1. The appeal raises a somewhat difficult question of law. The plaintiff owed money to defendant No. 1 who was conducting a chit-fund, on a deed of mortgage. It is common ground that he paid to defendant No. 1 on 5th July 1919, a sum of Rs. 3,500. His case, shortly, is this:--that defendant No. 1 who had a decree against his father-in-law asked him to discharge it and that they eventually agreed that the contract rate of interest on the mortgage should be reduced and that the balance of the above sum of Rs. 3,500 should be directed to discharging the decree, which was to be assigned to the plaintiff. An endorsement was made on the deed of mortgage to the effect that it had been fully discharged by a final payment of Rs. 1,500 although much more was due. Defendant No. 1, however, failed to assign the decree and the plaintiff accordingly brought a suit to recover Rs. 1,500 odd, which was the amount due on the decree. Defendant No. 1 denied the alleged agreement. The trial Court found against the agreement and dismissed the suit. The lower Appellate Court came to a different conclusion on the facts and gave the plaintiff a decree for the amount claimed by him.
2. It is now argued that the agreement set up by the plaintiff to receive a lesser amount than was due on the mortgage in full discharge of it cannot be proved under Section 92(4) of the Evidence Act and Section 17(b) of the Registration Act. The argument is supported by the decision of a Full Beach of this Court in Mullappa v. Matam Naga Chetty 48 Ind. Cas. 158 : 8 L.W. 522 : (1918) M.W.N. 719. The same view was taken in two other cases from this Court, Namagiri Lakshmi Anmal v. Srinivasa Aiyangar 27 Ind. Cas. 269 and Chundooru Lakshmana Setty. v. Duggisetty Chenchuramayya 44 Ind. Cas. 132 : (1918) M.W.N. 262 and also in a Bombay case, Jagannath Kashiram v. Shankar Ganpat 51 Ind. Cas. 689.
3. Two other decisions have been cited in Karampalli Unrti Kurup v. Thekku Vittil Muthorakutti 26 M.k 195 and Kattika Bapanamma v. Kattika Kristnamvia 17 M.L.J. 30 which seem to lay down that, though the oral agreement cannot be proved, the actual discharge can. They were referred to and relied on in the argument before the learned Judge who decided the case of Jagannath Kashiram v. Shankar Ganpat 51 Ind. Cas. 689 but they preferred to follow Mallappa v. Matam Naga Chetty 48 Ind. Cas. 158: (1918) M.W.N. 719. I think that that decision is conclusive and allow the appeal, dismissing the plaintiff's suit' with costs throughout.