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PETITIONER: KUPPUSWAMY CHETTIAR

       Vs.

RESPONDENT: A.S. P. A. ARUMUGAM CHETTIAR AND ANOTHER

DATE OF JUDGMENT: 06/09/1966

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. WANCHOO, K.N. SHAH, J.C.

CITATION:  1967 AIR 1395            1967 SCR  (1) 275

ACT: Transfer  of Property Act, 1882, s.  123-Registered  Release Deedexecuted without consideration in presence of more  than two  witnesses-Whether effectively passes title-Whether  can only  enlarge interest of releasee-Or transfer title to  one having no title.

HEADNOTE: By a will made in August 1931, P, who was the grandfather of the respondents, bequeathed certain immovable properties  to his  paternal  uncle’s  daughter K.  In  January  1952,  the respondents  instituted  a  suit  against  several   persons including  K  challenging  inter alia the  validity  of  the bequest  made by P. In February 1952 K died leaving  as  her heir  the .appellant who was, her husband’s  brother’s  son. On  February  25,  1952, the appellant executed  a  deed  in favour  of the respondents, releasing the  suit  properties, including  certain outstanding due from third  parties,  and ,this  deed  was  registered  on  February  26,  1952.   The respondents  there.upon filed an ’application in their  suit asking  for an order that in view of the release  deed,  the properties  covered by it be removed from the scope  of  the suit   and   the  plaint  amended  accordingly;   and   this application was allowed by the Court. In  January 1955, the appellant instituted the present  suit asking  for  a  decree setting aside  the  release  deed  of February  1952  on  the  ground  that  it  was  vitiated  by misrepresentation,  fraud, deceit and undue  influence.   He also alleged that the deed being a deed of release could not take  effect  as a conveyance and did not  effectively  pass title  to the properties.  The trial Court decreed the  suit holding that the deed was procured by misrepresentation  and also  that  it did not effectively  convey  the  properties. However,  the High Court, in -appeal, set aside the  finding of the trial Court and dismissed the suit. In  the  appeal to this Court it was also  contended,  inter alia,  on behalf of the appellant, that a release  can  only enlarge an existing title of the release and there can be no release  in favour of a releasee who has no interest in  the property. HELD  :  (i)  On  the facts, the  appellant  had  failed  to

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establish that the deed was procured by misrepresentation. (ii) The  release  deed  clearly  showed  an  intention   to transfer title and its operative words sufficiently conveyed the  title.  As the release was without  any  consideration, the  deed, 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. [278 C-E] T.   Mammo  v.  K.  Ramunni, A.I.R.  1966  S.C.R.  33,  340: followed. (iii)     In  the present case the deed was in favour  of  a person having no interest in, the property and it could  not take effect as an enlargement of an existing estate.  It was intended  to  be and was a transfer of  ownership.   A  deed called  a deed of release can, by using words of  sufficient amplitude, transfer title to one having no title before  the transfer.[279 C-D] Hutchi Gowder v. Bheema Gowder, [1959] 2 M.L.J. 324; 337; S.   P. Chinnathambiar  v. V. R. P. Chinnathambiar, (1953] 2  M.L.J. 387, 391  : distinguished. 276

