SASI BUSHAN DAS Vs. RAM CHANDRA DAS

JUDGEMENT

(1.) This appeal arises out of a suit on a mortgage bond. The defence that has been accepted in the Courts below, was that subsequent to the mortgage bond there was an arrangement as to the mode of payment of the amount, in writing between the parties and the plaintiff executed a kistbundi receipt. According to that kistbundi the defendants were to pay the amount then found due in twelve instalments spreading over Seven years. It has been found by the Courts below that the defendants paid all the instalments mentioned therein except a sum of Rs. 185 which the plaintiff before the institution of the suit re-fused to accept and he has brought this suit, ignoring the kistbundi, upon the mortgage bond,

(2.) Dr. Mukherji on behalf of the appellant argues that the kistbundi was inadmissible in evidence under Section 92, Evidence Act, and under Secs.17 and 49, Registration Act, for want of registration. The learned Subordinate Judge in the lower appellate Court has fully dealt) with the matter and has come to the con-elusion that the kistbundi clearly shows an arrangement between the parties and it does not altar or vary the terms of the! written instrument. We think that the view taken is correct in the circumstances-! of the case. It cannot be disputed on the law as embodied in Section 92, Evidence Act, that any variation of the terms of the mortgage bond cannot be proved. But the kistbundi in this case merely recites that a certain sum of money was payable on a certain date and the model on which that instalment was to be paid. There is no term in the document directing the payment of the money due on it in a particular way. If the document is silent on the point the evidence as to how the money is to be paid in; future is admissible under the provisions of Section 92, Evidence Act. But it is apparent on the face of the document which; has been placed before us that it does not purport to rescind or modify any; such contract, grant or disposition of! property required by law to be in written or has been registered in terms of: proviso 4, Section 92. It is argued that the effect of the kistibundi is to reduce the mortgage debt and to atop running of interest in future according to the terms of the mortgage deed. Even if that be so it can only be taken as a receipt for the amount which was than due or in future would be due. it is not a document by which the right of the mortgagee under the bond was extinguished or was in any way varied but it only indicated the mode in which the amount which would fall due on certain dates was to be paid. The arrangement in the present case and the document recording this arrangement are vary much similar to those under consideration in Lakshman v. Damodar [1900] 24 Bom. 609. There the writting in question was termed a receipt. The present kistibundi purports to be not anything other than that except that it fixed the dates on which the payments wore to be made.

(3.) The kistibundi further provided that in default of one kist the entire amount under the mortgage bond would become due. It is argued that the defendants did not on any occasion pay an entire kist and therefore the plaintiff is entitled to sue upon the Mortgage bond. The finding of the lower appellate Court, however is that the plaintiff received the amounts paid by the defendants from time to time and appropriated thorn towards the instalments and therefore his conduct constituted a waiver on his parti and ho therefore cannot sue for the money on the basis of the mortgage bond. This finding cannot be challenged before us in second appeal. The plaintiff has boon given a decree for Rs. 185 which he wrongly refused to accept from the defendants. This decree is maintained and the appeal is dismissed with costs.