1. This is an appeal by some of the defendants in a suit for sale on foot of a mortgage of 30th April 1919 which had been executed by one Mr. Muhammad Ismail Khau in favour of the plaintiff-respondent. Md. Ismail Khan died on 9th November 1919. In September 1919 Md. Ismail Khan had executed a deed of wakf. Ex. 10, by which he had appointed certain persons as mutawallis. Defendants 1 to 4 are the legal heirs of Mohammad Ismail Khan, defendants 5 to 9 are the trustees under the wakf, and defendant 10 is a subsequent mortgagee of the property in suit. Various pleas were taken by the defendants and the points that were in controversy before the Court below were whether Mohammad Ismail Khan had validly executed the mortgage, and the mortgage was legally enforceable, and whether the rate of interest was excessive; and the last question, which was the only question in controversy before us, was whether an agreement had been entered into between the plaintiff Nanhe Mal and the mutawallis on 19th December 1924 that in full satisfaction of the mortgage debt the plaintiff would take a conveyance of six shops and a sum of Rs. 7,000 in cash.
2. The learned Subordinate Judge has decided all the issues in favour of the plaintiff. He found that the defendants had not proved the alleged agreement, and further that evidence was not admissible to prove the agreement, which would have amounted to a variation of the original contract, namely that entered into by Mohammad Ismail Khan with the plaintiff on 9th December 1919.
3. The appellants before us, who are the heirs of Mohammad Ismail Khan and a trustee, had in their grounds of appeal taken various points. The only point which has been seriously put forward before us is as regards the question whether the agreement of 19th December 1924 could have been legally proved and whether the defendants had proved that agreement.
4. We have come to the conclusion that the finding of the learned Subordinate Judge on both the points is correct. On the date when the agreement was entered into it cannot be denied that a sum of Rs. 1,12,000 was due to the plaintiff on the mortgage. The case for the defendants is that the plaintiff agreed in full satisfaction of the mortgage to take a conveyance of six shops valued at Rs. 95,000 and Rs. 7,000 in cash, that is a total sum of a Rs. 1,02,000. According to the plaintiff the value of the shops is much less than Rs. 95,000 but it is unnecessary for the purpose of this case to consider what was the real value of the shops. We are of opinion that the oral agreement amounted to a modification of the original contract and was inadmissible under Section 92, Clause 4 of the Evidence Act it is unnecessary to refer to all the cases cited before us. We agree with what was held in the case of G.P Mallapa v. Naga Chetty . [1918] 42 Mad. 41.
5. As the Court below has decided that upon the evidence the defendants have not been able to prove the oral agreement we will record a finding, though, in view of our finding that evidence was inadmissible, it is not necessary to do so. (Here the judgment discussed evidence and concluded.) We have, therefore, come to the conclusion on the question of fact that the finding of the learned Subordinate Judge is correct. We do not accept everything that Nanhe Mal had said about the settlement but it was for the defendants, who alleged the agreement, to prove beyond all doubt a final settlement as alleged in the written statement and this in our opinion, the defendants have failed to do. The result is that we dismiss this appeal with costs.
S.N/R.K
6. Appeal dismissed.