MOTHEY KRISHNAYYA Vs. MOHAMAD GALEB SAHEB

JUDGEMENT

(1.) The facts necessary for disposal of this appeal are: the plaintiff had to pay off the mortgage amount due on a mortgage over property sold to him by the defendant under a document of sale, Ex. A, dated 19 June, 1918. That contains a statement that if in respect of this any dispute arises from any quarter, I shall, at my own expense, set the same at rest and see that the sale is given effect to without any obstruction whatever. In respect of the said property I have not created as yet any right or interest in favour of any.

(2.) The defendant himself had obtained the property in a Court sale in execution of a money decree against a judgment-debtor Ibrahim Sahib who had previously mortgaged the property. It was this mortgage that the plaintiff had to pay off when it had ripened into a decree and the decree had been followed by execution proceedings. In order to preserve the property for himself the plaintiff discharged it. He has sued to recover from the defendant the amount of the loss and damage sustained by him in consequence. The defence was that the plaintiff was at the time of the sale fully aware of the mortgage and had orally agreed to pay it off and that he obtained the property cheaply in consequence. The defendant sought to give evidence of that oral agreement, but both the Lower Courts have held that in view of the wording in Exhibit A such evidence would be in contravention of Section 92 of the Indian Evidence Act. They refused to admit it and decreed the plaintiff's suit. The defendant appeals and the point argued is this question of admissibility of the evidence of the case put forward by the defence.

(3.) The consideration named in Exhibit A is Rs. 280. "I have sold," the document says, "to you for Rs. 280 the immoveable property, etc." The defendant urges in effect that the consideration was something more than Rs. 280, that it was Rs. 280 plus an undertaking to discharge the existing mortgage on the property. Section 92 forbids the admission of evidence for the purpose of contradicting, varying, adding to, or subtracting from, the terms of the document as expressed by the written disposition of the property, except as allowed under various provisos, only one of which is relevant in this case, proviso No. 2: The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved.