1. This is an appeal by some of the defendants in a suit for sale on foot of a mortgage of the 30th, of April, 1919 which had been executed by one Mr. Muhammad Ismail Khan in favour of the plaintiff-respondent.
2. Muhammad Ismail Khan died on the (sic) of November, 1919. In September, 1919 Muhammad Ismail Khan had executed a deed of waqf. Ex. 10, by which he had appointed certain persons as mutwallis. Defendants Nos. 1 4 are the legal heirs of Muhammad Ismail Khan defendants Nos. 5-9 are the trustees under the waqf and the 10th defendant is a subsequent mortgagee of the property in suit. Various pleas were taken by the defendants and the points that were in controversy before the Court below were whether Muhammad Ismail Khan had validly executed the mortgage, and the mortgage was legally enforceable, and whether the rate of interest was excessive and the last question, which was the only question in controversy before us, was whether an agreement had been entered into between the plaintiff Nannhe Mal and the mutwallis on the 19th of December, 1924 that in full satisfaction of the, mortgage debt the plaintiff would take a conveyance of six shops and a sum of Rs. 7,000 in cash.
3. The learned Subordinate Judge has decided all the issues in favour of the plaintiff. He found that the defendants had not proved the alleged agreement and further the evidence was admissible to prove the agreement which would have amounted to a variation of the original contract, namely, that entered into by Muhammad Ismail Khan with the plaintiff on the 9th of December, 1919.
4. The appellants before us who are the heirs of Muhammad Ismail Khan and a trustee had in their grounds of appeal taken various points. The only point which has been seriously put forward before us is as regards the question whether the agreement of the 19th of December 1924 could have been legally proved and whether defendants had proved that agreement. We have come to the conclusion that the finding of learned Subordinate Judge on both the points is correct. On the date when the agreement was entered into it cannot be denied that a sum of Rs. 1,20,000 was due to the plaintiff on the mortgage. The case for the defendants is that the plaintiff agreed in full satisfaction of the mortgage to take a conveyance of six shops valued at Rs. 95.000 and Rs. 7,000 in cash that is a total sum of Rs. 1,20,000. According to the plaintiff the value of the shops is much less than Rs. 95,000 but it is unnecessary for the purpose of this case to consider what was the real value of the shops.
5. We are of opinion that the oral agreement amounted to a modification of the original contract and was inadmissible under Section 92 Clause 4 of the Evidence Act. It is unnecessary to refer to all the cases cited before us. We agree with what was held in the case of G.P. Mallappa v. Natam Naga Chetty 48 Ind. Cas. 158 : 8 L.W. 522 : (1918) M.W.N. 719 : 35 M.L.J. 555 : 24 M.L.T. 400.