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Wednesday, August 31, 2016

Order XLVIII of the Supreme Court Rules, 2013.=The opinion of Syed Shah Mohammed Quadri, J. with regard to the situations in which an aggrieved litigant would be entitled to relief under the doctrine of ex debito justitiae has been set out in paragraph 51 of the report which may be reproduced herein below: “Nevertheless, we think that a petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of the principles of natural justice in that he was not a party to the lis but the judgment adversely affected his interests or, if he was a party to the list, he was not served with notice of the proceedings and the matter proceeded as if he had notice, and (2) where in the proceedings a learned judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner.” (para 51)=The doctrine of ex debito justitiae being circumscribed by the judgment of this Court in Rupa Ashok Hurra (supra) it is for the petitioner to exhaust the said remedy, if is he so inclined and so advised. Merely because in the comprehension of the writ petitioner the judgment of this Court is erroneous would not enable the Court to reopen the issue in departure to the established and settled norms and parameters of the extent of permissible exercise of jurisdiction as well as the procedural law governing such exercise. We, therefore, hold that the present writ petition is not maintainable and is accordingly dismissed subject to the observations as above.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL ORIGINAL JURISDICTION
                   WRIT PETITION (CRIMINAL) NO.46 OF 2008
ASHIQ HUSSAIN FAKTOO                       ...PETITIONER

                       VERSUS

UNION OF INDIA & ORS.                                   ...RESPONDENTS

                                  JUDGMENT

RANJAN GOGOI, J.


1.          The writ petitioner has been convicted  by  this  Court  by  its
judgment and order dated 30th January,  2003    passed  in  Criminal  Appeal
No.889 of 2001 under Section 3 of the Terrorist  and  Disruptive  Activities
(Prevention) Act, 1987 (hereinafter referred to as  “TADA  Act”)  and  under
Section  302  read  with  Section  120B  of  the  Indian  Penal  Code,  1860
(hereinafter referred to as “IPC”).  He has been sentenced, inter  alia,  to
undergo imprisonment for life.  The  review  petitions  filed  by  the  writ
petitioner as also by the co-accused (Mohd. Shafi Khan @  Mussadiq  Hussain)
against the  aforesaid  judgment  dated  30th  January,  2003   i.e.  Review
Petition (Criminal) No.478 of 2003 and Review  Petition  (Criminal)  No.1377
of 2003 have been dismissed by order  dated  2nd  September,  2003  of  this
Court.  Curative Petition filed  by  the  co-accused  (Mohd.  Shafi  Khan  @
Mussadiq Hussain) i.e. Curative Petition (Criminal) No.23 of 2004 in  Review
Petition (Criminal) No.1377 of 2003 in Criminal Appeal No.889  of  2001  has
also been dismissed by  order  dated  2nd  February,  2005  of  this  Court.
Thereafter, this writ petition under  Article  32  of  the  Constitution  of
India has been filed by the  present  accused  writ  petitioner  making  the
following prayers:
(a)   Issue a  writ  in  the  nature  of  habeas  corpus  or  other  similar
direction, order or writ to  the  Respondents  thereby  commanding  them  to
produce the petitioner before this Hon'ble Court  and  thereafter  forthwith
release him from illegal custody; and

(b)   grant any other or further reliefs as this Hon'ble Court may deem  fit
and proper in the facts and circumstances of the case and in  the  interests
of justice.”

2.          Notwithstanding the prayers made, extracted above,  in  essence,
the writ petition seeks interference with the order of  conviction  and  the
sentence imposed on the petitioner by this Court by its judgment  and  order
dated 30th January, 2003 passed in Criminal Appeal No.889 of 2001.

3.    The Bench initially hearing the present writ petition  had  passed  an
order dated 24th September, 2014 to the following effect:
      “We have been apprised by Mr. Jethmalani  as  the  writ  petition  was
filed, no application for  review  was  filed.  We  are  of  the  considered
opinion if the present writ petition is converted to a review  petition  and
heard in the open Court on the fundamental principles of review as  well  as
the maxim ex debito justitiae, the cause of justice would be  subserved  and
accordingly we direct the Registry to convert the present writ  petition  to
a review petition and list before the appropriate Bench in  open  Court   as
expeditiously as possible.

      Ordered accordingly”

            Subsequently the matter has been referred  to  a  larger  Bench.
This is how we are in seizen of the matter.

4.          As already noted review petitions  were  filed  by  the  present
writ petitioner as also by the  co-accused  (Mohd.  Shafi  Khan  @  Mussadiq
Hussain) and the same were dismissed  by  this  Court  by  order  dated  2nd
September, 2003 the said fact was not brought to the  notice  of  the  Court
while the order dated 24.09.2013 was rendered.

