Karnataka High Court
Ranganayakamma vs K.S. Prakash on 21 September, 2005
Equivalent citations: AIR2005KANT426, 2006(3)KARLJ177, AIR 2005 KARNATAKA 426, 2006 (1) ALL LJ NOC 70, 2006 (1) AJHAR (NOC) 243 (KAR), 2005 AIR KANT HCR 2654, 2005 AIHC 4410, (2006) 3 CIVILCOURTC 80, (2006) 3 KANT LJ 177
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
JUDGMENT
1. This appeal is by the plaintiffs calling in question the legality and validity of the judgment and decree dated 27-5-1997 passed in O.S. 1760/1990 on the file of the XII Addl. City Civil Judge, (CCH 14) Bangalore.
2. The plaint averments, in brief, are : Appellants and respondents 3 to 8 are daughters while respondents 1 and 2 the sons of late K. Srinivasulu, Respondents 9 and 10 are the tenants of items 2 and 3 of the suit schedule immovable properties, respectively.
3. The suit is one for partition and separate possession of 1/10th share each, of the plaintiffs, in the suit schedule properties and 1/10th share each, in their mother's l/3rd share, In item No. 2 to the suit schedule properties. Sri K. Srinivasulu did originally hail from Dharmavaram, in Cuddappah District, of Andhra Pradesh, and having set up business in Bangalore, was eventually a successful silk and cloth merchant. The said K. Srinivasulu died intestate on 22-12-1970 leaving behind extensive properties both movable and immovable said to have been acquired out of his self-exertion, in addition to substantial interests in business undertakings, earning huge profits. The plaintiffs assert that when their father commenced business at Bangalore, defendants 1 and 2 were infants and that the properties were never treated as joint family properties but self-acquisitions. Smt. K. Singaramma wife of K. Srinivasulu and mother of plaintiffs and defendants 1 to 8 is said to have died intestate on 10-9-1983.
4. It is the allegation of the plaintiffs that whenever they and defendants 3 to 7, for purposes of brevity, hereinafter referred to as 'sisters', visited their brothers defendants 1 and 2, after the death of their parents, on the representations made by their brothers, having reposed faith and confidence in them, affixed their signatures on several papers in good faith, though in retrospect were fraudulent misrepresentations in respect of the properties left behind by their late father. The 2nd plaintiff alleges that when she visited Bangalore on 15-7-1983, she affixed her signature to a power of attorney, while the 1st plaintiff did so in the office of the Advocate for defendants 1 and 2, without any knowledge of the contents of the said document. It is the further allegation of the plaintiffs that on 5-8-1983, at the behest of defendants 1 and 2 they, along with defendants 3 to 8 as also their mother Smt. Singaramma, affixed their signatures in good faith, on a deed of partition without realizing the fraudulent intention and diabolical design of defendants 1 and 2.
5. The plaintiffs state that during 1988 on a rumor that defendants 1 and 2 had appropriated to themselves all the properties of their parents, questioned the defendants, who gave evasive replies, and later on became aggressive and rude. On painstaking enquiries, the plaintiffs having become aware of the evil design of defendants 1 and 2 to deprive the sisters of their legitimate shares in the suit schedule properties, caused a notice dated 4-3-1988 through their legal counsel, on defendants 9 and 10, while addressing a copy to defendants 1 and 2, cancelling the power of attorney and questioning the validity of the partition deed, in addition to sending a telegram dated 12-2-1988 to the let defendant, revoking the power of attorney.
6. The plaintiffs contend that being women and residents of Cuddappah in Andhra Pradesh, took considerable time to collate all material particulars and hence, the suit for partition was instituted on 21-3-1990 by paying a fixed court-fee of Rs. 200/- under Section 35(2) of the Karnataka Court-fees and Suit Valuation Act, 1958 (for short the Act of 1958).
