//
you're reading...
legal issues

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., 2008(9 )SCR297 , , 2008(9 )SCALE144 , 2008(8 )JT510

1

Goddess Lakshmi

Goddess Lakshmi (Photo credit: Wikipedia)

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. _3635_ OF 2008

(Arising out of SLP (C) No. 4055 of 2006)

 

Ranganayakamma and another …. Appellants

Versus

K.S. Prakash (D) by L.Rs. and others …. Respondents

 

JUDGMENT

S.B. SINHA, J.

 

1. Leave granted.
2. This appeal is directed against the judgment and order dated 21st

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

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

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

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

decreeing the suit for partition and separate possession.
2
We may, at the outset, notice the genealogical tree of the family

which is as under :-

 
Kasetty Rangappa
Children of the 1st Wife Children of the 2nd Wife
Widow Smt. Naramma
1. Smt. Jayamma, Deft. No.3 1. Sri K.S. Mohan
2. Smt. Kanthamma, Plff. No.1 2. Smt. Susheela (Late)
3. Smt. Ranganayakamma, Plff 3. Smt. Bhagyalakshmi
No.2Lakshamamma 2nd wife
4. Smt.Naramma Devi, Deft. No.4
Lakshmi 4. Smt. Lakshmi Devi

5. Smt. Venajakshi 5. Sri K.S. Sudarshan
6. Sri K.S. Prakash, Deft. No.1 6. Smt. Saraswathi
7. Sri K.S. Ramesh, Deft. No.2 7. Smt. Rukmini
8. Smt. Sarojamma, Deft. No.5 K. Harida Sreenivasa Pasad
Smt. K. Sreeni 8. Sri K.R. K.R.
Venkatamma
9. Smt. Seethqalakshmi, Deft. No.6 9. Smt. Padmavathi
Salu Venkatesulu Sreenivasulu
10. Smt. Bharathi, Deft. No.7
11. Smt. Kum. Shoba, Deft. No.8
Smt. Singaramma Smt. Venkatalakshamma
1st wife 2nd wife.

3. We are concerned herein with the branch of K. Sreenivasulu. He

had two wives, the first wife being Singaramma. Through his first wife

Singaramma, he had eleven children. Except Venajakshi, they are parties

to the suit. Kanthamma and Ranganayakamma are the plaintiffs.

Through his second wife, Shri K. Sreenivasulu had nine children.

 

4. Allegedly there was a partnership firm through which K.

Sreenivasulu was doing business in silk sarees. Whether the said

partnership was a firm constituted under the Partnership Act, 1932 or a
3
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
4
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
5
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 :-
6

 
“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.
7
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
8
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.
9
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 :-
10

 
“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
11
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?
12

 

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
13
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.
14
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.
15
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
16
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.
17
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
18
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.
19
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,
20
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
21
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.
22
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.
23
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
24
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.
25
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
26
entered into bona fide to maintain peace or to
bring about harmony in the family. Even a
semblance of a claim or some other ground, as
say affection, may suffice as observed by this
Court in Ram Charan Das v. Girjanandini
Devi”

 
[See also Govt. of A.P. and Others v. M. Krishnaveni and Others (2006)

7 SCC 365 and Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai

Patel (2006) 8 SCC 726]

 

25. One of the grievances raised by Mr. Chandrasekhar is that the

original deed of partition 22nd July, 1957 was not produced. It was,

however, a registered document. A perusal of the averments made in the

plaint categorically goes to show that the partition referred to therein by

and between K. Sreenivasulu and his brothers related to the partition

effected in 1957. The plaintiffs – appellants were, thus, aware thereof.

They did not contend in the plaint that the said deed of partition dated 2nd

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

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

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

produced the said deed and sought to adduce additional evidence to

prove the said fact. In our opinion, it is not necessary to do so as the
27
admissions made by the appellants in their pleadings themselves are

sufficient to hold that the property was a joint family property and by

reason of the said deed of settlement culminating in passing of the

compromise decree dated 20.12.1982, a valid consent decree was passed.