5.          Shri Ram Jethmalani, learned Senior Counsel  appearing  for  the
writ petitioner has urged that the sole basis of the conviction of the  writ
petitioner is the alleged confession  made  by  him.   Shri  Jethmalani  has
urged that the same is not a confession in law inasmuch as  nowhere  in  the
said statement the accused implicates himself with  the  alleged  offence(s)
in any manner.  Neither the confession has been put to the  accused  in  the
course of his examination under the provisions of Section 313  of  the  Code
of Criminal Procedure, 1973, nor there is any corroboration to  the  alleged
confession.  Shri Jethmalani has further urged that Section 15 of  the  TADA
Act makes a confession made to a Police Officer, not lower in  rank  than  a
Superintendent of Police, admissible in the trial of  such  person.  Section
15 of the TADA Act, therefore, works as an exception to Section  25  of  the
Indian Evidence Act, 1872.  However, in the  instant  case,  the  confession
was recorded while the accused was in police custody and,  therefore,  would
not be admissible under Section 26 of the Indian  Evidence  Act,  1872.  The
provisions of Section 15 of the TADA Act are not in exception  to  what  has
been laid down in Section 26 of the Indian Evidence Act, 1872.  It  is  also
urged that the confession recorded is contrary to the provisions of Rule  15
of the TADA Rules read with the guidelines laid down by this Court  in  para
263 of the  judgment  in  Kartar  Singh  Vs.  State  of  Punjab[1].  On  the
aforesaid  grounds,  Shri  Jethmalani  has   submitted   that   a   manifest
miscarriage of justice has been occasioned by the conviction of the  accused
writ petitioner and  the  sentence  imposed  upon  him  which  needs  to  be
corrected on the principle of ex  debito  justitiae.   Shri  Jethmalani  has
also pointed out the decision of this  Court in   Mohd.  Arif  alias  Ashfaq
Vs. Registrar, Supreme Court of India and others[2] to contend  that  review
petitions in  matters  of  convictions  recorded  under  the  TADA  Act  are
required to be heard in open Court.
6.          Shri R.S. Suri, learned Senior Counsel appearing for  the  Union
of India has questioned the maintainability of the present writ petition  on
the ratio of the law laid down by this Court in Rupa Ashok Hurra  Vs.  Ashok
Hurra and another[3]. Drawing the attention of the  Court  to  the  relevant
paragraphs of the report in Rupa Ashok Hurra (supra)  Shri  Suri  has  urged
that neither a writ petition under Article 32 of the Constitution  of  India
nor a second review petition would be maintainable.  It  is  also  submitted
that invoking the principles of ex debito  justitiae,  this  Court  in  Rupa
Ashok Hurra (supra) had carved out an  exception  permitting  the  Court  to
have a re-look at its concluded judgments  on  twin  grounds  i.e.  (1)  the
order being in infraction of the principles of natural justice; and  (2)  or
an order which shakes the integrity of the justice  delivery  system  by  an
association of the judge with the subject matter or the  litigating  parties
which may have escaped the attention of the learned Judge.
7.          On merits, Shri Suri has submitted that what has been  urged  by
Shri Jethmalani is not at all legally tenable  and  all  the  issues  raised
have been duly considered by this Court in its judgment dated 30th  January,
2003 passed in Criminal Appeal  No.889  of  2001.   Shri  Suri  has  further
submitted  that  principle  of  open  court  hearing  laid   down   by   the
Constitution Bench in Mohd. Arif alias Ashfaq (supra) is only  in  cases  of
death penalty cases either under the IPC or the TADA Act.  The reference  to
TADA cases in paragraph 40  of  the  report  in   Mohd.  Arif  alias  Ashfaq
(supra) has to be understood accordingly.
8.          Having heard the learned counsels for the parties we are of  the
view that on the strength of the Constitution Bench judgment in  Rupa  Ashok
Hurra (supra) the present writ petition  would  not  be  maintainable.    It
would also not be maintainable as  a  review  petition  inasmuch  as  Review
Petition (Criminal) No.478 of 2003 filed by the  writ  petitioner  has  been
dismissed by this Court on 2nd  September,  2003.   Open  Court  hearing  of
review petitions in terms of the judgment of this Court in Mohd. Arif  alias
Ashfaq (supra) is available as of right only in death sentence cases.

9.          The principle of ex debito justitiae invoked on  behalf  of  the
accused  writ petitioner to attract the jurisdiction  of  this  Court  under
Article 32 of the Constitution of India to set the accused  writ  petitioner
at liberty, in our considered view, has been elaborately dealt with  in  the
concurring judgment of  Umesh C. Banerjee, J. in Rupa  Ashok  Hurra  (supra)
and holding that the doctrine of ex  debito  justitiae  would  prevail  over
procedural law but would be applicable only in a situation where  the  order
of this Court had been passed without notice or  where  the  order  has  the
effect of eroding the public confidence  in  the  justice  delivery  system.
Paragraph 69 of the report in Rupa Ashok Hurra (supra) containing  the  view
of  Umesh C. Banerjee, J. may be usefully extracted herein below:
      “69.       True, due regard shall have to be had  as  regards  opinion
of the Court in Ranga Swamy [(1990) 1 SCC 288] but the  situation  presently
centres around that in the event  of  there  being  any  manifest  injustice
would the doctrine of ex debito justitiae be said to be  having  a  role  to
play in sheer passivity  or  to  rise  above  the  ordinary  heights  as  it
preaches that justice is above all. The second alternative seems  to  be  in
consonance with time and the present phase of socio-economic  conditions  of
the society. Manifest injustice is curable in nature rather  than  incurable
and  this  Court  would  lose  its  sanctity  and  thus  would   belie   the
expectations of the founding fathers that justice is above all. There is  no
manner of doubt that procedural law/procedural justice cannot overreach  the
concept of justice and in the event an order stands out to  create  manifest
injustice, would the same be allowed to remain in silentio so as  to  affect
the parties perpetually or the concept of  justice  ought  to  activate  the
Court to find a way out to resolve the erroneous approach  to  the  problem?
Mr  Attorney-General,  with  all  the  emphasis  in  his   command,   though
principally agreed that justice of the situation needs  to  be  looked  into
and relief be granted if so required but in the same breath  submitted  that
the Court ought to be careful enough to tread on  the  path,  otherwise  the
same will open up a Pandora’s box and thus, if at  all,  in  rarest  of  the
rare cases, further scrutiny may be made. While it is true that  law  courts
have overburdened themselves with the litigation and delay  in  disposal  of
matters in the subcontinent is not unknown and in the event of  any  further
appraisal of the matter by this Court,  it  would  brook  no  further  delay
resulting in consequences which are not far to see but that would by  itself
not in my view deter this Court from further appraisal of the matter in  the
event the same, however, deserves such an additional appraisal  —  the  note
of caution sounded by Mr.  Attorney-General  as  regards  opening  up  of  a
Pandora’s box, strictly speaking, however, though may be very  practical  in
nature but the same apparently does not seem to go well with the concept  of
justice as adumbrated in our Constitution. True it is,  that  practicability
of the situation needs a serious  consideration  more  so  when  this  Court
could do without it  for  more  than  50  years,  which  by  no  stretch  of
imagination can be said to be a period not so short. I  feel  it  necessary,
however, to add  that  it  is  not  that  we  are  not  concerned  with  the
consequences of reopening of the issue but  the  redeeming  feature  of  our
justice delivery system, as is prevalent in the  country,  is  adherence  to
proper and effective administration of justice  in  stricto.  In  the  event
there is any affectation of such an administration of justice either by  way
of infraction of natural justice or an order  being  passed  wholly  without
jurisdiction or affectation of public confidence as regards the doctrine  of
integrity  in  the  justice  delivery  system,  technicality  ought  not  to
outweigh the course of justice — the same  being  the  true  effect  of  the
doctrine of ex debito justitiae. The oft-quoted statement  of  law  of  Lord
Hewart, C.J. in R. v. Sussex Justices, ex p McCarthy [(1924) 1 KB 256]  that
it is of fundamental importance  that  justice  should  not  only  be  done,
should manifestly and undoubtedly be seen to  be  done,  had  this  doctrine
underlined and administered therein. In this context, the  decision  of  the
House of Lords in R. v. Bow Street Metropolitan Stipendiary  Magistrate,  ex
p Pinochet Ugarte (No. 2)[(1999) 1 All ER 577(HL)] seems  to  be  an  epoch-
making decision, wherein public confidence in the judiciary is  said  to  be
the basic criterion of the justice delivery system — any act or action  even
if it is a passive one, if erodes or is even likely to erode the  ethics  of
judiciary, the matter needs a further look.”

