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PATNA HIGH COURT
Ahmad and Choudhary JJ.
Ram Narain Prasad Singh
Versus
Manki Singh
Appeal From Appellate Decree No. 1255 of 1948 ; 1258 of 1948 ;
Decided On : JULY 07, 1954
PAROL EVIDENCE - ADMISSIBILITY - MORTGAGE DEED - CONSTRUCTION - SECTION 92, EVIDENCE ACT - SCOPE AND LATITUDE OF PAROL EVIDENCE - PROVISO (6) TO SECTION 92, EVIDENCE ACT - INTERPRETATION.
Fact of the Case:
The plaintiffs instituted two suits for redemption of mortgage, both based on two mortgage deeds executed by the same person. The defendants, who were the transferees under two sale deeds, contested the suits, claiming that the mortgage deeds were in fact documents of absolute sale and that they were in possession of the land as tenants on mutation of their names in the sherista of the zamindar.
Finding of the Court:
The trial court held that the mortgage deeds were genuine sudbharna bonds and did not operate as sale deeds. The appellate court, however, reversed this finding and held that the mortgage deeds were out and out sale deeds in garb of sudbharna bonds.
Issues: 1. Whether parol evidence is admissible to prove that a document, which on its face is a mortgage deed, constitutes a document of absolute sale. 2. The scope and latitude of parol evidence admissible under proviso (6) to Section 92 of the Evidence Act.
Ratio Decidendi: 1. Parol evidence is not admissible to prove that a document, which on its face is a mortgage deed, constitutes a document of absolute sale, as this would contradict, vary, add to, or subtract from, the terms of the mortgage deed, in violation of Section 92 of the Evidence Act. 2. Proviso (6) to Section 92 of the Evidence Act, which allows for the admission of evidence to show in what manner the language of a document is related to existing facts, does not apply to cases where the language of the document is plain and unambiguous and there is no ambiguity in its relation to existing facts.
Final Decision: The appeals were allowed, and the judgment of the trial court was restored.
Ahmad, J.
1. These two appeals arise from two suits for redemption, both instituted by the same plaintiffs on the basis of two mortgage deeds.
2. The main common point for decision in these two appeals is as to whether between the parties to the transactions parol evidence is admissible to prove that the documents, which on their face appear to be mortgage deeds, constitute documents of absolute sale.
3. Of the two mortgage deeds, one is dated 30-7-19D4, which is exhibit 1 on the record and is the basis of the action in suit No. 169/133 of 1944/1946 corresponding to Second Appeal No. 1255 of 1948, and the other is dated 22-1-1909, which is exhibit 1(a) on the record and is the basis of action in suit No. 170/77 of 1944/1946 corresponding to Second Appeal No. 1258 of 1948. Both these documents were executed by the same person, namely, Megho Tanti. On his death, his heirs and successors, who were impleaded as defendants 3rd party in both the suits sold the equity of redemption along with some other properties for a sum of Rs. 500.00 to the common plaintiffs of the two suits by a sale-deed dated 19-4-1944 (exhibit 2).
4. The first mortgage deed dated 30-7-1904, was executed in favour of two persons Kashi Singh, the ancestor of the defendants 1st party, and Ramsahay Singh, the ancestor of defendants 4th party, in suit No. 169/133. This document was executed for a sum of Rs. 150.00 and the property covered under the document was 1 bigha and 11 dhurs of the tenancy land in plot No. 184 of khata No. 57. The period of grace given under that document was twenty-one years. The other mortgage deed was also executed in favour of two persons, Ramrup Kumar (defendant No. 11) and Manmohan Kumar, the ancestor of defendants 12 to 14, in suit No. 170/77, who all constituted the second party in that suit. That was for a sum of Rs. 99/- and the property covered by it was 18 kathas and 2 dhurs of the tenancy land in plot No. 13 under the same khata No. 57. The period of grace stipulated in that document was thirty-five years. It is said that Ramsahay Singh, one of the two mortgagees under the mortgage deed, dated 30-7-1904, transferred his interest under that document for a sum of Rs. 100/-, and in the case of the other mortgage deed dated 22-1-1909, all the mortgagees thereunder transferred their interest under that document for a sum of Rs. 1000.00 in favour of the common contesting defendants by two sale deeds of the same date, namely, 27-6-1921. The originals of the two sale-deeds have been exhibited as A and A/1 and their certified copies as 3 and 3(a).
5. The tenancy holdings in plot Nos. 184 and 13 are both situate in village Mohammadpur Mani bearing touzi No. 591, which were at the time of the execution of the two mortgage documents in the zamindari of Mahanth of Dularpur.
6. The case of the plaintiffs is that on their purchase of the equity of redemption from the heirs and successors of Megho Tanti they tendered the mortgage money to the defendants but they did not accept it and, therefore, they deposited that amount in court on 27-4-1944, under Section 83, Transfer of Property Act, in Miscellaneous Case No. 140 of 1944. On the service of the notices in that case the transferee defendants asserted that they were not sudbharnadars but purchasers of the properties and hence the plaintiffs instituted the two suits bearing Nos. 169/133 and 170/77, for a declaration that they had a right to redeem the mortgage lands and prayed for a decree of redemption with mesne profits.
7. The suits were substantially contested only by the common transferees under the two sale-deeds dated 27-6-1921, who were impleaded as defendants second party in suit No. 169/133 and as defendants first party in suit No. 170/77, No appearance or written statement was filed in either of the suits on behalf of the defendants third party or on behalf of the defendants fourth party in suit No. 169/133 or even on behalf of defendants first party in suit No. 170/77. The
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