It is not a case that there had been a fraud or misrepresentation on the

part of K.S. Prakash Respondent No.1 alone herein but if a fraud or

misrepresentation is to be attributed, the same must be attributed to the

entire family representing both the branches. They must have thought

that by reason of such averments a settlement can be brought about. The

averments made in the suit filed by one branch were accepted by the

other branch without any demur whatsoever.

 

26. Even otherwise, in view of the well-settled principles of law that

when a son gets a property from his father, as soon as sons are born to

him, a joint family is constituted. It is not a case that sons from either

side of the family were born before the Hindu Succession Act 1956 came

into force.

 

27. The said compromise decree was acted upon. A deed of partition

was entered into.
28
28. All the parties including Singaramma came to the office of the

Sub-Registrar for the said purpose. There is nothing to show nor the

plaint contains any averments that a fraud or mis-representation had been

practised on Singaramma. It is true that she was not well and had

undergone an operation at Vellore but bereft of that there is nothing to

show that she was keeping unwell for a long time so as not to possess a

sound disposing mind. Before the said deed of partition was entered

into, on 15th July, 1983 a special power of attorney was executed by

Ranganayakamma in favour of Respondent No. 1. A clear recital was

made therein that she had agreed to relinquish her interest. The power of

attorney was being executed pursuant thereto.
Mr. Chandrasekhar has drawn our attention to the statements made

in the power of attorney to contend that no other or further agreement

was entered into and the power of attorney should have been preceded by

a regular deed. In our opinion, it was not necessary. Relinquishment

may be unilateral. A sister relinquishing her right in favour of the

brothers may do so in various ways. Expression to that effect may be

made in several ways.

 

29. A power of attorney need not disclose the purpose for which the

relinquishment is made or the consideration thereof. Another power of
29
attorney was executed by Defendant No. 4 in favour of Singaramma to

enter into a deed of partition. It was not produced. But, the said power

of attorney concededly had nothing to do with the said property. It was

in respect of other business. Defendants – Respondents rely thereupon

only to show that for the purpose of better management of the properties

and business, the sisters used to execute power of attorneys. They knew

about the nature and character of the said documents. They never stated

that any fraud or misrepresentation had been practised in regard to the

character of the document; the effect whereof we would discuss a little

later.

 

30. Coming now to the deed of partition, admittedly, one-third share in

Item No. 3 had been given to the mother. Appellants and other sisters

relinquished their right, title and interest therein. The materials brought

on records by the parties would clearly go to show that they had taken a

decision in unison. A similar power of attorney was executed by one of

the sisters being Smt. Venajakshi, who, as noticed hereinbefore, upon

receipt of a sum of about Rs. 40,000/-, relinquished her right. It may be

true that in the said deed of partition dated 5th August, 1983, the amount

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

would invalidate the said deed of partition is another question which we
30
intend to deal with at an appropriate stage. The fact, however, remains

that in the plaint filed in the present suit by the appellants, the execution

or validity of the document including the registered power of attorneys

and deeds of lease being Exhibit Nos. 9, 10, 11, 12, 13 and 14 executed

between 1983 and 1985 are not in question. These documents in

categorical terms go to show that the partition effected in 1983 had been

acted upon.

 

31. It would be of some importance, furthermore, to notice that the

plaintiff – Appellant No. 1 Kanthamma in her deposition before the

learned Trial Judge admitted:

 

(i) Her father was carrying on business in Sarees.

(ii) Each of the sisters had been given one rupee and their

signatures were obtained on the partition deed dated

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

date, on which occasion all the sisters had put their

respective signatures. There had been a partition

between the children of the second wives of

Sreenivasulu and children of her mother.
31
(iii) A suit was instituted which ended in compromise.

She had affection for and faith in Defendant Nos. 1

and 2.

(iv) She was told by others that she had been cheated by

their brothers. She, however, could not say as to who

they were. She speaks fluent English. She signed the

documents in English. She had been running a

poultry business under the name and style of Kantha

Poultry Farm. She had also been doing saree business

with her husband. Her husband had a roller flour mill

business. He is also one of the partners in

Singaramma Flour Mills, Bangalore.

