RANGANAYAKAMMA AND ANOTHER v. K.S. PRAKASH (D) BY L.RS. AND OTHERS

Citation: [2008] 9 S.C.R. 297

Court: Supreme Court of India

Bench: S.B. SINHA, LOKESHWAR SINGH PANTA

Case summary

RANGANAYAKAMMA AND ANOTHER v. K.S. PRAKASH (D) BY L.RS. AND OTHERS.pdf

Judgment text

· [2008] 9 S. C. R. 297 RANGANAYAKAMMA AND ANOTHER v. K. S. PRAKASH (D) BY L. RS. AND OTHERS ' (Civil Appeal No. 3635 of 2008) MAY 16, 2008 8 [S. B. SINHA AND LOKESHWAR SINGH PANTA, JJ] -( HtNDU LAW: Joint family properties - Partition of through family settlement - Sisters relinquishing their rights in properties in favour of their brothers - Consent decree based on family settlement - HELD: A partition by meets and bounds may not always be possible - A family settlement is entered into for a larger purpose of achieving peace and harmony in the family - It is not ' .... a case where settlement was contrary to any statutory provision or was opposed to public policy - Court shall apply the statute to uphold a compromise unless it is otherwise vitiated "" in law - Contract Act, 1872 - s. 23. DEEDS AND DOCUMENTS.

" Deed of 'release' - Relinquishment of right in properly by, sisters in favour of their brothers - HELD,· Release by an heir other than coparcener does not need any consideration - s. 25 of Contract Act must be read and construed having regard to the fact situation obtaining in the case - Renuncia- " tion in Indian context may be or may not be for consideration - Contract Act, 1872 - s. 2 (d) and 25 - Transfer of Property Act, 1882 - ss. 122 and 123. CONTRACT AcT, 1872: ss.

17 and 19 - 'Fraud' - Voidabi/ity of agreement - Suit by sisters against their brothers and other sisters alleging fraud -I in obtaining consent decree in an earlier partition suit- HELD: When a fraud is alleged, particulars thereof are required to be pleaded - In the instant suit, no particulars of alleged fraud or misrepresentation have been disclosed - Besides, documents on record show that partition consequent upon consent decree had been acted upon - Papers were signed either in office of advocate or before Sub-Registrar - Both the courts below recorded a finding that the sisters had jointly taken a stand that they would not claim any share in properties - No case of fraud or misrepresentation has been made out - Code of Civil Procedure, 1908 - Or. 6, r. 4.

L1M1TATION Acr, 1963: Schedule -Articles 59, 65 and 110 - Suit alleging fraud in obtaining deed of partition - Limitation - HELD: Applicability of Article 59 would depend upon the question as to whether deed of partition was required to be set aside or'not - In the instant case, it was required to be set aside - In view ofArticle 59, suit was barred by limitation. ~ The plaintiffs-appellants, two sisters, filed Suit No. 1760 of 1990 against their brothers defendants-respondents Nos. 1 and 2 and other sisters for partition of the suit properties on the ground that the same were self acquired properties of their father, 'KS'. It was also stated that the two brothers defendants-respondents no. 1 and 2 acted fraudulently in getting the Power of Attorneys from them and obtaining a consent decree in earlier partition ... suit No. 2459 of 1982. The stand of the defendants-respondents nos.

1 and 2 was that their father 'KS' alongwith other family members came to acquire the properties through a partition of joint family properties effected in the year 1957. 'KS' had two wives namely 'S' and 'V' and in Partition Suit No. 2459 of 1982 the properties were further divided half and half between the two branches of 'KS' by a consent decree passed in terms of a compromise. Pursuant to the said compromise decree, a further deed of partition was executed on 5. 8. 1983 (Ext. D-6) amongst the children of 'KS' from 'S' in terms whereof 1/3 AND OTHERS share in the property shown as Item No. 3 was allotted to "" their mother 'S' and rest of the properties were retained by the two brothers, defendants-respondents nos. 1 and 2, in whose favour the sisters relinquished their right in the property out of love and affection. 'S' died on 10. 9. 1983. Defendants-respondents no.

1 and 2 pleaded that the suit without prayer for cancellation of partition deed was not maintainable and was also barred by limitation. The trial ... court dismissed the suit. However, it held that the two plaintiffs and defendants 1 to 8 were entitled to 1/33 share each in Item No. 2 of the suit properties. In the appeal the plaintiffs filed an application under Or. 6 r. 17 read withs. 151 of the Code of Civil Procedure, 1908 seeking amendment to the plaint stating that some more properties belonging to their father were also available for partition and the same were required to be added as Items nos. 5 and 6 ... , to the Schedule of the properties. The High Court dis- ... \· missed the appeal. In the instant appeal filed by the two plaintiffs it was contended for the appellants that the averments made in Suit No.

