.IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 10..09..2008 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA A.S.NO.200 OF 2002 Asmath Kathu .. Appellant/2nd Defendant vs. 1.Lal Khan .. 1st Respondent/Plaintiff 2.Liyakath Ali .. 2nd Respondent/I Respondent 3.Gudukhan 4.Indian Overseas Bank rep.by its Branch Manager, Ulundurpet, Villupuram District. 5.The Central Co-operative Agriculture Bank, rep.by its Manager, Manila Market, Ulundurpet, Villupuram District. 6.Uzhavar Kootaravu Sangam II, 66 rep.by its Secretary, Manicka Padayachi Street, Ulundurpet, Villupuram District Respondents/3 to 6/Defendants 3 to 6 Appeal preferred against the judgment and decree dated 2.5.2002 passed in O.S.No.140 of 1996 by the I Additional Subordinate Judge,Villupuram. For Appellant : Mr.S.Parthasarathy, Senior counsel for M/s.Sarvabhauman Associates For Respondents : Mr.R.Balakrishnan JUDGMENT This appeal is focussed against the judgment and decree dated 2.5.2002 passed in O.S.No.140 of 1996 by the Ist Additional Subordinate Judge,Villupuram. For convenience sake the parties are referred to under under according to their litigative status before the trial Court. https://hcservices.ecourts.gov.in/hcservices/ 2. The portrayal and parodying of the case of the plaintiff could be set out quintessentially and precisely thus: (a) One Purankhan died issueless and intestate a year and a half, before the institution of the suit, whereas his wife pre-deceased him. Purankhan's legal heirs are his brothers, viz., the plaintiff and D3 herein. The property described in the "A" schedule of the plaint was the absolute property of Purankhan. He had bank accounts as set out in the "B" schedule of the plaint. He had cash of Rs.5 lakhs. He lent money to various persons as found detailed in the "C" schedule of the plaint. (b) The plaintiff and D3 are entitled to half share each in the suit properties after paying the dues towards Purankhan's funeral expenses, debts and legacies, if any. (c) D1 is the husband of D2, who is the daughter of late Nabikhan, who was one of the brothers of Purankhan. D1 and D2 had no right or title over Purankhan's properties and they could have no claim over it also in any capacity. However, they withdrew the money standing in the account of Purankhan from the Banks as set out in the "B" Schedule. (d) In the Panchayat held, D1 and D2 agreed to give half share in the immovable properties and not in the movable properties of deceased Purankhan. (e) Jewels weighing 150 sovereigns were pledged by Purankhan with D6 during his life time and in fact, he discharged the major portion of the debt. After the death of Purankhan, D1 and D2, got the 150 sovereigns of jewels from the Bank without producing any succession certificate or any other evidence to establish their right. D1 and D2 therefore are bound to return to the plaintiff and D3 the jewels as set out in the "D" schedule of the plaint. (f) There were exchange of notices and from that the plaintiff understood the contention of D1 and D2 as though a Hibba was effected by Purankhan in favour of D2 and subsequently, release deeds executed by the plaintiff dated 17.2.1995 and 4.5.1995 emerged. The plaintiff was aged about 65 years and illiterate and taking undue advantage of his innocence, D1 fraudently obtained his thumb impressions in blank papers by representiung that the signature/thumb impressions have been obtained for the purpose of getting relief from the government relating to the death of his brother. Such release deeds are nonest in the eye of law. (g) The contention of D1 and D2 that D2 was the foster daughter of Purankhan is nothing but an utter falsehood. Accordingly, the plaintiff prayed for the following main reliefs: https://hcservices.ecourts.gov.in/hcservices/ "a) to ascertain the extent of the property of the deceased Purankhan and to ascertain and realise the out standings of the deceased Purankhan; b) to administer the estate of the deceased Purankhan by providing for the funeral and other expenses. c) to allot half share in the remaining estate of the deceased on a fair and equitable division. d) to direct the defendants to pay the costs of the suit." 3. Remonstrating and denying, challenging and impugning the allegations/averments in the plaint D2 filed the written statement, the warp and woof of them would run thus: (i) The plaintiff and D3 are not the legal representatives of the deceased Purankhan. The second defendant being the daughter of Nabikhan, was brought up by Purankhan, who had no biological child of his own. While so, Purankhan orally gifted the suit properties in favour of D2 and put her in possession of the same during the months of March 1994 itself. By way of confirmation of the said oral gift, he got