<NAME>, J.

1. Leave granted.

2. <ORG> (hereinafter referred to as the '<ORG>') issued advertisement No. 11/85 inviting applications from unemployed Graduates for appointment to the post of Assistants in the <ORG> and other connected offices of <ORG>. It was stated in the advertisement that vacancies upto the year 1985-86 were to be filled up, after holding an examination. The number of vacancies, however, was not notified. The examination was held at different examination centers within the <ORG> in November, 1987. The result of the examination, however, was published only in July, 1990. Vide a communication dated 25.8.1987 issued by the Joint Secretary in <ORG> to the Secretary of the <ORG>, the break-up of the vacancies in a tabulated form, indicating the total number of vacancies, as then existing, to be 357, was provided. On the recommendation of the <ORG> dated 31.7.1990, 309 candidates out of those who had qualified in the examination were given appointments. Candidates securing more than 50 per cent marks in the general category and who names were in the select list were empanelled and made to wait in anticipation of the release of further vacancies by the <ORG>. Since, the vacancies available until 31.12.1988 were not disclosed or communicated to the <ORG> despite enquiries, no further appointments could be made. Candidates who had applied for employment in response to the advertisement published in 1985 and were selected and empanelled after being brought on the select list in the order of their merit after the result was declared in 1990, found their expectations and hopes being belied and frustrated. They represented to the <ORG> Government for appointment against the vacancies as available on the date of the publication of the result. Their representation was rejected. On 8.8.1991 a letter was issued by the <ORG> Government requiring the <ORG> to issue fresh advertisement for appointment of <ORG> Assistants nd holding of fresh competitive examination. The aggrieved empanelled selectees, accordingly, approached <ORG> Patna through Civil Writ Petition No. 291/91 seeking a direction to appoint them. In <ORG> a plea was raised by the writ petitioners that since normal practice and procedure being followed by the <ORG> over the years had been that the vacancies available till the date of the publication of the result were filled up by the candidates brought on the merit list, all the empanelled candidates on the select list were entitled to be appointed against the vacancies as existing on the date of the publication of the result in 1990. The plea of the <ORG> on the other hand was that though number of vacancies had arisen during the period 1985-90 that fact alone could not clothe the empanelled candidates on the select list with any right to appointment or claim adjustment against the vacancies arising after 1988.

3. <ORG> noticed that there had been no fresh advertisement after 1985; that the result of the examination held in 1987 was declared in 1990; that there were existing vacancies and that the empanelled candidates had been waiting in the wings all though for no fault of theirs expecting their appointments. <ORG>, therefore, held:

Considering the peculiar circumstances of the present case, therefore, we quash Annexure 16 dated 8.8.1991 and in order to do justice between the parties and not to leave these young graduates, in lunch, we direct the Board to recommend the names of these petitioners in accordance with their seniority in the merit list for appointment on the posts of Secretariat Assistants in accordance with the existing vacancies as available on the date of publication of their result, i.e. July, 1990.

4. <ORG> also directed the filling up of the vacancies upto 1991 from the list of selected candidates who had been empanelled after the declaration of the result in 1990.

5. The State of Bihar has, through the present appeal, challenged the judgment of <ORG>.

6. On 12.5.1992, after considering the facts and circumstances of the case and hearing learned Counsel for the parties, we made the following order:

We are not in agreement with Mr. <NAME>'s stand that the entire impugned judgment is erroneous and requires reconsideration. However, we do consider that notice should be issued asking the respondents to show cause as to why special leave may not be granted against that part of the judgment which directs all the vacancies upto 1991 to be filled up from the list of candidates who had appeared in the examination held in 1987 and why the impugned judgment may not be modified so as to remain operative with respect to the vacancies arising up to 31.12.88 only. Since the respondents are already appearing through counsel, they may get ready with this aspect of the case. The case may be finally disposed of at the present stage if found practicable.

There is some controversy with respect to the number of vacancies available upto 31.12.88. The parties may file further affidavits dealing with this question.

