G P MALLAPPA Vs. MATAN NAGA CHETTY

JUDGEMENT

(1.) A subsequent agreement to take less than is due under a registered mortgage is clearly an agreement modifying the terms of a written contract; and, if it has to be proved, oral evidence is inadmissible under the 4th proviso to Section 92 of the Indian Evidence Act, which is designed to protect parties to registered instruments from false cases of subsequent modification of the original contract being set up and supported by oral evidence. If the subsequent agreement in this case has to be proved, oral evidence is clearly inadmissible. The contention however, is that it has not to be proved, as it is admitted in the pleadings. Part II of the Evidence Act deals with proof, and Chapter III, which is the first chapter of Part II, with Facts which need not be proved." Under Section 58 of this chapter, among the facts which need not be proved, are facts admitted in the pleadings, such as the subsequent agreement now in question. Evidence is tendered in proof of facts in issue; and no question of the admissibility of evidence, oral or documentary, arises when proof is dispensed with in consequence of an admission in the pleadings, either under Section 58 or under the provisions of the Code of Civil Procedure. Where as in Chenbasapa v. Lahshman Ramachandra (1898) I.L.R. 18 B. 369, the legislature had enacted, not only that an unstamped promissory note should not be receivable in evidence, but, also, that it should not be "acted on", it was held that the Court was precluded from acting on the note by giving a decree on it, even though execution was admitted. It has not been shown that in giving effect to the subsequent agreement admitted in the pleadings in the present case we should be contravening any express statutory provision such as that contained in the Stamp Act, and I do not think that in the present case we are at liberty to restrict the operation of the plain language of Section 58 or of the Code of Civil Procedure by reference to considerations of alleged public policy. Here the subsequent agreement is one by a mortgagee to take less than was due to him under the terms of the mortgage, and I do not think we should be justified in refusing to give effect to the section, merely because, if the plaintiff had not admitted the subsequent agreement but put the defendant to the proof of it there does not appear to be any admissible evidence by which it could have been proved. Further I do not consider that in a case of this kind there is any public policy in refusing to give effect to the subsequent written agreement, because I think that the plaintiff s admission in the pleadings, gets rid of the danger which it was intended to guard against, by the prohibition of oral evidence in the 4th proviso to Section 92, Different considerations might arise if the admission were that more than was provided for in the mortgage bond should be due under it, I would agree with Bakewell, J. and dismiss the appeal with costs. Oldfield, J.

(2.) With all due deference I cannot follow the judgment just delivered, so far as it lays down that acceptance of a statement in an unregistered writing as evidence of the modification of a registered contract is not contrary to public policy, as tending to defeat the provisions of the Registration Act. Those provisions are, as I understand them, intended to facilitate the investigation of titles by compelling their registration and by fixing the offices in which they must be registered and to which, therefore, investigation can be restricted. This intention would be frustrated if the investigation had to be wider; and none the less so, if it had to be extended, not only beyond those Registration offices, but also to pleadings in the records of courts. This however does not affect the validity of the broader ground of decision, which is available, viz., the unqualified nature of the language used in Section 58 of the Indian Evidence Act, and I therefore concur in dismissing the appeal with costs. Seshagiri Aiyar, J.

(3.) I agree with the conclusion at which the learned Chief Justice has arrived.