JUDGMENT
S.C. Prasad, J.
1. This is a plaintiffs’ appeal, against the judgment of the learned Additional District Judge of Patna reversing a decision of the Munsif of Barh.
2. The Facts of the case, briefly stated, are that one Mt. Puna Kuer who was the proprietress of sixteen annas share o£ village Narachwar had mortgaged this village together with four annas interest in another village Amarpur for Rs 475/- on 30-5-1886, to Harkhu Singh and Dhunmun Singh, the mortgage deed having been taken in the Farzi name of one Haredayal Mahton. In October, 1904, the heirs of Mt. Puna Kuer sold twelve annas share in village Narachwar to one of the mortgagees, Harkhu Singh, by a registered kebala, which had been taken by Harkhu Singh in the farzi name of one Parsidh Singh whose sons executed a Jadabi deed on 17-9-1943, in favour of defendants 16 and 17, the heirs of Harkhu Singh, who subsequently also acquired the remaining four
annas share in this village Narachwar by a compromise in Title Suit No. 16 of 1943.
3. On 17-5-1950, defendants 16 and 17 sold their share in village Narachwar by a registered kebala of the above date to the plaintiffs for Rs. 10,300/-. out of which Rs. 8,325/- was paid in cash to the vendors, defendants 16 and 17, and Rs. 1500/- was kept in deposit with the purchasers, the plaintiffs, for redeeming another zarpeshgi deed executed on 3-12-1929, in respect of 3.39 acres of bakasht land under Khata No. 111 of village Narachwar, whereby this land had been given in thika to Chamari Mahton, father of defendants I to 4 who contested the suit. The term of the thika was for six years. The remaining amount of Rs. 475/- was also left with the purchasers, the plaintiffs, for redeeming the mortgage bond of 1886.
The plaintiffs’ case was that they tendered the money to both the mortgagees. The mortgagees of 1886 accepted the money but Chamari’s heirs did not do so. Thereafter, the plaintiffs deposited the money in Court and started proceedings under Section 83 of the Transfer of Property Act in which a notice was sent to Chamari’s heirs to take the money and give up possession of the land in favour of the plaintiffs, which they refused to do. Then the plaintiffs filed this suit claiming redemption of the zarpeshgi. They also claimed mesne profits.
4. The suit was contested by defendants 1 to 5, the heirs of Chamari, whose main defence was that the zarpeshgi had been redeemed in Jeth 1349 Fs., corresponding roughly to May 1942, by an oral settlement of the same lands of Khata No. 111 which were the subject matter of the zarpeshgi lease together with 18 kathas of another plot with the defendants for Rs. 1500/- as salami, which amount was set off against the dues of the zarpeshgi lease. Thus, this zarpeshgi of 1929 had been redeemed and the plaintiffs had no right to claim redemption by virtue of their purchase in 1950 of the proprietary interest of the village Narachwar from the defendants 16 and 17.
5. The trial Court found that the zarpeshgi had not been redeemed and the defendants had not acquired any right as raiyats by virtue of the settlement alleged by them in Jeth 1349 Fs. The Appellate Court reversed this finding and held that the story of redemption set up by the defendants, as a consequence of the settlement of the land with them in Jeth 1349 Fs., was correct and, accordingly, the appeal was allowed by it and the suit was dismissed. The plaintiffs have come up to this Court in appeal.
6. Mr. B.C. De, on behalf of the appellants, has raised three points. The first point is of law, viz., that the original zarpeshgi deed was a registered one which could be varied, or rescinded by another registered document and not by any oral transaction and, therefore, the plea of the defendants of the redemption of the zarpeshgi by oral settlement could not be proved by any evidence; and the Court below had erred in accepting this plea and allowing the evidence to be adduced in support of this. Mr. De relies upon the case of G.P. Mallappa v. Natam Naga Chetty, ILR 42 Mad 41: (AIR 1919 Mad 833) and the case of Mohammad Niaz Ahmad Khan v. Nanhe Mal, 1929-27 All LJ 924: (AIR 1929 All 615).
7. The other two points raised by Mr. De related to questions of facts. He says that the learned Additional District judge has in coming to his conclusion, accepted the evidence of certain witnesses in respect of the story of oral settlement set up by the defendants, viz., D. Ws. 5, 8 and 9 without considering the reasons given by the trial
Court for disbelieving those witnesses. Similarly, he says that the lower appellate Court has not also considered the reasons given by the trial Court for not accepting the story of Panchayat and the case of the defendants that salami was set off against the dues of the zarpeshgi and their having been in possession of 18 kathas of land alleged to have been settled with them, over and above lands of Khata No. 111, and also the reasons given by the trial Court for not accepting the rent receipts produced by the defendants in support of their case that they had paid rent for this land which was settled with them in Jeth 1349 Fs.
