MARAPPUREDDIGARI SAYAMMA Vs. RVENKATA REDDI

JUDGEMENT

(1.) This appeal raises a short point, viz., whether the deed of mortgage, dated 4 January, 1917, in favour of one Chinnayya Chetti Garu provides for interest on the capital sum of Rs. 6,500 at the rate of Rs. 2 per month on the Rs. 6,500 or at the rate of Rs. 2 per centum per month. The said mortgage was attached by the decree-holder in E.P. No. 2 of 1925 and the plaintiff in this present action is the receiver therein.

(2.) The plaint makes no claim for rectification of this instrument, and issue 2 expressly raises the question whether the plaintiff is entitled to recover under this deed interest at the rate of Rs. 2 per cent. per month without rectification. Issue 1 appears to raise the question whether as a matter of construction this deed reserves to the mortgagee interest at the rate of Rs. 2 per cent. per month or at the rate of Rs. 2 per month. Why the plaintiff declined to ask for rectification can only be a matter of speculation. In fact he did not and proceeded to claim on the footing of an unrectified deed the same sum as would have been due had he claimed rectification and had succeeded in that claim.

(3.) It is not suggested that sections 95, 96, 97 or 98 of the Evidence Act apply. It is not therefore a case of construing a document contrary to its apparent meaning. If evidence can be given to vary this document it can only be because of the first proviso to Section 92 of the Evidence Act. This proviso permits the proof of a mistake which would entitle the party to a decree or order relating to the document or which would invalidate the document.