BEHARI Vs. SHIB SAHAI

JUDGEMENT

(1.) THIS appeal arises out of a suit for redemption of a mortgage over certain plots of laud shown in schedule A attached to the plaint. According to the plaintiffs, the usufruct of the mortgaged property was to be applied to payment of interest. According to the allegation of the plaintiffs, there was a subsequent arrangement whereby certain plots mentioned in schedule B attached to the plaint were made over to the defendant on the understanding that the profits derived from those plots were to be applied to payment of the principal of the mortgage money. The plaintiffs claim possession of the mortgaged property and of the plots in schedule B on the allegation that the mortgage has now been satisfied. The defendant alleged that the plots shown in schedule B were in fact his own properly and further contended that the oral evidence as to the subsequent agreement was not admissible having regard to Section 92 of the Evidence Act, The Courts below have overruled the defendant on both these points. The Courts have found that as alleged by the plaintiffs the plots shown in schedule B were made over to the defendant and that the defendant has been in enjoyment of the profits therefrom for some time past. The defendant has not attempted to account for the profits he has received from them. In second appeal, he relies on two very technical pleas, the first being that no oral evidence of the agreement was admissible inasmuch as the agreement was one which under law ought to have been reduced into writing and the second was that having regard to Section 92, oral evidence purporting to vary the terms of a written contract was not admissible. Having regard to the equities of the case, I would feel extremely reluctant to give effect to these technical pleas. But it appears to me that there is sufficient authority to support the decision of the Courts below in the ruling of this Court in Autu Singh v. Ajudhia Sahu 9 A 249; A.W.N. (1887) 27 which was followed by the Calcutta High Court in Kamla Sahai v. Babu Nandan Mian 11 C.L.J. 39; 2 Ind. Cas. 13. The appeal is dismissed with costs including fees on the higher scale.