Velu Rengasami Chetty and Others vs Balakrishna Reddi

Exhibit C the Razinama between the plaintiff and 2nd defendant in O.S. No. 149 of 1893 conclusively shows that the plaintiff herein relinquished

the debts due to him by the 1st defendant therein under certain mortgage bonds the property comprised in which along with other property was

allotted to the one-half share of Gangadara, the plaintiff therein and that in consideration of this relinquishment the plaintiff herein was to receive 4

kanis of land therein described. In proof that plaintiff entered into such a transaction, his attestation was taken to Exhibit C in which such

transaction was recited. Acting on this transaction Gangadara obtained a decree on the compromise he entered into in C with the 2nd defendant.

But for the plaintiff''s consent to the transaction, Gangadara would have insisted on an allotment to him of additional property in satisfaction of his

full half share. We may add that as between the plaintiff herein on the one hand and the plaintiff and 2nd defendant in O.S. No. 149 of 1893 on the

other the transaction by which the former relinquished the debt due under the bond and the mortgage security in consideration of his getting the 4

cawnies of land was only oral and not effected by a written instrument requiring registration, but the transaction wits recited in the Razinamah

entered into between the plaintiff and the 2nd defendant therein. The plaintiff is therefore clearly estopped from now asserting his mortgage right

against the vendees of Gangadhara, the defendants Nos. 2 to 4.

The fact that the plaintiff failed to recover the 4 kanis to which he was entitled under the transaction recited in Exhibit C does not entitle him to

enforce the mortgage. The property in the 4 kanies was at the time of the transaction either jointly in Gangadhara and Ramaswami or solely fin the

latter. In either case the relinquishment by the plaintiff of the debts due to him and the security therefor was not made conditional on the

conveyance of the property, and it was competent for the plaintiff to have maintained a suit against either or both for specific performance if a

registered conveyance was necessary.

As a fact he did bring a suit against both to recover possession. Gangadhara pleaded that he had no interest in the property, but the suit was

contested by Ramaswami and the plaintiff abandoned the suit, stating that it was unsustainable in law. Subsequently Gangadhara while the present

suit was pending executed at the instance of the appellants a release in respect of the 4 kanies in plaintiff''s favour. It will thus be seen that

Gangadhara did all that he could to give effect to. Exhibit C as far as he was concerned. We must set aside the decree of the lower appellate Court

and restore that of the District Munsif with costs in this and the lower < appellate Court.