it recorded in writing on 21.4.1994. (ii) It was Purankhan who arranged for the marriage of D2 with D1. Since Purankhan's wife pre-deceased him, D2 looked after him till this date. (ii) The plaintiff and D3 executed the release Deed dated 17.3.1995 in favour of D2 and the same was registered. They once again executed a release deed dated 4.5.1995 setting out all the details, so as to avoid future dispute. The plaintiff and D3 are estopped from questioning the validity of the Hibba. (iv) The allegations in the plaint quite contrary to what plaintiff and D3 committed themselves in black and white in the form of release deeds are all false and frivolous, dished out and invented purely for the purpose of depriving D2 of her right over the suit properties. (v) The valuation of the suit and the payment of Court fee are not correct. Purankhan did not possess, at any time, 150 sovereigns of gold jewels and he did not pledge the same with the 6th defendant, during his life time. (vi) The allegations in the plaint that Purankhan had 5 lakhs cash and that he lent monies as found set out in the 'C' schedule of the plaint are all false. Accordingly, D2 prayed for the dismissal of the suit. https://hcservices.ecourts.gov.in/hcservices/ 4. Quintessentially and briefly, the averments as found set out in the written statement of D4 would run thus:- (a) The deceased Purankhan had Savings Bank Account No.14986 with the Bank specifying one Asmath Kathu as his nominee and therefore D4 cannot be found fault with for having given the monies due concerning the Bank account of the deceased Purankhan in favour of D2. (b) D2 also produced the heirship certificate, issued by the Tahsildar Ulundurpet and obtained back the jewels, which were mortgaged by Purankhan during his life time. Accordingly, D4 prayed for dismissal of the suit as against the plaintiff. 5. Precisely and briefly the contentions of D6-Uzhavarpani Kooturavu Sangam as stood exposited from its written statement would run thus:- Purankhan did not pledge 150 sovereigns of gold jewels with D6 during his life time. Only two bangles weighing 16 grams were pledged for a sum of Rs.4,500/- and Purankhan himself, during his life time, returned those jewels. Accordingly, it prayed for dismissal of the suit. 6. The trial Court framed the relevant issues. During enquiry before the trial Court, the plaintiff examined himself as P.W.1 and marked Exs.A1 to A8. On the side of the defendants, D.W.1 to D.W.7 were examined and Exs.B1 to B.36 were marked. 7. Ultimately the trial Court decreed the suit. Being dissatisfied with and aggrieved by the said judgement and decree of the trial Court, D2 filed this appeal on various grounds, the warp and woof of them would run thus: (a) The judgment and decree of the trial Court are against law and weight of evidence; (b) the trial Court failed to hold that the suit was not properly valued and correct Court fee was not paid. (c) No Court fee was collected towards the relief of recovery of jewels. (d) the suit itself was bad for want of a prayer for getting Ex.B3 and Ex.B4 set aside and relating to such reliefs, the suit was not properly valued and Court fee also was not paid. (e) the trial Court failed to understand that the Hibba took place on one day, whereas Ex.B1 emerged on a different date. (f) D.W.2's deposition was by way of butressing the plea of Hibba, but the trial Court failed to note it. (g) Despite examining the scribe and the attestor to Ex.B1, the trial Court failed to uphold Ex.B1 as a valid document. (h) D3 did not support the case of his brother-the plaintiff and ignoring the same, the trial Court decreed the suit in favour of the plaintiff. https://hcservices.ecourts.gov.in/hcservices/ (i)the factum of Purankhan having brought up D2 as his own daughter, was ignored by the trialCourt despite evidence adequately adduced in that regard. (j) Ex.B3 and Ex.B4 being registered documents had authenticity of their own, but the trial Court, without any valid reason simply rejected the same. (k)Ex.B32 and Ex.B33 were rejected erroneously by the trial Court without any valid reason. (l) Even in the absence of any evidence to prove that D2 came into possession of 150 sovereigns of gold jewels, the trial Court decreed the suit directing D2 to part with those alleged jewels. Accordingly, D2 prayed for setting aside the judgment and decree passed by the trial Court and for dismissing the original suit. 8. The points for consideration are as to (i) Whether Purankhan validly effected Hibba i.e. oral gift in favour of D2 relating to the immovable properties described in the schedule of the plaint? (ii)Whether the plaintiff and D3 executed the release deeds Ex.B3 and Ex.B4 accepting the said Hibba effected by Purankhan in favour of D2? (iii) Whether the copy of the sale deed dated 23.3.2006 executed by D3 in favour of D2 could be admitted as additional evidence in this case. (iv) Whether the suit was not properly valid and correct court fee paid? (v) Whether Purankhan owned 150 sovereigns of gold jewels and any other movable property including cash? And if so, whether D2 appropriated illegally those properties? (vi) Whether there is any infirmity in the judgment and decree of the trial Court. 