7. The suit is opposed by defendants 1 and 2 by filing their written statement dated 2-7-1991. The relationship between the parties is admitted. It is contended that late K. Srinivasulu along with his three brothers, all children of late Kasetty Rangappa, constituted a Joint Hindu Family which possessed properties both at: Bagalore and Dharmavaram, in Andhra Pradesh. Under a registered partition deed dated 22-6-1957, K. Srinivasulu is said to have acquired several properties including suit schedule properties in his name and in the name of other members of the family. The deceased K. Srinivasulu during his lifetime, having taken two wives, begot 11 children, from out of the wedlock with the 1st wife and 9 from out of second. While defendants 1 and 2 are the sons of 1st wife, the 2nd wife had 3 sons, together, said to have constituted a joint Hindu undivided family.
8. K. Srinivasulu, having died intestate, on 27-11-1970, one daughter by name Vanajakshi w/o Venkatashamaiah is said to have released and relinquished her right in the joint family properties by executing a deed of release dated 20-7-1972. The defendants state that several immovable properties were sold jointly, to meet the huge income tax and wealth tax liabilities. That on 21-8-1982, plaintiffs and defendants 1 to 8 together with their mother Smt. Singaramma representing the first wife and children of K. Srinivasalu, instituted O.S. No. 2459/1982 before the City Civil Court at Bangalore, against the 2nd wife and her three sons and six daughters, for partition and separate possession of their respective shares in several immovable properties, including the suit schedule properties, contending that all the properties were joint family properties of late K. Srinivasulu, having acquired the same from out of the nucleus of the properties fallen to the share of late K. Srinivasulu in a partition of the year 1957. Parties to the suit having effected a compromise, a final decree was drawn on 18-12-1982 allotting the suit schedule properties to the share of the plaintiffs therein, the 1st wife and children of late K. Srinivasulu. In the said compromise, it is stated that the suit schedule properties were admitted to be co-parcenary properties.
9. The 2nd plaintiff, a permanent resident of Cuddappah in Andhra Pradesh is said to have executed a power of attorney, Ex. D. 8 appointing the 1st defendant as the power of attorney holder, investing in him the authority to execute the partition deed, in view of her releasing and relinquishing her right to claim a share in the suit schedule properties, and inability to be personally present for execution and registration of the deed of partition. It is claimed that the 2nd plaintiff purchased the stamp paper in her name, on 15-7-1983 and after having her legal counsel to draft the power of attorney, executed the same in the presence of the Sub-Registrar and her attorney on 15-7-1983, when lodged for registration. Pursuant thereto, it is stated that the plaintiffs along with the defendants 1 to 8 and their mother Smt. K. Singaramma, jointly executed a deed of partition Ex. D.6 dated 5-8-1983, duly registered, recording the factum of release and relinquishment by plain-tiffs and respondents 3 to 8, of their right to claim a share in the family properties, for a consideration of Re. 1/- each, and effected a partition of the suit schedule properties.
10. The immovable properties bearing No. 209, Upper Palace Orchards, No. 2 OTC road, Nagarthpet, Bangalore, No. 22,-Kasturba road, Bangalore, were allotted, jointly, to the share of defendants 1 and 2 and 2/3rd share in the immovable property No. 21, Kasturba road, Bangalore, while the remaining l/3rd share was allotted to Smt. K. Singaramma, the mother of the parties.
11. Consequent to the death of Smt. K. Singaramma, the 2nd plaintiffs, on 20-12-1983, is said to have executed a special power of attorney, Ex. D.9, on stamp paper in the presence of a notary public, at Cuddappah, attested by her legal counsel Sri T. S. Ranganayakalu and M. K. Swamy of Cuddappah, covenanting the factum of (a) death of Smt. Singaramma; (b) the partition deed dated 5-8-1983; (c) 2nd plaintiffs right to 1 /11th share in 1 /3rd share of the deceased and agreeing to give on lease the property No. 21, Kasturba road, Bangalore in favour of the 9th defendant, while appointing the 1st defendant as her attorney to execute the lease deed.
