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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. _3635_ OF 2008
(Arising out of SLP (C) No. 4055 of 2006)
Ranganayakamma and another .... Appellants
Versus
K.S. Prakash (D) by L.Rs. and others .... Respondents
JUDGMENT
S.B. SINHA, J.
1. Leave granted.
2. This appeal is directed against the judgment and order dated 21st
September, 2005 passed by a Division Bench of the Karnataka High
Court in R.F.A. No. 605 of 1997 dismissing an appeal preferred from the
judgment and decree dated 27th May, 1997 passed by the XII Additional
City Civil Judge, Bangalore in Original Suit No.1760 of 1990 partly
decreeing the suit for partition and separate possession.
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We may, at the outset, notice the genealogical tree of the family
which is as under :-
Kasetty Rangappa
Children of the 1st Wife Children of the 2nd Wife
Widow Smt. Naramma
1. Smt. Jayamma, Deft. No.3 1. Sri K.S. Mohan
2. Smt. Kanthamma, Plff. No.1 2. Smt. Susheela (Late)
3. Smt. Ranganayakamma, Plff 3. Smt. Bhagyalakshmi
No.2Lakshamamma 2nd wife
4. Smt.Naramma Devi, Deft. No.4
Lakshmi 4. Smt. Lakshmi Devi
5. Smt. Venajakshi 5. Sri K.S. Sudarshan
6. Sri K.S. Prakash, Deft. No.1 6. Smt. Saraswathi
7. Sri K.S. Ramesh, Deft. No.2 7. Smt. Rukmini
8. Smt. Sarojamma, Deft. No.5 K. Harida Sreenivasa Pasad
Smt. K. Sreeni 8. Sri K.R. K.R.
Venkatamma
9. Smt. Seethqalakshmi, Deft. No.6 9. Smt. Padmavathi
Salu Venkatesulu Sreenivasulu
10. Smt. Bharathi, Deft. No.7
11. Smt. Kum. Shoba, Deft. No.8
Smt. Singaramma Smt. Venkatalakshamma
1st wife 2nd wife.
3. We are concerned herein with the branch of K. Sreenivasulu. He
had two wives, the first wife being Singaramma. Through his first wife
Singaramma, he had eleven children. Except Venajakshi, they are parties
to the suit. Kanthamma and Ranganayakamma are the plaintiffs.
Through his second wife, Shri K. Sreenivasulu had nine children.
4. Allegedly there was a partnership firm through which K.
Sreenivasulu was doing business in silk sarees. Whether the said
partnership was a firm constituted under the Partnership Act, 1932 or a
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Hindu joint family Firm is in dispute. However, the said firm was said to
have been dissolved. Thereafter K. Sreenivasulu had been carrying on
the said business either by himself or as a `Karta' of the joint family in
silk sarees. Very valuable properties were acquired by him. Three items
of the said properties are involved in this appeal. Item No. 1 is said to be
worth 1 crore. Item Nos. 2 is stated to be worth 3 crores, whereas Item
No.4 is said to be worth 1 crore. Although valuations of the said
properties are stated by the contesting respondents i.e. respondents Nos.
1 & 2 in their written statement so as to put forth a contention that the
valuation of the suit properties as disclosed by the plaintiff being
Rs.10,000/- was not correct and on the aforementioned amounts the court
fee would be payable, but there cannot be any doubt whatsoever that the
properties are valuable.
As through the first wife, Sreenivasulu did not have any male
issue, he married Venkatalakshamma. Allegedly item Nos. 2 and 3 of the
suit properties were purchased in the name of Sringaramma. The parties
are at issue whether the said properties were purchased from the joint
family funds or in the name of Srirangama for her own benefit.
Indisputably, again item No.1 was purchased by Sreenivasulu in his own
name. He died on 27th December, 1970. The family allegedly continued
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to remain joint. One of the daughters of Sreenivasulu being Vanajakshi
released her rights by getting a consideration of Rs.39,615.79.
Respondents Nos. 1 and 2 herein, sons of K. Sreenivasulu through
Singaramma were the junior members of the family. At the time of her
death of Sreenivasulu, they were minors.
5. Indisputably, a suit for partition being O.S. No. 2459 of 1982 was
filed by the first respondent K.S. Prakash besides others. Whereas,
according to the appellants, the said suit was filed by way of machination
on the part of respondent No.1 herein but admittedly all the parties were
plaintiffs therein.
6. The plaint in the said suit discloses that Sreenivasulu and his
brothers partitioned their properties in the year 1957 who constituted a
Joint Hindu Family. The said Joint Hindu Family had extensive
immovable properties in the towns of Bangalore and Darmavara.
Allegedly some immovable properties falling in the share of K.
Sreenivasulu are still joint. A coparcenary was constituted between him
and his sons. Properties were purchased by him out of the nucleus of the
immoveable properties, which fell to the share of Sreenivasulu in the said
partition meaning thereby that the partition took place in 1957 and
several other moveable and immovable properties were acquired in the
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name of Sreenivasulu and other members of the families. They were in
joint possession. Ten items of immovable properties, however, allegedly
were the subject matter of joint sale for the purpose of discharge of
income tax and wealth tax liabilities. They have been excluded from
partition. It was furthermore alleged that some other properties had also
been transferred and deeds of sale were executed by the Bangalore
Development Authority in favour of plaintiff Nos. 1 and 2 therein.
Paragraph 12 of the said plaint reads as under :-
"12. Thus, item No. 1 to 8 (one to eight) mentioned
in the plaint are the properties now available and
standing in the names of persons referred to above.
This being a suit for general partition even though
some of the properties are in the name of individual
members of the family and as per records, but
nevertheless shown in detail with a view to avoid
unnecessary controversies and to effect just, fair and
equitable partition among the members of the family."
7. Indisputably both the branches of Sreenivasulu entered into a
compromise, i.e., amongst the children of the first and the second wives.
Both the branches divided the properties into half and half. The said
compromise was recorded. A final decree was passed on the basis
thereof, directing :-
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"In terms of compromise, it is ordered and decreed
that the plaintiffs are the owners of the properties
shown in items 1, 2(a) & 2(b) and 3 in the schedule
hereto which are allotted to their shares.
It is further ordered and decreed declaring that the
defendants are the owners of the properties shown in
items 4 and 5 in the schedule hereto which are allotted
to their share.
It is further ordered and decreed that properties in
items 6 and 7 of the suit schedule properties shall be
sold by plaintiffs and defendants and the tax arrears
viz., Income Tax, Wealth Tax and Capital Gain Tax in
respect of the said items of the Schedule property that
is due and payable by the Hindu undivided family be
cleared and discharged out of the sale price of the
same and further out of the refund amount as shown
in item No.8 of the schedule properties. It is hereby
recorded that since the value of items 4 and 5 allotted
to the defendants is less than the value of properties
allotted to the plaintiffs, the plaintiffs have this day
paid to the defendants a sum of Rs.80,000/- (Rupees
eighty thousand only) which together with
Rs.30,000/- (Rupees thirty thousand only) paid earlier
by the plaintiff in all amounts to Rs.1,10,000/-
(Rupees one lakh ten thousand only).
