JUDGMENT
Kanhaiya Singh, J.
1. This is a second appeal by the defendants first party from the concurrent decisions of the Courts below.
2. The facts so far as they are necessary for the disposal of the present appeal are as follows. Hindu Mahto, Bengali Mahto and Chhangali Mahto, full-brothers and members of a joint Hindu family, executed in favour of the defendants first party a usufructuary mortgage bond dated 8-4-1918 in respect of their milkiat share of 15 gandas in village Jagir Sahib Ramnaik bearing tauzi No. 5720 which comprised 2 bighas 5 kathas 2 dhurs and 18 dhurkis of bakasht land. Again in 1919 they executed in favour of the defendants first party themselves a simple mortgage bond in respect of the same property.
The defendants first party sued the mortgagors on the foot of this simple mortgage and obtained a mortgage decree in 1932. They levied execution of the decree in 1934, but the execution case was dismissed for default. In 1936, by which time one of the brothers, namely Bindu, was dead, Bengali and Chhangali transferred the equity of redemption in respect of the aforesaid property to the defendants first party by virtue of a registered deed of sale dated 16-9-1936. The consideration as mentioned in this sale deed is Rs. 900/-. There is no dispute so far. The plaintiffs’ case was that the consideration of the sale was in fact Rs. 1,250, out of which Rs. 550 was set off towards the mortgage decree, Rs. 350 was set off towards the dues of the usufructuary mortgage bond of 1918 and Rs. 350 was to be paid in cash.
Their case was that when on the mortgage bond being read out to them they discovered that the consideration mentioned therein was Rs. 900 only, they refused to execute the sale deed. The defendants first party assured them that this was done deliberately to reduce the amount of stamp duty and costs of registration and that this amount would be paid to them. Thereupon, the sale deed was registered on 16-9-1936. When, however, the defendants first party failed to pay them the balance of the consideration, namely Rs. 350, the registration receipt was not endorsed in their favour. The plaintiffs served them with a notice dated 28-9-1936 through a pleader making a demand on them for Rs. 350 which, in reply, they refused and asserted falsely that’ the consideration was only Rs. 900 as mentioned in the sale deed and the same was applied by agreement to the satisfaction of the mortgage decree and the usufructuary mortgage of 1918.
Thereupon, the mortgagors deposited in Court on 21-5-1937 Rs. 350 under Section 83 of the Transfer of Property Act, being the consideration of the usufructuary mortgage bond aforesaid. The defendants first party preferred an objection to the withdrawal of the amount. The mortgagors took buck the original sale deed from the Registration Office. Subsequently, on 4-9-1945 the mortgagors executed a sale deed for Rs. 1,800 in favour of the plaintiff No. 1 with respect to the disputed land. The heirs of the mortgagors are the defendants second party in the suit.
The plaintiffs instituted the present suit on 14-9-1948 for declaration of title and for possession on the ground that the sale in favour of the defendants first party was bad because the full consideration money was not paid, which payment was a condition precedent to the passing of title to the defendants. The defendants first party alone contested the suit. Their main defence was that the consideration of the sale deed executed by the mortgagors in their favour was actually Rs. 900 and not Rs. 1,250 as alleged by them, and they thereby acquired a perfected title, as the entire consideration had already been paid by way of set off towards the mortgage dues and the mortgage money under the usufructuary mortgage bond.
2-a. Both the Courts concurrently held that the consideration of the sale was Rs. 1,250 and not Rs. 900, as mentioned in the sale deed, that under the terms of the sale deed the title was to pass to the defendants first party on payment of the full consideration money and that since the entire consideration money was not paid, the defendants first party did not acquire valid title. They held further that the plaintiffs had acquired a valid title by the sale and were entitled to a judgment in their favour. On these findings, the suit was decreed.
3. Learned counsel for the appellants contended that the findings of the Courts below that the consideration of the sale in favour of the appellants was Rs. 1,250 and not Rs. 900, as mentioned in the sale deed, were erroneous and bad in law, because Section 92 of the Evidence Act prohibited contradicting any of the terms of the document provided by law to be reduced to the form, of a document by any oral agreement or a statement. It was urged that the consideration mentioned in a document is one of the terms of the document and, therefore, oral evidence to disprove this consideration was not admissible in law.
Re urged that once the consideration money had been mentioned in a deed, there was no option for the Court but to accept it, since under Section 92 it was not permissible for the party to adduce evidence to show that the amount of consideration money, as settled between the parties, was more than what was mentioned in the sale deed. He pointed out that once this consideration is held to be Rs. 900, the title of the appellants to the disputed land was fully established and there had been left nothing for the plaintiffs to acquire. In support of his contention he relied upon a decision of this Court in the case of Ram Kesar Mahton v. Gulzar Jadav, 1956 BLJR 261 (A).