7. We directed the stay of that part of the impugned judgment under which the <ORG> was obliged to fill up the vacancies which arose in the years 1989,1990 and 1991. Directions were, however, issued by this Court on 12.5.92 to fill up the vacancies as existing till 1988 promptly.

8. Counters and rejoinders have been filed but the confusion as regards the actual number of vacancies persists and there is a serious dispute between the parties on that score.

9. In the view that we propose to take, we need not detain ourselves to sort out that wrangle or consider the elaborate submissions made at the bar.

10. It is now well settled that a person who is selected does not, on account of being empanelled alone, acquire any indefeasible right of appointment. Empanelment is at the best a condition of eligibility for purposes of appointment, and by itself does not amount to selection or create a vested right to be appointed unless relevant service rule says to the contrary. ( <CITATION> - <CITATION> .- 1992 (3) Scale 361).

11. We are, therefore, of the opinion that the directions given by <ORG> for appointment of the empanelled candidates according to their position in the merit list against the vacancies till 1991 was not proper and cannot be sustained. Since, no examination has been held since 1987, persons who became eligible to compete for appointments were denied the opportunity to take the examination and the direction of <ORG> would prejudicially effect them for no fault of theirs. At the same time, due to the callousness of the <ORG> in holding the examination in 1987 for the vacancies advertised in 1985 and declaring the result almost three years later in 1990 has caused great hardship to the successful candidates. The <ORG> was expected not to act in such a leisurely manner and treat the matter of selection for appointment to services in such a casual manner. We must record our unhappiness on this state of affairs. There is no justification for holding the examination two years after the publication of advertisement and declare the result almost three years after the holding of the examination and not issuing any fresh advertisement between 1985 and 1991 or holding examination for making selections. We expect the <ORG> Government to act in a better manner, at least, hereinafter and since Mr. <NAME>, the learned senior counsel has shared our concern and assured us of advertising the <ORG> Government accordingly, we say no more on that aspect at this stage.

12. Keeping in view the fact situation and the circumstances of the case and having been informed by Mr. <NAME>, the learned senior counsel appearing for the <ORG> that there are a large number of vacancies which are required to be filled up, the order which commends and appears appropriate to us is to modify the judgment of <ORG> dated 11.10.91 by setting aside that part of the judgment which directs the filling up of vacancies of 1989, 1990 and 1991 from out of the list of the candidates who had appeared in the examination held in 1987. We accordingly, set aside that portion of the judgment but uphold the judgment in all other respects including the filling up of the vacancies which existed till 31.12.1988. Further, with view to do justice between the parties and balance the equities, we issue the following directions:

(i) That the appellant State of Bihar shall issue an advertisement inviting applications for the posts of Assistants within 4 weeks from the date of this judgment,

(ii) That the advertisement shall indicate the total number of vacancies actually existing and likely to arise in the cadre till 31.12.1993 which are required to be filled up,Thus, apart from the existing vacancies of 1989-1992 the probable vacancies till 31.12.93, shall also be included while indicating the number of vacancies to be filled up.

(iii) That the age bar shall be relaxed in favour of candidates of the 1987 examination who had secured 40% or above marks in that examination, to enable them to appear in the fresh examination, if they so choose.

(iv) That the selection process including the holding of the examination and publication of the select list shall be completed within a period of 9 months from the date of the publication of the advertisement/notification inviting applications. (v) That after the publication of the select list, the appointments shall be made within 4 weeks from the date of the publication of the select list.

(vi) That the rules relating to reservation etc. shall apply to the selections to be made.

