Bachawat, J. - (1.) In this appeal, the question is whether a deed of release was vitiated by misrepresentation, and, if not, whether it operated as a conveyance of the suit properties in favour of the respondents. By a will dated August 9, 1931, their grandfather Ponnuswami bequeathed the immovable properties to his paternal uncle's daughter, Kannammal. In January, 1952, the respondents instituted O. S. No. 24 of 1953 against several persons including Kannammal challenging inter alia the validity of the bequest made by Ponnuswami. On February 1, 1952, Kannammal died leaving as her heir the appellant who was her husband's brother's son. On February 25, 1952, the appellant executed a deed, Ex. B-1, in favour of the respondents releasing the suit properties including certain outstandings due from third parties. On February 26, 1952, the deed was registered. On the same date, the respondents filed an application in O. S. No. 24 of 1953 asking for an order that in view of the release deed the properties he removed from the scope of the suit and the plaint be amended accordingly. This application was allowed by the Court. On January 22, 1953, the respondents instituted O. S. No. 174 of 1953 for the recovery of one of the outstandings mentioned in the release deed against the debtors. They impleaded the appellant as a defendant to the suit, and stated that in view of the release deed they were entitled to recover the debt. The appellant filed a written statement alleging that the release deed was invalid and the suit was not maintainable. The suit was decreed by the Munsif. On January 31, 1955, the appellant instituted the present suit asking for a decree for setting aside Ex. B-1, recovery of the Suit properties and accounts. He alleged that Ex. B-l was vitiated by misrepresentation, fraud, deceit and undue influence. His main contention was that he was induced to execute the deed on the representation that it was a power of attorney authorising the respondents to manage the properties on his behalf. He also submitted that Ex. B-1 being a deed of release could not take effect as a conveyance. The respondents disputed these contentions The trial Court held that though the release deed was not vitiated by fraud, deceit or undue influence, it was procured by misrepresentation and also that it lid not effectively convey the properties. On these findings, the trial Court decreed the suit. The High Court set aside the findings of the trial Court and dismissed the suit. The appellant now appeals to this Court on a certificate granted by the High Court.
(2.) The High Court held, and in our opinion rightly, that Ex. B-1 was not vitiated by misrepresentation and the appellant was well aware of the nature of the deed when he executed it. The appellant is somewhat deaf of hearing. But he is a wealthy and shrewd money lender and capable of managing his affairs. He took the draft of the deed to his own lawyer and after obtaining legal advice, executed it. He himself presented the deed for registration. He received no consideration for the release, but the motive for the release was the pending litigation and the fact that the properties originally belonged to the family of the respondents. Having regard to the release, the respondents immediately applied in the pending suit for removal of the properties from the scope of the suit and for the consequential amendment of the plaint. After the execution of the deed, the appellant never asked for accounts, nor cared to ascertain how the respondents were managing the properties. In the written statement filed in O. S. No. 174 of 1953, he took the plea that the deed of release did not effectively pass title to the outstandings, but he did not then say that it was vitiated by misrepresentation. His present plea that the deed was induced by misrepresentation is an afterthought. In agreement with the High Court, we accept the testimony of the respondents' witnesses and we reject the evidence of the appellant and P. W. 2. The onus is upon the appellant to establish the plea of misrepresentation. He has failed to establish this plea.
(3.) Counsel next submitted that Ex. B-1 being a release deed could not operate as a conveyance. Exhibit B-1 was styled a deed of release. The Paper Book does not show whether it was stamped as a release or as a conveyance. After reciting that Kannammal was the owner of the properties and she died leaving the appellant as her heir, the operative part of the deed stated "I hereby execute a release deed in your favour to the effect that I do not claim any huq or right whatever in the immovable properties mentioned hereunder valued at about Rs. 12,000 and in the outstandings to the tune of Rs. 8,000 due by others in all Rs. 20,000 (twenty thousand) and all the rights that have been accrued to me under the Hindu law. You yourself shall hold and enjoy undisputedly with absolute rights under the huq release deed executed by me the entire movable and immovable properties belonging to the aforesaid Kannammol and all the outstandings due to her from outsiders .... . I have not received any consideration whatever for the said release deed." ;