SOMEPALLI MUTYALU Vs. CHITTINENI VEERAYYA

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 5 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.) The letter mentions no consideration and it is urged that proof aliunde cannot be given in support of it, as Section 92 of the Evidence Act prohibits such proof. Adityam Iyer v. Ramakrishna Iyer and Krishnayya V/s. Mahomed Galeb Saheb (1929) 58 M.L.J. 240 are relied on in this connection. But both these cases have no application. Adityam Iyer V/s. Ramakrishna Iyer , is a case of a sale where the price is a term of the contract itself and it was therefore held that no evidence could be adduced to vary it. The other case is again one where it was held that, though it was open to a party to prove want of consideration or failure of consideration, or a difference in the kind of consideration, it was not open to him to prove a variation in the amount of consideration.