IYETALY SURAYYA Vs. NALAMILLI VENKANNA

JUDGEMENT

(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.