Kiri Banda V. Ukku Banda

Present: Lascelles C.J. and Middleton J.   June.6,1911

KIRI BANDA v. UKKU BANDA.

103-D. C. Kegalla, 2,761.

Evidence-Variation of a notarial instrument by anon-notarial document- Ordinance No. 14 of 1895, s. 92.

There is nothing in the Evidence Ordinance to prevent a variation or modification in a notarial instrument from being proved by a subsequent non-notarial writing, provided that the latter writing is not itself of such a nature as to require notarial execution under Ordinance No. 7 of 1840.

THE plaintiff-appellant in this case sued the defendant, qua administrator of the estate of one Mudiyanse, deceased, for the balance sum of Rs. 430 and interest due on a mortgage bond.

Mudiyanse, the original mortgagor, had paid a sum of Rs. 600 on September 29, 1904, and had obtained a writing (D 1) from the plaintiff acknowledging the receipt of the said sum, and stating that out of it Rs. 320 was in payment of the principal and Rs. 280 in payment of the interest due on the bond up to that day, and further stating that the plaintiff would accept the balance yet due on the mortgage without interest.

Thereafter Mudiyanse died, and the defendant, who was duly appointed administrator of the estate, paid plaintiff on February 8, 1906, the sum of Rs. 100 and obtained a receipt therefor (P 1), which stated that this sum was in payment of the interest then due. The plaintiff was called upon, in the testamentary case in which the estate of Mudiyanse, the mortgagor, was administered, to accept the sum of Rs. 330 in full satisfaction of his claim, which the plaintiff declined to do, and the parties were referred by the

District Judge to a separate action. The sum of Rs. 330 was, however, not deposited in Court by the administrator till after the present action was instituted. The learned Additional District Judge (A. C. Allnutt, Esq.) heard the case on February 6, 1911, and in his judgment, delivered on February 20, 1911, dismissed the plaintiff's claim in excess of Rs. 330, which was admitted by the defendant, and ordered plaintiff to pay the defendant the costs of this action.

The plaintiff appealed.

Alwis (with him A. St. V. Jayewardene), for the appellant.-No subsequent oral agreement can be admitted to prove a variation of the contract contained in the mortgage bond. In the case of a notarial instrument a writing which is not notarial is inadmissible to prove a subsequent variation. The document D 1, which is not notarially executed, cannot be admitted to vary the terms of the mortgage bond, and has been properly rejected in the lower court by the District Judge and by the parties.

If D 1 is not admissible, it is quite clear that the oral admission of the plaintiff is not enough to vary the terms of the mortgage bond, Counsel referred to De Silva v. De Silva,1 Somasundram Chetty v. Todd.2

Tambyah, for the respondent.-Parol evidence may be admitted to show that the conduct of the plaintiff amounts to a waiver of a right created by the mortgage bond. See Shyama Charan Mandal v. Heras Mollah3 (Lascelles C.J.-Is the document D 1 " oral evidence" within the meaning of section 92 of the Evidence Ordinance ?) No. It is a written variation of the contract. The respondent may rely on D 1 in proof of the variation of the original contract.

A. St. V. Jayewardene, in reply.-The mortgage bond being a notarial instrument, can be modified only by another notarial instrument. See De Silva v. De Silva.1 The Evidence Ordinance does not draw any distinction between notarial and other written instruments. But in Ceylon, the Evidence Ordinance must be read with Ordinance No. 7 of 1840.

Cur. adv. vult.

June 6,1911. Lascelles C.J.-

The appeal turns upon the admissibility of the document D. 1 which is a receipt given by a mortgagee to his debtor for a portion of the principal and interest, to which are appended the following words over the mortgagee's signature: " It is agreed that no interes

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