Muhammad Sultan Mohideen Ahmed Ansari alias Chand Badsha vs Amathul Jalal alias Achi Bibi Saheba

Devadoss, J.—The father of plaintiff and defendant purchased some property under Ex. I on 15th October, 1897. It appears from the

original sale deed that in the preamble the names of both the plaintiff and defendant were entered and in the body of the document it was recited

that Schedule A properties were to go to the plaintiff and B schedule properties were to go to the defendant, but when it was taken for registration

the Sub-Registrar seems to have objected to the recitals that the Schedules A and B should be separately enjoyed by the two vendees and

thereupon the clauses relating to the separate enjoyment of the two schedules were scored out. The father in pursuance of his intention that the

plaintiff should enjoy one schedule and the defendant the other seems to have asked the Municipal authorities to register the two schedules in the

separate names of the plaintiff and defendant. The present contention of the appellant is that, inasmuch as the sale deed was taken in the joint

names of both the plaintiff and defendant, each of them is entitled to a moiety of the whole property, and no evidence could be adduced to show

what the father intended that each should take. The argument of Mr. Lakshmanna is that Section 92 of the Indian Evidence Act is a bar to any

evidence being let in to show what the father intended. The document is silent as to the share of the plaintiff and the defendant. Reading the

document as a whole as it stands it simply means that property was purchased by the father in the names of the plaintiff and the defendant who

were minors at that time. The mere fact that the document stands in the name of two persons does not prevent either of them from showing to what

share each of them is entitled to. If both of them were majors I don''t think it could be contended with any show of reason that the vendees could

not adduce evidence as to the share that each intended or is entitled to take. That would depend upon the arrangement among the vendees.In this

case both the vendees being minors,the father''s intention as to in what way the property should be enjoyed could certainly be proved. His intention

before the document was executed and his conduct in carrying out his intention after the execution of the document could be proved. What Section

92 prohibits is the proof of any contemporaneous oral agreement between the parties in variance of the terms of the document. Section 92 runs as

follows:

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 shaft 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.

Now the arrangement that is proved is not against the terms of the document which evidences a completed contract of sale. As it does not in so

many words refer to the share or the portion that the plaintiff and defendant should take I fail to see how Section 92 could be a bar to the proof of

facts which would establish the right of the plaintiff and the defendant to the separate items of property conveyed to them. This point has been

specifically dealt with in Mulchand v. Madho Ram (1888) 1 1 R 10 A 421 and I do not see any reason to differ from the conclusion arrived at by

the learned Judges in that case. The extension of the principle of Section 92 as contended for by Mr. Lakshmanna would lead to this result. If two

persons buy some property in their joint names without defining their share in it then they would not be able to prove afterwards what"" share each

is entitled to. That is not the object of Section 92. That being so, I dismiss the Second Appeal with costs.