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iyetaly Surayya and anr. Vs. Nalamilli Venkanna - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in9Ind.Cas.340
Appellantiyetaly Surayya and anr.
RespondentNalamilli Venkanna
Cases Referred and Srinivasaswami Aiyangar v. Athmarama Iyer
Excerpt:
evidence act (i of 1872), section 92(4) - parol agreement by a purchaser of mortgagee's interest to pay consideration to a third party to the credit of mortgagee--admissibility--rights of mortgagee. - - this is clearly an attempted rescission of a contract required by law to be in writing by a subsequent oral agreement, which is forbidden by section 92 proviso 4; and the rulings reported in kattika bapanna v......respectively in this appeal as found by the district judge, was to substitute for the mortgage an oral agreement to the effect that the purchaser would pay a sum of rs. 1,000 (rupees one thousand), the consideration for the deed of sale, to one krishnayya to the credit of the mortgagee. this is clearly an attempted rescission of a contract required by law to be in writing by a subsequent oral agreement, which is forbidden by section 92 proviso 4; and the rulings reported in kattika bapanna v. kattika kistnamma 30 m. 231 : 17 m.l.j. 30 and srinivasaswami aiyangar v. athmarama iyer 32 m. 281 : 19 m.l.j. 280 : 5 m.l.t. 84 : 2 ind. cas. 612 are in our opinion, applicable to this case.2. we need hardly observe that whatever remedies the mortgagee may have under the mortgage will not be.....
Judgment:

1. We think that the objection taken to the judgment of the lower appellate Court founded on Section 92, proviso 4, of the Indian Evidence Act, must be upheld. The effect of the agreement between the purchaser and the mortgagee, the appellant and the respondent respectively in this appeal as found by the District Judge, was to substitute for the mortgage an oral agreement to the effect that the purchaser would pay a sum of Rs. 1,000 (Rupees one thousand), the consideration for the deed of sale, to one Krishnayya to the credit of the mortgagee. This is clearly an attempted rescission of a contract required by law to be in writing by a subsequent oral agreement, which is forbidden by Section 92 proviso 4; and the rulings reported in Kattika Bapanna v. Kattika Kistnamma 30 M. 231 : 17 M.L.J. 30 and Srinivasaswami Aiyangar v. Athmarama Iyer 32 M. 281 : 19 M.L.J. 280 : 5 M.L.T. 84 : 2 Ind. Cas. 612 are in our opinion, applicable to this case.

2. We need hardly observe that whatever remedies the mortgagee may have under the mortgage will not be affected by this decision.

3. We must, therefore, set aside the decree of the District Judge and restore the decree of the District Munsif dismissing the suit. Each party will bear his own costs throughout.


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