13. With the above modifications and directions, the appeal is disposed of. There shall be no order as to costs.


JUDGMENT

1. This appeal is against <ORG> dismissal of the plaintiff's suit for damages in connection with the defend-ant's application for attachment before judgment. The facts are that the attachment before judgment was ordered by the District <NAME> of Calient on the 10th February 1919 and that 1st defendant accompanied by an <NAME> proceeded to the plaintiffs shop, The lower Court has dealt at considerable length with what happened there, It is not necessary to repeat its observations on the evidence. We need only say that there is a preponderance of evidence, including that of an European Sergeant whom we have no reason for distrusting, to the effect that the <ORG> in proceeded so far as to take out the plaintiff's clothe from the shelves of his shop and began to measure them, when the plaintiff who had heard by then of what had happened paid the amount of the claim. We, therefore, reject the defendants' case on this point, that nothing was done towards making the attachment at all. It is in respect of this action of the defendants and the <NAME> at their instance that plaintiff claims damages.

2. No doubt, there was not, in our opinion, a completed attachment by seizure of any of the plaintiff's property: but that is not material. For the claim, as stated in the plaint, is generally in respect of the acts done and not expressly or exclusively in respect of a completed attachment; and there is, in our opinion, no doubt that the plaintiff may be entitled to compensation, even though the attachment was not completed, if, notwithstanding that, he sustained injury by what was actually done. No authority has been adduced by the defendants to show that a completed, attachment is necessary. In <NAME> v, <NAME> 32 Ind. Cas. 448 : 89 M. 952 : 30 M, L. J. 180; (1916) 1 M. W. N. 156 : 3 L. W. 82, it was held that a mere procuring of an order for attachment before judgments did not afford a cause of action far damages. Without expressing any opinion as to the correctness of certain parts of that decision, we can distinguish it from the facta now before us on the ground that they include several acts of the defendants and the <NAME>, by which injury to the plaintiff has, as we shall show, been established.

3. That being our conclusion as to the actual occurrence proved, in respect of which the plaintiff claims, we have now to see whether be has established what, according to the authorities, he must establish, that the defendants acted maliciously and without reasonable and probable cause. Certain heads of proof of this were attempted at the trial, for instance, the plaintiff's refusal to sell to the defendants a pony and <ORG>, the institution by the defendants of the suit in which this attachment was made in a <ORG> which would not ordinarily exercise jurisdiction over the plaintiff and, lastly, the fact that the plaintiff had borrowed from <ORG> at 12 per cent, interest instead of continuing to borrow from the defendants as he had done in the past. In this <ORG> the pony transaction baa not been relied on. It is not shown that the defend ants' choice of the <ORG> in which they brought their suit was in any way unreasonable, The plaintiff's resort to the <ORG> instead of to the defendants for a loan is explained by the admitted fact that the defendants had refused to advance him more than they had already done. In these circumstances, these items of evidence are useless to establish malice.