It is further ordered and decreed that in case the
amounts realized by sale of items 6 and 7 and item 8
are insufficient to clear the Tax arrears, the plaintiffs
shall bear 2/5 share, the defendants shall bear 3/5
share of the tax liability and in case the amounts
realized by the sale and refund claimed in respect of
the said properties are in excess of the Tax liability,
the remaining balance amounts shall be shared by
plaintiffs and defendants in the proportion of 2/5 and
3/5 share respectively.
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It is further ordered and decreed that the plaintiffs and
defendants are not liable to each other with regard ti
income accruing from the properties allotted to them
and also for mesne profits."
8. Allegedly Singaramma was not keeping well. She underwent
kidney operation at Vellore.
9. The plaintiffs-appellants alleged that respondent Nos. 1 and 2 used
to take signatures them as well as others representing that the same were
required for payment of tax and also for managing the properties. The
said signatures used to be made as they then had immense faith in their
brothers. A Power of Attorney was executed by the first appellant
Ranganayakamma in favour of K.S. Prakash on 15th July, 1983, in terms
whereof he was authorized to enter into a partition on her behalf. A
recital has also been made therein that Ranganayakamma, appellant No.2
herein, had agreed to relinquish her right as per the agreement. Another
Power of Attorney was executed by the 4th defendant in favour of
Singaramma
10. A deed of partition was executed on 5th August, 1983 in terms
whereof Singaramma was allotted 1/3rd share in item No.3 and rest of the
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properties were retained by the brothers. The sisters allegedly
relinquished their share for a consideration of Re.1/- only; the relevant
parts whereof read as under :-
"1. The properties described in the Second
Schedule hereunder are hereby allotted to the
share of the parties of the First and Second
Parts.
2. The property described in the Third Schedule hereunder is
hereby allotted to the share of the party of the Eleventh part.
3. The parties of the Third, Fourth, Fifth, Sixth,
Seventh, Eight, Ninth and Tenth parts do
hereby relinquish their right to claim a share in
the properties described in the First Schedule in
consideration of payment to each of them of a
sum of Re.1/- by parties of the First, Second
and Eleventh Parts the receipt of which they
hereby acknowledge."
11. Singaramma died on 10th September, 1983. So far as 1/3rd share of
Singaramma is concerned, no partition had taken place. However, a
Special Power of Attorney was executed by the appellants on 20th
December, 1983. In the said Power of Attorney detailed recitals had
been made in regard to the source of the properties, the partitions which
had taken place and the share of the sisters devolved on them from
Singaramma which was calculated at 1/11th.
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12. Indisputably, again a deed of lease was executed by plaintiff-
appelalnt No.2 herein in favour of M/s. Voltas Company Ltd.
13. According to the appellants, however, no deed of lease was
executed by appellant No.1, Ranganayakamma. A sum of Rs.4,050/- was
paid to Kanthamma, appellant No.2, towards rent for the period 1.1.1986
to 31.07.1987.
14. According to the appellants when they came to learn about the
fraudulent act(s) on the part of respondent Nos. 1 & 2 in getting the
Power of Attorneys executed by them, they cancelled the same.
They, thereafter, filed a suit for partition and separate possession
claiming 1/10th share each. The said suit was filed on 21st March, 1990
and was marked as O.S. No.1760 of 1990.
15. A contention was raised therein that all properties acquired by
Sreenivasulu were his self-acquired properties. The plaintiffs-appellants
further contended that their brothers used to take their signatures on
some papers as they enjoyed immense confidence in them as would
appear from paragraph 6 of the plaint, the relevant portion whereof reads
as under :-
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"6 The said power of attorney was got executed by
playing a fraud on the 2nd plaintiff taking advantage of
her innocence, ignorance and her sex and in the
absence of her husband or any other reliable male
member of the family. The second plaintiff was not
aware of the contents of the said power-of-attorney
nor were they read out to her. It was got executed in
the Office of the Advocate of the defendants 1 and 2
and it was drafted and attested by the Advocates
belonging to the said Firm of Advocates. Thereafter,
in fraudulent abuse of the said power-of-attorney and
on the basis of the fraudulent misrepresentations made
to the first and second plaintiffs and defendants 3 to 8,
an alleged deed of partition was got executed on
5.8.1983, again taking fraudulent advantage of the
said innocent and ignorance of the plaintiffs and
defendants 2 to 8, resulting in an unjust, unfair,
unequal and fraudulent partition of the schedule
properties. The plaintiffs and defendants 3 to 8 were
never told by the defendants 1 and 2 that it was a
partition deed which was got executed on 5.8.1983
and instead it was misrepresented as on earlier
occasion that their signatures were necessary on the
document for proper management of the properties
and the estate of late K. Srinivasasalu."
16. Respondents, however, in their written statement denied and
disputed the averments made in the plaint. They raised various
contentions including the maintainability of the suit as also the question
of limitation. It was categorically stated that the suit properties were
acquired by Sreenivasulu out of the properties allotted to him in the
family partition amongst his brothers dated 22nd June, 1957. It was
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furthermore contended that the relinquishment of interests by the
appellants and other sisters were out of love and affection. They further
averred that upon the death of Singaramma the deeds of lease which were
executed in respect of her share, vested in the plaintiffs-appellants. It
was categorically stated that the Power of Attorneys were executed by
the appellants voluntarily. Parties in support of their respective cases
adduced their own evidence.
The learned trial judge framed as many as 12 issues which are as
under :-
"1. Whether the plaintiffs prove that the suit schedule
properties are self acquired properties of the deceased
Srinivas?
1(a). Whether the defendants prove that the suit schedule
properties are the ancestral properties?
2. Does defendant No.1 prove plaintiffs executing valid
powers of attorney on 15.7.1983; 20.12.1983 and
5.8.1985?
3. Do the defendants 1 and 2 prove due execution of
release deed dated 5.8.1983 by the plaintiffs for valid
and proper consideration.
4. Do the defendants 1 and 2 prove partition deed dated
5.8.1983 is valid one?
5. Whether the plaintiffs and defendants 3 to 8 prove
that the defendants 1 and 2 obtained partition deed
dated 5.8.1983 by playing fraud?
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6. Whether the plaintiffs are estopped from filing this
suit due to decree in O.S. 2459/1982?
7. Whether the suit is barred by limitation?
8. Whether the suit is bad for non-joinder of necessary
parties?
9. Whether the valuation made is insufficient?
10. Do the plaintiffs prove their right for partition and
possession of 1/10 share to each?
11. To what shares the defendants are entitled?
12. To what reliefs the parties are entited?"
17. On issue No.1, the learned trial judge found that the same had not
been proved by the plaintiffs-appellants stating that they have failed to
explain the admission made by them in the earlier plaint. In regard to
issue Nos. 2 and 3 it was held that the properties were ancestral
properties and not separate properties of Sreenivasulu. As regards
execution of Power of Attorneys as also the Deeds of Release, the trial
court opined that they were voluntary in nature. In regard to issue No.7
pertaining to limitation, it was held that the suit was barred by limitation
as the plaintiffs had not sought for cancellation of deed of partition. It
was held that since after partition, the deeds of lease have come into
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existence in February, 1985, the suit filed in 1990 without praying for
cancellation of the deed of partition was not maintainable.
On the said findings, the suit was dismissed.
18. However, it was held that plaintiff Nos. 1 and 2 alongwith
defendant Nos. 3 to 8 and defendants 1 and 2 were entitled to the share of
1/33 each in Item No. 2 of the suit schedule properties.