Learned Counsel for the respondents, on the other hand, contended that the consideration mentioned in a document was not one of the terms of the document but was a mere recital of fact which could be contradicted or varied under proviso (1) of Section 92 of the Evidence Act. He urged that it was permissible in law for the Par-ties to prove that the consideration mentioned in the document was not the real consideration but something different. In support of his contention, he referred to a decision of the Calcutta High
Court in the case of Nabin Chandra v. Sm. Shuna Mala Ghose, AIR 1932 Cal 25 (B).
4. The case of Nabin Chandra (B), aforesaid no doubt supports the contention of the respondents, but with great respect I would say that the authority of this decision has not been accepted even in the Calcutta High Court itself. It appears that there was an earlier decision of the Calcutta High Court in the case of Annade Charan Sil v. Hargobinda Sil, 27 Cal WN 496: (AIR 1923 Cal 570) (C). In this case; it was held that while want or failure or difference in kind of the consideration may be proved, the evidence to vary the amount of consideration in a registered sale deed is inadmissible.
Their Lordships of the Calcutta High Court pointed out in this case that if such a course were permissible, the protection afforded by Section 92 of the Evidence Act would be completely nullified. It appears that this decision was not brought to the notice of the Judges who decided the case of Nabin Chandra (B). This case was further dissented from in a later case of Sm Nagendra Nandini Dassi v. Bholanath, 41 Cal WN 734 (D). The decision of the Calcutta High Court in the case of Nabin Chandra (B) purporting to be based upon proviso (1) of the section is not supportable on the plain wording of the section itself.
Section 92 of the Evidence Act provides that when the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to Section 91, no evidence of any oral agreement or statement shall be amitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to or subtracting from, its terms. It is, therefore, clear that oral evidence to vary the terms of any contract is wholly inadmissible in evidence. Then follows six provisos. Proviso (1) which is relevant to the present case lays down as follows :
“Any fact may be proved which would invalidate any document or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law”.
It is clear that under proviso (1) evidence may be adduced to prove want or failure of consideration. This is, however, totally distinct from the amount of consideration. If in fact the amount of consideration also could be proved by oral evidence to be otherwise than what was stated in the document, there was no reason why the legislature omitted this from proviso (1). A statement in a document that a consideration has been paid is really a recital in a deed and does not constitute one of the terms of the contract, But the amount of consideration is obviously a term of the sale deed and, therefore, it is not open to a party to prove a variation in, the amount of consideration.
There is a concensus of opinion that evidence is admissible for the purpose of contradicting the recital in the deed acknowledging receipt of consideration money and showing that it was in fact not paid, because Section 92 does not bar such evidence. This, however, does not apply to the consideration money. It will appear, therefore, that proviso (1) of Section 92 does not support the decision of the Calcutta High Court in the case of Nabin Chandra (B). On a consideration of various authorities, this Court held in the case of 1956 BLJR 261 (A), that the amount of consideration is an important term of a sale deed and extraneous evidence to prove that amount of consideration was more or less than what is mentioned in the document is not admissible in evidence under Section 92 of the Evidence Act.
The case of Nabin Chandra (B) was considered and dissented from in this case. In my opinion, the contention raised on behalf of the appellants is well-founded and must be accepted as correct. Both the Courts erred in law in holding on the basis of extraneous evidence that the consideration of the sale deed in favour of the appellants was Rs. 1,250 and not Rs. 900. When oral evidence is inadmissible, there is no escape from the conclusion that the consideration of the sale in favour of the appellants was only Rs. 900 as mentioned in the document. If that be the position, there can be no doubt that the appellants had acquired valid title, because, as found by the Courts below, Rs. 900 had been paid to the mortgagors by a set off.
In this view of the matter, it is not necessary to consider whether or not the passing of the title depended on the payment of the consideration. Here, the entire consideration of Rs. 900 had been paid to the vendors by a set off and therefore, there can be no doubt that the appellants acquired valid title by virtue of the sale. If the title of the appellants to the disputed land was perfect, then the plaintiffs did not acquire valid title to it, since on the date of the sale to the plaintiffs the vendors had no title to the disputed land. Therefore, the plaintiffs were not entitled to a decree for possession in the suit.
5. The appeal, therefore, succeeds and is accordingly allowed with costs, and the suit of the plaintiffs respondents is dismissed with costs throughout.