Judgement Appeal from a judgment and decree of the High Court in its appellate jurisdiction (October 8, 1912) reversing a judgment and decree of Davar J. (April 11, 1912). The suit was instituted in the High Court by the respondent against the appellant to recover Rs.50,000, the amount of a promissory note dated December 23, 1907, made by the appellant jointly with Hyderally Cassumji, Sons & Co. (hereinafter called Hyderally) and payable upon demand to the respondent or order. Under a written agreement dated August 1, 1907, the appellant had agreed to advance to Hyderally Rs. 1,50,000 for the purpose of paying off a debt due from Hyderally to the appellant. The Rs.l,50,000 were payable by three instalments of Rs.50,000 each, of which two had been paid to Hyderally, and by him paid to the appellant, and the third was not payable until January 30, 1908. The appellant in December, 1907, required Rs.50,000 to meet a hundi then falling due and asked Hyderally for repay ment of the Rs.50,000 still owing and suggested that Hyderally should arrange with the respondent to pay the remaining instalment of Rs.50,000, due under the agreement upon January 30, 1908, immediately. It was in these circumstances that the joint promissory note was given; it was admitted that the respondent had paid the Rs.50,000 and that the money had reached the hands of the appellant. The respondent by his plaint set out the circumstances and alleged that it was arranged between the parties to the note that the appellants liability upon it should cease upon January 30, 1908, if Hyderally had then fully secured the respondent for all the money due to him which he had agreed to do, but that the security had not been given. The appellant by his written statement alleged that there was an oral agreement that his liability upon the note should cease upon January 30, 1908. At the trial evidence was admitted on behalf of both parties as to the circumstances under which the note sued upon had been given and of the oral arrangement made in respect of it. The appellant by his written statement alleged that there was an oral agreement that his liability upon the note should cease upon January 30, 1908. At the trial evidence was admitted on behalf of both parties as to the circumstances under which the note sued upon had been given and of the oral arrangement made in respect of it. The appellants evidence was to the effect that the arrangement was that on January 30, 1908, the advance which the respondent had } agreed to make to Hyderally on that date should be regarded as having been made by the money paid under the promissory note sued upon, and that the liability upon the note should be held or satisfied by a fresh note to be granted by Hyderally to the respondent for that agreed advance. Davar J. did not regard the respondents (plaintiffs) evidence as to the oral agreement as reliable, and, treating his pleading as an admission that there was some arrangement under which the note sued upon was not to be valid after January 30, 1908, made a decree in favour of the appellant. Upon appeal the Court (the Chief Justice and Chandavarkar J.) reversed this decision upon the ground that the oral agreement set up by the present appellant (even if established by the evidence which the learned judges thought it unnecessary to discuss) was one which varied the terms of the written contract contained in the promissory note and was consequently inadmissible in evidence by s. 92 of the Indian Evidence Act, 1872. The learned judges accordingly made a decree in favour of the present respondent for Rs.50,000. Upjohn, K.C., and E. B. Raikes, for the respondent. The evidence given at the trial established that there was an agreement under which upon January 30, 1908, the Rs.50,000 to be advanced under the agreement of August 1, 1907, was to be treated as already made, and the liability upon the note was to be satisfied by a fresh note to be given by Hyderally for that agreed advance. This agreement was not one which varied the terms of the promissory note. It dealt with a matter as to which the note was silent and was admissible in evidence under the Indian Evidence Act, 1872, s. 92, proviso 2. -[Bholanath Khettri v. Kaliprasad Agarwalla (( 1871) 8 Beng. This agreement was not one which varied the terms of the promissory note. It dealt with a matter as to which the note was silent and was admissible in evidence under the Indian Evidence Act, 1872, s. 92, proviso 2. -[Bholanath Khettri v. Kaliprasad Agarwalla (( 1871) 8 Beng. L. R. 89.), Harris v. Rickett (( 1859) 4 H. &N. 1.), and Lindley v. Lacey (( 1864) 34 L. J. (C. P) 7.) were referred to.] Further the respondent by his plaint himself alleged that there was a collateral verbal agreement and cannot exclude the appellants evidence as to its terms Holt v. Miers. (( 1839) 9 C. & P. 191.) Sir R. Finlay, K.C., and Lowndes, for the respondent. There was no satisfactory evidence of the verbal agreement alleged by the appellant. The trial judge was not entitled to treat the respondents pleading as an admission which helped to establish that agreement. The agreement alleged was not admissible in evidence as it varied the written contract to pay upon demand. [Indian Evidence Act, 1872, ss. 91 and 92 ; Taylor on Evidence, 10th ed., ss. 1132 and 1135 ; Pym v. Campbell (( 1856) 6 E. & B. 370.); and Wallis v. Littell (( 1861) 11 C. B. (N.S.) 369.) were referred to.] In any case the verbal agreement as pleaded by the appellant was clearly inadmissible and no amendment was applied for. Upjohn, K.C., in reply. The view of the trial judge, who saw the witnesses, should be accepted as to the effect of the evidence Khoo Sit Hoh v. Lim Thean Tong. ([ 1912] A. C. 323.) The judgment of their Lordships was delivered by LORD DUNEDIN. The plaintiff respondent, Mulji Haridas, sues the defendant appellant, Motabhoy Mulla Essabhoy, upon a promissory note jointly executed by the defendant and the firm of Hyderally Cassumji, Sons & Co., hereinafter called Hyderally, for Rs.50,000. The note was made in the following circumstances. Mulji, before July, 1907, had made advances to Hyderally amounting in all to Rs.4,00,000, the consideration for making such advances being certain shares in an agency commission in a certain company. The advances were partially but not wholly covered by security. In July, 1907, Hyderally applied for a further advance of Rs. 1,50,000 in order to pay off Motabhoy a debt of that amount due to him. The advances were partially but not wholly covered by security. In July, 1907, Hyderally applied for a further advance of Rs. 1,50,000 in order to pay off Motabhoy a debt of that amount due to him. Mulji agreed to make the loan, a condition being an increased