JUDGMENT
1. The appellant brings this suit to redeem the plaint lands on the footing that they were really mortgaged to the 1st respondent’s father though there was what purported to be an absolute conveyance of the lands to the respondent under Exhibit L, and it is contended that though Exhibit L is on the face of it an absolute conveyance, it was really agreed between the parties at the time of the transaction that the respondent’s father should hold the lands conveyed as a usufructuary mortgagee and that the profits of the land should be applied to the discharge of the mortgage money and other debts due by the plaintiff to strangers. The Subordinate Judge dismissed the suit on the ground that the evidence in the case established that the transaction was really a sale, not a mortgage as contended by the plaintiff. Plaintiff appeals.
2. Before going into the merits of the appeal, we required him to show how it was open to him, in the face of Section 92 of the Indian Evidence Act, to adduce evidence to contradict the terms of the contract of sale as clearly and unambiguously set forth in Exhibit L. He relied principally on the decisions reported in Khankar Abdur Rahiman v. Ali Hafez I.L.R. 28 C. 256 and Mahomed Ali Hossein v. Nazar Ali I.L.R. 28 C. 289 contending that evidence of the conduct of the parties subsequent to the date of the sale was admissible to establish that an absolute conveyance was intended to operate only as a mortgage.
3. With great respect for the learned Judges who took part in those decisions, we are unable to concur either with the conclusion arrived at, or with the reasoning on which it rests. Evidence of such conduct could be relevant only on the ground that the conduct leads, to the inference that there was a contemporaneous oral agreement or statement between the parties that the absolute sale deed was to operate only as a mortgage and not as a sale, but Section 92 of the Evidence Act enacts that no evidence of any oral agreement or statement shall be admitted as between the parties or their representatives for the purpose of contradicting, varying, adding to, or subtracting from, the terms of any contract, grant or disposition of property which has been reduced to writing, and no exception is made in any of the provisions to Section 92, or elsewhere in the Act, in favor of evidence which consists of the acts and conduct of parties from which an inference might be drawn that there was such an oral agreement to vary the terms of the contract or grant. The question therefore is really concluded by the recent decision of the Privy Council reported in Balkishen Das v. W.F. Legge I.L.R. 22 A. 149:
Their Lordships do not think that oral evidence of intention was admissible for the purpose of construing the deeds or ascertaining the intention of the parties. By Section 92 of the Indian Evidence Act (Act I of 1872), no evidence of any oral agreement or statement can be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying or adding to, or subtracting from, its terms, subject to the exceptions contained in the several provisos. It was conceded that this case could not be brought within any of them. The cases in the English Court of Chancery which were referred to by the learned Judges in the High Court have not, in the opinion of their Lordships, any application to the law of India as laid down in the Acts of the Indian Legislature. The case must therefore “be decided on a consideration of the contents of the documents themselves with such extrinsic evidence of surrounding circumstances as may be required to show in what manner the language of the document is related to existing facts.
4. After this clear statement of the law by the highest judicial tribunal, it is unnecessary for us to consider the decisions of the Court of Chancery and the decisions of this and of other High Courts in India based chiefly on the decisions of the Court of Chancery.
5. In this connection we may also draw attention to the distinction which is drawn by the same tribunal between they admissibility of evidence to show that a recital of a fact in a contract or grant is erroneous, and evidence to vary the terms” of a contract or grant, Sah Lal Chand v. Indarjit I.L.R. 22 A. 370 at page 376 and also to the decision in the House of Lords reported in North-Eastern Railway v. Hastings (Lord) 1900, A.C. 260 in which it was held that when the words of a deed were plain and unambiguous, the fact that the parties understood it otherwise and acted on such understanding for a period of more than 40 years could not affect the construction of the instrument and the effect to be given to it.
6. It was also contended for the appellant that the terms of the grant were not contained in Exhibit L alone, but partly in that document and partly in a different Exhibit M and that the two must be read together as the written record of the translation. The Court below found Exhibit M to be a forgery, but assuming it to be genuine, and assuming also that the transaction was partly recorded in Exhibit M, we are clearly of opinion that Exhibit M is inadmissible in evidence and cannot affect the property, because it has not been registered, though its registration is compulsory inasmuch as on the face of it, it purports to create or limit an interest in the immoveable property conveyed under Exhibit L Vide Pranal Annee v. Lakshmi Anni L.R. 261. A.p. 101 at p.106.
7. In the result we dismiss the appeal with the costs of the 1st respondent.