4. This part of the plaintiff's case is, however, far better supported with reference to Exhibit XV filed by the first defendant in order to obtain the conditional attainment, with whith we are concerned, since the allegations in it are, in our opinion, not merely unfounded, but such as he could not have possibly supposed himself entitled to make. The absence of reasonable and probable same for taking; legal Ration in execution or otherwise is, as was deaided by <ORG> in <NAME> v. <NAME> (1891) 2 Q. B, 718 : 61 L. J. Q B. 151: 65 L. T. 108 : 55 J, P. 823, some evidence, from which malice may be inferred; and we may say at once, that in this case with reference to the surrounding circumstances, we shall be prepared to infer it therefrom. The defendants were proceeding under Order XXXVIII, Rule 5, Civil Procedure Code, and under that provision they had to satisfy the <ORG> that the defendant, with intent to obstruct or delay the execution of the decree that might be passed against him, was about to dispose of the whole or any part of his properly. That being the only matter which they could legally present to the consideration of the <ORG> to obtain the order which they desired, it is useless for Mr. <NAME> on their behalf to represent to us that there were other fasts available to them, on which their application might have been founded and as to the truth of which there can be no doubt. We must confine ourselves to what they, in fact, had to submit to the <ORG>, We find in paragraph 2 of Exhibit XV that the first defendant said, that the defendant becoming aware of the fact that the aforesaid plaint was being prepared, with the intention of defrauding the creditors executed (to amend the <ORG> translation in accordance with the agreement of the practitioners before up) documents in respect of the properties belonging to him in the name of his wife and others and borrowed large amount from <ORG> on mortgage of his properties. If the defendant receives money and appropriates the same and alienates the properties as aforesaid, there will be no remedy whatever to realise the amount in respect of the decree that may be passed against him." The substantial allegations here on which the <ORG> was asked to act was that the plaintiff on becoming aware of the fast that the plaint was being prepared executed documents in respect of the properties belonging to him in the name to him wife. The only matter relied on by Mr. <NAME> as in any degree supporting this statement, as it stands, is that the plaintiff had in 1916 purchased soma property in his wife's name and that he had subsequently paid for improve ments to it. The only admissible evidence of payment for improvements to the property is given by plaintiff himself, other evidence being admittedly hearsay. The sixth defendant's witness, no doubt, speaks to the purchase of property by the plaintiff in his wife's name, and it may be true that he did so or that even though he purchased the property in his wife's name, it was intended to be at his own disposal. That, however, is absolutely immaterial, because the charge, in consequence of which the <ORG> was asked to pass the order of attachment, was that he had done this in consequence of his knowledge that the plaint in the suit was being prepared. The plaint in the suit was, according to Exhibit II, and that is the earliest evidence we have on the point, being prepared on 8th June 1918, that is, long after the only purchase in the plaintiff's wife's name, of which we have any information. In these circumstances, there is nothing to justify the allegation in Exhibit XV and it was, as the plaintiff must have known, clearly untrue. There is also a statement in Exhibit XV that plaintiff, in consequence of his knowledge of the preparation of the plaint, executed documents in respect of which properties in the names of others also, although there is no evidence whatever and no sort of attempt has been made to justify this. In these circumstances, our finding must be that the affidavit on which the defendants obtained the order of attachment was not merely given in a material particular without reasonable or probable cause but was also known to him to be without any justification at all.

5. As throwing light on defendants' conduct, there are, further, their relations with the plaintiff. Toe defendants appear to have lent money to the plaintiff for soma time and to have been quite unsuccessful in obtaining re-payment thereof, it is unnecessary to go through the details whish appear in the oral evidence arid from correspondence. It is clear that the plaintiff was living from hand to month and not paying debts, until he had no alternative but to do so and that the defendants had shown very considerable forbearance. The crisis was evidently reach-ed just before the suit was brought, because the plaintiff succeeded in borrowing from <ORG> already referred to at 12 per sent, the sum of Rs. 15,000, and he even promised to use a portion of this in re-paying the defendants. The situation then was that the defendants having no alternative, brought their snit and that they knew that there was in the plaintiff's hands a means by whish they could get satisfaction of their debt, if they only could secure it. It is a fair presumption, whish there is nothing to rebut, that the defendants actually did what they did in order to secure for the satisfaction of their own debt the money of whish the plaintiff had become possessed, Taking that as their motive, and having regard also to the unjustifiable character of the allegations in the affidavit, we have no hesitation in finding, differing on this point from the lower Court, that they acted not merely without reasonable and probable cause of setting the law in motion, but also maliciously.

