AI Structured Summary
Not yet generated for this judgment
Judgment
The minor appellant''s (petitioner''s) father, the plaintiff in the suit agreed by Exhibit I not to prosecute the suit against the respondent, the sixth
defendant, and even if a decree were passed, not to execute the decree on the ground that he had discovered that the property had been sold to
her by the first defendant. The suit was accordingly not defended by the sixth defendant. Nevertheless the property came to be included in the
decree.
The father did not execute the decree and on his death an application was made on behalf of his son a minor to execute the same.
The Judge dismissed the application. We entirely agree with the judge that the letter Exhibit I is genuine. It is contended that even in this view it
cannot be admitted in evidence because it requires registration as affecting Immovable property of the value of more than one hundred rupees. We
are unable to agree with the contention that this Exhibit I was intended as a release of the interest of the deceased plaintiff in the property. The real
purpose of the communication was only to inform the sixth defendant that the plaintiff agreed not to prosecute any further his claim against her and
if it should happen that the decree came to cover the property claimed by her, he would not execute the decree.
The general expressions in the letter on which the appellant relies when taken with the other parts of the document should be construed therefore
as merely emphasizing the view that the sixth defendant''s right to the property is not open to any exception. But assuming it were otherwise and the
portion of the letter relied on could be treated as a release and therefore not receivable in evidence as to such release, the document Exhibit I is
clearly admissible in evidence for the collateral purpose of proving that the deceased plaintiff was not to prosecute the suit or to execute the decree
should the property be included in the decree. That these promises are independent of the alleged release is obvious and they are merely covenants
not affecting Immovable property of the value of more than one hundred rupees.
We think, therefore, that the Lower Court was right in refusing to grant the application to execute the decree, and we accordingly dismiss the
appeal with costs.
On the Memorandum of objections we direct that the costs in O.M.A. No. 19 of 1901 in this Court and in tho Lower Court on remand be
inserted in the table of costs.