PEAREY LAL Vs. KUNWAR RANI MLHIRA DEVI

JUDGEMENT

(1.) This is an appeal against the judgment and decree dated 11 September 1937 of the Civil Judge of Bijnor by which he reversed the judgment and decree dated 16 February 1937 of the Munsif of Nagina in a suit to enforce a mortgage. The respondent Rani Hira Devi is the proprietor of two villages Fattuwallah and Jogiawallah in the district of Bijnor. On 17 August 1928 she executed a theka of these two villages in favour of Piarey Lal and Babu Ram, the appellants in this appeal. The theka was for a period of 7 years from 1336 F to 1342 F and the rent reserved under the theka was Rupees 3000 for the year 1336 F and Rs. 3350 for subsequent years. To secure the due payment of the lease money, on 17 August 1928 a hypothecation bond, was executed by Piarey Lal and Babu Ram in favour of Rani Hira Devi. On or about 7 April 1930 an arrangement took place between Piarey Lal and Babu Ram on one side and Ani Hira Devi on the other as a result of which Piarey Lal and Babu Ram agreed to advance a sum of Rs. 2000 to Rani Hira Devi towards the lease money and the Rani agreed to remit a sum of Rs. 480 per annum from the rent reserved under the lease. This arrangement was recorded on the back of the said hypothecation bond and two days later a receipt was passed for a sum of Rs. 300 which was paid by Babu Ram and Piarey Lal to Rani Hira Devi. This sum of Rs. 300 was adjusted in such a way so as to show the acting on of the aforesaid arrangement during the year 1336 F. In the year 1931 Rani Hira Devi brought a suit in the revenue Court for recovery of arrears under the theka for the period 1836 F to 1338 F. This claim was for a large sum of money, but on 15 January 1932 a decree was passed for Rs. 4000 odd. The suit in which this decree was passed is No. 170/59. Later on, another suit was instituted by the Rani against the lessees for the recovery of the lease money for 1339 F and a fresh decree was passed on 19 September 1932.

(2.) On 25 October 1934 the Rani instituted the suit out of which the present appeal has arisen to enforce the security bond dated 17 August 1928 and her case shortly stated was that a large sum of money was due to her for arrears under the said decree No. 170/59 of the revenue Court and she prayed that a decree be passed in her favour for a sum of Rs. 4000. This suit to enforce the mortgage of 17 August 1928 was brought on the basis of a copy. The suit was contested by Piarey Lal and Babu Ram and they raised several defences to the action, but we are concerned in this appeal with two of them. They pleaded that the suit was not maintainable on a copy and they further pleaded that in 1930 there was an arrangement between them and Rani Hira Devi as a result of which it was agreed that Rs. 480 would be remitted from the lease money every year and they claimed that in case any amount was decreed to Rani Hira Devi in this suit reduction might be made for this sum which was agreed to be remitted.

(3.) The learned Munsif of Nagina came to the conclusion that this oral arrangement to remit rent at the rate of Rs. 480 per annum was proved. He further found that the mortgage bond contained an entry of this arrangement and that the plaintiff, Rani Hira Devi, had deliberately suppressed the document in order to prejudice the defendants with regard to their plea of remission of rent and of the advance payment of Rs. 2000. The learned Munsif accordingly came fco the conclusion that the plaintiff was not entitled to maintain the action on the basis of a copy of the document and he dismissed the suit. Rani Hira Devi took the matter in appeal before the learned District Judge of Bijnor and the learned Judge who heard the appeal came to the conclusion that the Rani was entitled to maintain the action on the basis of a copy and the agreement about the remission of the rent, though it took place in fact, could not be proved under the provisions of the Evidence Act as it was an arrangement which contradicted the terms of a registered document. Accordingly, the learned civil Judge granted to Rani Hira Devi a decree for a sum of money under that mortgage. Against the judgment of the learned civil Judge, Piarey Lal and Babu Ram have made this appeal. Earned Counsel who appears for them has raised two points before us. His first contention is that in the circumstances of this case the suit was not maintainable upon the copy and secondly he contends that the defendants were entitled to a remission of Rs. 480 per year under the arrangement made in 1930 mentioned above.