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. 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 (1913) 25 M.L.J. 602 :I.L.R. 38 Mad. 514 and Krishnayya v. 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. Ramakrishna Iyer (1913) 25 M.L.J. 602 :I.L.R. 38 Mad. 514, 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.
4. Whether the decision in Adityam Ayer v. Ramakrishna Ayer (1940) 1 M.L.J. 363 : I.L.R. (1940) Mad. 815, 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. Lodd Govindoss Krishnadoss (1925)49 M.L.J. 414, 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.
5. Moreover, I am not able to see why proviso (2) should not apply to this case.. The document is silent on the subject of consideration and what is stated now, namely, that the first defendant gave up a claim for Rs. 350 which he had against the plaintiff, is not in any way inconsistent with the terms of the letter, Ex. D-1. The fact that the abandonment of the claim is postulated as the quid pro quo for the relinquishment does not make the transaction one of sale. Madam Pillai v. Badra-kali Ammal (1922) 42 M.L.J. 410 : I.L.R. 45 Mad. 612 (F.B.). It remains a relinquishment nonetheless--a relinquishment supported by consideration and not one without consideration, merely because the letter does not refer to the consideration.
6. As regards the other ground that the terms should be capable of being ascer-tained with reasonable certainty from the writing itself and that this is not a case where the terms could be so ascertained, there is no substance in it at all. The only term is that the plaintiff agreed that frcm that date onwards he had no more connection with the property and that it should be enjoyed by Veerayya,, the first defendant and this is found explicitly stated in the letter, which contains nothing else to create confusion or to raise any doubts as to what the trams might possibly be.
7. I am happy to find that the law as I understand it is against this plaintiff-Otherwise, we shall be conniving at, if not actively encouraging, the perpetration, of gross dishonesty. The second appeal is dismissed with costs. (No leave.)