19. Appellants preferred an appeal thereagainst. Before the High
Court an application was filed under Order VI Rule 17 read with Section
151 of the Code of Civil Procedure praying for the following
amendments in the plaint :-
"1. To Add at the end of para 5:
It is learnt that two other properties belonging
to our father are also available for partition
which are required to be included in the plaint
schedule as item Nos. 5 and 6, as otherwise the
suit might become bad for partial partition or it
might necessitate avoidable multiplicity of
proceedings.
2. To add the following as item Nos. 5 and 6 after item
No.4 of the plaint Schedule.
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5. Site bearing No.1 suburb Rajajinagar, Bangalore
admeasuring east-west 140 feet and north-south 336' +
350'/2 and bounded on the east by vacant land, west by T.B.
Road, north by road and south by site No.1/A.
6. Vacant site bearing No.17-B, Industrial
suburb, Bangalore, measuring on the east
242 ft., on the west 298 ft., on the north
236 ft. and on the south 160 feet, and
bounded on the east by 60 feet main
road, on the west by old No.13/14, on the
north by Seethalakshmi Hall Flour Mills
and on the south T.B. Road."
20. The High Court in its judgment held :
1) In the absence of any issue having been framed as regards
the validity or otherwise of the deed of relinquishment, there
was no occasion for the defendants to adduce any evidence.
2) The plea of the appellants that the deed of relinquishment
was hit by Section 25 of the Contract Act cannot be
permitted to be raised at the appellate stage.
3) It was open to the parties to arrive at an arrangement and to
release their respective rights wherefor no consideration was
necessary to be passed.
4) The suit was not maintainable as the appellants had not
sought for any declaration that the partition deed was void.
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5) The contention of the appellants that they came to know
about the fraud in 1988 was not correct and thus the suit was
barred by limitation.
6) The holder of the Power of Attorney executed by defendant
No.8 having received the benefit of the partition, the
appellants were estopped and precluded from challenging
the same.
7) In view of the admission made by the appellants that the suit
properties were the joint family properties, they are bound
thereby.
8) As both the deed, viz. the deed of partition as also the deed
of lease were written in English language and the appellants
could speak in that language fluently, allegations of mis-
representation have not been proved.
21. Mr. G.V. Chandrasekhar, learned counsel appearing on behalf of
the appellants, in support of this appeal, raised the following
contentions :-
i) The courts below committed a serious error in not drawing
adverse inference against respondents Nos. 1 & 2 as the said
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purported deed of partition dated 2nd July, 1957 and the
other deeds including the Power of Attorney executed by the
4th defendant had not been produced. The purported
application for adducing additional evidence to prove the
deed of partition dated 22nd July, 1957 thus should not be
allowed by this Court.
ii) The averments made in the 1982 suit being fraught with the
elements of fraud and mis-representation, no reliance could
have been placed thereupon nor the plaintiffs-appellants
could be said to have voluntarily made admissions in the
said pleading.
iii) As the deed of partition and the deed of relinquishment were
void ab initio being hit by Section 25 of the Indian Contract
Act, it was not necessary to pray for any relief for setting
aside the said deeds.
iv) The partition deeds as also the deed of relinquishment were
void being hit by Section 25 of the Indian Contract Act as
for the said purpose passing of adequate consideration was
necessary, love and affection being not the requisite
consideration therefor.
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The partition of the properties being unfair and unequal,
reopening of the partition is permissible, wherefor also it is
not necessary to seek cancellation of the documents.
(v) In the event it be held that it is not necessary to seek
declaration of the deed of partition and deed of release being
void, Article 65 or Article 110 of the Schedule appended to
the Limitation Act would be attracted and not Article 59
thereof.
(vi) As there is a mis-representation in regard to the nature of the
document as the deed of partition ultimately turned out to be
a deed of relinquishment and even otherwise, the same was
opposed to public policy as contained in Section 25 of the
Contract Act,. Article 59 of the Limitation Act would not be
attracted.
(vii) Gross inadequacy of price, which is a principle applied in
the suits for specific performance of a contract, may be
applied even in a case of this nature.
viii) The trial court as also the High Court committed a serious
illegality in opining that no issue had been framed in regard
to the validity of the deeds, although such an issue being
Issue No.3 had in fact been framed. Burden to prove that
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the transactions were valid, although was on the defendants,
but neither any evidence had been let on their behalf, nor the
courts below had answered the said issue and in that view of
the matter the impugned judgments cannot be sustained.
ix) The principle of estoppel in a case of this nature will have
no application as both the appellants had not acted upon the
documents of lis.
x) The properties of joint families and the self acquired
properties and in particular the properties standing in the
name of Singaramma could not be put into hotchpotch of
joint family properties.
xi) Consideration within the meaning of Section 25 of the
Indian Contract Act, love and/or affection being
consideration must be disclosed in the document, which
having not been done, the impugned judgments could not
have been sustained.
xii) Power of attorney having not been witnessed by a close
relative in a case of this nature, the impugned judgment
cannot be sustained.
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22. Mr. S.S. Javali, learned senior counsel appearing on behalf of
respondent Nos. 1 and 2, on the other hand, urged :-
i) All the documents being registered documents, they carry a
presumption of proper execution as also the contents thereof
and in that view of the matter the burden was on the
appellants to prove that they were vitiated by fraud or
misrepresentation. Presumption of validity strengthens with
the passage of time.
ii) Appellants having themselves admitted that the properties in
question were the joint family properties and not the self
acquired properties are bound thereby, which they
themselves admitted in the list of dates.
iii) The contention having been raised for the first time in this
Court that there had been no partition in the year 1957, the
respondents have produced the said document, which being
a registered one, may be taken into consideration.
iv) Institution of the partition suit in the year 1992 being not in
dispute, and the factum of partition entered into between K.
Sreenivasulu and his brothers having been stated therein,
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there is no reason as to why 1957 partition should not have
been believed by the courts below.
v) In view of the fact that co-parcenary consisted of K.
Sreenivasulu, the respondent Nos. 1 and 2 and his three sons
through his second wife Venkatalakshamma, it was
permissible for the parties to partition the properties half and
half between two branches, which per se was not an illegal
transaction.
vi) The fact that Venajakshi had relinquished her share and ten
items of properties had been jointly sold in respect whereof
no accusation had been made as against the respondents, the
partition of the properties consisting of four houses must
have to be considered in the said back drop of events,
particularly the fact that they are not the subject matter of
challenge.
vii) The conduct of the parties, i.e., three amongst eight sisters
did not claim any share and only one sister having filed her
written statement supporting the case of the appellants, two
others merely had adopted the said written statement was a
relevant factor which has rightly been taken into
consideration by the courts below. However, defendant
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No.5 in her deposition before the trial judge as DW-4 stated
that she had not instructed any lawyer to file the written
statement, the case of three others must also fall wherefrom
it is evident that out of nine sisters, six did not contest,
which would go to show that all the sisters had voluntarily
relinquished their shares in the joint family properties.
Attention in this behalf has also been drawn to the
deposition of appellant No.1 as PW-1 wherein the fact of
that earlier partition had taken place, has categorically been
admitted which clearly proves not only 1957 partition but
also the 1982 partition is legal and valid.
viii) Plaintiff-appellants made only general allegations of fraud
and mis-representation without giving any particulars
thereof, which being mandatory in nature, no evidence could
have been led in that behalf.
ix) As the deposition of the appellants categorically show that
all the documents were executed with their knowledge and
their signatures had not been obtained on blank papers, this
Court should not entertain the plea of fraud, mis-
representation on their part particularly when they had
admitted their knowledge about the nature of the document.
