Vs. M.Venugopal Pillai & Ors  INSC 428 (10 August 2000)
& S.N.VARIAVA KHARE,
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.
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
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.
Pillai who owned the property, settled the same under a registered settlement
deed dated 26.3.1915 (Ext.
in favour of Papammal and children born through her.
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.
plaintiff Venugopal Pillai claimed share in the property in dispute under the
registered settlement deed.
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.
adopted the written statement filed by his father. In the written statement it
was pleaded that as 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
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.
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:
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
from, its terms:
(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.
However, this is not permissible where the contract, grant or disposition of
property is by law required to be in writing.
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.
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 written document
can be altered, rescinded or substituted.
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.
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.
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.
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.
the aforesaid reasons, we do not find any merit in this appeal. It is
accordingly dismissed. There shall be no order as to costs.