10.   The principle of ex debito justitiae  is founded on a  recognition  of
a debt that the justice delivery system owes to a  litigant  to  correct  an
error in a judicial dispensation.  Its application, by the  very  nature  of
things, cannot be made to depend on varying perceptions of  legal  omissions
and commissions but such recognition of the debt which  have  the  potential
of opening new vistas  of  exercise  of  jurisdiction  to  relook  concluded
cases, must  rest  on  surer  foundations  which  have  been  discerned  and
expressed in Rupa Ashok Hurra (supra).  Frantic cries of  injustice  founded
on perceived erroneous application of law  or  appreciation  of  facts  will
certainly not be enough to extend the frontiers of this jurisdiction.

11.     The opinion of Syed Shah Mohammed Quadri,  J.  with  regard  to  the
situations in which an aggrieved litigant would be entitled to relief  under
the doctrine of ex debito justitiae has been set out in paragraph 51 of  the
report which may be reproduced herein below:
      “Nevertheless, we think that a petitioner is  entitled  to  relief  ex
debito justitiae if he  establishes  (1)  violation  of  the  principles  of
natural justice in that he was not a party  to  the  lis  but  the  judgment
adversely affected his interests or, if he was a party to the list,  he  was
not served with notice of the proceedings and the matter proceeded as if  he
had notice, and (2) where in the  proceedings  a  learned  judge  failed  to
disclose his connection with the subject-matter or the parties giving  scope
for  an  apprehension  of  bias  and  the  judgment  adversely  affects  the
petitioner.” (para 51)

12.   The said jurisdiction because of its very  nature  has  attracted  the
terminology of curative jurisdiction.  The procedural steps with  regard  to
filing and disposal of  applications  invoking  the  curative  jurisdiction,
termed as curative petitions, have also been laid down in paragraphs 52  and
53 of the report of Syed Shah  Mohammed  Quadri,  J.  in  Rupa  Ashok  Hurra
(supra) which now finds mention  in  Order  XLVIII   of  the  Supreme  Court
Rules, 2013.

13.   The present writ petition under Article  32  of  the  Constitution  of
India by no stretch of reasoning would  fit  into  any  of  the  permissible
categories of post conviction exercises permissible in law as laid  down  by
this Court.  The doctrine of ex debito justitiae being circumscribed by  the
judgment of this Court in Rupa Ashok Hurra (supra) it is for the  petitioner
to exhaust the said remedy, if is he so inclined  and  so  advised.   Merely
because in the comprehension of the writ petitioner  the  judgment  of  this
Court is erroneous would not  enable  the  Court  to  reopen  the  issue  in
departure to the established and settled norms and parameters of the  extent
of permissible exercise of  jurisdiction  as  well  as  the  procedural  law
governing  such  exercise.   We,  therefore,  hold  that  the  present  writ
petition is not maintainable and is accordingly  dismissed  subject  to  the
observations as above.

                                                 ……….....................,J.
                                                              (RANJAN GOGOI)


                                                 ……….....................,J.
                                                          (PRAFULLA C. PANT)


                                                 ……….....................,J.
                                                           (A.M. KHANWILKAR)

NEW DELHI
AUGUST 30, 2016.
-----------------------
[1]        (1994) 3 SCC 569
[2]   (2014) 9 SCC 737
[3]   (2002) 4 SCC 388

PARTITION: Hindu undivided family - Partition -- Effect of -- Held: Once a partition in the sense of division of right, title or status is proved or admitted, presumption is that all joint property was partitioned or divided -- In the instant case, High Court has affirmed the findings of the trial court that in 1985, there was a complete partition and the parties had acted on the same -- Therefore, the presumption would be that there was complete partition of all the properties -- Burden of proof that certain property was excluded from the partition would be on the party that alleges the same to be joint property - High Court committed an error in placing the burden of proof on the appellants, who were defendants in the suit to prove that the property at Sl. No. V was a self-acquired property of their predecessor-in-interest - Findings recorded by High Court on Issue No. III is set aside - Consequently, suit filed by the plaintiffs-respondents shall stand dismissed - Evidence - Burden of proof. HINDU LAW: HUF - Partition -- Presumption -- Explained. A suit for partition between the parties was dismissed by the trial court holding that a family arrangement had taken place in the year 1985, and every one took possession in their respective shares and was enjoying the same. However, in appeal the High Court held that the plaintiffs were entitled to partition of property at Sl. No. V, and set aside the finding of the trail court with regard to issue no.III that the suit property at Sl. No.V was the self acquired property of the predecessor-in-interest of the defendants concerned.

Allowing the appeal, the Court HELD: 1.1 The High Court having accepted the findings of the trial court that there was completed partition between the parties, has committed an error of jurisdiction in putting the burden of proof on the defendants on Issue No. III. [para 15] 1.2 The trial court on appreciation of the entire evidence had concluded that the evidence on record disclosed that the family arrangement alleged to have taken place in the year 1985 in presence of three brothers and by accepting it, every one took possession of their respective shares and was enjoying the same. Their names were also mutated in revenue records. The trial court has rightly concluded that no objections having been taken at the time when the mutation entries were confirmed, the plaintiffs are estopped from saying that the said entries are effected on wrong basis of partition. Further, the plaintiffs sold the land allotted to them, without the consent of defendant Nos. 1 to 12, treating the same to be their exclusive property, and not coparcenary property. [para 16-17] 1.3 On Issue No.III, the trial court has held that property at Sl. No. V was the self-acquired property of the predecessor in interest of the defendants concerned. The High Court has reversed the said findings on the basis that the appellants, who were defendants in the civil suit, had not led any evidence to show that their predecessor-in-interest(ER) had independently purchased property at Sl. No. V. The High Court further held that in this case, a presumption would arise that property at Sl. No. V was joint property, purchased from the income derived from the other joint property, which form the nucleus. The said presumption is wrong in law in view of the fact that the High Court has affirmed the findings of trial court that in 1985, there was a complete partition and the parties had acted on the same. It is a settled principle of law that once a partition in the sense of division of right, title or status is proved or admitted, the presumption is that all joint property was partitioned or divided. Undoubtedly, the joint and undivided family being the normal condition of a Hindu family, it is usually presumed, until the contrary is proved, that every Hindu family is joint and undivided and all its property is joint. This presumption, however, cannot be made once a partition (of status or property), whether general or partial, is shown to have taken place in a family. [para 18-19] Bhagwati Prasad Sah AND OTHERS Vs. Dulhin Rameshwari Kuer AND ANOTHER [1951] 2 SCR 603
Addagada Raghavamma AND ANOTHER Vs. Addagada Chenchamma AND ANOTHER 1964 SCR 933 = AIR 1964 SC 136 = referred to. 1.4 In the instant case, the trial court as well as the High Court has held that there was a complete partition in the year 1985. Therefore, the presumption would be that there was complete partition of all the properties. Consequently, the burden of proof that certain property was excluded from the partition would be on the party that alleges the same to be joint property. High Court clearly committed an error in placing the burden of proof on the appellants, who were defendants in the suit to prove that the property at Sl. No. V was a self-acquired property of ER. The findings recorded by the High Court on Issue No. III is set aside. Consequently, the suit filed by the plaintiffs-respondents shall stand dismissed. [para 21-22] Case Law Reference [1951] 2 SCR 603 referred to para 19 1964 SCR 933 referred to para 20

