Judgement Appeal from a decree of the High Court (June 2, 1896) reversing a decree of the Subordinate Judge at Agra (June 13, 1893). The suit was brought to recover from the appellant the sum of Rs. 33,133 5a. 3p., as the balance of the amount of consideration for a sale deed dated February 18, 1888. The First Court dismissed the suit, but the High Court decreed the respondents claim with costs. The plaint, which was filed on December 6, 1892, narrated that the respondent was sole heir to Jiwa Earn, deceased, and had become entitled to possession of all his estates on the death of his widow Incha Kuar, that the widow had affected to dispose of the estate by will in favour of persons who had gained possession thereof, and alleged in its 4th paragraph that, in order to defray the costs of the litigation thereby rendered necessary and other incidental expenses, the respondent had sold to the defendants, Sah Lal Chand and Kesar Kuar, by a sale deed dated February 18, 1888, half of the said estate for Rs. 30,000, the price to remain in deposit with the defendants, who, it was agreed, were to join the respondent in a suit to recover the whole estate, defray the whole costs thereof, and, after deducting the respondents moiety from the said price in deposit, pay the balance thereof to the respondent, after obtaining a decree in ejectment from the First or Appellate Court. It being common ground between the parties that the sale consideration was Rs. 30,000, and that the same was produced, and changed hands, before the Registrar, the issue of fact was solely whether it was actually paid down at the date of the deed, or whether the real arrangement was that it was to be paid on the recovery of the property, less the respondents share of the costs of recovery. The Subordinate Judge dismissed the suit, on the ground that the plaintiff had not proved an agreement to defer payment till after the recovery of the property; for, if made, it ought to have been reduced to writing ; nor had he proved the return of the money to the defendants after registration. The Subordinate Judge dismissed the suit, on the ground that the plaintiff had not proved an agreement to defer payment till after the recovery of the property; for, if made, it ought to have been reduced to writing ; nor had he proved the return of the money to the defendants after registration. He found, contrary to the pleadings and evidence of both parties, that the real agreement was one " for engaging in litigation, the defendants, in consideration of their defraying the expenses of that litigation, to have half the property." The High Court found that the case for the plaintiff was proved. There was no sufficient reason for disbelieving his witnesses. His case was consistent with probabilities, and the finding of the Subordinate Judge was opposed to the evidence on both sides, and improbable. They considered the genuine and undisputed account-books produced by the defendants to be decisive on the real issue between the parties. The items making up the Rs. 30,000 were absent from those accounts, and no sufficient explanation of their absence was given. Boss, for the appellant, contended that the High Court erred in admitting evidence of an oral agreement which contradicted and varied the terms of the registered sale deed. Sect. 92 of Act I. of 1892 rendered such oral evidence inadmissible. It was, moreover, unworthy of credit when admitted. Cowell, for the respondent, contended that the evidence admitted in this case did not vary the terms of the deed and was within the meaning of s. 91 of the Act, explanation 3 and s. 92, provisoes 1 and 2. It was. settled law that a recital as to payment of consideration money in a sale deed was not conclusive, but could be contradicted by proof of the actual transaction see Hukum Chand v. Hiralal (( 1876) lnd. L. R. 3 Bomb. 159.); Lala Himmat Sahai Singh v. Llewhellen. (( 1885) Ind. L. R. 11 Calc. 486.) Ross replied. The judgment of their Lordships was delivered by LORD DAVEY. In this case the respondent sued the appellant and another person for & sum of Rs. 33,133 5a. 3p. alleged to be due to the respondent as the balance of the consideration for a certain sale deed dated February 18, 1888. L. R. 11 Calc. 486.) Ross replied. The judgment of their Lordships was delivered by LORD DAVEY. In this case the respondent sued the appellant and another person for & sum of Rs. 33,133 5a. 3p. alleged to be due to the respondent as the balance of the consideration for a certain sale deed dated February 18, 1888. The First Court dismissed the suit, but on appeal the High Court of Allahabad, by its decree dated June 2, 1896, reversed the decree of the Subordinate Judge, and gave judgment for the respondent with costs. By the sale deed in question, after recitals that the respondent became entitled on the death of his maternal grandmother to the estate of his maternal grandfather, Jiwa Ram, but strangers had got possession of the estate, and the respondent had not the necessary means of prosecuting a suit against them, and that he had therefore sold a moiety of the property for Rs. 30,000, as to six annas to Sah Lal Chand and as to two annas to Mussammat Kesar Kuar, and