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Dondapati Lakshminarasimha Rao Dondapati Rama Rao Vs. Gundabathula Raghavamma and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in162Ind.Cas.53a
AppellantDondapati Lakshminarasimha Rao Dondapati Rama Rao
RespondentGundabathula Raghavamma and ors.
Cases ReferredMallappa v. Matum Nagu Chatty
Excerpt:
evidence act (i of 1872), section 92(4) - mortgage--oral agreement operating to discharge or satisfy the mortgage--admissibility. - .....of section 92(4) of the evidence act. section 92(4) prohibited the admissibility of a subsequent oral agreement to rescind or modify any contract, grant, or disposition of property which is by law required to be in writing or which has been registered according to the law in force for the time being as to the registration of documents but it does not preclude the admissibility of any transaction or contract in satisfaction or discharge of the obligation arising thereunder. as observed by sadasiva ayyar, j. in ariyaputhira padayachi v. muthu kumara swami (1912) 37 m 424 : 15 ind. cas. 343 : 12 m l t 425 : 23 m.l.j. 339 : (1912) m w n 854.a mortgage might even, if created by a registered instrument, be proved to nave been extinguished by lotting inadmissible (including oral evidence) of.....
Judgment:

Venkataramana Rao, J.

1. This is a suit for the recovery of a sum of Rs. 583 being the balance of principal and interest alleged to be due on the foot of a simple mortgage bond dated October 28, 1918, executed by defendants Nos. 1 to 4 for Rs. 340 in favour of the father of the plaintiffs and the 5th defendant. The 5th defendant separated from the father of the plaintiffs and thereafter the interest in the mortgage bond vested in the plaintiff's father and after their father's death in the plaintiffs. The defence is that in Fasli 1335 the amount approximately due and payable in respect of the mortgage bond was abount Rs. 400, and it was then arranged between the plaintiffs' father and the defendants that the plaintiffs' father should enjoy the land. Item No. 1 of the plaint property being one of the items in the mortgaged property for a period of five years from Fasli 1335 in full satisfaction of the mortgage and the plaintiffs' father was accordingly let into possession of the said land and the plaintiffs' father and after his death the plaintiffs have been in enjoyment of the rents and profits thereof and the mortgage has accordingly been discharged. The learned District Munsif who tried the suit gave a decree in favour of the plaintiffs finding against the plea of the defendants. The learned Subordinate Judge reversed his decision and dismissed the plaintiffs' suit upholding the plea of discharge set up by the defendants.

2. It is contended in appeal on behalf of the plaintiffs by Mr. P. Somasundaram that the agreement pleaded is in contravention of Section 92(4) of the Evidence Act and therefore, should not be received in evidence and all that the defendants would be entitled to, will be to get credit for the rent realised towards the mortgage debt and relied strongly on the decision reported in Kattika Bapamma v. Kattika Krishnamma 30 M 231. I am of the opinion that the agreement pleaded is admissible in evidence and is not in contravention of Section 92(4) of the Evidence Act. Section 92(4) prohibited the admissibility of a subsequent oral agreement to rescind or modify any contract, grant, or disposition of property which is by law required to be in writing or which has been registered according to the law in force for the time being as to the registration of documents but it does not preclude the admissibility of any transaction or contract in satisfaction or discharge of the obligation arising thereunder. As observed by Sadasiva Ayyar, J. in Ariyaputhira Padayachi v. Muthu kumara Swami (1912) 37 M 424 : 15 Ind. Cas. 343 : 12 M L T 425 : 23 M.L.J. 339 : (1912) M W N 854.

A mortgage might even, if created by a registered instrument, be proved to nave been extinguished by lotting inadmissible (including oral evidence) of payment of the mortgage amount or by Jetting in admissible evidence of any other transaction which operates as a mode of payment.

