V. Ramaswami, J.
1. A short and interesting point of law arises in the second appeal. The facts as found by the Courts below are these :
2. The defendant-respondent borrowed a sum of Rs. 3,000 from the plaintiff-appellant and adding another sum of Rs. 3,000 of his own, he purchased the suit property under the original of Exhibit A-1, dated 22nd October, 1960 but the purchasers were shown as the plaintiff and defendant. It was the case of the defendant that as security for the loan of Rs. 3,000, the plaintiff's name was also shown as a purchaser under the document but no title was intended to be conferred on the plaintiff or was in fact conferred. The plaintiff filed the suit for partition and separate possession of his one-half share alleging that he was a real purchaser having contributed Rs. 3,000 towards the sale consideration and that the plea raised in defence is barred under Section 92 of the Evidence Act. Both the Courts below have held that the borrowing was true and that the defendant had also not discharged the debt. The Courts below also held, relying on the decision reported in Salt Balumal Dharamdas Firm v. Venkata Chalapathi Rao and certain observations in Rakkiayappa Goundar v.
Ghinnu Goundan that the defendant was not barred
under Section 92 of the Evidence Act from pleading that no title passed to the plaintiff under the original of Exhibit A-1.
3. In this second appeal, the learned Counsel for the appellant submitted that it was not open to the defendant to plead an oral agreement to treat Exhibit A-1 as security for the payment of the loan of Rs. 3,000 which is directly contradictory to the terms of the document itself. He also submitted that the defendant also could not rely on the surrounding circumstances in support of his plea.
4. In this connection he pointed out that the decision reported in Salt Balumal Dharamdas firm v. Venkata Chalapathi Rao
which was a decision of a single Judge was, on Letters Patent Appeal, reversed by a Bench of the Andhra Pradesh High Court reported in Firm Bolumal v. Venkatackalapathi Rao . On the other hand the learned Counsel for the respondent submitted that Section 92 of the Evidence Act, is not applicable at all to the facts of this case and that on the merits, the finding of the Courts below that the defendant borrowed a sum of Rs. 3,000 from the plaintiff and the plaintiff did not contribute any money towards the sale consideration, is not liable to be challenged in this second appeal as a finding of fact. As the controversy mainly centres round the applicability of Section 92 of the Evidence Act, it would be useful to refer to the section and the relevant provisos which are in these terms:
Exclusion of evidence of oral agreement : 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 representatives in interest, for the purpose of contradicting, varying, adding to or subtracting from, its terms : Provisos * * * *
2. The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document * * *
6. Any fact may be proved which shows in what manner the language of a document is related to existing facts.
5. In Firm Bolumal v. Venkatachalapathi Rao , which considered the scope of Section 92 and the 6th proviso the facts were these : The plaintiff filed , a suit on a promissory note executed by the defendants for a sum of Rs. 1,400. The defence was that the second defendant obtained a charge decree for Rs. 2,000 against a third party and that decree was transferred to the plaintiff under a document for a sum of Rs. 600. It was his further case that at the time of assignment of this decree, the understanding between the plaintiff and the second defendant was that the assignment should serve as a security for the monies to be advanced by the plaintiff to the second defendant in future. The decree was executed by the plaintiff and in the execution proceedings the property. was brought to sale and purchased by the second defendant for a sum of Rs. 1,400. The amount of Rs. 1,400 was deposited by the plaintiff for the second defendant and later withdrawn by him as assignee decree-holder. For this, before the deposit of the money, he got a promisory note for Rs. 1,400 executed by the second defendant. With respect to the plea of the second defendant, the plaintiff contended that it was not open to the second defendant to plead contrary to the terms of the assignment of the decree itself and that the assignment was as security for the amounts to be lent in future, while considering this question, with reference to the sixth proviso, the Division Bench held :
It is clear from the terms of Section 92 that the evidence of any oral agreement or statement is excluded for any of the purposes indicated therein unless it falls under any of the provisos. The question is whether the instant case attracts proviso 6. In our judgment, this proviso could be called in aid only in cases where the terms of a document are ambiguous. If the language of an instrument does not yield clear meaning and is open to two interpretations, extrinsic evidence of surrounding circumstances, could be adduced. But if the meaning of the words is clear and unequivocal and the intention of the parties is easily deducible therefrom it is not permissible to lead parole evidence to show that the document was not really what it purported to be.
