Land Development Company of Tanzania Ltd. v. Jinah. Civ. Case 3-D-69; 14/11/69; Georges C. J.
The plaintiff claimed 35,000/- due on a mortgage. The defendant mortgaged his right of occupancy to the plaintiff to secure a sum of money repayable in instalments of 35,000/- for three years and in smaller yearly amounts thereafter. The defendant admitted the mortgage and that he had not paid the second instalment, but alleged that the plaintiff had not paid 40,000/-, being part of the mortgage consideration, at the time of the execution of the deed. He, the defendant, had been given a cheque for that amount, but it had been dishonoured. He further alleged that he and the plaintiff had agreed orally to postpone each instalment by six months. The plaintiff objected to this evidence, relying on s. 101 of the Evidence act, 1967, which excludes oral evidence to vary, add to or subtract from a document required by law to be in writing, but which provides a number of exceptions, one of them, on which the defendant relied, to the effect that such evidence is admissible to show want of consideration.
Held: (1) “I would hold in this case that the evidence is admissible. The statement of the law by Nannerji and Nommen JJ in Indarjit v. Dal Chand [1696] 22 I.L.R. (All) 168 at p. 171 seems to me based on sound principle and I would adopt and extend it. “In Hakum Chand v. Hira Lal it was held that section 92 of the Evidence Act does not prevent a party to a contract from showing that there was no consideration or that the consideration is different from that described in the contract. If it is open to a party as is undoubtedly the case to show, notwithstanding a recital in the sale deed, that no consideration passed or that the consideration was different from that stated in the deed, it is, in our opinion, open to a party to prove under what circumstances the payment of consideration was postponed and what was the mode agreed upon as to the payment of it.” Here it is alleged that there was a delay of nearly six months in payment of part of the consideration. Because of this it is alleged that repayment of instalments was postponed for six months. Oral evidence should be admitted to establish this as clearly the date for commencing repayment must have been fixed in relation to the date when the mortgage money was receiver Oral evidence of the postponement of the one because of delay in fulfilling the other should be admissible.” (2) Ruling that defendant’s evidence admissible.
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