12. The power of attorney holder of the 2nd plaintiff along with other defendants, entitled to I/11th share of l/3rd share of late Singaramma, in the immovable property No. 21 Kasturba road, Bangalore, executed and lodged for registration a lease deed dated 15-2-1985, of the said property. The covenants in the lease deed refer to the deed of partition, dated 5-8-1983, the death of Smt. Singaramma and the share of plaintiff No. 2. The lease deed is claimed to be attested by G. E. Chowdaiah, the husband of Smt. Kanthamma plaintiff No. 1. The affidavit dated 2-2-1985 of the 2nd plaintiff identified by one R. V. Prasad, Advocate, said to be the son of Jayamma, defendant No. 3, the elder sister of plaintiff No. 2, confirmed the validity of the power of attorney. It is stated that the 2nd plantiff received the monthly rents, in proportion to her share, in the property from defendant No. 9 directly and regularly.
13. The 1st defendant appointed as the power of attorney of plaintiff No. 1 under a registered special power of attorney, dated 4-2-1985 Ex. D-4, invested in him with the power to execute and register the deed of lease in favour of 9th defendant. The covenants in the lease deed executed by the 1 st plaintiff and attested by her husband G. V. Chowdaiah, is said to make reference to the partition deed dated 5-8-1983 Ex. D. 6. it is the plea of the defendants 1 and 2 that the 1 st plaintiff received monthly rents in proportion to her share, from the tenant directly. The deed of partition dated 5-8-1983, being acted upon by the execution of the power of attorney, as well as lease deed, and receiving the share of the lease rentals in respect of property No. 21, Kasturba road, Bangalore, it is asserted that the sisters abandoned, surrendered and waived their right to a share in the suit schedule properties. It is alternatively pleaded that the partition deed is not voidable as the plaintiffs had the means of discovering the truth with ordinary diligence while denying the allegations of fraud and misrepresentation.
14. Defendants 1 and 2 have specifically pleaded that item No. 1 of the suit schedule property was conveyed under a sale deed dated 1-3-1984, while item No. 4 property, was agreed to be sold to K. H. Venkata Rangaiah and others in the year 1986 and by way of part performance, put the purchaser in possession of the same, in addition to the plea that the suit is beyond the period of limitation and the valuation incorrect, since after the partition, possession and separation in status, there cannot be joint possession as contemplated under Sub-section (2) of Section 35 of the Karnataka Court-Fees and Suits Valuation Act of 1958.
15. The 7th defendant filed her written statement admitting the plaint averments, while defendants 5 and 6 filed memos adopting the written statement of the 7th defendant. Defendants 3, 4 and 8 though served with Court notice, remained absent, and un-represented and were placed ex parte.
16. In the premise of the pleading of the parties, the Civil Court framed the following issues :
" 1. Whether the plaintiffs prove that the suit schedule properties are the 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 5-2-1985 ?
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 are entitled ?"
17. The parties want to trial wherein the plaintiffs examined themselves as P.Ws. 1 and 2 supported by the defendants 6, 5 and 7, as D.Ws. 3, 4 and 5 respectively, and produced four documents Exs. P-l to P-4. For the defendants 1 and 2, the 2nd defendant examined himself as D.W. 1 and one R.V.S. Naik, Advocate, as D.W. 2 and produced 22 documents, marked as Exs. D-1 to D-22.
18. The Civil Court having considered the evidence both oral and documentary, partly decreed the suit, declaring the plaintiffs along with defendants 1 to 8 to be entitled to 1/33rd share each, in item No. 2 of the suit schedule properties and dismissed the claim of the plaintiffs and defendants 5 to 7 in respect of properties at items 1, 3 and 4, by the impugned judgment and decree, being aggrieved of which, the second plaintiff preferred this appeal.
19. This Court by order dated 12-3-1999 allowed LA. No. 3 and permitted the 11th respondent to be transposed as the 2nd appellant since the said respondent was the 1st plaintiff in the Original Suit.
