- (1.)The suit out of which this Second Appeal arises was brought by the first respondent (plaintiff) on the hypothecation bond for Rs. 1,000 (Exhibit III) executed in his favour by the appellant (first defendant) on the 27th September 1905. The defence set up was discharge. It was contended that the discharge of the suit bond was part consideration for the sale of certain other lands by the appellant to the first respondent on the 4th September 1907, which is evidenced by two registered sale-deeds (Exhibits I and II) for Rs. 29,000 and Rs. 6,000, respectively. The discharge of Exhibit III is not mentioned in Exhibits I and II, but it is stated that there was a contemporaneous oral agreement that the sale price was to be Rs. 36,000 and not Rs. 35,000 as stated therein, the difference being found in the discharge of Exhibit III. This is how the first defendant himself expresses it in his statement: The bond (Exhibit III) has been discharged. I have executed to this very plaintiff, a sale-deed for Rs. 36,000. On one and the same data, I executed a sale-deed for Rs. 29,000 and another sale-deed for Rs. 6,000. I executed on 4th September 1907. Without including the amount of the plaint bond, I executed for Rs. 35,000. In the aforesaid sale-deeds the plaint Rs. 1,000 debt was not included. Settling Rs. 36,000 (as price) the sale-deeds were executed for Rs. 35,000. Even at the time of the execution of these two sale-deeds, the understanding was that this amount of Rs. 1,000 should not be included, and that subsequent to his coming into possession of the lands sold, endorsement of payment of this sum of Rs. 1,000 should be made in the plaint bond-and (the bond) should be returned to me." Both the Lower Courts have held that evidence of this oral agreement regarding the discharge of Exhibit III is excluded by Section 92 of the Indian Evidence Act. The only question for disposal is whether they are right.
(2.)In our opinion, the agreement set up cannot be brought under any of the provisos to Section 92 of the Indian Evidence Act. At a late stage of the argument, the learned vakil for the appellant suggested that it might be covered by proviso 2; but a careful consideration of the appellant s own statement above quoted will show that this cannot be so. The appellant admits that the alleged agreement was one affecting the sale price of the lands. It provided that the price should be fixed at Rs. 36,000, although only Rs. 35,000 was to be shown in the sale-deeds. Therefore the separate oral agreement was not "as to a matter on which the document was silent," but as to the sale price which is specifically provided for in the document. It is also clearly inconsistent with the provisions in the document regarding the sale price.
(3.)The main contention, however, which Mr. T.E. Ramachandra Ayyar argued at great length, is that the case does not fall within the scope of Section 92 of the Indian Evidence Act. His argument really amounts to this-chat the sale price is not one of the terms of a sale-deed, and that there is nothing in Section 92 to exclude oral evidence to show that the price really agreed upon was higher or lower than is stated therein. This is a somewhat startling proposition and one which we should not accept without the strongest and most convincing authority. Prima facie, it would seem that if anything is an essential term of a sale, it is the price agreed to be paid. We are, of course, not concerned with sales for a price not determined which stand on a different footing altogether.