2459 of 1982 being fraught with the elements of fraud and mis-representation, no reliance could have been placed thereupon nor the plaintiffs-appellants could be said to have voluntarily made admissions in the said pleading; that the deed of partition and the deed of relinquishment being void ab initio and hit by Section 25 of the " )( Indian Contract Act as for the said purpose passing of adequate consideration was necessary, love and affection being not the requisite consideration therefor and, as such, it was not necessary to pray setting aside of the deeds of partition and relinquishment; that the partition of the properties being unfair and unequal, reopening of the partition was permissible, wherefor also it was not necessary to seek cancellation of the documents; that in the facts and circumstances of the case, Article 65 or Article 110 of the Schedule to the Limitation Act would be attracted and not Article 59 thereof. )- Dismissing the appeal, the Court HELD: 1.

1 The source of title in respect of properties in suit is not in question, as the same have all along been treated as joint family properties by both the branches of 'KS' tllrough his two wives 'S' and 'V'. This is . ; evident from the records of O. S. No. 2459 of 1982. The ,.. fact that in the said suit, the properties of 'KS' were described as the joint family coparcenary properties is not in dispute. Even otherwise, in view of the well-settled principle of law that when a son gets a property from his father, as soon as sons are born to him, a joint family is constituted. It is not a case that sons from either side of the family were born before the Hindu Succession Act 1956 came into force. [para 23 and 26] [323-A,F,G. 326-A,B] .. Mst. Rukhmabai v. Lala Laxminarayan and Others 1960 ~ (2) SCR 253 - relied on. 1. 2 The earliest deed of partition dated 22"a July, 1957 was a registered document.

A perusal of the averments made in the plaint categorically goes to show that the partition referred to therein related to the partition effected in 1957. The admissions made by the appellants in their pleadings in Suit No. 1760 of 1990 themselves are sufficient to hold that the property was a joint family property ~ and by reason of the said deed of settlement culminating in passing of the compromise decree dated 20. 12. 1982, a valid consent decree was passed. [para 25] [325-D,F,G] 1. 3 It may be true that although the properties were described as coparcenary properties and both the branches were granted equal share, but it must be remembered that the decree was passed on the basis of the settlement arrived at. It was in the nature of a family settlement. Some 'give and take' was necessary for the purpose of arriving at a settlement. A partition by meets and AND OTHERS bounds may not always be possible. A family settlement is entered into for achieving a larger purpose, viz.

, achieving peace and harmony in the family. [para 24] [324-E,F] Hari Shankar Singhania and Others v. Gaur Hari Singhania and Others (2006) 4 sec 658; Govt. of A. P and Others v. M. Krishnaveni and Others (2006) 7 SCC 365 and Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel (2006) 8 sec 726 - relied on. 1. 4 When there arises a question as to whether the suit was to be regarded as having adjusted by way of mutual agreement so that it can be disposed of on the said terms, in the event of a dispute, the consideration is different. However, where a settlement had been arrived at and a decree was passed on the premise that the said compromise was lawful, the same cannot be permitted to be re- 0 opened only on the question as to whether the properties were joint properties or self-acquired properties of the common ancestor. A consent decree was passed in Suit No. 2459 of 1982 pursuant to a settlement arrived at between the two branches.

The properties were divided half and half through a deed of partitlon (Ext. D-6). Indisputably, the said consent decree has been acted upon and ten sale deeds and some lease deeds have been executed and, therefore, question of reopening entire Suit No. 2459 of 1982 by setting aside the decree passed therein would not arise. [Para 23 and 39] [323-G, 324-A,B, 336-B,C,D] • 2. 1 In the instant case, the basis for the entire suit being commission of fraud in obtaining the consent decree in suit No. 2459of1982, it was obligatory on the part of the plaintiffs in Suit No. 1760of1990 to pray for setting aside the said decree. The pleadings of the appellants in the suit in which they were parties are binding on them in the subsequent proceedings proprio vigore. Unless fraud was proved, they could not have got rid of the same. When a fraud is alleged, as provided in Order 6, r. 4, Code of Civil Procedure, 1908, the particulars thereof are required to be pleaded. In suit No.

