Baboo Taruck Nath Sen, for the Appellants. Baboo Nil Madhub Sen, for the Respondent. The judgment of the High Court (1) was delivered by JACKSON, J.: It appears to me that the judgment of the lower Appellate Court is right upon the point raised. I would hold the defendants to be concluded, not upon the ground that they are bound by the Act or consent of the father, through whom, they say, they do not claim, but upon this ground that the act of the widow sanctioned by the concurrence of the then next heir and ever since was in itself a valid grant. This, so far as I know, is the rule usually acted upon by the Court in Bengal; and, although in a case reported in 22 W. R., 393-Gunga Pershad Kur vs. Sumbhoonath Burmun, reference is made to some conflict of opinion upon the subject, I am not aware there is such authority opposed to the view which I take as to oblige us to refer this question to the decision of a Full Bench. I would, therefore, dismiss this appeal with costs. (1) JACKSON and TOTTENHAM, J.J. 1878 RAJBOLLOBH v. OMESH CHANDRO ROOJ. Judgment. JACKSON, J. VOL. III 49 Oral Evidence-Admissibility-Document, Evidence to contradict-Evidence A, by a deed of sale absolute on its face, transferred certain land to B for the sum of Rs. 379. A alleged that at the time the transaction was entered into it was understood and orally agreed that the sale was merely by way of security for the payment of Rs. 400 due to a third party, C, under a compromise made by A with C for the satisfaction of a decree for Rs. 832, which the latter held against A; and that it was at the same time orally agreed between A and B that on the payment of the money by A to C the deed of sale should be delivered to the former. Subsequently A brought a suit against B for the return of the kobala, alleging that the whole of the money had been paid to A. Held, that section 92 of the Evidence Act, I of 1872, prevented the admission of evidence of the oral agreement to contradict the deed of sale which had admittedly been contemporaneous. SPECIAL APPEAL from a decree passed by the Subordinate Judge of East Burdwan, reversing that of the Moonsiff of Budh- The facts of the case are as follows: On the 30th of July, and the 6th of October 1874, Keshob Lall obtained two decrees against Heera Lall Paray, the plaintiff in the present suit, the aggregate amount of which was Rs. 832-8. On the 5th of March 1875, Heera Lall Paray, by an absolute deed of sale, conveyed certain land to Ram Doyal Bajpie for a consideration of Rs. 799. Heera Lall Paray alleged that Keshob Lall had agreed to take Rs. 400 (to be paid by instalments) in satisfaction of the amount of his two decrees, and that in order to secure the repayment of the Rs. 400 it was arranged that the land should be conveyed to Ram Doyal Bajpie, who would reconvey when the Rs. 400 should be fully paid to Keshob Lall. On the 9th of December 1876, the present suit was filed by Heera Lall Paray, alleging that the Rs. 400 was paid off; that nevertheless 1878 BAJPIE ย. PARAY. Keshob Lall was about to execute the decrees, and that he prayed for a return of the kobala (he had always retained possession of RAM DOYAL the land,) and for an injunction to restrain Keshob Lall from executing the decrees. Both Keshob Lall and Ram Doyal Bajpie HEERA LALI. denied all knowledge of the arrangement alleged by the plaintiff. Keshob Lall denied that his decrees were satisfied, and Ram Doyal Bajpie asserted the sale of the land to him was, as it appeared to be, absolute, and that he had paid the consideration, namely, Rs. 799. The Court of First Instance dismissed the suit on the authority of Banapa vs. Sundardas Jagjivandas, I. L. R., 1 Bom., 333, and section 92 of the Evidence Act. This decision was reversed on appeal. The defendant Ram Doyal then brought this special appeal. Baboo Bungshee Dhur Sen, for Appellant. Baboo Nil Madhub Sen, for Respondent. The judgment of the Court (1) was delivered by JACKSON, J. : The defendant, Keshob Lall, had two decrees against the plaintiff Heera Lall, one for Rs. 397-9-0, the other for Rs. 434-15-0, in all Rs. 832-8-0. Heera Lall says that at the intercession of respectable people, Keshob Lall agreed to accept in full satisfaction Rs. 400 payable by instalments, but that as collateral security he (Heera Lall) was required to execute a kobala selling his immoveable property, which instrument was to remain, till payment was made, in the custody of the defendant Ram Doyal, a person related to both parties; that the kobala was executed, registered and made over accordingly-the lands purported to be conveyed remaining, however, in Heera Lall's possession; that he had paid by degrees the whole amount of Rs. 400 to Keshob according to agreement; that Keshob, notwithstanding, was proceeding to execute the before mentioned decrees. He, therefore, asked for the double relief that Keshob Lall should be restrained from executing his decrees, and that Ram Doyal should be ordered to restore the kobala. (1) JACKSON and TOTTENHAM, J.J. Judgment. JACKSON, J. 1878 v. Both defendants answered, though the written statement of BAM DOYAL Ram Doyal alone has been printed. Keshob denied that he BAJPIE entered into any such compromise, and averred that Heera Lall HEERA LALL had, with his consent, obtained time for payment, promising to make some arrangement, but had made none; and that he had Judgment. shown constant bad faith. He pointed out that no adjustment JACKSON, J. made without notice to Court could be recognized, and denied PARAY. that he had received anything in satisfaction of his decrees. Ram Doyal, in whose favour the kobala was executed, said in his written statement that the allegations of the plaint were entirely false, that he had nothing to do with the arrangement between the plaintiff and Keshob Lall; that the plaintiff had sold the property to him, for the consideration specified in the bond; that he had obtained possession and still kept it, except that he had sold one part of the land to one Jogeshur, who had a prior mortgage on it and some other portions to other people. He also pointed out the legal objections to such a suit proceeding, and denied that plaintiff had any cause of action of that sort, though he might possibly bring a suit of a different kind. He filed the kobala made in his favour which is duly registered. The Moonsiff was of opinion, following a case in the Indian Law Reports, 1 Bombay, page 333, that his Court was restrained by section 92 of the Evidence Act from receiving evidence of the alleged oral agreement, for which reason the suit as to the kobala must fail, and as to the execution he held, that, being prohibited by section 206 from recognizing any adjustment not made through or certified to the Court, he was compelled by section 217 to proceed with the execution, and that consequently that branch of the suit failed also. He, therefore, dismissed the suit altogether, but as the defendant Keshob, when cited to give evidence, had declared that he would not attend, the Moonsiff punished his contumacy by refusing to give him his costs. The plaintiff appealed, and the appeal came before the Officiating Second Subordinate Judge of Burdwan. This Judge concurred with the Moonsiff as to that part of the plaint which asked for stay of execution. Besides the sections of the Code relied on by the Moonsiff he referred to section 11 of Act XXIII of 1861 as prohibiting regular suits for the determination of matters properly arising in execution 1878 ВАЈРІЕ v. PARAY. Judgment. JACKSON, J. of decree. He then went on to consider whether plaintiff could RAM DOYAL maintain the suit for the purpose of getting back his kobala. He thought the Bombay case distinguishable from the present, HEERA LALL inasmuch as the Court was not called upon (he thought) in this case to decide any dispute as to the property conveyed or as to the nature of the instrument. If such duty had been imposed upon the Court he said that he would have agreed with the Moonsiff on this part of the case likewise. The view he took of it was this:-"The plaintiff's case was, that the document could not be operative, inasmuch as the consideration money did not pass, and that it was executed in pursuance of an oral agreement, that it should be returned to the plaintiff as soon as he would perform his part of the agreement by payment of the decretal amount. I would look upon this document as a valuable deed pledged for some special purpose, and the question whether the plaintiff would be entitled to have it returned to him depends upon the fact whether the contract in accordance with which it was delivered has been performed by him. The plaintiff's case was, that the document would be inoperative if a verbal contract entered into by him were performed, and I presume that proviso 3, section 92 of the Evidence Act, permits the admission of oral evidence in such cases. 39 He then set out the proviso in question, and gave his opinion that the case clearly came within its terms, considering the plaintiffs to set up an agreement that in a certain event the document should be inoperative. Taking this view of the case, he directed a remand in order to the taking of evidence as to the alleged agreement. The defendant Ram Doyal at once appealed to this Court, and we have now to determine whether the latter part of the Subordinate Judge's decision was correct. The words of section 92 of the Indian Evidence Act are as follows:-"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 the last section, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their repre |