025-NLR-NLR-V-20-KIRI-BANDA-v.-MARIKAR.pdf
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Present :Ennis J. and De Sampayo J.
KIRI BANDA v. MARIKAR.• 222—U. G. Kegalla, 4,420.
-Evidence—"Recital in deed that land was sold for Rs. 4,000—Agreementsigned at the time of execution of deed that the ,price was to heascertained after survey.—Admissibility of agreement inevidence—
Evidence Ordinance, s. 92.
Plaintiff sold defendant some pieces of land “ fixing (as the deedstated) the price thereof at Bs. 4,000, which amount £ (plaintiff)have counted and received in full. " The notary in his attestationcertified that out of the consideration a sum of Bs. 1,500 was paidin his presence, and that • “ an agreement receipt was given to settlethe balance afterwards. " According to the “ agreement receipt, "which was a contemporaneous document signed by the defendant,the consideration for the deed was a sum to be determined aftersurvey by the number ' of acres at the rate of Bs. 160 per acre.The plaintiff sued defendant for the balance sum of Bs. 2,500, andthe defendant pleadedthat the priceasascertainedby survey was
less than B«. 3,500, and claimed the sum overpaid (Bs. 280.50) inreconvention.
The DistrictJudgegave judgmentforplaintiff, holding that the
* receipt could not be proved.
Held, that the defendant should have been allowed to prove thereceipt.
“ Ae a partyto a contract couldseek to provewant or failure
of consideration,his opponent wouldnotbe boundby the recital
in the contract either, and it was competent to him, in answer tothe case made by the other side, to prove that the considerationwas different from that recited in the contract. *'
'J1 HE facts are set out in the headnote.
Bqwq K.C. (with him Ganakeratne), for appellant.
Hay ley. for respondent.
Our. adv .vult.
August 7. 1917. Ennis J.—
In this case the plaintiff sued for the recovery of Rs. 2,500, thebalance due on the sale of certain land. The deed of conveyancedeclared that the parties had fixed the price at Rs. 4,000, and theplaintiff in the deed acknowledged that he had counted and receivedthis amount in full. The notary in the attestation said that a sumcf Rs. 1,500 was paid in his presence, and that "an agreementreceipt was given to settle the balance afterwards/" The receipt issaid to contain a variation of the price, viz., Rs. 150 per acre,instead qi Rs. 4,000.
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191?.
Stans J.
Kiri Bandav. Marikar
On a preliminary issue as to whether this receipt was admissiblein evidence, the learned Judge gave judgment for the plaintiffholding that the receipt could not be proved.
I .am of opinion that in the circumstances of the case the defendantshould have been allowed to prove this document. Before theplaintiff culd succeed in his action, it was, necessary for him toshow that he had not received the Rs. 4,000, and to contradictthe statement that he had counted and received the sum. In thecase of Mukhunlal v. Srikrishna Singh1 the Privy Council said:
When one partyis permitted to remove the blind which
hides the real transaction the maxim applies that a man
cannot both affirm and disaffirm the same transaction, show itstrue nature for his own relief, and insist upon its apparent characterto prejudice his adversary .. The maxim is founded not so
much on any positive law as on the broad and universally applicableprinciples of justice.”
In the present case the plaintiff seeks to show that part of thesum of Re. 4,000 has not been paid in relief against his own state-ment that it had been paid, and he should not be permitted to stopthe defendant from showing that no sum is, in truth, due.
I would set aside, with costs, the decree appealed from, and sendthe case back for hearing in due course.
