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Valipireddy Papi Reddy (Minor) by Next Friend and Mother Ademma Vs. Valipireddy Narayana Reddy - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1936Mad841; 165Ind.Cas.669; (1936)71MLJ522
AppellantValipireddy Papi Reddy (Minor) by Next Friend and Mother Ademma
RespondentValipireddy Narayana Reddy
Cases Referred and Panchapakesa Aiyar v. Ayyaswami Aiyar
Excerpt:
- - this is distinctly prohibited by section 92 of the evidence act......nominally and that he was therefore not liable for the suit claim. the question was whether oral evidence can be adduced in support of the plea thus raised by the defendant. where a parol agreement is afterwards reduced by the parties into writing, that writing alone must be looked into to ascertain the terms of the contract. here the terms of the arrangement having been reduced to writing as evidenced by the mortgage it will not be open to the defendant to set up that the arrangement as embodied in the mortgage deed is not what it purports to be but something different. this is distinctly prohibited by section 92 of the evidence act. but mr. somayya contends that he is entitled to let in evidence under proviso 3 to section 92 of the evidence act which provides that:the existence.....
Judgment:

Venkataramana Rao, J.

1. This appeal arises out of a suit to recover a sum of Rs. 2,648 alleged to be due for interest for 4 years on a mortgage deed dated 8th September, 1921, executed by the defendant in favour of the plaintiff. The defendant is the paternal uncle of the minor plaintiff. They were both members of a joint family. In 1921 they effected a division of their joint family property and in the said division among other properties outstandings to the extent of nearly Rs. 10,000 fell to the share of the minor plaintiff. In regard to the said outstandings an arrangement seems to have been come to subsequently between the plaintiff's mother as guardian on behalf of the plaintiff and the defendant. The arrangement appears to be this; the defendant should take over all the said bonds absolutely for himself and pay the minor plaintiff Rs. 10,000 within a period of 12 years in the meantime paying interest on the said sum of Rs. 10,000 at the rate of eight annas per month every year. As security for the repayment of the said sum he is to execute a mortgage of his property undertaking not to alienate the same till the said debt is discharged. The terms of the said arrangement were reduced to writing as evidenced by the deed of mortgage dated 8th September, 1921. The case of the plaintiff is that from the date of the said mortgage the defendant was regularly paying interest but from 1928, he committed default and accordingly the said suit was instituted for the recovery of interest for 4 years from 1928 to 1932. The defendant admitted the execution of the mortgage bond and contended that he did not take over the bonds as alleged but that he was only to collect the money due on the said bonds and pay over to the plaintiff's guardian the moneys as and when collected, that the mortgage bond was only a security for the due performance of the said obligation, that the stipulations in the mortgage deed as to the time for payment of the principal and as to the payment of interest were all inserted nominally and that he was therefore not liable for the suit claim. The question was whether oral evidence can be adduced in support of the plea thus raised by the defendant. Where a parol agreement is afterwards reduced by the parties into writing, that writing alone must be looked into to ascertain the terms of the contract. Here the terms of the arrangement having been reduced to writing as evidenced by the mortgage it will not be open to the defendant to set up that the arrangement as embodied in the mortgage deed is not what it purports to be but something different. This is distinctly prohibited by Section 92 of the Evidence Act. But Mr. Somayya contends that he is entitled to let in evidence under proviso 3 to Section 92 of the Evidence Act which provides that:

The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.

2. And this contention prevailed with the learned District Judge in the Court below. It seems to me that this contention is untenable. As stated by Ameer Ali and Woodroffe in their book on the Law of Evidence at page 653, 9th edition:

The condition precedent to which that proviso refers is a condition the subject-matter of which is de hors the contents of the instrument, and therefore if effect be given to this condition it cannot affect the terms of the document itself.

3. It will be seen that the effect of permitting oral evidence will be running counter to this principle and to directly contradict the terms of the document. Mr. Somayya very strongly relied on two cases, E. Sundaram Chetty v. B. Damodara Chetty (1924) 84 I.C. 146 and Panchapakesa Aiyar v. Ayyaswami Aiyar (1927) 107 I.C. 510, where oral evidence was permitted to show that a promissory note purporting to be an unconditional undertaking to pay a sum of money was executed as security for the performance of some other obligation and till the breach of that obligation the promissory note will not be operative at all. Therefore Mr. Somayya contended that it was open to his client to show that this mortgage deed was not intended to be operative till the breach of the obligation which he undertook in regard to the collection of the moneys due under the documents as pleaded by him. But it will be seen that the promissory notes in those two cases did not contain the terms of the arrangement in regard thereto and it was open for the executants to let in parol evidence to show de hors the contents of the promissory note, an arrangement which would not contradict the terms of the promissory note and therefore the principle of the said cases cannot apply to the mortgage deed in question. The learned District Munsiff rightly overruled the plea of the respondent and passed a decree in favour of the plaintiff. I therefore reverse the decree of the learned District Judge remanding the suit and restore the decree of the District Munsiff with costs throughout.

(Leave refused.)


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