1760 of 1990 no particulars of the alleged fraud or misrepresentation have been disclosed. The plea of fraud raised therein is general in nature. It is vague. It was alleged by the plaintiffs that signatures were obtained on several papers on one pretext or the other and they had signed in good faith believing the representations made by the respondents, which according to them appeared to be fraudulent representations. When such representations were made, what was the nature of representations, who made the representations and what type of representations were made, have not been stated. [para 23, 35-36] [324-C,D, 331-D,E,F,G] A. C. Ananthaswamy v. Boraiah (2004) 8 SCC 588 - relied on. 2. 2 If a fraud or misrepresentation is to be attributed, the same must be attributed to the entire family representing both the branches and not to respondent No. 1 alone. They must have thought that by reason of such averments a . settlement can be brought about.

The averments made in the suit filed by one branch were accepted by the other branch without any demur whatsoever. [para 25] [325-G, 326-A] 2. 3 Before the deed of partition was entered into, on 1 15 h July, 1983 a special power of attorney was executed by plaintiff no. 2 in favour of respondent No. 1. A clear recital was made therein that she had agreed to relinquish her interest and the power of attorney was being executed pursuant thereto. Power of attorney need not necessarily be preceded by a regular deed. Relinquishment may be unilateral. A sister relinquishing her right in favour of the brothers may do so in various ways. Expression to that effect may be made in several ways. A power of attorney need not disclose the purpose for which the relinquishment is made or the consideration thereof. [para 28- AND OTHERS 29) [326-D,E,F,G,H] 2.

4 Section 19 of the Contract Act 1872 provides that any transaction which is an outcome of any undue misrepresentation, coercion or fraud shall be voidable. If, however, a document is prima facie valid, a presumption arises in regard to its genuineness. [para 33) [330-A,B] Prem Singh v. Birbal and Others (2006) 5 SCC 353 relied on. 2. 5 In the plaint of Suit No. 1760 of 1990, execution or validity of the documents including the registered power of attorneys and deeds of lease being Exhibit Nos. 9, 10, 11, 12, 13 and 14 executed between 1983 and 1985 are not in question. There are a large number of documents brought on record by the parties wherefrom a positive knowledge of execution of the partition deed (Ext. D- ·~ 6) on the part of the sisters is possible to be attributed. ~ These documents in categorical terms go to show that the partition effected in 1983 had been acted upon. Admittedly, the papers were signed either in the office of the advocate or before the Sub-Registrar.

It was, therefore, done at a public place. No signature was obtained on the blank paper. Plaintiff-appellant No. 1 in her deposition before the trial court admitted that each of the sisters had been given one rupee and their signatures were obtained ~ on the partition deed dated 5th August, 1983. She was flu- ~ ent in English and signed the documents in English. Both the courts below have come to the conclusion that the sisters jointly had taken a stand that they would not claim ~ny share in the property. One of the sisters, who wanted a share in the property, had been paid a sum of Rs. 40,000/ - and she had executed a deed of relinquishment. The said fact is not denied. All other sisters were, thus, aware thereof. They knew what was meant by relinquishment. All deeds including the said deed of partition was executed with the knowledge that they had been signing the deed of partition and no other document. The plaintiff-appel- >. ,.

lants never stated that any fraud or misrepresentation had been practiced in regard to the character of the documents. No case of fraud or mis-representation has been made out. It was, therefore, difficult to arrive at a conclusion that the plaintiffs-appellants were not aware of the nature of the document or that any fraud had been practiced on them. These findings have a direct bearing on the question as to whether the deed of partition as also the power of attorneys were vitiated by reason of any fraud or misrepresentation on the part of respondents Nos. 1 and 2. Jt is a well-settled principle of law that a void document is not required to be avoided whereas a voidable document must be. [para 29-32, 37 and 54) [327-D-F, 329- E,F 332-A-D, 343-F] Prem Singh v. Birbal and Others (2006) 5 SCC 353 - )'-, relied on. ;. 3. It is not a case where the settlement was contrary to any statutory provision or was opposed to public policy as envisaged under Section 23 of the Contract Act.