6. Before dealing with the question of damages, we consider an argument advanced by Mr. <NAME>, that the plaintiff bad no cause of action, because he did not allege in his plaint that the proceeding, by which he was aggrieved, had ended in his favour and because it never in fast did so end. The fasts are that the proceeding or the application for and the lower <ORG>'s conditional order of attachment under Order XXXVIII, Rule 5, came to an end, as the plaintiff paid the amount of fie defendant's claim and the warrant wag returned to the <ORG> with the endorsement by the first defendant that "the matter of the plaint having now been settled, there is no necessity for attachment." It does not appear from the record what happened to the suit; but, as the amount of the defendants had been paid, it either has been or should have been dismissed, As regards the failure to mansion the result of the proceedings in the plaint, it need only be said that no objection was taken with reference to it at the trial and that, if such an objection were pressed before us in appeal, we should meet it by allowing an amendment. As regards the more substantial objection that the proceedings are not shown to have terminated in plaintiff's favour and that they could not be regarded as having so terminated, so long as the order for conditional attachment was not discbarged at his instance or otherwise, we observe, first, that it would be quite useless for him to obtain such a discharge, when his creditor himself had informed the <ORG>, as he did by the endorsement on Exhibit XVI and elsewhere, that the attachment need not be processed I with, because the matter had been settled. On the broad question whether the termination of the proceedings in the plaintiff's favour is essential, there is, no doubt, abundant authority that it is so ; but such authority is applicable only to eases in whish a distinct termination in favour of one party or other is possible, and not to a case such as that before us, in whish the proceedings cannot end by their nature in any judicial disposal and in fast have been terminated by an act of the first defendant himself. In support of this distinction we were referred to Gilding v. <NAME> (1861) 10 C. B. (n. s.) 592 : 31 L. J. C. P. 174 : 5 L T (n. s.) 136 9 W. R. 916 : 142 E. R. 584. 7 Jur, (n. s.) 110 : 128 R. R. 847. and Steward v. <NAME> (1859) 7 C. B. (n. s.) 191 : 29 L. J. C. P. 170 : 6 Jur. (n. s.) 776 : 141 E. R. 788 : 121 R. R. 451, In the former of these cases the faots were very similar to the present and the <ORG> dealt particularly with one feature of the case, the abandonment of the proceedings by the creditor in consequence of the payment which the debtor, plaintiff, made in order to obtain his release from arrest, holding that nothing arose in favour of the defendant from it. In these circumstances the argument founded on the absence of the termination of the proceedings in the plaintiff's favour must fail.

7. We have now to settle what damages we shall award. Reference has already been made to the state of the plaintiff's credit and we need not deal with it in greater detail. It is clear that he found it most difficult to obtain funds at any reasonable rate of interest, that there had been other claims against him in the <ORG> that he had lost his credit with the defendants at least and that it was possible for him to borrow elsewhere only at 12 per cent. There is practically no evidence of value as to any detriment to his credit or position generally owing to the defendants' action. He himself says that customers did not resort to his shop, bat it is not possible to connect the falling off in his retail cloth trade with the state of his credit. He says again and has adduced some evidence that the subscribers to a chit Fund which he was conducting began to default after this recurrence. <ORG> has five hundred subscribers, and it is not, in our experience, unusual for a proportion of the subscribers to such chit Funds to default. It is not shown by any evidence which we can accept that the default of some fifty subscribers in the present case is due to what happened on the 10th February 1919. If it had been so, it should have been easy for the plaintiff to adduce much better evidence by calling some of the defaulting subscribers or producing accounts of the chit Fund and he has not done either. Lastly, there is the evidence of an apparently respectable gentleman, plaintiffs fifth witness, that the plaintiffs credit had suffered. He, however, gave no details and his general assurance do not seem to us of any affirmative value. In these circumstances, we are unable to accept the plaintiff's claim for the large sum of Rs. 5,250 as damages. At the same time we are not prepared to grant only contemptuous damages. The facts are, that the plaintiff was put to annoyance and no doubt to some extent to dishonour by this public employment of coercive processes without legitimate necessity and without justification. We think that, in the circum stances, Rs. 50 will be a sufficient compensation for such mental pain and loss of reputation as he may have sustained. We, therefore, allow the appeal, set aside the lower court's decree and grant the plaintiff a decree for Rs. 50 with costs thereon throughout, The plaintiff will pay the defendants their costs throughout, not on the whole amount in respect of which the suit was filed, but, in the circumstances of the case, on Rs. 1,500.


<NAME>, J.

