SAGO RAI Vs. RAMJEE SINGH

JUDGEMENT

(1.) This is an appeal by defendants 1 and 2 in a mortgage suit brought to recover Rs. 1258-12-9 principal and interest on the basis of a mortgage bond executed by the father of these two defendants for a principal sum of Rs. 600. The Munsif decreed the suit in part after allowing credit among other items to a payment of Rs. 375 made on 15 Baisakh 1337 F. and proved by oral evidence and by a receipt Ex. A which the Munsif found in spite of the denial of the plaintiff to have been granted by plaintiff 3 Ramdhani Singh in the name of plaintiff 2 Ramji Singh. In appeal the Subordinate Judge, while accepting the finding of the Munsif that this payment was in fact made, held that it was not open to the defendants to plead and prove, it in this suit, because of a stipulation in the bond that all payments are to be endorsed on the back of the bond and no other payments recognized unless so endorsed. The Subordinate Judge relied on the decision of this Court in Khub Lal V/s. Bechan Mandal A.I.R. 1940 Pat. 49, in the course of which the following observation occur: In short there is an express term in this mortgage that payment towards either principal or interest could only be made in a certain way, and unless endorsed on the mortgage it should not be regarded as a payment at all. In these circumstances, is it open to the mortgagor to attempt to prove discharge or satisfaction in any other manner? As long as this term remains payment can only be-proved by endorsements on the mortgage bond.

(2.) In second appeal, it is pointed out that the learned Chief Justice and Fazl Ali, J., who decided that appeal had before them a case differing in its facts from the one before me. No doubt the stipulation in the mortgage bond was similar to that in the bond the effect of which I have to consider, but the transaction which the defendant set up as a defence to the suit, was one of a very different nature from that pleaded before me. It was that instead of requiring payment in cash of the balance due made the decree in pursuance of which the property was put up for sale, the mortgagee agreed with defendant 1 that in consideration of the latter not paying the balance of the decree or bidding at the sale but allowing property worth Rs. 1500 to be sold to a benamidar of the plaintiff for Rupees 70 the plaintiff on this part agreed that such conduct on the part of defendant 1 should be regarded as a complete discharge of the mortgage. It was held that evidence to prove this was inadmissible by reason of Section 92, Evidence Act. It is hardly easy to imagine any different result following from the facts of that case. Defendant 1 had set up a verbal agreement to modify and vary the terms of the written and registered document of mortgage, a document required by law to be registered. The Court had not before it a case of alleged payment in cash. More recently a Single Judge of this Court dealt with a case the facts of which bear a closer analogy to those of the case before me in Ram Kirpal V/s. Baleswar Chowdhury A.I.R. 1941 Pat. 246. There, as here, the defendant had pleaded part payment of the mortgage debt, made in cash and evidenced by a receipt signed by and bearing the thumb impression of one of the plaintiffs. The point taken was that on a stipulation analogous to that in the bond before me it was not open to the defendants to rely on evidence other than endorsements on the mortgage bond in proof of payments. Khub Lal V/s. Bechan Mandal A.I.R. 1940 Pat. 49 was distinguished on the facts, and it was pointed out that the former case had not abrogated but expressly recognized the principle that: 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.

(3.) Agarwala, J. held that the receipt constituted a valid discharge of the debt to the extent of the amount paid. The earliest case in which I can find the contention raised that no evidence of payment except an endorsement on the back of the bond can be admitted is Ramlal Chandra V/s. Gobind Karmokar (1900) 4 C.W.N. 304, It was the second plea raised by the appellants in that appeal. All that the Judges said about it was: "The appellant's second plea does not seem to require refutation." In that case the exact terms of the bond were not set forth and the principle on which the decision rested was not explained. At the hearing before us, Section 63, Contract Act, was referred to and contrasted with Section 62. It is said that what was set up in Khub Lal V/s. Bechan Mandal A.I.R. 1940 Pat. 49, was an agreement within the terms of Section 62, Contract Act, to substitute a new contract for an existing one or to rescind or alter the existing one. Now such an agreement is clearly within the terms of Section 92, Evidence Act, and cannot be proved by anything other than a registered document. On the other hand cases which fall within Section 63, Contract Act, are not agreements varying the original terms or substituting a new contract. In these eases Section 92, Evidence Act, has no application. Section 63, Contract Act, provides that every promise may dispense with or remit, wholly or in part, the performance of the promise made to him or may extend the time for such performance, or may accept instead of it any satisfaction which he thinks fit. Judicial decisions have distinguished a promise to accept a different kind of satisfaction in the future, that is to say a new agreement within the meaning of Section 62 from the actual remission or dispensing with a part of what was promised, that being within Section 68. Thus in Collector of Ettah V/s. Kishori Lal A.I.R. 1930 All. 721 Section 68, Contract Act, was referred to and it was said: In the case of a satisfaction of the debt or remission of a part of the debt there is no contradicting or varying, or adding to, or subtracting from the terms of the contract, and oral evidence may be adduced to prove the payment of a part of the debt and remission of the balance.