The court affirmed the permissible proof of oral agreements invalidating written deeds under specific provisions of evidence law.

1. This appeal is directed against an order of remand passed by the lower appellate Court in exercise of its powers under O.41 R.23 Civil Procedure Code.

2. The circumstances leading to the present appeal are as follows : -
Plaintiff filed a suit for possession of a house on the strength of a sale - deed dated 13/1/1954 executed by the defendant in his favour. The defence to the plaintiff's suit was that the sale - deed had not been executed as to operate as a sale - deed. It was executed as a sequel to another transaction of agreement to sale which the defendant entered into with the plaintiff regarding the sale of his land in Mouja Pipalgaon Pargana Kasrawad in plaintiff's favour for a consideration of Rs. 850/-. The plaintiff had paid Rs. 500/- towards this agreement of sale and the defendant executed the sale - deed in question for this amount of Rs. 500/- in respect of the other transaction so that he may not back out from it. The transaction of sale of house "was not intended by both the parties to operate as such. The sale - deed of the house was executed to ensure to the plaintiff that the defendant would complete the transaction of sale with regard to the land.

3. On the basis of this plea of the defendant an issue was raised to the following effect: -
Whether it is competent for the defendant to take the plea detailed out by him in para 3 of his written statement? If so, what is its effect upon the suit?

4. It may be stated that Para 3 of the written statement contained the plea described above.

5. This issue was treated as a preliminary issue and the trial Court, after hearing arguments, came to the conclusion that in view of the provisions of S.91 and S.92 of the Evidence Act the plea sought to be raised by the defendant on the only issue between the parties is incompetent. As a result of this finding the trial Court decreed the plaintiff's suit.

6. The defendant preferred appeal against this decision and the appellate Court reversed the decision. It held, relying upon the decisions reported in 1957 MP LJ 399 Keralal v. Amarnath AIR 1938 PC 198, Rowland v. Administrator General of Burma and AIR 1932 Cal. 25 Nabin Chandra v. Shuna Mala Ghose, that it is not incompetent for the defendant to establish the plea incorporated in the aforesaid issue. According to the lower appellate Court neither S.91 nor S.92 of the Evidence Act was a bar to the raising of such a plea. He therefore set aside the decree passed by the Court below and remanded the case in exercise of his powers under O.41 R.23 Civil Procedure Code for recording evidence upon the issue found against the defendant.

7. The present appeal is directed against that order.

8. It is contended by Mr. Warune, who appeared under authority of Mr. Pande, that the Court below was not justified in permitting the defendant to prove his contention in Para 3 if his written statement. According to him such a plea would run counter to the provision of S.92 of the Evidence Act and is not saved by any of the provisos. The learned counsel relied upon the decision of the Supreme Court reported in AIR 1954 SC 345 , Chunchun Jha v. Ebadatali and in 139 Ind Cas 891 : (AIR 1932 PC 255) Tsang Chuen v. Li Po Kwai, in support of his contention.

9. On the other hand Mr. Sanghi for the respondent pointed out that the defence in the present case can well be established in view of the Proviso (3) to S.92 of the Evidence Act . He besides the decisions referred to by the Court below, sought to rely upon the decision reported in AIR 1936 PC 70 , Tyagaraja v. Vedathanni . He also contended that Proviso (1) to S.92 of the Evidence Act may also enable the defendant to establish