6. With reference to the contention that sections 94 and 95 permit the defendant to adduce evidence on the understanding of the parties the Court further observed:
It is manifest from these two sections that it is only in cases where the terms of the document leave the question in doubt, that resort could be had to the proviso. But when a document is a straightforward one and presents to no difficulty in construing it, the proviso does not apply. We think that these two sections define the sphere of operation of proviso 6.
If the contrary view is adopted as correct, it would be rendering Section 92 of the Evidence Act, otiose and also unduly enlarging the ambit of proviso 6 to Section 92. Section 92 specifically prohibits evidence of any oral agreement or statement which would contradict, vary, add to or subtract from its terms. If, as stated by the learned Judge, oral evidence could be received to show that the terms of the document were really different from those expressed therein, it would amount to according permission to give evidence to contradict or vary those terms and as such it comes within the inhibitions of Section 92. It could not be postulated that the Legislature intended to mullify the object of Section 92 by enacting exceptions to that section. Exceptions or provisos to a section are not meant to render the section itself nugatory. We are reinforced in this opinion of ours by clear authority.
facts were these: The plaintiff in that case executed a sale deed for a sum of Rs. 29,500. The consideration was not paid actually but the defendant in whose favour the sale deed was executed, was directed to discharge the debts of the plaintiff's family aggregating to Rs. 29,500. The plaintiff's case was that he executed the sale deed in favour of the first defendant who was his uncle as a trustee with a direction that the defendant should sell sufficient properties and discharge the family debts of Rs. 29,500 and return whatever properties remained after paying the debts of the family. The suit was filed for recovery of the properties remaining after paying the debts to the extent of Rs. 29,500. It was in evidence that prior to the sale deed, a trust deed actully was executed but for some reason that deed was found to be invalid. It was also in evidence that the plaintiff's family was in heavy debts and that if the plaintiff himself had undertaken to sell the properties it might not realise the real value in the sale. Having regard to these facts and the actual relief asked for in the suit, namely the recovery of that portion which remained after satisfying the family debts, this Court held that it was open to the plaintiff if he wishes to establish an oral arrangement to reduce an out and out sale into a trust so as to take away the right of the first defendant to enjoy the properties and such a plea would not be hit by Section 92 of the Evidence Act.
8. These decisions do not in any way help the appellant. They only recognise the well-known principle that a contemporaneous oral agreement which has the effect of contradicting, varying, adding to or subtracting from the terms of the contract cannot be pleaded as against the terms of a written document. But the main point for consideration is whether Section 92 is at all applicable to the facts of this case.
9. As seen from the defence and the document Exhibit A-1 itself, the plaintiff and defendant are the purchasers. They are not contracting parties, in the sense that one is a proposer and the other acceptor or a vendor and a vendee but they fill the same character as purchasers. Section 92 bars evidence of any agreement varying the terms of the instrument "as between the parties to any such instrument." The learned Counsel for the respondent submitted that the words "parties to any such instrument '' under Section 92 referred to only the parties as transferor and transferee or vendor and vendee and not the person coming under the same character as vendor or purchaser or transferor or transferee.
10. In this connection he relied on the decision reported in Mulckand v. Madho (1888) I.L.R. to. All. 421 One Muralidhar executed a sale deed in favour of two brothers, one Ganga Pra-sad and Mulchand, jointly for a sum of Rs. 1,000. The plaintiff sued the defendant for ejectment from the premises alleging that he alone was the purchaser and that the defendant was only nominally associating with him in the deed. The defendant pleaded that Section 92 is a bar for such a contention of the plaintiff. The Division Bench of the Allahabad High Court held :
We are of opinion that the answer to the learned Pandit's contention is to be found in the proper interpretation of the phrase, "as between the parties to any such instruments,'' the words 'the parties' being rightly read to imply the persons who on one side and on the other came together to make the contract. In the case before us, the 'parties' in this sense would be the vendor on the one part and the two vendees on the other part. "As between" the vendor and themselves, neither of the vendees would be heard to plead, or would be allowed to offer, oral evidence to show that both were not parties to the buying of his house. Neither vendees could, resist the vendor's claim for the price, or for any other relief properly arising to him out of the contract on a plea intended to show that one of the two was a nominal party only to the contract.
