TMI Blog2008 (5) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... n and possession of 1/10 share to each? To what shares the defendants are entitled? To what reliefs the parties are entited? - C.A. 3635 OF 2008 - - - Dated:- 16-5-2008 - SINHA, S.B PANTA, LOKESHWAR SINGH ,JJ. JUDGMENT 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. We may, at the outset, notice the genealogical tree of the family which is as under :- Kasetty Rangappa Children of the 1st Wife Children of the 2nd Wife Widow Smt. Naramma 1. Smt. Jayamma, Deft. No.3 1. Sri K.S. Mohan 2. Smt. Kanthamma, Plff. No.1 2. Smt. Susheela (Late) 3. Smt. Ranganayakamma, Plff 3. Smt. Bhagyalakshmi No.2Lakshamamma 2nd wife 4. Smt.Naramma Devi, Deft. No.4 Lakshmi 4. Smt. Lakshmi Devi 5. Smt. Venajakshi 5. Sri K.S. Sudarshan 6. Sri K.S. Prakash, Deft. No.1 6. Smt. Saraswathi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of ₹ 39,615.79. Respondents Nos. 1 and 2 herein, sons of K. Sreenivasulu through Singaramma were the junior members of the family. At the time of her death of Sreenivasulu, they were minors. 5. Indisputably, a suit for partition being O.S. No. 2459 of 1982 was filed by the first respondent K.S. Prakash besides others. Whereas, according to the appellants, the said suit was filed by way of machination on the part of respondent No.1 herein but admittedly all the parties were plaintiffs therein. 6. The plaint in the said suit discloses that Sreenivasulu and his brothers partitioned their properties in the year 1957 who constituted a Joint Hindu Family. The said Joint Hindu Family had extensive immovable properties in the towns of Bangalore and Darmavara. Allegedly some immovable properties falling in the share of K. Sreenivasulu are still joint. A coparcenary was constituted between him and his sons. Properties were purchased by him out of the nucleus of the immoveable properties, which fell to the share of Sreenivasulu in the said partition meaning thereby that the partition took place in 1957 and several other moveable and immovable properties were acquired in the name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sand only) which together with ₹ 30,000/- (Rupees thirty thousand only) paid earlier by the plaintiff in all amounts to ₹ 1,10,000/- (Rupees one lakh ten thousand only). It is further ordered and decreed that in case the amounts realized by sale of items 6 and 7 and item 8 are insufficient to clear the Tax arrears, the plaintiffs shall bear 2/5 share, the defendants shall bear 3/5 share of the tax liability and in case the amounts realized by the sale and refund claimed in respect of the said properties are in excess of the Tax liability, the remaining balance amounts shall be shared by plaintiffs and defendants in the proportion of 2/5 and 3/5 share respectively. It is further ordered and decreed that the plaintiffs and defendants are not liable to each other with regard ti income accruing from the properties allotted to them and also for mesne profits. 8. Allegedly Singaramma was not keeping well. She underwent kidney operation at Vellore. 9. The plaintiffs-appellants alleged that respondent Nos. 1 and 2 used to take signatures them as well as others representing that the same were required for payment of tax and also for managing the properties. The said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xecuted 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 :- 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 mis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o decree in O.S. 2459/1982? 7. Whether the suit is barred by limitation? 8. Whether the suit is bad for non-joinder of necessary parties? 9. Whether the valuation made is insufficient? 10. Do the plaintiffs prove their right for partition and possession of 1/10 share to each? 11. To what shares the defendants are entitled? 12. To what reliefs the parties are entited? 17. On issue No.1, the learned trial judge found that the same had not been proved by the plaintiffs-appellants stating that they have failed to explain the admission made by them in the earlier plaint. In regard to issue Nos. 2 and 3 it was held that the properties were ancestral properties and not separate properties of Sreenivasulu. As regards execution of Power of Attorneys as also the Deeds of Release, the trial court opined that they were voluntary in nature. In regard to issue No.7 pertaining to limitation, it was held that the suit was barred by limitation as the plaintiffs had not sought for cancellation of deed of partition. It was held that since after partition, the deeds of lease have come into existence in February, 1985, the suit filed in 1990 without praying for cancellation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the partition, the appellants were estopped and precluded from challenging the same. 7) In view of the admission made by the appellants that the suit properties were the joint family properties, they are bound thereby. 