SUBBAROW Vs. VENKATA NARASIMHAN

JUDGEMENT

(1.) A usufructuary mortgage, dated the 16 May 1898, was executed in favour of one Subbarayudu who took possession of the mortgaged lands and subsequently died. The plaintiff, who is Subbarayudu's adopted son, sues in the present suit for the recovery of the lands in dispute which were part of the property comprised in the mortgages alleging that during his minority the first defendant took wrongful possession of the property. The principal defence was that the mortgagor having died, the equity of redemption became vested in the first defendant and another, the daughter's sons and heirs of the mortgagor and that the first defendant, who is entitled to a moiety of his grand-father a estate, entered into an oral agreement with the adoptive mother and guardian of the plaintiff for a redemption of his share only and in pursuance of such agreement paid her Us. 600, being a moiety of the mortgage amount and redeemed the lands in question, as falling to his share.

(2.) The District Munsif as well as the District Judge decreed possession to the plaintiff holding that the agreement set up could not be proved, apparently on the ground that it was oral, while in their opinion, it should have been by writing registered.

(3.) The latter supposition is obviously wrong and the only point for determination in this case is whether the defendant is precluded from proving the alleged agreement by the concluding part of the fourth provision to Section 92 of the Indian Evidence Act. I think he is not. No doubt, if the agreement in question were an agreement between the parties to the mortgage or their representatives in interest within the meaning of the first paragraph of Section 92, it could not be proved, the original transfer having been by a registered instrument while the subsequent agreement was oral. That, however, is not the case here. Of course one party to the alleged agreement was the plaintiff who is the representative of the mortgagee, but of the two representatives of the mortgagor, only one was party, acting merely with reference to his own interest in the property. Doubtless it being open to the plaintiff to split the mortgage, the agreement, if true, had the result of bringing about a change in the rights of the plaintiff and the rights of the mortgagor's representatives (inclusive of the one not party to the agreement) as they originally stood under the mortgage, inasmuch as the plaintiff's rights would be confined to the lands retained by him while the rights of the representative of the mortgagor not party to the agreement was merely to recover his share of the mortgaged land on payment of the proportionate share of the debt, with a right to contribution or other remedy as against the first defendant, in case the circumstances entitled him to such. It is not agreements of this sort, however, that come within the provision under consideration. Only those agreements come within the section, which affect the terms of the previous transaction- -not indirectly, as here, as a consequence of an independent and valid contract between some only of the parties, but directly by virtue of the consensus of those who alone are competent to rescind or modify the original contract, viz., all the parties concerned or all their representatives.