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3867 OF 2014 (Arising out of SLP (C) No.27916 of 2009) Kesharbai @ Pushpabai Eknathrao Nalawade (D) by LRs. & Anr. … Appellants VERSUS Tarabai Prabhakarrao Nalawade & Ors. ...Respondents J U D G M E N T SURINDER SINGH NIJJAR, J. 1. Leave granted. 2. This appeal has been filed against the judgment and decree dated 23rd March, 2009 of the High Court of Bombay (Aurangabad Bench) rendered in First Appeal No.468 of 2004 whereby the High Court has partly allowed the First Appeal of the plaintiffs/respondent Nos. 1 to 3. 1 Page 2 The High Court has dismissed the suit of the plaintiffs in respect of the agricultural lands and house property at Chikalthan and Neem Dongri. At the same time, the High Court has set aside the judgment of the trial court on Issue No.3 relating to the question as to whether house bearing No.4.13.78 bearing CTS No.4705 admeasuring 138.2 sq. meters alongwith house structure standing therein situated at Nageshwarwadi, Aurangabad is the self acquired property of deceased Eknathrao. 3. The admitted facts are that plaintiff Nos. 1 and 2 to 4 are the wife and children of deceased Prabhakarrao s/o Saluba respectively. Defendant Nos. 7 and 8 to 12 are the wife and children of deceased Trimbakrao s/o Deorao respectively. Defendant Nos. 13 to 15 are the subsequent purchasers of land from the plaintiff. For better understanding of the inter-se relationship between the parties, it would be appropriate to reproduce here the genealogy table of the family, as noticed by the trial court: 2 Page 3 Mahipati Deorao (son) died on Sauba (son) died 15.7.1974 on 6.10.1980 Shewantabai (wife) died Ansabai (wife) died Prabhakar (son) died Eknathrao (Son) Trimbakrao (son) Tarabai Santosh Satish Manisha Died on /11/97 died on 31.5.86 (P-1) (P-2) (P-3) (P- 4) Indubai (wife) D-1 Kamlabai (wife) D-7 Kiran Kranti Asha Jyoti Bharti D-2 D-3 D-4 D-5 D-6 Pramod Vinod Rajendra Vidya Vijaya D-8 D-9 D-10 D-11 D-12 4. The plaintiffs filed a suit for partition and separate possession of half share of the plaintiffs in the following properties :- (I) Agricultural land Gat No.453 whose survey number is 210 adms. 19 acre 1 guntha situated at village Chikalthana Tq. Kannad. (II) Land bearing Gat No.146 of whose survey number is 65 adms. 27 acre 39 gunthas 3 Page 4 situated at Nimdongri Tq. Kannad. (III) House property bearing No.725 adms. 26.39 sq. meters situated at Chikalthana Tq. Kannad. (IV) Open plot bearing CTS No.709 adms. 64.3 squ. meter known as ‘Girnichi Jaga’ situated at Chikalthana Tq. Kannad. (V) House bearing No.4.13.78 of whose CTS No. is 4705 adms. 138.2 sq. meters along with house structure standing thereon situated at Nageshwarwadi Aurangabad. 5. It was claimed that property at Sl.Nos.I and II were jointly purchased by deceased Deorao and deceased Saluba in the name of Deorao. The house at Sl.No.III was said to have been constructed on a plot jointly purchased by the two brothers. Both the brothers were residing in the same house during their life time. With regard to property at Sl.No.V, it was stated that both the brothers had purchased the plot on which the house is constructed. It 4 Page 5 was further claimed that the plot was purchased in the name of Eknathrao and his family was residing in that house. In short, it was claimed that during the life time of Deorao and Saluba, all the properties were jointly cultivated and were jointly enjoyed by all the family members. Trimbakrao was residing at Kannad and Eknathrao was residing at Aurangabad due to their employment. Similarly, Prabhakarrao was in service at different places. It was also the case of the plaintiffs that there was a family arrangement between Eknath, Trimbak and Prabhakarrao. Property at Sl.No.I was allotted to Trimbakrao and Prabhakarrao to the extent of half share each. Similarly, land at Sl.No.II was allotted to Trimbakrao (7 acres) and to Prabhakarrao (6 acres and 39 gunthas). Eknathrao was allotted 14 acres. After the family arrangement, it was alleged that everyone was in possession of the respective parts of land and their names were entered in the revenue record. It is the further claim of the plaintiffs that in the same family arrangement house at Sl.No.III was given in possession of Trimbakrao 5 Page 6 and Prabhakarrao to the extent of half share each. Eknathrao was put in possession of the entire open space known as ‘Girnichi Jaga’. It was specifically pleaded that house at Sl.No.V (hereinafter referred to as Nageshwarwadi Property) was not part of the family arrangement. It was exclusively in possession of the deceased Eknathrao and now in possession of petitioners herein, defendant Nos. 1 and 2 in the suit. 6. The plaintiffs also claimed that Prabhakarrao during his life time did not raise any objection with regard to the unequal allotment in the share of the joint properties in the family arrangement. It was stated that Prabhakarrao was an alcoholic and, therefore, remained under the domination of the petitioners. It is also admitted in the plaint that after the death of Prabhakarrao, out of necessity to survive, certain agricultural lands are sold by the plaintiffs to defendant No.13 to 16. This was necessary to clear up the dues of the co-operative societies and hand loan of other relatives taken by the 6 Page 7 deceased Prabhakarrao. After the death of Prabhakarrao, the plaintiffs claimed to have requested the petitioners i.e. defendants to undo the injustice done to Prabhakarrao at the time of the family arrangement. Instead of partitioning the joint properties equitably, it was claimed that after the death of Eknathrao, defendant No.1 to 12, which include petitioner No.1 and 2, were trying to enter their names in the revenue records with regard to the Nageshwarwadi Property at Aurangabad. Since the defendants had declined the request for partition, the plaintiffs were constrained to file the suit. 7. In the written statements filed by the defendants, it was pointed out that there was no ancestral joint family nucleus to purchase the agricultural lands and the house at Sl.No.III. It is further claimed that the suit properties are not coparcenery properties in which Deorao and Saluba had equal shares. It was contended that at the most property can be deemed as a joint property of Deorao, Saluba, Eknathrao and Prabhakarrao. It was also claimed that the partition of the suit property had taken place on 7 Page 8 22nd April, 1985, the respective shares were allotted, and final distribution of the property was made. It was contended that the partition having been completed, the suit ought to be dismissed. On the basis of the pleadings of the parties, the trial court framed 8 issues. The trial court records the issues and the findings as follows:- ISSUES FINDINGS 1. Do plaintiffs prove that the suit Properties are the joint family Properties? In Negative 2. Do defendants prove that there Was already partition on 22.4.85 And all shares holders are in Possession of their respective Shares? In affirmative 3. Do they further prove that suit Property mention at Sr.No.5 is self acquired property of deceased Eknath? In affirmative 4. Whether suit is maintainable? In affirmative 8 Page 9 5. Whether the suit is barred by limitation? In negative 6. Whether plaintiffs are entitled to partition and possession of half share in the suit properties? In negative 7. Whether plaintiffs are entitled to future mesne profit? In negative 8. What decree and order? As per final order. On the basis of the aforesaid findings, the suit of the plaintiffs was dismissed with costs. 8. Aggrieved by the aforesaid judgment and decree, the plaintiffs filed First Appeal No.468 of 2004 before the High Court. The High Court formulated the points for consideration in appeal which are as follows: (i) Whether the property at Nageshwarwadi, Aurangabad is self-acquired property of Eknathrao and as such is not liable for partition? 9 Page 10 (ii) Whether the transaction entered into on 22.4.1985 by Eknathrao, Trimbakrao and Prabhakarrao was family arrangement not amounting to partition? (iii) Whether Civil Application No.10005 of 2007 filed for filing additional evidence should be allowed and in case it is allowed can the partition list dated 22.4.1985 be admitted in evidence? 9. Upon consideration of the entire material, the High Court has answered point No.(i) in the negative and Point Nos.2 and 3 in the affirmative. As a result of the aforesaid findings, the suit in respect of agricultural lands and house property at Chikalthan and Neem Dongri has been dismissed. However, the plaintiffs/respondent Nos. 1 to 3 are held to be entitled to partition of Nageshwarwadi House at Aurangabad. It has been further directed that the respondents who are legal representatives of deceased Prabhakarrao are entitled to half share on the one hand and the remaining half share is to be divided 1 Page 11 equally by the petitioners and respondent No.1 to 6 on the other. 