(DONDAPATI) LAKSHMINARASIMHA RAO Vs. (GUNDABATULA) RAGHAVAMMA

JUDGEMENT

(1.) This is a suit for the recovery of a sum of Rs. 583 being the balance of principal and interest alleged to be due on the foot of a simple mortgage bond dated 28 October 1918 executed by defendants 1 to 4 for Rs. 340 in favour of the father of the plaintiffs and defendant 5. Defendant 5 separated from the father of the plaintiffs and thereafter the interest in the mortgage bond vested in the plaintiffs father and after their father's death in the plaintiffs. The defence is that in fasli 1335 the amount approximately due and payable in respect of the mortgage bond was about Rs. 400 and it was then arranged between the plaintiffs father and the defendants that the plaintiffs father should enjoy the land item 1 of the plaint property, being one of the items in the mortgaged property, for a period of five years from fasli 1335 in full satisfaction of the mortgage and the plaintiffs father was accordingly let into possession of the said land and the plaintiffs father and after his death the plaintiffs have been in enjoyment of the rents and profits thereof and the mortgage has accordingly been discharged. The learned District Munsif who tried the suit gave a decree in favour of the plaintiffs finding against the plea of the defendants. The learned Subordinate Judge reversed his decision and dismissed the plaintiffs suit upholding the plea of discharge set up by the defendants.

(2.) It is contended in appeal on behalf of the plaintiffs by Mr. P. Somasundaram that the agreement pleaded is in contravention of Section 92(4), Evidence Act, and therefore should not be received in evidence and all that the defendants would be entitled to will be to get credit for the rent realized towards the mortgage debt and relied strongly on the decision reported in Bapanamma V/s. Krishnamma (1907) 30 Mad 231. I am of the opinion that the agreement pleaded is admissible in evidence and is not in contravention of Section 92(4), Evidence Act. Section 92(4) prohibits the admissibility of a subsequent oral agreement to rescind or modify any contract, grant, or disposition of property which is by law required to be in writing or which has been registered according to the law in force for the time being as to the registration of documents but it does not preclude the admissibility of any transaction or contract in satisfaction or discharge of the obligation arising thereunder. As observed by Sadasiva Ayyar, J., in Ariyaputhira V/s. Muthukumaraswami 1914 37 Mad 423 at p. 431: A mortgage might, even if created by a registered instrument, be proved to have been extinguished by letting in admissible evidence (including oral evidence) of payment of the mortgage amount or by letting in admissible evidence of any other transaction which operates as a mode of payment.

(3.) The same view has been taken by our-genveu and Anantakrishna Ayyar, JJ., in Nookamma V/s. Dharmayya 1928 53 MLJ 863, and they held that an oral agreement providing for repayment of a mortgage debt from the usufruct of the mortgaged property can be proved in evidence, and observed that the arrangement amounted only to a means for discharging the debt by putting the simple mortgagee in possession of the property. Two decisions were cited with approval, one of the Allahabad High Court in Ram Baksh V/s. Durjan (1887) 9 All 392 and the other of the Calcutta High Court in Kamala Sihai V/s. Babu Nandan Mian (1910) 11 CLJ 39. The latter decision is on all fours with the facts of the present case. In that case, to an action to enforce a mortgage the defence was that after the execution of mortgage the mortgagor placed the mortgagee in possession of the mortgaged premises under an agreement by which the mortgagee was to continue in possession for seven years and to receive the profits in full satisfaction of the amount due under his mortgage. The learned Judges held that the arrangement set up does not alter, contradict or add to or subtract from the terms of the original agreement, but merely provides means for the satisfaction of the bond, and therefore evidence of such an arrangement could be given without infringing the provisions of Section 92. Mr. Somasundaram contends that the decision, Bapanamma v. Krishnamma (1907) 30 Mad 231, lays down a contrary principle and it was not considered by the learned Judges in Nookamma V/s. Dharmayya 1928 53 MLJ 863. It seems to me that, if the facts on which the decision in Bapanamma V/s. Krishnamma (1907) 30 Mad 231 was given are examined, the decision in no way conflicts with the decision in Nookamma V/s. Dharmayya 1928 53 MLJ 863. In Bapanamma V/s. Krishnamma (1907) 30 Mad 231 there was a registered deed of maintenance executed by A in favour of B to give the latter an annual payment by way of maintenance. Subsequently, when the suit was brought to enforce the arrears of maintenance due thereunder, it was sought to be pleaded in answer that A, unable to pay maintenance at the rate provided in the deed, entered into an oral arrangement with B under which he gave B possession of a certain land to be enjoyed by her for her lifetime. The learned District Munsif in that case negatived the defence holding that Section 92(4) precluded evidence of such an agreement being given. On appeal the learned District Judge was of opinion that it only provided for its discharge and therefore evidence could be given and relied upon the decision in Ram Baksh V/s. Durjan (1887) 9 All 392. Their Lordships disagreed with the view expressed by the learned Judge that the agreement provides means for a discharge and held that it substituted an obligation varying or differing from that provided in the registered deed and therefore under Section 92, Evidence Act, evidence of such an arrangement could not be given. In the course of the judgment their Lord-skips observe: The plaintiff is entitled to future maintenance at the rate stipulated in the original agreement. But this being a suit for arrears of maintenance for certain years, it was open to the defendant to plead as ho has pleaded that in discharge of the defendant's obligation to pay maintenance for such years she agreed to take and took possession of certain lands; and it is immaterial that she is alleged to have taken possession of the land in pursuance of an agreement which cannot be proved. The case appears to be on all fours with Karampalli Unni Vs. T.V. Muthorakutti (1903) 26 Mad 195, and also to be governed by Gosetti Subba Row V/s. V. Narasimham (1904) 27 Mad 368. The defendant cannot prove the agreement to discharge the claim for maintenance in the manner alleged, but he may prove that the arrears have been, in fact, discharged in the manner alleged.