3. The same view has been taken by Curgenven, and Anantakrishna Ayyar, JJ., in Balam Nookamma v. Sadireddi : AIR1928Mad233 , and they held that an oral agreement providing for repayment of a mortgage debt from the usufruct of the mortgaged property can be proved in evidence and observed that the arrangement amounted only to a means for discharging the debt by putting the simple mortgagee in possession of the property. Two decisions were cited with approval, one of the Allahabad High Court in Ram Bakhsh v. Durjan 9 A 392 : A W N 1887, 65, and the other of the Calcutta High Court in Kamla Sahai v. Babu Nandan Mian 11 C L J 39 : 2 Ind. Cas. 13. The latter decision is on all fours with the facts of the present case. In that case, to an action to enforce a mortgage the defence was that after the execution of the mortgage the mortgagor placed the mortgagee in possession of the mortgaged premises under an agreement by which the mortgagee was to continue in possession for seven years and to receive the profits in full satisfaction of the amount due under his mortgage. The learned Judges held that the arrangement set up does not alter, contradict or add to or subtract from the terms of the original agreement but merely provides means for the satisfaction of the bond and, therefore, evidence of such an arrangement could be given without infringing the provisions of Section 92. Mr. Somasundaram contends that the decisions in Kattika Bapamma v. Kattika Krishnamma 30 M 231, lays down a contrary principle and it was not considered by the learned Judges in Balam Nookamma v. Sadireddi : AIR1928Mad233 . It seems to me that, if the facts on which the decision in Kattika Bapamma v. Kattika Krishnamma 30 M 231, was given are examined, the decision in no way conflicts with the decision in Balam Nookamma v. Sadireddi : AIR1928Mad233 . In Kattika Bapamma v. Kattika Krishnamma 30 M 231, there was a registered deed of maintenance executed by A in favour of B to give the latter an annual payment by way of maintenance. Subsequently when the suit was brought to enforce the arrests of maintenance due thereunder, it was sought to be placed in answer that A unable to pay maintenance at the rate provided in the deed entered into an oral agreement with B under which he gave B possession of a certain land to be enjoyed by her for her life time. The learned District Munsif in that case negatived the defence holding that Section 92(4) precluded evidence of such an agreement being given. On appeal the learned District Judge was of opinion that it only provided for its discharge and, therefore, evidence could be given and relied upon the decision in Ram Bakhsh v. Durjan 9 A 392 : A W N 1887, 65. Their Lordships disagreed with the view expressed by the learned Judge that the agreement provides means for a discharge and held that it substituted an obligation varying or differing from that provided in the registered deed and, therefore, under Section 92 of the Evidence Act evidence of such an arrangement could not be given. In the course of the judgment their Lordships observe:

The plaintiff is entitled to future maintenance at the rate stipulated in the original agreement. But this being a suit for arrears of maintenance for certain years, it was open to the defendant to plead as he has pleaded that in discharge of the defendant's obligation to pay maintenance for such years, she agreed to take and took possession of certain lands; and it is immaterial that she is alleged to have taken possession of the land in pursuance of an agreement which cannot be proved. The case appeals to be on all fours with Karampathi Unni Kurup v. Thekku Vittil Muthorakutti 26 M 195, and also to be governed by Gosetti Subba Rao v. Varigonda Narasimham 27 M 368. The defendant cannot prove the agreement to dischage the claim for maintenance on the manner alleged; but he may prove that the arrears have been, in fact, discharged in the manner alleged.

