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 21st

September,  2005  passed  by  a  Division  Bench  of  the  Karnataka  High

Court in R.F.A. No. 605 of 1997 dismissing an appeal preferred from the

judgment and decree dated 27th May, 1997 passed by the XII Additional

City  Civil  Judge,  Bangalore  in  Original  Suit  No.1760  of  1990  partly

decreeing the suit for partition and separate possession.   

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We may, at the outset, notice the genealogical tree of the family

which is as under :-

Children of the 1st Wife Children of the 2nd 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

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Kasetty Rangappa Widow Smt. Naramma

Smt.  Venkatamma

Lakshamamma  Naramma

2nd wife

K. Sreeni K. Harida  Salu

K.R.  Venkatesulu

K.R.  Sreenivasulu

Smt. Singaramma 1st wife

Smt. Venkatalakshamma 2nd 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 27th December, 1970.  The family allegedly continued

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to remain joint.  One of the daughters of Sreenivasulu being Vanajakshi

released  her  rights  by  getting  a  consideration  of  Rs.39,615.79.

Respondents  Nos.  1  and  2  herein,  sons  of  K.  Sreenivasulu through

Singaramma were the junior members of the family.  At the time of her

death of Sreenivasulu, they were minors.   

5. Indisputably, a suit for partition being O.S. No. 2459 of 1982 was

filed  by  the  first  respondent  K.S.  Prakash  besides  others.   Whereas,

according to the appellants, the said suit was filed by way of machination

on the part of respondent No.1 herein but admittedly all the parties were

plaintiffs therein.  

6. The  plaint  in  the  said  suit  discloses  that  Sreenivasulu and  his

brothers partitioned their properties in the year 1957 who constituted a

Joint  Hindu  Family.   The  said  Joint  Hindu  Family  had  extensive

immovable  properties  in  the  towns  of  Bangalore  and  Darmavara.

Allegedly  some  immovable  properties  falling  in  the  share  of  K.

Sreenivasulu are still joint.   A coparcenary was constituted between him

and his sons.  Properties were purchased by him out of the nucleus of the

immoveable properties, which fell to the share of Sreenivasulu in the said

partition  meaning  thereby  that  the  partition  took  place  in  1957  and

several other moveable and immovable properties were acquired in the

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name of Sreenivasulu and other members of the families.   They were in

joint possession.  Ten items of immovable properties, however, allegedly

were  the  subject  matter  of  joint  sale  for  the  purpose  of  discharge  of

income tax and wealth tax liabilities.   They have been excluded from

partition.   It was furthermore alleged that some other properties had also

been  transferred  and  deeds  of  sale  were  executed  by  the  Bangalore

Development  Authority  in  favour  of  plaintiff  Nos.  1  and  2  therein.

Paragraph 12 of the said plaint reads as under :-

“12. Thus, item No. 1 to 8 (one to eight) mentioned in  the  plaint  are  the  properties  now  available  and standing in  the  names of persons  referred to above. This  being  a  suit  for  general  partition  even  though some of the properties are in the name of individual members  of  the  family  and  as  per  records,  but nevertheless  shown  in  detail  with  a  view  to  avoid unnecessary controversies and to effect just, fair and equitable partition among the members of the family.”

7. Indisputably  both  the  branches  of  Sreenivasulu entered  into  a

compromise, i.e., amongst the children of the first and the second wives.

Both the branches divided the properties  into half  and half.   The said

compromise  was  recorded.   A  final  decree  was  passed  on  the  basis

thereof, directing :-

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“In terms of  compromise,  it  is  ordered  and decreed that  the  plaintiffs  are  the  owners  of  the  properties shown in items 1, 2(a) & 2(b) and 3 in the schedule hereto which are allotted to their shares.  

It  is  further  ordered  and  decreed  declaring  that  the defendants are the owners of the properties shown in items 4 and 5 in the schedule hereto which are allotted to their share.

It  is  further  ordered  and  decreed  that  properties  in items 6 and 7 of the suit schedule properties shall be sold by plaintiffs and defendants and the tax arrears viz., Income Tax, Wealth Tax and Capital Gain Tax in respect of the said items of the Schedule property that is due and payable by the Hindu undivided family be cleared  and  discharged  out  of  the  sale  price  of  the same and further out of the refund amount as shown in item No.8 of the schedule properties.  It is hereby recorded that since the value of items 4 and 5 allotted to the defendants is less than the value of properties allotted to the plaintiffs,  the plaintiffs  have this  day paid to the defendants a sum of Rs.80,000/- (Rupees eighty  thousand  only)  which  together  with Rs.30,000/- (Rupees thirty thousand only) paid earlier by  the  plaintiff  in  all  amounts  to  Rs.1,10,000/- (Rupees one lakh ten thousand only).