10. Aggrieved by the aforesaid judgment of the High Court, the petitioners who were defendants in the suit have filed the S.L.P. (C) No.27916 of 2009 giving rise to the present appeal. 11. We have heard the learned counsel for the parties. 12. Mr. Shekhar Naphade, learned senior counsel appearing for the appellants submitted that in Paragraph 25 of the impugned judgment, the High Court has accepted the fact that there was a complete partition between the parties. The High Court has held that the family arrangement amounts to final distribution of property amongst sharers. Plaintiffs themselves have also treated the property allotted to them as their exclusive property. Treating the property allotted to their share as their exclusive property, they have sold some portions of the land to respondent Nos. 13 to 16. The High Court also held that the plaintiffs 1 Page 12 are estopped from challenging the existence and validity of the partition effected in the year 1985. The High Court even held that they are not entitled to fresh partition of the properties which were admittedly covered by the partition of 1985. Mr. Naphade submitted that having held that there was a final partition between the parties, the High Court committed an error of jurisdiction in reversing the findings recorded by the trial court on Issue No.III. According to Mr. Naphade, the High Court has wrongly placed the burden of proof on the petitioners, who were defendants in the suit to prove that Nageshwarwadi property was self-acquired property of Eknathrao. Learned senior counsel also submitted that the High Court ignored the evidence produced by the parties, which would establish that the parties had always treated the Nageshwarwadi property as the self-acquired property of Eknathrao. 13. On the other hand, learned counsel appearing for the respondents has submitted that the trial court had wrongly decided the Issue No.III against the plaintiffs. The 1 Page 13 defendants (petitioners herein) have failed to prove that Eknathrao had sufficient independent income to have acquired the Nageshwarwadi property. It is submitted that although the defendants had claimed that Eknathrao was employed with the Indian Army, no proof with regard to the employment was produced. 14. We have considered the submissions made by the learned counsel for the parties. 15. Mr. Naphade is quite correct in his submission that the High Court having accepted the findings of the trial court that there was completed partition between the parties, has committed an error of jurisdiction in putting the burden of proof on the defendants on Issue No. III. 16. The trial court on appreciation of the entire evidence had concluded that “the evidence on record discloses that as contended, family arrangement alleged to have taken place in the year 1985 in presence of three brothers and by accepting it, every one took possession of their respective shares and was enjoying the same. Not only this but their names were mutated to revenue records. 1 Page 14 Everything was done in presence of deceased brother.” 17. The trial court also finds that mutation entry bearing No.726 and No. 1116 were effected on the strength of the partition deed dated 22nd April, 1985. Furthermore, the mutation entries were confirmed by issuing notices to the parties. It was specifically noticed on the mutation entries that no objection was taken by any of the parties. The trial court, in our opinion, has rightly concluded that no objections having been taken at the time when the mutation entries were confirmed, the plaintiffs are estopped from saying that these entries are effected on wrong basis of partition. Noticing the conduct of the parties, even further, the trial court held that the plaintiffs by selling the land allotted to them, treating the same to be their exclusive property. This property was sold without the consent of defendant Nos. 1 to 12. Thus treating the same to be their exclusive property and not coparcenary property. 1 Page 15 18. On Issue No.III, the trial court has held that there is no evidence except the bare words of the plaintiffs to show that Nageshwarwadi property is purchased by the deceased Deorao and deceased Saluba in the name of Eknathrao. The trial court, in our opinion, has correctly held that all the other joint property had been purchased either in the name of Deorao or deceased Saluba. There was no explanation as to why the property at Nageshwarwadi was purchased by them exclusively in the name of Eknathrao. On the basis of the evidence, the trial court found that Eknathrao was residing exclusively in the aforesaid property. At that time Prabhakarrao himself was living in rented premises. No explanation is given as to why Prabhakarrao was not living in the aforesaid house, in case, it was joint property of Eknathrao and Prabhakarrao. The trial court also noticed that it was not only Nageshwarwadi property, which was not made part of the partition but also the house of Trimbakrao at Kannad was kept outside partition. The trial court also held that Eknathrao had independent means to purchase 1 Page 16 Nageshwarwadi property. He was employed with the Military as a Head Clerk from 1944 to 1956. On the basis of the entire evidence, the trial court came to the conclusion that Nageshwarwadi property was the selfacquired property of Eknathrao. The High Court had reversed the aforesaid findings on the basis that the petitioners, who were defendants in the civil suit had not led any evidence to show that Eknathrao had independently purchased Nageshwarwadi property at Aurangabad. The High Court has reversed the findings of the trial court on the basis that petitioners have failed to prove that Eknathrao was working in the Ammunition Factory, Khadki, Pune from 1944 to 1956. The High Court further held that in this case, a presumption would arise that Nageshwarwadi property was joint property, purchased from the income derived from the other joint property, which form the nucleus. Therefore, it was for the petitioner to prove that Nageshwarwadi property was acquired without the aid of the joint family. 1 Page 17 19. In our opinion, the aforesaid presumption is wrong in law in view of the fact that the High Court has affirmed the findings of the trial court that in 1985, there was a complete partition and the parties had acted on the same. It is a settled principle of law that once a partition in the sense of division of right, title or status is proved or admitted, the presumption is that all joint property was partitioned or divided. Undoubtedly the joint and undivided family being the normal condition of a Hindu family, it is usually presumed, until the contrary is proved, that every Hindu family is joint and undivided and all its property is joint. This presumption, however, cannot be made once a partition (of status or property), whether general or partial, is shown to have taken place in a family. This proposition of law has been applied by this court in a number of cases. We may notice here the judgment of this Court in Bhagwati Prasad Sah & Ors. Vs. Dulhin Rameshwari Kuer & Anr.1 , wherein it was inter alia observed as under: 1 [1951] 2 SCR 603 1 Page 18 “8. Before we discuss the evidence on the record, we desire to point out that on the admitted facts of this case neither party has any presumption on his side either as regards jointness or separation of the family. The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved, but where it is admitted that one of the coparceners did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. There is no presumption on the other side too that because one member of the family separated himself, there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other co-parceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief.” 20. This principle has been reiterated by this Court in Addagada Raghavamma & Anr. Vs. Addagada Chenchamma & Anr.2 21. In this case, the trial court as well as the High Court has held that there was a complete partition in the year 1985. Therefore, the presumption would be that there was 2 AIR 1964 SC 136 1 Page 19 complete partition of all the properties. Consequently, the burden of proof that certain property was excluded from the partition would be on the party that alleges the same to be joint property. Therefore, in our opinion, the High Court clearly committed an error in placing the burden of proof on the petitioners, who were defendants in the suit to prove that the Nageshwarwadi property at Aurangabad was a self-acquired property of Eknathrao. 22. In view of the aforesaid, we allow the appeal and set aside the findings recorded by the trial court on Issue No. III. The judgment of the Trial Court is confirmed on Issue No. III also. Consequently, the suit filed by the plaintiffs (respondents herein) shall stand dismissed. ……………………………….J. [Surinder Singh Nijjar] ………………………………..J. [A.K.Sikri] New Delhi; March 14, 2014. 1 Page 20 2 Page 21