(v) One of the sisters of the plaintiff, viz., Defendant No.

8 was a Science graduate from Mount Carmel

College. Ranganayakamma although made an attempt

to show that she had not signed any power of attorney

but accepted that once she had signed some power of

attorney. It is accepted that the power of attorney was

executed at Cuddapah, her own place.

(vi) From the deposition of the appellants it would further

appear that they had accepted that the documents had
32
been executed either in the office of the advocates or

at Cuddappah, which is their place of residence in

presence of their own advocates and/or they had

visited the registration office and put their

signatures/thumb impressions before the Registrar, no

case of fraud or mis-representation has been made

out.

(vii) She had been going to the Sub-Registrar’s office as

also to the offices of the Advocates. The power of

attorney was signed in the Chamber of the Advocates.

She accepted that her mother had been given one-

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

signatures in the power of attorney dated 20.12.1983

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

Ranganaikalu which was marked as Exhibit D-9.

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

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

property.

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

Ranganaikalu and Mr. N.K. Swamy, Advocates.
33
(x) She also accepted that a deed of lease was executed in

favour of Defendant No. 9 M/s. Voltas Limited and

she had been receiving Rs. 9000/- per month from the

said Company. In one of the documents even her

husband is an attesting witness. He is also a lawyer.
It was, therefore, difficult to arrive at a conclusion that the

plaintiffs – appellants were not aware of the nature of the document or

any fraud had been practiced on them.

 

32. The aforementioned findings have a direct bearing on the question

as to whether the deed of partition as also the power of attorneys were

vitiated by reason of any fraud or mistake on the part of the respondent

Nos. 1 and 2 herein. It is a well-settled principle of law that a void

document is not required to be avoided whereas a voidable document

must be. It is not necessary for us to advert to a large number of

decisions of this Court and other High Courts on this issue as more or

less it is concluded by a decision of this Court in Prem Singh v. Birbal

and Others [(2006) 5 SCC 353] wherein this Court held:

“16. When a document is valid, no question
arises of its cancellation. When a document is
void ab initio, a decree for setting aside the
same would not be necessary as the same is non
34
est in the eye of the law, as it would be a
nullity.”

 
33. Section 16 of the Indian Contract Act provides that any transaction

which is an outcome of any undue misrepresentation, coercion or fraud

shall be voidable.
If, however, a document is prima facie valid, a presumption arises

in regard to its genuineness.

 

In Prem Singh (supra), it was stated:

 

“27. There is a presumption that a registered
document is validly executed. A registered
document, therefore, prima facie would be valid
in law. The onus of proof, thus, would be on a
person who leads evidence to rebut the
presumption. In the instant case, Respondent 1
has not been able to rebut the said
presumption.”

 

It was opined:

“12. An extinction of right, as contemplated
by the provisions of the Limitation Act, prima
facie would be attracted in all types of suits.
The Schedule appended to the Limitation Act,
as prescribed by the articles, provides that upon
35
lapse of the prescribed period, the institution of
a suit will be barred. Section 3 of the Limitation
Act provides that irrespective of the fact as to
whether any defence is set out or is raised by
the defendant or not, in the event a suit is found
to be barred by limitation, every suit instituted,
appeal preferred and every application made
after the prescribed period shall be dismissed.”

 

In Mst. Rukhmabai (supra), this Court held:

 

“In unraveling a fraud committed jointly by the
members of a family, only such letters that
passed inter se between them can give the clue
to the truth…”

 

Yet again in A.C. Ananthaswamy v. Boraiah [(2004) 8 SCC 588],

this Court categorically laid down that in establishing alleged fraud, it

must be proved that the representation made was false to the knowledge

of the party making such representation or that the party could have no

reasonable belief that it was true. Level of proof required in such a case

was held to be extremely high.