The court shall apply the statute for upholding a compromise unless it is otherwise vitiated in law. It is not required to go into the question as to whether the contents of the said settlemen. t 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 nul- 'I lity. [para 40) [336-D,E,F] Chief Engineer, M. S. E. B. and Another v. Suresh Raghunath Bhokare (2005) 10 SCC 465; Ramesh B. Desai and Others v. Bipin Vadi/al Mehta and Others (2006) 5 SCC 638; Sangramsinh P Gaekwad and Others v. Shantadevi P Gaekwad (Dead) Thr. ough LRs. and Others (2005) 11 SCC ~ 314 - relied on. Sundar Sahu Gountia and others v. Chamra Sahu Gountia and others AIR 1954 Orissa 80 - held inapplicable. AND OTHERS ;_ Ganpatbhai Mahaijibhai Solanki v. State of Gujarat and Ors. 2008 (3) SCALE 556 - referred to. 4. 1 A deed of 'release' for a consideration is a transaction.

When, a release is made for consideration, the particulars of consideration and other particulars are required to be averred in the deed being essential elements thereof. Relinquishment of a property by a sister in favour of her brother for a consideration or absence of it, stands on a ... different footing. Section 25 of the Contract Act must be read and construed having regard to the fact situation obtaining in the cases. Renunciation in Indian context may be for consideration or may not be for consideration. [para 43 and 45) [337-D,E,F, 338-E] Smt. Manali Singhal and another v. Ravi Singhal and others AIR 1999 Delhi 156; Kuppuswamy Chettiar v. A. S. P. A. Arumugam Chettiar and Another (1967) 1 SCR 275; Chief ~ Controlling Revenue Authority, Referring Officer v. Rustorn Nusserwanji Patel AIR 1968 Madras 159; The Chief Controlling Revenue Authority, Board of Revenue, Madras v. Dr. K. Manjunatha Rai AIR 1977 Madras 10- referred to. De' Souza's Conveyancing, page 1075 - referred to. 4.

2 Section 25 of the Contract Act contains several exceptions, that is to say: (i) if it is in writing; (ii) if it is registered or (iii) if the same has been executed on account of " ) - .. (x) She also accepted that a deed of lease was executed in favour of Defendant No. 9 M/s. Voltas Limited and she had been receiving Rs. 9000/- per month from the said Company. In one of the documents even her husband is an attesting witness. He is also a lawyer. It was, therefore, difficult to arrive at a conclusion that the plaintiffs - appellants were not aware of the nature of the document or any fraud had been practiced on them . .. ... 32. The aforementioned findings have a direct bearing on the question as to whether the deed of partition as also the power of attorneys were vitiated by reason of any fraud or mistake on the part of the respondent Nos. 1 and 2 herein. It is a well-settled principle of law that a void document is not required to be avoided whereas a voidable document must be.

;It is not necessary for us to advert to a large number of decisions of this Court ~-+ and other High Courts on this issue as more or less it is coneluded by a decision of this Court in Prem Singh v. Birbal and Others [(2006) 5 SCC 353] wherein this Court held: . J "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 prescribed period, the institution of a suit will be barred. Section 3 of the Limitation Act l ~ provides that irrespective of the fact as to whether any defence is set out or is raised by the defendant or not, in the event a suit is found to be barred by limitation, every suit instituted, appeal preferred and every application made after the prescribed period shall be dismissed. " In Mst.

Rukhmabai (supra), this Court held: +-~ "In unraveling a fraud committed jointly by the members of a family, only such letters that passed inter se between them can give the clue to the truth ... " Yet again in A. C. Ananthaswamy v. Boraiah [(2004) 8 SCC 588], this Court categorically laid down that in establishing alleged fraud, it must be proved that the representation made was false to the knowledge of the party making such representation or that the party could have no reasonable belief that it was true. Level of proof required in such a case was held to be extremely high. ... 34. Another aspect of the matter cannot also be lost sight -"'( of. Order VI, Rule 4 of the Code of Civil Procedure reads as under: "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 .

l 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 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, un- . ,,. fair 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 executed with the knowledge that they had been signing the deed of partition and no other document. This has categorically been stated by the plaintiff No. 1 Kanthamma in her evidence which we may notice in the following terms: 1. "Each of the sisters have been given one rupee and signatures were obtained on partition deed on ... • 5. 8. 1983" 2. "I had gone to Sub-Registrar's office at the time of registration of the said partition deed. Sub-Registrar did not explain the contents of the said partition deed. 3. "I do not remember the date on which I affixed my signature on partition deed.

We all the sisters and +--mother had gone to Sub-Registrar's Office at the time of registration of the partition deed. " They were, therefore, aware that the deed in question was a deed of partition. They admitted that they had put their signalures 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 fur- . ,. nished 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 0 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 socalled fraudulent proposal or what role he had to play in such proposal being sent... " [See also Prem Singh (supra)] In Ramesh B. Desai and Others v. Bipin Vadilal Mehta.

