TMI Blog1925 (3) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... forth very briefly. The suit was originally instituted only against P. M. A. R. M. Muthiah Chetty and on his death his sons have been brought on the record as his legal representatives. The plaintiff who succeeded his father as the holder of a mortgage decree for a large amount in the District Court of Chittore assigned pursuant to an agreement with respect thereto an eighth share under the decree to the 1st defendant for an alleged consideration of ₹ 2,89,000. The deed of assignment, which has been marked as Ex. A in this case, bore the date the 1st day of October, 1917, and the material recitals in the deed were, that the plaintiff had agreed to assign to the 1st defendant the eighth share of the decree for a consideration of ₹ 2,89,000 to be paid by the 1st defendant to the plaintiff, whereof ₹ 89,000 was paid in advance on the day of the execution of the deed of assignment, and that, as regards the balance of consideration, namely, ₹ 2,00,000, other arrangements set out therein had been made for the payment thereof by the 1st defendant to the plaintiff and the operative portion of the deed proceeds to witness that the eighth share in the decree was ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ital is not true because the defendants in their written statement admitted that the recital is not true. On the admission of the defendants, therefore, the plaintiff's case that only ₹ 60,000 out of ₹ 89,000 had been paid has been established. As regards the balance of ₹ 29,000 the defendants attempt to prove that the consideration agreed to was not ₹ 2,89,000, but only ₹ 2,60,000, is an attempt to vary the terms of a contract; that in this case the terms of the contract have been reduced to writing in the deed of assignment and that therefore the defendants are not at liberty to contradict the writing by parol evidence. The clause in the deed of assignment referring to the terms of the contract is as follows: Whereas the said Lodd Govindoss has agreed to assign to the shareholder Mr. P M A R M Muthiah Chettiar 1| 8th-(one-eighth) share or 12 1|2 per cent. of the said decree amount together with the securities therefore and the outstanding arrears of rents and profits as standing on this day that may be realised according to the accounts of the Taluk Office for a consideration of ₹ 2,89,000 (Rupees two lakhs and eighty-nine thousand) to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Ramakrishna Aiyar (1913)25MLJ602 . Similarly in the case of Annada Charan Sil v. Haragobinda Sil (1922) 37 CLJ 552, Justice Sir Ashutosh Mukherji and Justice Chotzner held, following the Madras decision, that while want or failure or difference in kind of consideration may be proved evidence to vary the amount of consideration in a deed is inadmissible. 8. The case of Cowasji Ruttonji Limboowalla v. Burjorji Rustomji Limboowalla ILR (1888) B 335 was also referred to on behalf of the plaintiff. The plaintiff's contention has thus been sought to be reinforced by the decision of all the High Courts in India. 9. In this state of the authorities Mr. Chandrasekhara Aiyar, vakil for the defendants, was bound to argue that the decision in Adityam Aiyar v. Ramakrishna Aiyar (1913)25MLJ602 by this Court was wrong. He put forward his contentions in four ways. The first was that if one party to a deed came forward with the case that a particular recital in a deed regarding the consideration for the transaction was not true and he should be allowed to prove it, then, the other party to the deed should be allowed and becomes entitled to prove the real agreement between the parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any portion of a document is true and binding between the parties should not be allowed to state that any other recital in the document is false. 11. If the principle that a party cannot approbate and reprobate at the same time is applicable to the case of recitals in documents it can only be by limiting its operation to the same recital and postulating that a party should not be allowed to approbate and reprobate the same recital, that is to say, state that it is untrue and at the same time seek to rely upon it. If the principle should be applied to different recitals in the same document, then, the numerous cases in which it has been repeatedly held that a party might be allowed to prove the falsity of the recitals of facts in documents would all have to be regarded as wrongly decided, but their Lordships of the Judicial Committee in the case of Sah Lal Chand v. Indarjit ILR (1900) A 370 have laid down as settled law that where there has been a false acknowledgment by recital in a deed : of sale of the payment by the purchaser of the consideration money and its receipt by the vendor, it is open to the latter to prove that no consideration money was actually paid. The admissib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut as such the terms of any contract grant of other disposition of property. If a deed does not set out the terms of the contract as such and merely contains the recital of the payment of some amount as consideration, the recital of payment is the mere recital of a fact which can be disproved, and it cannot be contended that though the terms of the contract are not as such set out the terms should be implied or inferred from the recital and parol evidence disallowed for the purpose of contradicting or varying such inferred or implied term of the contract or grant. I am therefore unable to regard the decision in Hanif-un-nissa v. Faiz-un-nissa ILR (1911) A 340 as an authority for holding that even though a deed might actually contain and set out the terms of a contract, oral evidence may be allowed to be adduced by one party to contradict or vary such terms if the other party should allege or seek to prove the falsity of any recital of fact in the deed. 12. The case that at first sight seemed to support considerably the contention of the defendant was the decision in Chunni Bibi v, Basanti Bibi ILR (1914) A 537. That was a case in which the question that arose was whether when th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he