KHUB LAL CHAUDHURI Vs. BECHAN MANDAL

JUDGEMENT

(1.) This is a plaintiffs appeal against concurrent decrees of the Courts below passed in favour of the defendants. It appears that defendant 1 and his cousin Zalim owed a sum of Rs. 400 to one Darsan Mandal. To pay off this sum each of them borrowed Rs. 200 from the plaintiffs, and on 21 October 1928, defendant 1 and Zalim each executed mortgage bonds in favour of the plaintiffs. By these bonds they mortgaged their respective shares in certain holdings. The landlord of defendant 1 and Zalim obtained a rent decree against both of them and in due course put the property to sale. This was part of the property covered by the mortgages executed by defendant 1 and Zalim. On 8 May 1935, the property was to be put up for sale in satisfaction of the rent decree, the decretal amount being Rs. 93. On that day defendant 1 paid Rs. 45 in part satisfaction of the decree and obtained an adjournment of the sale to 3 June 1935.

(2.) On 3 June 1935, the property was put up for sale and purchased by one Ramnath, a relation of the plaintiff, for Rs. 70. In August 1935 Ramnath took delivery of possession of the property. In the year 1936 the plaintiff brought two mortgage suits, one against Zalim and the other out of which this appeal arises against defendant 1. Zalim did not contest the suit and allowed it to be decreed ex parte. Defendant 1 however hotly contested the suit brought against him and alleged that the mortgage had been fully satisfied and discharged. According to defendant 1, the mortgage was discharged by an arrangement entered into between the parties. As I have stated earlier, the holding in question in the present case was being put up for sale by the landlord in execution of a rent decree. Part of that decree had been satisfied and adjournment of the sale obtained. Defendant 1 had until 3 June 1935, to pay the balance of the decree amounting to some Rs. 48; but it is said by arrangement between the plaintiffs and defendant 1 the latter refrained from paying the balance of the decree or from bidding at the sale and allowed the property which was worth, according to defendant 1, about Rs. 1500 to be sold to Ramnath as benamidar of the plaintiff for Rs. 70.

(3.) It was agreed that this forbearance on the part of defendant 1 should be regarded as a complete discharge of the mortgage. Both the Courts below have accepted the defendant's version of the facts and have held that the mortgage was discharged. In second appeal however it has been urged that no oral evidence was admissible of this subsequent agreement which led to the discharge of the mortgage. Reliance has been placed upon Section 92, Proviso (4), Evidence Act, and that proviso is in these terms: 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, or has been registered according to the law in force for the time being as to the registration of documents.