 

34. Another aspect of the matter cannot also be lost sight of.

 

Order VI, Rule 4 of the Code of Civil Procedure reads as under:
36

 
“4. Particulars to be given where necessary

In all cases in which the party pleading relies
on any misrepresentation, fraud, breach of trust,
wilful default, or undue influence, and in all
other cases in which particulars may be
necessary beyond such as are exemplified in the
forms aforesaid, particulars (with dates and
items if necessary) shall be stated in the
pleading.”

 
35. When a fraud is alleged, the particulars thereof are required to be

pleaded. No particular of the alleged fraud or misrepresentation has been

disclosed.

 

36. We have been taken through the averments made in the plaint.

The plea of fraud is general in nature. It is vague. It was alleged by the

plaintiffs that signatures were obtained on several papers on one pretext

or the other and they had signed in good faith believing the

representations made by the respondents, which according to them

appeared to be fraudulent representation. When such representations

were made, what was the nature of representation, who made the

representations and what type of representations were made, have not

been stated. Allegedly, on some occasions, respondent Nos. 1 and 2 used
37
to secure the signatures of one or more of the plaintiffs and defendants

No. 3 to 8 on several papers but the details therein had not been

disclosed.

 

37. Admittedly, the papers were signed either in the office of the

advocate or before the Sub-Registrar. It was, therefore, done at a public

place. No signature was obtained on the blank paper. No document was

executed in a hush-hush manner. It has been alleged that taking

fraudulent advantage of the innocence and ignorance of the plaintiffs and

Defendant No. 2, the said deed of partition was executed resulting in an

unjust, unfair and unequal fraudulent partition of the unequal properties.

If their signatures had not been obtained on blank sheets of papers, it was

for the plaintiffs – appellants to show who had taken advantage and at

what point of time. Both the courts below have come to the conclusion

that the sisters jointly had taken a stand that they would not claim any

share in the property. One of the sisters, who wanted a share in the

property, had been paid a sum of Rs. 40,000/- and she had executed a

deed of relinquishment. The said fact is not denied. All other sisters

were, thus, aware thereof. They knew what was meant by

relinquishment. All deeds including the said deed of partition was
38
executed with the knowledge that they had been signing the deed of

partition and no other document.
This has categorically been stated by the plaintiff No. 1

Kanthamma in her evidence which we may notice in the following terms:

 

1. “Each of the sisters have been given one rupee and signatures
were obtained on partition deed on 5.8.1983″
2. “I had gone to Sub-Registrar’s office at the time of registration
of the said partition deed. Sub-Registrar did not explain the
contents of the said partition deed.
3. “I do not remember the date on which I affixed my signature on
partition deed. We all the sisters and mother had gone to Sub-
Registrar’s Office at the time of registration of the partition
deed.”

 

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

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

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

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

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

fraudulent misrepresentation as regards the character of partition deed

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

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

void but only voidable.
39
38. We are, however, not oblivious of the decisions of this Court and

other High Courts that illegality of a contract need not be pleaded. But,

when a contract is said to be voidable by reason of any coercion,

misrepresentation or fraud, the particulars thereof are required to be

pleaded.

 

In Chief Engineer, M.S.E.B. and Another v. Suresh Raghunath

Bhokare [(2005) 10 SCC 465], the law is stated in the following terms:

 

“…The Industrial Court after perusing the
pleadings and the notice issued to the
respondent came to the conclusion that the
alleged misrepresentation which is now said to
be a fraud was not specifically pleaded or
proved. In the show-cause notice, no basis was
laid to show what is the nature of fraud that was
being attributed to the appellant. No particulars
of the alleged fraud were given and the said
pleadings did not even contain any allegation as
to how the appellant was responsible for
sending the so-called fraudulent proposal or
what role he had to play in such proposal being
sent…”
[See also Prem Singh (supra)]
40
In Ramesh B. Desai and Others v. Bipin Vadilal Mehta and Others

[(2006) 5 SCC 638], this Court emphasized the necessity of making

requisite plea of Order VI, Rule 4 stating:

 

“22. Undoubtedly, Order 6 Rule 4 CPC
requires that complete particulars of fraud shall
be stated in the pleadings. The particulars of
alleged fraud, which are required to be stated in
the plaint, will depend upon the facts of each
particular case and no abstract principle can be
laid down in this regard.”

