Sir John Wallis, J.

1. The Plaintiff Vedathanni, widow of the late Ramalinga Mudaliyar, who died without issue on the 23rd December, 1912, instituted this suit on the 25th July, 1925, in the Court of the Subordinate Judge of Negapatam, against the two widows of T. Somasundara Mudaliyar, her husbands brother, who had survived him, impleading also the minor 3rd Defendant who had been adopted by the junior widow on the 1st July, 1925, and Defendants 4 and 5 who had been appointed receivers of the family properties in the suit instituted by the 1st Defendant disputing the adoption. The Plaintiff claimed to recover arrears of maintenance from the 1st January, 1914, when she began to live separately from her husbands family, at the rate of Rs. 10,000 a year. It was stated in the plaint that the ante-adoption deed executed on behalf of the minor 3rd Defendant by his natural father on the 21st June, 1925, in favour of the adopting widow, had made a provision for the Plaintiffs maintenance which would work out at Rs. 10,000 a year, and in the interests of peace she was willing to accept this sum although it was much below what would be legitimately due to her. It was alleged in the plaint that the two brothers Somasundara and Ramalinga Mudaliyar were members of an undivided Hindu family and owned extensive movable and immovable properties in the Tanjore District of the approximate value of about 50 lakhs, Rs. 50,00,000, but had been living separately and enjoying the said lands in separate portions; and that in consequence, on Ramalingas death, Somasundara, the surviving brother, feeling nervous as to the possibility of his widow, the Plaintiff, setting up the case that the brothers had separated and that the Plaintiff was accordingly entitled to a widows estate in one half of the family properties, was anxious that a document should be executed evidencing the undivided status of the family. With this object, a document was executed on the 28th December, 191:, by the Plaintiff and by Somasundara affirming the undivided status of the family and purporting to make provision for the Plaintiffs maintenance. It was, however, distinctly understood that this document was not to be the final contract for the Plaintiffs maintenance but was solely intended as a voucher establishing the joint undivided nature of the family, it being agreed that the Plaintiffs claim for maintenance on a scale commensurate with the position and status of the family was to be left over for future settlement at leisure. Consequently the provision for maintenance in the deed was never given effect to or acted on by the parties, and Somasundara continued in possession and enjoyment of all the. family properties until his death on the 17th January, 1925. The Plaintiff had lived separately from her husbands family from the beginning of 1914 (being maintained as appeared from the evidence by her own family) and had repeatedly asked Somasundara to make due provision for her maintenance. He had repeatedly promised to do so, but died without having made any such provision or paid her anything for her maintenance.

2. The 1st Defendant did not file any written statement, and the 2nd Defendant, in a joint written statement filed on behalf of herself and the minor 3rd Defendant, put the Plaintiff to the proof of the allegations in the plaint. She stated that she was informed and believed that for several years past the Plaintiff had not received any income from the lands set apart for her maintenance, and was therefore entitled to the mesne profits in respect of past maintenance. As regards the future, she admitted the execution of the ante-adoption deed making provision for the Plaintiff, and, as the matter concerned the estate of the minor 3rd Defendant, she left the Court to fix such maintenance as might be deemed reasonable.

3. The family admittedly owned 1,500 velis of wet and dry land of the approximate value of no less than 50 lakhs of rupees which they had apparently acquired in the course of their money-lending business by buying up the holdings of ryots with whom the land revenue had been temporarily settled under the ryotwari system prevailing in Tanjore. They also owned Several lakhs of rupees invested in the money-lending business.

4. Some time before the death of the Plaintiffs husband, the two brothers had divided their lands and begun to live separately, and according to the evidence the income from the lands in the husbands possession amounted to Rs. 70,000, all of which he spent. These facts were sufficient to raise a prima facie case of separation in which case his widow would be entitled for life to one-half of the family properties.

