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TMI Blog1958 (2) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... is wife and three sons who are the appellants before us. In reply to the notice of motion appellants I to 3 filed a joint affidavit setting out the facts and circumstances under which the said deed of gift had been executed by the insolvent in their favour. In substance, the appellants' case was that, though the document purported to be a gift, it was really a transaction supported by valuable con- sideration and as such it did not fall within the mischief of s. 55 of the Act. At the hearing of this notice of motion before Mr. Justice Coyajee, when the appellants sought to lead evidence in support of this plea, the respondent objected and urged that the evidence which the appellants wanted to lead was inadmissible under s. 92 of the Indian Evidence Act. The learned Judge, however, overruled the respondent's objection and allowed the appellants to lead their evidence. In the end the learned Judge did not accept the appellants' contention and, by his judgment delivered on January 28, 1954, he granted the declaration claimed by the respondent under s. 55 of the Act. Against this judgment and order the appellants preferred an appeal (No. 30 of 1954) which was heard by Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e best evidence about the contents of a document is the document itself and it is the production of the document that is required by s. 91 in proof of its contents. In a sense, the rule enunciated by s. 91 can be said to be an exclusive rule inasmuch as it excludes the admission of oral evidence for proving the contents of the document except in cases where secondary evidence is allowed to be led under the relevant provisions of the Evidence Act. Section 92 excludes the evidence of oral agreements and it applies to cases where the terms of contracts, grants or other dispositions of property have been proved by the production of the relevant documents themselves under s. 91 ; in other words' it is after the document has been produced to prove its terms under s. 91 that the provisions of s. 92 come into operation for the purpose of excluding evidence of any oral agreement or statement, for the purpose of contradicting, varying, adding to or subtracting from its terms. The application of this rule is limited to cases as between parties to the instrument or their representatives in interest. There are six provisos to this section with which we are not concerned in the present appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight to lead oral evidence, it would be necessary to examine whether s. 92 applies at all to the present proceedings between the official assignee who is the respondent and the donees from the insolvent who are the appellants before us. Does the official assignee represent the insolvent, and can he be described as the representative-ininterest of the insolvent, when he moves the Insolvency Court under s. 55 of the Presidency-towns Insolvency Act ? It is true that, under s. 17 of the Act, on the making of an order of adjudication, the property of the insolvent wherever situate vests in the official assignee and becomes divisible among his creditors; but the property in respect of which a declaration is claimed by the official assignee under s. 55 has already gone out of the estate of the insolvent, and it cannot be said to vest in the official assignee as a result of the order of adjudication itself. Besides, when the official assignee makes the petition under s. 55 he does so obviously and solely for the benefit of the creditors. An insolvent himself has, and can possibly have, no right to challenge the transfer effected by him. In this respect the official assignee has a higher ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to hold that, when the official assignee makes a petition under s. 55 of the Act, he is acting as a representative-ininterest of the insolvent. In this connection it would be relevant to remember that, in cases governed by the Presidency-towns Insolvency Act, the practice in Calcutta and Bombay consistently allows a creditor who has proved his debt to file a petition to set aside the transfer under s. 55 of the Act if he shows that the official assignee, on being tendered a reasonable indemnity has unreasonably refused to make an application. Similarly, under s. 54-A of the Provincial Insolvency Act, a creditor himself can make the application if the receiver refuses to take any action. Now, if an application is made by a creditor for setting aside a voluntary transfer effected by the insolvent, there can be no doubt that the creditor is not the representative-in-interest of the insolvent and the creditor would obviously not be affected by the provisions of s. 92 of the Indian Evidence Act. It would really be anomalous if s. 92 were to apply to proceedings instituted by the official assignee under s. 55 though the said section cannot and would not apply to similar proceedings i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n oral agreement is a matter which is not covered by s. 91 at all. That is the subject-matter of s. 92; and so, if s. 92 does not apply, there is no reason to exclude evidence about an oral agreement solely on the ground that if believed the said evidence may vary the terms of the transaction. Shri Purushottam 'also relied upon the provi- sions of s. 99. His argument is that it is only persons who are not parties to a document or their representatives in interest who are allowed by s. 99 to give evidence of facts tending to show a contemporaneous agreement varying the terms of the document. lit other words, the effect of s. 99 is not only to allow strangers to lead such evidence, but to prohibit parties or their representatives-in-interest from leading such evidence independently of tile provisions of s. 92 of the Evidence Act. We do not read s. 99 as laying down any such prohibition by necessary implication. As a matter of fact, from the terms of s. 92 itself, it is clear that strangers to the document are outside the scope of s. 92 ; but s. 99 has presumably been enacted to clarify the same position. It would be unreasonable, we think, to hold that s. 99 was intended not only ..... X X X X Extracts X X X X X X X X Extracts X X X X
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