 
In Sangramsinh P. Gaekwad and Others v. Shantadevi P. Gaekwad

(Dead) Through LRs. and Others [(2005) 11 SCC 314], this Court held:

 

“207. We may now consider the
submissions of Mr Desai that Appellant 1
herein is guilty of commission of fraud.
Application filed by Respondent 1 before the
Gujarat High Court does not contain the
requisite pleadings in this behalf, the
requirements wherefor can neither be denied
nor disputed.
208. It is not in dispute that having regard to
Rule 6 of the Companies (Court) Rules, the
provisions of the Code of Civil Procedure will
be applicable in a proceeding under the
Companies Act. In terms of Order 6 Rule 4 of
the Code of Civil Procedure, the plaintiff is
bound to give particulars of the cases where he
relies on misrepresentation, fraud, breach of
trust, etc.”
41

 
39. Strong reliance has been placed by Mr. Chandrasekhar on a

decision of the Orissa High Court in Sundar Sahu Gountia and others v.

Chamra Sahu Gountia and others [AIR 1954 Orissa 80], wherein it was

opined:

“12. The principles deducible from a
consideration of these authorities may be
summarised as follows :
(i) To constitute a valid family arrangement
the transaction should be one which is for the
benefit of the family generally.
(ii) The consideration for the arrangement
may be preservation of the family property,
preservation of the peace and honour of the
family, or the avoidance of litigation.
(iii) It is not essential that there should be a
doubtful claim, or a disputed right to be
compromised. If there is one, the settlement
may be upheld if it is founded on a reciprocal
‘give and take and there is mutuality between
the parties, in the one surrendering his right and
in the other forbearing to sue. In such cases the
Court will not too nicely scrutinise the
adequacy of the consideration moving from one
party to the other.
(iv) In any case, if such an arrangement has
been acted upon the Courts will give effect to it
on the ground of estoppel or limitation and the
like.
(v) A family arrangement may also be
upheld if the consideration moves from a third
party.
42
(vi) If it appears to the Court that one party
has taken undue advantage of the helplessness
of the other and there is no sacrifice of any
right or interest, the agreement is unilateral and
is devoid of consideration.
(vii) The consent of the parties should be
freely given to the arrangement and gross
inadequacy of consideration may be a
determining factor in judging whether the
consent was freely given.
(viii) If the agreement involves or implies an
injury to the person or property of one of the
parties, the Courts retain an inherent power to
prevent injustice being done.”

 

In that case, the court refused to record the alleged settlement

between the parties. It was in that situation, the appeal was filed before

the High Court. The ratio enunciated therein, that preserving the family

property cannot, therefore, form the ground or consideration for the

arrangement by the party to forgo a substantial part of his share so as to

make the compromise binding upon him, ex facie appears to be contrary

to the decision of this Court in Hari Shankar Singhania (supra) and

Ramdev Food Products (P) Ltd. (supra).
In Ramdev Food Products (P) Ltd. (supra), this Court held:
“35. We may proceed on the basis that the
MoU answers the principles of family
settlement having regard to the fact that the
same was actuated by a desire to resolve the
43
disputes and the courts would not easily disturb
them as has been held in S. Shanmugam Pillai
v. K. Shanmugam Pillai, Kale v. Dy. Director
of Consolidation and Hari Shankar Singhania
v. Gaur Hari Singhani.”
When there arises a question as to whether the suit was to be

regarded as having adjusted by way of mutual agreement so that it can be

disposed of on the said terms, in the event of a dispute, the consideration

is different. However, where a settlement had been arrived at and a

decree has been passed on the premise that the said compromise was

lawful, we are of the opinion that the same cannot be permitted to be

reopened only on the question as to whether the properties were joint

properties or the self-acquired property of Sreenivasulu.

 

The said decision, therefore, in our opinion cannot be said to have

any application whatsoever.