Hindu Law: Joint family properties - Partition of through family settlement - Sisters relinquishing their rights in properties in favour of their brothers - Consent decree based on family settlement - HELD: A partition by meets and bounds may not always be possible - A family settlement is entered into for a larger purpose of achieving peace and harmony in the family - It is not a case where settlement was contrary to any statutory provision or was opposed to public policy - Court shall apply the statute to uphold a compromise unless it is otherwise vitiated in law - Contract Act, 1872 - s.23. Deeds and Documents: Deed of `release' - Relinquishment of right in property by sisters in favour of their brothers - HELD: Release by an heir other than coparcener does not need any consideration - s. 25 of Contract Act must be read and construed having regard to the fact situation obtaining in the case - Renunciation in Indian context may be or may not be for consideration - Contract Act, 1872 - s.2 (d) and 25 - Transfer of Property Act, 1882 - ss. 122 and 123. Contract Act, 1872: ss. 17 and 19 - `Fraud' - Voidability of agreement - Suit by sisters against their brothers and other sisters alleging fraud in obtaining consent decree in an earlier partition suit - HELD: When a fraud is alleged, particulars thereof are required to be pleaded - In the instant suit, no particulars of alleged fraud or misrepresentation have been disclosed - Besides, documents on record show that partition consequent upon consent decree had been acted upon - Papers were signed either in office of advocate or before Sub-Registrar - Both the courts below recorded a finding that the sisters had jointly taken a stand that they would not claim any share in properties - No case of fraud or misrepresentation has been made out - Code of Civil Procedure, 1908 - Or. 6, r.4. Limitation Act, 1963: Schedule - Articles 59, 65 and 110 - Suit alleging fraud in obtaining deed of partition - Limitation - HELD: Applicability of Article 59 would depend upon the question as to whether deed of partition was required to be set aside or not - In the instant case, it was required to be set aside - In view of Article 59, suit was barred by limitation. The plaintiffs-appellants, two sisters, filed Suit No. 1760 of 1990 against their brothers defendants-respondents Nos.1 and 2 and other sisters for partition of the suit properties on the ground that the same were self acquired properties of their father, `KS'. It was also stated that the two brothers defendants-respondents no.1 and 2 acted fraudulently in getting the Power of Attorneys from them and obtaining a consent decree in earlier partition suit No. 2459 of 1982. The stand of the defendants-respondents nos. 1 and 2 was that their father `KS' alongwith other family members came to acquire the properties through a partition of joint family properties effected in the year 1957. `KS' had two wives namely `S' and `V' and in Partition Suit No. 2459 of 1982 the properties were further divided half and half between the two branches of `KS' by a consent decree passed in terms of a compromise. Pursuant to the said compromise decree, a further deed of partition was executed on 5.8. 1983 (Ext. D-6) amongst the children of `KS' from `S' in terms whereof 1/3 share in the property shown as Item No.3 was allotted to their mother `S' and rest of the properties were retained by the two brothers, defendants-respondents nos.1 and 2, in whose favour the sisters relinquished their right in the property out of love and affection. `S' died on 10.9.1983. Defendants-respondents no. 1 and 2 pleaded that the suit without prayer for cancellation of partition deed was not maintainable and was also barred by limitation. The trial court dismissed the suit. However, it held that the two plaintiffs and defendants 1 to 8 were entitled to 1/33 share each in Item No.2 of the suit properties. In the appeal the plaintiffs filed an application under Or.6 r.17 read with s. 151 of the Code of Civil Procedure, 1908 seeking amendment to the plaint stating that some more properties belonging to their father were also available for partition and the same were required to be added as Items nos. 5 and 6 to the Schedule of the properties. The High Court dismissed the appeal. In the instant appeal filed by the two plaintiffs it was contended for the appellants that the averments made in Suit No. 2459 of 1982 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 that the deed of partition and the deed of relinquishment being void ab initio and 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 and, as such, it was not necessary to pray setting aside of the deeds of partition and relinquishment that the partition of the properties being unfair and unequal, reopening of the partition was permissible, wherefor also it was not necessary to seek cancellation of the documents that in the facts and circumstances of the case, Article 65 or Article 110 of the Schedule to the Limitation Act would be attracted and not Article 59 thereof.