9. Points (i) and (ii): These two points are taken together for discussion as they are inter-woven and interlinked with each other. 10. Pithily and precisely the averments as put forth by the learned counsel for D2 would be that Purankhan, during his life time, validly effected Hibba relating to the suit properties; the factum of which was amply acknowledged and accepted by the plaintiff and D3 as per Ex.B3 and Ex.B3; even de hors such release deeds, D2 is entitled to the suit property as per Hibba, but by way of abundant caution, so to say ex abundanti Cautela, Exhibits Ex.B3 and Ex.B4 were got executed in favour of D2 from the plaintiff and D3, which would not in any way enure to the benefit of them to contend as though such release deeds pre-supposed the shares of those executants of the release deeds. https://hcservices.ecourts.gov.in/hcservices/ 11. Per contra, by way of torpedoing the contention and allegations on the side of the D2, the learned counsel for the plaintiff would advance his arguments, the pith and marrow of them would be that D2 was not treated as his daughter by Purankhan and he had not effected any Hibba, gifting the suit properties in favour of D2; the release deeds Ex.B3 and Ex.B4 were brought about the practicing fraud and misrepresentation on the executants and D2 appropriated the jewels as set out in the plaint, without having any right to do so. 12. A perusal of Ex.B1 the Hibba dated 21.4.1993 would connote and denote that earlier to such writing, Purankhan orally effected Hibba in favour of D2, transferring the immovable suit properties described in the schedule of the plaint, treating D2 as his daughter. Ex.B1 was attested by as many as 8 witnesses. 13. Ex.B3 and Ex.B4 are the registered release deeds dated 17.3.1995 and 4.5.1995, which would ex facie and prima facie demonstrate that the plaintiff and D3, being the brothers of the deceased Purankhan, executed the release deeds, concerning the suit immovable properties, all their claims over it, in favour of D2. At this juncture, it is worthwhile to highlight that registered deeds are having additional factors in favour of the beneficiary under those deeds, to invoke illustration (e) to Section 114 of the Indian Evidence Act, which would indicate that acts of public officials are deemed to have been done in good faith. 14.Here the plaintiff would come forward with a farfetched plea that under the pretext of getting some money from the Government, consequent upon the death of Purankhan, the plaintiff and D3 were asked to sign in some blank papers by D1-the husband of D2 and that the plaintiff and D3 were not appraised of the fact that they were executing the release deeds, relinquishing of their rights over the properties of Purankan. However Ex.B3 and Ex.B4 are not the mere unregistered release deeds. 15. The learned Senior counsel for D2 would appropriately and appositely put forth his argument that no Government is paying any money relating to the natural death of non-Government servant; Ex.B3 and Ex.B4 are registered deeds; at the time of registration, the Registrar also appraises the execution of those deeds by getting signatures/thumb impressions, as the case may be, and in such a case the contention of the plaintiff is nothing but a ploy fraught with falsehood. 16. The learned counsel for the plaintiff would develop his argument that Ex.B3 and Ex.B4-the release deeds purported to have been executed by the plaintiff-Lalkhan and D3-Gudukhan cannot be treated as valid documents creating any right in favour of D2 for the reason that a release deed could be executed only by a person, who is having interest in the property, in favour of another who is having already pre-existing right in the same property, at least to some extent. In support of his https://hcservices.ecourts.gov.in/hcservices/ contention he cited the following judgments: (i) An excerpt from AIR 1970 Madras 349-THE CHIEF CONTROLLING REVENUE AUTHORITY, BOARD OF REVENUE, MADRAS, VS. RM.L.RM.L.LAKSHMANAN CHETTIAR, an excerpt from it would run thus: '3. The essential difference between a conveyance and a release, lies in the fact that, in the latter, there is no transfer or an interest or right to another, who had no pre- existing right in it to any extent. A release of a right