It  is  further  ordered  and  decreed  that  in  case  the amounts realized by sale of items 6 and 7 and item 8 are insufficient to clear the Tax arrears, the plaintiffs shall  bear  2/5  share,  the  defendants  shall  bear  3/5 share  of  the  tax  liability  and  in  case  the  amounts realized by the sale and refund claimed in respect of the said properties are in excess of the Tax liability, the  remaining  balance  amounts  shall  be  shared  by plaintiffs and defendants in the proportion of 2/5 and 3/5 share respectively.

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It is further ordered and decreed that the plaintiffs and defendants are not liable to each other with regard ti income accruing from the properties allotted to them and also for mesne profits.”

8. Allegedly  Singaramma  was  not  keeping  well.   She  underwent

kidney operation at Vellore.   

9. The plaintiffs-appellants alleged that respondent Nos. 1 and 2 used

to take signatures them as well as others representing that the same were

required for payment of tax and also for managing the properties.  The

said signatures used to be made as they then had immense faith in their

brothers.   A  Power  of  Attorney  was  executed  by  the  first  appellant

Ranganayakamma in favour of K.S. Prakash on 15th July, 1983, in terms

whereof he was authorized to enter into a partition on her behalf.    A

recital has also been made therein that Ranganayakamma, appellant No.2

herein, had agreed to relinquish her right as per the agreement.  Another

Power  of  Attorney  was  executed  by  the  4th defendant  in  favour  of

Singaramma

10. A deed  of  partition  was  executed  on  5th August,  1983  in  terms

whereof Singaramma was allotted 1/3rd share in item No.3 and rest of the

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properties  were  retained  by  the  brothers.   The  sisters  allegedly

relinquished their share for a consideration of Re.1/- only; the relevant

parts whereof read as under :-

“1. The  properties  described  in  the  Second Schedule  hereunder  are  hereby allotted  to  the share  of  the  parties  of  the  First  and  Second Parts.

2. The property described in the Third Schedule hereunder is hereby allotted to the share of the party of the Eleventh part.

3. The parties  of  the Third,  Fourth,  Fifth,  Sixth, Seventh,  Eight,  Ninth  and  Tenth  parts  do hereby relinquish their right to claim a share in the properties described in the First Schedule in consideration of payment to each of them of a sum of  Re.1/-  by parties  of  the  First,  Second and  Eleventh  Parts  the  receipt  of  which  they hereby acknowledge.”  

11. Singaramma died on 10th September, 1983.  So far as 1/3rd share of

Singaramma is  concerned,  no  partition  had  taken  place.   However,  a

Special  Power  of  Attorney  was  executed  by  the  appellants  on  20th

December,  1983.  In the said Power of Attorney detailed recitals  had

been made in regard to the source of the properties, the partitions which

had  taken  place  and  the  share  of  the  sisters  devolved  on  them from

Singaramma which was calculated at 1/11th.   

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12. Indisputably,  again  a  deed  of  lease  was  executed  by  plaintiff-

appelalnt No.2 herein in favour of M/s. Voltas Company Ltd.   

13. According  to  the  appellants,  however,  no  deed  of  lease  was

executed by appellant No.1, Ranganayakamma.  A sum of Rs.4,050/- was

paid to Kanthamma, appellant No.2, towards rent for the period 1.1.1986

to 31.07.1987.   

14. According to  the  appellants  when  they came to  learn  about  the

fraudulent  act(s)  on  the  part  of  respondent  Nos.  1  & 2 in  getting  the

Power of Attorneys executed by them, they cancelled the same.   

They, thereafter, filed a suit for partition and separate possession

claiming 1/10th share each.  The said suit was filed on 21st March, 1990

and was marked as O.S. No.1760 of 1990.   