8) As both the deed, viz. the deed of partition as also the deed of lease were written in English language and the appellants could speak in that language fluently, allegations of mis representation have not been proved. 21. Mr. G.V. Chandrasekhar, learned counsel appearing on behalf of the appellants, in support of this appeal, raised the following contentions :- i) The courts below committed a serious error in not drawing adverse inference against respondents Nos. 1 2 as the said purported deed of partition dated 2nd July, 1957 and the other deeds including the Power of Attorney executed by the 4th defendant had not been produced. The purported application for adducing additional evidence to prove the deed of partition dated 22nd July, 1957 thus should not be allowed by this Court. ii) The averments made in the 1982 suit being fraught with the elements of fraud and mis-representation, no reliance could have been placed thereupon nor the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and/or affection being consideration must be disclosed in the document, which having not been done, the impugned judgments could not have been sustained. xii) Power of attorney having not been witnessed by a close relative in a case of this nature, the impugned judgment cannot be sustained. 22. Mr. S.S. Javali, learned senior counsel appearing on behalf of respondent Nos. 1 and 2, on the other hand, urged :- i) All the documents being registered documents, they carry a presumption of proper execution as also the contents thereof and in that view of the matter the burden was on the appellants to prove that they were vitiated by fraud or misrepresentation. Presumption of validity strengthens with the passage of time. ii) Appellants having themselves admitted that the properties in question were the joint family properties and not the self acquired properties are bound thereby, which they themselves admitted in the list of dates. iii) The contention having been raised for the first time in this Court that there had been no partition in the year 1957, the respondents have produced the said document, which being a registered one, may be taken into consideration. iv) In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - representation on their part particularly when they had admitted their knowledge about the nature of the document. x) Even Appellant No.2, deposing as PW-2, has accepted execution of the power of attorney which was prepared at Cuddpath. It was only in respect of the mother's 1/3rd share in one of the properties that the plaintiffs had 1/11th share, which they had not only accepted in the power of attorney executed by them, but also in the list of dates stating that not only a lumpsum amount had been paid to the appellant No.1, but also the fact that they had been getting their share of rent through cheques and appropriating them. This conduct on the part of the appellant would clearly show that they not only executed the deeds voluntarily, but also have been getting the benefit thereof by way of receiving rent. Even she identified the document as a power of attorney and as such she would be deemed to have known about the nature thereof. 23. The source of title in respect of properties in suit is not in question. It was Kasetty Rangappa's property. K. Sreenivasulu being son of Kasetty Rangappa used to do business in partnership. There were some joint family propertie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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. The said decree has been acted upon. Pursuant to or in furtherance of the said decree, ten sale deeds have been executed. 24. It may be true that although the properties were described as coparcenary property and both the branches were granted equal share but it must be remembered that the decree was passed on the basis of the settlement arrived at. It was in the nature of a family settlement. Some `give and take' was necessary for the purpose of arriving at a settlement. A partition by meets and bounds may not always be possible. A family settlement is entered into for achieving a larger purpose, viz., achieving peace and harmony in the family. In Hari Shankar Singhania and Others v. Gaur Hari Singhania and Others [(2006) 4 SCC 658], this Court held: 43. The concept of family arrangement or settlement and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been acted upon. 31. It would be of some importance, furthermore, to notice that the plaintiff Appellant No. 1 Kanthamma in her deposition before the learned Trial Judge admitted: (i) Her father was carrying on business in Sarees. (ii) Each of the sisters had been given one rupee and their signatures were obtained on the partition deed dated 5th August, 1983. There was some function on that date, on which occasion all the sisters had put their respective signatures. There had been a partition between the children of the second wives of Sreenivasulu and children of her mother. (iii) A suit was instituted which ended in compromise. She had affection for and faith in Defendant Nos. 1 and 2. (iv) She was told by others that she had been cheated by their brothers. She, however, could not say as to who they were. She speaks fluent English. She signed the documents in English. She had been running a poultry business under the name and style of Kantha Poultry Farm. She had also been doing saree business with her husband. Her husband had a roller flour mill business. He is also one of the partners in Singaramma Flour Mills, Bangalore. (v) One of the sisters of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 est in the eye of the law, as it would be a nullity. 