Dismissing the appeal, the Court HELD: 1.1 The source of title in respect of properties in suit is not in question, as the same have all along been treated as joint family properties by both the branches of `KS' through his two wives `S' and `V'. This is evident from the records of O.S. No. 2459 of 1982. The fact that in the said suit, the properties of `KS' were described as the joint family coparcenary properties is not in dispute. Even otherwise, in view of the well-settled principle 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. [para 23 and 26] [323-A,F,G. 326-A,B] Mst. Rukhmabai v. Lala Laxminarayan and Others 1960 (2) SCR 253 - relied on. 1.2 The earliest deed of partition dated 22nd July, 1957 was a registered document. A perusal of the averments made in the plaint categorically goes to show that the partition referred to therein related to the partition effected in 1957. The admissions made by the appellants in their pleadings in Suit No. 1760 of 1990 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. [para 25] [325-D,F,G] 1.3 It may be true that although the properties were described as coparcenary properties 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. [para 24] [324-E,F] Hari Shankar Singhania and Others v. Gaur Hari Singhania and Others (2006) 4 SCC 658
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 - relied on. 1.4 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 was passed on the premise that the said compromise was lawful, the same cannot be permitted to be reopened only on the question as to whether the properties were joint properties or self-acquired properties of the common ancestor. A consent decree was passed in Suit No. 2459 of 1982 pursuant to a settlement arrived at between the two branches. The properties were divided half and half through a deed of partition (Ext. D-6). Indisputably, the said consent decree has been acted upon and ten sale deeds and some lease deeds have been executed and, therefore, question of reopening entire Suit No. 2459 of 1982 by setting aside the decree passed therein would not arise. [Para 23 and 39] [323-G, 324-A,B, 336-B,C,D] 2.1 In the instant case, the basis for the entire suit being commission of fraud in obtaining the consent decree in suit No. 2459 of 1982, it was obligatory on the part of the plaintiffs in Suit No. 1760 of 1990 to pray for setting aside the said decree. The pleadings of the appellants in the 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. When a fraud is alleged, as provided in Order 6, r.4, Code of Civil Procedure, 1908, the particulars thereof are required to be pleaded. In suit No. 1760 of 1990 no particulars of the alleged fraud or misrepresentation have been disclosed. The plea of fraud raised therein 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 representations. When such representations were made, what was the nature of representations, who made the representations and what type of representations were made, have not been stated. [para 23, 35-36] [324-C,D, 331-D,E,F,G] A.C. Ananthaswamy v. Boraiah (2004) 8 SCC 588 - relied on. 2.2 If a fraud or misrepresentation is to be attributed, the same must be attributed to the entire family representing both the branches and not to respondent No.1 alone. 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. [para 25] [325-G, 326-A] 2.3 Before the deed of partition was entered into, on 15th July, 1983 a special power of attorney was executed by plaintiff no.2 in favour of respondent No.1. A clear recital was made therein that she had agreed to relinquish her interest and the power of attorney was being executed pursuant thereto. Power of attorney need not necessarily be preceded by a regular deed. 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. A power of attorney need not disclose the purpose for which the relinquishment is made or the consideration thereof. [para 28-29] [326-D,E,F,G,H] 2.4 Section 19 of the Contract Act 1872 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. [para 33] [330-A,B] Prem Singh v. Birbal and Others (2006) 5 SCC 353 - relied on. 2.5 In the plaint of Suit No. 1760 of 1990, execution or validity of the documents 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. There are a large number of documents brought on record by the parties wherefrom a positive knowledge of execution of the partition deed (Ext. D-6) on the part of the sisters is possible to be attributed. These documents in categorical terms go to show that the partition effected in 1983 had been acted upon. 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. Plaintiff-appellant No. 1 in her deposition before the trial court admitted that each of the sisters had been given one rupee and their signatures were obtained on the partition deed dated 5th August, 1983. She was fluent in English and signed the documents in English. 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 executed with the knowledge that they had been signing the deed of partition and no other document. The plaintiff-appellants never stated that any fraud or misrepresentation had been practiced in regard to the character of the documents. No case of fraud or mis-representation has been made out. It was, therefore, difficult to arrive at a conclusion that the plaintiffs-appellants were not aware of the nature of the document or that any fraud had been practiced on them. These 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 misrepresentation on the part of respondents Nos. 1 and 2. It is a well-settled principle of law that a void document is not required to be avoided whereas a voidable document must be. [para 29-32, 37 and 54] [327-D-F, 329-E,F 332-A-D, 343-F] Prem Singh v. Birbal and Others (2006) 5 SCC 353 - relied on. 3. It is 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 Contract Act. The court shall apply the statute for 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. [para 40] [336-D,E,F] Chief Engineer, M.S.E.B. and Another v. Suresh Raghunath Bhokare (2005) 10 SCC 465
Ramesh B. Desai and Others v. Bipin Vadilal Mehta and Others (2006) 5 SCC 638
Sangramsinh P. Gaekwad and Others v. Shantadevi P. Gaekwad (Dead) Through LRs. and Others (2005) 11 SCC 314 - relied on. Sundar Sahu Gountia and others v. Chamra Sahu Gountia and others AIR 1954 Orissa 80 - held inapplicable. Ganpatbhai Mahaijibhai Solanki v. State of Gujarat and Ors. 2008 (3) SCALE 556 - referred to. 4.1 A deed of `release' for a consideration is a transaction. When, a release is made for consideration, the particulars of consideration and other particulars 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 Contract Act must be read and construed having regard to the fact situation obtaining in the cases. Renunciation in Indian context may be for consideration or may not be for consideration. [para 43 and 45] [337-D,E,F, 338-E] Smt. Manali Singhal and another v. Ravi Singhal and others AIR 1999 Delhi 156
Kuppuswamy Chettiar v. A.S.P.A. Arumugam Chettiar and Another (1967) 1 SCR 275
Chief Controlling Revenue Authority, Referring Officer v. Rustorn Nusserwanji Patel AIR 1968 Madras 159
The Chief Controlling Revenue Authority, Board of Revenue, Madras v. Dr. K. Manjunatha Rai AIR 1977 Madras 10- referred to. De' Souza's Conveyancing, page 1075 - referred to. 4.2 Section 25 of the 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 natural love and affection. The deed of partition is both in writing and registered. 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 in her deposition. [para 47] [340-C,D,E] 4.3 Assuming that the consideration of rupee one shown in the deed of partition is no consideration in the eye of law. However, a partition deed 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. Validity of the partition deed (Ex. D-6) by reference to the recitals of the release of shares by other daughters has not been questioned. The parties knew the nature of the document. Appellants and other sisters being highly educated were supposed to 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 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. [para 44 and 48] [338-B,C,D, 340-F,G, 341-A] 4.4 The High Court, therefore was correct in not allowing the appellants to raise the plea of consideration. As defined in s.2(d) of the Contract Act, 1872, consideration, even in the Indian context would mean a reasonable equivalent or other valuable benefit passed on by the promiser to the promisee 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. [para 51 and 53] [342-C,D, 343-D] Mt. Latif Jahan Begam v. Md. Nabi Khan AIR 1932 Allahabad 174
Gauri Shanker v. M/s. Hindustan Trust (Pvt.) Ltd. and Others (1973) 2 SCC 127
M/s. John Tinson and Co. Pvt. Ltd. and others v. Mrs. Surjeet Malhan and another AIR 1997 SC 1411 - referred to. Bhikhubhai Vithlabhai Patel & Ors. v. State of Gujarat & Anr. 2008 (4) SCALE 278 - Distinguished. 5. Applicability of Article 65 or Article 110 of the Limitation Act, 1963 on the one hand, and Article 59 thereof, on the other, would depend upon the factual situation involved in a case. A decree for setting aside a document may be sought for in terms of Section 31 of the Specific Relief Act, 1963. 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 the instant case, 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. In view of Article 59 of the Limitation Act, the suit was barred by limitation. [para 57] [344-G, 345-B,C,D,E] Prem Singh v. Birbal and Others (2006) 5 SCC 353
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 - referred to. G.V. Chandrasekhar, N.K. Verma and Anjana Chandrashekar for the Appellants. S.S. Javali, T.N. Rao, S. Balaji, Madhusmita, V.H. Ron and Gurudatta Ankolekar for the Respondents.


