Full Judgment Text
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PETITIONER:
KUPPUSWAMY CHETTIAR
Vs.
RESPONDENT:
A.S. P. A. ARUMUGAM CHETTIAR AND ANOTHER
DATE OF JUDGMENT:
06/09/1966
BENCH:
BACHAWAT, R.S.
BENCH:
BACHAWAT, R.S.
WANCHOO, K.N.
SHAH, J.C.
CITATION:
1967 AIR 1395 1967 SCR (1) 275
ACT:
Transfer of Property Act, 1882, s. 123-Registered Release
Deedexecuted without consideration in presence of more than
two witnesses-Whether effectively passes title-Whether can
only enlarge interest of releasee-Or transfer title to one
having no title.
HEADNOTE:
By a will made in August 1931, P, who was the grandfather of
the respondents, bequeathed certain immovable properties to
his paternal uncle’s daughter K. In January 1952, the
respondents instituted a suit against several persons
including K challenging inter alia the validity of the
bequest made by P. In February 1952 K died leaving as her
heir the .appellant who was, her husband’s brother’s son.
On February 25, 1952, the appellant executed a deed in
favour of the respondents, releasing the suit properties,
including certain outstanding due from third parties, and
,this deed was registered on February 26, 1952. The
respondents there.upon filed an ’application in their suit
asking for an order that in view of the release deed, the
properties covered by it be removed from the scope of the
suit and the plaint amended accordingly; and this
application was allowed by the Court.
In January 1955, the appellant instituted the present suit
asking for a decree setting aside the release deed of
February 1952 on the ground that it was vitiated by
misrepresentation, fraud, deceit and undue influence. He
also alleged that the deed being a deed of release could not
take effect as a conveyance and did not effectively pass
title to the properties. The trial Court decreed the suit
holding that the deed was procured by misrepresentation and
also that it did not effectively convey the properties.
However, the High Court, in -appeal, set aside the finding
of the trial Court and dismissed the suit.
In the appeal to this Court it was also contended, inter
alia, on behalf of the appellant, that a release can only
enlarge an existing title of the release and there can be no
release in favour of a releasee who has no interest in the
property.
HELD : (i) On the facts, the appellant had failed to
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establish that the deed was procured by misrepresentation.
(ii) The release deed clearly showed an intention to
transfer title and its operative words sufficiently conveyed
the title. As the release was without any consideration,
the deed, on its true construction, took effect as a gift.
The gift was effectively made by a registered instrument
signed by the donor and attested by more than two witnesses.
[278 C-E]
T. Mammo v. K. Ramunni, A.I.R. 1966 S.C.R. 33, 340:
followed.
(iii) In the present case 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.[279 C-D]
Hutchi Gowder v. Bheema Gowder, [1959] 2 M.L.J. 324; 337; S. P.
Chinnathambiar v. V. R. P. Chinnathambiar, (1953] 2 M.L.J.
387, 391 : distinguished.
276
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 521 of 1964.
Appeal from the judgment and decree dated December 12, 1960
of the Madras High Court in Appeal Suit No. 8 of 1957.
C. B. Agarwala, T. R. Ramachandran and 0. C. Mathur, for
the appellant.
S. V. Gupte, Solicitor-General and R. Ganap thy Iyer, for
the respondents.
The Judgment of the Court was delivered by
Bachawat, J. In this appeal, the question is whether a deed
of release was vitiated by misrepresentation, and if, not,
whether it operated as a conveyance of the suit properties
in favour of the respondents. By a will dated August 9,
1931, their grandfather Ponnuswami bequeathed the immovable
properties to his paternal uncle’s daughter, Kannammal. In
January, 1952, the respondents instituted O.S. No. 24 of
1953 against several persons including Kannammal challenging
inter alia the validity of the bequest made by Ponnuswami.
On February 1, 1952, Kannammal died leaving as her heir the
appellant who was her husband’s brother’s son. On February
25, 1952, the appellant executed a deed, Ex. B-1, in favour
of the respondents releasing the suit properties including.
certain outstanding due from third parties. On February 26,
1952, the deed was registered. On the same date, the
respondents filed an application in O.S. No. 24 of 1953
asking for an order that in view of the release deed the
properties be removed from the scope of the suit and the
plaint be amended accordingly. This application was allowed
by the Court. On January 22, 1953, the respondents
instituted O.S. No. 174 of 1953 for the recovery of one of
the outstandings mentioned in the release deed against the
debtors. They implement the appellant as a defendant to the
suit, and stated that in view of the release deed they were
entitled to recover the debt. The appellant filed a written
statement alleging that the release deed was invalid and the
suit was not maintainable. The suit was decreed by the
Munsif. On January 31, 1955, the appellant, instituted the
present suit asking for a decree for setting aside Ex. B-1,
recovery of the suit properties and accounts. tie alleged
that Ex. B-1 was vitiated by misrepresentation, fraud,
deceit and undue influence. His main contention was that he
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was induced to execute the deed on the representation that
it was a power-of-attorney authorising the respondents to
manage the properties on his behalf. He also submitted that
Ex. B-1 being a deed of release could not take effect as a
conveyance. The respondents disputed these contentions.