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x) Even Appellant No.2, deposing as PW-2, has accepted
execution of the power of attorney which was prepared at
Cuddpath. It was only in respect of the mother's 1/3rd share
in one of the properties that the plaintiffs had 1/11th share,
which they had not only accepted in the power of attorney
executed by them, but also in the list of dates stating that not
only a lumpsum amount had been paid to the appellant No.1,
but also the fact that they had been getting their share of rent
through cheques and appropriating them. This conduct on
the part of the appellant would clearly show that they not
only executed the deeds voluntarily, but also have been
getting the benefit thereof by way of receiving rent.
Even she identified the document as a power of attorney and
as such she would be deemed to have known about the
nature thereof.
23. The source of title in respect of properties in suit is not in question.
It was Kasetty Rangappa's property. K. Sreenivasulu being son of
Kasetty Rangappa used to do business in partnership. There were some
joint family properties. The business was a joint family business.
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There exists a presumption in law that a family holding joint
properties and joint business would constitute a joint family.
In Mst. Rukhmabai v. Lala Laxminarayan and Others [1960 (2)
SCR 253], this Court held:
"There is a presumption in Hindu law that a
family is joint. There can be a division in status
among the members of a joint Hindu family by
refinement of shares which is technically called
"division in status", or an actual division
among them by allotment of specific property
to each one of them which is described as
"division by metes and bounds". A member
need not receive any share in the joint estate but
may renounce his interest therein, his
renunciation merely extinguishes his interest in
the estate but does not affect the status of the
remaining members vis-a-vis the family
property. A division in status can be effected by
an unambiguous declaration to become divided
from the others and that intention can be
expressed by any process..."
Even after the dissolution of the partnership, the fact that it had all
along been treated as a joint family property by both the branches of K.
Sreenivasulu through his two wives Singaramma and Venkatalakshamma
is evident as they were the subject matter of the O.S. No. 2459 of 1982.
The fact that in the said suit the properties of K. Sreenivasulu were
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described as the joint family coparcenary property is not in dispute.
Plaintiffs contended that it was K.S. Prakash who was behind the said
machination. That may be so or may not be.
The fact remains that a consent decree was passed pursuant to a
settlement arrived at between the two branches. They decided that the
properties may be divided half and half. Indisputably, the said consent
decree has been acted upon. Once that consent decree has been acted
upon, the question of reopening the entire suit by setting aside the decree
passed in the said O.S. No. 2459 of 1982 would not arise. It is also not
in dispute that the properties which fell in the share of the parties hereto
and Smt. Venajakshi are only four houses. It is also of some significance
to note that the plaintiffs initially filed a suit in respect of the house in
which Singaramma had been given one-third share, after the partition
was brought about in terms of the decree passed in the said O.S. No.
2459 of 1982. The basis for the entire suit being commission of fraud in
obtaining the said consent decree, it was obligatory on the part of the
plaintiffs to pray for setting aside the said decree. The pleadings of the
appellants in the said suit in which they were parties are binding on them
in the subsequent proceedings proprio vigore. Unless fraud was proved,
they could not have got rid of the same.
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The said decree has been acted upon. Pursuant to or in furtherance
of the said decree, ten sale deeds have been executed.
24. It may be true that although the properties were described as
coparcenary property and both the branches were granted equal share but
it must be remembered that the decree was passed on the basis of the
settlement arrived at. It was in the nature of a family settlement. Some
`give and take' was necessary for the purpose of arriving at a settlement.
A partition by meets and bounds may not always be possible. A family
settlement is entered into for achieving a larger purpose, viz., achieving
peace and harmony in the family.
In Hari Shankar Singhania and Others v. Gaur Hari Singhania and
Others [(2006) 4 SCC 658], this Court held:
"43. The concept of "family arrangement or
settlement" and the present one in hand, in our
opinion, should be treated differently.
Technicalities of limitation, etc. should not be
put at risk of the implementation of a settlement
drawn by a family, which is essential for
maintaining peace and harmony in a family.
Also it can be seen from decided cases of this
Court that, any such arrangement would be
upheld if family settlements were entered into
to allay disputes existing or apprehended and
even any dispute or difference apart, if it was
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entered into bona fide to maintain peace or to
bring about harmony in the family. Even a
semblance of a claim or some other ground, as
say affection, may suffice as observed by this
Court in Ram Charan Das v. Girjanandini
Devi"
[See also Govt. of A.P. and Others v. M. Krishnaveni and Others (2006)
7 SCC 365 and Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai
Patel (2006) 8 SCC 726]
25. One of the grievances raised by Mr. Chandrasekhar is that the
original deed of partition 22nd July, 1957 was not produced. It was,
however, a registered document. A perusal of the averments made in the
plaint categorically goes to show that the partition referred to therein by
and between K. Sreenivasulu and his brothers related to the partition
effected in 1957. The plaintiffs - appellants were, thus, aware thereof.
They did not contend in the plaint that the said deed of partition dated 2nd
July, 1957 was in effect and substance a deed of dissolution of
partnership. They stated so for the first time in the list of dates in the
Special Leave Petition. In response thereto, only the respondents have
produced the said deed and sought to adduce additional evidence to
prove the said fact. In our opinion, it is not necessary to do so as the
27
admissions made by the appellants in their pleadings themselves are
sufficient to hold that the property was a joint family property and by
reason of the said deed of settlement culminating in passing of the
compromise decree dated 20.12.1982, a valid consent decree was passed.
It is not a case that there had been a fraud or misrepresentation on the
part of K.S. Prakash Respondent No.1 alone herein but if a fraud or
misrepresentation is to be attributed, the same must be attributed to the
entire family representing both the branches. They must have thought
that by reason of such averments a settlement can be brought about. The
averments made in the suit filed by one branch were accepted by the
other branch without any demur whatsoever.
26. Even otherwise, in view of the well-settled principles of law that
when a son gets a property from his father, as soon as sons are born to
him, a joint family is constituted. It is not a case that sons from either
side of the family were born before the Hindu Succession Act 1956 came
into force.
27. The said compromise decree was acted upon. A deed of partition
was entered into.
28
28. All the parties including Singaramma came to the office of the
Sub-Registrar for the said purpose. There is nothing to show nor the
plaint contains any averments that a fraud or mis-representation had been
practised on Singaramma. It is true that she was not well and had
undergone an operation at Vellore but bereft of that there is nothing to
show that she was keeping unwell for a long time so as not to possess a
sound disposing mind. Before the said deed of partition was entered
into, on 15th July, 1983 a special power of attorney was executed by
Ranganayakamma in favour of Respondent No. 1. A clear recital was
made therein that she had agreed to relinquish her interest. The power of
attorney was being executed pursuant thereto.
Mr. Chandrasekhar has drawn our attention to the statements made
in the power of attorney to contend that no other or further agreement
was entered into and the power of attorney should have been preceded by
a regular deed. In our opinion, it was not necessary. Relinquishment
may be unilateral. A sister relinquishing her right in favour of the
brothers may do so in various ways. Expression to that effect may be
made in several ways.