or of a claim can only be in favour of a person who had a pre- existing right or claim and by reason of the release the latter's right or claim is enlarged or is made fuller in its content. Kuppuswami v. Arumugha. AIR 1967 SC 1935 quoting from Hutchi Gowder v. Bheema Gowder, AIR 1960 Mad 33 and S.P.Chinnathambiar v. Chinnathambiar, 1953-2 Mad LJ 387 = (AIR 1954 Mad 5) accepted the proposition as correct that a release can only feed title but cannot transfer title or that "reunciation must be in favour of a person, who had already title to estate, the effect of which is only to enlarge the right; renunciation does not vest in a person a title where it did not exist." (ii) An excerpt from a decision of this Court reported in AIR 1982 Madras 113 – CHIEF CONTROLLING REVENUE AUTHORITY, BOARD OF REVENUE, MADRAS, VS. TVL.INCA CABLES (PVT) LTD., MADRAS-4, certain excerpt from it would run thus: "2. . . . . . S.2(10) of the Indian Stamp Act defines 'conveyance' as follows- Section 2(1): 'Conveyance' includes a convveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos and which is noit otherwise specifically provided for by schedule I." Art 55 of Sch.I to the Stamp Act deals with 'release'. It reads as follows- "Release, that is to say, any instrument (not being such a release as is provided for by S.23-A) whereby a person renounces a claim upon another kperson or against any specified property . . . . . " Hence, according to Mr.Venkataswami, the learned Government Pleader, to bring the document within the ambit of a 'release' both the releasor and the releasee must have a pre-existing right in the property released. As far as the present case is concerned, both the releasor and the releasee are separate juristic entitles and the releasee which is a public limited company has no pre-existing right in the properties sought to be released under the deed. The learned Government Pleader cites the decision reported in Chief Controlling Revenue Authority v. Rm.L.Rm.L.Lakshmanan, AIR 1970 Mad 348 (FB) to which one of us was a party. In this decision, the Full Bench https://hcservices.ecourts.gov.in/hcservices/ has specifically held as follows(at p.349)- "The essential difference between a conveyance and a release lies in the fact that in the latter, there is no transfer of an interest or right to another, who had no pre-existing righth in it to any extent. A release of a right or of a claim can only be in favour of a person who had a pre-existing right or claim and by reason of the release the latter's right or claim is enlarged or is made fuller in its content. Kuppuswami v. Arumugam, AIR 1967 SC 1395, quoting from Hutchi Gowder v. Bheema Gowder, AIR 1960 Mad 33 and S.P.Chinnathambiar v. Chinnathambiar 1953-2 Mad LJ 387: AIRR 1954 Mad 5 accepted the proposition as correct that a release can only feed title, but cannot transfer title or that renunciation must be in favour of a person, who had already title to estate, the effect of which is only to enlarge the right; renunciation does not vest in a person a title where it did not exist." Mr.Venkataswami also cited the decision in the matter off Hiralal Navalram, (1908) ILR 32 Bom 505 wherein a Full Bench of the Bombay High Court has held that where by a document, the executing party, purporting to be entitled to a share in a going Pressing Factory, transfers absolutely the whole of that share to the other person interested in the factory in consideration of a certain sum, the document is a conveyance on sale of property. The principle of the two decisions cited supra will clearly apply to the facts of this case and as such, we do not find any difficulty in construing the document as a conveyance." (iii) An excerpt from 1968 Mad 159 – THE CHIEF CONTROLLING AUTHORITY, REFERRING OFFICER V. RUSTORRN NUSSERWANJI PATEL, would run thus: "4. The question that falls to be decided by us is whether this instrument must necessarily be construed as amounting to a conveyance, and assessed for stamp as such, or could be accepted as a release under Article 55 of Schedule I. It ius not in dispute that the nomenclature is not decisive nor the language used which the parties may choose to employ in framing the document. What is decisive is the actual character of the transaction, and the precise nature of the rights created by means of the instrument." 