Judgment.- This is rather an interesting case raising the question of the applicability of section 92 of the Indian Evidence Act, in a peculiar set of circumstances which so far as I know has not come up for decision before this High Court till now. One Kamalamma, the first plaintiff in O.S.No.124 of 1948, on the file of the District Munsiff, Bellary, owned the suit house. The first defendant, Bhagyalakshmamma, related to her closely, wanted to buy that house. Kamalamma’s husband is a Sub-Inspector of police called Anantha Setty. He has been impleaded as the second plaintiff in the suit later on. As is usual in India, Kamalamma acted through her husband, Anantha Setty, and Bhagyalakshmamma acted through her husband, Satyanarayana Gupta. These two men entered into an agreement Ex.A.1 dated 10th January, 1948, under which the second defendant obviously on behalf of the first defendant, agreed to purchase the suit house from the first plaintiff for Rs.2,625 and paid Rs.350 as advance at once, thus leaving a balance of Rs.2,275 to be paid. According to him, he paid Rs.1,275 out of this Rs.2,275, to the second plaintiff because the second plaintiff insisted that, before the sale deed of the house could be executed by the first plaintiff in the first defendants’ favour, this sum of Rs.1,275 representing the costs of improvement and repairs executed to the house by him, should be paid. After this amount was paid, according to the defendants; the sale deed, Ex.A.2 was executed by the first plaintiff in favour of the first defendant, for the balance of Rs.1,000. The first plaintiff, not having herself received the difference of Rs.1,275 filed this suit against both the defendants tor recovering that amount with subsequent interest and costs. The defendants raised various contentions, including the payment of Rs.1,275 to the 2nd plaintiff, thus leaving not a pie out of Rs.2,625 under Ex. A.1, unpaid. The learned District Munsiff framed the following issues. 1. Is the plaintiff entitled to plead that the price fixed was more than Rs.1,000? 2. Is the suit opposed to Stamp and Registration Acts, and is the plaintiff entitled to plead her fraud? 3. What was the agreed amount for the sale; was it paid in full? 4. Are defendants entitled to costs under section 35-A, Civil Procedure Code ? 5. To what relief. 2. Is the suit opposed to Stamp and Registration Acts, and is the plaintiff entitled to plead her fraud? 3. What was the agreed amount for the sale; was it paid in full? 4. Are defendants entitled to costs under section 35-A, Civil Procedure Code ? 5. To what relief. On issues 1 and 2, which he tried as preliminary issues, he held that the suit prayer was opposed to public policy and, that no oral evidence could be allowed, or even the agreement for the sale of the house for Rs.2,625 allowed to be proved, because of section 92 of the Indian Evidence Act. In that view, he did not give any finding regarding the defendant’s contentions that the whole of the agreed amount of Rs.2,625 under Ex.A.1 had been paid in full, or give any-finding on the issue as to whether the defendants were entitled to compensatory costs under section 35-A, Civil Procedure Code. He dismissed the suit with ordinary costs. In appeal, the learned Subordinate Judge held that section 92 of the Evidence Act would not apply to the second plaintiff who was not a party to the sale deed or a representative of a party to it, under the ruling in Mayan v. Mammad Kunhi1, therefore remanded the suit to the trial Court for fresh disposal, after allowing both parties to adduce further evidence and directed the costs of the appeal to abide the result, and refunded the stamp duty paid on the memorandum of appeal. The defendants have filed this civil miscellaneous appeal against the judgment and decree of the learned Subordinate Judge. I have absolutely no doubt in agreeing with the learned Subordinate Judge’s view that section 92 of the Indian Evidence Act will have no application to the second plaintiff in the facts of the case. Indeed, I go further and hold that even the 1st plaintiff is not estopped under section 92. This is not a case where the plaint and written statement went on the basis that Rs.1,000 was the agreed price (and full consideration) for the suit house. Indeed, I go further and hold that even the 1st plaintiff is not estopped under section 92. This is not a case where the plaint and written statement went on the basis that Rs.1,000 was the agreed price (and full consideration) for the suit house. The agreement for Rs.2,625, Ex.A.1 was not seriously disputed even by the defendants, their contention being that Rs.350 were paid immediately after the agreement and a sum of Rs.1,275 was paid to the second plaintiff shortly thereafter, and before registration of the sale deed, and the balance of Rs.1,000 was paid before the Registrar under the sale deed Ex.A.2 and that not a pie therefore, remained out of the sum of Rs.2,625 to be paid under Ex.A.1. It may be that the Government lost some stamp duty by the agreed price of Rs.2,625 not being recited in the sale deed Ex.A.2. But I cannot call it strictly a fraud; it will only be “unworthy conduct” not amounting to fraud. The defendants’ case is that the 1st and 2nd plaintiffs had together received Rs.1,625 under Ex.A.1 and had to receive only Rs.1,000 more. In such cases, in the countryside, the vendor, who loses nothing by it, puts only the balance still due as the consideration for the sale deed, and executes the sale deed, leaving the Government in the lurch regarding the stamp duty on the amount already paid before the execution of the sale deed. I do not think that public policy can be invoked to defeat a suit like this, though I do not give any opinion as to whether the practice is strictly legal and whether the Government cannot take suitable steps to prevent such practices either by amending the Stamp Act or by any other appropriate means. Coming to section 92 of the Indian Evidence Act, I do not see how it can be applied to a case like this, where the parties did not want to dispute the fact of the recital of Rs.1,000 as the consideration still due under the sale deed and where they only omitted to mention the prior payments under Ex.A.1. Besides, Ex.A.1, is a written agreement and not an “oral agreement” excluded under section 92. Even Mr. Besides, Ex.A.1, is a written agreement and not an “oral agreement” excluded under section 92. Even Mr. Ramanarasu, for the defendants, admitted that Rs.350, paid under the agreement Ex.A.1 to the first plaintiff, represented part of the consideration for the suit house and was not included in the sum of Rs.1,000 recited in the sale deed and paid before the Sub-Registrar. So the defendants have to prove strictly that they paid Rs.1,275 to the second plaintiff on behalf of the first plaintiff, or independently, and thus prove their story in the written statement to be true, instead of taking shelter under section 92 of Indian Evidence Act, which will, in my opinion, not apply to the facts of this case. Of course, Mr. Ramanarasu is right when he says that the first plaintiff should not only prove that Rs.1,275 was not paid to the second plaintiff as alleged in the written statement, but that she is entitled to that amount, and not her husband, the second plaintiff, and that she is also entitled to a vendor’s lien in respect of that amount. But all that can be proved by appropriate issues at the fresh hearing. The trial Court will also be free to frame any other proper and necessary issue at the request of either party. In cases like this, where definite allegations of fact are made, and are disputed, and where section 92 of the Indian Evidence Act will not apply it will, in my opinion, not be conducive to justice, if instead of making the parties to prove their allegations and get at the real truth, the parties are allowed to invoke the extended shadow of section 92 of the Indian Evidence Act (by relying on analogy) and take refuge in that shadow. Of course, Mr. Ramanarasu is right in stating that the second plaintiff did not state specifically that Rs.1,275 out of Rs.2,625 agreed to be paid under Ex.A.1 and alleged to have been paid to the second plaintiff by the defendants was not really paid but that is more or less implicit in the filing of the suit and will therefore only be a reason for disallowing the plaintiffs their costs in the appeal. The remand was amply justified in the circumstances and will be valid under the ruling in Ghuznavi v. Allahabad Bank, Ltd.1This Civil miscellaneous appeal deserves to be and is hereby dismissed, but, in the peculiar circumstances, without costs. K.S. ----- Appeal dismissed.