Ranganayakamma & ANR. Vs. K.S. Prakash (D) by LRS. & Ors. 
INSC 977 (16
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
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
Smt. Jayamma, Deft. No.3 1. Sri
Smt. Kanthamma, Plff. No.1 2.
Smt. Susheela (Late)
Smt. Ranganayakamma, Plff 3.
Smt. Bhagyalakshmi No.2Lakshamamma 2nd wife
Smt.Naramma Devi, Deft. No.4
Lakshmi 4. Smt. Lakshmi Devi
Smt. Venajakshi 5. Sri K.S.
Sri K.S. Prakash, Deft. No.1 6.
Sri K.S. Ramesh, Deft. No.2 7.
Smt. Sarojamma, Deft. No.5 K.
Harida Sreenivasa Pasad Smt. K. Sreeni 8. Sri K.R. K.R. Venkatamma
Smt. Seethqalakshmi, Deft. No.6
9. Smt. Padmavathi Salu Venkatesulu Sreenivasulu
Smt. Bharathi, Deft. No.7
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
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
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
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
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
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
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.
12. Indisputably, again a deed of
lease was executed by plaintiff- appelalnt No.2 herein in favour of M/s. Voltas
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.
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 :-
"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?
defendant No.1 prove plaintiffs executing valid powers of attorney on 15.7.1983;
20.12.1983 and 5.8.1985?
defendants 1 and 2 prove due execution of release deed dated 5.8.1983 by the
plaintiffs for valid and proper consideration.
defendants 1 and 2 prove partition deed dated 5.8.1983 is valid one?
plaintiffs and defendants 3 to 8 prove that the defendants 1 and 2 obtained
partition deed dated 5.8.1983 by playing fraud? 12
Whether the plaintiffs are estopped from filing this suit due to decree in O.S. 2459/1982?
suit is barred by limitation?
Whether the suit is bad for
non-joinder of necessary parties?
valuation made is insufficient?
plaintiffs prove their right for partition and possession of 1/10 share to each?
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
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
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.
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
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
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
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.
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.
The suit was
not maintainable as the appellants had not sought for any declaration that the
partition deed was void.
15The 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.
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
In view of
the admission made by the appellants that the suit properties were the joint
family properties, they are bound thereby.
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 :-
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.
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.
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.
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.
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.
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.
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.
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
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.
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
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.
attorney having not been witnessed by a close relative in a case of this nature,
the impugned judgment cannot be sustained.
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
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
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
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
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
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
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
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
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. 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:
Her father was carrying on
business in Sarees.
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
31 A suit was instituted
which ended in compromise. She had affection for and faith in
Defendant Nos. 1 and 2.
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.
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.
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.
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
also accepted that after the death of her father she had been given 1/11th in
Item No.2 of Schedule property.
One of the documents was
attested by Mr. T.S. Ranganaikalu and Mr. N.K. Swamy,
33She 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
"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
"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
"Each of the
sisters have been given one rupee and signatures were obtained on partition deed
"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.
"I do not
remember the date on which I affixed my signature on partition deed. We all the
sisters and mother had gone to Sub- Registrar's Office at the time of
registration of the partition deed."
They were, therefore, aware that
the deed in question was a deed of partition. They admitted that they had put
their signatures before the Sub-Registrar and no where else. Their statements
appear to be far- fetched and beyond the ordinary human conduct. If a plea was
to be raised and evidence was required to be addressed that there had been a
fraudulent misrepresentation as regards the character of partition deed
(Exhibit D-6) and in absence of any particulars having been furnished as
regards alleged fraud and misrepresentation, the said deeds would not be void
but only voidable.
38. 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
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."
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 :
constitute a valid family arrangement the transaction should be one which is for
the benefit of the family generally.
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.
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.
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.
arrangement may also be upheld if the consideration moves from a third party.
42 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.
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
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
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 " Full recitals of the
origin of the claim, which form the most important part;
the releaser about the claim, intended to be released;
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
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
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
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
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
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
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
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.
53. The High Court, therefore, in
our opinion, was correct in not allowing the appellants to raise the said
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
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.
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,
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. 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
57. We may now consider the
question of limitation raised by Mr.
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
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.
[Lokeshwar Singh Panta] New Delhi;