8. In reply, the learned counsel for the respondents has contended that, as to the first point, this was not a case in which the evidence adduced by the defendants in support of their case of oral settlement in discharge of the zarpeshgi of 1929 should not have been admitted, because this was a case of total extinguishment of the zarpeshgi and not a case of modification or variation or rescission of the mortgage evidenced by the zarpeshgi of 1349 Fs. Learned counsel has cited the cases of Ariyaputhira Padayachi v. Muthukumaraswami Padayachi, ILR 37 Mad 423: (AIR 1914 Mad 489), Ramchandra Sau v. Kailashchandra Patra, AIR 1931 Cal 667 and Lakshminarasimha Rao v. Raghavamma, AIR 1936 Mad 380.
9. On the other points, the learned counsel for the respondents contends that the lower appellate Court has fully considered the evidence and the facts arising therefrom in coming to its conclusion, and that this was not a case in which it could be said that the lower appellate Court had committed any irregularity in coming to its finding on the question of facts, viz., on the question of settlement set up by the defendants in defence to the claim of the plaintiffs to redeem the zarpeshgi of 1349 Fs.
10. In my opinion, the contentions of the learned counsel for the respondents appear to be correct and well-founded. On the first point, it is clear beyond any doubt that what the defendants pleaded in this case was the case of total discharge of the liability under the zarpeshgi in respect of payment of Rs. 1500/- which had been advanced by Chamari Mahton to the predecessor-in-interest of the plaintiffs in December, 1929. This was not a case in which the subsequent transaction set up by the defendants amounted to or had the effect of varying or rescinding the agreement between the parties resulting in the transaction of zarpeshgi of December 1929. Consequently, there was no question of the application of the bar under Section 92 of the Indian Evidence Act.
The case of ILR 42 Mad 41: (AIR 1919 Mad
833} was in respect of a plea raised by the defendant whereby he contended that by a subsequent oral agreement the plaintiff had agreed to take a smaller amount than what was due under the mortgage. In these circumstances, it was held that such a subsequent oral agreement amounted to an agreement nullifying the terms of the written contract and, therefore, oral evidence was inadmissible under Section 92(4) of the Indian Evidence Act. The case here is altogether different. Here as already stated, the defendant’s plea was that by an an oral settlement of the land with the defendants they had discharged the liability under the zarpeshgi of 1929 by setting off the amount of salami which they were liable to pay to the plaintiffs against the dues which the plaintiffs owed to them under the zarpeshgi.
It was clearly a case of total extinguishment at the mortgage liability. This case has got no application to the present case. The Allahabad case
1929-27 All LJ 924: (AIR 1929 All 615) is also quite different. There the plea sat up by the defendants was that there had been an oral agreement between the mortgagor and the mortgagees to the effect that in full satisfaction of the mortgage debt the plaintiff would take a conveyance of some shops and a sum in cash. In those circumstances, it was held that such a kind of oral agreement amounted to modification of the original contract and, therefore, it was inadmissible under Section 92(4) of the Indian Evidence Act.
Before me, in the present case, there is no such plea raised by the defendants; on the contrary, they say that there had been a completed transaction between the parties to settlement where-by the parties had extinguished the relationship which existed between them of mortgagor and mortgagee on the basis of the zarpeshgi of 1929 by adjustment and set off of the salami amount for the settlement in Jeth 1349 Fs. of the same lands with them. I am clear in my mind that the above two cases upon which great reliance has been placed by Mr. B.C. De, have got no application and are beside the point at issue.
11. In the case cited by the learned counsel for the respondents though the facts were different but the question which arose therein related to the rights of the defendants to lead evidence in respect of an agreement whereby the mortgage liability had been discharged or satisfied fully, and it was held in all those cases that there was no bar under Section 92 of the Indian Evidence Act to prove such an agreement or transaction between the parties. It was observed by Sadasiva Ayyar, J. in the case of ILR 37 Mad 423: (AIR 1914 Mad 489) as follows:
“The last contention about the admissibility of oral evidence to prove the alleged discharge of the mortgage of 1885 might be disposed of shortly. A mortgage might, even if created by a registered instrument, be proved to have been extinguished by letting in admissible evidence (including oral evidence) or payment of the mortgage amount or by letting in admissible evidence of any other transaction which operates as a mode of payment — Ramavatar v. Tulsi Prosad Singh, 14 Cal L5 507, It has been similarly held in Kattika Bapanamma v. Kistnamma, ILR 30 Mad 231 that white a subsequent oral agreement to modify the terms (of) a registered maintenance deed cannot be proved the fact that in particular years, the obligee was in possession of certain lands of the obligor and paid herself the maintenance amount out of the profits of the lands can be proved. See also Karampalli Unni Kurup v. T.V. Muthorakutti, ILR 26 Mad 195 and Goseti Subba Row v. Varigonda Narasimham, ILR 27 Mad 368. Here the defendants do not seek to prove that by the payment of any money or by the receipt by the mortgagee of profits of other lands of the mortgagor, the claim of the mortgagee was paid up and thus the mortgage was extinguished, but they wish to prove an invalid oral conveyance (of which evidence is legally inadmissible) of the equity of redemption in a portion of the mortgaged property as having had the effect of the payment of the mortgage money. Oral evidence to prove a conveyance as equivalent to payment of money has not been allowed in any of the cases cited and could not be allowed. Receipt of mesne profits by possession of lands and receipt of moneys can be proved by oral evidence but not an oral sale of lands worth more than Rs. 100 nor can such oral sale be taken as equivalent to the payment of the value of the land invalidly sold.”