17. The perusal of the aforesaid decisions would leave no doubt in the mind of the Court that a release deed is having the effect of relinquishing a person's right in a property in favour of one other person, who is already having pre-existing right in the same property; as a corollary it follows that a release deed cannot be executed as against the 3rd parties, who are totally unconnected with the suit property earlier. https://hcservices.ecourts.gov.in/hcservices/ 18. The learned Senior counsel for D2 would cite various decisions so as to highlight the legal significance of release deeds, an excerpt from AIR 1967 SCC 1395- KUPPUSWAMI CHETTIAR VS. A.S.P.A.ARUMUGAM CHETTIAR AND ANOTHER, an excerpt from it would run thus: "6. Counsel next submitted that a release can only enlarge an existing title of the releasee, and there can be no release in favour of a releasee who has no interest in the property. He relied on the following observation in Hutchi Gowder v. Bheema Gowder, 1959-2 Mad LJ 324 at p.337:(AIR 1960 Mad 33 at p.41). "A release deed can only feed title but cannot trainsfer title" and another observation in S.P.Chinnathambiar v. V.R.P.Chinnathambiar, 1953-2 Mad LJ 387 at p.391 (AIR 1954 Mad 5 at p.8) 387 at p.391: (AIR 1954 Mad 5 at p.8) "Renunciation must be in favour of a person, who had already title to the estate, the effect of which is only to enlarge the right. Renunciation does not vest in a person a title here it did not exist . . ......Now, it cannot be disputed that a release can be usefully employed as a form of conveyance by a person having some right or interest to another having a limited estate, e.g., by a remainderman to a tenant for life, and the release then operates as an enlargement of the limited estate. But in this case, we are not concerned with a release in favour of the holder of a limited estate. Here, the deed was in favour of a person having no interest in the property, and it could not take effect as an enlargement of an existing estate. It was intended to be and was a transfer of ownership. A deed called a deed of release can, by using words of sufficient amplitude transfer title to one having no title before the transfer. The cases replied upon by counsel are not authorities for the proposition that the operative words of a release deed must be ignored. In S.P.Chinnathambiar's case. 1953-2 Mad LJ 387: (AIR 1954 Mad 5) the document could not operate as a transfer, because a transfer was hit by S.34 of the Court of Wards Act, and viewed as a renunciation of a claim, it could not vest title in the release. In Hutchi Gowder v. Bheema Gowder, 1959- 2 Mad LJ 324: (AIR 1960 Mad 33) the question was whether a covenant of further assurance should be enforced by directing the defendant to execute a release deed or a deed of conveyance, and the Court held that the defendant should execute a deed of conveyance. These decisions do not lay down that a deed styled a deed of release cannot, in law, transfer title to one who before the transfer had no interest in the property." 19. In fact, the earlier decisions of the Madras High Court are found explained therein. Nonetheless a document is nomenclatured as 'release', if the recitals therein are capable of transferring interest from the releasor in favour of the releasee, it would have its own effect https://hcservices.ecourts.gov.in/hcservices/ of transferring title from the releasor to releasee also. Keeping in view the aforesaid legal principle in mind, Ex.B3 and Ex.B4 should be analysed. 20. Ex.B3 is nomenclatured as release deed dated 17.3.1999, executed by D3-Gudukhan and the plaintiff-Lalkhan in favour of D2, without specifying any definite property therein. The learned counsel for the plaintiff would draw the attention of this Court to the recitals therein, which would speak to the effect that all the three parties, namely, releasors and the releasee were in joint possession and enjoyment of the suit property and that the releasors expressed their desire to release their right over the suit property, and develop his argument that D2 was not the owner of the property as per Muslim Law to the share of the deceased Purankhan-the brother of the releasors and hence, such release deeds would not confer any right. It is therefore just and necessary to analyse the point as put forth by the learned counsel for the plaintiff. 21. Certain clauses in Ex.B3 are extracted here under for ready reference. @j';fs; jfg;gdhuhd fhy";brd;w v/g[uhdfhd; rhag[k;. eh';fSk; cld; gpwe;j rnfhjuj;fs;/ tw1y; mjpfhu moj;jy;/ ehk; ,Jtiu ek; bghJ Flk;gj;jpw;F ghj;jpakhd bghJ Flk;g!;jhth r;';fk brhj;Jf;fis bghJthft[k;. Tl;lhft[k;. mDgtpj;Jte;njhk;/ v';fSf;F tajhfptpl;l fhuzj;jhy; ek; bghJ FLk;gj;jpw;F ghj;jpakhd bghJ FLk;g g{uh!;jhthj; r';fk brhj;Jf;fis eh';fs; ,dpnkYk; bghJthft[k;. Tl;lhft[k; mDgtpf;f tpUk;ghjjhYk; ek; fpuhk g";ghaj;jhh; Kot[g;go eh';fSk; rk;kjpj;J bghJ FLk;g g{uh!;jhth r';fk brhj;Jf;fspy; v';fSf;Fs;s ghf ghj;jpaijf;fhf ,d;W j';fsplk; U:/5000-= U:gha; Ie;jhapuk; buhf;fkha; bgw;Wf;bfhz;L ,e;j bghJ tpLjiy Mtzk; vGjpf; bfhLj;Jslnshk;/ ,d;W Kjy; c& j';fs; jfg;gdhh;. fhy";brd;w v/g[uhd;fhd; rhag[f;F brhe;jkhd g{uh!;jhtu r';fk brhj;Jf;fspy;