CHIMAN LAL Vs. AMAR CHAND

JUDGEMENT

(1.) THIS is a defendant's revision application against two orders of the Senior Civil judge, Banswara, dated 31-1-64 and 2-3-64.

(2.) CHIMAN Lal defendant mortgaged a house in favour of Lalchand and Bhanwarlal on 18-7-52 for Rs. 6,000/-under a registered mortgage-deed. Lalchand and bhanwarlal assigned the mortgagee rights in favour of Amarchand on 23-1-60 and he instituted the present suit for sale on the basis of the mortgage-deed on 15-563. The defendant pleaded that there were two novations of the mortgage deed-one in S. 2009-10 when a new Khata was opened by Lalchand and Bhanwarlal and again on Migsar Badi 2, S. 2016 (corresponding to 2-12-59) when Lalchand executed a writing. No registered document was executed at the time of the alleged novation of contract in S. 2009-10. Nor was the writing dated 2-12-59 registered. The learned Senior Civil Judge held under his order dated 31-1-64 that no unregistered agreement varying the terms of the mortgage could be recognised. This order is correct in my opinion.

(3.) DURING the course of the cross-examination of Amar Chand plaintiff the defendant tried to prove the writing dated 2-12-59. The trial Court held by its order dated 2-3-64 that this writing could not be proved as it requires registration because it purports to vary the terms of the mortgage. This order is also being challenged on behalf of the defendant-It is contended that the writing is admissible under Section 17 (2) (xi) of the Registration Act. This writing runs as follows:. . (VERNACULAR MATTER OMMITED ). . By this writing Lalchand agreed to relinquish past as well as future interest due on the mortgage-deed. He also stated in it that he shall treat all the payments made hithertofore by the defendant as payments towards the principal and the principal amount remaining due against him would thus come to about Rs. 3,500/ -. He agreed to take this amount in yearly instalment of Rs. 300/-each. Section 17 (a) (xi) runs as follows: