JUDGMENT

1. This is a case in which we regret we have to allow the appeal. The facts are that the plaintiff filed a plaint alleging that he was entitled to a certain house owned and possessed by him. He gave no details of his title but it happened that when he went into the witness-box to prove his title and to prove the acts of encroachment which, as he said, gave him a right against the defendant, he asserted, no doubt truly enough, that his title rested on a partition. He produced a document which purported to be a deed of partition. It was noticed that it was neither stamped nor registered, and the learned Munsif quite properly refused to receive it in evidence. Unfortunately, then, the Munsif was persuaded to allow oral evidence to be given not only of the bare fact that there had been a partition which would have been unobjectionable but also of the further fact that in the partition his house fell to the share of the plaintiff. The Munsif then decided the matter on the merits and gave the plaintiff a decree and that decree was affirmed by the lower Appellate Court again on the merits. On the hearing of that appeal it did not occur to anybody to take the objection that the Munsif was wrong in law in receiving any oral evidence, there being in existence a complete record in writing of the partition. No body took that point. Then the matter came up before Mr. Justice Stuart, and he did not apply, what in our view is a most salutary rule, namely, that in second appeal, appellants shall not be allowed to take points which have never been before the lower Appellate Court. He permitted, for the first time, the appellants to take the point that they could cut the ground from under the feet of the plaintiff entirely by alleging that it was incompetent for the plaintiff to give oral evidence of the contents of a written document. As Mr. Justice Stuart has seemed to think that this evidence was receivable, it is well that we should refer to the section of, the Evidence Act and also to a case which was brought to his notice, and lay down what we believe to be the proposition of law as regards the reception of oral evidence which must be obeyed in all Courts. Section 91 of the Evidence Act of 1872 is as follows : "When the terms of contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained." Now what does that rule mean? First of all, if the contract is one which is by law-required to be in writing, no oral evidence can be given of the terms of the bargain between the parties. That is one case. If a transaction requires to be registered, even though there is a document which contains all the terms of the contract, it cannot, if unregistered, be looked at by the Court. As the parties have reduced their agreement into writing, they cannot be allowed to give oral evidence of the contents of that written document or of the verbal terms agreed upon before the document was drafted.

2. Again, if two or more parties meet together and enter into a contract which in law would have been a perfectly good contract entered into verbally but which they for the purposes of record, or for certainty reduce into writing, the document is the final depository of their agreement, and it is to that document alone to which the Court can be referred and no oral evidence can be given which seeks to vary, add to, or subtract from the contents of that written document. That is a document created under no necessity of law but brought into existence at the mutual wish of the parties. If the whole of the terms of a contract are agreed to