Judgement APPEAL (No. 13 of 1934) from a judgment and decree of the High Court (March 17, 1932) affirming a judgment and decree of the Subordinate Judge of Negapatam (February 14, 1929). The question arising upon this appeal was whether the respondent, a Hindu widow, could maintain her suit for arrears of maintenance having regard to the terms of a document of December 28, 1912, which she pleaded was executed by her and her husbands brother with the object of evidencing the joint undivided status of the family. She alleged that the provision for her maintenance in the deed was never given effect to, and that it was intended to make a suitable provision in future for her maintenance. The main question was whether oral evidence was admissible, in view of s. 92 of the Indian Evidence Act, 1872, to prove facts inconsistent with the terms of the document of December 28, 1912. The facts and the relevant statutory provisions appear from the judgment of the Judicial Committee. The Subordinate Judge held that the respondent could give oral evidence with a view to establishing that the provision in the deed regarding her maintenance was not intended to be acted upon; and that the deed did not embody a final contract as to her maintenance which was left over for future settlement. Upon appeal to the High Court the learned judges (Sundaram Chetti and Curgenven JJ.) delivered separate concurring judgments dismissing the appeal. Sundaram Chetti J. held that the deed was executed nominally and that it was not intended to operate as a contract between the parties regarding maintenance, but was intended to secure the acknowledgment of the plaintiff as to the joint status of her husband and his brother. He held that in the circumstances oral evidence to prove such a case would be admissible and that the case did not fall under s. 92 of the Indian Evidence Act. Curgenven J. held that the plaintiff was entitled to arrears of maintenance that the document was a nominal contract and oral evidence was admissible. 1935. Nov. 5, 7. De Gruyther K.C. and Subba Row for the appellants. Curgenven J. held that the plaintiff was entitled to arrears of maintenance that the document was a nominal contract and oral evidence was admissible. 1935. Nov. 5, 7. De Gruyther K.C. and Subba Row for the appellants. The question is whether oral evidence could be given to show that the deed was not intended to embody a final arrangement fixing the respondents maintenance, and whether the evidence which has been given is admissible for the purpose of substantiating the claims she sets up. [Reference was made to ss.91 and 92 of the Indian Evidence Act, 1872, and to the provisos to those sections]. Proviso 3 does not touch the present case. The best course is to place the evidence before the Board for your Lordships to say whether it is admissible. Unless the respondent can bring herself within one of the provisos the evidence is inadmissible. Even though the law of England is quite different the Evidence Act must be followed Balkishen Das v. Legge.(( 1899) L. R. 27 I. A. 58, 59, 65.) [LORD THANKERTON There are concurrent findings against you]. This case really almost stands or falls on the view the Board takes about the respondents evidence to the effect that the reference in the deed to maintenance was not intended to be acted upon. The question is whether evidence of this kind is admissible for the purpose of varying the terms of the deed. Concurrent findings of fact cannot dispose of the question of the admissibility of evidence. Further, this is hear-say evidence and is not admissible. The evidence does contradict, vary, add to or subtract from the terms of the document. The Subordinate Judge took the view that it did not, and that the document was never intended to have any operation whatever. He cited various cases which he said would authorize the admission of the evidence. Amongst all those cases there is not one which would warrant what has been done. The document was not a sham. The Subordinate Judge took the view that it did not, and that the document was never intended to have any operation whatever. He cited various cases which he said would authorize the admission of the evidence. Amongst all those cases there is not one which would warrant what has been done. The document was not a sham. Pertab Chunder Ghose v. Mohendra Purkait (( 1889) L. R. 16 I. A. 233, 237.) was the only authority which consisted directly of an assertion that a document would not be enforced; in that case it was held that where one party induced another to enter into a contract on the faith of representations made to him, any one of which is untrue, the whole contract could be avoided as having been obtained fraudulently. In the present case the respondent did consent to sign the document knowing what the clauses in it were. In Balkishen Das v. Legge (1) it was decided that oral evidence was not admissible to say that the document was intended to be a mortgage. Direct evidence of the intention of the parties in regard to the terms of a document may not be given. Baijnath Singh v. Hajee Vally Mahomed Hajee Abba (( 1924) I.L.R. 3 R.