Patkar, J.:— In this case the plaintiff, the sister-in-law of the defendants, had certain disputes in connexion with her husband's property which culminated in a family arrangement in the shape of an agreement by the defendants to pass an annuity bond in favour of the plaintiff for maintenance. The plaintiff brought this suit to recover Rs. 87-8-0 on the annuity bond dated 13th October 1924. The defendants contended that they were entitled to prove a contemporaneous oral agreement by which the plaintiff agreed not to receive maintenance if she did not behave well and assure the defendants that she continued chaste.
2. The learned Subordinate Judge, relying on the decision in the case of Bhup Singh v. Luchman Kunwar (1), held that such an oral agreement was not admissible in evidence.
3. It is urged on behalf of the applicants that the agreement falls within proviso (3), Section 92 of the Evidence Act. The proviso runs as follows:
“The existence of any separata oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.”
4. It is urged that before any obligation to pay any of the instalments accrued, the oral agreement set up by the defendants was a condition precedent to the enforcement of that obligation. In Jugtanand Misser v. Nerghan Singh (2) it was held that the condition falling within proviso (3), S. 92, was a condition of such a nature that until the condition was performed, there was in fact no written agreement at all, and it was further held that the true meaning of the words “any obligation” in proviso (3) is any obligation whatever under the contract, and not, as is contended by the defendants, some particular obligation which the contract may contain. The condition therefore, in order that it should fall under proviso (3), S. 92, must be a condition non-fulfilment of which would preclude the agreement coming into force or having any operation at all. In the present case the annuity bond was acted upon from 1924 to 1928 and it cannot be said that the oral agreement set up on behalf of the defendants was a condition precedent to the operation of the written agreement or the attachment of any obligation under it. The view taken in Jugtanand Misser v. Nerghan Singh has been followed in Tiruvengada v. Rangasami (3) and Ramjibun Serowgy v. Oghore Nath Chatterjee (4) and Walter Mitchell v. A.K Tennent (5) and by this Court in Vishnu Ramchandra v. Ganesh Krishna, (6)] think, therefore that the view taken by the lower Court is right and the ora agreement set up in this case is not admissible in evidence. It is further urged that the plaintiff sues for maintenance and she cannot recover maintenance under the Hindu law if she is unchaste. The answer to that contention is obvious that the plaintiff claims maintenance not in her capacity as widow entitled to it under Hindu law, but under a specific agreement of annuity arrived at by a family arrangement between the parties. The present case, resembles in its essential features the case of Bhup Singh v. Laohman Kunwar . We would therefore discharge the rule with costs.
Broomfield, J.:— The plaintiff's husband and the defendants were brothers and carried on a family business. After the death of her husband the plaintiff claimed a share in the business. There was a dispute between them which was referred to arbitration, and as it appears owing to the efforts of the arbitrators, a compromise was effected and drawn up in the form of an annuity bond. The bond is Ex. 18 and it is dated 13th October 1924. It referred to the fact of the dispute between the parties regarding the joint business and stated that the dispute had been mutually compromised and it had been decided that the defendants and their heirs and assignees should pay the plaintiff during her lifetime Rslit per annum by two equal instalments. There were certain other provisions in the document with which we are not concerned. It appears that the instal ments were duly paid for four years after the execution of the bond, and that there the defendants declined to pay on the allegation that the plaintiff had become unchaste. The plaintiff accordingly brought a suit to recover certain instalments due under the bond.
5. The defendants contended that they were entitled to adduce oral evidence in roof of an alleged contemporaneous oral agreement to the effect that the instalments of the plaintiff's annuity were only to be paid, provided that the defendants were satisfied of the plaintiff's good conduct. The defendants claim to give evidence as to this oral agreement under provisos (2) and (3), Section 92 of the Evidence Act. The trial Court held that the evidence was inadmissible and on that round the present revisional application as been made to this Court.
6. In support of the application Mr. Divtia has put forward two contentions: prstly, that the evidence of the alleged oral agreement is admissible under the wo provisos to S. 92, i.e, provisos (2) and (3); and, secondly, that the payments, greed to be made to the plaintiff are layments by way of maintenance and hey are subject to the ordinary rule of Hindu law that a widow is only entitled ??? maintenance ‘dum casta’.
7. The first argument, it may be mentioned, was raised before the trial Court the second was not. Nothing has been said before us with regard to proviso (2) which says that the existence of any separate oral agreement as to any matter an which a document is silent, and which is not inconsistent with its terms, my be proved. We may take it, there one that any contention based on this proviso is not now pressed, and the ??? is obvious, namely, that any provision to the effect that the payment should only be made to the plaintiff as ??? as she continued to be chaste, would a clearly inconsistent with the express ??? of the annuity bond, by which the defendants bound themselves to make these payments every year for the period A the plaintiff's life. Proviso 3 is as follows:
“The existence 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.”
8. As regards that the trial Judge considered that the case was on all fours with she case of Bhup Singh v. Lachman Kunwar . In that case there was an agreement under which an annuity was provided by way of compromise of a claim—not a claim for maintenance, but claim of title to immovable property. The facts therefore were similar to those of the present case. The fact that the plaintiff in this case claimed a share in the family business, and not a share in immovable property would not appear to make any material difference. The provisions of Section 92 of the Evidence Act, were, not however considered by the Court in Bhup Singh v. Laohman Kunwar , and it becomes necessary, therefore for us to consider the effect of proviso (3), S. 92. The question is, What is the meaning of “a condition precedent” as that expression is used in the proviso. The meaning of the words “a condition precedent” has been considered in a number of cases, referred to by my learned brother: Jugtanand Misser v. Nerghan Singh , Tiruvengada v. Rangasami , Vishnu Ramchandra v. Ganesh Krishna and Walter Mitchell v. A.K Tennent and others.
9. It is not necessary for me to go into them in detail. The general effect of these decisions, is that a condition precedent within the meaning of proviso (3), S. 92, is a condition without the fulfilment of which there is in effect no written agreement at all, and no contractual, obligation of any description arises. It cannot be said that applies to the case here. The obligation to make these annual payments to the plaintiff admittedly has arisen and payments have been made under it for four years already. Mr. Divatia argued that the annuity bond could be construed as an agreement under which the liability arises at the time of each and every instalment when it becomes payable, that is to say twice a year. The point is an interesting one, but it is not one which, in my opinion, can take this case out of the-authority of the series of cases to which I have referred. It cannot be said that the alleged agreement could be regarded as a condition precedent to the attaching, of any obligation under the contract.
10. As regards the contention that the plaintiff is in effect claiming maintenance, and maintenance under the Hindu law is only claimable by a widow as long as she continues chaste, it is sufficient to say, as my learned brother has pointed out, that the plaintiff is not here claiming maintenance under the Hindu law, but certain sums which she is entitled to receive under an express agreement in that behalf. In Sathyabhama v. Kesavaoharya (7) the case of Bhup Singh v. Lachman Kunwar was referred to and distinguished on the ground that it related to a compromise which was arrived at regarding a claim of a widow for possession of property as heir. It was held accordingly that decision had no bearing upon a case in which a suit was brought by a Hindu widow for maintenance, and where, although the rate of maintenance was fixed by agreement, the claim was made not on the basis of the agreement but under the provisions of the Hindu law. The case before us is similar to the case of Bhup Singh v. Lachman Kunwar and clearly distinguishable from that of Sathyabhama v. Kesavacharya . I agree with my learned brother that the rule should be discharged.
P.N/R.K
11. Rule discharged.