15. A contention  was  raised  therein  that  all  properties  acquired  by

Sreenivasulu were his self-acquired properties.  The plaintiffs-appellants

further  contended  that  their  brothers  used  to  take  their  signatures  on

some papers  as  they  enjoyed  immense  confidence  in  them as  would

appear from paragraph 6 of the plaint, the relevant portion whereof reads

as under :-

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“6 The said power of attorney was got executed by playing a fraud on the 2nd plaintiff taking advantage of her  innocence,  ignorance  and  her  sex  and  in  the absence  of  her  husband  or  any  other  reliable  male member of the family.  The second plaintiff was not aware of  the contents  of  the  said  power-of-attorney nor were they read out to her. It was got executed in the Office of the Advocate of the defendants 1 and 2 and  it  was  drafted  and  attested  by  the  Advocates belonging to the said Firm of Advocates.  Thereafter, in fraudulent abuse of the said power-of-attorney and on the basis of the fraudulent misrepresentations made to the first and second plaintiffs and defendants 3 to 8, an  alleged  deed  of  partition  was  got  executed  on 5.8.1983,  again  taking  fraudulent  advantage  of  the said  innocent  and  ignorance  of  the  plaintiffs  and defendants  2  to  8,  resulting  in  an  unjust,  unfair, unequal  and  fraudulent  partition  of  the  schedule properties.  The plaintiffs and defendants 3 to 8 were never  told  by the  defendants  1  and  2  that  it  was  a partition  deed  which  was  got  executed  on  5.8.1983 and  instead  it  was  misrepresented  as  on  earlier occasion that their  signatures were necessary on the document  for  proper  management  of  the  properties and the estate of late K. Srinivasasalu.”

16. Respondents,  however,  in  their  written  statement  denied  and

disputed  the  averments  made  in  the  plaint.   They  raised  various

contentions including the maintainability of the suit as also the question

of  limitation.   It  was categorically  stated that  the suit  properties  were

acquired  by  Sreenivasulu out  of  the  properties  allotted  to  him in  the

family  partition  amongst  his  brothers  dated  22nd June,  1957.   It  was

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furthermore  contended  that  the  relinquishment  of  interests  by  the

appellants and other sisters were out of love and affection.  They further

averred that upon the death of Singaramma the deeds of lease which were

executed in respect of her share, vested in the plaintiffs-appellants.   It

was categorically stated that the Power of Attorneys were executed by

the appellants  voluntarily.  Parties  in support  of  their respective cases

adduced their own evidence.   

The learned trial judge framed as many as 12 issues which are as

under :-

“1. Whether  the  plaintiffs  prove  that  the  suit  schedule properties are self acquired properties of the deceased Srinivas?

1(a). Whether the defendants  prove that the suit  schedule properties are the ancestral properties?

2. Does defendant No.1 prove plaintiffs executing valid powers  of  attorney  on  15.7.1983;  20.12.1983  and 5.8.1985?

3. Do the  defendants  1  and  2  prove  due  execution  of release deed dated 5.8.1983 by the plaintiffs for valid and proper consideration.  

4. Do the defendants 1 and 2 prove partition deed dated 5.8.1983 is valid one?

5. Whether  the  plaintiffs  and  defendants  3  to  8  prove that  the  defendants  1  and 2 obtained partition  deed dated 5.8.1983 by playing fraud?

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6. Whether  the  plaintiffs  are  estopped  from filing  this suit due to decree in O.S. 2459/1982?

7. Whether the suit is barred by limitation?

8. Whether the suit is bad for non-joinder of necessary parties?

9. Whether the valuation made is insufficient?

10. Do the  plaintiffs  prove  their  right  for  partition  and possession of 1/10 share to each?

11. To what shares the defendants are entitled?

12. To what reliefs the parties are entited?”

17. On issue No.1, the learned trial judge found that the same had not

been proved by the plaintiffs-appellants stating that they have failed to

explain the admission made by them in the earlier plaint.  In regard to

issue  Nos.  2  and  3  it  was  held  that  the  properties  were  ancestral

properties  and  not  separate  properties  of  Sreenivasulu.   As  regards

execution of Power of Attorneys as also the Deeds of Release, the trial

court opined that they were voluntary in nature.   In regard to issue No.7

pertaining to limitation, it was held that the suit was barred by limitation

as the plaintiffs had not sought for cancellation of deed of partition.  It

was  held  that  since after  partition,  the  deeds  of  lease  have come into

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existence in February, 1985, the suit filed in 1990 without praying for

cancellation of the deed of partition was not maintainable.   