De Sampayo J.—
I am of the same opinion. By deed No. 14,476 dated April 4,1916, the plaintiff sold the defendant six contiguous allotments ofland, “ fixing (as the deed stated) the price thereof at Rs. 4,000lawful currency of Ceylon, which amount I (the plaintiff) havecounted and received in full. ” The plaintiff, admitting the receiptof Rs. 1,500 only, has brought this action to recover from thedefendant the balance sum of Rs. 2,500. The notary in hisattestation certified that out of the consideration a sum of Rs. 1,500was*paid in his presence, and that “ An agreement receipt was givento settle the.balance afterwards.” The ” agreement receipt ” herereferred to was a contemporaneous document signed by thedefendant. The extent of the allotments of land dealt with weregiven in the deed in terms of Sinhalese land measurement, and,according to the “ agreement receipt, ” the consideration for thedeed was a sum to be determined by the number of acres, at therate of Rs. 150 per acre, when the allotments of land shall havebeen surveyed. The defendant pleads that this was the real.agreement between the parties, though the lump sum of Rs. 4,000was mentioned in the deed, and that the lands have since beensurveyed and found to contain 8 acres 2 roods and .35 perches, andaccordingly, in answer to the plaintiff’s claim, he says that he has- infact overpaid Rs. 230.50, which he claims in reconvention. At the
1 {1869) 12 Moore I. A. 157.
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trial the District Judge upheld an qbjection taken by the plaintiffto the production of the “ agreement receipt ” and the reception ofparol evidence to prove that the consideration was different from"that stated in the deed itself, and judgment was entered for plaintiffwith costs of action.
Section 92 of the Ceylon Evidence Ordinance, 1895, now containsthe law as to the admissibility of parol evidence, when the terms ofany contract, grant, or other disposition of property have been^reduced to the form of a document. In such a case it enacts,subject to certain provisos, that no evidence of any oral agreementor statement shay, be admitted for the purpose of contradicting,varying, adding to, or subtracting from the terms of the document.Proviso (1), however, allows any fact to be proved ** which wouldinvalidate any document, or which woi^d entitle any person to anydecree or order relating thereto, ” and among- the facts that may beso proved is want or failure of consideration. " Under this provisoit is open to a vendor to prove that the consideration was not paid,though the deed may contain an acknowledgment of its receipt.But if he seeks to do so, and to go behind his own acknowledgment,the vendee must be allowed also to show the actual agreementbetween the parties. The principle as laid down by the PrivyCouncil in Mukhunlal v. Srikrishna Singh1 is that a mancannot both affirm and disaffirm the same transaction, show its% true nature for his own relief, and insist on its apparent characterto prejudice his adversary. ” Applying this principle to the operationof proviso (1) of section 92 of the Indian Evidence Act, of whichour Evidence Ordinance is a copy, the High Court of Calcuttadecided in Lala Hiramath v. Llewhallen 2 that, as a party to a contractcould seek to prove want or failure of consideration, his opponentwould not be bound by the recital in the contract either, and it wascompetent to him, in answer to the case made by the other side, toprove that the consideration was different from that recited in thecontract. See also Hukam Chand v. Hira Lai 3 on the same point.The Privy Council said in Mukhunlal v. Srikrishna Singh (supra)
• that the maxim or rule to which they referred was “ foundednot so much on any positive law as on the broad and universally, applicable principles of justice,” and even if proviso (1) of section 92cf the Ordinance does not contain an express provision on thispoint, I think that, taking those principles of justice as a guide,we ought to hold, as the Indian Courts have done, that it is competentfor a party in the position of the defendant in this case to prove thetrue consideration for the deed, and to set up any defence arisingtherefrom. It should, however, be noted that illegality, want ofconsideration, and certain other matters, with regard to whichparol evidence is admissible, are mentioned in the proviso by way
(1869) 12 Moore I. A. 157.8 (1885) /. L. 22. 11 Cal. 486.
* (1876) /. L. 22. 3 Bom. 159.
1917.
De Sampavo
JF.
Kiri Bandav. Marihar
13-
1M7
Db BampatoJ.
Kiri Banda
«. Marikar
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of illustration only, introduced as they are by the words “ suoh as."These cases are not exhaustive. The fact of the parties havingagreed upon a different consideration from that stated in the deedis One (to use the words of section 92) " which would entitle thedefendant to a decree or order,’’ and I think, therefore, that there ispositive law as well as principle in support of the above holding.
I agree that the judgment should be set aside with costs, and thatthe case should be sent back for trial on the other issues.
Set aside and sent back.