29. A power of attorney need not disclose the purpose for which the
relinquishment is made or the consideration thereof. Another power of
29
attorney was executed by Defendant No. 4 in favour of Singaramma to
enter into a deed of partition. It was not produced. But, the said power
of attorney concededly had nothing to do with the said property. It was
in respect of other business. Defendants - Respondents rely thereupon
only to show that for the purpose of better management of the properties
and business, the sisters used to execute power of attorneys. They knew
about the nature and character of the said documents. They never stated
that any fraud or misrepresentation had been practised in regard to the
character of the document; the effect whereof we would discuss a little
later.
30. Coming now to the deed of partition, admittedly, one-third share in
Item No. 3 had been given to the mother. Appellants and other sisters
relinquished their right, title and interest therein. The materials brought
on records by the parties would clearly go to show that they had taken a
decision in unison. A similar power of attorney was executed by one of
the sisters being Smt. Venajakshi, who, as noticed hereinbefore, upon
receipt of a sum of about Rs. 40,000/-, relinquished her right. It may be
true that in the said deed of partition dated 5th August, 1983, the amount
of consideration was shown at Re. 1/-. But whether the same by itself
would invalidate the said deed of partition is another question which we
30
intend to deal with at an appropriate stage. The fact, however, remains
that in the plaint filed in the present suit by the appellants, the execution
or validity of the document including the registered power of attorneys
and deeds of lease being Exhibit Nos. 9, 10, 11, 12, 13 and 14 executed
between 1983 and 1985 are not in question. These documents in
categorical terms go to show that the partition effected in 1983 had been
acted upon.
31. It would be of some importance, furthermore, to notice that the
plaintiff - Appellant No. 1 Kanthamma in her deposition before the
learned Trial Judge admitted:
(i) Her father was carrying on business in Sarees.
(ii) Each of the sisters had been given one rupee and their
signatures were obtained on the partition deed dated
5th August, 1983. There was some function on that
date, on which occasion all the sisters had put their
respective signatures. There had been a partition
between the children of the second wives of
Sreenivasulu and children of her mother.
31
(iii) A suit was instituted which ended in compromise.
She had affection for and faith in Defendant Nos. 1
and 2.
(iv) She was told by others that she had been cheated by
their brothers. She, however, could not say as to who
they were. She speaks fluent English. She signed the
documents in English. She had been running a
poultry business under the name and style of Kantha
Poultry Farm. She had also been doing saree business
with her husband. Her husband had a roller flour mill
business. He is also one of the partners in
Singaramma Flour Mills, Bangalore.
(v) One of the sisters of the plaintiff, viz., Defendant No.
8 was a Science graduate from Mount Carmel
College. Ranganayakamma although made an attempt
to show that she had not signed any power of attorney
but accepted that once she had signed some power of
attorney. It is accepted that the power of attorney was
executed at Cuddapah, her own place.
(vi) From the deposition of the appellants it would further
appear that they had accepted that the documents had
32
been executed either in the office of the advocates or
at Cuddappah, which is their place of residence in
presence of their own advocates and/or they had
visited the registration office and put their
signatures/thumb impressions before the Registrar, no
case of fraud or mis-representation has been made
out.
(vii) She had been going to the Sub-Registrar's office as
also to the offices of the Advocates. The power of
attorney was signed in the Chamber of the Advocates.
She accepted that her mother had been given one-
third share in Item No. 2 properties. She accepted her
signatures in the power of attorney dated 20.12.1983
and the signature of her Advocate Mr. T.S.
Ranganaikalu which was marked as Exhibit D-9.
(viii) It is also accepted that after the death of her father she
had been given 1/11th in Item No.2 of Schedule
property.
(ix) One of the documents was attested by Mr. T.S.
Ranganaikalu and Mr. N.K. Swamy, Advocates.
33
(x) She also accepted that a deed of lease was executed in
favour of Defendant No. 9 M/s. Voltas Limited and
she had been receiving Rs. 9000/- per month from the
said Company. In one of the documents even her
husband is an attesting witness. He is also a lawyer.
It was, therefore, difficult to arrive at a conclusion that the
plaintiffs - appellants were not aware of the nature of the document or
any fraud had been practiced on them.
32. The aforementioned findings have a direct bearing on the question
as to whether the deed of partition as also the power of attorneys were
vitiated by reason of any fraud or mistake on the part of the respondent
Nos. 1 and 2 herein. It is a well-settled principle of law that a void
document is not required to be avoided whereas a voidable document
must be. It is not necessary for us to advert to a large number of
decisions of this Court and other High Courts on this issue as more or
less it is concluded by a decision of this Court in Prem Singh v. Birbal
and Others [(2006) 5 SCC 353] wherein this Court held:
"16. When a document is valid, no question
arises of its cancellation. When a document is
void ab initio, a decree for setting aside the
same would not be necessary as the same is non
34
est in the eye of the law, as it would be a
nullity."
33. Section 16 of the Indian Contract Act provides that any transaction
which is an outcome of any undue misrepresentation, coercion or fraud
shall be voidable.
If, however, a document is prima facie valid, a presumption arises
in regard to its genuineness.
In Prem Singh (supra), it was stated:
"27. There is a presumption that a registered
document is validly executed. A registered
document, therefore, prima facie would be valid
in law. The onus of proof, thus, would be on a
person who leads evidence to rebut the
presumption. In the instant case, Respondent 1
has not been able to rebut the said
presumption."
It was opined:
"12. An extinction of right, as contemplated
by the provisions of the Limitation Act, prima
facie would be attracted in all types of suits.
The Schedule appended to the Limitation Act,
as prescribed by the articles, provides that upon
35
lapse of the prescribed period, the institution of
a suit will be barred. Section 3 of the Limitation
Act provides that irrespective of the fact as to
whether any defence is set out or is raised by
the defendant or not, in the event a suit is found
to be barred by limitation, every suit instituted,
appeal preferred and every application made
after the prescribed period shall be dismissed."
In Mst. Rukhmabai (supra), this Court held:
"In unraveling a fraud committed jointly by the
members of a family, only such letters that
passed inter se between them can give the clue
to the truth..."
Yet again in A.C. Ananthaswamy v. Boraiah [(2004) 8 SCC 588],
this Court categorically laid down that in establishing alleged fraud, it
must be proved that the representation made was false to the knowledge
of the party making such representation or that the party could have no
reasonable belief that it was true. Level of proof required in such a case
was held to be extremely high.
34. Another aspect of the matter cannot also be lost sight of.
Order VI, Rule 4 of the Code of Civil Procedure reads as under:
36
"4. Particulars to be given where necessary
In all cases in which the party pleading relies
on any misrepresentation, fraud, breach of trust,
wilful default, or undue influence, and in all
other cases in which particulars may be
necessary beyond such as are exemplified in the
forms aforesaid, particulars (with dates and
items if necessary) shall be stated in the
pleading."
35. When a fraud is alleged, the particulars thereof are required to be
pleaded. No particular of the alleged fraud or misrepresentation has been
disclosed.
36. We have been taken through the averments made in the plaint.
The plea of fraud is general in nature. It is vague. It was alleged by the
plaintiffs that signatures were obtained on several papers on one pretext
or the other and they had signed in good faith believing the
representations made by the respondents, which according to them
appeared to be fraudulent representation. When such representations
were made, what was the nature of representation, who made the
representations and what type of representations were made, have not
been stated. Allegedly, on some occasions, respondent Nos. 1 and 2 used
37
to secure the signatures of one or more of the plaintiffs and defendants
No. 3 to 8 on several papers but the details therein had not been
disclosed.
