The interpretation of written contracts and the admissibility of evidence under Section 92 of the Evidence Act.

Findlay—The facts of this case are fully stated in the judgment of the first Court, by which the plaintiff's claim was dismissed. The learned District Judge, in dismissing the appeal held that it was permissible in the present case to prove that Mt. Gendibai alone was entitled to recover the amount in deposit under the receipt (P-1), and also dismissed the present plaintiffs appeal. He has now come up to this Court on second appeal.

2. The first matter for decision is whether, in view of the terms of P-1, it was permissible for the lower Courts to hold that Gendibai alone without the present plaintiff was entitled to give a complete discharge for the amount in question. There has been some argument in this Court to the effect that the words o the receipt do not necessarily, imply that Gendibai and the plaintiff were co-promisees; I will assume, however, that this was so. It has been urged strongly on behalf of the appellant that, in view of Section 92, Evidence Act, it was not permissible for the defendants to prove, or for the Courts to hold, that Gendibai could give alone a valid discharge as regards the amount covered by P-1. Section 92, Evidence Act, only lays down that in the case of a written contract: no evidence of any oral agreement or statement shall be admitted, as between the parties to the contract for the purpose of contradicting, varying, adding to, or subtracting from, its terms.

3. In the case of consideration mentioned in such a written document, it is open to the party contesting it to show that there was no consideration, or that the consideration was different from that described in the contract. In the present case, the position of the defendants is that the present appellant joined in the execution of the document at his own request and that he was allowed to do so, being the husband of Gendibai. Their Lordships of the Privy Council in Baijnath Singh v. Vally Muhammad Hajee Abba, 1925 AIR(PC) 75 have remarked as follows:

It is true, as was laid down in Balkishen Das v. Legge,1899 22 ILR(All) 149 that under Section 92, Evidence Act, as between the parties to an instrument, oral evidence of intention is not admissible for the purpose, either of construing deeds of or proving the intention of. the parties. But in the view their Lordships take of the circumstances of this case, the section and the ruling have no application to it.

The preamble to the Evidence Act recites that ''it is expedient to consolidate, define and amend the law of evidence,'' and Section 92 merely prescribes a rule of evidence; it does not fetter the Court's power to arrive at the true meaning and effect of a transaction in the light of all the surrounding circumstances. To these circumstances their Lordships will briefly advert.

4. The position in the present ease seems to me to be precisely analogous to that adumbrated in the second passage from their Lordships' judgment just; quoted. If the findings of the lower Courts on the questions of fact involved stand, viz. that this money was, in reality, Gendibai's and that at the time her husband was fully aware of this and never attempted to contest the fact, then it seems to me obvious that in the circumstances of the present case, it is open to this Court to take into codsideration the evidence which has been produced on behalf of the defendant--version of the circumstances under which P-1 was executed. I do not think there is any necessity to have recourse, as the learned District Judge did, to the analogy of a benami transaction. The analogy may exist, but, at the best, it is a vague and imperfect one. It has, however, been urged before me that the lower appellate Court was incorrect in holding that the money in question was in reality. Gendibai's own property. This money, it has been argued, represents the sale-proceeds of the field of Gendibai's father. Gendibai has a son alive and she is now residing with the plaintiff. It is suggested, therefore, that she has only a life-intere