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 J U D G M E N T S.B. SINHA, J. 1. Leave granted. 2. This appeal is directed against the judgment and order dated 21 st 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 27 th 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. 1 We may, at the outset, notice the genealogical tree of the family which is as under :- Children of the 1st Wife Children of the 2 nd Wife 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 No.2 3. Smt. Bhagyalakshmi 4. Smt. Lakshmi Devi, Deft. No.4 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 8. Sri Sreenivasa Pasad 9. Smt. Seethqalakshmi, Deft. No.6 9. Smt. Padmavathi 10. Smt. Bharathi, Deft. No.7 11. Smt. Kum. Shoba, Deft. No.8 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 2 Kasetty Rangappa Widow Smt. Naramma Smt. Venkatamma Lakshamamma Naramma 2 nd wife K. Sreeni K. Harida Salu K.R. Venkatesulu K.R. Sreenivasulu Smt. Singaramma 1 st wife Smt. Venkatalakshamma 2 nd wife. 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 27 th December, 1970. The family allegedly continued 3 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 4 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 :- 5 “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. 6 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 4 th defendant in favour of Singaramma 10. A deed of partition was executed on 5 th August, 1983 in terms whereof Singaramma was allotted 1/3rd share in item No.3 and rest of the 7 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 10 th 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 1/11 th . 8 12. Indisputably, again a deed of lease was executed by plaintiffappelalnt 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 1/10 th 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 :- 9 “6 The said power of attorney was got executed by playing a fraud on the 2 nd 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 22 nd June, 1957. It was 10 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? 11 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 12 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. 13 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. 14 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 misrepresentation 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 15 purported deed of partition dated 2 nd July, 1957 and the other deeds including the Power of Attorney executed by the 4 th 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. 16 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 17 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. 18 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, 19 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 20 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, misrepresentation on their part particularly when they had admitted their knowledge about the nature of the document. 21 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 1/3 rd 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. 22 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 23 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. 24 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 25 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 2 nd 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 26 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. 27 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 28 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 5 th 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 29 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 5 th 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. 30 (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 31 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 onethird 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 1/11 th 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. 32 (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 33 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 34 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: 35 “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 36 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 37 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 SubRegistrar’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 farfetched 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. 38 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)] 39 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.” 40 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. 41 (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 42 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 43 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: 44 “(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 45 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: 46 “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 47 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…” 48 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 49 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 50 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 51 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 52 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. 53 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 54 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 1/3 rd 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. 55 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 instrument or decree or for the rescission of a contract. Three years When the facts entitling the plaintiff to have the instrument or decree 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. 56 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; 57 May 16 , 20 0 8 58