The admissibility of subsequent conduct of the parties to ascertain the true nature of a transaction and the applicability of oral evidence in such cases as per the Evidence Act, Section 92.

Curgenven, J.

1. By a so-called deed of release (Ex. 2) executed by the reversioner in 1882, property, including the suit house, was conveyed to the 5th defendant Narasamma, sister of the last male holder, and to her son defendant 1, then a minor, for a consideration of Rs. 200. From time to time since then defendant 1 has alienated portions of the property. This property consisted of two houses, a piece of wet and a piece of dry land. While he was still a minor his mother acting as his guardian sold one of the houses under Ex. D in 1885. In 1895 he himself sold one half of the suit house under Ex. C, a sale deed which his mother attested. The remaining half of the suit house was mortgaged in 1904 to the plaintiffs brother. To conclude with the alienations, he disposed of the nanja and punja lands under Exs. F, F (1) and G in 1908 and 1907.

2. The mortgaged portion of the house fell to the plaintiff in the family partition and he obtained a decree bringing the property to sale in 1921 and purchased it himself. When he attempted to obtain possession he was resisted by defendants 6 and 7, who are respectively the son-in-law and daughters son of Narasamma, defendant 5. They set up an independent title as her vendee. The plaintiff applied as auction-purchaser for the removal of the obstruction but his application was dismissed so that he brought the present suit. The question is whether the title of the plaintiff or of defendants 6 and 7 should prevail.

3. No attempt has been made before me to substantiate the pleas of estoppel and of adverse possession by defendant 1 against his mother which were successful in the Courts below. The question for decision accordingly is whether title to the suit property was in the son or the mother. There is a genealogical table affixed to the plaint as Sch. B. The property was originally held by Pedda Narasimhalu Chetti and passed from him to his son Chinna Narasimhalu Chetti and after his death to his mother Gururajamma. After the latter died it came into the hands of the 5th defendant Narasamma. The reversioner at that time was Pedda Narasimhalu Chettis brothers son Gurunatham Chetti, and he executed the deed of release referred to above. It is in favour of Narasamma and her son Krishnama Chetti, described as a minor aged about nine years living under her protection and it conveys to them all the property which had been the ancestral and self-acquired property of Pedda Narasimhalu Chetti and his son Chinna Narasimhalu Chetti. There is a recital that it had devolved upon Narasamma as stridhanam but that is incompatible with the description given of it and as the learned District Judge surmises need not be taken seriously. And it goes on to say that mediators having settled the matter the executant agrees to receive a sum in cash of Rs. 200 and thereafter never to make any claim either upon Narasamma on her son and adds You and your son, grandson, etc., shall hereditarily enjoy these moveable and immovable properties with absolute rights.

4. Prima facie this document invests the mother and son with a joint interest in the property. Nevertheless both the lower Courts have held that its effect must have been to convey the property to defendant 1 and not to his mother. In coming to this conclusion they have relied very largely upon the subsequent conduct of the parties in dealing with the property. The question of law which arises for decision is whether such evidence is admissible to ascertain the true nature of a transaction evidenced by a written instrument like Ex. 2 and if so whether its effect is as found by the Courts below. In Mulchand v. Madho Ram [1888] 10 All. 421 a sale of certain property was executed ostensibly in favour of two brothers, Ganga Prasad and Mul Chand jointly. Subsequently Ganga Prasad brought a suit against Mul Chand in which he prayed for a declaration that he alone was the real purchaser and to eject Mul Chand from a portion of the premises. He alleged that the whol