V KRISHNASWAMI RAO Vs. RSRINIAVASA DESIKAN

JUDGEMENT

(1.) In this petition, we are asked to revise an order holding that the petitioner cannot be permitted to prove an oral agreement which he, pleaded in defence to a mortgagee's suit for sale. The petitioner admitted the mortgage sued on, but pleaded that under an agreement brought about by persons interested in the plaintiff and accepted by the plaintiff, it had been agreed that the mortgage amount should be settled at Rs. 9,000 and in full discharge of the claim under the mortgage-deed a certain portion of the hypotheca should be sold to the plaintiff. The truth and validity of this agreement formed the subject-matter of the first issue in the case; and the second issue raised the question, whether even if the first issue should be found in the defendant's favour, the agreement precluded the plaintiff from maintaining this suit, when admittedly the agreement remained executory. It was further contended on behalf of the plaintiff that, in view of Section 92 of the Evidence Act, it was not open to the defendant to adduce evidence, relating to the alleged oral agreement; this contention was embodied in the third issue. The learned Judge heard arguments on the third issue (as a preliminary issue) and held that no oral evidence was admissible to prove the agreement set up in the written statement.

(2.) Before referring to the decisions relied on by the one side or the other, it is desirable to note the terms in which the exclusion of oral evidence is laid down in Section 92. The main clause excludes evidence of any oral agreement for the purpose of contradicting, varying, adding to or subtracting from the terms of a contract, etc., proved in the manner provided for by Section 91. The provisos introduce certain exceptions (or apparent exceptions) and to the fourth proviso there is an exception. The language of the exception in the proviso does not of itself prohibit or exclude any kind of evidence; it merely excludes the benefit of the proviso in the excepted cases, with the result that in these cases the prohibition contained in the main part of the section will apply. We have accordingly to consider whether the oral agreement alleged in the written statement contradicts, varies, adds to or subtracts from the mortgage document.

(3.) It is settled by a long line of authority - and Mr. Bhashyam does not deny - that a debtor may plead and prove an actual discharge in a manner or on terms different from those contemplated by or provided for in the document evidencing the debt. But relying on the distinction drawn in the cases between a "discharge" and an agreement to give a discharge in future he maintains that in the present case the alleged contract to take a sale of a portion of the hypotheca in satisfaction of the debt amounts to nothing more than an agreement to give a discharge if and when the sale is completed and is therefore within the prohibition contained in Section 92. This argument seems to us to rest on a misapprehension of the legal effect of the contract of sale in such cases.