ABDUL KAYAM AMADAJIBHAI Vs. BAHADUR VITHOBA

JUDGEMENT

(1.) This case raises a novel point. The present suit was brought on two money bonds for Rs. 200 each said to have been passed by the defendants to the plaintiff on the 7th April 1905. Later, however, a mortgage-bond dated the 3rd July 1905 was executed for Rs. 2,500 by which it appears arrangements were made to extinguish the bonds now sued on and for other considerations mentioned. It appears, however, that the plaintiff did not register the mortgage-deed, and the question put shortly which has been raised is : Can the plaintiff rely upon these two antecedent promissory notes having regard to this subsequent deed of mortgage ?

(2.) Both the lower Courts have held that he cannot. But it appears to us that they have overlooked what is the real point in the case.

(3.) Mr. Rele for the respondents first of all relied upon the doctrine of novation. Novation is defined in Section 62 of the Contract Act, which of course binds us, as follows:-"If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed".