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TMI Blog1935 (12) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... ce she was willing to accept this sum although it was much below what would be legitimately due to her. 2. 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, ₹ 50,00,000, but had been living separately and enjoying the said lands in separate portions; and that in consequence, on Ramalinga's 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 widow's 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 December 28, 1912, by the plaintiff and by Somasundara affirming the undivided status of the family and purporting to make provision for the plaintiff's maintenance. It was, however distinctly understood that this document was not to be the final contract for the plaintiff's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which case his widow would be entitled for life to one-half of the family properties. 6. 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 such. 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 Such. B. In consideration of this provision she relinquished her claims for maintenance. The annual income of the lands set apart for her was between ₹ 2,000 and ₹ 2,500, only ₹ 200 a mouth; and, as regards the house in B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 291 : 5 Sar. 444 : 13 Ind. Jur. 70 (PC). , 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 kabaliyat 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. 10. 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 been 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition 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. 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. 13. When a contract has been reduced to the form of a document, Section 91 excludes oral evidence of the terms of the do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 1 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 amino contravened, 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 b. 92 : The existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract . . . may be prove ..... X X X X Extracts X X X X X X X X Extracts X X X X
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