Pandrang Row, J.
1. This is an appeal from the decree of the Subordinate Judge of Dindigul dated 12th July 1932 reversing on appeal the decree of the District Munsif of Dindigul dated 30th June 1931 in O.S. No. 166 of 1930, a suit for partition and recovery of possession of a fourth share in the plaint site. The entire extent of the site in question is only 22 ft x 32 ft and though the site is said to be situated in Dindigul town, the tenacity with which this litigation has been fought is out of all proportion to the intrinsic value of its subject matter. The plaintiff claimed his one-fourth share on the ground that the entire site originally belonged to one Muthukrishna Achari and that after his death Muthukrishna Achari's surviving four brothers became entitled to the site and that one of such brothers, viz. Subbayya Achari sold his share to him in September 1925 (Ex. A). The defendant contended that the site was purchased by Muthukrishna Achari with joint family funds of himself and his brothers and that after his death one of his brothers, Ponnuswami Achari, as manager of the joint family, sold the entire site to one Subramania Chetti in 1920 (Ex. 1), and that Subramania Chetti sold the same to the defendant in 1922 under Ex. 2. The defendant's main contention thus was that the plaintiff's vendor Subbayya Achari had no right at all to the property which he purported to sell to the plaintiff under Ex. A.
2. The trial Court found that the plaint site was not the joint family property of Muthukrishna Achari and his brothers and that the plaintiff's vendor had title to convey his share in the plaint site. A preliminary decree for partition was therefore passed in favour of the plaintiff. On appeal however the Subordinate Judge differed from the District Munsif on the question as to whether the plaint site was joint family property or not, mainly relying on a certain document (Ex. 17) which was admitted in appeal. The trial Court's finding was that Muthukrishna Achari was the sole owner of the site. The Subordinate Judge held that it was joint family property and he further held--disagreeing with the trial Court--that by virtue of the two release deeds Exs. 7 and 8, executed by Subbayya Achari in 1920, he had ceased to have any interest in the joint family properties. As a result of these findings the lower appellate Court allowed the appeal and dismissed the suit with costs. The present second appeal is by the plaintiff.
3. Some complaint was made about the admission of Ex. 17 by the lower appellate Court, but I do not think there is much substance in this complaint. Ex. 17 had been tendered in the trial Court itself but was rejected on the ground that it had been produced late and was also inadmissible for want of registration. Both these objections were overruled by the Subordinate Judge in appeal and I am unable to say that he was wrong in admitting the document as evidence in appeal. Though it would appear that the learned Subordinate Judge relied almost entirely on the recitals found in Ex. 1 about family necessity or benefit, I am unable to say that there is no evidence sufficient to support his finding that the property was joint family property. It is a question of fact and there is no sufficient reason to interfere with the finding on that question in second appeal.
4. Assuming, therefore, that the property has been rightly found to be joint family property the question remains whether the plaintiffs' vendor Subbayya Achari, who is admittedly a member of the family and entitled as such to a fourth share in it lost or relinquished his right thereto by reason of the two release deeds Exs. 7 and 8 executed by him. On this point I am unable to concur in the opinion of the learned Subordinate Judge. A perusal of these documents shows that the releases were meant to operate only in respect of the properties specifically described in the schedules appended to those documents. The operative words which affect the releases are as follows. In Ex. 7 the words are:
As I have received the said sum of Rs. 2,000, and separated myself by executing this release deed, hereafter neither myself nor my heirs that may come into existence shall, at any time, for any reason, have any manner of right or interest against yourself or your heirs in respect of the moveable or immoveable properties described in the A schedule, the outstandings due or the amounts to be paid and described in B schedule.
5. In Ex. 8 the words are:
I have therefore executed this supplemental release deed out of my free will and consciousness to the effect that all the undermentioned properties are also covered by the said release deed and that I have no right or subsequent lien whatever in respect of them.
6. It is clear that the consideration for the release was the payment of Rs. 2,000 in cash and when a release is executed for valuable consideration by a co-parcener it is obvious that the consideration must depend on the value of the interest or right which is relinquished thereunder. It is therefore necessary to indicate exactly in respect of what property the release was given. Exs. 7 and 8 clearly show that the release was in respect of only the properties mentioned therein. The general statement which is found in Ex. 7 to the effect that 'hereafter there is only blood relationship between you and me and there is no monetary relationship' does not operate as a release of the rights of the executant relating to all joint property. The trial Court was in my opinion right in coming to the conclusion that the express recitals in Exs. 7 and 8 do not support the contention of the defendant that the executant thereof had relinquished all his interest in all the joint family properties. The execution of a supplemental deed like Ex. 8 appears to show that the previous release deed was not intended to effect an extinction of all rights in all the joint family properties. On this point therefore I am of opinion that the trial Court's view as to the legal effect of the release deeds Exs. 7 and 8 was right and that the learned Subordinate Judge went wrong in taking a contrary view. It follows from this that the second appeal must be allowed and the decree of the trial Court restored.
7. It has been urged on the side of the defendant respondent that he is entitled to some equities by reason of the alleged discharge of the mortgage binding on the plaint site by one of his vendors, viz. Sabapathi Achari. This claim to equity was not put forward in the written statement nor is it referred to in the judgments of the two Courts below. I do not think it is open to the defendant to raise such a contention for the first time in second appeal especially when the claim requires for its determination, the determination of a question of fact. No issue has been framed about the alleged discharge though something has been said in the judgment of the trial Court. I am unable therefore to accede to the request of the defendants respondents' advocate to remand the entire suit for fresh disposal so as to enable him to raise this new claim. It must not be taken that there has been any decision adverse to this claim in this litigation, and if it is open to the defendant to agitate this claim in a separate suit, nothing that has been said by me on this point must be deemed to stand in his way. I am not prepared to allow this claim to be raised for the first time in the stage of second appeal.
8. The result is the decree of the lower appellate Court is set aside and the decree of the trial Court is restored. The appellant is entitled to his costs in this Court and the Court below.
9. Leave to appeal is refused.