Kuppuswamy Chettiar Vs. A.S. P. A.
Arumugam Chettiar & ANR  INSC 158 (6 September 1966)
06/09/1966 BACHAWAT, R.S.
CITATION: 1967 AIR 1395 1967 SCR (1) 275
Transfer of Property Act, 1882, s.
123-Registered Release Deed executed without consideration in presence of more
than two witnesses-Whether effectively passes title-Whether can only enlarge
interest of releasee-Or transfer title to one having no title.
By a will made in August 1931, P, who was the
grandfather of the respondents, bequeathed certain immovable properties to his
paternal uncle's daughter K. In January 1952, the respondents instituted a suit
against several persons including K challenging inter alia the validity of the
bequest made by P. In February 1952 K died leaving as her heir the .appellant
who was, her husband's brother's son.
On February 25, 1952, the appellant executed a deed in favour of the respondents, releasing the suit properties, including
certain outstanding due from third parties, and ,this deed was registered on February 26, 1952. The respondents thereupon filed an 'application in their suit asking
for an order that in view of the release deed, the properties covered by it be
removed from the scope of the suit and the plaint amended accordingly; and this
application was allowed by the Court.
In January 1955, the appellant instituted the
present suit asking for a decree setting aside the release deed of February
1952 on the ground that it was vitiated by misrepresentation, fraud, deceit and
undue influence. He also alleged that the deed being a deed of release could
not take effect as a conveyance and did not effectively pass title to the properties.
The trial Court decreed the suit holding that the deed was procured by
misrepresentation and also that it did not effectively convey the properties.
However, the High Court, in -appeal, set
aside the finding of the trial Court and dismissed the suit.
In the appeal to this Court it was also
contended, inter alia, on behalf of the appellant, that a release can only
enlarge an existing title of the release and there can be no release in favour
of a releasee who has no interest in the property.
HELD : (i) On the facts, the appellant had
failed to establish that the deed was procured by misrepresentation.
(ii) The release deed clearly showed an
intention to transfer title and its operative words sufficiently conveyed the
title. As the release was without any consideration, the deed, on its true
construction, took effect as a gift.
The gift was effectively made by a registered
instrument signed by the donor and attested by more than two witnesses.
[278 C-E] T. Mammo v. K. Ramunni, A.I.R. 1966
S.C.R. 33, 340:
(iii) In the present case the deed was in
favour of a person having no interest in, the property and it could not take
effect as an enlargement of an existing estate. It was intended to be and was a
transfer of ownership. A deed called a deed of release can, by using words of
sufficient amplitude, transfer title to one having no title before the
transfer.[279 C-D] Hutchi Gowder v. Bheema Gowder,  2 M.L.J. 324; 337; S.
P. Chinnathambiar v. V. R. P. Chinnathambiar, (1953] 2 M.L.J.
387, 391 : distinguished.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 521 of 1964.
Appeal from the judgment and decree dated
December 12, 1960 of the Madras High Court in Appeal Suit No. 8 of 1957.
C. B. Agarwala, T. R. Ramachandran and 0. C. Mathur,
for the appellant.
S. V. Gupte, Solicitor-General and R. Ganapathy
Iyer, for the respondents.
The Judgment of the Court was delivered by
Bachawat, J. In this appeal, the question is whether a deed of release was
vitiated by misrepresentation, and if, not, whether it operated as a conveyance
of the suit properties in favour of the respondents. By a will dated August 9,
1931, their grandfather Ponnuswami bequeathed the immovable properties to his
paternal uncle's daughter, Kannammal. In January, 1952, the respondents
instituted O.S. No. 24 of 1953 against several persons including Kannammal
challenging inter alia the validity of the bequest made by Ponnuswami.
On February 1, 1952, Kannammal died leaving
as her heir the appellant who was her husband's brother's son. On February 25,
1952, the appellant executed a deed, Ex. B-1, in favour of the respondents
releasing the suit properties including.
certain outstanding due from third parties.
On February 26, 1952, the deed was registered. On the same date, the
respondents filed an application in O.S. No. 24 of 1953 asking for an order
that in view of the release deed the properties be removed from the scope of
the suit and the plaint be amended accordingly. This application was allowed by
the Court. On January 22, 1953, the respondents instituted O.S. No. 174 of 1953
for the recovery of one of the outstandings mentioned in the release deed
against the debtors. They implement the appellant as a defendant to the suit,
and stated that in view of the release deed they were entitled to recover the
debt. The appellant filed a written statement alleging that the release deed
was invalid and the suit was not maintainable. The suit was decreed by the
Munsif. On January 31, 1955, the appellant, instituted the present suit asking
for a decree for setting aside Ex. B-1, recovery of the suit properties and
accounts. tie alleged that Ex. B-1 was vitiated by misrepresentation, fraud,
deceit and undue influence. His main contention was that he was induced to
execute the deed on the representation that it was a power-of-attorney
authorising the respondents to manage the properties on his behalf. He also
submitted that Ex. B-1 being a deed of release could not take effect as a
conveyance. The respondents disputed these contentions.
The trial Court held that though the release
deed was not vitiated by fraud, deceit or undue influence, it was procured by
misrepresentation and 277 also that 'it did not effectively convey the
properties. On these findings, the trial Court decreed the suit. The High Court
set aside the findings of the trial Court and dismissed the suit. The appellant
now appeals to this Court on a certificate granted by the High Court.