4. As I understand this judgment, what their Lordships meant is that the agreement itself is inadmissible in evidence as the obligation under the original agreenment is sought to be varied or substituted; but in so far as the arrears are concerned, putting the plaintiff in possession of the lands might be pleaded as a discharge of the arrears, (Vide Vaidyanatha Rao v. Kandappa Chetty 54 M 889 : 132 Ind. Cas. 292 : 33 L W 517 : Ind. Rule (1931) Mad. 614 : A.I.R. 1931 Mad. 636 : 61 M.L.J. 556. I do not agree with Mr. Somasundaram that the language used by their Lordships ''arrears have been in fact discharged' indicates that an account should be taken of the value of the rents and profits. Even assuming it was so, in that case, probably as the agreement itself could not be pleaded in discharge of the obligation, their Lordships were inclined to the view that the actual realisations from the land may be admissible in evidence for proving payments in discharge of the arrears. The learned Judges do not refer to Ram Bakhsh v. Durjan 9 A 392 : A W N 1887, 65, nor dissent from the view expressed therein where a contemporary oral agreement putting the mortgagee in possession of the property was allowed to be pleaded in discharge; on the other hand, the reference to the two decisions, Karampathi Unni Kurup v. Thekku Vittil Muthorakutti 26 M 195 and Gosetti Subba Rao v. Varigonda Narasimham 27 M 368, seems to support the view that if the argument was really one which would discharge the obligation, it is permissible, to plead such an agreement. In Karampathi Unni Kurup v. Thekku Vittil Muthorakutti 26 M 195, the action was to recover rent for two years under a registered lease. The defendant pleaded a subsequent oral agreement by the plaintiff to remit a portion of the rent each year. For one of the years he filed a receipt by which the plaintiff accepted payment at a reduced rate. Their Lordships held that the oral agreement is inadmissible as being in contravention of the terms of the registered deed, but the discharge as evidenced by receipt is permissible though a reduced rate was accepted. The reasons alleged by the learned Judges were that:

Under Section 63 of the Contract Act a promisee may remit in whole or in part the performance of the promise made to him or may accept instead of it any satisfaction which he thinks fit. The fact that he did so in pursuance of an alleged prior oral agreement is immaterial and the discharge, as such, will take effect under Section 63.

5. In Gosetti Subba Rao v. Varigonda Narasimham 27 M 368, a suit was brought on the basis of a usufructuary mortgage-deed and the defence raised by the mortgagor was that under an oral agreement with the mortgagee half the mortgaged property had been redeemed by payment of Rs. 600 and that he is in possession of the property redeemed. Their Lordships held that such an agreement could be pleaded. Their Lordships observe at p. 372: Page of 27 M.--[Ed.]

The original contract remains and is not rescinded or modified; but he (the mortgagor) says that by an oral agreement made between himself alone and the plaintiff's adoptive mother and guardian, that is the plaintiff's representative; (who is the mortgagee) a new and separate agreement has been made between them whereby it has been held that he should be permitted to redeem half the mortgaged property by paying off half the mortgage money and receiving back possession of half the lands mortgaged. What he alleges is that as between himself and the plaintiff he is discharged from the contract so far as that is possible,' * * * * 'Section 92 of the Evidence Act does not apply to such a case,...** and the proviso only applies where the original is rescinded or modified and does not apply where a subsequent contract is made independent of the original contract that one party shall be discharged from it so far as that can be done as between the parties to the subsequent contract and I know of no provision of law which presents such a subsequent contract being proved even though it be an oral contract only.

6. In this case the contract was that the property should be put into possession for a period of five years. In my opinion, the oral contract is admissible and further the oral contract was followed by delivery of possession of land. Therefore, the contract to let and the letting into possession for five years operate as a discharge of the obligation and in no way offend the proviso to Section 92. Mr. Somasundaram relied on the Full Bench decision in Mallappa v. Matum Nagu Chatty 42 M 41 : 48 Ind. Cas. 158 : 8 L W 522 : (1918) M W N 719 : 35 M.L.J. 555 : 24 m L T 400. In that case in a suit upon a mortgage bond an oral agreement by which the mortgagee agreed to accept a lesser sum was held inadmissible in evidence on the ground that the effect of the arrangement was to alter the terms of the original contract, Seshagiri Iyer, J. observed:

that an agreement which in future will have the effect of putting an end to the ability must be regarded as a subsequent agreement modifying the original contract.

7. Therefore, where the agreement operated as a present discharge of the obligation, Section 92(4) does not prevent evidence of such an agreement being given. Further in this case the agreement to take and taking possession of the land for a period of five years were deemed by the parties as fulfilment of the obligation under the bond and not in any way altering the terms of the contract tract by taking a lesser sum than was provided in the bond. Therefore, the Full Bench decision does not apply to the facts of this case. Thus the mortgage must be deemed to have been discharged. In this view the decision of the lower Appellate Court is right and the second appeal fails and is dismissed with costs.

8. Leave refused.


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