1. This appeal arises out of a suit for specific performance of a contract to sell certain lands described in the schedule to the plaint.
2. The material facts as found by both the Court of first instance and the Court of first appeal are as follows: In Aswin 1343 B.S Arsadali defendant approached Sashi Kumar Banik, plaintiff with a proposal to sell the suit lands. The plaintiff agreed to purchase the lands for Rs. 1800 out of which Rs. 450 only should be paid to the defendant in cash, and the balance should be retained by the plaintiff in full satisfaction of his duties under five bonds. After this agreement was arrived at, the parties came to learn that 20 per cent, of the consideration for the sale would have to be paid as landlord's fee. The plaintiff was not willing to pay more than Rs. 1800; the defendant was unwilling to accept less.
3. The defendant thereupon enquired whether it was possible to avoid payment of the landlord's fee; and, in the course of his inquiries, learned that it was expected that the provision for payment of landlord's fee would shortly be repealed. Then, on the advice of people in the locality, he suggested that a deed of mortgage by conditional sale be executed and that a, deed of sale be executed subsequently when the provisions regarding landlord's fee were repealed, or at all events within one year from the date of execution of the mortgage by conditional sale was executed; Rs. 45 was paid in cash by the plaintiff to the defendant; possession of the land in suit was made over by the defendant to the plaintiff with effect from Baisakh 1344 B.S and the five bonds were regarded as fully satisfied. Some time later, the defendant applied to a Debt Settlement Board under Section 8 of the Bengal Agricultural Debtors Act, and included the liability under the mortgage by conditional sale in his list of debts. Notice of the application was given to the plaintiff, who appeared before the Debt Settlement Board, and contended that the transaction was a sale and not a mortgage. The Debt Settlement Board held that the transaction was a mortgage and that the mortgage debt had been satisfied out of the usufruct of the property.
4. The plaintiff then instituted the present suit. In dealing with an objection that the alleged oral contract for sale could not be proved in view of the provisions of Section 92 of the Evidence Act, the learned Subordinate Judge observed:
“When the contract is an independent one and refers, to a distinct matter not provided for in the mortgage deed, there is no reason why it cannot be proved and I am of opinion that Section 92 of the Evidence Act, does not stand in the way of proof of the contract set up by the plaintiff.”
5. The suit was decreed with costs in the Court of first instance. The original defendant having died, his heirs appealed. The learned District Judge in dealing with the objection under Section 92 of the Evidence Act, observed:
“This agreement for sole being in no way inconsistent with the recitals in the Kot kobala deed can be proved by the plaintiff and the suit is therefore not barred under Section 92 of the Evidence Act.”
6. The learned District Judge dismissed the appeal with costs.
7. The substituted defendants preferred this second appeal. A preliminary objection was taken by the respondent that two of the appellants had died, and their heirs had not been brought on the record within the period of limitation. It was contended that the appeal was no longer competent.
8. The surviving appellants relied on the provisions of O. 41, R. 4 and contended that the surviving appellants were entitled to prosecute the appeal without bringing the heirs of the deceased appellants on the record.
9. The respondent relied on the decision in 32 C.W.N 2991 wherein it was clearly held that when one of the parties to the appeal died and the heirs were not brought on the record, O. 41, R. 4 had no application. But in a number of subsequent cases, viz. 59 C.L.J 318,2 59 C.L.J 362,3 44 C.W.N 1414 and 46 C.W.N 2815 it has been held that this rule applies in such cases.
10. Order 41, R. 4 is silent on the question whether when some only of a number of defendants or plaintiffs prefer an appeal, the remaining defendants or plaintiffs are necessary parties to the appeal. The reasons given for the decision in 32 C.W.N 299 have not been considered in the subsequent decisions. But in view of the number of subsequent decisions all to the same effect, we hold, with some hesitation, that the surviving appellants are entitled to prosecute this appeal without bringing on the record the heirs of the deceased appellants.
11. The appellants advanced a number of reasons why their appeal should be allowed, but we propose to consider only the question of the applicability of Section 92 of the Evidence Act. In view of our decision on this point, it is unnecessary to consider the other arguments.
12. It is clear from what has been stated above that both the Courts below held that proviso 2 to S. 92 applied to the facts of the present case. The learned Advocate for the respondent sought to argue that either proviso 2 or proviso to that section applies.
13. In these circumstances we asked the learned Advocate to state clearly on behalf of his client, what was the exact agreement between the parties, i.e, to say, definitely whether any money was advanced under the mortgage by conditional sale, whether that money was to be repaid, and what was the exact agreement for sale. The learned Advocate thereupon (after taking some time for consideration) gave us the following statement:
“The plaintiff's case, in brief, is that there was a contract for sale of the property for Rs. 1800. The execution of the conveyance was deferred to a certain date. The mortgage bond in question was taken in substance as security for the performance of the contract, though in form it was a security for the payment of money, which could be enforced as such only in the event of the contract failing.”
14. It seems to us that the Courts below were clearly wrong in holding that proviso 2 to Section 92 of the Evidence Act applied. This proviso refer to a separate oral agreement not inconsistent with the terms of the written agreement. In the present case, the written agreement recites that Rs. 1800 is advanced as a loan to be repaid within 15 years and that on that sum being paid, the land is to be returned to the transferor; the alleged oral agreement is to the effect that Rs. 1800 is paid not as a loan, but as the purchase price of the property that it is not be repaid, and that the property is not to be returned to the original owner. In other words the alleged oral agreement is entirely inconsistent with the terms of the written agreement. In fact the learned Advocate was constrained to admit that the written agreement did not represent the real agreement between the parties at all.
15. It seems to us that proviso 3 is equally inapplicable. The alleged oral agreement to sell did not constitute a condition precedent to the attaching of any obligation under the mortgage by conditional sale. But even if it did constitute such a condition precedent, the plaintiff would only be entitled to relief under the written agreement.
16. In our opinion, S. 92 was clearly applicable and no evidence of the alleged oral agreement was admissible. In this view the suit should have been dismissed. We therefore order that this appeal be allowed, the judgments and decrees of the Courts below be set aside, and the suit dismissed. The appellants will recover costs of all Courts from the plaintiff.
K.S
17. Appeal allowed.
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