1. This is an appeal originally brought by the defendants <NAME>, since deceased, and <NAME>, from a judgment and decree of <ORG> in its Civil Appellate Jurisdiction, dated the 3rd August, 1914, reversing the judgment and decree of <ORG> in its Civil Original Jurisdiction, dated the 17th June, 1912. The matters in suit between the parties have, on a former occasion, formed the subject of an appeal to this Board. The judgment upon that appeal was pronounced on the 11th July, 1911, and is reported in <CITATION> (1911) L.R. 38 I.A. 85 : 13 Bom. L.R. 391. The moaning and effect of that judgment will be presently. referred to.

2. The property which is the subject of the appeal consists of four different parcels of land situated in Kemmendine, a suburb of Rangoon. The facts of the case may be briefly stated thus. The owner of these plots of land was one <NAME>. On the 30th November, 1901, <NAME>, having borrowed from <NAME> and <NAME>, his wife, 8,500 rupees, to bear interest at 18 per cent. per month, granted an out-and-out conveyance of two of these properties, which may be called (a) and (b), in favour of <NAME> and his wife. No possession passed; interost was paid by <NAME> and repayment of the loan to the extent of 3,500 rupees was also made. This left an unpaid balance of 5,000 rupees. On the 4th March, 1903, <NAME> and his wife obtained payment of this sum from <NAME> and his wife, and conveyed the properties (a) and (b) to the latter.

3. There were two other plots of land, which may be called (a) and (d). <NAME> and his wife on the 13th February, 1902, having advanced 11,565 rupees, purchased these properties, which then also belonged to <ORG>, by public auction. No possession passed. On the 4th March, 1903, <NAME> and his wife transferred these properties to <NAME> and his wife in consideration of a payment of 11,000 rupees, 565 rupees having in the meantime been paid by <ORG>. The state of matters accordingly was that, on the date last mentioned, namely the 4th March, 1903, U <NAME> and his wife became by ex facie absolute conveyances from <NAME> and his wife vested in all the properties in suit.

4. <NAME> was no party to these later transactions, but there is some correspondence showing that his part in the transaction was that he was desirous of having, and he obtained the benefit of, a reduction in the rate of interest from 18 per cent. per month to 1 per cent.

5. Then, on the 20th November, 1905, <NAME> conveyed to the <NAME> his equity of redemption. The footing upon which this deed was granted was manifestly that <NAME>, notwith. standing the absolute conveyances, still considered himself as only having granted mortgages over his property, and having therefore an equity of redemption thereon, which he was free to disposo of.

6. <NAME> having died, his widow and children brought this suit for possession of the lands, it being directed against <NAME> and his wife. They resist possession being given, and maintain in substance that, although the conveyances to <NAME> and his wife bear to be absolute in form, it was well known to them that the true nature of the transaction was one of mortgage upon the security of the properties. In particular, it is maintained that <NAME> and his wife knew that <NAME> and his wife, who purported to grant the convey- ance in absolute terms, were not in fact the owners of the property, but themselves only lenders thereon. This is an important consideration, as will afterwards appear, because it amounts to this: that the transfer, although ex facie of the deeds absolute in form, was in truth and to the knowledge of both parties a transfer a non domino. The dominus was <NAME>, who was not a grantor. In short, the <NAME>s were purporting to sell and the <NAME>s purporting to buy what both the nominal sellers and buyers knew to belong to somebody else.

7. When the matters in dispute were before this <ORG> upon a former occasion, it was decided that evidence upon the topics above mentioned could be received, but no final judgment was given as to the effect to be given to such evidence after its reception.

8. The proof having been taken, their Lordships are now in possession of the facts and of concurrent findings upon the most important of these. It may be well to note how this stands. The learned Judge of <ORG> (Original Civil Jurisdiction) puts the matter thus :-

The evidence in ray opinion taken as a whole, coupled with the conduct of the parties, shows that <ORG> and defendant meant their dealings resulting in Exhibits C and D to be mortgages. It is clear that <ORG>'s object in the negotiations, which resulted in Exhibits A and B, was to transfer defendant's mortgage to his relative <ORG> at a lower rate of interest, and <ORG>'s letters show he knew this and agreed to take over a mortgage. If he deliberately got deeds of sale executed, it was a gross fraud on <ORG>, and the evidence is admissible to show this. He now endeavours to profit by his fraud or has since determined to try and get the property by taking advantage of the old Purmese custom of taking a sale deed where a mortgage only was sontemplated. He cannot profit by this fraud.

