Fonseka Et Al., V. Narayanan Chetty

Present: Lascelles C.J. and Be Sampayo A.J.

FONSEKA et al. v. NARAYANAN CHETTY.

67-D. C. Negombo, 8,256.

Evidence-Mortgage bond-Variation of terms of bond by subsequent non-notarial document.

In 1903 A executed a mortgage bond (hypothecating land) whereby he bound himself to pay B on demand the sum of Rs. 1,500 with interest.

In 1906 the parties came to a new agreement-which was embodied in writing, but not notarially attested-the purport of which was, not only to change the method of payment, but also to increase the burden of the debt, and thus to make the security to bear a larger debt.

Held, that the non-notarial agreement was inadmissible in evidence for proving the variation of the terms of the original bond.

The document (non-notarial) constitutes one entire promise, which is partly within and partly without section 2 of Ordinance

No. 7 of 1840, and is therefore not enforceable in any respect.

Kiri Banda v. Ukku Banda,1 and Lushington. v. Carolis.2 distinguished.

THE facts are set out in the following judgment of the District Judge (John Scott, Esq.,): -

Plaintiff and his wife in December, 1903, borrowed Rs. 1,500 on mortgage bond B (filed) from four Chetties, of whom defendant is one. In terms of the bond the principal was repayable without interest within four months; in failure thereof interest was payable at 13 per cent per annum every four months; in failure thereof the principal with interest at 20 per cent, per annum from date of failure till date of payment on demand legally.

Plaintiff paid interest at 13 per cent, per annum every four months from date of bond up to April, 1906. From that date onwards he paid eighteen bi-monthly instalments of Rs. 90 up to June, 1909. By his own calculation on that date he owed only Rs. 250.38 on the bond. This sum he tendered formally to his creditors, but they refused to accept it. Plaintiff now brings this action to compel defendant to accept that sum in full satisfaction of the debt, and for the cancellation and return of the bond.

Defendant produces a writing A, which purports to be an agreement entered into by the plaintiff and two of the four Chetties above referred to. It is dated in October, 1907. It refers expressly to the bond B, and states that plaintiff agrees to settle the debt due on that bond by payment of twenty-five bi-monthly instalments of Rs. 90 starting from April, 1906. It is reckoned therein that such payments would by June,

1(1911) 14 N. L. R. 181.                                                                                                             2 (1911) 14 N. L. R. 489.

1910, cover the principal Rs. 1,500 and interest thereon at 12 per cent, per annum, Rs. 750. In default of payment of these instalments, plaintiff agrees that the principal sum, with interest at 20 per cent, per annum as from April, 1906 (less the amount of any instalments already paid), shall be recovered from him by process of law. The writing purports to confirm a verbal agreement made in April, 1906

I hold, then, on the second issue framed that plaintiff entered into and signed agreement A.

[The following is the agreement A: -

October 13, 1907.

The agreement entered into between me, M. M. Fonseka of Dummaladeniya, and Sena Ana Roona Seena Narayanan Chetty and Theyna Moona Ravenna Mana Ramanadan Chetty, both of Negombo," is as, follows: With regard to the bond No. 9,144 dated December 7, 1903, attested by Mr. James, Notary Public, for the sum of 150 pounds, there was due on the said sum interest calculated on April 7, 1906, at the rate of 12 per cent, for fifty months from the above date up to June 6, 1910, Rs. 750, and principal Rs. 1,500, both aggregating the sum of Rs. 2,250, which was payable by twenty-five instalments of Rs. 90 each once in every two months. Out of these instalments, nine instalments, ending up to the 6th instant, amounting to Rs. 810, having been already paid, I agree t

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