 

40. It is also not a case where the settlement was contrary to any

statutory provision or was opposed to public policy as envisaged under

Section 23 of the Indian Contract Act. If the principle ex turpi causa

non oritur actio is to be applied in respect of the consent decree, the

matter might have been different. The court shall apply the statute for
44
upholding a compromise unless it is otherwise vitiated in law. It is not

required to go into the question as to whether the contents of the said

settlement are correct or not. Only in a case where fraud on the party or

fraud on the court has been alleged or established, the court shall treat

the same to be a nullity. Fraud, as is well known, vitiates all solemn acts.

[See Ganpatbhai Mahijibhai Solanki v. State of Gujarat and Ors., 2008

(3) SCALE 556] but the same must be pleaded and proved.

 

41. We may now consider the submission of Mr. Chandrasekhar as to

what is meant by `release’. Reliance has been placed on De’Souza’s

Conveyancing, page 1075, wherein it has been stated:

 

“A deed of release does not create title. A
release may be drafted in the same form as a
deed of transfer or simply as a deed poll or a
deed to which both parties may join stating the
circumstances under which the release is based.
Either the monetary consideration or “the
premises”, i.e., facts in consideration of which
the release is made shall be stated.”

 

42. Our attention has also been drawn to essentials of `release’ from

the said treatise, which are as under:
45
“(i) Full recitals of the origin of the claim,
which form the most important part;
(ii) knowledge of the releaser about the
claim, intended to be released;
(iii) words and expressions sufficiently clear
to convey the intention of the releaser to
discharge the right or the claim.”

 

43. A deed of `release’ for a consideration is a transaction. When,

thus, a release is made for consideration, the particulars of consideration

and other particulars which are required to be averred in the deed being

essential elements thereof. Relinquishment of a property by a sister in

favour of her brother for a consideration or absence of it, stands on a

different footing. Section 25 of the Indian Contract Act must be read and

construed having regard to the fact situation obtaining in the cases.

 

In Smt. Manali Singhal and another v. Ravi Singhal and others

[AIR 1999 Delhi 156], it was held:

 

“20. Learned counsel for the defendants has
then argued that the impugned settlement is
without any consideration. Hence the same is
hit by S. 25 of the Contract Act. The contention
of the learned counsel may be an ingenious one
but can be brushed aside without any difficulty.
Parties more often than not settle their disputes
amongst themselves without the assistance of
46
the Court in order to give quietus to their
disputes once and for all. The underlying idea
while doing so is to bring an era of peace and
harmony into the family and to put an end to
the discord, disharmony, acrimony and
bickering. Thus the consideration in such type
of settlements is love and affection, peace and
harmony and satisfaction to flow therefrom.”

 
44. We would proceed on the basis that the consideration of rupee one

shown in the deed of partition is no consideration in the eye of law.

However, the question is as to whether a partition deed would be

violative of Section 25 of the Indian Contract Act for want of

consideration. It is per se not a void document. No such plea was raised.

No issue has been framed. No evidence has been adduced. No ground

has been taken even in the memo of appeal before the High Court. The

validity of the partition deed (Ex. D-6) by reference to the recitals of the

release of shares by the daughters of Sreenivasulu has not been

questioned.

 

45. Renunciation in the Indian context may be for consideration or

may not for consideration. This has been so held by this Court in

Kuppuswamy Chettiar v. A.S.P.A. Arumugam Chettiar and Another

[(1967) 1 SCR 275] in the following terms:
47

 
“In the present case, the release was without
any consideration. But property may be
transferred without consideration. Such a
transfer is a gift. Under Section 123 of the
Transfer of Property Act, 1882, a gift may be
effected by a registered instrument signed by or
on behalf of the donor and attested by at least
two witnesses. Consequently, a registered
instrument releasing the right, title and interest
of the releasor without consideration may
operate as a transfer by way of a gift, if the
document clearly shows an intention to effect
the transfer and is signed by or on behalf of the
releasor and attested by at least two witnesses.
Exhibit B-l stated that the releasor was the
owner of the properties. It showed an intention
to transfer his title and its operative words
sufficiently conveyed the title. The instrument,
on its true construction, took effect as a gift.
The gift was effectively made by a registered
instrument signed by the donor and attested by
more than two witnesses.”