· and Others [(2006) 5 SCC 638], this Court emphasized the necessity of making requisite plea of Order VI, Rule 4 stating: "22. Undoubtedly, Order 6 Rule 4 CPC requires that complete particulars of fraud shall be stated in the pleadings. The particulars of alleged fraud, which are required to be stated in the plaint, will depend upon the facts of each particular case and no abstract principle can be laid down in this regard. " In Sangramsinh P Gaekwad and Others v. Shantadevi P Gaekwad (Dead) Through LRs. and Others [(2005) 11 SCC 314], this Court held: "207. We may now consider the submissions of Mr Desai that Appellant 1 herein is guilty of commission of fraud. Application filed by Respondent 1 before the Gujarat High Court does not contain the requisite pleadings in this behalf, the requirements wherefor can neither be denied nor disputed. 208.

It is not in dispute that having regard to Rule 6 of the Companies (Court) Rules, the provisions of the Code of Civil Procedure will be applicable in a proceeding under the Companies Act. In terms of Order 6 Rule 4 of the Code of Civil Procedure, the plaintiff is bound to give particulars of the cases where he relies on misrepresentation, fraud, breach of trust, etc. " 39. Strong reliance has been placed by Mr. Chandrasekhar on a decision of the Orissa High Court in Sundar Sahu Gountia and others v. Chamra Sahu Gountia and others [AIR 1954 Orissa 80], wherein it was opined: "12. The principles deducible from a consideration of these authorities may be summarised as follows : (i) To constitute a valid family arrangement the transaction should be one which is for the benefit of the family generally. (ii) The consideration for the arrangement may be preservation of the family property, preservation of the peace and honour of the family, or the avoidance of litigation.

iii) It is not essential that there should be a doubtful claim, (""" or a disputed right to be compromised. If there is one, the settlement may be upheld if it is founded on a reciprocal 'give and take and there is mutuality between the parties, in the one surrendering his right and in the other forbearing to sue. In such cases the Court will not too nicely scrutinise the adequacy of the consideration moving from one party to the other. (iv) In any case, if such an arrangement has been acted ..... '4 upon the Courts will give effect to it on the ground of estoppel or limitation and the like. (v) A family arrangement may also be upheld if the consideration moves from a third party. (vi) If it appears to the Court that one party has taken undue advantage of the helplessness of the other and there is no sacrifice of any right or interest, the agreement • is unilateral and is devoid of consideration.

,l (vii) The consent of the parties should be freely given to the arrangement and gross inadequacy of consideration may be a determining factor in judging whether the consent was freely given. (viii) If the agreement involves or implies an injury to the person or property of one of the parties, the Courts retain an inherent power to prevent injustice being done. " >( In that case, the court refused to record the alleged settle- "' ment 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 deci- ~·--t sion 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 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 ..

l 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 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 settle- '"' ment are correct or not. Only in a case where fraud on the party or fraud on the court has been alleged or established, the court shall treat the same to be a nullity. Fraud, as is well known, vitiates all solemn acts. [See Ganpatbhai Mahijibhai Solanki v. State of Gujarat and Ors. , 2008 (3) SCALE 556] but the same must be pleaded and proved. ,...... 41. We may now consider the submission of Mr. Chandrasekhar as to what is meant by 'release'.

Reliance has been placed on De'Souza's Conveyancing, page 1075, wherein it has been stated: "'" "A deed of release does not create title. A release may be drafted in the same form as a deed of transfer or simply as a deed poll or a deed to which both parties may join stating the circumstances under which the release is based. Either the monetary consideration or "the premises", i. e. , facts in consideration of which the release ~ is made shall be stated. " ~ 42. Our attention has also been drawn to essentials of 'release' from the said treatise, which are as under: "(i) Full recitals of the origin of the claim, which form the most important part; (ii) knowledge of the releaser about the claim, intended to be released; ~ (iii) words and expressions sufficiently clear to convey ~ the intention of the releaser to discharge the right or the claim. " 43. A deed of 'release' for a consideration is a transaction.