(P.C.) 106) is no authority whatever for the purpose for which it was used by the judges below. In that case it was not oral evidence which was relied upon at all, but the correspondence and the circumstances in which the transaction was made. There is one case in my favour in India, and one against me. G. Ruthna Mudaliyar v. K. Arumuga Mudaliyar (( 1872) 7 M. H. C. R. 189.), even though it was decided before the Evidence Act, does not decide the point which the Subordinate Judge thinks it does. [The Evidence Act came into force on September 1, 1872.I That case was decided in August, 1872, and does not decide that you can give oral evidence to say, when there is a contract, that you agree to it on different terms. [The Evidence Act came into force on September 1, 1872.I That case was decided in August, 1872, and does not decide that you can give oral evidence to say, when there is a contract, that you agree to it on different terms. In Lachman Das v. Ram Prasad(( 1927) I. L. R. 49 A. 680.) Ashworth J. disapproved the dictum in Woodroffe and Ameer Alis commentary on the Indian Evidence Act, namely, " though evidence to vary the terms of an agreement in writing is not admissible, yet evidence that there is not an agreement at all is admissible," and said that there were two authorities, neither of which supported that proposition, Harris v. Rickett (( 1859) 28 L. J. (Ex.) 197 4H. & N.1) and Pym v. Campbell.(( 1856) 6 E. & B. 370.). A benami transaction is altogether outside the question with which we are dealing. Navalbai Fulchand v. Sivubai Genu Korpe(( 1906) 8 Bom. L. Repr. 761.) decided that the plaintiff would be entitled to prove any fact which would invalidate the document or entitle him to any decree or order relating thereto. [Reference was also made to Appa Dhond v. Babaji Krishnaji.(( 1921) I. L. R. 46 B. 85.)] There is no doubt that the evidence suggests a contemporaneous oral agreement that the amount of maintenance should be fixed in some other way. If it is a subsequent agreement then I have nothing to say, but if it is contemporaneous then it contradicts the terms of the document. [SIR JOHN WALLIS It seems to me that we shall be upsetting a well-established doctrine if we accede to your argument.] G. Ruthna Mudaliyar v. K. Arumuga Mudaliyar (( 1872) 7 M. H. C. R. 189.) was founded on Pym v. Campbell.(( 1856) 6 E. & B. 370.) In Pym v. Campbell (2) it was said 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.” Pym v. Campbell (2) is provided for by proviso 3. This particular case falls within the words "varying the terms of the written agreement," and not that there never was an agreement at all. This particular case falls within the words "varying the terms of the written agreement," and not that there never was an agreement at all. [LORD THANKERTON If there never was a contract at all it never came under the section.] [Reference was made to Mottaappan v. Palani Goundan (( 1913) I. L. R. 38 M. 226.); Radhakissen Chamaria v. Durgaprasad Chamaria (( 1931) I. L. R. 59 C. 106.); and Tsang Chuen v. Li Po Kwai.([ 1932] A. C. 715, 727.)] The document of December 28, 1912, is valid and binding on the respondent, and evidence of the alleged oral agreement set up by her is inadmissible under s. 92 of the Indian Evidence Act, 1872, and it ought to have been rejected. Dunne K.C. and Sidney Smith for the respondent. The first proposition is, that if it is established that the contents of a written document are not intended to be an effective or operative contract at all, then there is no contract, and the matter does not come within the provisions of ss.91 and 92 of the Evidence Act at all. That is what is held, and no court of equity would hold that there was such a contract, and that is the end of the matter. Sect. 92 of the Evidence Act has not the smallest relevance to the finding in Pertab Chunder Ghose v. Mohendra Purkait. (6) On the evidence the judges in India took the view that s. 92 did not apply at all. It has been held that it can always be shown that a document does not constitute a contract G. Ruthna Mudaliyar v. K. Arumuga Mudaliyar. (1) What was stated in Pertab Chunder Ghose v. Mohendranath Purkait (( 1889) L. R. 16 I A. 233.) covers the whole position completely. Navalbai Fulchand v. Sivubai Genu Korpe(( 1906) 8 Bom. L. Repr. 761.) follows the reasoning in Pertab Chunder Ghose v. Mohendra Purkait (( 1889) L. R. 16 I.A. 233.) as being the correct reasoning to show that there is not an agreement at all. [Lord Thankerton It is a different category of case.] Baijnath Singh v. Hajee Vally Mahomed Hajee Abba (( 1924) I. L. R. 3 R; (P. C.) 106, 125.), where oral evidence was given of the nature of the transaction, does not in terms deal with the precise point we are dealing with. [Lord Thankerton It is a different category of case.] Baijnath Singh v. Hajee Vally Mahomed Hajee Abba (( 1924) I. L. R. 3 R; (P. C.) 106, 125.), where oral evidence was given of the nature of the transaction, does not in terms deal with the precise point we are dealing