DODLA RAMI REDDI Vs. DEVIREDDI PATTABHIRAMI REDDI (DECEASED)

JUDGEMENT

(1.) This is an appeal by the plaintiff against the judgment of the principal Subordinate Judge of Nellore dismissing his suit. His claim in the suit was to compel the defendant to execute and register at his (the plaintiff s) cost a release deed in respect of the suit lands releasing the same from a mortgage in the defendant's favour dated 14 September, 1920. This mortgage was executed by one Kali Chetty Narayana Reddi. The lands comprised in this mortgage and other properties were sold in Court auction on 3 December, 1924 and were purchased by the plaintiff subject to the defendant's mortgage. The plaintiff's case was that he entered into agreements of sale with third parties with respect to some of the lands to the knowledge and with the consent of the defendant who agreed that the plaintiff should pay him the prices stipulated under the agreements of sale and to release from his mortgage the lands agreed to be, sold. Accordingly amounts paid by purchasers were duly paid to the defendant on 17th February, 1926, 15 November, 1926 and 14 February, 1927 and at the same time under Exs. A-1, A-2 and A-3 he acknowledged the receipt of the money and agreed to execute a release deed in respect of the properties sold whenever the plaintiff required. By the date of Ex. A-3, i.e., 14 February, 1927, sums aggregating to Rs. 6,000of which Rs. 1,500 was by a promissory note the remainder being cash, had been paid. The plaintiff, however, did not call upon the defendant to execute the release deed in respect of the properties sold for nearly three years. Then he filed the suit under appeal.

(2.) The defendant set up the defence that there was an oral agreement that the release deed was only to be given when the entire mortgage debt had been discharged and that whenever thereafter the plaintiff called upon him to execute the release deed he was under an obligation to do so but not before. It is clear that Exs. A-1 and A-2 which are unregistered cannot be admitted in evidence at all and that only Ex. A-3 is admissible. That document, however, refers to the previous transactions of 17 February, 1926 (Ex. A-1) and 15 November, 1926 (Ex. A-2). In Ex. A-3 which acknowledges the receipt of Rs. 600 for the sale of certain property comprised in the mortgage, it is stated by the defendant: I shall execute at your cost a deed of relinquishment of right in your favour whenever desired by you and get the same registered.

(3.) And after referring to Exs. A-1 and A-2, he states: Therefore I shall whenever desired by you and at your cost execute in the same manner a deed of relinquishment of right in your favour, even in respect of those lands mentioned in that document and get it registered.