JUDGMENT : BANERJI, J. The suit out of which this appeal has arisen was brought by the appellant to recover one-fourth of the amount alleged to have been paid by the second defendant to the first defendant as consideration for the sale of a house. The plaintiff based his claim upon a custom prevailing in the locality. The document by which the property was conveyed by the first defendant to the second defendant purported to be a deed of usufructuary mortgage. But it was stated by the plaintiff that the transaction between the parties was in reality a sale, and that in order to defeat his claim and to perpetrate a fraud upon him, the document had been drawn up ostensibly as a usufructuary mortgage. Both the Courts below have held that the plaintiff was not entitled to give evidence to prove that the transaction was in reality a sale and not a mortgage as on the face of the deed it appeared to be, and they have based their opinion upon the provisions of section 92 of the Evidence Act. In my judgment the Courts below are wrong. Section 92 forbids the admission of evidence of an oral agreement for the purpose of contradicting, varying, adding to, or subtracting from, the terms of a written document as between the parties to such document or their representatives in interest. The rule of exclusion laid down in the section does not apply to the case of a third party who is not a party to the document. On the contrary, section 99 distinctly provides that persons who are not parties to a document may give evidence tending to show a contemporaneous agreement varying the terms of the document. Further, as fraud was alleged in this case, even if the plaintiff were a party to the document, he would under the first proviso of section 92 be entitled to give evidence as to the fraud and as to the real nature of the transaction. The Courts below have relied for their decision upon the ruling of the Calcutta High Court in Rahiman v. Elahi Baksh,[1900] I.L.R., 28 Cal., 70. That case no doubt supports the view of the Courts below. But with great deference I am unable to agree with it. The Courts below have relied for their decision upon the ruling of the Calcutta High Court in Rahiman v. Elahi Baksh,[1900] I.L.R., 28 Cal., 70. That case no doubt supports the view of the Courts below. But with great deference I am unable to agree with it. The learned Judges do not appear to have given effect to the provisions of section 99, and apparently did not consider that section 92 only precludes parties to an instrument or their representatives in interest from giving oral evidence for the purpose of contradicting or varying the terms of a written document. This case was not followed by the same Court in Jagat Mohini Dasi v. Rakhal Das Bisazi,[1905] 2 C.L.J., 338 and the correctness of it was doubted. It was also dissented from by the Madras High Court in Pathammal v. Bayed Kalai Ravuthar,[1903] I.L.R., 27 Mad., 329. The two cases last mentioned support the view I have taken above. I accordingly allow the appeal, set aside the decrees of the Courts below and remand the case to the Court of first instance under section 562 of the Code of Civil Procedure for trial on the merits. The appellant will have his costs of this appeal. Other costs will follow the event.