5. On his death in December, 1912, his elder brother, Somasundara, took control, had the body removed to his own house for funeral rites, and locked up the other house in which there was a box containing jewels of which the widow had the key. The widow, who went to live with him, disclaimed any intention of setting up a case of separation ; but there was always the possibility that her relations might persuade her to change her mind; and at his request she agreed to sign a document evidencing the undivided status of the family. He proceeded at once to have a deed of settlement drawn up by which from that day onwards she was to have the jewels in her possession as set out in the Schedule A with full powers of alienation ; and as soon as she decided to live apart from him, she was to enjoy for her life the income of the lands and to live in the house mentioned in Schedule B. In consideration of this provision she relinquished her claims for maintenance. The annual income of the lands set apart for her was between Ks. 2,000 and Rs. 2,500, only Rs. 200 a month ; and, as regards the house in Bazaar Street, Tiruvarur, the Plaintiff stated in her evidence that people of her status and condition of life could not live there at all.

6. There are concurrent findings of the Courts below that when this document was presented to her three days after her husbands death, she refused to sign it, and was only induced to do so two days later by representations that it would not be acted on, and was only intended to provide evidence of the undivided status of the family. It was held by both Courts on these facts that there was no agreement and therefore no contract.

7. There can be little doubt that if a suit had been brought in time, this agreement might have been set aside on the ground of fraud or undue influence. What happened, however, was that the Plaintiff retained the jewels which had all along been in her possession and that no effect was given to the provision for her maintenance. A year after her husbands death she went to live with her own people and has since been maintained by them. Somasundara died on the 17th January, 1925 ; and his junior widow, the 2nd Defendant, executed the ante-adoption deed in which provision was made for the Plaintiffs maintenance on the following 6th June, and adopted the minor 3rd Defendant on the 7th July ; and on the 21st December, the Plaintiff filed the present suit to recover arrears of maintenance at the rate already mentioned from the 1st January, 1914, when she ceased to live with her husbands family. As the arrears were claimed for less than 12 years the suit was in time.

8. The main question arising in this appeal is whether, as contended by the Appellants under the provisions of Sections 91 and 92 of the Indian Evidence Act, oral evidence was inadmissible to establish that it had been agreed that the provisions for the Plaintiffs maintenance were not to be acted on, as the document was only intended to create evidence of the undivided status of the family. The Madras High Court, from which this appeal comes, has repeatedly held such evidence to be admissible, and decisions to the same effect of the High Courts at Calcutta, Patna and Rangoon have been cited. There is, however, one decision of the Allahabad High Court the other way. In support of the admissibility of this evidence, the Respondents have also cited the decision of this Board in Pertab Chunder Ghose v. Moheudra Nath (1888) 16 I. A. 233, which came before Lord Watson, Sir Barnes Peacock and Sir Richard Couch. That was a suit by a zemindar to eject tenants under a kabuliyat which they had executed ; and their Lordships in a judgment dismissing the appeal which was delivered by Sir Richard Couch, observed that



if there was any stipulation in the kabuliyat which the Plaintiff told the tenants would not be enforced, they cannot be held to have assented to it, and the kabuliyat is not the real agreement between the parties, and the Plaintiff cannot sue upon it.

9. There was a finding that, when the Defendants objected to signing the kabuliyat on account of the stipulation entitling the zemindar to take khas possession at any time, they were told that it would not be acted on; and, as the experienced Counsel for the Appellants who contended that the learned Judges of the High Court were not justified in holding on that finding that the contracting parties were not of one mind as to the agreement, had not submitted that the oral evidence on which the finding was based was inadmissible to show that there was no agreement between the parties, it was unnecessary to deal with this question in the judgment of the Board. It may, however, in their Lordships opinion, be safely inferred that Sir Richard Couch and Sir Barnes Peacock were well acquainted with the provisions of the Indian Evidence Act and saw no objection to the reception of oral evidence to show that there was no agreement and therefore no contract.

10. The two relevant sections are as follows, the exceptions and explanations in Section 91 being omitted as having no bearing on the question:

91. When the terms of a contract, or of a grant or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.

92. 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 representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:



Proviso (1) Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want of failure of consideration, or mistake in fact or law.

Proviso (2). The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.

Proviso (3). The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved

Proviso (4). The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.

Proviso (5) Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:

Provided that the annexing of Such incident would not be repugnant to, or inconsistent with, the express terms of the contract.

Proviso (6). Any fact may be proved which shows in what manner the language of a document is related to existing facts.

