JUDGMENT

Sanderson, C.J. - This case, in my judgment, raises a question of considerable importance, and we are much indebted to the three learned vakils, who have argued the question before us, for their assistance. It appears that so long ago as 1897, the mortgage in question was executed by six individuals, some of whom are Defendants, and the others are now dead and their representatives are the other Defendants in this case.

2. The mortgage was to secure a loan of Rs. 200 and it contained a provision that the loan should be repaid within two months with interest at the rate of one anna in the rupee per mensem, and in case of default the interest was to run at that rate till payment. Each of the six borrowers mortgaged a hal of land to secure the loan. Certain payments were made by some of these six individuals so that the result was that within a little more than six years from the date of the loan, the lender received Rs. 463, that is to say, the whole of his principal Rs. 200 and Rs. 263 by way of interest, which is considerably more than 100 per cent. He postponed bringing his action until 1909, and then the mortgagee sued for Rs. 1,419-8 annas, which he alleged was the amount owing to him upon the mortgage, after deducting the payments which had been admittedly made.

3. The Court of first instance gave the Plaintiff a decree but not for the full amount of his claim, but for Rs. 1,307. Then the Defendants appealed to the District Judge, who dismissed the suit altogether. He came to the conclusion that a collateral verbal agreement had been made between the Plaintiff on the one hand and the Defendants on the other, whereby the Plaintiff gave the Defendants to understand that he would hold each of them liable for his own share only, and that when he accepted the various payments which were made, he verbally agreed to that effect. The learned Judge after reviewing the evidence carefully came to the conclusion that that agreement had in fact been made, and that consequently the original agreement which was contained in the mortgage bond was varied, and that having regard to that varied agreement the Defendants had individually discharged their liabilities, and that consequently there was nothing owing to the Plaintiff under the mortgage bond, and therefore he dismissed the suit altogether. The Plaintiff appealed to this Court: and Mr. Justice Teunon upon that point held that evidence of the verbal agreement upon which the District Judge had relied was not admissible, having regard to sec. 92 of the Evidence Act: and in my judgment the learned Judge was right in coming to that decision. I think that the District Judge ought not to have admitted evidence of the verbal agreement, because it did in material respects vary the contract which was contained in the mortgage bond and I may point out one respect in which it varied the mortgage bond, that is to say, the mortgage bond by its terms provided that each one of the mortgagees was liable for the whole amount of the mortgage, namely, Rs. 200 and interest; but the alleged verbal agreement provided that each individual who had executed the mortgage bond was liable for one-sixth of the Rs. 200 only: and, therefore, it is obvious that in that material respect namely, in the provision for the repayment of the loan, the contract contained in the mortgage bond was varied by the alleged verbal agreement, and consequently, to my mind, the learned Judge was quite right in saying that evidence ought not to have been admitted to prove the alleged verbal agreement, having regard to sec. 92 of the Evidence Act.

4. It was then argued by the learned vakil for the Appellant that even if the evidence as to the alleged verbal agreement could not be admitted to show the agreement, he could prove that he had made certain payments and those payments had been accepted by the Plaintiff in full satisfaction of the claim. But that argument cannot be maintained, because, when one examines the facts one cann