terms on which the sale was agreed to be made. As I have already observed, from such a clause of the recital of the receipt of certain consideration, the terms of the agreement could only be inferred and therefore the clause itself could not be regarded as containing in writing the terms of the agreement. The expression terms of the disposition of property may be considered to be either the terms of the agreement relating to the disposition of property or the terms on which the property is alleged in the deed to be disposed of. If the latter construction should be adopted numerous decisions of all the High Courts including several of the Judicial Committee of the Privy Council would have to be regarded as opposed to the clear terms of the section. The expression should therefore be construed merely as meaning the terms of the contract made with regard to the disposition of the property. So construed and bearing in mind the weight of judicial opinion with regard to the matter, it must be held that if a document merely refers to the amount of consideration in the clause reciting the fact of the receipt of it, the document is not one in which the terms are reduced to writing, wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assignment on the footing of the assignor having actually been paid and received a total sum of ₹ 89,000 and of the balance alone being payable in the manner indicated in the deed. No doubt under the Indian Law the creditor is entitled to give up a portion of his claim, and there need be no consideration for any agreement by him so to give up. But before such an argument could be advanced, there must be a plea to the effect that that was what was done. If the defence was that though originally the price was agreed to be ₹ 2,89,000, still, subsequently the parties came together and the assignor agreed to accept ₹ 60,000 in lieu of ₹ 89,000, the plea may be valid. But that is not the plea. It may no doubt be contended that it is a mere matter of form. But, in my view, it is not a mere matter of form and it is really a matter of substance, something relating directly to the exact manner in which it was done. There are also obviously many difficulties in the way of considering the payment recited in the deed of assignment of the sum of ₹ 89,000 as past consideration in relation to a contract.. Past consideration is something that had been done at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nner of specific performance but must be relegated merely to the penalty or damages provided in the document. For this contention the learned vakil for the defendants referred to the case of The Queen v. The Eastern Archipelago Company 1 El Bl 311. In that case the learned Judges were equally divided with the result that the rule was refused. I cannot, therefore, regard the judgment in that case as laying down any principle which is available for application to the present case. 18. After all, the question whether a person is entitled to have a covenant enforced or to any remedies other than the remedy indicated in the contract, is a question of the intention of the parties to be deduced--whether on a proper construction of the entire document the remedy provided is cumulative or exclusive. Having regard to the terms of the document before me, I cannot possibly construe the remedy given to the assignor in the event of the assignee not paying the whole of the purchase money or consideration for the assignment as an exclusive remedy. In my view, the remedy is only cumulative and cannot deprive the plaintiff of the right to enforce the contract itself. The result of my holding ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unnecessary to deal in detail with the various grounds on which the learned vakil for the plaintiff put his case whether the claim is under the Interest Act or under the Transfer of Property Act or under the general law as and by way of damages. The principle underlying such claims is that whereas one party has under the arrangement derived all the advantages or secured all the rights stipulated for in the transaction, the other party has not received the full consideration stipulated for, and in respect of the amount wrongfully withheld some compensation should be made by award of interest or damages which might bear some relation either to the possible profits that might have been made with the money wrongfully detained by the person so detaining or to the possible profits that might have been earned by the person, from whom the money is withheld if he had had the money which has been withheld from him. But I have already referred to the clause in the document by which in the event of the assignee not paying to the assignor the whole amount of the price, then, the profits payable or receivable by the assignee until he pays up the whole amount should be only that fraction of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim regarded as one for damages for wrongfully withholding the purchase money. Further, no evidence has been adduced to show that so far as the plaintiff is concerned the share of rents and profits proportionate to the unpaid purchase money which the plaintiff will not have to pay to the defendants would not be adequate either as interest or as damages. With regard to the claim for interest, I have therefore come to the conclusion that the plaintiff is not entitled to any interest on the amount of the claim. 22. One last question also argued but not very strenuously by the learned vakil for the defendants should also be referred to. That related to the fourth issue as to whether the plaintiff's claim is barred by the Law of Limitation. The contention was that the plaint in the suit, when it was instituted was signed by the plaintiff but by a person who purported to act as the agent of the plaintiff but who had not at the time of the institution of the suit obtained leave to sign and verify the plaint on behalf of the plaintiff. The plaint was presented to Deputy Registrar on the 1st of October, 1920, it is said, on the last day of limitation. On that day, the plaintiff' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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