20. We have heard the learned Counsel Sri R. Narayana for the 1st appellant, Sri G. S. Visveswara, learned Senior Counsel along with Sri G. A. Srikantegowda for the 2nd appellant, Sri C. M. Poonacha for Lex Pertise, for respondents 1(b); Sri Narayan Pendalkar for respondent 1(a), Sri V. H. Ron for the 2nd respondent, Sri B Veerappa for respondent No. 4, and Sri M. Parthasarathy for respondents 5 to 7.
21. Having heard the learned Counsel for the parties, perused the judgment and decree, and the evidence both oral and documentary, the only question for decision making in this appeal is whether the findings of the trial Court, resulting in rejection of the claims of the plaintiffs and defendants 5 to 7, to the properties at items 1, 3 and 4, while declaring that the plaintiff along with defendants 1 to 8 are entitled to 1/33 share each in plaint schedule item No. 2, property, in the facts, circumstances of the case and evidence on record is legal and valid ?
22. The finding of the trial Court that the suit schedule properties were ancestral at the hands of late K, Srinivasalu and not his self acquired properties is contended to be contrary to established facts. Elaborating on the said contention Sri R. Narayana, learned counsel, submits that, it is nobody's case that Sri K. Srinivasulu commenced business along with his brothers, secondly as defendants 1 and 2, admittedly, were in their infancy at the relevant time, having not contributed to the purchase of the properties, however, being custodians of the books of accounts, the best evidence to establish the capital for commencing the business, having withheld the same, adverse inference is to be drawn against them. It is further contended, that drawing up of a decree for partition, on a compromise, by the civil Court, in OS 2459/1982, it cannot be said that the suit schedule properties were ancestral.
23. For the 2nd appellant, Sri G. A. Srikantegowda, learned Counsel while adopting the arguments of Sri R. Narayana, adds that defendants 1 and 2 misrepresented and played a fraud on the appellants by stating that the properties were ancestral at the hands of their late father Sri K. Srinivasulu, having fallen to his share under a deed of partition of the year 1957, between Sri K. Srinivasulu and his brothers, evident from its non-production.
24. Per contra, Sri V. H. Ron, learned Counsel for 2nd respondents seeks to sustain the judgment and decree as being well merited, justified and not calling for interference.
25. The contentions advanced by the parties before this Court on issues 1 and 1A are the very same as urged, before the ' trial Court.
26. The fact that the plaintiffs, defendants 1 to 8 and one Smt. Vanajakshi are all children of late Sri K. Srinivasulu, from out of his first wife Smt. Singaramma, and that the said K. Srinivasalu had ten children from out of the 2nd wife, Smt. Venkatalakshamma, against whom plaintiffs and defendants 1 to 8, together, instituted OS No. 2459/82, for partition and separate possession of properties, are not in dispute. That Smt. Vanajakshi released and relinquished her right to claim a share in the joint family properties, under a Release Deed dated 20th July, 1972 is indisputable.
27. The plaint in OS No. 2459/82, marked as Ex. D. 1 contains averments that Sri K. Srinivasulu and his brothers were living in a joint family and they constituted a coparcenary and from out of nucleus of the properties that fell to his share, he acquired several immovable properties including the suit schedule properties, standing in his name as well as in the names of other family members,. That the suit culminated in a compromise decree Ex. D.3 whereunder the suit schedule properties were allotted to the shares of plaintiff and defendants 1 to 8, together with their mother late Smt. Singaramma, is also not in dispute. The said decree is not called in question in any proceedings, much less in the suit instituted by the appellants.
28. The contention that defendants 1 and 2 played a fraud and misrepresented to the plaintiffs and defendants 3 to 8, as regards the contents of the plaint in OS 2459/82 Ex. D.1, the compromise petition Ex. D. 2 and the compromise decree Ex. D. 3, are not forthcoming from the pleadings of the plaintiffs or in the written statement of defendants 5, 6 and 7. In the absence of a challenge to the compromise decree and without arraigning the parties therein as parties to the present suit, the contention advanced by Sri G. S. Srikante Gowda, learned Counsel is devoid of merit and is rejected.