 
The said principle has been noticed by a Full Bench of the Madras

High Court in Chief Controlling Revenue Authority, Referring Officer v.

Rustorn Nusserwanji Patel [AIR 1968 Madras 159] stating :

 

“(8) In the present case, prima facie, it may be
contended with great force and plausibility that
the document rightly purports to be a release
and should be received as such. For it cannot be
disputed, we think, that the estate in question is
owned by two parties or co-owners, that the
48
releasee has already an undivided half share in
the estate and that what the releasor purports to
do by the document is to effect himself, in
respect of both this title and his right to
possession in favour of the releasee.
Nevertheless, Sri Ramaswami for the State has
contended, upon two main lines of reasoning,
that the document has to be interpreted as a
conveyance or should be held essentially to be
such. The first line of reasoning is based upon
the distinction well known to law borrowed
from the English law of real Property between a
joint tenant and a tenant-in-common. This
distinction has also been applied to the concept
of a Hindu Coparcenary as existing before a
division in status and the state of rights
between erstwhile co-parceners after division is
status as would be apparent from cited passages
in Mulla’s Hindu law. The other line of
reasoning is that upon the actual phraseology of
Article 55 of Schedule I such a document as
this cannot amount to a release.”

 

46. The question again came up for consideration before a Special

Bench of the Madras High Court in The Chief Controlling Revenue

Authority, Board of Revenue, Madras v. Dr. K. Manjunatha Rai [AIR

1977 Madras 10], in the context of the Payment of Stamp Duty wherein it

was categorically held:

“…For a release, in law, may be effected either
for consideration or for no consideration. In
either case, if the transaction operates as a
relinquishment or a renunciation of a claim by
one person against another or against a
specified property, it will be a release…”
49

 
It is, therefore, not a pure question of law.

 

47. Section 25 of the Indian Contract Act contains several exceptions,

that is to say : (i) if it is in writing; (ii) if it is registered or (iii) if the

same has been executed on account of love and affection. The deed of

partition is both in writing and registered. One of the questions which

had been bothering this Court is as to whether a document had been

executed out of love and affection or not. The fact that the parties are

near relatives is not in dispute. The love and affection of the sisters on

the brothers has categorically been accepted by Plaintiff No. 1

Kanthamma in her deposition, stating:

 

“In the house of defendants 1-2 whenever there
is a function, as our father died and since we
had more affection and faith on defendants 1-2,
we used to sign the documents without going
through the contents.”

 

48. The deed of partition could have also been entered into by way of

family arrangement where no registration was required. Such a course of

action had not been taken. The parties knew the nature of the document.

Appellants and other sisters being highly educated were supposed to
50
know the contents thereof. Their husbands are well-off in the society.

The transaction, therefore, was transparent. Furthermore, the mother was

alive. She was also a party to the deed of partition. She must have

played a pivotal role. She even if suffering from illness might be anxious

to see that family properties are settled. Release by an heir other than a

co-parcenar does not need any consideration. A release is valid even

without consideration.

 

49. Mr. Chandrasekhar, however, has drawn our attention to Anson’s

Law of Contract, page 154, wherein the law is stated to be as under:

 

“…Some additional factor is required to bring a
case within one of the exceptions: for example,
the existence of a relationship in which one
party is able to take an unfair advantage of the
other. In the absence of some such factor, the
general rule applies that the courts will enforce
a promise so long as some value for it has been
given.”