with. If for this purpose you arrive at the fact that there is no agreement at all, there is nothing that you have contracted about, or you have contracted about nothing. All the proof referred to in Ranga Ayyar v. Srinivasa Ayyangar (( 1897) I. L. R; 21 M. 56.) could only be given by oral evidence. The principle in Pym v. Campbell (( 1856) 6.E. & H. 370.) is amply upheld in Pertab Chunder Ghose v. Mohendra Purkait. (1) Balkishen Das v. Legge (( 1899) L. R. 27 I. A. 58.) was a typical case under s. 92. I rely on the authorities to show that there was no contract at all. The deed was never intended to be acted upon by the parties to it. The lower Courts found concurrently that it was a sham transaction. Sect. 92 of the Evidence Act has no application to the facts of this case. De Gruyther K.C. replied. Dec. 6. The judgment of their Lordships was delivered by SIR JOHN WALLIS. The plaintiff Vedathanni, widow of the late Ramalinga Mudaliyar, who died without issue on December 23, 1912, instituted this suit on July 25, 1925, in the court of the Subordinate Judge of Negapatam, against the two widows of T. Somasundara Mudaliyar, her husbands brother, who had survived him, impleading also the minor third defendant, who had been adopted by the junior widow on July 1, 1925, and defendants four and five, who had been appointed receivers of the family properties in the suit instituted by the first defendant disputing the adoption. The plaintiff claimed to recover arrears of maintenance from January 1, 1914, when she began to live separately from her husbands family, at the rate of Rs. 10,000 a year. It was stated in the plaint that the ante-adoption deed executed oil behalf of the minor third defendant by his natural father on June 21, 1925, in favour of the adopting widow had made a provision for the plaintiffs maintenance which would work out at Rs. 10,000 a year. It was stated in the plaint that the ante-adoption deed executed oil behalf of the minor third defendant by his natural father on June 21, 1925, in favour of the adopting widow had made a provision for the plaintiffs maintenance which would work out at Rs. 10,000 a year, and in the interests of peace she was willing to accept this sum although it was much below what would be legitimately due to her. 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 Rs.50,00,000, but had been living separately and enjoying the said lands in separate portions ; and that in consequence, on Ramalingas 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 widows 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 plaintiffs maintenance. It was, however, distinctly understood that this document was not to be the final contract for the plaintiffs maintenance but was solely intended as a voucher establishing the joint undivided nature of the family, it being agreed that the plaintiffs claim for maintenance on a scale commensurate with the position and status of the family was to be left over for future settlement at leisure. Consequently the provision for maintenance in the deed was never given effect to or acted on by the parties and Somasundara continued in possession and enjoyment of all the family properties until his death on January 17, 1925. The plaintiff had lived separately from her husbands family from the beginning of 1914 (being maintained as appeared from the evidence by her own family), and had repeatedly asked Somasundara to make due provision for her maintenance. He had repeatedly promised to do so, but died without having made any such provision or paid her anything for her maintenance. The plaintiff had lived separately from her husbands family from the beginning of 1914 (being maintained as appeared from the evidence by her own family), and had repeatedly asked Somasundara to make due provision for her maintenance. He had repeatedly promised to do so, but died without having made any such provision or paid her anything for her maintenance. The first defendant did not file any written statement, and the second defendant, in a joint written statement filed on behalf of herself and the minor third defendant, put the plaintiff to the proof of the allegations in the plaint. She stated that she was informed, and believed, that for several years past the plaintiff had not received any income from the lands set apart for her maintenance, and was therefore entitled to the mesne profits in respect of past maintenance. As regards the future, she admitted the execution of the ante-adoption deed making provision for the plaintiff, and, as the matter concerned the estate of the minor third defendant, she left the Court to fix such maintenance as might be deemed reasonable. The family admittedly owned 1500 velis of wet and dry land of the approximate value of no less than 50 lakhs of rupees, which they had apparently acquired in the course of their money lending business by buying up the holdings of ryots with whom the land revenue had been temporarily settled under the ryotwari system prevailing in Tanjore. They also owned several lakhs of rupees invested in the money-lending business. Some time before the death of the plaintiffs husband, the two brothers had divided their lands and begun to live separately, and according to the evidence the income from the lands in the husbands possession amounted to Rs.70,000, all of which he spent. These facts were sufficient to raise a prima facie case of separation, in which case his widow would be entitled for life to one-half of the family properties. 