The main legal point established in the judgment is that oral evidence is not admissible to contradict or vary the terms of a mortgage, and repayments made to one creditor are not necessarily binding on the other creditors.

1. This is an appeal which arises out of a suit on a mortgage. Appellant 1, Mahadeosingh is the father of, appellant 2, Mohansingh. Mahadeosingh was indebted to respondents 1 to 3 and executed a simple mortgage in their favour on 22-8-1927 for Rs. 7,999 and agreed to pay the Bum with compound interest at Rs. 0-18-0 per cent per mensem with annual rests. The amount was payable in 11 instalments on Baisakh Sudi 15 of every year commencing from Fasli year 1337 (1928 A.D.). The amount and the date of payment of the several instalments are as given below:

Amount of instalment.

Date fixed for payment.

(1)

Rs. 500 plus interest due on the entire amount ...

4-5-1928

(2)

Rs. 500 plus interest due on the balance ...

23-5-1929

(3)

Rs. 600 '' ...

12-5-1930

(4)

Rs. 600 '' ...

2-5-1931

(5)

Rs. 650 '' ...

2-5-1932

(6)

Rs. 650 '' ...

9-5-1933

(7)

Rs. 800 ' '' ...

29-4-1934

(8)

Rs. 850 ' '' ...

18-5-1935

(9)

Rs. 900 ' '' ...

6-5-1936

(10)

Rs. 950 ' '' ...

25-5-1937

(11)

Rs. 999 ' '' ...

14-5-1938

________

Total

Rs. 7,999.

2. In default of payment of any instalment on the due date, the defaulted instalment was to carry compound interest at the rate of Rs. 1-4-0. per cent per mensem from the date of default till payment. In default in the payment of three instalments the entire amount was to carry compound interest at Rs. 1-4-0 per cent per mensem with annual rests till realisation. The property mortgaged was 16 anna malguzari share of mahal No. 2 of mauza Tandulwani with cultivating rights in sir.

3. Govindrao Sheoram Kedar Patil, respondent No. 3, gave a notice (Ex. p.. 10) on 20-11-1934 to Mahadeosingh in which he stated that the mortgagees had received Rs. 1,000 and Rs. 125 towards a part payment of the mortgage debt and that he had further received Rs. 1,500 in three instalments towards his debt and called on him to pay the balance of the debt due within 8 days of the receipt of the notice. Mahadeosingh in his reply dated 26-11-1934 (Ex. P.-12) stated that in addition to Rs. 1.000 paid to the three mortgagees on 4-1-1928 he had paid Rs. 7,730 to Govindrao who had written a letter on 19-1-1930 recording full satisfaction of the mortgage and had agreed to return the mortgage-deed to Mahadeosingh after getting it from Balmukund. Govindrao in his reply dated 25-12-1934 (Ex. P.-13) repudiated the allegations of Mahadeosingh as false and stated that he did not receive the payments as alleged by him (Mahadeosingh) and not write a letter recording full satisfaction of the mortgage and suggested that blank papers bearing his signature might have been utilised to prepare false receipts and a false letter recording full satisfaction of the mortgage.

Balmukund, appellant No. 1, gave a notice to Mahadeosingh on 2-1-1935. A copy of the notice has not been filed in the case. Mahadeosingh in his reply dated 101-1935 (Ex. 1-D-4) stated that he had made payment to Govindrao according to the agreement and that he had informed Balmukund about these payments after they had been made to Govindrao.

4. The respondents filed Civil Suit No. 15-A-of 1936 on 8-2-1936 in the Court of the 2nd Additional District Judge, Nagpur, against the appellants to recover Rs. 14,171 on the basis of the mortgage deed dated 22-8-1927 (Ex. p-1) and in default of payment prayed for a decree for safe of the mortgaged property.

5. The plaintiffs filed with the plaint two schedules, Schedule A showed Rs. 10,595 as the amount due to plaintiffs 1 and 2 and Schedule B Rs. 3,576 as the amount due to plaintiffs. Plaintiffs 1 and 2 gave credit for repayments of Rs. 593-12-0 and Rs. 74-4-0 on 4-1-1928 and 12-5-1928 respectively. Plaintiff 3 gave credit for the repayment of Rs. 406 4-0 and Rs. 50-12-0 on 4-1-1928 and 12-5-1928. Thus the plaintiffs gave credit for repayment of Rs. 1.000 on 4-1-1928 and Rs. 125 on 12-5 1928. Plaintiff 3 gave credit for the repayments of Rs. 200, Rs. 1,000 and Rs. 300 made to him in his Schedule B but did not state the dates of these repayments. The plaintiffs allowed a credit for Rs. 65 on acco