share in the commission agency, and to make it in three equal instalments. Two of these instalments were paid and the money handed on by Hyderally to Motabhoy and the third instalment fell to be paid on January 30, 1908. At the end of December, 1907, Motabhoy was in want of money to meet a bill. He accordingly applied to Hyderally to ask if the balance of the debt, namely, Rs.50,000, could be paid immediately. Hyderally then approached Mulji to see if he would prepay his instalment due on the ensuing January 30. He consented to do so on being given the joint promissory note in question of date December 23, 1907, and the money was handed to Motabhoy. So far there is no discrepancy between the view of the parties, but now arises the difficulty. The defendant Motabhoy alleges that it was agreed that upon the arrival of January 30, 1908, the advance made under the promissory note should be held as the advance of the instalment promised to be paid by Mulji to Hyderally on that date, and that the note should be replaced by a single acknowledgment on the part of Hyderally. The plaintiff Mulji says that all he agreed to was that he would surrender the note if at January 30, 1908, Hyderally had given sufficient security for the whole debt as then due by him, that on January 30 no such sufficient security was given, and that accordingly he is entitled to maintain Motabhoys liability under the note. The learned judge of first instance allowed the parties to go to trial and examine witnesses. Coming to the conclusion that it had not been proved that any arrangement had been made for the giving of security by Hyderally, he gave judgment in favour of the defendant. The learned judge of first instance allowed the parties to go to trial and examine witnesses. Coming to the conclusion that it had not been proved that any arrangement had been made for the giving of security by Hyderally, he gave judgment in favour of the defendant. The High Court upon appeal took the view that no witnesses should have been examined and that the testimony could not be looked at because in their view the promissory note constituted a written contract binding the defendant to pay on demand, and s. 92 of the Evidence Act, 1872, prevented any oral agreement being set up to contradict that written agreement. Now if the defendants pleading is to be dealt with in absolute strictness that view is right, for what the defendant says is this he admits the execution of the note, and then he says that it was verbally agreed that his liability on it should cease on January 30, 1908. That is a bald averment of a verbal contract contradicting the written contract, and would be inadmissible under 8. 92. But this bald averment does not represent the defendants true case. His true contention has been already stated, and in the form of averment it might be put thus " It was agreed that on January 30, 1908, the advance then to become due by Mulji to Hyderally should be held as made by the moneys paid on December 23, 1907, and that the liability under the note should be held as satisfied by a fresh note to be granted by Hyderally for the advance of January 30, 1908." That would be an agreement in terms of proviso 2 to s. 92, which allows to be proved " the existence of any separate oral agreement as to any matter on which a document is silent and which is not inconsistent with its terms." Their Lordships have felt that it would not be satisfactory to decide against the defendant on a view which might have been obviated by a mere amendment of the pleadings, and that in a case where the parties had been allowed to go to proof. They have, therefore, felt themselves entitled to consider the evidence led. They have, therefore, felt themselves entitled to consider the evidence led. Although, however, there are cases, of which this is one, where it is allowable to urge an oral agreement which will have the effect of leaving matters otherwise than if they had depended on the written agreement alone, it is obvious that such oral agreement must be clearly proved and that the onus lies on him who sets it up. Their Lordships are of opinion that this has not been sufficiently realized by the learned judge of first instance. Coming to the conclusion that the plaintiff had failed to prove that he had stipulated for security being given for the whole debt by Hyderally by January 30, the learned judge takes it as a necessary sequitur that the defendants case is established. But the agreement alleged by the defendant must be substantively proved, and it is here, in their Lordships judgment, that the defendant fails. The agreement must be an agreement to which the plaintiff Mulji is shown to have assented either himself or by an agent with power to bind him. Now there was no one who had power to bind Mulji. Further, Motabhoy and Mulji never met at the time at which the alleged agreement was concluded, and there is absolutely no evidence which shows that Mulji ever consented to anything except to advance the money if he got the promissory note. In the argument the defendants counsel sought to put his case thus he said that Mulji himself admitted in his pleading that the promissory note was not to represent the true state of matters after January 30, that no doubt he adhibited the condition that security was by that date to be given, but that, as the judge of first instance disbelieved the story that any such condition was made, the matter lasted on his own confession that the promissory note lost its efficacy after January 30. The fallacy here consists in so treating an admission. It is permissible for a tribunal to accept part and reject the rest of any witnesss testimony. But an admission in pleading cannot be so dissected, and if it is made subject to a condition it must either be accepted subject to the condition or not accepted at all. The fallacy here consists in so treating an admission. It is permissible for a tribunal to accept part and reject the rest of any witnesss testimony. But an admission in pleading cannot be so dissected, and if it is made subject to a condition it must either be accepted subject to the condition or not accepted at all. Therefore the admission that the promissory note was to be held as satisfied en January 30 by a new debt on the part of Hyderally, provided that security was found for the whole debt by that date, cannot be treated as an admission that in any case the promissory note was to be held as satisfied by January 30. Their Lordships are therefore of opinion that the decree of the Court of Appeal was right, although to be supported on other grounds than those stated in the judgment of that Court, and they will humbly advise His Majesty to dismiss the appeal with costs.