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 521 of 1964. Appeal from the judgment and decree dated December 12,  1960 of the Madras High Court in Appeal Suit No. 8 of 1957. C. B. Agarwala, T. R. Ramachandran and 0. C. Mathur, for the  appellant. S. V. Gupte, Solicitor-General and R. Ganap thy Iyer, for the  respondents. The Judgment of the Court was delivered by Bachawat, J. In this appeal, the question is whether a  deed of  release was vitiated by misrepresentation, and if,  not, whether  it operated as a conveyance of the suit  properties in  favour  of the respondents.  By a will dated  August  9, 1931, their grandfather Ponnuswami bequeathed the  immovable properties to his paternal uncle’s daughter, Kannammal.   In January,  1952,  the respondents instituted O.S. No.  24  of 1953 against several persons including Kannammal challenging inter  alia the validity of the bequest made by  Ponnuswami. On February 1, 1952, Kannammal died leaving as her heir  the appellant who was her husband’s brother’s son.  On  February 25, 1952, the appellant executed a deed, Ex.  B-1, in favour of the respondents releasing the suit properties  including. certain outstanding due from third parties.  On February 26, 1952,  the  deed  was registered.  On  the  same  date,  the respondents  filed  an application in O.S. No.  24  of  1953 asking  for  an order that in view of the release  deed  the properties  be  removed from the scope of the suit  and  the plaint be amended accordingly.  This application was allowed by  the  Court.   On  January  22,  1953,  the   respondents instituted  O.S. No. 174 of 1953 for the recovery of one  of the  outstandings mentioned in the release deed against  the debtors.  They implement the appellant as a defendant to the suit, and stated that in view of the release deed they  were entitled to recover the debt.  The appellant filed a written statement alleging that the release deed was invalid and the suit  was  not maintainable.  The suit was  decreed  by  the Munsif.  On January 31, 1955, the appellant, instituted  the present suit asking for a decree for setting aside Ex.  B-1, recovery  of the suit properties and accounts.  tie  alleged that  Ex.   B-1 was vitiated  by  misrepresentation,  fraud, deceit and undue influence.  His main contention was that he

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was  induced to execute the deed on the representation  that it  was a power-of-attorney authorising the  respondents  to manage the properties on his behalf.  He also submitted that Ex.  B-1 being a deed of release could not take effect as  a conveyance.   The  respondents disputed  these  contentions. The  trial Court held that though the release deed  was  not vitiated  by  fraud,  deceit  or  undue  influence,  it  was procured by misrepresentation and 277 also that ’it did not effectively convey the properties.  On these findings, the trial Court decreed the suit.  The  High Court  set  aside  the  findings  of  the  trial  Court  and dismissed the suit.  The appellant now appeals to this Court on a certificate granted by the High Court. The High Court held, and in our opinion rightly, that Ex. B- 1  was not vitiated by misrepresentation and  the  appellant was  well aware of the nature of the deed when  he  executed it.  The appellant is somewhat deaf of hearing.  But he is a wealthy  and shrewd moneylender and capable of managing  his affairs.   He took the draft of the deed to his  own  lawyer and  after obtaining legal advice, executed it.  He  himself presented  the  deed  for  registration.   He  received   no consideration  for  the  release, but the.  motive  for  the release  was  the pending litigation and the fact  that  the properties   originally  belonged  to  the  family  of   the respondents.  Having regard to the release, the  respondents immediately  applied in the pending suit for removal of  the properties   from  the  scope  of  the  suit  and  for   the consequential amendment of the plaint.  After the  execution of  the  deed, the appellant never asked for  accounts,  nor cared  to  ascertain how the respondents were  managing  the properties.   In the written statement filed in O.S.  No.174 of  1953, he took the plea that the deed of release did  not effectively  pass title to the outstandings, but he did  not then  say  that it was vitiated by  misrepresentation.   His present plea that the deed was inducted by misrepresentation is  an afterthought.  In agreement with the High  Court,  we accept  the testimony of the respondents’ witnesses  and  we reject the evidence of the appellant and P.W. 2. The onus is upon    the   appellant   to   establish   the    plea    of misrepresentation.  He has failed to establish this plea. Counsel  next submitted that Ex.  B-1 being a  release  deed could not operate as a conveyance.  Exhibit B-1 was styled a deed  of release.  The Paper Book does not show  whether  it was stamped as a release or as a conveyance.  After reciting that Kannammal was the owner of the properties and she  died leaving the appellant as her heir, the operative part of the deed stated :               "I  hereby  execute  a release  deed  in  your               favour  to the effect that I do not claim  any               huq   or  right  whatever  in  the   immovable               properties mentioned hereunder valued at about               Rs. 12,000 and in the outstandings to the tune               of  Rs. 8,000 due by others in all Rs.  20,000               (twenty thousand) and all the rights that have               been  accrued to me under the Hindu law.   You               yourself  shall  hold and  enjoy  undisputable               with  absolute  rights under the  huq  release               deed  executed  by me the entire  movable  and               immovable   properties   belonging   to    the               aforesaid  Kannammal and all  the  outstanding               due to her from outsiders.  I have not               278               received  any consideration whatever  for  the               said release deed."

