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K.Sreenivasulu

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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 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 … Continue reading

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