11. After referring to bonds and bills of exchange executed by other persons and the question arising in respect of the same, the Bench further observed :
But on the other hand, we think that this section would not apply to questions like that of the present case, raised by the parties on one side inter se and not affecting the other party to the contract, touching their relations to each other in the transaction. The evidence in this respect would be offered not to vary, contradict, add to, or subtract from the terms of the vendee's joint liability under the contract of purchase and sale from their vendor, but only to show as between, themselves, the two vendees to wit, which was the real purchaser.
12. This decision was followed expressly in Muhammad Sultan Mohideen Ahmed Ansari v. Amathul Jalal 101 I.C. 653 : (1927) 53 M.L.J. 557 : A.I.R. 1927 Mad. 1102 (2), by Devadoss, J. That was a case where a Hindu father executed a sale deed in favour of his two sons. Originally when the sale deed was drafted and presented before the Sub-Registrar, the document showed that one brother has to take the A Schedule properties and the other the B Schedule properties. But there was the objection of the Sub-Registrar that either there should be two sale deeds separately in favour of the sons with respect to the separate properties or the entire properties should be conveyed to both the brothers jointly. On that objection of the Sub-Registrar, he struck off that portion in the document which referred to and allowed A Schedule properties to one and the B Schedule properties to the other and had the document registered. Subsequently the pattas and other records were transferred in the name of the plaintiff in respect of the A Schedule properties and in the name of the defendant in respect of the B Schedule properties. The plaintiff contended that since the sale deed was taken in the joint names of both the plaintiff and the defendant each of them was entitled to a moiety of the whole property and no evidence could be adduced to show what the father intended that each should take. Overruling this objection, this Court held that Section 92 is not applicable to a case were the parties stand in the same character as donees. For this view this Court cited the decision in Mulckand v. Madho Ram I.L.R. (1888) 10 All. 421. These two decisions were again considered and followed by this Court in Ellur Ramayya Ghetti v. Mannaru Ghetti (1930) 32 L.W. 160 : 126 I.C. 492 : A.I.R. 1930 Mad, 590. In that case the facts were these : A document was executed in favour of a minor and his mother reciting that they should enjoy the properties with absolute rights. The case of the minor son was that though the document was in the name of his mother and himself, the mother received the property as guardian of the minor and for the benefit of the minor. The question for consideration was whether this plea was open to the minor son. It was held that the phrase "as between parties" in Section 92 means as between persons who on the one side and on the other come together to make the contract and the section does not apply to questions raised by the * parties on one side inter se and not affecting the other party to the contract, touching their relations to each other in the transaction.
13. The Supreme Court also in Viswanathan v. Abdul Wajid , has held that the admissibility of evidence to
contradict the recitals in the document was not precluded by Section 92 " as the dispute in the suit did not arise between the parties to the document but between persons who claimed under the executants of the documents", thereby suggesting that the words parties to the document in Section 92 do not refer to a case where they fulfil the same characteras purchaser or vendor, donor or donee. These decisions have been cited in some of the text books on the law of evidence without any comment. (Vide Field on Law of Evidence, 10th Edition, Volume IV, page 3702 and Sarkar on Evidence; 12th Edition pages 776 and 777). Though in Sarkar on Evidence, there is some reference to certain other cases, where the term " the parties to an instrument'' was considered to have a wider meaning, it was all referred to as obiter and Mulckand v. Madho Ram I.L.R. (1888) tO All. 421, is referred to as having been followed in a number of cases by the various High Courts.
14. In this case, the plaintiff and the defendant fill the same character as purchasers under the original of Exhibit A-1. It is therefore open to the defendant to show that no title was intended to be conferred on the plaintiff by showing him as a purchaser under the document.