The High Court held, and in our opinion
rightly, that Ex. B1 was not vitiated by misrepresentation and the appellant
was well aware of the nature of the deed when he executed it. The appellant is
somewhat deaf of hearing. But he is a wealthy and shrewd moneylender and
capable of managing his affairs. He took the draft of the deed to his own
lawyer and after obtaining legal advice, executed it. He himself presented the
deed for registration. He received no consideration for the release, but the.
motive for the release was the pending litigation and the fact that the
properties originally belonged to the family of the respondents. Having regard
to the release, the respondents immediately applied in the pending suit for
removal of the properties from the scope of the suit and for the consequential
amendment of the plaint. After the execution of the deed, the appellant never
asked for accounts, nor cared to ascertain how the respondents were managing
the properties. In the written statement filed in O.S. No.174 of 1953, he took
the plea that the deed of release did not effectively pass title to the out standings,
but he did not then say that it was vitiated by misrepresentation. His present
plea that the deed was inducted by misrepresentation is an afterthought. In
agreement with the High Court, we accept the testimony of the respondents' witnesses
and we reject the evidence of the appellant and P.W. 2. The onus is upon the
appellant to establish the plea of misrepresentation. He has failed to
establish this plea.
Counsel next submitted that Ex. B-1 being a
release deed could not operate as a conveyance. Exhibit B-1 was styled a deed
of release. The Paper Book does not show whether it was stamped as a release or
as a conveyance. After reciting that Kannammal was the owner of the properties
and she died leaving the appellant as her heir, the operative part of the deed
"I hereby execute a release deed in your
favour to the effect that I do not claim any huq or right whatever in the
immovable properties mentioned hereunder valued at about Rs. 12,000 and in the
outstandings to the tune of Rs. 8,000 due by others in all Rs. 20,000 (twenty
thousand) and all the rights that have been accrued to me under the Hindu law.
You yourself shall hold and enjoy undisputable with absolute rights under the
huq release deed executed by me the entire movable and immovable properties
belonging to the aforesaid Kannammal and all the outstanding due to her from
outsiders. I have not 278 received any consideration whatever for the said
release deed." The question is whether Ex. B-1 on its true construction
conveyed properties to the respondents. In T. Mammo v. K. Ramunni(1);
this Court held :
" a registered instrument styled a
release deed releasing the right, title and interest of the executant in any
property in favour of the releaser for valuable consideration may ,operate as a
conveyance, if the document clearly discloses an intention to effect a
In the present case, the release was without
any consideration. But property may be transferred without consideration. Such
a transfer is a gift. Under s. 123 of the Transfer of Property Act, 1882, a
gift may be effected by a registered instrument signed by ,or on behalf of the
donor and attested by at least two witnesses. Consequently, a registered
instrument releasing the right, title and interest of the releasor without
consideration may operate as a transfer by way of a gift, if the document
clearly shows an intention to effect the transfer and is signed by or on behalf
of the releasor and attested by at least two witnesses. Exhibit B-1 stated that
the releasor was the owner of the properties. It showed an intention to
transfer his title and its operative words sufficiently conveyed the title. The
instrument, on its true construction, took ,effect as a gift. The gift was
effectively made by a registered instrument signed by the donor and attested by
more than two witnesses.
There were two sets of attesting witnesses to
Ex. B-1. At first, the deed consisted of four sheets, and it was then attested
by eight witnesses. Later, a fifth sheet mentioning the boundaries of the
properties was added, and this sheet was attested by four witnesses. Five of
the first eight witnesses gave evidence at the trial. Counsel submitted that
none of the last four attesting witnesses gave evidence and having regard to s.
68 of the Indian Evidence Act, 1872, the execution of Ex. B-1 was not proved.
There is no force in this contention. The
point was not raised in the Courts below. There is nothing to show that any of
the last four attesting witnesses was alive, or was subject to the process of
the Court during the trial of the suit. The name of one of these witnesses
cannot be read, and it is not clear whether he figured as a witness at the
trial. Moreover-, in his deposition, the appellant clearly admitted that he
signed Ex. B-1 and the attestors attested the document. We are satisfied that
Ex. B-1 was duly proved.
Counsel next submitted that a release can
only enlarge and existing title of the releasee, and there can be no release in
favour of a releasee who has no interest in the property.
He relied on the (1) A.I.R.1966S.C.337,340.
279 following observation in Hutchi Gowder v.
Bheema Gowder (1) "A release deed can only feed title but cannot transfer title"
and another observation in S. P. Chinnathambiar v. V. R. P. Chinnathambiar (2),
"Renunciation must be in favour of a person, who had already title to the
estate, the effect of which is only to enlarge the right. Renunciation does not
vest in a person a title where it did not exist. Now, it cannot be disputed
that a release can be usefully employed as a form of conveyance by a person
having some right or interest to another having a limited estate, e.g., by a
remain derman to a tenant for life, and the release then operates as an
enlargement of the limited estate. But in this case, we are not concerned with
a release in favour of the holder of a limited estate. Here, the deed was in
favour of a person having no interest in the property, and it could not take
effect as an enlargement of an existing estate.. It was intended to be and was
a transfer of ownership. A deed called a deed of release can, by using words of
sufficient amplitude, transfer title to one having no title before the
transfer. The cases relied upon by counsel are not authorities for the
proposition that the operative words of a release deed must be ignored. In S.
P. Chinnathambiar's case (2), the document could not operate as a transfer,
because a transfer was hit by s. 34 of the Court of Wards Act, and viewed as a
renunciation of a claim, it could not vest title in the release. In Hutchi
Gowder v. Bheema Gowder(1), the question was whether a covenant of further
assurance should be enforced by directing the defendant to execute a release
deed or a deed of conveyance, and the Court held that the defendant should
execute a deed of conveyance. These decisions do not lay down that a deed
styled a deed of release cannot, in law, transfer title to one who before the
transfer had no interest in the property.
In the result, the appeal is dismissed with
(1)  2 M.L.J. 324, 337.
(2)  2M.L.J. 387, 391.