Saraswati Ammal vs Srinivasa Nandian and Others

Madhavan Nair, J.—The plaintiffs legal representative is the appellant. The first question that arises for determination in this second appeal is

whether Ex. 6 is admissible in evidence. The plaintiff instituted the suit for recovery of money due under two hypothecation deeds, Exs. B and D.

These were executed by defendant 1. Defendants 2, 3 and 4 are his brothers and defendant 6 is the son of defendant 1 the defendant''s case is that

Ex. B is not supported by consideration. To prove that Ex. B is not supported by consideration and was only a nominal document, Ex. 6 was

relied on. This is a varthamanam dated 5th May 1918. This document after referring to Ex. B says that:

Inasmuch as no amount is due to me thereunder and it is benami I have executed this varthamanam in token of my cancelling the said deed and the

deed previous thereto when required by you and of my having no right to take any action thereunder.

This is written by the plaintiff''s predecessor to defendant 1. If this document is admissible in evidence there can be no doubt that this document

Ex. B is not supported by consideration for the document referred to in it as benami is Ex. B. The document is not registered. It is argued by Mr.

Krishnaswami Iyer that the document purports either to extinguish a right or to create a right or that it declares a right with reference to Immovable

property worth more than Rs. 100 and it therefore requires registration. Various cases have been brought to my notice in support of the

contention. The decision in each case must ''necessarily depend upon the construction that the Court has to put upon the ''respective document.

There can be no doubt that the meaning of Ex. 6 is this. The executants says that Ex. D is benami, that no amount is due under it, that he has no

right to take any action thereunder and that for these reasons he has executed Ex. 6, the document in question

in token of my cancelling the said deed and the deed previous thereto when required by you.

It is argued that it clearly extinguishes the right under Ex. B and so declares that there is no right in favour of the plaintiff under Ex. B. No doubt

it does say that there is no right in favour of the plaintiff under Ex. B. But the question is whether u/s 17, Registration Act, it extinguishes any right

or declares any right as contemplated by Section 6. The relevant words of the section referring to documents which require registration are,

which purport or operate to create, declare, assign, limit or extinguish, whether in the present or in future, any right, title or interest, whether vested

or contingent of the value of one hundred rupees and upwards.

In a recent decision of the Privy Council Bageshwari Charan Singh v. Jagarnath Kuari 1932 P.C. 55, it is pointed out that there is a distinction

between a mere recital of a fact and something which in itself creates a title or extinguishes title. In this case the statements referring to the

consideration under Ex. B in my opinion only amount to statements of fact that there is no money due under Ex. B. It does not extinguish any right

or declare any right within the meaning of the term as explained in the aforesaid Privy Council decision. Nor does the document create any right at

all. It simply says that the Varthamanam is executed in token of cancelling the said deed when required by you, i.e., it promises that another

document will be executed if so required by the person to whom the letter is addressed. In my opinion therefore Ex. 6 does not require registration

and this is the opinion of both the learned District Munsif and the Subordinate Judge. The first contention is therefore overruled.

The second argument is that Ex. 1 is binding not only upon the executant, defendant 1, but also on his brothers defendants 2, 3 and 4. The entire

evidence in the case has been printed and I am not able to find from the evidence how the document becomes binding on the brothers of defendant

In fact there is absolutely no evidence to show that the liability under Ex. D is binding on the brothers. On this point also I agree with the lower

Court that the person liable under it is only defendant 1 and not his brothers. I accept the findings of the lower Courts and dismiss the second

appeal with costs.