G.P. Mallappa vs Matan Naga Chetty

John Wallis, C.J.—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."" u/s 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 u/s 58

or under the provisions of the Code of Civil Procedure. Where as in Chenbasapa v. Lahshman Ramachandra ILR (1898) 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 CPC 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.

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.

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

The suit is on two mortgages executed by the defendant to the plaintiff. In or about March 1914 plaintiff threatened to sue on the bonds. Then

certain mediators intervened. An oral agreement was come to by which the plaintiff agreed to accept in full satisfaction Rs. 1,400 in case Rs. 1,000

was paid within a week''s time and the other Rs. 400 within three months thereafter. There was a further stipulation that if the Rs. 400 was not paid

within three months an additional sum of Rs. 100 was to be paid by the defendant. This settlement was not reduced to writing. The question for

consideration is whether this arrangement is admissible in evidence. There is a further question whether the admission contained in the counter

statement of the plaintiff is not sufficient for the disposal of the case. On the first question I feel no doubt that the admission of this oral arrangement

would contravene proviso 4 to Section 92 of the Evidence Act. The effect of the arrangement is to alter the terms of the two documents in question

and as the original documents were in writing and registered, oral evidence of the arrangement is within the mischief of proviso 4. The decision of

this Court in Karampalli Unni Kurup v. Thekku Veetil Muthorakutti ILR (1902) M. 195 which was followed by the learned Chief Justice and

Benson, J, in Kattika Bapanamma v. Kattika Krishnamma (1906) 30 M. 231, covers this point. Sitting with Kumaraswami Sastri, J., I acted on

the principle enunciated in the above decisions in Namagiri Lakshmiammal v. Srinivasa Aiyangar (1918) 27 I.C.269 The contention of the learned

Vakil for the respondent that the admission would not vary the document is unsupportable. The cases he drew our attention to, all relate to actual

payments under documents which discharged the liability thereunder. An agreement which in future will have the effect of putting an end to the

liability must be regarded as a subsequent agreement modifying the original contract. I am in entire agreement with the view enunciated by Mr.

Justice Boddam in Goseti Subba Rao v. Varigonda Narasimham ILR (1903) Mad. 368. The learned Judge says referring to proviso 4 of Section

92--"" The words of the proviso are perfectly clear and in my opinion apply to any agreement whether executory or executed."" I am unable to see

any justification in principle for not applying the proviso to all cases other than those in which there has been a perfected discharge by payment. I

agree with Sadasiva Aiyar, J. on this question.

On the second question, I felt doubts whether Section 58 and the chapter in which it appears should not be restricted to admissions in pleadings

which do not contravene the express provisions as to the mode of proof contained in the other sections of the Evidence Act. At the same time, I

realise the force of the learned Chief Justice''s observation that the language of the section takes the facts admitted in the pleadings out of the

category of proof altogether. The rule of law enunciated in Slatterie v. Pooley (1840) 6 M. & W. 664 which accepted oral admissions of every

kindas proving documents has no doubt been departed from in India (See Section 22 of the Evidence Act and Sections 59 and 65(b). It is open to

argument that admissions in pleadings are in the nature of secondary evidence and that the prohibition in Section 22 applies equally to pleadings as

well. Otherwise parties may compel a Court by a statement in pleadings to pronounce judgment upon evidence which is not legally admissible.

There is the further fact that notwithstanding the admission in the pleadings. The court may call upon the party to prove a fact. In such cases, the

proof must be restricted to the modes mentioned in the Act. It is therefore with hesitation that I agree in the conclusion arrived at by the learned

Chief Justice on this point.