Daimoddee Paik v. Kaim Faridar

Appeal from a decision of the Judge of the 24-Pergunnahs, reversing a decree of the Second Moonsiff of Diamond Harbour.

In this suit the plaintiff sued for possession of certain lands on the ground that the defendants were his tenants, and had denied his title in a former suit. He alleged that the defendants had sold to him the disputed lands for Rs. 19 by a registered kobala, dated the 10th Srabun 1276, and that after the sale had taken a lease of the same lands under a kabuliut of the same date.

The defendants, on the other hand, contended that under the kobala of 10th Srabun, they had merely mortgaged the disputed lands to the uncle and father of the plaintiff; that they had remained in possession paying interest to the plaintiff's father and uncle; that the kabuliut filed by the plaintiff was not genuine, had that they bad paid up all interest due up to 1283.

The Moonsiff found the kabuliut to be a genuine document. He refused to allow parol evidence to be adduced to show that the kobala, which purported to transfer the lands absolutely, was intended by both parties to operate as a mortgage only. The evidence adduced by the defendants to show that the plaintiff had waived the contract as embodied in writing and had by his conduct all along treated the transaction as one of mortgage, was entirely disbelieved by the Moonsiff.

A decree was accordingly given for the plaintiff.

On an appeal by the defendants the District Judge was of opinion that parol evidence was admissible to show that a bill of sale, though absolute in its terms, was a mortgage, and had been treated by the parties as such, and on examination of the evidence for the defence he found that in this case the kobala was intended to operate as a mortgage merely, and had been so treated.

He accordingly dismissed the suit. The grounds of the judgment of the District Judge were thus stated: “The Evidence Act is one ‘to consolidate, define and amend’ the law of evidence, and prima facie made no change in the former rules. Further, as far as I can see, there has not been the slightest change in the law as regards the inadmissibility of oral evidence to vary or alter a written document, and yet the evidence of the acts and conduct of the parties was always admissible to determine whether the document was or was not a mortgage—Kashi Nath Chatterjee v. Chundi Churn Banerjee, B.L.R, F.B, 383, and until it is otherwise decided I shall follow that ruling.”

A second appeal was now preferred by the plaintiff.

Baboo Doorga Mohun Dass, for Appellant.

Baboo Byddonath Dutt, for Respondents.

The following judgment of the Court (1) was delivered by

Jackson, J.:— The point raised in this special appeal is one which we have considered on more than one occasion previously. We have no doubt that the Judge is in error in thinking that the parties are at liberty to rely upon the evidence furnished by the conduct of parties for the purpose of varying, adding to, or subtracting from the terms of a written contract. The evidence so given can only be evidence of an agreement which, as it was not written, must have been oral, and that is in distinct violation of the terms of section 92 of the Evidence Act. The case decided by the Full Bench was before the Evidence Act came into force, and moreover I understand in that case there was a written instrument relied upon, viz., a kabuliut, and the evidence of conduct was adduced by the learned Chief Justice as giving support to that written instrument so as to make it probable that the parties had really intended a mortgage, and not a sale out and out. I am referred to a case in 11 W.R, page 450, heard by Mr. Justice Markby and myself, in which we both separately expressed the same opinion which the present Division Bench expressed only last week in another special appeal. I observed in that case:—“I confess that I have some difficulty in comprehending the distinction between the admissibility of evidence of a verbal contract to vary a written instrument, and the admissibility of evidence showing the acts of the parties, which, after all, are only indications of such unexpressed unwritten agreement between the parties,” and Mr. Justice Markby said: “It seems to me very difficult to understand the distinction there drawn between evidence of a parol agreement, contradicting the terms of a written contract being inadmissible, and evidence of the parties contradicting the terms of such a contract being admissible.” Although we both accepted the ruling of the Full Bench which it is to be borne in mind was a ruling of three Judges against two, in regard to the particular case in which it was given, we think the judgment of the Moonsiff in this case refusing to admit parol evidence was right, and that the judgment of the lower Appellate Court must be reversed with costs.

I would add also that it appears to me very material to consider this section (92) of the Evidence Act with the provisions of the Registration Act. It is highly important, and surely in accordance with the intention of the Legislature in passing the Registration Act, that parties should be compelled to register the precise contract which they have made. It would be extremely inconvenient if parties should register as a bill of sale what afterwards turns out on the evidence of conduct to be merely a mortgage.

Another observation I would make in this case is this: It appears to me to be no answer to the direct provisions of a particular section of an enactment to say that the enactment was described in terms as an enactment to consolidate, amend, and define the provisions of previously existing laws, and that the particular rule, contended for is not to be found among the previously existing laws. It is sufficient if the provision relied upon is a part of the Act, whatever the description or the purposes of the Act may be.