1. On the 25th of December 1875, the plaintiff's adoptive mother and guardian, Balambaboye Ammal, and his natural father, Narayana-sami Panditar, both apparently acting on behalf of the plaintiff, who was then a minor, executed a deed mortgaging certain lands, the property of the plaintiff, to the defendant, Tiruvengada Ayyangar. The consideration for the mortgage mentioned in the deed was that the defendant would pay certain debts due by the plaintiff, and amongst others a sum of Rs. 1,801-10-8 due to one Kuppusami Panditar. The defendant failed to pay Kuppusami Panditar, who accordingly brought a suit (No. 268 of 1877) against Narayanasami and the present defendant for recovery of the debt. The present defendant appears to have pleaded in that suit that Kuppusami had no cause of action against him, and that there was an oral agreement that Kuppusami was to give him a bond of indemnity in case the minor, on coming of age, should repudiate the debt, and that, as he had not received such bond of indemnity, he was not liable. In the result Kuppusami obtained a decree against Narayanasami alone, the suit being dismissed as against the present defendant.
2. The present suit has been brought to recover from the defendant, with further interest, the amount which Narayanasami had to pay on plaintiff's account under that decree by reason of the defendant having failed to pay Kuppusami's debt. The defendant, among other matters which it is not necessary for us to notice, pleaded a contemporaneous oral agreement by Narayanasami that he or Kuppusami would execute a bond of indemnity in favour of the defendant in case the minor on coming of age should repudiate the debt; and that, Narayanasami having failed to give him such bond of indemnity, he was not obliged to pay the debt.
3. The Subordinate Judge, finding that Narayanasami had so agreed on behalf of plaintiff and had failed to execute a bond of indemnity, dismissed the suit with costs.
4. On appeal made on behalf of the plaintiff, the District Judge was of opinion that with reference to Section 92 of the Evidence Act no evidence could be received of any contemporaneous oral agreement to add to the terms of the mortgage instrument. But that the defendant by accepting and retaining his mortgage lien had made himself liable for damages caused to the plaintiff by partial failure of the consideration. He therefore reversed the decree of the Subordinate Court and gave a decree in plaintiff's favour for Rs. 2,106-10-7, being the amount decreed in Kuppusami's suit, minus Rs. 444, which he found had been paid.
5. The instrument marked A in this suit is one by which certain property is conveyed in mortgage to the defendant for ten years, and the consideration is recited to be that the defendant is to pay certain debts. The instrument is signed by the plaintiff's adoptive mother and by his natural father. But it has not been signed by the defendant, and it contains no promise by him that he will make such payments. If it appeared that the instrument was intended to contain the whole of the agreement between the parties, then it could not be added to or varied by evidence of any contemporaneous oral agreement. But this instrument contains only the deed of those who acted on behalf of the plaintiff. We are informed that there is no counterpart signed by the defendant; and any promise on his part to pay Kuppusami's debt must have been outside of the instrument in question, and probably an oral promise, to which Section 92 of the Evidence Act would not apply. We must, therefore, reverse the decree of the District Court and remand the appeal for adjudication on the merits. The costs of this appeal will abide and follow the result.
6. (After stating the facts, proceeded as follows):
The appellant's defence was that, in regard to Kuppusami's debt, his agreement had been conditional only--that it had been agreed between himself and Narayanasami that he was only to pay upon Narayanasami or Kuppusami undertaking to indemnify him in the event of the minor repudiating the debt--and he had raised the same plea in Kuppusami's suit, though eventually it became unnecessary to decide it. The Court of First Instance allowed the plea and dismissed the suit. In appeal the District Judge rejected the evidence, by which the plea had been supported, on the ground that it was inadmissible under Section 92 of the Evidence Act to add to the terms of the document A. The question now before us is whether that evidence was admissible.
7. Now, in the first place, A is not the appellant's contract but a mortgage executed to him in consideration of what he had himself undertaken. Whereas the appellant had undertaken to pay off Kuppusami's and other debts, the guardian recites that she had thereby received Rs. 13,000 and proceeds to execute a mortgage for that amount. There is no counterpart showing the exact nature of the appellant's undertaking, and the document A does not profess to do more than show that there had been an agreement which formed the consideration for the mortgage. If the consideration failed in part, the sum secured by the mortgage would of course have been pro tanto diminished. Upon this ground alone I agree that the decree must be set aside and the appeal remanded.
8. But even assuming that the appellant's undertaking was intended to be reduced to writing, the third proviso to Section 92 allows proof to be given of 'the existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under' a written contract. If the alleged condition applied to all the debts instead of to Kuppusami's alone, there is no doubt that it might be proved by oral evidence, because then no obligation whatever would have attached to the appellant until the condition had been fulfilled.
9. If his plea is of a condition applicable to only one of the debts, then it was not a condition precedent to the attaching of any obligation whatever, and it has been held by Garth, C.J., in Jugtanund Misser v. Nerghan Singh I.L.R. 6 Cal. 435 that 'the true meaning of the words any obligation' in Proviso (3) is, any obligation whatever under the contract, and not some particular obligation which the contract may contain.' But the appellant's undertaking was of a very different character from that which the learned Chief Justice had before him. It is an engagement to pay several debts, and I am not sure that the obligation to pay each cannot be regarded as perfectly distinct and separate from the obligation as to the others. The condition set up goes to the root of the obligation to pay Kuppusami; and as a condition precedent to the attaching of any obligation in regard to him or the subject-matter of the present suit, I am disposed to hold that upon this ground also it might be established by oral evidence.