I therefore hold that defendants were mortgagees only and that <ORG> had notice of the fact.

9. Upon appeal in <ORG> (Civil Appeal) the learned Judges hold :

If, however, evidence is admissible for the purpose of showing what was the real transaction ; the facts (apart from the evidence which has been admitted under Section 33 of the Evidence Act) would clearly show that the parties concerned, viz. : <NAME>, defendant <NAME> and <NAME>, all intended that <NAME> and his wife should take a transfer of the defendant's mortgages in the form of outright sales.

10. Upon the non-admissibility of the evidenco reliance is placed by the respondents upon Section 92 of the Indian Evidence Act of 1872. It provides that when the terms of a contract, grant, or disposition are reduced to writing "no evidence of 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." The first proviso is to the effect that "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..., want of failure of consideration, or mistake in fact or law.

11. Founding upon this section, the respondents maintain that the whole of the evidence led must be rejected. On the contrary, the appellants maintain that, notwithstanding the terms of the section, they are entitled to set up and prove the acts and conduct of the parties as inconsistent with the transfer of property and only consistent with the true nature of the transaction having been one of mortgago or transfer of mortgage. They found upon a considerable body of authority to that effect, the cases cited being <NAME> v. <NAME> (1880) I.L.R. 4 Bom. 594; <CITATION> (1883) I.L.R. 9 Cal. 528.; <CITATION> (1892) I.L.R. 16 Mad. 80; Preonath Shaha v. Madhu Sudan Bhuiya (1893) I.L.R. 25 Cal. 603, f.b.; <CITATION> (1961)I.L.R. 28 Cal.9 256 and <CITATION> (1901) I.L.R. 28 Cal. 289. The judgment of Mr. Justice <NAME> in the first of these cases is repeatedly founded upon in the course of the series, in which that learned Judge expressly followed the English equity doctrine as expressed in <NAME> v. <NAME> (1859) 4 Do G. & J. 16 by Lord Justice <NAME> thus :-

The principle of the Court is, that the Statute of Frauds was not made to cover fraud. Ii the real agreement in this ease was that as between the Plaintiff and <NAME> the transaction should be a mortgage transaction, it is in the eye of this Court a fraud to insist on the conveyance as being absolute, and parole evidence must he admissible to prove the fraud.

12. In the opinion of their Lordships, this series of cases definitely ceased to be of binding authority after the judgment of this Board pronounced by Lord <NAME> in the case of <NAME> v. <NAME> (1890) L.R. 27 I.A. 58, 65 : 2 Bom. LR. 523. It was there held that oral evidence was not admissible for the purpose of ascertaining the intention of parties to written documents. Lord <NAME> cites Section 92 of the Indian Evidence Act, and adds :-

The cases in <ORG> which were referred to by the learned Judges in <ORG> have not, in the opinion of their Lordships, any application to the law of India as laid down in the Acts of the Indian Legislature. The case must therefore be decided on a consideration of the contents of the documents themselves, with such extrinsic evidence of surrounding circumstances as may be required to show in what manner the language of the document is related to existing facts.

13. Notwithstanding the decision of this <ORG>, howevor, a certain conflict of authority on the subject still remains in India. But the respondents rightly refer to <NAME> v. <NAME> (1901) I.L.R. 25 Mad. 7; <CITATION> (1905) 3 L.B.R. 100 and <NAME> v. <NAME> (1905) I.L.R 30Bom. 119 : 7 Bom. L.R. 669 and in particular to the judgment of Chief Justice <NAME> in the last case. In these the judgment of the <ORG>, as pronounced by Lord <NAME>, has been rightly followed and applied.

