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CASE NO.: Appeal (civil) 1555  of  1990

PETITIONER: S.SAKTIVEL (DEAD) BY LRS..

       Vs.

RESPONDENT: M.VENUGOPAL PILLAI AND ORS.

DATE OF JUDGMENT:       10/08/2000

BENCH: V.N.KHARE & S.N.VARIAVA

JUDGMENT:

KHARE, J.: L...I...T.......T.......T.......T.......T.......T.......T..J

   The short question that arises in this appeal is whether any  parol  evidence  can  be   let  in  to  substantiate  a subsequent  oral  arrangement  rescinding or  modifying  the terms of a registered settlement deed.

   The property in dispute in this appeal was self-acquired property  of  one  Muthuswamy Pillai.  The  said  Muthuswamy Pillai  had a concubine named Papammal and through her three sons  and  one daughter were born.  One of the sons,  Appavu Pillai  died  during  the  lifetime  of  Muthuswamy  Pillai, leaving   defendant   nos.2  to  4  as  his   legal   heirs. Singaravaelu Pillai (defendant No.  1) and Venugopal Pillai, plaintiff (respondent no.1 herein) are second and third sons of  said  Muthuswamy  Pillai.   Defendant No.6  who  is  the appellant  in  this case is the son of  Singaravaelu  Pillai (defendant No.  1) who died during the pendency of the suit. Muthuswamy  Pillai who owned the property, settled the  same under  a  registered settlement deed dated  26.3.1915  (Ext. A/1)  in  favour of Papammal and children born through  her. At the time of execution and registration of settlement deed all  the  sons were minors and, therefore, their mother  was appointed  as their guardian who accepted the settlement  in her capacity as a guardian of the minors.  Muthuswamy Pillai died in 1954 and Papammal also died subsequently in the year 1957.

   The  plaintiff  Venugopal  Pillai claimed share  in  the property  in  dispute under the registered settlement  deed. Since  defendant  no.1  refused  to give any  share  in  the property  to the plaintiff, he brought a suit for  partition and  also  for other consequential reliefs.  Defendant  No.1 filed  written  statement wherein he contested the claim  of the  plaintiff and whereas defendant nos.2 to 5 accepted the case  of the plaintiff.  After the death of defendant  No.1, defendant  No.6,  who  is  the heir of  defendant  No.1  was substituted   in   the   suit    as   defendant   No.     6. Defendant-appellant  adopted the written statement filed  by his father.  In the written statement it was pleaded that as

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a  result  of the subsequent arrangement arrived at  amongst the  members of the family of Muthuswamy Pillai in the  year 1941  the property in dispute was allotted to defendant no.1 exclusively  and rest of the other sons were given money  by cash.   In sum and substance the case of defendant no.6  was that  as  a result of oral arrangement arrived in  the  year 1941,  the  settlement  deed   executed  and  registered  on 26.3.1915  stood  modified and, therefore, the plaintiff  is not  entitled to any share in the property.  The  registered settlement  deed was filed in the suit and was exhibited  as Ex.A/1.   Before  the  trial court, a question arose  as  to whether  the  registered document is a settlement deed or  a will.  However, both the parties proceeded on the basis that document Ext.  A/1 is a registered settlement deed and not a will.   The  trial Court treating the document Ex.A/1  as  a settlement  deed held that in view of proviso (4) to Section 92  of  the Evidence Act the contesting defendant  can  lead oral   evidence   to  substantiate   the   subsequent   oral arrangements  arrived  at amongst the members of the  family and   believing   the  arrangements  as   set  up   by   the defendant-appellant,  the  trial  court dismissed  the  suit filed by the plaintiff -respondent.

   In  First Appeal filed by the plaintiff before the  High Court  the learned Single Judge of the High Court was of the view  that  in  view  of proviso (4) to Section  92  of  the Evidence  Act  it is not open to the parties to let in  oral evidence  to  modify,  vary  or subtract the  terms  of  the registered  document.   Consequently, the First  Appeal  was allowed and the suit for partition was decreed.  The Letters Patent  Appeal preferred by the appellant was dismissed by a Division  Bench  of the High Court.  It is against the  said judgment the appellant is in appeal before us.

   Learned  counsel appearing for the appellant urged  that the  view  taken by the High Court in decreeing the suit  of the  plaintiff was erroneous inasmuch as the settlees  under Ex.A/1  got  the  suit property and by the  subsequent  oral arrangement,  they  agreed to work out their rights  without varying  or substituting the terms of Ex.A/1 and, therefore, the  High  Court was not right in not considering  the  oral arrangement  as  pleaded by the defendant/appellant.  It  is not  disputed  that disposition under Ex.A/1 in the  present case  is by way of grant and under the said disposition  all the  sons of Muthuswamy Pillai acquired rights.  It is  also not  disputed  that  the  settlement deed  is  a  registered document   and   by  virtue  of  alleged   subsequent   oral arrangement  other  sons of Muthuswamy Pillai were  divested with  the  rights which they acquired under  the  settlement deed.  Under such circumstances the question that arises for consideration is as to whether any parol evidence can be let in to substantiate subsequent oral arrangement rescinding or modifying  the  terms of the document which, under  law,  is required  to  be  in writing or is  a  registered  document, namely,  Ex.A/1.   Section 92 of the Evidence Act  reads  as thus:

   "92.   Exclusion of evidence of oral agreement.  -  When the  terms of any such contract, grant or other  disposition of  property, or any matter required by law to be reduced to the  form  of a document, have been proved according to  the last section, no evidence of any oral agreement or statement shall  be  admitted,  as  between the parties  to  any  such instrument  or  their representatives in interest,  for  the purpose of contradicting, varying, adding to, or subtracting

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from, its terms:

   Proviso  (4) - The existence of any distinct  subsequent oral agreement to rescind or modify any such contract, grant or  disposition of property, may be proved, except in  cases in  which such contract, grant or disposition of property is by  law  required to be in writing, or has  been  registered according  to the law in force for the time being as to  the registration of documents."

