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Kamla Sahai Vs. Babu Nandan Mian and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in2Ind.Cas.13
AppellantKamla Sahai
RespondentBabu Nandan Mian and anr.
Cases ReferredAchutarmaraju v. Subharaju
Excerpt:
evidence act (i of 1872), section 92 - mortgage bond--subsequent delivery of possession to mortgagee--satisfaction of mortgagee's dues--proof by oral evidence. - .....to receive the profits in satisfaction of his dues under the mortgage cannot be proved by oral evidence under section 92 of the evidence act. this contention in our opinion is not well founded. section 92 of the evidence act provides that when the terms of any contract, grant or other disposition of property or any matter required by law to be reduced to the form of a document have been proved according to section 91, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from its terms. in order to make section 92 applicable, therefore, it is to be shown that the oral agreement or statement was one which had the.....
Judgment:

1. This is an appeal on behalf of the plaintiff in an action to enforce a mortgage bond which was executed by the first defendant in favour of the second defendant on the 18th June 1897. On the 25th September 1905 the second defendant transferred to the plaintiff his rights under-the mortgage security. The first defendant resisted the claim on the ground that there was nothing due on the bond, as after the. execution of the mortgage he had 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 his dues under the mortgage. The Courts below have concurrently found in favour of the reality of this transaction.. But it has been contended before us on behalf of the appellant that the subsequent arrangement by which the mortgagee was placed in possession and was authorised to receive the profits in satisfaction of his dues under the mortgage cannot be proved by oral evidence under Section 92 of the Evidence Act. This contention in our opinion is not well founded. Section 92 of the Evidence Act provides that when the terms of any contract, grant or other disposition of property or any matter required by law to be reduced to the form of a document have been proved according to Section 91, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from its terms. In order to make Section 92 applicable, therefore, it is to be shown that the oral agreement or statement was one which had the effect of contradicting, varying, adding to, or subtracting from the terms of the original contract. Now, in the case before us, the effect of the subsequent agreement was not to alter, contradict, add to, or subtract, from the terms of the original agreement but merely to provide moans for the satisfaction of the bond.

2. The learned vakil for the appellant contended that the effect of the agreement was, to alter the term as to payment, because whereas under the instrument the mortgage-money was payable on a prescribed date the effect of the agreement was to substitute another mode of payment.

3. In our opinion the effect of the agreement was not to alter the terms of the contract between the parties. The learned vakil for the appellant conceded that if the mortgagor agreed with the mortgagee to pay money in instalments and did actually pay sums according to such agreement, Section 92 would not debar the mortgagor from proving that payments had actually been made. But he contended that although in this case by analogy it might be open to the mortgagor to prove that the mortgagee had received the profits of the mortgaged property, yet it was not open to the mortgagor to prove that it had been agreed upon between himself and his mortgage that the value of the profits so received was sufficient to discharge the mortgage debt or in other words, although it was open to the mortgagor to prove that the mortgage money had been paid not in cash but by the profits of the mortgaged property the agreement in so far as it provided that this pro fit during a certain term was to be received in full satisfaction of whatever was due upon the mortgage could not be established. Obviously there is no force in this contention because the latter part of the agreement does not in any way affect the terms of the original contract. The view that we take was adopted by the learned Judges of the Allahabad High Court in the case of Ram Baksh v. Durjan 9 A. 392. There in defence to a suit upon a hypothecation bond payable by instalments it was pleaded that at the time of the execution of the bond it was orally agreed that the obligee should in lieu of instalments have possession of part of the hypothecated property until the amount due on the bond should have been liquidated from the rents. It was further alleged that in accordance with this agreement the plaintiff mortgagee had obtained possession of the land and that he had thus realised the whole of the amount due upon the mortgage. It was contended that the oral evidence was not admissible in proof of this agreement. The objection was overruled and' it was held that the oral agreement was not one which detracted from, added to, or varied the original contract but only provided for the means by which the instalments were to be paid and that oral evidence was admissible in proof of such an agreement. This decision was subsequently accepted as good law in the case of Indarjit v. Lalcliand 18 A. 168 in which it was ruled that Section 92 does not debar a party to a contract in writing from showing, notwithstanding the recitals in the deed that the consideration specified in the deed was not in fact paid as therein recited, but was agreed to be paid in a different manner. This latter decision of the Allahabad High Court was based upon an earlier decision of this Court in the case of Lala Himmat Sahai Singh v. Llewhellen 11 C. 486. This decision as well as the decision in the case of Indarjit v. Lalchand 18 A. 168 have been repeatedly followed in this Court as good law. It was, however, suggested by the learned vakil for the appellant that the view taken in these cases has been overruled, by implication at any rate, by the decision of their Lordships of the Judicial Committee in the case of Balkishen Das v. F. Legge 22 A. 149 : L.R. 27 I.A. 58 in which it was ruled that oral evidence was not admissible in proof of an alleged agreement that the document which purported on the face of it to be a conveyance was intended by the parties to be in reality a mortgage transaction. The case before us is obviously of an entirely different character. The agreement set up before their Lordships of the Judicial Committee was one which had undoubtedly the effect of contradicting the terms of the original contract. But even as regards this decision of the Judicial Committee, it may be pointed out that there has been divergence of Judicial opinion as to its precise effect. It has been ruled by this Court in the cases of Khankar Abdur Rahman v. Ali Hafez 28 C. 25 and Muhammad All Hossein v. Nazar Ali 28 C. 289 that although oral evidence of the agreement might not be admissible, oral evidence of conduct might be admissible. A contrary view has been taken by the Madras High Court in the case of Achutarmaraju v. Subharaju 25 M. 7. We are not called upon on the present occasion to consider which of these views is consistent with the decision of the Judicial Committee. It is enough for us to hold that the agreement which was set up in this case can be proved by oral evidence. The result, therefore, is that the decree of the Court below must be affirmed and this appeal dismissed with costs.


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