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. 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 schedule 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 schedule B. In consideration of this provision she relinquished her claims for maintenance. The annual income of the lands set apart for her was between Rs.2000 and Rs.2500, only Rs.200 a month ; and, as regards the house in Bazaar Street, Tiruvarur, the plaintiff stated in her evidence that people of her status and condition of life could not live there at all. There are concurrent findings of the Courts below that, when this document was presented to her three days after her husbands death, she refused to sign it, and was only induced to do so two days later by representations that it would not be acted on, and was only intended to provide evidence of the undivided status of the family. It was held by both Courts on these facts that there was no agreement and therefore no contract. There can be little doubt that if a suit had been brought in time, this agreement might have been set aside on the ground of fraud or undue influence, What happened, however, was that the plaintiff retained the jewels, which had all along been in her possession, and that no effect was given to the provision for her maintenance. A year after her husbands death she went to live with her own people, and has since been maintained by them. A year after her husbands death she went to live with her own people, and has since been maintained by them. Somasundara died on January 17, 1925; and his junior widow, the second defendant, executed the ante-adoption deed, in which provision was made for the plaintiffs maintenance, on the following June 6, and adopted the minor third defendant on July 7 ; and on December 21 the plaintiff filed the present suit to recover arrears of maintenance at the rate already mentioned from January 1, 1914, when she ceased to live with her husbands family. As the arrears were claimed for less than twelve years the suit was in time. The main question arising in this appeal is whether, as contended by the appellants, under the provisions of ss.91 and 92 of the Indian Evidence Act, oral evidence was inadmissible to establish that it had been agreed that the provisions for the plaintiffs maintenance were not to be acted on, as the document was only intended to create evidence of the undivided status of the family. The Madras HighCourt, from which this appeal comes, has repeatedly held such evidence to be admissible, and decisions to the same effect of the High Courts at Calcutta, Patna and Rangoon have been cited. There is, however, one decision of the Allahabad High Court the other way. In support of the admissibility of this evidence, the respondents have also cited the decision of this Board in Pertab Chunder Ghose v. Mohendra Purkait (( 1889) L. R. 16 I. A. 233, 237-8.), which came before Lord Watson, Sir Barnes Peacock and Sir Richard Couch. There is, however, one decision of the Allahabad High Court the other way. In support of the admissibility of this evidence, the respondents have also cited the decision of this Board in Pertab Chunder Ghose v. Mohendra Purkait (( 1889) L. R. 16 I. A. 233, 237-8.), 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 (1) " if there is any stipulation in the kabuliyat 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." 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 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 with this question in the judgment of the Board. It may, however, in their Lordships opinion, be safely inferred that Sir Richard Couch and Sir Barnes Peacock were well acquainted with the provisions of the Indian Evidence Act and saw no objection to the reception of oral evidence to show that there was no agreement and therefore no contract. The two relevant sections are as follows, the exceptions and explanations in s. 91 being omitted as having no bearing on the question — "91. The two relevant sections are as follows, the exceptions and explanations in s. 91 being omitted as having no bearing on the question — "91. When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. 92. When the terms of any such 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, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms— Proviso (1).—Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto ; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want of failure of con sideration, or mistake in fact or law. Proviso (2).—The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In con sidering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document. Proviso (3).