Section 92 of the Evidence Act does not bar the proof of the correctness of a recital in a document by oral evidence.

Krishnan, J.

1. This suit has been disposed of by the learned Trial Judge on the pleadings without taking any evidence except filing a document. He held that Section 92 of the Evidence Act barred the defendant from adducing oral evidence of his plea, as he proposed to do.

2. The plaintiff had assigned to one P.M.A.R. Muthiah Chettiar, whose legal representatives the respondents are, an 1/8th share of a mortgage decree which his father had obtained against the Rajah of Karvetnagar and others, plaintiff having succeeded to his fathers rights on his death. A copy of the deed of assignment has been filed in evidence as Document No. 3159. The consideration for the assignment is recited in this deed as follows:

For a consideration of Rs. 2,89,000 to be paid by Muthiah Chettiar to Lodd Govindoss (the plaintiff) whereof Rs. 89,000 is paid in advance this day and the three promissory notes, dated 24th March, 1915, and 26th April, 1917, executed by Messrs. Tawker & Sons in favour of Muthiah Chettiar for Rs. 1,50,000 together with the four jewels pledged as security by the said Tawker & Sons are assigned in favour of the plaintiff free from any claim by Muthiah Chettiar against Tawker & Sons and the balance of Rs. 50,000 being payable at any time before the end of February, 1918.

3. The deed is dated 1st October, 1917. In this case we are not concerned with the second and third items of consideration but only with the first. The plaintiff alleges in this suit that the recital in the deed that Rs. 89,000 was paid is incorrect and that only Rs. 60,000 were paid and he seeks to recover the balance Rs. 29,000. The defendant conceded that only Rs. 60,000 were in fact paid but he pleaded that he was not liable to pay the balance. His contention amounts to an averment that the recital of payment in full of Rs. 89,000 was made in the deed deliberately and that there was no mistake about it and he wants to adduce oral evidence to show the circumstances in which that recital was made in the document. His case is that the real consideration agreed to be paid for the assignment was only Rs. 2,60,000 but that he agreed to consideration being started to be nominally Rs. 2,89,000 on condition that a recital should be made in the deed that the whole of Rs. 89,000 was paid off though only Rs; 60,000 was in reality paid. In fact the recital of consideration in the deed as Rs. 2,89,000 was according to him closely connected with and dependent on the further recital of payment of Rs. 89,000 in full though only Rs. 60,000 was paid. The document, it will be noted, further says that the amount still due under it was only Rs. 50,000 confirming the previous recital. He pleads that all these recitals were made in the circumstances above stated and that he is not bound to pay the suit amount.

4. The learned Trial Judge relying on the decision of the Privy Council in Sah Lal Chand v. Indarjit (1900) ILR 22 A 370 (PC) has allowed the plaintiff to go behind the recital of payment and to show that it is wrong as only Rs. 60,000 were actually paid, on the ground that such a recital was only an averment of fact and that it could be proved to be wrong by oral evidence, Section 92 of the Evidence Act not barring such proof. So far he is correct, but he has at the same time shut out the defendant from showing the circumstances in which the recital was made as he considered that it involved proof of a consideration different from the one recited in the deed and that such proof be parol evidence was barred by Section 92 as consideration is one of the terms of the contract.

5. I regret I am unable to follow his view on the second point. I am clearly of opinion that if one party is allowed to show by oral evidence that a recital in a document is incorrect in fact, the other party must certainly be allowed to show by similar evidence that it is not incorrect and that the recital was deliberately put in and for the purpose of showing it he must be allowed to prove what the rea