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Judgment
Umamaheswaram, J.—The short question that arises for consideration in the second appeal is whether item 2 was relinquished by Defendants 1 to 4 or not. In para. 25 of the judgment, the Subordinate Judge held that the relinquishment has been proved, that Defendants 1 to 4 were not in possession of item 2 from 1930 and that the Plaintiff was in possession of that item. It is a pure question of fact and I accept the finding in regard to the factum of relinquishment.
The next question that was raised by the learned Advocate for the appellant was that the oral release was not valid. He has not pointed out any authority for the proposition that the release should be in writing or should be registered. He relied upon Section 149, Madras Estates Land Act, which merely provides for the mode of relinquishment by a ryot. Section 149(1) provides that every ryot may with effect from the end of any revenue year relinquish by notice in writing signed by him his holding or any part thereof. Clause (2) provides that if the ryot does not give notice of relinquishment as per Clause (1) he would still be liable to indemnify the land-holder against any loss of rents. So, it is merely a provision for the benefit of the land-holder. It is open to the land-holder to accept an oral relinquishment by the ryot.
No such point was raised in the Court below. Both the Courts have found that the oral relinquishment is true. It was open to the land-holder to accept the oral relinquishment, and not insist upon notice in writing as provided in Section 149(1), and, in the circumstances, there is no substance in this contention.
An objection was raised by the learned Advocate for the appellant, that this question of oral relinquishment was not raised in the pleadings. Both the Courts below have discussed the evidence and have arrived at the finding that the oral relinquishment is true. So, there is no substance in the contention that this point was not raised in the pleadings.
In the result, the second appeal is dismissed with costs of the 6th respondent. No leave.