SHEIKH BUDHU Vs. SITAL SINGH

JUDGEMENT

(1.) In my judgment Section 92, Evidence Act, clearly disposes of this case. The short facts are that the plaintiffs with another person had a holding which they granted by way of usufructuary mortgage to the defendant, who is the appellant before me. Under the ijara the defendant ijaradar was liable for rent. The ijara was of the year 1336 corresponding to 21 August 1928. The plaintiffs brought this action stating that they had been sued by the landlords for the years 1337 and 1338, that is 1929 and 1930, the years following the year in which the ijara transaction was entered into. They therefore sought to recover the rent they were made liable to pay for the defendant. The defendant set up this defence in substance: You may have paid for the years 1337 and 1338, but you cannot recover from me. By an agreement made subsequent to the ijara transaction you had agreed to pay rent for those years and I in consideration of that had agreed to pay the arrears (which you were already liable for) for the years 1334 and 1335.

(2.) If that oral agreement had been established, the only sum which the plaintiffs could have claimed on the terms of the agreement (and I might add in parenthesis that the learned Judge in the Court below sets out these terms) was the balance between the sum that they paid and that which the defendant paid. This is of course under the oral agreement. But the plaintiffs contend that such a contract was not made and they say further that in any event Section 92, Evidence Act, makes an oral agreement of that kind inadmissible in evidence. Now, this is a registered document and therefore quite clearly comes within the mischief of Sub- section 1 of Section 92 and Proviso (4) to the Section which runs thus: The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing.

(3.) It is obvious that even if Proviso (4) does not apply as referring to immovable property and this subsequent oral agreement refers to the payment of rent, yet, it would come under Sub-section (1), because it is a contract which varies, adds to or subtracts from the terms of the written agreement. It varies the terms by reason of the fact, that, whereas under the written agreement the defendant was liable, under the oral agreement the plaintiffs were liable. That being so, the plaintiffs could prove the facts which established their cause of action with, out being successfully met by the defence which was set up by the defendant.