11. There being no proviso in either section making oral evidence to show that there was no agreement and therefore no contract inadmissible, their Lordships will consider, in the first place, whether there is anything in the sections themselves to render it inadmissible, and, secondly, whether the terms of proviso 1 to Section 92 are not wide enough to make it admissible under that proviso.

12. When a contract has been reduced to the form of a document, Section 91 excludes oral evidence of the terms of the document by requiring those terms to be proved by the document itself unless otherwise expressly provided in the Act, and Section 92 excludes oral evidence for the purpose of contradicting, varying, adding to, or subtracting from such terms. Section 92 only excludes oral evidence to vary the terms of the written contract, and has no reference to the question whether the parties had agreed to contract on the terms set forth in the document. The objection must therefore be based on Section 91 which only excludes oral evidence as to the terms of a written contract. Clearly under that section a Defendant sued, as in the present case, upon a written contract purporting to be signed by him could not be precluded in disproof of such agreement from giving oral evidence that his signature was a forgery. In their Lordships opinion oral evidence in disproof of the agreement (1) that, as in Pym v. Campbell (2), the signed document was not to operate as an agreement until a specified condition was fulfilled, or (2) that as in the present case, the document was never intended to operate as an agreement but was brought into existence solely for the purpose of creating evidence of some other matter stands exactly on the same footing as evidence that the Defendants signature was forged.

13. In Pym v. Campbell (1856) 6 E. and B. 370, the Defendants were sued upon a written contract to purchase an invention, and Lord Compbell had ruled at the trial that on the plea denying the agreement oral evidence was admissible that it had been agreed between the parties before they signed that there was to be no agreement until the invention was approved by A. In his judgment discharging the rule nisi for a new trial, Lord Campbell said:



It was proved in the most satisfactory manner that before the paper was signed, it was explained to the Plaintiff that the Defendants did not intend the paper to be an agreement till A had been consulted and found to approve of the invention ; and that the paper was signed before he was seen only because it was not convenient for the Defendants to remain. The Plaintiff assented to this, and received the writing on those terms. That being proved, there was no agreement.

14. Erie J. who gave judgment first had dealt more fully with this question:



The point made is that there is a written agreement absolute on the face of it, and that evidence was admitted to show that it was conditional: and if that had been so it would have been wrong. But I am of opinion that the evidence showed that in fact there was never any agreement at all. The production of a paper purporting to be an agreement by a party with his signature attached, affords a strong presumption that it is his written agreement; and, if in fact he did sign the paper animo contrahendi, the terms contained in it are conclusive and cannot be varied by parol evidence ...but, if it be proved that in fact the paper was signed with the express intention that it should not be an agreement, the other party cannot fix it as an agreement upon those so signing The distinction in point of law is that evidence to vary the terms of an agreement in writing is not admissible, but evidence to show that there is not an agreement at all is admissible.

15. The Indian legislature has thought well to give statutory effect to the decision in Pym v. Campbell (2), in proviso 3 to Section 92:-The existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract ...may be proved"; and in Mottayappan v. Palani Goundan (1915) 38 Mad. 226, Benson and Sundara Ayyar JJ. have expressed the opinion that oral evidence to show that a document was never intended to operate according to its terms, but was brought into existence, as in the present case, solely for the purpose of creating evidence about some other matter is admissible under proviso 1 to Section 92, "any fact may be proved which would invalidate any document." This may well be so, but in their Lordships opinion, even if there were no provisoes to either section, the result in the present case would be the same, because there is nothing in either section to exclude oral evidence that there was no agreement between the parties and therefore no contract.

16. It was, also, contended that the case came within Section 92, because of the provision recognising the widows title to the jewels in her possession. The High Court have found that this provision was not intended to operate as an agreement, but was introduced to give verisimilitude to the document, it being usual to make such a provision in agreements for a widows maintenance. Further, it was held by this Board in the passage already cited from the judgment in Pertab Chunder Ghose v. Mohendra Nath (1888) 16 I.A. 233, that if the Defendants were told that any stipulation in the agreement would not be enforced, they could not be held to have assented to it. Consequently the document was not the real agreement between the parties, and the Plaintiff could not sue upon it.

17. In their Lordships opinion both the lower Courts were right in finding on the oral evidence in this case that there was no contract, and they will humbly advise His Majesty that the appeal be dismissed with costs.