29. The 2nd plaintiff examined as P.W. 2, in her cross-examination has deposed thus --
"My father and his brother Haridasulu, Venkateshulu and K. R. Srinivasulu were carrying on business jointly of the joint family business".
The 1st plaintiff examined as P.W. 1 in her cross-examination states thus :
"There was a partition between my father and his brothers in the year 1957."
The admission of P.W. 1 and P.W. 2 coupled with the plaint averments in Ex. D, 1 and the compromise decree Ex. D.3, belies the claim that late K. Srinivasulu commenced business on his own and acquired immovable properties. Thus, the contentions advanced by Sri R. Narayana, learned Counsel that it is nobody's ease that late K. Srinivasulu commenced business along with his brothers, and that adverse inference is to be drawn for not producing the books of accounts, pales into insignificance.
30. The depositions of P.Ws. 1 and 2 and D.Ws. 3, 4 and 5, are an attempt to establish that the suit schedule items 1 and 4 were self acquired properties of their late father, while items 2 and 3 were properties purchased by their late mother, Smt. Singaramma, partly, by selling her jewelleries and partly from out of the amounts paid by late Sri K. Srinivasulu. The claim that the suit schedule items 2 and 3 were self-acquired and absolute properties of Smt. Singaramma is neither pleaded in the plaint nor in the written statements of the sisters. The contention that suit schedule items 2 and 3 were the absolute and self-acquired properties of Smt. Singaramma, must necessarily fail.
31. In the absence of pleadings, the Court below did not frame issues as regards the absolute property of Smt. Singaramma; the contents of partition suit; the compromise petition as well as the compromise decree in OS No. 2459/82. It is settled law that questions which do not form part of the pleadings or in respect of which parties are not at variance and which is not subject matter of any issue cannot be decided by the Court. It is equally well settled that issues arising out of the pleadings are framed for the sake of fairness and to bring into forefront the real controversy while evidence admitted cannot travel beyond the pleadings. No exception can be taken to the findings of the Court below on issue 1 that the plaintiffs have failed to prove that the suit schedule properties were the self acquired properties of late K. Srinivasulu, while the defendants 1 and 2 have proved that the properties are ancestral.
32. Sri Narayan, learned Counsel, next contends that the pleadings and evidence on record conclusively establish fraud and misrepresentation practiced by the 1st and 2nd respondents, while the finding of I the trial Court that the sisters voluntarily executed Ex. D.6. partition deed, is contrary to established (acts. According to the learned Counsel the main thrust of the case of the plaintiffs is that defendants 1 and 2 made fraudulent misrepresentations as to the power of attorney Ex. D.8 and the partition deed Ex. D.6, on which the plaintiffs and defendants 3 to 8 acted upon, in good faith, while affixing their signatures on several documents. The power of attorney Ex. D.8 executed by 2nd plaintiff is said to be fraudulently used to execute the partition deed dated 5-8-1983, taking advantage of her innocence.
33. Sri V. H. Ron, learned Counsel for the defendants 1 and 2 contends that the specific stand of the said defendants, is that, the plaint lacks in material particulars regarding allegations of fraud and misrepresentations and in the absence of pleadings, in particularity, as required under Order 6, Rule 4 of the Code of Civil Procedure, the plaintiffs have not: laid a foundation for the said claim. The learned Counsel invited our attention to the principles laid down by the Apex Court in several reported decisions, which we shall advert to, after examining the pleadings and evidence adduced by the parties.
34. The averments as regards the allegations of fraud and misrepresentation practiced by defendants 1 and 2, are set out in paragraph 6 of the plaint. While defendant No. 7, in her written statement, supports the case of the plaintiffs, but does not specify any particular instance of alleged misrepresentation or of fraud by defendants 1 and 2. This written statement is adopted by the defendants 5 and 6. While defendants 3, 4 and 8, though served with suit summons, remained absent, and un-represented, hence placed ex parte. The contesting defendants 1 and 2 in their written statement denied the plaint: allegations. In the premise of the pleadings of the parties, the trial Court framed issue No. 5 with regard to fraudulent: misrepresentation and fraud, placing the burden of proof on the plaintiffs, who examined themselves as P.W. 1 and P.W. 2 while defendants 5, 6 and 7 were examined as D.W. 4, D.W. 3 and D.W. 5 respectively.