 

As regards, nominal and inadequate consideration, the learned

Author states:

 

“‘Nominal consideration’ and `nominal sum’
appear…., as terms of art, to refer to a sum or
consideration which can be mentioned as
51
consideration but is not necessarily paid. This
view was expressed by Lord Wilberforce (in a
speech with which all the other members of the
House of Lords concurred) in Midland Bank &
Trust Co. Ltd. v. Green. In that case a husband
sold a farm, said to be wroth 40,000, to his
wife for 500. It was held that the wife was,
for the purposes of Section 13(2) of the Land
Charges Act 1925, a “purchaser for money or
money’s worth” so that the sale to her prevailed
over an unregistered option to purchase the
land, which had been granted to one of the
couple’s children. It was not necessary to
decide whether the consideration for the sale
was nominal but Lord Wilberforce said that he
would have “great difficulty” in so holding; and
that “To equate `nominal’ with `inadequate’ or
even `grossly inadequate’ consideration would
embark the law on inquiries which I cannot
think were ever intended by Parliament. On the
facts of the case the 500 was in fact paid and
was more than a mere token, so that the
consideration was not nominal on either of the
two views stated above. But if the stated
consideration had been only 1, or a
peppercorn, it is submitted that it would have
been nominal even if it had been paid, or
delivered, in accordance with the intention of
the parties.”

 

50. The same principle might have been applied in the Indian Contract

Act. “Consideration” has been defined in Section 2(d) of the Indian

Contract Act, which reads as under:

 

“(d) When, at the desire of the promisor, the
promisee or any other person has done or
52
abstained from doing, or does or abstains from
doing, or promises to do or to abstain from
doing, something, such act or abstinence or
promise is called a consideration for the
promise;”

 

51. Consideration even in the Indian context would mean a reasonable

equivalent or other valuable benefit passed on by the promiser to the

promise or by the transferor to the transferee. Love and affection is also

a consideration within the meaning of Sections 122 and 123 of the

Transfer of Property Act.

 

52. In Mt. Latif Jahan Begam v. Md. Nabi Khan [AIR 1932 Allahabad

174], the Allahabad High Court rightly held that a question in regard to

the adequacy of consideration for the purpose of attracting Section 25 of

the Indian Contract Act is a mixed question of fact and law and not a

pure question of law stating:

 

“…The question did not involve a mere point
of law. It required the determination of a
question of fact, viz., whether the agreement
was made on account of natural love and
affection. The Court below was not justified in
recording a finding that the plaintiff had not
proved that there was any affection between
herself and her father in law. There was no
occasion in this case for the plaintiff to offer
any proof on a point which was not raised at the
53
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.
54

 
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
55
registered lease deeds by Defendants Nos. 1-8 and Plaintiff No.

2.

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

sisters.

 

55. As regards, Power of Attorney executed by Ranganayakamma

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

 

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

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

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

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

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

Cuddappah appointing K.S. Prakash relinquishing her share in

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

Ranganaikalu and N.K. Swamy, Advocates.

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

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

R.V. Prasad, Advocate.
56
56. It may be true that there is nothing on record to show that a lease

deed was executed by other plaintiff but then there is nothing to show

that she was not aware thereof. If she had not been paid her share from

the rental income, she had not prayed for mesne profit.

 

57. We may now consider the question of limitation raised by Mr.

Chandrashekhar.

 

Applicability of Article 65 or Article 110 of the Limitation Act, on

the one hand, and Article 59 thereof, on the other, would depend upon

the factual situation involved in a case.

 

Article 59 reads as under:
“59. To cancel or set aside an Three years When the facts entitling the
instrument or decree or for plaintiff to have the
the rescission of a instrument or decree
contract. cancelled or set aside or the
contract rescinded first
become known to him.”

 
A decree for setting aside a document may be sought for in terms

of Section 31 of the Specific Relief Act.
57
Applicability of Article 59 would indisputably depend upon the

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

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

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

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

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

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

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

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

SCALE 156]

 

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

 

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

which is dismissed accordingly. No costs.

 
………………………….J.
[S.B. Sinha]

 

…………………………..J.
[Lokeshwar Singh Panta]
New Delhi;
58
May 16, 2008

About these ads

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 560,652 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,537 other followers

comments

There are no public comments available to display.
Follow

Get every new post delivered to your Inbox.

Join 1,537 other followers