— The existence of any separate oral agree ment, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved. Proviso (4).—The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition 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 s. 92 are not wide enough to make it admissible under that proviso. When a contract has been reduced to the form of a document, s. 91 excludes oral evidence of the terms of the document by requiring those terms to be proved by the document itself, unless otherwise expressly provided in the Act, and s. 92 excludes oral evidence for the purpose of contradicting, varying, adding to, or subtracting from such terms. Sect. 92 only excludes oral evidence to vary the terms of the written contract, and has no reference to the question whether the parties had agreed to contract on the terms set forth in the document. The objection must therefore be based on s. 91, which only excludes oral evidence as to the terms of a written contract. Clearly, under that section, a defendant sued, as in the present case, upon a written contract purporting to be signed by him, could not be precluded in disproof of such agreement from giving oral evidence that his signature was a forgery. In their Lordships opinion oral evidence in disproof of the agreement (1.) that, as in Pym v. Campbell (( 1856) 6 E. & B. 370.), the signed document was not to operate as an agreement until a specified condition was fulfilled, or (2.) that as in the present case, the document was never intended to operate as an agreement, but was brought into existence solely for the purpose of creating evidence of some other matter, stands exactly on the same footing as evidence that the defendants signature was forged. In Pym v. Campbell (( 1856) 6 E. & B. 370, 375, 373-4.) the defendants were sued upon a written contract to purchase an invention, and Lord Campbell had ruled at the trial that on the plea denying the agreement oral evidence was admissible that it had been agreed between the parties before they signed that there was to be no agree ment until the invention was approved by A. In his judgment discharging the rule nisi for a new trial, Lord Campbell said (1) " It was proved in the most satisfactory manner that before the paper was signed it was explained to the plaintiff that the defendants did not intend the paper to be an agreement till Abernethie had been consulted, and found to approve of the invention; and that the paper was signed before he was seen only because it was not convenient to the defendants to remain. The plaintiff assented to this, and received the writing on those terms. That being proved, there was no agreement." Erie J. who gave judgment first had dealt more fully with this question (1) " the point made is that this is a written agree ment, absolute on the face of it, and that evidence was admitted to show it was conditional and if that had been so it would have been wrong. But I 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 animo contrahendi, the terms contained in it are con clusive, 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. 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. The Indian legislature has thought well to give statutory effect to the decision in Pym v. Campbell (( 1856) 6 E. & B. 370.) in proviso 3 to s. 92 " the existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract,.... may be proved”; and in Mottayappan v. Palani Goundan (( 1913) I. L. R. 38 M. 226.) Benson and Sundara Ayyar JJ. have expressed the opinion that oral evidence to show that a document was never intended to operate according to its terms, but was brought into existence, as in the present case, solely for the purpose of creating evidence about some other matter is admissible under proviso 1 to s. 92 " any fact may be proved which would invalidate any document." This may well be so, but in their Lordships opinion, even if there were no provisos to either section, the result in the present case would be the same, because there is nothing in either section to exclude oral evidence that there was no agreement between the parties and therefore no contract. It was also contended that the case came within s. 92, because of the provision recognizing the widows title to the jewels in her possession. The High Court have found that this provision was not intended to operate as an agreement, but was introduced to give verisimilitude to the document, it being usual to make such a provision in agreements for a widows maintenance. Further, it was held by this Board in the passage already cited from the judgment in Pertab Chunder Ghose v. Mohendra Purkait (( 1889) L. R. 16 I. A. 233.) that if the defendants were told that any stipulation in the agreement would not be enforced, they could not be held to have assented to it. Consequently the document was not the real agreement between the parties, and the plaintiff could not sue upon it. In their Lordships opinion both the lower Courts were right in finding on the oral evidence in this case that there was no contract, and they will humbly advise His Majesty that the appeal be dismissed with costs.