SOMEPALLI MUTYALU Vs. CHITTINENI VEERAYYA AND ORS.

JUDGEMENT

(1.) THE plaintiff, who brought the suit to recover a plot of land, is the appellant in this second appeal. Both the lower Courts dismissed his suit on the ground that he gave the letter, Ex. D -1, on 5th December, 1938, to the first defendant, stating that he had no connection whatever with the said property thereafter and that the first defendant can himself enjoy the property which had been given to his wife, the sister of the first defendant, by the father under a deed of gift in the year 1933. After this letter, the first defendant has been in possession of the property all along. Both the Courts have found that this letter was preceded by a mediation as the result of which the first defendant gave up a claim to recover a sum of Rs. 350 from the plaintiff, who in his turn agreed to give up his interest in this property which belonged to his wife, she having got it from her father. They applied the doctrine of part performance against the plaintiff.

(2.) MR . Desikan for the appellant contends that the doctrine does not apply because Section 53 -A of the Transfer of Property Act requires two things, namely, (a) a contract to transfer for consideration and (b) a writing evidencing the contract indicating with reasonable certainty the terms necessary to constitute this transfer both of which conditions according to him, are absent in the case before us.

(3.) WHETHER the decision in Adityam Ayer v. : AIR1940Mad544 , is still good law after the decision of the Privy Council in Hanif -un -nissa v. Faiz -un -nissa, (1913) 21 M.L.J. 1126 :, L.R. 38 LA. 85 :, I.L.R. 33 All. 340 (P.C.), was doubted in Ramaswami Chettiar v. : AIR1926Mad35 , where it was pointed out that if a party could under proviso (1) to Section 92 of the Evidence Act prove want or failure of consideration, it would be open to the opposite party to prove that the consideration recited in the deed or some other kind of consideration existed in support of the contract. While it is true that for a relinquishment of this kind there should be consideration for its enforcement, it is equally clear that the con -sideration is not a term of the contract. The prohibition in Section 92 is only as regards evidence sought to be adduced for the purpose of contradicting, varying, adding to or subtracting from, the terms of a contract. So long as the passing of consideration is not a term of the contract, evidence adduced to show that it did pass, even though the contract does not recite it, is not, within the scope of the prohibition in Section 92.