Oral evidence is admissible to prove that a written document was never intended to operate as a contract, as this denies the existence of an agreement altogether rather than varying its terms, thus falling outside the prohibition of Section 92 of the Indian Evidence Act.

Judgement

APPEAL (No. 13 of 1934) from a judgment and decree of the High Court (March 17, 1932) affirming a judgment and decree of the Subordinate Judge of Negapatam (February 14, 1929).

The question arising upon this appeal was whether the respondent, a Hindu widow, could maintain her suit for arrears of maintenance having regard to the terms of a document of December 28, 1912, which she pleaded was executed by her and her husbands brother with the object of evidencing the joint undivided status of the family. She alleged that the provision for her maintenance in the deed was never given effect to, and that it was intended to make a suitable provision in future for her maintenance.

The main question was whether oral evidence was admissible, in view of s. 92 of the Indian Evidence Act, 1872, to prove facts inconsistent with the terms of the document of December 28, 1912.

The facts and the relevant statutory provisions appear from the judgment of the Judicial Committee.

The Subordinate Judge held that the respondent could give oral evidence with a view to establishing that the provision in the deed regarding her maintenance was not intended to be acted upon; and that the deed did not embody a final contract as to her maintenance which was left over for future settlement.

Upon appeal to the High Court the learned judges (Sundaram Chetti and Curgenven JJ.) delivered separate concurring judgments dismissing the appeal. Sundaram Chetti J. held that the deed was executed nominally and that it was not intended to operate as a contract between the parties regarding maintenance, but was intended to secure the acknowledgment of the plaintiff as to the joint status of her husband and his brother. He held that in the circumstances oral evidence to prove such a case would be admissible and that the case did not fall under s. 92 of the Indian Evidence Act. Curgenven

J. held that the plaintiff was entitled to arrears of maintenance that the document was a nominal contract and oral evidence was admissible.

1935. Nov. 5, 7. De Gruyther K.C. and Subba Row for the appellants. The question is whether oral evidence could be given to show that the deed was not intended to embody a final arrangement fixing the respondents maintenance, and whether the evidence which has been given is admissible for the purpose of substantiating the claims she sets up.

[Reference was made to ss.91 and 92 of the Indian Evidence Act, 1872, and to the provisos to those sections].

Proviso 3 does not touch the present case. The best course is to place the evidence before the Board for your Lordships to say whether it is admissible. Unless the respondent can bring herself within one of the provisos the evidence is inadmissible. Even though the law of England is quite different the Evidence Act must be followed Balkishen Das v. Legge .(( 1899) L. R. 27 I. A. 58, 59, 65.)

[LORD THANKERTON There are concurrent findings against you].

This case really almost stands or falls on the view the Board takes about the respondents evidence to the effect that the reference in the deed to maintenance was not intended to be acted upon. The question is whether evidence of this kind is admissible for the purpose of varying the terms of the deed. Concurrent findings of fact cannot dispose of the question of the admissibility of evidence. Further, this is hear-say evidence and is not admissible.

The evidence does contradict, vary, add to or subtract from the terms of the document. The Subordinate Judge took the view that it did not, and that the document was never intended to have any operation whatever. He cited various cases which he said would authorize the admission of the evidence. Amongst all those cases there is not one which would warrant what has been done. The document was not a sham. Pertab Chunder Ghose v. Mohendra Purkait (( 1889) L. R. 16 I. A. 233, 237.) was the only authority which consisted directly of an assertion that a document would not be enforced; in that case it was he