This was a case in which an oral sale had been sell up in defence in a suit for equity of redemption. In the present case, however, what we find is the lease of agricultural land, &, therefore, it cannot be
said, that the defendants wanted to prove an invalid oral conveyance (sale) so as to come under the mischief of Section 92 of the Indian Evidence Act, as observed by the learned Judge of the Madras High Court in the above quotation.
12. The next case, AIR 1931 Cal 667, was also decided on the same principle. There a sulahnama was set up as amounting to satisfaction of a registered mortgage. This Sulahnama was an unregistered document. It was held that it was not a document entered into by the parties for the purposes of varying the terms of mortgage security and was admissible in evidence even without registration. It was also observed in this case that there was nothing in law to exclude oral evidence of the discharge or release of a mortgage deed when the plea was that the discharge had been made partly by payment of money and partly release of the debt. In the Madras case, AIR 1936 Mad 380 the plea on behalf of the defendants was that the amount approximately due and payable in respect of the mortgage bond had been satisfied by an arrangement between the parties that the mortgagee was to enjoy the same land being one of the items of the mortgaged property for a period of five years in full satisfaction of the mortgage; and in pursuance of this agreement the mortgagee had been led into possession of the said land and had enjoyed the rents and profits thereof for the said period. It was held that this contract in no way offended against the proviso (4) to Section 92 of the Indian Evidence Act and such an agreement could be proved in Court because this was an agreement in fulfilment of the obligation under the bond and not in any way altering the terms thereof. One of the cases which was reviewed in this ruling was the case cited before me by Mr. B.C. De for the appellants, viz., the case of ILR 42 Mad 41: (AIR 1919 Mad 833) and it was pointed out that in that (Madras) case the evidence regarding the oral agreement was held not admissible on the ground that the effect of the arrangement pleaded was to alter the terms of the original contract. It is clear, therefore, that the distinguishing feature is as to the effect of the arrangement pleaded. If the effect is to alter or modify the terms of the original contract, oral evidence will not be admissible on the ground that the said arrangement has the effect of altering or modifying the terms of a written contract evidencing a transaction between the parties.
13. It is true that proviso (4) of Section 92 of the Indian Evidence Act also bars evidence of oral contract which has the effect of rescinding a previous written contract, but rescission of a contract means that the parties thereto agree subsequently to absolve each other from the rights and liabilities accruing to them from the previous transaction. It does not proceed on the basis of the validity and subsistence of the rights and liabilities created by the original contract, but puts an end to it or avoids it. In such circumstances, of course, the law requires that when the original contract is in writing it may not be proved to have been abrogated except by a document in writing; but that is altogether different from an arrangement between the parties subsequent to a contract whereby accepting the rights and liabilities accruing thereupon they seek to fulfil the obligations arising therefrom and thereby discharge the liability of one party as against the other: that would be an extinction of the previous contract by performance and not bv cancelling it or avoiding it. This is the distinction between the two. And where the nature of the subsequent contract is independent of the operation of the previous contract, it has been held, in cases mentioned above that such a subsequent contract between the parties can be
pleaded and proved even though that contract, otherwise valid, is oral. It is not necessary that it should also be in writing and registered to operate effectively for the purposes of the adjustment and fulfilment of the rights and liabilities of the parties under the previous contract which is a registered instrument in writing, I think, therefore, that there is no substance in the argument of Mr. B.C. De that in this particular case the Courts below erred in allowing evidence to be adduced in support of the plea of redemption of the zarpeshgi of 1929 by the oral settlement of the same lands with the defendants adjusting the salami against the dues under the zarpeshgi.
14. As to the dither points, I have been taken through the judgments of the Courts below by the learned Counsel for both the parties and I am not in a position to say that the lower appellate Court has committed any mistake in arriving at its finding. The learned Additional District Judge appears to me to have considered the entire evidence and drawn his own conclusions which are different from the conclusions drawn by the trial Court from the same evidence, but this cannot be ground for interference with the finding arrived at by him, in second appeal. This is not a case in which the lower appellate Court has not considered the evidence which has been considered bv the trial Court in arriving at its finding. The difference between the two courts is the difference of approach adapted in considering the effect of evidence adduced by the parties. In my opinion, there is no substance in the argument of Mr. B. C. De that the findings arrived at by the Court below, which is the final Court of facts, were not proper, in view of the fact that that Court had not considered the reasons given by the trial Court, and should therefore, be displaced by this Court.
15. This appeal is dismissed with costs.
16. Leave to appeal is prayed and is refused.