Balwant Singh Walia v. Maya Devi Etc.

S.P. Goyal, J. - This judgment will dispose of two Letters Patent Appeal Nos. 304 (Balwant Singh Walia v. Smt. Maya Devi) and 310 of 1976 (Balwant Singh Walia v. Smt. Maya Devi etc.) which are directed against the same judgment of the learned Single Judge dated March 24, 1976, whereby the two cross appeals (R.S.As. Nos. 1705 of 1965 and 31 of 1966) were disposed of. 2. The suit giving rise to these appeals was filed by the respondents for redemption of the suit property which had been mortgaged vide registered mortgage deed dated October 11, 1960, for a sum of Rs. 4,000/-. The said property was alleged to be on lease with the appellant on a monthly rent of Rs. 70/- and reduction of Rs. 2,520/- was claimed in the mortgage amount on account of arrears of rent. 3. The appellant contested the suit and pleaded that the rent of the said property claimed that according to the terms of the mortgage-deed the respondents were liable to pay the amount of the taxes and also the expenses of constructions made by him together with interest at the rate of 7-1/2 per cent. The redemption of the property in dispute, according to the written-statement, could be claimed only on payment of Rs. 10,799.42 paise. 4. The learned Sub-Judge disallowed the claim of the appellant for improvements and held that the monthly rent of the property was Rs. 70/-. On appeal, the learned Additional District Judge reversed the finding of the trial Court on both the counts. The monthly rent of the property was found to be Rs. 30/- and the appellant was also held entitled to recover Rs. 2,500/- on account of improvements. It was further held that the mortgagee had paid Rs. 1,180.70 paise on account of taxes and the respondents were liable to pay the same. Dissatisfied with that judgment, the mortgagee filed RSA No. 1705 of 1965 and the mortgagors RSA No. 31 of 1966. The learned Single Judge dismissed the appeal of the mortgagee, but allowed the other appeal and passed a decree for redemption in the following terms in favour of the respondents :- (i) The mortgage money shall firstly consist of Rs. 4,000/- carrying an interest at the rate of 7-1/2 per cent per annum. The monthly interest comes to Rs. 25/- per month. Since the learned lower appellate Court has fixed the monthly rent of the property at the rate of Rs. 30/- per month, the respondents will be entitled to have a credit of Rs. 5/- per month only as rent after giving the other party credit of interest at the rate of Rs. 25/- per month. (ii) The taxes paid upto date by the appellant shall carry interest at the rate of 7-1/2 per cent. The total mortgage money will thus come to a sum of Rs. 4,000/- out of which a deduction will be made of Rs. 5/- per month along with interest at the rate of 7-1/2 per cent per annum, and to which the taxes paid by the appellant along with interest at the rate of 7-1/2% per annum shall be added. This amount will now be determined by the learned trial Court. 5. In these letters patent appeals by the mortgagee, the only contention raised by his learned counsel is that the claim for the improvements has been disallowed by the learned Single Judge by illegally ignoring the documents Exhibits DW-16/1 and D/1-A. Exhibit DW-16/1 is a letter written by Ram Parkash, one of the mortgagors in which he stated that the house should be completed and if some more money was required, he would pay and settle the accounts. The other document is an earlier statement of Smt. Maya Devi PW-14, another mortgagor, who, in that statement, admitted that after the mortgage, some repairs of the shop in dispute had been carried out with her consent. The learned Single Judge in the first instance held that these documents were not admissible in evidence as they tend to vary the terms of the registered-deed of mortgage, but in the latter part of the judgment, after taking into consideration the said writings, also held that they contained no clear admission of liability by the mortgagors to defray the cost of the construction made by the mortgagee. The view of the learned Single Judge by the learned counsel for the appellant on the ground that the said documents were relied on only as an evidence of distinct subsequent oral agreement modifying the terms of the original mortgage and such an agreement is covered by proviso (4) of Section 92 of the Evidence Act. To prove its existence, therefore, the said documents would be admissible in evidence. The argument of the learned counsel is, however, based on a partial reading of the proviso as the latter part of it lays down that such a subsequent oral agreement cannot be proved in cases in which the contract, grant or disposition of property is either required to be in writing or has been registered according to law. We, therefore, fully endorse the view of the learned Single Judge that the said two documents if they tend to modify the terms of the registered mortgage-deed would be inadmissible in evidence. But we are of the view that none of the said two documents has any bearing on the matter in dispute as in none of the said documents either of the two mortgagors has stated that any expenditure incurred by the mortgagee on further construction of the demised property would form part of the mortgage money and that the party would form part of the mortgage money and that the mortgagee would be entitled to realise the same as such. Moreover, there being several other mortgagors, apart from Maya Devi and Ram Parkash, the alleged subsequent agreement by them would not bind the remaining mortgagors. At best, the said two documents can be said to contain an admission on the part of the two mortgagors Smt. Maya Devi and Ram Parkash that the construction in dispute had been carried out by the mortgagee with their consent and for that reason they may be liable to compensate the mortgagee for the expenses incurred by him. But by no stretch of reasoning can it be said that the said two documents had the effect of modifying the terms of the registered mortgagee-deed so as to entitle the mortgagee to claim the expenditure, if any, incurred by him on the alleged construction as part of the mortgage money. These appeals are, therefore, wholly misconceived and the same are accordingly dismissed with costs. S.S. Sandhawalia, J. - I agree. Appeals dismissed.