JUDGMENT Mukerji, J.
1. The plaintiffs, through their mother, and certain relations transferred to the defendant-appellant two items of property, one being landed property and the other being certain houses occupied by tenants. The present suit was brought by the plaintiff-respondents to obtain a declaration that the house property was never intended to be sold and to be purchased and that, therefore, the plaintiff's title to the property remains intact. In the alternative the plaintiffs ask for delivery of possession. The defence was that parties did in fact intend to sell and did sell the house property and the defendant is the owner of the property and he is in possession of the same. The Court of first instance dismissed the suit. The Court below has decreed the suit for possession with respect of one-half of the property on the ground that the plaintiffs' title extended to only a half share. The Court found that the plaintiffs were out of possession.
2. In this Court, it has been contended that it was not open to the plaintiffs to prove the oral agreement set up by them which was calculated to contradict the registered sale-deed. It is further urged that if the plaintiffs' case be true, the parties were equally to blame for perpetrating a fraud on the law of Registration and, therefore, the plaintiffs were not entitled to any relief from a Court of justice. There is a cross-objection on behalf of the plaintiffs but it has not been pressed.
3. The first point has to be determined on a proper interpretation of two sections one of the Evidence Act, Section 92 and the other of Section 54, T.P. Act. The latter provision of law enacts that in the case of tangible immovable property of the value of Rs. 100 or more, a sale can be effected by a registered instrument. This means that on the execution of the document of sale and the registration of it, title passes from the vendor to the vendee. Section 92, Evidence Act lays down:
When the terms of a 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 (that is to say, by the production of the original document), no evidence of any oral agreement or statement shall be admitted as between the parties to such instrument or their representatives-in-interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms.
4. What the plaintiffs plead is this and nothing less than this. They say that when the plaintiffs' mother and relations agreed to sell the property and executed the sale-deed, the vendors and the vendee agreed that in spite of the execution of the sale-deed, title to one of the properties, ostensibly sold, shall not pass to the vendee. This is an oral agreement. It is true that some documentary evidence has been led to prove this oral agreement. The sale-deed was executed on 1st September 1920. On 6th September 1920, the vendee gave a note (unstamped) one to each of the three vendees, saying that he would reconvey the house property to the vendors, as the same had been entered in the sale-deed for purposes of registration. The notes were antedated and the date of the sale-deed was put down. But the section, as I understand it, excludes evidence of all sorts, oral and documentary, when what is sought to be proved is an oral agreement or oral statement. This agreement, if it existed, must have existed on 1st September 1920.
5. The learned Counsel for the respondents relies on proviso (1) of Section 92 and argues that he is entitled to prove under that proviso, such facts as would invalidate the document and, therefore, he is entitled to prove that the portion of the property that was within the jurisdiction of the Sub-Registrar, was not meant to be sold and, therefore, the Sub-Registrar had no jurisdiction to register the document and further, therefore, the sale deed was invalid in law, as it required a valid registration. As I read proviso (1) of Section 92, the learned Counsel's argument does not find any place into that proviso. The illustrative words are:
fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law.
6. They explain what is meant by the proviso. The illustrations may not be exhaustive. I express no opinion on the point, but they certainly indicate what was in the mind of the legislature. They indicate that certain independent facts, although they may be intimately connected, may be proved, which would take away from the document its normal value.
7. The learned Counsel has cited the case of G Narsimha Rao v. G. Papunna [1920] 43 Mad. 486, but that case does not discuss Section 92 at all. The case went up before the High Court as a second appeal and there was the finding of fact that a certain very small piece of property had been entered in the sale-deed simply with a view to obtain registration of the document at a particular place. On that finding of fact it was held that the registration was void. This case is no authority for the question which I have to decide, namely, whether it is open to a party to a registered sale-deed to prove an oral agreement, contemporaneous with the sale-deed, that in spite of a certain property, belonging to the vendor, being entered in the sale-deed, title to it would not pass to the vendee. In my opinion, the law does not grant such an opportunity to a party and if it did, the result would be simply disastrous.
8. The second contention of the appellant is equally good. If the facts, as alleged by the plaintiffs, be true, namely, the parties intended to hoodwink the Sub-Registrar by entering a piece of property within his jurisdiction in the sale-deed, in order to give that officer jurisdiction the parties contemplated a fraud on the law of registration. That being so, the plaintiffs should not be granted any relief in a Court of justice. In either view of the case, the plaintiffs' suit should have been dismissed. I allow the appeal, set aside the decree of the Court below and dismiss the plaintiffs' suit with costs throughout. The cross-objection is also dismissed with costs. The respondents' counsel asks leave to appeal and it is granted.