RAM KIRPAL CHOUDHURY Vs. BALESWAR CHOUDHURY

JUDGEMENT

(1.) This appeal is by the plain-tiffs and arises out of a suit to enforce a mortgage executed by defendant in favour of plaintiff 1. The defence was that the mortgage debt had been repaid except as to Rs. 85, and reliance was placed on a receipt purporting to have been signed and to bear the thumb impression of plaintiff 2, brother of plaintiff l. The Court below has found that the signature and the thumb impression on the receipt are of plaintiff 2 and has dismissed the plaintiffs suit.

(2.) The first point raised in second appeal is that in view of the fact that the mortgage deed contained a stipulation that the only evidence which the parties could rely upon in support of any payments made in satisfaction of the mortgage debts would be payments endorsed on the mortgage deed itself, it is not open to the defendants to rely on evidence other than the endorsements on the mortgage bond.

(3.) In support of this contention reference is made to Khub Lal V/s. Bechan Mandal A.I.R. 1940 Pat. 49. There was a similar stipulation in the bond that was the subject-matter of that litigation. The defendant however did not plead payment of the mortgage debt in cash but that the mortgage debt had been discharged under a subsequent agreement between the mortgagor and the mortgagee. The Court held that as the mortgage bond was a registered document none of its terms could be altered or modified except by means of a registered document, and Section 192, Evidence Act, was a bar to the admission of any other evidence for the purpose of shewing any alteration or modification of the terms of the bond; but with regard to whether the mortgagor can prove the discharge of the debt by oral evidence the Court said: It is always open to a mortgagor to prove that on a certain day he paid the sum due under the mortgage. Such is not evidence of a subsequent oral agreement varying the terms of the mortgage.