Venkatasubba Rao, J.
1. This suit has been instituted by the plaintiff to enforce a mortgage executed by the 1st defendant. Subsequent to the date of the mortgage, the 1st defendant sold the second item of the properties mortgaged to Subbiah, the father of the 3rd defendant. The contest is now between the plaintiff and the 3rd defendant. The latter pleads that the plaintiff agreed to release the item purchased by Subbiah and to confine his mortgage right to the other properties mentioned in the deed of mortgage. The first question that has to be decided is, whether the plaintiff did agree to release the second item. The learned District Munsif found it somewhat difficult to decide this question on account of the fact that at least three conflicting versions were placed before Him. It is not necessary for me to refer at any length to the evidence on this part of the case. The learned Munsif has found that the plaintiff did agree to release the property. The oral evidence was meagre in the extreme. But the probabilities strongly pointed to the fact that the agreement set up was true. The sale-deed in favour of Subbiah referred to the outstanding mortgage. There is a recital in the sale-deed that, out of the price, a sum of Rs. 600 was paid to the 1st defendant in order to enable him to pay it in part discharge of the mortgage in favour of the plaintiff. After the sale-deed was executed by the 1st defendant and attested by several witnesses, it was taken to the plaintiff who was living in a different village for the purpose of his attestation being obtained. The plaintiff attested the deed and received Rs. 300 in part payment of his mortgage. There is some dispute regarding the balance of Rs. 300 out of the sum set apart, namely, Rs. 600, but that has no bearing on this part of the case, for, in any event, it is clear that some amount out of the consideration for the sale was received by the plaintiff towards the mortgage. Mainly relying on this and similar circumstances, the District Munsif found that the plaintiff agreed with Subbiah to release item 2 of the mortgaged properties. The Subordinate Judge concurred in this finding and in Second Appeal this finding must be treated as final.
2. The Lower Courts having found that there was an agreement as pleaded by the 3rd defendant, the further question that had to be decided was, who were the parties to this agreement? It was assumed by the District Munsif as well as the Subordinate Judge that if the parties to the agreement were the plaintiff, the 1st defendant and Subbiah, oral evidence of that agreement would be inadmissible under Section 92 of the Evidence Act. Under that section, no evidence of any oral agreement between the parties to the original instrument or 'their representatives in interest is admissible for the purpose of contradicting, varying, adding to or subtracting from the terms of such instrument. Both the Lower Courts dealt with the case on the footing that all the three were parties to the agreement and that oral evidence could not be given of it. It is unnecessary to enquire whether if the subsequent oral agreement pleaded was between the plaintiff, the 1st defendant and Subbiah, evidence of it is or is not admissible. The Lower Courts failed to direct their attention properly to the point at issue. I have searched in vain for a finding on this point in the long judgment of the District Munsif : There is no distinct finding in his judgment at all. This is not disputed at the bar. The Munsff overlooked the fact that he did not give a finding and when discussing the law on the subject he assumed that he had found on this point against the 3rd defendant. In the absence of any criticism of the evidence or any discussion of the matters that had to be considered in relation to this issue, I cannot treat the judgment of the District Munsif as containing a finding upon this very material point, viz., who the parties were to the subsequent oral agreement.
3. The learned Subordinate Judge made also a mistake, one which goes to the very root of the matter. Having said in his judgment that the District Munsif's view that there was an agreement was correct, he definitely put to, himself the question 'who were the parties to the agreement'? The answer is somewhat obscure. The Judge seemed to think that the real parties to the agreement were the plaintiff and Subbiah, but that the 1st defendant was also present at the time of the agreement. The mere presence of the 1st defendant in the Judge's opinion made him a party to the agreement. If the Subordinate Judge held that as a fact, the 1st defendant was also a party to the agreement, whether his conclusion was correct or not, it would, at any rate, be intelligible. I would then not be justified in interfering with his finding. But the whole of this part of the Subordinate Judge's judgment is vitiated by a fundamental error. Whether the 1st defendant was a party to the agreement or not must be decided on the evidence. If he was not in fact a party, he could not be said by a fiction of law to be a party merely because he was present at the agreement or paid a sum of money to the plaintiff.
4. In this state of things, I was taken through the whole evidence myself. I have come to the conclusion that the only parties to the agreement were the plaintiff and Subbiah. The Subordinate Judge says that, the 1st defendant in the witness box did not speak to the release of item 2. If, according to the 1st defendant, there was no such agreement, it follows that he could not be a party to it at all. But I find that the Judge omitted to notice that in cross-examination the 1st defendant referred to the agreement but it was not elicited from him whether or not he was a party to it. Then again, D. W. 4 referred in his evidence to the agreement by the plaintiff to release the property. No questions were put to this witness either to elicit further particulars. There are two circumstances which have an important bearing on this point. The Lower Court points out in its judgment that when final negotiations were proceeding the plaintiff and Subbiah retired into the interior of the house and had a private talk. It was only subsequent to this incident that the plaintiff attested the sale-deed. The District Munsif points out that Subbiah and the plaintiff were near relations and that it was Subbiah that was able to prevail upon the plaintiff to release the property. These two circumstances in the light of the evidence in the case make it highly probable that the agreement was between Subbiah and the plaintiff alone. It is not necessary to deal with this question in greater detail. It is conceded that the evidence is very meagre and on a very careful consideration I have come to the conclusion that the only parties to the agreement were Subbiah and the plaintiff.
5. The words 'representatives in interest' in Section 92 were construed in Goseti Subbarao v. Varigonda Narasimham (1903) ILR 27 M 368 : 14 MLJ 218. Subramania Aiyar and Boddam, JJ., held that the section had no application if only some of the representatives were parties to the later oral agreement. To the instrument in question the parties were the plaintiff and the 1st defendant. Subbiah who purchased only a portion of the mortgaged property is not under Section 92 precluded from giving oral evidence of the agreement. The evidence, therefore, of the agreement set-up was admissible and the judgment of the Lower Court is set : aside and the appeal is allowed. The 3rd defendant will have his costs throughout from the plaintiff.