P L D 19 (PLP)

CHAKRABORTI, J.--‑Defendant No. 1 is the appellant and the appeal arises out of a suit for a declaration and that a Hiba‑bil‑iwaz executed by one Khoda Bux in favour of his sin Peer Bux, defendant No. 1, was obtained fraudulently and is void and inoperative and also for a permanent in junction. The material facts are as follows : Defendant No. 1 is the son of deceased Khoda Bux by his first wife. The name of his second wife is Rabia Khatun. The subject‑matter in dispute is a house. Khoda Bux used to live with his second wife at Phakirerpool and defendant No. 1 used to live in a house at Shantinagar in this town. The plaintiffs' story is that Khoda Buz was about 80 years old and was seriously ailing and he had differences with his second wife Rabia Khatun and left the house at Phakirerpool and went away with his son, defendant No. 1, to Shantinagar. There Khoda Bux was prevailed upon by fraudulent persuation to execute a deed of Will in respect of the disputed house in favour of his son and three daughters, but the son fraudulently obtained a Hiba‑bil‑iwaz in his favour alone on the 9th January 1950, without any knowledge of the father and in fact, no consideration did pass in relation to that document and, on return of the father to his own house at Phakirerpool, he came to know about the said fraud. The father was in possession of the house which was a tenanted one and the Hiba‑bil‑iwaz having cast a cloud on the title of the father he brought this suit for the reliefs as stated before. During the pendency of the suit, the father died leaving the son and 3 daughters and the second widow as his heirs of whom the widow and two daughters, Banu Bibi and Niyat Bibi, got themselves substituted in place of their father and proceeded with the suit. Defendant No. 1 contested the suit. Mariam Bibi, another daughter of Khoda Bux, also filed written statement after the death of Khoda Bux when she was brought on record as a pro forma defendant. Both the defendants denied the allegations of fraud and misrepresentation and they contended that the document was executed out of free will by the father and the consideration was paid as alleged in the document and that since the Hiba defendant No. 1 is in possession of the disputed house by realizing rent from the tenants as well as by paying rent to the superior landlord ; that the father ceased to have any possession in the disputed house from the date of the Hiba ; that there was no talk for execution of any Will and that the plaintiffs' suit is liable to be dismissed. The learned Munsif by his judgment, dated 25th February 1953, dismissed the suit without costs on the finding that the Hiba‑bil‑iwaz was a genuine document for consideration and that, therefore, there was no fraud or misrepresentation or undue influence on the part of defendant No. 1 and that the son was in possession of the house in question since the date of the Hiba. The plaintiffs thereafter preferred an appeal before the District Judge. The learned Subordinate judge who heard the appeal by his judgment dated 12th September 1953, allowed the appeal and set aside the judgment and decree of the learned Munsif and decreed the plaintiff's suit: Defendant No. 1 then pre ferred this second appeal before this Court. Mr. Abu Muhammad Abdulla appearing on behalf of the defendant No. 1 appellant has contended before this Court that in view of the recital of the payment of consideration in the Hiba‑bil‑iwaz, Khoda Bux was estopped from denying that fact and the recital of payment of consideration in the Hiba-bil‑iwaz was conclusive so far as the question of payment of consideration to Khoda Bux was concerned. The learned Advocate has relied on the case of Tzang Chuen v. Li Po Kwai (AIR1932(PC)255) in support of his contention. Mr. Abdulla has again contended before this Court that when the learned Subordinate judge was satisfied that there was no payment of consideration, as mentioned in the document itself, he should have given an opportunity to the defendant to prove that he paid other consideration to the executant of that document. No other point has been pressed before this Court. Mr. Mesbahuddin appearing on behalf of the respon dents has, however, urged that under the proviso to section 92 of the Indian Evidence Act, the plaintiffs could very well introduce parole evidence to prove facts which would invalidate any document and he has relied on the authorities in Chowdry Deby Persad and another v. Chowdry Dow1ut Singh (3MIA347) as well as the Full Bench decision of the Calcutta High Court in Beni Madhab Dass v. Sadasook Kotary (3MIA347). As regards the question of estoppel, he has relied on the case of Baz Bahadur Singh and others v. Raghubir Prasad and others (A I R 1927 All. 385). The learned Advocate for the appellant has practically contended before this Court that under section 92 of the Evidence Act parole evidence on the part of the plaintiff is excluded section 92 of the Evidence Act lays down :‑ "When the terms of any such contract, grant or other disposition of property or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their represen tatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from its terms :‑ Now the proviso (1) to section 92 says "Any fact may be proved which would invalidate any document, or which would entitled any person to any decree or order relating thereto ; such as fraud, intimida tion, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law". The illustration (i) to section 92 of the said Act states "A applies to B for a debt due to A by sending a receipt for the money. B keeps the receipt and does not send the money. In a suit for the amount A may prove this". Now this illustration directly goes against the contention of the learned Advocate for the appellant. The decision relied on by the learned Advocate for the appellant has no application to the facts of the present case. That case only lays down the general rule that when the words of a written instrument are