunni Bibi v. Basanti Bibi (1914) ILR 36 A 537 the judgment in that case need not further be regarded. But if, on the other hand, there was in the document in that case a setting out the terms apart from the recital of the receipt of consideration, it seems to me to be impossible to consider that case as rightly decided. No rule of equity, it seems to me, can be allowed to over-ride the provisions of statutory law more especially of such a rule as is laid down in Section 92 of the Evidence Act with all its provisos.
The Indian Evidence Act, 1872
Wilayat-Un-Nissa vs Najib-Un-Nissa on 13 February, 1878
But on a close examination of the facts of the case of Faiz-un-nissa v. Hanif-un-nissa (1905) ILR 27 A 612 it must be fairly clear that in the document which was the subject of construction, though there was a recital of an alleged fact that Rs. 60,000 had been paid by the transferee to the transferor, the document did not contain or purport to set out as such the terms of any contract grant of other disposition of property. If a deed does not set out the terms of the contract as such and merely contains the recital of the payment of some amount as consideration, the recital of payment is the mere recital of a fact which can be disproved, and it cannot be contended that though the terms of the contract are not as such set out the terms should be implied or inferred from the recital and parol evidence disallowed for the purpose of contradicting or varying such inferred or implied term of the contract or grant.
The Interest Act, 1978
The Transfer Of Property Act, 1882
Nathu Khan vs Musammat Sewak Koeri And Anr. on 13 January, 1911
15. The learned vakil for the defendants cited several cases to show that evidence has always been held to be admissible to show that the consideration recited in a deed was not the real consideration but that the real consideration was different. Kailash Chandra Neogi v. Harish Chandra Biswas (1900) 5 CWN 158; Nathu Khan v. Sewak Koeri (1911) 15 CWN 408; Mahomed Yusuff v. Mahomed Musa (1907) 4 ALJ 441; Lala Himmat Sahai Singh v. Llewhellen (1885) ILR 11 C 486; and Vasudeva Bhatlu v. Narasamma (1882) ILR 5 M 6.
Lala Himmat Sahai Singh vs Llewhellen on 17 March, 1885
15. The learned vakil for the defendants cited several cases to show that evidence has always been held to be admissible to show that the consideration recited in a deed was not the real consideration but that the real consideration was different. Kailash Chandra Neogi v. Harish Chandra Biswas (1900) 5 CWN 158; Nathu Khan v. Sewak Koeri (1911) 15 CWN 408; Mahomed Yusuff v. Mahomed Musa (1907) 4 ALJ 441; Lala Himmat Sahai Singh v. Llewhellen (1885) ILR 11 C 486; and Vasudeva Bhatlu v. Narasamma (1882) ILR 5 M 6.