On the said findings, the suit was dismissed.  

18. However,  it  was  held  that   plaintiff  Nos.  1  and  2  alongwith

defendant Nos. 3 to 8 and defendants 1 and 2 were entitled to the share of

1/33 each in Item No. 2 of the suit schedule properties.

19. Appellants  preferred  an  appeal  thereagainst.   Before  the  High

Court an application was filed under Order VI Rule 17 read with Section

151  of  the  Code  of  Civil  Procedure  praying  for  the  following

amendments in the plaint :-

“1. To Add at the end of para  5:  

It is learnt that two other properties belonging to  our  father  are  also  available  for  partition which are required to be included in the plaint schedule as item Nos. 5 and 6, as otherwise the suit might become bad for partial partition or it might  necessitate  avoidable  multiplicity  of proceedings.

2. To add the following as item Nos. 5 and 6 after item No.4 of the plaint Schedule.

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5. Site  bearing  No.1  suburb  Rajajinagar,  Bangalore admeasuring  east-west  140  feet  and  north-south  336’  + 350’/2 and bounded on the east by vacant land, west by T.B. Road, north by road and south by site No.1/A.

6. Vacant  site  bearing  No.17-B,  Industrial suburb, Bangalore, measuring on the east 242 ft., on the west 298 ft., on the north 236  ft.  and  on  the  south  160  feet,  and bounded  on  the  east  by  60  feet  main road, on the west by old No.13/14, on the north by Seethalakshmi Hall Flour Mills and on the south T.B. Road.”

20. The High Court in its judgment held :

1) In the absence of any issue having been framed as regards

the validity or otherwise of the deed of relinquishment, there

was no occasion for the defendants to adduce any evidence.

2) The plea of the appellants  that the deed of relinquishment

was  hit  by  Section  25  of  the  Contract  Act  cannot  be

permitted to be raised at the appellate stage.

3) It was open to the parties to arrive at an arrangement and to

release their respective rights wherefor no consideration was

necessary to be passed.   

4) The  suit  was  not  maintainable  as  the  appellants  had  not

sought for any declaration that the partition deed was void.

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5) The  contention  of  the  appellants  that  they  came to  know

about the fraud in 1988 was not correct and thus the suit was

barred by limitation.

6) The holder of the Power of Attorney executed by defendant

No.8  having  received  the  benefit  of  the  partition,  the

appellants  were  estopped  and  precluded  from challenging

the same.  

7) In view of the admission made by the appellants that the suit

properties were the joint family properties, they are bound

thereby.

8) As both the deed, viz. the deed of partition as also the deed

of lease were written in English language and the appellants

could  speak  in  that  language  fluently,  allegations  of  mis-

representation have not been proved.

21. Mr. G.V. Chandrasekhar, learned counsel appearing on behalf of

the  appellants,  in  support  of  this  appeal,  raised  the  following

contentions :-  

i) The courts below committed a serious error in not drawing

adverse inference against respondents Nos. 1 & 2 as the said

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purported  deed  of  partition  dated  2nd July,  1957  and  the

other deeds including the Power of Attorney executed by the

4th defendant  had  not  been  produced.    The  purported

application  for  adducing  additional  evidence  to  prove  the

deed of partition dated 22nd July, 1957 thus should not be

allowed by this Court.   

ii) The averments made in the 1982 suit being fraught with the

elements of fraud and mis-representation, no reliance could

have  been  placed  thereupon  nor  the  plaintiffs-appellants

could  be said  to  have voluntarily made admissions  in  the

said pleading.   

iii) As the deed of partition and the deed of relinquishment were

void ab initio being hit by Section 25 of the Indian Contract

Act,  it was not necessary to pray for any relief for setting

aside the said deeds.  

iv) The partition deeds as also the deed of relinquishment were

void being hit by Section 25 of the Indian Contract Act as

for the said purpose passing of adequate consideration was

necessary,  love  and  affection  being  not  the  requisite

consideration therefor.  

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The  partition  of  the  properties  being  unfair  and  unequal,

reopening of the partition is permissible, wherefor also it is

not necessary to seek cancellation of the documents.   

(v) In  the  event  it  be  held  that  it  is  not  necessary  to  seek

declaration of the deed of partition and deed of release being

void, Article 65 or Article 110 of the Schedule appended to

the  Limitation  Act  would  be  attracted  and  not  Article  59

thereof.   