The trial Court held that though the release deed was not
vitiated by fraud, deceit or undue influence, it was
procured by misrepresentation and
277
also that ’it did not effectively convey the properties. On
these findings, the trial Court decreed the suit. The High
Court set aside the findings of the trial Court and
dismissed the suit. The appellant now appeals to this Court
on a certificate granted by the High Court.
The High Court held, and in our opinion rightly, that Ex. B-
1 was not vitiated by misrepresentation and the appellant
was well aware of the nature of the deed when he executed
it. The appellant is somewhat deaf of hearing. But he is a
wealthy and shrewd moneylender and capable of managing his
affairs. He took the draft of the deed to his own lawyer
and after obtaining legal advice, executed it. He himself
presented the deed for registration. He received no
consideration for the release, but the. motive for the
release was the pending litigation and the fact that the
properties originally belonged to the family of the
respondents. Having regard to the release, the respondents
immediately applied in the pending suit for removal of the
properties from the scope of the suit and for the
consequential amendment of the plaint. After the execution
of the deed, the appellant never asked for accounts, nor
cared to ascertain how the respondents were managing the
properties. In the written statement filed in O.S. No.174
of 1953, he took the plea that the deed of release did not
effectively pass title to the outstandings, but he did not
then say that it was vitiated by misrepresentation. His
present plea that the deed was inducted by misrepresentation
is an afterthought. In agreement with the High Court, we
accept the testimony of the respondents’ witnesses and we
reject the evidence of the appellant and P.W. 2. The onus is
upon the appellant to establish the plea of
misrepresentation. He has failed to establish this plea.
Counsel next submitted that Ex. B-1 being a release deed
could not operate as a conveyance. Exhibit B-1 was styled a
deed of release. The Paper Book does not show whether it
was stamped as a release or as a conveyance. After reciting
that Kannammal was the owner of the properties and she died
leaving the appellant as her heir, the operative part of the
deed stated :
"I hereby execute a release deed in your
favour to the effect that I do not claim any
huq or right whatever in the immovable
properties mentioned hereunder valued at about
Rs. 12,000 and in the outstandings to the tune
of Rs. 8,000 due by others in all Rs. 20,000
(twenty thousand) and all the rights that have
been accrued to me under the Hindu law. You
yourself shall hold and enjoy undisputable
with absolute rights under the huq release
deed executed by me the entire movable and
immovable properties belonging to the
aforesaid Kannammal and all the outstanding
due to her from outsiders. I have not
278
received any consideration whatever for the
said release deed."
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The question is whether Ex. B-1 on its true
construction conveyed properties to the
respondents. In T. Mammo v. K. Ramunni(1);
this Court held :
" a registered instrument styled a release
deed releasing the right, title and interest
of the executant in any property in favour of
the releaser for valuable consideration may
,operate as a conveyance, if the document
clearly discloses an intention to effect a
transfer".
In the present case, the release was without any
consideration. But property may be transferred without
consideration. Such a transfer is a gift. Under s. 123 of
the Transfer of Property Act, 1882, a gift may be effected
by a registered instrument signed by ,or on behalf of the
donor and attested by at least two witnesses. Consequently,
a registered instrument releasing the right, title and
interest of the releasor without consideration may operate
as a transfer by way of a gift, if the document clearly
shows an intention to effect the transfer and is signed by
or on behalf of the releasor and attested by at least two
witnesses. Exhibit B-1 stated that the releasor was the
owner of the properties. It showed an intention to transfer
his title and its operative words sufficiently conveyed the
title. The instrument, on its true construction, took
,effect as a gift. The gift was effectively made by a
registered instrument signed by the donor and attested by
more than two witnesses.
There were two sets of attesting witnesses to Ex. B-1. At
first, the deed consisted of four sheets, and it was then
attested by eight witnesses. Later, a fifth sheet
mentioning the boundaries of the properties was added, and
this sheet was attested by four witnesses. Five of the
first eight witnesses gave evidence at the trial. Counsel
submitted that none of the last four attesting witnesses
gave evidence and having regard to s. 68 of the Indian Evi-
dence Act, 1872, the execution of Ex. B-1 was not proved.
There is no force in this contention. The point was not
raised in the Courts below. There is nothing to show that
any of the last four attesting witnesses was alive, or was
subject to the process of the Court during the trial of the
suit. The name of one of these witnesses cannot be read,
and it is not clear whether he figured as a witness at the
trial. Moreover-, in his deposition, the appellant clearly
admitted that he signed Ex. B-1 and the attestors attested
the document. We are satisfied that Ex. B-1 was duly
proved.
Counsel next submitted that a release can only enlarge and
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
(1) A.I.R.1966S.C.337,340.
279
following observation in Hutchi Gowder v. Bheema Gowder (1)
"A release deed can only feed title but cannot transfer
title" and another observation in S. P. Chinnathambiar v. V.
R. P. Chinnathambiar (2), "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 where 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
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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 relied 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 (2), 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(1), 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.
In the result, the appeal is dismissed with costs.
R.K.P.S.
Appeal dismissed..
(1) [1959] 2 M.L.J. 324, 337.
(2) [1953] 2M.L.J. 387, 391.
280