14. The principles of equity which are universal forbid a person to deal with an estate which he knows that he holds in security as if he held it in property. But, to apply the principles, you must be placed in possession of the facts, and facts must be proved according to the law of evidence prevailing in the particular jurisdiction. In England the laws of evidence, for the reasons set forth in <NAME> v. <NAME> and other cases, permit such facts to be established by a proof at large, the general view being that, unless this were done, the Statute of Frauds would be used as a protection or vehicle for frauds. But in India the matter of evidence is regulated by Section 92 of the Indian Evidence Act, and it accordingly remains to be asked, What is the evidence which under that statute may be competently adduced? The language of the section in terms applies and applies alone "as between the parties to any such instrument or their representatives in interest." Wherever accordingly evidence is tendered as to a transaction with a third party, it is not governed by the section or by the rule of evidence which it contains, and in such a case accordingly the ordinary rules of equity and gocd conscience come into play unhampered by the statutory restrictions.

15. Their Lordships view the case accordingly as having been dealt with on that footing by their predecessors at the Board. Thus, while in the courso of the judgment of Lord <NAME> reference was made to evidence which might be taken "relating to the acts and conduct of the parties as distinguished from oral evidence and conversations constituting in themselves some agreement between them," nothing was decided upon that head, except that it would give rise to important and difficult questions under the Indian Evidence Act . That question has now been settled by their Lordships, adversely to the reception of the evidence.

16. But the later passage of the judgment of Lord <NAME> is upon a topic much more crucial to the situation which the facts proved in the case admittedly disclose :-

Their Lordships, said he, "however, arc of opinion that the case for the appellants disclosed a charge of fraud against the respondents in relation to matters antecedent to those deeds, on which much of the evidence tendered would certainly be material. Thus it is said that the respondents, or the persons under whom they claim, took absolute conveyances of property from the appellants with notice that they in fact belonged to a third person, namely, the alleged mortgagor, <NAME>. If this be so, Section 92 of the Indian Evidence Act, even if construed according to the respondents' centention, will not avail them. It is applicable to an instrument" as between the parties to any such instrument or their representatives in interest," but it does not prevent proof of a fraudulent dealing with a third person's property, or proof of notice that the property purporting to be absolutely conveyed in fact belonged to a third person who was not a party to the conveyance.

17. Upon the facts it now turns out quite plainly, and it was, indeed, admitted in argument that, when <NAME> took the conveyance from the <NAME>, he knew that it was a conveyance of property which belonged to <ORG>, and that accordingly the grant proceeded a non domino. If Section 92 applied, proviso I would seem to be in point, because it would be a fraud to insist upon a claim to property arising under such a transaction, the claimant knowing that the true owner had never parted with it. But, in the opinion of their Lordships, Section 92 does not apply, because the evidence, the admissibility of which is in question, is evidence going to show what were the rights of a third person, namely <ORG>, in the property, and there are concurrent findings to the effect that the property was in that owner and not in the <NAME>, who to the knowledge of <NAME> never purported to dispose of it as theirs. If a purchaser for onerous consideration and without notice had been the grantee under a deed of absolute conveyance, a totally different set of considerations would have arisen. In the present case, however, both grantor and grantee were dealing with the property of an owner who was a third person, who was not in the language of the statute either a party to the instrument or a representative in interest of a party to the instrument. The evidence led as to that third party's rights is admissible, and, if admissible, is most relevant. Their Lordships do not hold any doubt upon the subject of fact, in that respect entirely agreeing with all the Courts below. It is true that <ORG> felt precluded by the terms of Section 92 of the Evidence Act from agreeing with the Judge of <ORG>, but in the opinion of the <ORG> the section is, in the important particular last dealt with, no bar to the admission of the light on the true situation of the case.

18. Their Lordships will accordingly humbly advise His Majesty that the appeal be allowed, the decree of <ORG> in its appellate jurisdiction, dated the 3rd August, 1914, set aside with costs, and the decree of <ORG> in its original jurisdiction restored.

19. The respondents will pay the costs of the appeal.