   A  perusal  of the aforesaid provision shows  that  what Section  92 provides is that when the terms of any contract, grant  or  other disposition of the property, or any  matter required  by law to be reduced in the form of document, have been  proved, no evidence of any oral agreement or statement is  permissible  for the purpose of contradicting,  varying, adding  or  subtracting the said written document.   However this  provision is subject to proviso 1 to 6 but we are  not concerned  with  other provisos except proviso 4,  which  is relevant  in the present case.  The question then is whether the  defendant-appellant  can  derive  any  benefit  out  of proviso  (4)  to Section 92 for setting up oral  arrangement arrived  at  in  the  year  1941 which  has  the  effect  of modifying  the written and registered disposition.   Proviso (4) to Section 92 contemplates three situations, whereby (i) the  existence of any distinct subsequent oral agreement  as to  rescind  or  modify  any   earlier  contract,  grant  or disposition of the property can be proved.

   (ii)   However,  this  is   not  permissible  where  the contract,  grant  or  disposition  of  property  is  by  law required to be in writing.

   (iii)  No  parol evidence can be let in to  substantiate any   subsequent  oral  arrangement   which  has  effect  of rescinding  a  contract or disposition of property which  is registered  according to the law in force for the time being as to the registration of documents.

   In  sum  and  substance what proviso (4) to  Section  92 provides  is  that  where  a contract  or  disposition,  not required by law to be in writing, has been arrived at orally then  subsequent oral agreement modifying or rescinding  the said  contract or disposition can be substantiated by  parol evidence  and such evidence is admissible.  Thus if a  party has  entered  into  a contract which is not required  to  be reduced  in writing but such a contract has been reduced  in writing,  or it is oral in such situations it is always open to  the parties to the contract to modify its terms and even substitute   a   new  by  oral   contract  and  it  can   be substantiated  by parol evidence.  In such kind of cases the oral  evidence  can  be  let in to prove  that  the  earlier contract  or  agreement has been modified or substituted  by new  oral  agreement.   Where  under   law  a  contract   or disposition  are required to be in writing and the same  has been  reduced  in writing, its terms cannot be  modified  or altered  or substituted by oral contract or disposition.  No parol  evidence  will be admissible to substantiate such  an oral  contract or disposition.  A document for its  validity or  effectiveness  is required by law to be in writing  and, therefore,  no modification or alteration or substitution of such  written document is permissible by parol evidence  and it  is only by another written document the terms of earlier

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written  document can be altered, rescinded or  substituted. There  is another reason why the defendant/appellant  cannot be  permitted  to let in parol evidence to substantiate  the subsequent  oral  arrangement.   The reason being  that  the settlement  deed is a registered document.  The second  part of  proviso  (4)  to Section 92 does not permit  leading  of parol  evidence  for  proving a  subsequent  oral  agreement modifying  or  rescinding  the registered  instrument.   The terms  of  registered document can be altered, rescinded  or varied  only  by  subsequent  registered  document  and  not otherwise.   If  the  oral  arrangement as  pleaded  by  the appellant  if allowed to be substantiated by parol  evidence it would mean re- writing of Ex.A/1 and, therefore, no parol evidence is permissible.

   In   view   of   the   aforesaid   legal   position   on interpretation  of  proviso  (4) to Section 92  we  have  to examine as to whether settlement deed Ex.A/1 was required to be in writing under the law or not.  It is not disputed that by  settlement deed Ex.A/1 which is a disposition Muthuswamy Pillai  passed  on  right to property to all  his  sons  who acquired  right  in  the  property.   Where  there  is  such conferment  of title to the property, law requires it be  in writing  for  its  efficacy and effectiveness.   A  document becomes  effective  by  reason  of the fact that  it  is  in writing.   Once  under law a document is required to  be  in writing  parties  to such a document cannot be permitted  to let  in  parol  evidence  to  substantiate  any   subsequent arrangement  which  has effect of modifying earlier  written document.   If  such  parol evidence is permitted  it  would divest  the rights of other parties to the written document. We  are,  therefore,  of the view that the  subsequent  oral arrangement  set  up  by the defendant-appellant  cannot  be proved  by  the  parol  evidence.  Such a  evidence  is  not admissible in evidence.

   The  learned  counsel for the appellant then urged  that Ex.A/1  in fact is not a settlement deed but is a will  and, therefore,  parol evidence is admissible to substantiate the subsequent  oral  arrangement.  This controversy also  arose before  the  trial  Court.   Before   the  trial  Court  the plaintiff  and  the  defendants  agreed  that  Ex.A/1  is  a settlement deed and not a will and the trial Court proceeded on  the  basis  that  the document Ex.A/1  is  a  registered settlement   deed.   We  are,   therefore,  not  deposed  to entertain the argument of learned counsel for the appellant.

   For  the aforesaid reasons, we do not find any merit  in this  appeal.  It is accordingly dismissed.  There shall  be no order as to costs.