Parattakath Mayan and Others vs Palakkotanteakatte Mammad Kunhi

Satyanarayana Rao, J.—The defendants are the appellants. The respondent instituted the suit out of which this second appeal arises for a

perpetual injunction restraining the defendants from interfering with his possession of the plaint properties in any manner. He also prayed in the

alternative that if the defendants were found to be in possession of any of the items of the property a decree for possession and mesne profits

should also be granted in his favour. The defendants raised the pica that the plaintiff had no title to the property.

In order to appreciate the contention of the defendants it is necessary to state a few facts. The property in suit originally belonged to the first

appellant Paratlakath Mayan. He assigned the properties to his wife. Subsequently the wife died and it is alleged that the first appellant and

appellants 2 to 5 his children became entitled to the property as the heirs of his deceased wife. In 1926 the first appellant as guardian of the minor

children executed a kanom deed Ex. P-5 for a sum of Rs. 3,900 in favour of one Assan. Under this deed the mortgagee was entitled to be in

possession and enjoyment of the properties. As a result of certain transactions, the details of which are not relevant for the purpose of this second

appeal, the plaintiff that is the respondent in the second appeal, became entitled to the interest of the kanomdar. He instituted the suit on the

allegation that the defendants-appellants were attempting to trespass on the property and that they should be prevented.

The main plea of the defendants to this suit is contained in paragraph 3 of the written statement, the substance of which is that after the kanom

was created in favour of Assan under an arrangement with the kanomdar the first defendant himself was holding the property in his possession and

was paying to Assan the balance of the collections remaining in his hands after meeting the expenses towards the amount of interest under the

kanomdeed, the interest thereon being 10 per cent, per annum. This arrangement was acted upon and there was according to the defendants a final

settlement of accounts on the 11th April 1928, in respect of the value of pepper supplied to Assan during the years. 1926-27 and 1927-28. On

looking into the accounts it was found that a sum of Rs. 1,850-4-7 was repayable to the first defendant and that by an agreement between the

parties this amount was to be adjusted against the amount payable to the said Assan''s nephew Mammad under the kanom kuzhikkanam deed

executed in his favour by the first defendant''s father. Thus according to the plea of the defendants the entire amount due under the kanom deed

was fully discharged and ever since the properties were held in undisputed possession and enjoyment of the first defendant along with defendants

2, 3,4 and 5.

In the suit several issues were framed by the learned District Munsiff; but the suit was disposed of on the preliminary ground that the defendants

were not entitled to let in evidence to prove the arrangement pleaded by them in paragraph 3 of the written statement. This plea, it was said,

amounted to a variation of the terms of the mortgage and was therefore hit by Section 92 of the Evidence Act. This contention urged on behalf of

the plaintiff was accepted by the learned District Munsiff and also by the learned Subordinate Judge on appeal and the plaintiff''s suit was decreed

without any trial.

In this second appeal the only question for consideration is whether the Courts-below were justified in shutting out the oral and documentry

evidence which the defendants wanted to adduce to establish the arrangement pleaded by them in paragraph 3 of the written statement. The

fundamental mistake committed by the Courts below was to find that the first defendant was also an executant of the kanom deed Ex. P-5. Ex. P-

5 was executed on behalf of defendants 2 to 5 who were then minors by the first defendant as guardian. He did not join in the execution of the

deed in his individual capacity. The arrangement pleaded in paragraph 3 was in my view between the first defendant himself and Assan the

kanomdar. It is not as contended by the learned advocate for the respondent an arrangement entered into by the first defendant both for himself

and also on behalf of his minor children. u/s 92 of the Evidence Act the prohibition with reference to the proof of an oral agreement applies only as

between parties to the instrument or representatives in interest and not between one of the parties to the instrument and a third party. The language

of the section itself is clear and the Privy Council in Maung Kyin v. Ma Shwe La (1917) 33 M.L.J. 648 : 1917 L.R. 44 I.A 236 ILR 45 Cal. 320

decided this question and pointed out that the section in terms applies only as between parties to the instrument or their representatives in interest

and not between a party to the instrument and a stranger. In my opinion the arrangement of the discharge pleaded is also admissible on another

ground, as it does not contradict, vary, add to or subtract from any terms of the mortgage. The mortgagor, it has been held, is entitled to establish

by oral evidence discharge of a mortgage though he may be precluded from pleading an agreement to discharge, which is executory in its nature.

An agreement to give a discharge in future may be, if it is oral, hit by Section 92 but there is nothing in Section 92 of the Evidence Act to preclude

evidence being let in proof of an oral agreement which is otherwise valid and enforceable and in pursuance of which an amount somewhat less than

the amount due under the mortgage was accepted by the mortgagee in full discharge of the mortgage. The cases on the point have been considered

by Varadachariar and Horwill, JJ., in Krishnaswarni Rao v. Srinivasa Desikan (1937) 71 M.L.J. 850. In the present case what was pleaded was a

discharge and not an executory contract to pay the amount in future. No doubt the discharge was as pleaded in the written statement in pursuance

of an arrangement which was acted upon and accepted by both sides as discharging the mortgage debt by reason of the payments made by the

first defendant in pursuance of the arrangement. On this ground also I think that the view of the Courts below that the defendants are not entitled to

prove the arrangement pleaded in paragraph 3 of the written statement is erroneous.

Of course as the suit was not tried, I should not be understood as having expressed any opinion on the truth or otherwise of the plea taken by

the defendants in their written statement.

In the result the appeal is allowed and the decrees and judgments of the Courts below are discharged and the suit is remanded for retrial in the

light of this judgment. The appellant is entitled to a refund of the court-fee in this and in the lower appellate Court. The costs of all Courts will

follow and abide the result of the trial of the suit in the trial Court. No leave.