MANU/SC/0499/2000

Equivalent/Neutral Citation: AIR2000SC 2633, 2000(3)BLJR1996, JT2000(9)SC 345, 2001-1-LW855, (2001)1MLJ40(SC ), 2000(4)RC R(C ivil)93,
2000 91 RD615, 2000(5)SC ALE517, (2000)7SC C 104, [2000]Supp2SC R361, 2000(2)UJ1542

IN THE SUPREME COURT OF INDIA

C.A. No. 1555 of 1990
Decided On: 10.08.2000
S. Saktivel (Dead) by Lrs. Vs. M. Venugopal Pillai and Ors.
Hon'ble Judges/Coram:
V.N. Khare and S.N. Variava, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: S. Sivasubramaniam, Sr. Adv. and S. Janani, Adv
For Respondents/Defendant: Ex-parte
Case Note:
Civil - parole evidence - Section 92 of Indian Evidence Act, 1872 - whether
any parole evidence can be let into substantiate subsequent oral arrangement
rescinding or modifying terms of registered settlement deed - terms of
registered document can be altered, rescinded or varied only by subsequent
registered document and not otherwise - oral arrangement if allowed to be
substantiated by payroll evidence would mean rewriting of settlement deed -
held, payroll evidence not admissible.
JUDGMENT
V.N. Khare, J.
1. 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.
2. 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.
3 . 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

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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 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.
4. 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.
5 . 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 settles 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 defend- ant/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:
9 2 . 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:

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 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.
6 . 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 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

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evidence it would mean rewriting of Ex. A/1, and, therefore, no parol evidence is
permissible.
7. 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 an evidence is not admissible in evidence.
8 . 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.
9. 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.
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