1. In this appeal, which arises out of a suit forestablishment of the plaintiffs right and for confirmation of their possessionin respect of certain Immovable property, two questions have been raised by thelearned Vakil for the defendant-appellant, first, whether the Court of Appealbelow was right in admitting extrinsic evidence to show that a certainconveyance was really a mortgage by way of conditional sale, and second,whether the Court of Appeal below was right in holding that there could be avalid surrender of an occupancy holding without a written document.

2. Upon the first question this is how the matter stands.The extrinsic evidence that was admitted was evidence of the acts and conductof the parties, that is, evidence of the repayment of the money, the return ofthe deed, and the exercise of acts of possession by the vendor, and notevidence of any oral agreements or statements by the parties, and it was notdisputed in the argument before us that that was the case. If that was so, theevidence would be admissible, as Section 92 of the Evidence Act does not excludethe evidence of acts and conduct of the parties. The view we take is supportedby a Full Bench decision of this Court in the case of Preonath Saha v. MadhuSudan Bhuiya I.L.R.(1898) 25 Cal. 603.

3. It was contended by the learned Vakil for the appellantthat that decision roust be taken to have been in effect overruled by thedecision of the Privy Council in the case of Balkishen Das v. Legge. We do not consider this argument sound. The evidence thattheir Lordships considered inadmissible in the case just referred to wascertain oral evidence of intention, which had been admitted in the Courtsbelow, and the ground upon which their decision is based is that such evidenceis excluded by Section 92 of the Evidence Act. Their Lordships do not lay downany rule of exclusion of evidence over and above that contained in Section 92;and Section 92 of the Evidence Act, as we have already observed, whilst itexcludes evidence of any oral agreement or statement, does not exclude evidenceof the acts and conduct of the parties not being in the nature of an oralagreement or statement. To understand clearly the meaning of their Lordshipswhen they observe, "--Evidence of the respondent and of a person namedImam was admitted by the Subordinate Judge for the purpose of proving the realintention of the parties, and such evidence was to some extent relied on inboth Courts. Their Lordships do not think that oral evidence of intention wasadmissible for the purpose of construing the deeds or ascertaining theintention of the parties "--we have referred to the judgment of the HighCourt reported in Indian Law Reports, 19 Allahabad, 434, and we find that theevidence which is referred to as inadmissible consisted of the statements ofone of the parties to the transaction and of a pleader, which went to show thatat the time when the negotiations were going on, which led to the execution ofthe deeds under consideration, one of the parties said that he would notexecute the deed, unless it was a mortgage, and the other answered, and thatanswer was supported by the pleader, that the two deeds which they were goingto have would together amount to a mortgage only. That was adduced as evidenceof the intention of the parties, and that evidence was considered inadmissible.That evidence consisted only of oral statements of the parties, and thereforecomes directly within the scope of Section 92. There was no other evidence ofthe acts and conduct of the parties adduced in that case, which was consideredby the Privy Council. We are, therefore, of opinion that the case of BalkishenDas v. Legge does not in any way affect the rule laid down inthe case of Preonaih Shaha v. Madhu Sudan Bhuiya I.L.R(1898) . 25 Cal. 603. Thefirst question raised in this appeal must therefore be answered in theaffirmative.

4. As to the second question, there is nothing in Section 86of the Bengal Tenancy Act, which contains the provisions of the Act relating tosurrender of a ryots holding, to show that such surrender must be in writing.It was argued that as the surrender was made in consideration of the remissionof certain arrears of rent, it should be viewed in the light of a transfer bysale of the ryots occupancy rights,- for which a writing was necessary. Onesimple answer to this argument is this, that it proceeds upon an erroneousassumption that an occupancy right is always transferable by sale. The secondquestion must also, therefore, be answered in the affirmative.

5. That being so, the appeal fails, and must be dismissedwith costs.

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Khankar Abdur Rahmanvs. Ali Hafez and Ors.(12.12.1900 - CALHC)