15. The same result could also be reached from another angle. What Section 92 prohibits is letting in evidence to contradict, vary or subtract from the terms of the instrument. The parties to a document are not and could not be considered to be a term of the instrument itself. In other words, it is open to a person to show who the real party to a document is and in what character and for what purpose a particular person was impleaded as a party to the document. That evidence will not in any way be considered as having relevance to the terms of the document itself. This was also the view taken in Venkatasubbiah Chetty v. Govindarajulu Naidu ((sic)) I.L.R. 31 Mad. 45 18 M.L.J. 1.
16. That was a case where the suit was filed for the recovery of an amount due on a bond executed by the first defendant. The plaintiff alleged that the first and the second defendants were partners and that the money was borrowed for the partnership and for partnership purposes. The Courts below held that since the bond was executed only by the first defendant it was not open to the plaintiff to let in oral evidence to show that the second defendants also was liable on the bond. Though he was not eo nominee a party to the instrument, a Division Bench of this Court held that there is nothing in Section 91 or Section 92 of the Evidence Act which prohibits such a plea. It was held further that a question as to who the contracting parties are was not one of the "terms of the contract'' within the meaning of Section 92 and that therefore it is open to the plaintiff to let in evidence to show that the second defendant was also liable under the bond. This decision was followed by the Patna High Court in Ram Narayan v. Kedar Nath . In that case also it was held that the
reference to the terms of the contract in sections 91 and 92 does not extend to the parties to the contract. What is excluded by Section 92 is the oral evidence designed to contradict, vary, add to or substract from the terms agreed upon by the parties and not as to who the real contracting parties were. Section 92 itself recognised the distinction between a term of the contract and the contracting parties.
17. In the present case, the defence in effect is that though the plaintiff was also shown as a party to the document, no interest in the property was intended to be conveyed to him and no interest was in fact conveyed, which means that the plaintiff was shown only as a nominal party and not as a real party to the document. On the ratio of the decisions above referred to, this plea is clearly open to the defendant and the provisions of Section 92 do not bar the defendant from raising such a contention.
18. It is therefore clear that the defendant is not prevented by Section 92 from raising the contention that no part of the consideration was paid by the plaintiff, that his name was included only on a certain understanding nominally and that therefore the defendant is the absolute owner of the entire property.
18. The learned Counsel for the respondent also submitted that this plea was also open to him under Section 82 of the Trust Act.
That section reads :
Where property is transferred to one person for a consideration paid or provided by another person, and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration.
19. In this case, the finding of the Courts below is that the defendant borrowed the sum of Rs. 3,000 and therefore the entire consideration paid under the document was that of the defendant. There is no evidence to show that the defendant intended to benefit the plaintiff in any way by impleading him as a purchaser. The plaintiff shall be deemed to be therefore holding the property if at all, for the benefit of the defendant who paid the consideration. The plaintiff is therefore not entitled to claim partition and separate possession of one half of the properties. This position is clear if we put this case with reference to an illustration. Suppose instead of purchasing the property in the name of the plaintiff and the defendant, the defendant had purchased the property in the name of the plaintiff and provided the entire consideration, would it not be open to the defendant to contend that the plaintiff was a benamidar and he was holding the property in trust for him and that therefore he was not entitled to claim any- interest in the property ? Certainly such a plea is open to him and it is not the contention of the appellant that such a plea would be barred under section 92 of the Evidence Act. In the instant case, the claim of the defendant is the same if we take it that it relates to the one half share in the suit property claimed by the plaintiff. With reference to one half-share, the case of the defendant is that he is the owner and it is not in dispute. With respect to the other half-share it is the case of the defendant that the plaintiff was a benamidar, the real owner being the defendant, he having provided the consideration for the same and not intending to benefit the plaintiff. Therefore he is entitled to retain the entire property for himself. Even on this ground, therefore, the defendant-respondent is entitled to succeed in defeating the plaintiff's claim in the suit.
20. The second appeal accordingly fails and it is dismissed with costs. No leave.