37. Admittedly, the papers were signed either in the office of the
advocate or before the Sub-Registrar. It was, therefore, done at a public
place. No signature was obtained on the blank paper. No document was
executed in a hush-hush manner. It has been alleged that taking
fraudulent advantage of the innocence and ignorance of the plaintiffs and
Defendant No. 2, the said deed of partition was executed resulting in an
unjust, unfair and unequal fraudulent partition of the unequal properties.
If their signatures had not been obtained on blank sheets of papers, it was
for the plaintiffs - appellants to show who had taken advantage and at
what point of time. Both the courts below have come to the conclusion
that the sisters jointly had taken a stand that they would not claim any
share in the property. One of the sisters, who wanted a share in the
property, had been paid a sum of Rs. 40,000/- and she had executed a
deed of relinquishment. The said fact is not denied. All other sisters
were, thus, aware thereof. They knew what was meant by
relinquishment. All deeds including the said deed of partition was
38
executed with the knowledge that they had been signing the deed of
partition and no other document.
This has categorically been stated by the plaintiff No. 1
Kanthamma in her evidence which we may notice in the following terms:
1. "Each of the sisters have been given one rupee and signatures
were obtained on partition deed on 5.8.1983"
2. "I had gone to Sub-Registrar's office at the time of registration
of the said partition deed. Sub-Registrar did not explain the
contents of the said partition deed.
3. "I do not remember the date on which I affixed my signature on
partition deed. We all the sisters and mother had gone to Sub-
Registrar's Office at the time of registration of the partition
deed."
They were, therefore, aware that the deed in question was a deed
of partition. They admitted that they had put their signatures before the
Sub-Registrar and no where else. Their statements appear to be far-
fetched and beyond the ordinary human conduct. If a plea was to be
raised and evidence was required to be addressed that there had been a
fraudulent misrepresentation as regards the character of partition deed
(Exhibit D-6) and in absence of any particulars having been furnished as
regards alleged fraud and misrepresentation, the said deeds would not be
void but only voidable.
39
38. We are, however, not oblivious of the decisions of this Court and
other High Courts that illegality of a contract need not be pleaded. But,
when a contract is said to be voidable by reason of any coercion,
misrepresentation or fraud, the particulars thereof are required to be
pleaded.
In Chief Engineer, M.S.E.B. and Another v. Suresh Raghunath
Bhokare [(2005) 10 SCC 465], the law is stated in the following terms:
"...The Industrial Court after perusing the
pleadings and the notice issued to the
respondent came to the conclusion that the
alleged misrepresentation which is now said to
be a fraud was not specifically pleaded or
proved. In the show-cause notice, no basis was
laid to show what is the nature of fraud that was
being attributed to the appellant. No particulars
of the alleged fraud were given and the said
pleadings did not even contain any allegation as
to how the appellant was responsible for
sending the so-called fraudulent proposal or
what role he had to play in such proposal being
sent..."
[See also Prem Singh (supra)]
40
In Ramesh B. Desai and Others v. Bipin Vadilal Mehta and Others
[(2006) 5 SCC 638], this Court emphasized the necessity of making
requisite plea of Order VI, Rule 4 stating:
"22. Undoubtedly, Order 6 Rule 4 CPC
requires that complete particulars of fraud shall
be stated in the pleadings. The particulars of
alleged fraud, which are required to be stated in
the plaint, will depend upon the facts of each
particular case and no abstract principle can be
laid down in this regard."
In Sangramsinh P. Gaekwad and Others v. Shantadevi P. Gaekwad
(Dead) Through LRs. and Others [(2005) 11 SCC 314], this Court held:
"207. We may now consider the
submissions of Mr Desai that Appellant 1
herein is guilty of commission of fraud.
Application filed by Respondent 1 before the
Gujarat High Court does not contain the
requisite pleadings in this behalf, the
requirements wherefor can neither be denied
nor disputed.
208. It is not in dispute that having regard to
Rule 6 of the Companies (Court) Rules, the
provisions of the Code of Civil Procedure will
be applicable in a proceeding under the
Companies Act. In terms of Order 6 Rule 4 of
the Code of Civil Procedure, the plaintiff is
bound to give particulars of the cases where he
relies on misrepresentation, fraud, breach of
trust, etc."
41
39. Strong reliance has been placed by Mr. Chandrasekhar on a
decision of the Orissa High Court in Sundar Sahu Gountia and others v.
Chamra Sahu Gountia and others [AIR 1954 Orissa 80], wherein it was
opined:
"12. The principles deducible from a
consideration of these authorities may be
summarised as follows :
(i) To constitute a valid family arrangement
the transaction should be one which is for the
benefit of the family generally.
(ii) The consideration for the arrangement
may be preservation of the family property,
preservation of the peace and honour of the
family, or the avoidance of litigation.
(iii) It is not essential that there should be a
doubtful claim, or a disputed right to be
compromised. If there is one, the settlement
may be upheld if it is founded on a reciprocal
'give and take and there is mutuality between
the parties, in the one surrendering his right and
in the other forbearing to sue. In such cases the
Court will not too nicely scrutinise the
adequacy of the consideration moving from one
party to the other.
(iv) In any case, if such an arrangement has
been acted upon the Courts will give effect to it
on the ground of estoppel or limitation and the
like.
(v) A family arrangement may also be
upheld if the consideration moves from a third
party.
42
(vi) If it appears to the Court that one party
has taken undue advantage of the helplessness
of the other and there is no sacrifice of any
right or interest, the agreement is unilateral and
is devoid of consideration.
(vii) The consent of the parties should be
freely given to the arrangement and gross
inadequacy of consideration may be a
determining factor in judging whether the
consent was freely given.
(viii) If the agreement involves or implies an
injury to the person or property of one of the
parties, the Courts retain an inherent power to
prevent injustice being done."
In that case, the court refused to record the alleged settlement
between the parties. It was in that situation, the appeal was filed before
the High Court. The ratio enunciated therein, that preserving the family
property cannot, therefore, form the ground or consideration for the
arrangement by the party to forgo a substantial part of his share so as to
make the compromise binding upon him, ex facie appears to be contrary
to the decision of this Court in Hari Shankar Singhania (supra) and
Ramdev Food Products (P) Ltd. (supra).
In Ramdev Food Products (P) Ltd. (supra), this Court held:
"35. We may proceed on the basis that the
MoU answers the principles of family
settlement having regard to the fact that the
same was actuated by a desire to resolve the
43
disputes and the courts would not easily disturb
them as has been held in S. Shanmugam Pillai
v. K. Shanmugam Pillai, Kale v. Dy. Director
of Consolidation and Hari Shankar Singhania
v. Gaur Hari Singhani."
When there arises a question as to whether the suit was to be
regarded as having adjusted by way of mutual agreement so that it can be
disposed of on the said terms, in the event of a dispute, the consideration
is different. However, where a settlement had been arrived at and a
decree has been passed on the premise that the said compromise was
lawful, we are of the opinion that the same cannot be permitted to be
reopened only on the question as to whether the properties were joint
properties or the self-acquired property of Sreenivasulu.
The said decision, therefore, in our opinion cannot be said to have
any application whatsoever.