free from ambiguity in themselves and where external circumstances do not create any doubt or difficulty as to the proper application of the words, such instrument is always to be construed according to the strict plain common meaning of the words themselves and evidence de hors the instrument for the purpose of explaining it according to the surmised or alleged intention of the parties to the instrument is utterly inadmissible. Thus where a deed of assignment was executed by A in favour of X (his son) and‑Y, and B advanced money on the security of X's interest in the properties thus conveyed, A could not be allowed to give evidence that it was "an elaborate make believe deed" to mark the properties so that in the case of his death, the properties might be handed over to his son later on. Such evidence of secret intention at variance with the express intention in the deed is inadmissible. That is the real purport of the case relied on by the learned Advocate for the appellant and this is clear from the observation of, the Judicial Committee in Tzang Chuen v. Li Po Kwai. Their Lordships at page 262 have stated "If a grantor conveys property in a form actually and actively misleading, so that any persons reading the conveyance necessarily conclude that the grantees are the absolute owners, the grantor cannot subsequently be heard to say that this is not the real transaction, but that the grantees take on a secret trust not disclosed in the con veyance". The earliest Privy Council decision in the case of Chowdry Debi Persad and another v. Chowdry Dowlut Singh lays down the law as follows "The statement in a deed of compromise that the consideration money was paid is not of itself, according f to the practice of the native Courts in India, conclusive evidence of such payment, and may be rebutted by evidence of non‑payment". In the Full Bench decision of the Calcutta High Court in the case of Beni Madhab Dass v. Sadasook Kotary, the Calcutta High Court laid down the law as follows "Upon the true construction of section 92 of the Evidence Act (I of 1872), and specially having regard to proviso (1) of that section, the decision in the case of Juggernauth Sew Bux v. Ram Dyal (I L R 9 Cal. 791) cannot be regarded as law. In order to enable a Court to arrive at a decision whether or not an agreement is void on the ground that it is by way of wager, the party, who sets up that it is, should be allowed to go into evidence to prove that it is so". In that case, Woodroffe, J., further held "If the validity of a written agreement is impeached it is no defence to point to the apparent rectitude of the document and to claim protection from inquiry under the rule embodied in section 92 of the Evidence Act, which exists against the contradiction and variance of the terms only of those instruments, the validity of which is not in question. The instances mentioned in proviso (1) of that section are illustrative and not exhaustive". On the question of estoppel, the Allahabad High Court has ruled in Baz Bahadur Singh and others v. Raghubir Prasad and others. "A recital of a receipt in a deed will not operate as an estoppel under any application of the principle embodied in section 115 (as opposed to the terms of that section) because such recitals do not operate by way of estoppel in English Law". I respectfully agree with the view taken by Their Lordships in the above decision. Now the whole contention of the plaintiffs is that the Hiba‑bil‑iwaz is not a valid document for want of consideration and under the proviso to section 92 of the Evidence Act any fact can be proved which would invalidate the document. Under the Muhammadan Law, two conditions must concur to make the transac tion valid, namely, (1) actual payment of consideration on the part of the donee and (2) a bona fide intention on B the part of the donor to divest himself in praesenti of the property and to confer it upon the donee. In the well- known case of Khajooroonissa v. Rowshan Jehan (I L R 2 Cal. 184) which is the leading case on the subject, the Judicial Committee said "Undoubtedly the adequacy of the consideration is note the question. A consideration may be perfectly valid which is wholly inadequate in amount when compared with the thing given. Some of the cases have gone so far as to say that even a gift of a ring may be a sufficient con sideration ; but whatever its amount, it must be actually and bona fide paid". Here there is a clear finding of fact by the learned Subordinate Judge. On a consideration of the entire evidence and circumstances on the record, the Court below came to the conclusion that there was no actual and bona fide payment of consideration. Now this finding cannot be challenged in Second Appeal. As there was no payment of the iwaz, the document cannot be a Hiba‑bil‑iwaz and it is invalid in the eye of law. Moreover, the learned Subordinate judge has also come to a finding that defendant No. 1 had no possession, in the eye of law, of the house which was in possession of the father notwithstanding the Hiba. There is, therefore, no substance in the first contention of the learned Advocate for the appellant. The second contention of the learned Advocate for the appellant is equally untenable. This ground was not taken in any of the Courts below, not in the memorandum of appeal and not even at the time when the appeal was opened before this Court. No notice of this ground was given to the learned Advocate for the respondent either in the beginning or during the bearing, and only at the close of the argument this point was raised by the learned Advocate' for the appellant and I do not see any reason who should the Court give an opportunity to the defendant to prove that he paid other consideration which is against the document itself. This contention of the learned Advocate also is, therefore, overruled. In the result, the appeal is dismissed with costs and the judgment and decree of the learned Subordinate judge are affirmed. Z. A. S. Appeal dismissed.