(vi) As there is a mis-representation in regard to the nature of the

document as the deed of partition ultimately turned out to be

a deed of relinquishment and even otherwise, the same was

opposed to public policy as contained in Section 25 of the

Contract Act,. Article 59 of the Limitation Act would not be

attracted.  

(vii) Gross inadequacy of price, which is a principle applied in

the  suits  for  specific  performance  of  a  contract,  may  be

applied even in a case of this nature.   

viii) The trial court as also the High Court committed a serious

illegality in opining that no issue had been framed in regard

to the validity of the deeds,  although such an issue being

Issue No.3 had in fact been framed.  Burden to prove that

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the transactions were valid, although was on the defendants,

but neither any evidence had been let on their behalf, nor the

courts below had answered the said issue and in that view of

the matter the impugned judgments cannot be sustained.  

ix) The principle of estoppel in a case of this nature will have

no application as both the appellants had not acted upon the

documents of lis.

x) The  properties  of  joint  families  and  the  self  acquired

properties  and  in  particular  the  properties  standing  in  the

name of Singaramma could not  be put  into hotchpotch  of

joint family properties.   

xi) Consideration  within  the  meaning  of  Section  25  of  the

Indian  Contract  Act,  love  and/or  affection  being

consideration  must  be  disclosed  in  the  document,  which

having not  been done,  the impugned judgments  could not

have been sustained.  

xii) Power  of  attorney  having  not  been  witnessed  by  a  close

relative  in  a  case  of  this  nature,  the  impugned  judgment

cannot be sustained.  

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22. Mr.  S.S.  Javali,  learned  senior  counsel  appearing  on  behalf  of

respondent Nos. 1 and 2, on the other hand, urged :-

i) All the documents being registered documents, they carry a

presumption of proper execution as also the contents thereof

and  in  that  view  of  the  matter  the  burden  was  on  the

appellants  to  prove  that  they  were  vitiated  by  fraud  or

misrepresentation.  Presumption of validity strengthens with

the passage of time.  

ii) Appellants having themselves admitted that the properties in

question  were the joint  family properties  and  not  the  self

acquired  properties  are  bound  thereby,  which  they

themselves admitted in the list of dates.  

iii) The contention having been raised for the first time in this

Court that there had been no partition in the year 1957, the

respondents have produced the said document, which being

a registered one, may be taken into consideration.    

iv) Institution of the partition suit in the year 1992 being not in

dispute, and the factum of partition entered into between K.

Sreenivasulu and  his  brothers  having  been  stated  therein,

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,  mis-

representation  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 1/3rd share

in one of the properties that the plaintiffs had 1/11th share,

which they had not only accepted in the power of attorney

executed by them, but also in the list of dates stating that not

only a lumpsum amount had been paid to the appellant No.1,

but also the fact that they had been getting their share of rent

through cheques and appropriating them.  This conduct on

the part  of the appellant  would clearly show that they not

only  executed  the  deeds  voluntarily,  but  also  have  been

getting the benefit thereof by way of receiving rent.   

Even she identified the document as a power of attorney and

as  such  she  would  be  deemed  to  have  known  about  the

nature thereof.  

23. The source of title in respect of properties in suit is not in question.

It  was  Kasetty  Rangappa’s  property.   K.  Sreenivasulu  being  son  of

Kasetty Rangappa used to do business in partnership.  There were some

joint family properties.  The business was a joint family business.   

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 2nd

July,  1957  was  in  effect  and  substance  a  deed  of  dissolution  of

partnership.  They stated so for the first time in the list of dates in the

Special Leave Petition.  In response thereto, only the respondents have

produced  the  said  deed  and  sought  to  adduce  additional  evidence  to

prove the said fact.  In our opinion, it is not necessary to do so as the

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 5th August, 1983, the amount

of consideration was shown at Re. 1/-.  But whether the same by itself

would invalidate the said deed of partition is another question which we

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

5th August,  1983.   There was some function on that

date, on which occasion all  the sisters had put their

respective  signatures.  There  had  been  a  partition

between  the  children  of  the  second  wives  of

Sreenivasulu and children of her mother.   

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  one-

third share in Item No. 2 properties.  She accepted her

signatures in the power of attorney dated 20.12.1983

and  the  signature  of  her  Advocate  Mr.  T.S.

Ranganaikalu which was marked as Exhibit D-9.   