40. It is also not a case where the settlement was contrary to any
statutory provision or was opposed to public policy as envisaged under
Section 23 of the Indian Contract Act. If the principle ex turpi causa
non oritur actio is to be applied in respect of the consent decree, the
matter might have been different. The court shall apply the statute for
44
upholding a compromise unless it is otherwise vitiated in law. It is not
required to go into the question as to whether the contents of the said
settlement are correct or not. Only in a case where fraud on the party or
fraud on the court has been alleged or established, the court shall treat
the same to be a nullity. Fraud, as is well known, vitiates all solemn acts.
[See Ganpatbhai Mahijibhai Solanki v. State of Gujarat and Ors., 2008
(3) SCALE 556] but the same must be pleaded and proved.
41. We may now consider the submission of Mr. Chandrasekhar as to
what is meant by `release'. Reliance has been placed on De'Souza's
Conveyancing, page 1075, wherein it has been stated:
"A deed of release does not create title. A
release may be drafted in the same form as a
deed of transfer or simply as a deed poll or a
deed to which both parties may join stating the
circumstances under which the release is based.
Either the monetary consideration or "the
premises", i.e., facts in consideration of which
the release is made shall be stated."
42. Our attention has also been drawn to essentials of `release' from
the said treatise, which are as under:
45
"(i) Full recitals of the origin of the claim,
which form the most important part;
(ii) knowledge of the releaser about the
claim, intended to be released;
(iii) words and expressions sufficiently clear
to convey the intention of the releaser to
discharge the right or the claim."
43. A deed of `release' for a consideration is a transaction. When,
thus, a release is made for consideration, the particulars of consideration
and other particulars which are required to be averred in the deed being
essential elements thereof. Relinquishment of a property by a sister in
favour of her brother for a consideration or absence of it, stands on a
different footing. Section 25 of the Indian Contract Act must be read and
construed having regard to the fact situation obtaining in the cases.
In Smt. Manali Singhal and another v. Ravi Singhal and others
[AIR 1999 Delhi 156], it was held:
"20. Learned counsel for the defendants has
then argued that the impugned settlement is
without any consideration. Hence the same is
hit by S. 25 of the Contract Act. The contention
of the learned counsel may be an ingenious one
but can be brushed aside without any difficulty.
Parties more often than not settle their disputes
amongst themselves without the assistance of
46
the Court in order to give quietus to their
disputes once and for all. The underlying idea
while doing so is to bring an era of peace and
harmony into the family and to put an end to
the discord, disharmony, acrimony and
bickering. Thus the consideration in such type
of settlements is love and affection, peace and
harmony and satisfaction to flow therefrom."
44. We would proceed on the basis that the consideration of rupee one
shown in the deed of partition is no consideration in the eye of law.
However, the question is as to whether a partition deed would be
violative of Section 25 of the Indian Contract Act for want of
consideration. It is per se not a void document. No such plea was raised.
No issue has been framed. No evidence has been adduced. No ground
has been taken even in the memo of appeal before the High Court. The
validity of the partition deed (Ex. D-6) by reference to the recitals of the
release of shares by the daughters of Sreenivasulu has not been
questioned.
45. Renunciation in the Indian context may be for consideration or
may not for consideration. This has been so held by this Court in
Kuppuswamy Chettiar v. A.S.P.A. Arumugam Chettiar and Another
[(1967) 1 SCR 275] in the following terms:
47
"In the present case, the release was without
any consideration. But property may be
transferred without consideration. Such a
transfer is a gift. Under Section 123 of the
Transfer of Property Act, 1882, a gift may be
effected by a registered instrument signed by or
on behalf of the donor and attested by at least
two witnesses. Consequently, a registered
instrument releasing the right, title and interest
of the releasor without consideration may
operate as a transfer by way of a gift, if the
document clearly shows an intention to effect
the transfer and is signed by or on behalf of the
releasor and attested by at least two witnesses.
Exhibit B-l stated that the releasor was the
owner of the properties. It showed an intention
to transfer his title and its operative words
sufficiently conveyed the title. The instrument,
on its true construction, took effect as a gift.
The gift was effectively made by a registered
instrument signed by the donor and attested by
more than two witnesses."
The said principle has been noticed by a Full Bench of the Madras
High Court in Chief Controlling Revenue Authority, Referring Officer v.
Rustorn Nusserwanji Patel [AIR 1968 Madras 159] stating :
"(8) In the present case, prima facie, it may be
contended with great force and plausibility that
the document rightly purports to be a release
and should be received as such. For it cannot be
disputed, we think, that the estate in question is
owned by two parties or co-owners, that the
48
releasee has already an undivided half share in
the estate and that what the releasor purports to
do by the document is to effect himself, in
respect of both this title and his right to
possession in favour of the releasee.
Nevertheless, Sri Ramaswami for the State has
contended, upon two main lines of reasoning,
that the document has to be interpreted as a
conveyance or should be held essentially to be
such. The first line of reasoning is based upon
the distinction well known to law borrowed
from the English law of real Property between a
joint tenant and a tenant-in-common. This
distinction has also been applied to the concept
of a Hindu Coparcenary as existing before a
division in status and the state of rights
between erstwhile co-parceners after division is
status as would be apparent from cited passages
in Mulla's Hindu law. The other line of
reasoning is that upon the actual phraseology of
Article 55 of Schedule I such a document as
this cannot amount to a release."
46. The question again came up for consideration before a Special
Bench of the Madras High Court in The Chief Controlling Revenue
Authority, Board of Revenue, Madras v. Dr. K. Manjunatha Rai [AIR
1977 Madras 10], in the context of the Payment of Stamp Duty wherein it
was categorically held:
"...For a release, in law, may be effected either
for consideration or for no consideration. In
either case, if the transaction operates as a
relinquishment or a renunciation of a claim by
one person against another or against a
specified property, it will be a release..."
49
It is, therefore, not a pure question of law.
47. Section 25 of the Indian Contract Act contains several exceptions,
that is to say : (i) if it is in writing; (ii) if it is registered or (iii) if the
same has been executed on account of love and affection. The deed of
partition is both in writing and registered. One of the questions which
had been bothering this Court is as to whether a document had been
executed out of love and affection or not. The fact that the parties are
near relatives is not in dispute. The love and affection of the sisters on
the brothers has categorically been accepted by Plaintiff No. 1
Kanthamma in her deposition, stating:
"In the house of defendants 1-2 whenever there
is a function, as our father died and since we
had more affection and faith on defendants 1-2,
we used to sign the documents without going
through the contents."
48. The deed of partition could have also been entered into by way of
family arrangement where no registration was required. Such a course of
action had not been taken. The parties knew the nature of the document.
Appellants and other sisters being highly educated were supposed to
50
know the contents thereof. Their husbands are well-off in the society.
The transaction, therefore, was transparent. Furthermore, the mother was
alive. She was also a party to the deed of partition. She must have
played a pivotal role. She even if suffering from illness might be anxious
to see that family properties are settled. Release by an heir other than a
co-parcenar does not need any consideration. A release is valid even
without consideration.
49. Mr. Chandrasekhar, however, has drawn our attention to Anson's
Law of Contract, page 154, wherein the law is stated to be as under:
"...Some additional factor is required to bring a
case within one of the exceptions: for example,
the existence of a relationship in which one
party is able to take an unfair advantage of the
other. In the absence of some such factor, the
general rule applies that the courts will enforce
a promise so long as some value for it has been
given."