33. Section 16 of the Indian Contract Act provides that any transaction which is an outcome of any undue misrepresentation, coercion or fraud shall be voidable. If, however, a document is prima facie valid, a presumption arises in regard to its genuineness. In Prem Singh (supra), it was stated: 27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption. It was opined: 12. An extinction of right, as contemplated by the provisions of the Limitation Act, prima facie would be attracted in all types of suits. The Schedule appended to the Limitation Act, as prescribed by the articles, provides that upon lapse of the presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed. 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 ₹ 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 par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt emphasized the necessity of making requisite plea of Order VI, Rule 4 stating: 22. Undoubtedly, Order 6 Rule 4 CPC requires that complete particulars of fraud shall be stated in the pleadings. The particulars of alleged fraud, which are required to be stated in the plaint, will depend upon the facts of each particular case and no abstract principle can be laid down in this regard. In Sangramsinh P. Gaekwad and Others v. Shantadevi P. Gaekwad (Dead) Through LRs. and Others [(2005) 11 SCC 314], this Court held: 207. We may now consider the submissions of Mr Desai that Appellant 1 herein is guilty of commission of fraud. Application filed by Respondent 1 before the Gujarat High Court does not contain the requisite pleadings in this behalf, the requirements wherefor can neither be denied nor disputed. 208. It is not in dispute that having regard to Rule 6 of the Companies (Court) Rules, the provisions of the Code of Civil Procedure will be applicable in a proceeding under the Companies Act. In terms of Order 6 Rule 4 of the Code of Civil Procedure, the plaintiff is bound to give particulars of the cases where he relies on misrepresentation, fraud, breach of trust, et ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndants 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 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 par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y between a joint tenant and a tenant-in-common. This distinction has also been applied to the concept of a Hindu Coparcenary as existing before a division in status and the state of rights between erstwhile co-parceners after division is status as would be apparent from cited passages in Mulla's Hindu law. The other line of reasoning is that upon the actual phraseology of Article 55 of Schedule I such a document as this cannot amount to a release. 46. The question again came up for consideration before a Special Bench of the Madras High Court in The Chief Controlling Revenue Authority, Board of Revenue, Madras v. Dr. K. Manjunatha Rai [AIR 1977 Madras 10], in the context of the Payment of Stamp Duty wherein it was categorically held: ...For a release, in law, may be effected either for consideration or for no consideration. In either case, if the transaction operates as a relinquishment or a renunciation of a claim by one person against another or against a specified property, it will be a release... 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecuted 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 contention. 54. We may, furthermore, notice that the deed of partition (Ex. D-6) had been acted upon by the appellants and other sisters. They executed a deed of lease in respect of their 1/11th share each in the 1/3rd share in one of the items of the properties in favour of the tenant, Defendant No. 9. The lease deed executed by Plaintiff No. 1 (Ex. D-14) is dated 16.02.1985. In terms of the deed of partition, one of the plaintiffs received rentals in respect of her share from the tenants. There are a large number of documents brought on records by the parties wherefrom a positive knowledge of execution of the said partition deed on the part of the sisters is possible to be attributed. The said documents are: 1. Exhibit D-4 dated 4-2-1985, Power of Attorney executed by Plaintiff No. 1 mentioning D-6 2. Exhibit D-9 dated 20-12-1983, Power of Attorney by Plaintiff No. 2 referring to D-6 3. Exhibit D-14 dated 16-2-1985, Registered lease deed by Plaintiff No. 1 referring to Exhibit D-6 and also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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