When, thus, a release is made for consideration, the particulars of consideration and other particulars which are required to be averred in the deed being essential elements thereof. Relinquishment of a property by a sister in favour of her brother for a consideration or absence of it, stands on a different foot- "I ) ; 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 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: ll "... Some additional factor is required to bring a case ' "1 within one of the exceptions: for example, the existence of a relationship in which one party is able to take an unfair advantage of the other. In the absence of some such factor, the general rule applies that the courts will enforce a promise so long as some value for it has been given. " As regards, nominal and inadequate consideration, the learned Author states: ;. "'Nominal consideration' and 'nominal sum' appear. ... , as terms of art, to refer to a sum or consideration which can .... be mentioned as 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 x 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 .. i 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 ,I. " 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 promiser, the promisee or ). any other person has done or 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 reasonable equivalent or other valuable benefit passed on by the promiser to the promise or by the transferor to the trans- .... feree. Love and affection is also a consideration within the _... _ meaning of Sections 122 and 123 of the Transfer of Property Act. 52. In Mt. Latif Jahan Begam v. Md. Nabi Khan [AIR 1932 Allahabad 174], the Allahabad High Court rightly held that a question in regard to the adequacy of consideration for the purpose of attracting Section 25 of the Indian Contract Act is a mixed question of fact and law and not a pure question of law stating: , >< "... The question did not involve a mere point of law. It required the determination of a question of fact, viz. , whether the agreement was made on account of natural love and affection. The Court below was not justified in recording a finding that the plaintiff had not proved that there was any affection between herself and her father in law.

There was no occasion in this case for the plaintiff to offer any proof on a point which was not raised at the trial. '"' . , We are of opinion that the learned District Judge has erred in entertaining and giving effect to this plea. " Yet again in Gauri Shanker v. Mis. Hindustan Trust (Pvt. ) I f. A. 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 stiould 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 ~ -'I different. In M/s. John Tinson and Co. Pvt. Ltd. and others v. Mrs.

Surjeet Malhan and another [AIR 1997 SC 1411], it is stated that a distinction must be made between a transaction which is invalid in law being ultra vires the Articles of Association and other transactions. What is contemplated is the sense of ad idem for a concluded contract but when a document can be ~ executed for no consideration, pleading in that behalf would be ~ a must. 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 1/3'd 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 rent- . als 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 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 [2008] 9 S. C. R. \ ). _ ~ 3. Exhibit D-14 dated 16-2-1985, Registered lease deed by Plaintiff No. 1 referring to Exhibit D-6 and also two other registered lease deeds by Defendants Nos. 1-8 and Plaintiff No. 2. , 4. Exhibit D-19 to D-22 rent receipts having received \ rents by the sisters. .. 55. As regards, Power of Attorney executed by Ranganayakamma Plaintiff No. 2. It appears that there were three such documents, viz. : 1. Ex. D - 9 is a Special Power of Attorney executed at Cuddappcih appointing K. S.

Prakash to execute lease deed with respect to 1/11th of 113rd share of mother's share. It was attested byT. S. Ranganaikalu and N. K. Swamy, Advocates. '\ ~ 2. Ex. D - 10 is a Power of Attorney dated 20. 12. 1983 executed at Cuddappah appointing K. S. Prakash relinquishing her share in M/s. Singaramma Flour Mills. It was attested by T. S. Ranganaikalu and N. K. Swamy, Advocates. 3. Ex. D-11 is an affidavit of Ms. Ranganakayamma stating on oath that Ex. D-9 is valid and subsisting. It was attested by R. V. Prasad, Advocate. ) " 56. It may be true that there is nothing on record to show that a lease deed was executed by other plaintiff but then there is nothing to show that she was not aware thereof. If she had not been paid her share from the rental income, she had not prayed for mesne profit. 57. We may now consider the question of limitation raised by Mr. Chandrashekhar. .. ,.

' Applicability of Article 65 or Article 110 of the Limitation Act, on the one hand, and Article 59 thereof, on the other, would depend upon the factual situation involved in a case. RANGANAYAKAMMAAND v. K. S. PRAKASH (0) 345 I ,. < Article 59 reads as under: "59. To cancel or Three When the facts entitling the years set aside an plaintiff to have the instruinstrument or decree ment or decree cancelled or for the rescission or set aside or the contract of a contract. rescinded first become known to him. " A decree for setting aside a document may be sought for in terms of Section 31 of the Specific Relief Act. Applicability ofArticle 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 0 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}, Mis. Bay Berry Apartments Pvt. Ltd. &Anr. v Shobha & Ors. 2006 (10) SCALE 596 and Utha Moidu Haji v. Kuningarath Kunhabdu//a 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 F . this appeal which is dismissed accordingly. No costs. R. P. Appeal dismissed.