ALI JAWAD Vs. KULANJAN SINGH

JUDGEMENT

(1.) The facts of this case are as follows. The plaintiffs executed on the 18 of September, 1903, a usufructuary mortgage for five years in favour of Kulanjan Singh and Sat Ram. The deed is not on the record and it is not clear what exactly was mortgaged. According to the plaintiffs, on the 10 of August, 1905, they executed a simple mortgage for Rs. 599 in favour of Mahabir Singh in which an eight anna zamindari share in five villages was hypothecated. The interest chargeable was Rs. 2 per mensem. On the 8 of October, 1908, the plaintiffs executed a usufructuary mortgage of an eight anna two pie share in three villages which had been hypothecated in the mortgage of 1905 in favour of Kulanjan Singh alone. This mortgage was for Rs. 2,400 and for 15 years. The plaintiffs stated that under a contemporaneous oral agreement, when the mortgage of the 10 of August, 1905, was entered into, it was agreed between the parties that if the plaintiffs executed a usufructuary mortgage subsequently, then in that case the mortgagee would not charge the interest as agreed upon in the mortgage-deed of 1905. It appears that proceedings were taken before the District Judge in lunacy with reference to one of the plaintiffs and in those proceedings the guardian of the lunatic wished to raise a loan on the property, whereupon the defendants produced the mortgage-deed of 1905 and claimed that it had not been fully discharged. This was the cause of action alleged in the plaint and the plaintiffs sued for a declaration that the mortgage-deed of 1905 had been paid off. The main defence with which we are now concerned was that there were two mortgage-deeds executed in August, 1905, and that as a matter of fact only the interest due on those two mortgages had been paid when the mortgage of 1908 was executed and that the principal sums due on both the mortgages were still unpaid. Both courts have tried the case on the allegations of fact mentioned in the plaint, assuming them to be correct, but have come to the conclusion that oral evidence was inadmissible to prove the contemporaneous agreement set up by the plaintiff's and, consequently, that having regard to the terms of the mortgage of 1908, the allegation of the plaintiffs was not proved. They dismissed the suit. The plaintiffs come here in second appeal and they urge two points,(1) that under the proviso to Section 92 of the Indian Evidence Act oral evidence could be given to prove that on the happening of a certain event the agreement to pay interest would cease to be operative, and (2) that they could prove that as a matter of fact when the document of 1908 was executed the whole amount due under the mortgage of 1905 was remitted and that this was evident from the terms of the document of 1908 itself and the court below had misread the document.

(2.) The meaning of proviso (3) would seem to be illustrated by illustration (j) to Section 92 and it would seem to refer to cases where there was an oral agreement to the effect that a contract in writing was to take effect only on the happening of a particular contingency.

(3.) On the first point it has been pointed out that "a distinction must be drawn between the cases where the matter sought to be introduced by extraneous evidence is a condition precedent or a defeasance. It may be shown that the instrument was not meant to operate until the happening of a given condition; but it cannot be shown by parol evidence that the agreement is to be defeated on the happening of a given event." (Vide Woodroffe and Amir Ali, Law of Evidence, 6th Edition, page 601). This seems to sum up the English law on the question, and it does not seem to us that in this respect proviso (3) lays down anything different. In the case of Ramjibun Serowgy V/s. Oghore Nath Chatterjee (1897) I.L.R. 25 Calc. 401 Mr. Justice Sale took the same view. He says: "I do not think that it was intended by proviso (3) to permit the terms of a written contract to be varied by a contemporaneous oral agreement; but having regard to the illustrations (b) and (j), I think the proper meaning of proviso (3) is that a contemporaneous oral agreement to the effect that a written contract was to be of no force or effect at all and that it was to impose no obligation at all until the happening of a certain event, may be proved." The same view was taken by a learned Judge of the Nagpur Chief Court in Vithu Jairam V/s. Akaram (1917) 42 Indian Cases 372 and we agree entirely with that judgment. This disposes of the first point.