Case: Ranganayakamma  Vs. K.S. Prakash (D) By Lrs.

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:-KasettyRangappaChildren of the 1st Wife WidowChildren of the 2nd Wife Smt. Naramma1.Smt. Jayamma, Deft. No.31.Sri K.S. Mohan2.Smt. Kanthamma, Plff. No.12.Smt. Susheela (Late)3.Smt. Ranganayakamma, Plff.3.Smt. BhagyalakshmiNo. 2 Lakshamamma2nd wife4.Smt. Naramma Devi, Deft. No.44.Smt. Lakshmi DeviLakshmi5.Smt. Venajakshi5.Sri K.S. Sudarshan6.Sri K.S. Prakash, Deft. No.16.Smt. Saraswathi7.Sri K.S. Ramesh, Deft. No.27.Smt. Rukmini8.Smt. Sarojamma, Deft. No. 58.Sri K.R. K.R.K. Harida Sreenivasa PasadVenkatammaSmt. K. Sreeni9.Smt. Seethqalakshmi, Deft. No.69.Smt. Padmavathi Salu Venkatesulu Sreenivasulu10.Smt. Bharathi, Deft. No.711.Smt. Kum. Shoba, Deft. No. 8 Smt.Singaramma Smt. Venkatalakshamma1st 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 plaintiffs. 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 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 to remain joint. One of the daughters of Sreenivasulu being Vanajakshi released her rights by getting a consideration of Rs.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 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 asThus, 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.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,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 respectively. It is further ordered and decreed that the plaintiffs and defendants are not liable to each other with regard the income accruing from the properties allotted to them and also for mesne profits.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 properties were retained by the brothers. The sisters allegedly relinquished their share for a consideration of Re.1/- only; the relevant parts whereof read asThe 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 Eleventh part.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 hereby acknowledge.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-appellant No.2 herein in favour of M/s. Voltas Company Ltd.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 asThe 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. Srinivasasalu.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 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 asWhether 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?2. Does defendant No.1 prove plaintiffs executing valid powers of attorney on 15.7.1983; 20.12.1983 and 5.8.1985?3. Do the defendants 1 and 2 prove due execution of release deed dated 5.8.1983 by the plaintiffs for valid and proper consideration.4. Do the defendants 1 and 2 prove partition deed dated 5.8.1983 is valid one?5. Whether the plaintiffs and defendants 3 to 8 prove that the defendants 1 and 2 obtained partition deed dated 5.8.1983 by playing fraud?6. Whether the plaintiffs are estopped from filing this suit due to 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 areOn 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 deed of partition was not maintainable. On the said findings, the suit was dismissed.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 properties.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 theTo 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 site No.1/A.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.The High Court in its judgmentIn the 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 any evidence.2) 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.3) 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.4) The suit was not maintainable as the appellants had not sought for any declaration that the partition deed was void.5) The 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.6) 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 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

Reasoning:
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 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. 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.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.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 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.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 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 isvitiates all solemn acts.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.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,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.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.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 asWhen, at the desire of the promisor, 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 theConsideration 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 Property Act.The High Court, therefore, in our opinion, was correct in not allowing the appellants to raise the said contention.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.Article 59 reads asTo cancel or set aside an Three years When the facts entitling the instrument or decree or for plaintiff to have the rescission of a instrument or decree contract. cancelled or set aside or the contract rescinded first become known todecree for setting aside a document may be sought for in terms of Section 31 of the Specific Relief Act. 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.