that he had received the entire consideration with reference to the share of each vendee in the manner detailed below, it was agreed that the vendees should institute a claim in the Court of the Subordinate Judge of Agra District jointly with the respondent to recover possession and enter into possession of the property decreed jointly with him and take mesne profits of their share. And the respondent agreed that after the institution of the suit he would not make any settlement with respect to the subject-matter of the claim, or withdraw the claim or get the case settled by arbitration without the consent of the vendees. If the decision of the Court should be un-favourable, the respondent was to bear the costs of the opposite party, and repay the consideration and be responsible for the costs incurred. The consideration money of Rs. 30,000 was stated to have been received from the vendees in the following manner— Rs. If the decision of the Court should be un-favourable, the respondent was to bear the costs of the opposite party, and repay the consideration and be responsible for the costs incurred. The consideration money of Rs. 30,000 was stated to have been received from the vendees in the following manner— Rs. Received in cash at time of registration 25,000 By set-off against a previous debt due in 3,000 respect of five rukkas Caused to be paid Chandi Parshad and Jagan 2,000 Parshad 30,000 In May, 1888, the respondent brought a suit for the recovery of Jiwa Rams property jointly with the appellant and Kesar Kuar, and a decree was made in their favour by the Judge of First Instance, which was affirmed by the High Court on May 26, 1891. They subsequently executed the decree and obtained possession of the property. By his plaint in the present suit, which was filed on December 6, 1892, the respondent alleged that the three items in which the consideration of the sale deed was said to have been paid were fictitious, and that the money which was produced at the time of registration went back to Sah Lal Chand, and no item was due from the respondent under old accounts, nor was anything paid on respondents behalf to Chandi Parshad and Jagan Parshad. And the respondent alleged that the sale con sideration was left with the vendees subject to the condition that the vendees should bear half the costs of the proposed suit and defray the other half (i.e., the respondents share) out of the consideration money, and after obtaining a decree in the First or the Appellate Court pay the respondent the balance (if any). The respondent named the expiry of the time allowed for an appeal to Her Majesty on January 15, 1892, as the date of accrual of cause of action. The appellant by his written statement denied the facts alleged by the respondent and pleaded that the claim was barred by time. Both Courts have agreed that no part of the consideration money was paid to or on account of the respondent, and their Lordships need not say more on that subject than that they agree with the finding. The Subordinate Judge, however, held that the respondent had not made out by evidence the agree ment alleged by him, and his suit must therefore fail. The Subordinate Judge, however, held that the respondent had not made out by evidence the agree ment alleged by him, and his suit must therefore fail. The High Court, on the other hand, held that the respondents story was in accordance with the probabilities of the case, and was sufficiently proved by the evidence adduced by him. In this case no question of limitation arises. The learned judges have very fully and carefully stated and commented on the evidence of the respondent and his witnesses. Their Lordships agree with the conclusions of the learned judges on the question of fact and with the reasons which they have given for accepting the respondents story as true. The point which was chiefly pressed on their Lordships by the learned counsel for the appellant was also raised in the High Court and considered by the learned judges—namely, that no evidence should have been received of the agreement alleged by the respondent, because it varied or contradicted the written contract, and was therefore inadmissible under b. 92 of the Evidence Act. Their Lordships, agreeing with the High Court, regard it as settled law that, notwithstanding an admission in a sale deed that the consideration has been received, it is open to the vendor to prove that no consideration has been actually paid. If it was not so, facilities would be afforded for the grossest frauds. The Evidence Act does not say that no statement of fact in a written instrument may be contradicted by oral evidence, but that the terms of the contract may not be varied, &c. The contract was to, sell for Rs. 30,000, which was erroneously stated to have been paid, and it was competent for the respondent, without infringing any provision of the Act, to prove a collateral agreement that the purchase-money should remain in the appellants hands for the purposes and subject to the conditions stated by the respondent. This objection, therefore, fails. Their Lordships will humbly advise Her Majesty that this appeal be dismissed. The appellant will pay the costs of it.