(viii) It is also accepted that after the death of her father she

had  been  given  1/11th in  Item  No.2  of  Schedule

property.   

(ix) One  of  the  documents  was  attested  by  Mr.  T.S.

Ranganaikalu and Mr. N.K. Swamy, Advocates.   

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 Sub- Registrar’s  Office  at  the  time of  registration  of  the  partition deed.”

They were, therefore, aware that the deed in question was a deed

of partition.  They admitted that they had put their signatures before the

Sub-Registrar  and  no  where  else.   Their  statements  appear  to  be  far-

fetched and beyond the ordinary human conduct.   If a plea was to be

raised and evidence was required to be addressed that there had been a

fraudulent  misrepresentation as  regards  the  character  of  partition deed

(Exhibit D-6) and in absence of any particulars having been furnished as

regards alleged fraud and misrepresentation, the said deeds would not be

void but only voidable.

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.”

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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.

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(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

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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

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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:

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“(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

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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:

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“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

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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…”

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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

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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

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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

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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.   

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53. The  High  Court,  therefore,  in  our  opinion,  was  correct  in  not

allowing the appellants to raise the said contention.

54. We may, furthermore, notice that the deed of partition (Ex. D-6)

had been acted upon by the appellants and other sisters.  They executed a

deed of lease in respect of their 1/11th share each in the 1/3rd share in one

of the items of the properties in favour of the tenant, Defendant No. 9.

The  lease  deed  executed  by  Plaintiff  No.  1  (Ex.  D-14)  is  dated

16.02.1985.   In  terms  of  the  deed  of  partition,  one  of  the  plaintiffs

received rentals in respect  of her share from the tenants.   There are a

large number of documents brought on records by the parties wherefrom

a positive knowledge of execution of the said partition deed on the part

of the sisters is possible to be attributed.  The said documents are:

1. Exhibit  D-4 dated  4-2-1985,  Power  of  Attorney executed  by

Plaintiff No. 1 mentioning D-6

2. Exhibit D-9 dated 20-12-1983, Power of Attorney by Plaintiff

No. 2 referring to D-6

3. Exhibit  D-14  dated  16-2-1985,  Registered  lease  deed  by

Plaintiff  No.  1  referring  to  Exhibit  D-6  and  also  two  other

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registered lease deeds by Defendants Nos. 1-8 and Plaintiff No.

2.

4. Exhibit D-19 to D-22 rent receipts having received rents by the

sisters.

55. As  regards,  Power  of  Attorney  executed  by  Ranganayakamma

Plaintiff No. 2.  It appears that there were three such documents, viz. :

1. Ex.  D  –  9  is  a  Special  Power  of  Attorney  executed  at

Cuddappah appointing K.S. Prakash to execute lease deed with

respect to 1/11th of 1/3rd share of mother’s share.  It was attested

by T.S. Ranganaikalu and N.K. Swamy, Advocates.

2. Ex. D – 10 is a Power of Attorney dated 20.12.1983 executed at

Cuddappah appointing K.S. Prakash relinquishing her share in

M/s.  Singaramma  Flour  Mills.   It  was  attested  by  T.S.

Ranganaikalu and N.K. Swamy, Advocates.

3. Ex.  D-11 is  an affidavit  of  Ms.  Ranganakayamma stating  on

oath that Ex.  D-9 is  valid and subsisting.   It  was attested by

R.V. Prasad, Advocate.

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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.

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Applicability of  Article  59 would  indisputably depend upon the

question as to whether the deed of partition was required to be set aside

or not.  In view of our findings aforementioned, it was required to be set

aside.  It is not a case where the deed of partition by reason of purported

wrong factual contention raised in the plaint leading to grant of a consent

decree was void ab initio.  It was not.  The effect of it would be that the

same was required be set aside.  [See Prem Singh (supra), M/s. Bay Berry

Apartments Pvt. Ltd. & Anr. v.  Shobha & Ors. 2006 (10) SCALE 596

and  Utha Moidu Haji v.  Kuningarath Kunhabdulla and Ors. 2006 (14)

SCALE 156]

It must, therefore, be held that the suit was barred by limitation.

58. For the reasons aforementioned,  there is  no merit  in this appeal

which is dismissed accordingly. No costs.

………………………….J. [S.B. Sinha]

..…………………………J. [Lokeshwar Singh Panta]

New Delhi;

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May 16, 2008

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