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             The  question is whether Ex.  B-1 on its  true               construction   conveyed  properties   to   the               respondents.   In T. Mammo v.  K.  Ramunni(1);               this Court held :               "  a  registered instrument styled  a  release               deed  releasing the right, title and  interest               of the executant in any property in favour  of               the  releaser for valuable  consideration  may               ,operate  as  a conveyance,  if  the  document               clearly  discloses  an intention to  effect  a               transfer". In   the   present  case,  the  release  was   without   any consideration.   But  property may  be  transferred  without consideration.  Such a transfer is a gift.  Under s. 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-1 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. There were two sets of attesting witnesses to Ex.  B-1.   At first,  the deed consisted of four sheets, and it  was  then attested   by  eight  witnesses.   Later,  a   fifth   sheet mentioning  the boundaries of the properties was added,  and this  sheet  was attested by four witnesses.   Five  of  the first  eight witnesses gave evidence at the trial.   Counsel submitted  that  none of the last four  attesting  witnesses gave evidence and having regard to s. 68 of the Indian  Evi- dence  Act, 1872, the execution of Ex.  B-1 was not  proved. There  is  no force in this contention.  The point  was  not raised  in the Courts below.  There is nothing to show  that any  of the last four attesting witnesses was alive, or  was subject to the process of the Court during the trial of  the suit.   The name of one of these witnesses cannot  be  read, and  it is not clear whether he figured as a witness at  the trial.  Moreover-, in his deposition, the appellant  clearly admitted that he signed Ex.  B-1 and the attestors  attested the  document.   We  are satisfied that Ex.   B-1  was  duly proved. Counsel  next submitted that a release can only enlarge  and existing title of the releasee, and there can be no  release in favour of a releasee who has no interest in the property. He relied on the (1) A.I.R.1966S.C.337,340.                             279 following observation in Hutchi Gowder v. Bheema Gowder  (1) "A  release  deed can only feed title  but  cannot  transfer title" and another observation in S. P. Chinnathambiar v. V. R. P. Chinnathambiar (2), "Renunciation must be in favour of a person, who had already title to the estate, the effect of which  is only to enlarge the right.  Renunciation does  not vest  in  a person a title where it did not exist.  Now,  it cannot  be disputed that a release can be usefully  employed as  a  form of conveyance by a person having some  right  or interest  to  another having a limited estate,  e.g.,  by  a remainderman  to  a tenant for life, and  the  release  then

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operates  as an enlargement of the limited estate.   But  in this case, we are not concerned with a release in favour  of the  holder  of  a limited estate.  Here, the  deed  was  in favour  of a person having no interest in the property,  and it  could not take effect as an enlargement of  an  existing estate..  It  was  intended  to be and  was  a  transfer  of ownership.   A deed called a deed of release can,  by  using words of sufficient amplitude, transfer title to one  having no  title  before the transfer.  The cases  relied  upon  by counsel  are  not authorities for the proposition  that  the operative words of a release deed must be ignored.  In S. P. Chinnathambiar’s case (2), the document could not operate as a transfer, because a transfer was hit by s. 34 of the Court of  Wards Act, and viewed as a renunciation of a  claim,  it could  not vest title in the release.  In Hutchi  Gowder  v. Bheema  Gowder(1),  the question was whether a  covenant  of further  assurance  should  be  enforced  by  directing  the defendant to execute a release deed or a deed of conveyance, and the Court held that the defendant should execute a  deed of conveyance.  These decisions do not lay down that a  deed styled  a deed of release cannot, in law, transfer title  to one who before the  transfer   had   no  interest   in   the property. In the result, the appeal is dismissed with costs. R.K.P.S.                                       Appeal dismissed.. (1)  [1959] 2 M.L.J. 324, 337. (2)  [1953] 2M.L.J. 387, 391. 280