As regards, nominal and inadequate consideration, the learned
Author states:
"'Nominal consideration' and `nominal sum'
appear...., as terms of art, to refer to a sum or
consideration which can be mentioned as
51
consideration but is not necessarily paid. This
view was expressed by Lord Wilberforce (in a
speech with which all the other members of the
House of Lords concurred) in Midland Bank &
Trust Co. Ltd. v. Green. In that case a husband
sold a farm, said to be wroth 40,000, to his
wife for 500. It was held that the wife was,
for the purposes of Section 13(2) of the Land
Charges Act 1925, a "purchaser for money or
money's worth" so that the sale to her prevailed
over an unregistered option to purchase the
land, which had been granted to one of the
couple's children. It was not necessary to
decide whether the consideration for the sale
was nominal but Lord Wilberforce said that he
would have "great difficulty" in so holding; and
that "To equate `nominal' with `inadequate' or
even `grossly inadequate' consideration would
embark the law on inquiries which I cannot
think were ever intended by Parliament. On the
facts of the case the 500 was in fact paid and
was more than a mere token, so that the
consideration was not nominal on either of the
two views stated above. But if the stated
consideration had been only 1, or a
peppercorn, it is submitted that it would have
been nominal even if it had been paid, or
delivered, in accordance with the intention of
the parties."
50. The same principle might have been applied in the Indian Contract
Act. "Consideration" has been defined in Section 2(d) of the Indian
Contract Act, which reads as under:
"(d) When, at the desire of the promisor, the
promisee or any other person has done or
52
abstained from doing, or does or abstains from
doing, or promises to do or to abstain from
doing, something, such act or abstinence or
promise is called a consideration for the
promise;"
51. Consideration even in the Indian context would mean a reasonable
equivalent or other valuable benefit passed on by the promiser to the
promise or by the transferor to the transferee. Love and affection is also
a consideration within the meaning of Sections 122 and 123 of the
Transfer of Property Act.
52. In Mt. Latif Jahan Begam v. Md. Nabi Khan [AIR 1932 Allahabad
174], the Allahabad High Court rightly held that a question in regard to
the adequacy of consideration for the purpose of attracting Section 25 of
the Indian Contract Act is a mixed question of fact and law and not a
pure question of law stating:
"...The question did not involve a mere point
of law. It required the determination of a
question of fact, viz., whether the agreement
was made on account of natural love and
affection. The Court below was not justified in
recording a finding that the plaintiff had not
proved that there was any affection between
herself and her father in law. There was no
occasion in this case for the plaintiff to offer
any proof on a point which was not raised at the
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trial. We are of opinion that the learned
District Judge has erred in entertaining and
giving effect to this plea."
Yet again in Gauri Shanker v. M/s. Hindustan Trust (Pvt.) Ltd. and
Others [(1973) 2 SCC 127], this Court did not permit an amendment of
the pleadings in that behalf after a long time.
We are, however, not oblivious of the fact that this Court in some
of its decisions opined that the court should allow amendment of the
plaint liberally as was done in the case of Bhikhubhai Vithlabhai Patel &
Ors. v. State of Gujarat & Anr. [2008 (4) SCALE 278] but the factual
matrix involved therein is completely different.
In M/s. John Tinson and Co. Pvt. Ltd. and others v. Mrs. Surjeet
Malhan and another [AIR 1997 SC 1411], it is stated that a distinction
must be made between a transaction which is invalid in law being ultra
vires the Articles of Association and other transactions. What is
contemplated is the sense of ad idem for a concluded contract but when a
document can be executed for no consideration, pleading in that behalf
would be a must.
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53. The High Court, therefore, in our opinion, was correct in not
allowing the appellants to raise the said contention.
54. We may, furthermore, notice that the deed of partition (Ex. D-6)
had been acted upon by the appellants and other sisters. They executed a
deed of lease in respect of their 1/11th share each in the 1/3rd share in one
of the items of the properties in favour of the tenant, Defendant No. 9.
The lease deed executed by Plaintiff No. 1 (Ex. D-14) is dated
16.02.1985. In terms of the deed of partition, one of the plaintiffs
received rentals in respect of her share from the tenants. There are a
large number of documents brought on records by the parties wherefrom
a positive knowledge of execution of the said partition deed on the part
of the sisters is possible to be attributed. The said documents are:
1. Exhibit D-4 dated 4-2-1985, Power of Attorney executed by
Plaintiff No. 1 mentioning D-6
2. Exhibit D-9 dated 20-12-1983, Power of Attorney by Plaintiff
No. 2 referring to D-6
3. Exhibit D-14 dated 16-2-1985, Registered lease deed by
Plaintiff No. 1 referring to Exhibit D-6 and also two other
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registered lease deeds by Defendants Nos. 1-8 and Plaintiff No.
2.
4. Exhibit D-19 to D-22 rent receipts having received rents by the
sisters.
55. As regards, Power of Attorney executed by Ranganayakamma
Plaintiff No. 2. It appears that there were three such documents, viz. :
1. Ex. D - 9 is a Special Power of Attorney executed at
Cuddappah appointing K.S. Prakash to execute lease deed with
respect to 1/11th of 1/3rd share of mother's share. It was attested
by T.S. Ranganaikalu and N.K. Swamy, Advocates.
2. Ex. D - 10 is a Power of Attorney dated 20.12.1983 executed at
Cuddappah appointing K.S. Prakash relinquishing her share in
M/s. Singaramma Flour Mills. It was attested by T.S.
Ranganaikalu and N.K. Swamy, Advocates.
3. Ex. D-11 is an affidavit of Ms. Ranganakayamma stating on
oath that Ex. D-9 is valid and subsisting. It was attested by
R.V. Prasad, Advocate.
56
56. It may be true that there is nothing on record to show that a lease
deed was executed by other plaintiff but then there is nothing to show
that she was not aware thereof. If she had not been paid her share from
the rental income, she had not prayed for mesne profit.
57. We may now consider the question of limitation raised by Mr.
Chandrashekhar.
Applicability of Article 65 or Article 110 of the Limitation Act, on
the one hand, and Article 59 thereof, on the other, would depend upon
the factual situation involved in a case.
Article 59 reads as under:
"59. To cancel or set aside an Three years When the facts entitling the
instrument or decree or for plaintiff to have the
the rescission of a instrument or decree
contract. cancelled or set aside or the
contract rescinded first
become known to him."
A decree for setting aside a document may be sought for in terms
of Section 31 of the Specific Relief Act.
57
Applicability of Article 59 would indisputably depend upon the
question as to whether the deed of partition was required to be set aside
or not. In view of our findings aforementioned, it was required to be set
aside. It is not a case where the deed of partition by reason of purported
wrong factual contention raised in the plaint leading to grant of a consent
decree was void ab initio. It was not. The effect of it would be that the
same was required be set aside. [See Prem Singh (supra), M/s. Bay Berry
Apartments Pvt. Ltd. & Anr. v. Shobha & Ors. 2006 (10) SCALE 596
and Utha Moidu Haji v. Kuningarath Kunhabdulla and Ors. 2006 (14)
SCALE 156]
It must, therefore, be held that the suit was barred by limitation.
58. For the reasons aforementioned, there is no merit in this appeal
which is dismissed accordingly. No costs.
...............................J.
[S.B. Sinha]
................................J.
[Lokeshwar Singh Panta]
New Delhi;
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May 16, 2008
