GOPALA KRISHNA IYER Vs. SANKARA IYER

JUDGEMENT

(1.) Appellants are decree-holders in O.S. No. 158 of 1922 District Munsif's Court, Srivaikuntam, and hold a decree for ejectment and mesne profits. The respondent has pleaded a prior oral agreement whereby appellants can only eject him on payment of Rs. 175 in discharge of an othi. The learned Subordinate Judge has ordered evidence to be taken on this plea. The appellants claim that it is unsustainable in law.

(2.) The District Munsif rejected the plea in limine because, as laid down in Section 92, Evidence Act; an oral agreement contradicting or varying the terms of a disposition of property reduced to the form of a document cannot be proved. He cited Rajah of Kalahasti v. Venkatadri Rao A.I.R. 1927 Mad. 911 to show that a decree is a disposition of property, and Abdullah Khan V/s. Basharat Husani [1913] 35 All. 48 as authority that it is immaterial whether the oral agreement sought to be proved is prior or subsequent to the disposition. The learned Subordinate Judge merely records his ipse dixit that the Munsif is wrong, without reference to these or any other authorities. That is not the way in which an appeal should be decided. In this Court the respondent had nothing to cite against the clear authority of these two rulings, and confined his argument to a repetition of the plea that the language of Section 92 precludes the idea of a prior agreement. The language of Section 92, on the contrary, makes it clear that no agreement, whether prior or subsequent, can be proved. It would indeed be a curious state of the law if, for instance, a mortgagor though precluded from going behind the plain terms of a registered document by a plea of subsequent agreement, could nevertheless lead evidence to prove a prior agreement. On this short ground the appeal must succeed and the judgment and order of the learned District Munsif must be restored.

(3.) In the course of the argument Chidambaram Chettiar V/s. Krishna Vathiyar [1917] 40 Mad. 23 and kindred rulings have been discussed, and I would venture to observe that these cases seem to proceed on a misunderstanding of what the word "adjustment" means. Seshagiri Aiyar, J. (pp. 239) says: The agreement in question is not an "adjustment within the meaning of Order 21, Rule 2, evidently implying that the agreement is an adjustment outside the meaning of Rule 2. The sense of the Full Bench case has, with all respect, been correctly given by my brother Wallace, J., in Venkatasubba Mudali V/s. Manickammal A.I.R. 1926 Mad. 582: The question was whether a pre-decree arrangement can be pleaded.