35. At this stage Itself it is relevant to notice that the defendant No. 7 examined as D.W. 5 in her deposition admits to have not instructed her advocate to file the written statement in the suit. In view of this oral testimony the written statement of defendant No. 7 is a nullity and as a consequence the written statement of defendants 5 and 4, shall have to necessarily meet the same fate.
36. It la not in dispute that the 2nd plaintiff, a resident of Cuddapah. In Andhra Pradesh, unable to he present at Bangalore for the execution and registration of the partition deed in fact, executed and lodged for registration on 15- 7-1983, the power of attorney Ex. D.8. appointing the 1st defendant as her power of attorney. It is useful to refer to the covenants set out in Ex. D.8, the power of attorney which reads thus :
"The joint family members of the said late K. Srinlvasalu have agreed to partition the properties belonging to the family and I have agreed to relinquish my right to claim a share in the said properties and pursuant to the said agreement, the partition deed is required to be executed and registered."
Know All Men By These Presents, that I, hereby constitute and appoint to execute and register the deed of partition on such terms, the conditions and covenants as my attorney shall deem fit."
37. The 2nd plaintiff does nut dispute and in fact cannot dispute that her power of attorney was empowered to execute and lodge for registration a deed of partition, on the basis of the release and relinquishment of her right to claim a share in the joint family properties. On a fair consideration of the document, the authority in question, is found in express terms. Very strangely the 2nd plaintiff alleges that the 1st. defendant executed the deed of partition Ex. D.6 acting in a fraudulent manner and on fraudulent misrepresentation.
38. The partition deed Ex. D.6 is executed and lodged for registration by the 1st plaintiff, the power of attorney of the 2nd plaintiff, the defendants 1 to 8 as well as their mother Smt. Singaramma. Though there is no dispute as regards Its due ex-ecution and registration, the plaintiffs allege that the document was obtained by playing a fraud and on fraudulent misrepresentation.
39. The depositions of P.W. 2 disclose the due execution of the partition deed Ex. D.6 and the power of attorney, Ex. D.8 and that 1/3 share in the suit schedule item No. 2 property fell to the share of her mother Singaramma, on whose death, intestate, on 10-9-1983 left behind the plaintiffs and defendants 1 to 8 and another daughter Smt. Vanajakshi, as her legal heirs, entitled to 1/ 11th share, each, in her 1/3rd share in the suit schedule item No. 2 property. After the death of Singaramma, it is well established that P.W. 2 voluntarily executed a power of attorney Ex. D. 9 dated 20-12-1983, at Cuddapah. attested by her uncle and legal counsel Sri T. S. Ranganayakalu and Anr. M. K. Swamy, before the Notary public, by name Radha Krishna. Advocate, who incidentally filed vakalath for the plaintiffs in the suit. Under Ex. D.9 the 1st defendant was appointed as her power of attorney holder, to execute and lodge for registration the deed of lease of the Immovable property, being item No. 2 to the suit schedule property, in favour of the 9th defendant M/s. Voltas, in respect of her 1/11th share in 1/ 3 share of her deceased mother. The covenants in the said power of attorney make reference to the factum of execution of the partition deed Ex. D.6, the 1/3rd share of the deceased mother, and P.W. 2's 1/11th share, which arc not disputed by P.W. 2. So also the said witness does not dispute the validity of the power of attorney as affirmed by P.W. 2 in her affidavit dated 2-2-1995 Ex.D11. attested by her counsel R. V. Prasad, admittedly the son of the 3rd respondent. There is also no dispute as regards the execution of the lease deed dated 16-2-1985. Ex. D.13, by the 1st defendant, as Power of Attorney holder of P.W. 2, in favour of defendant No. 9. The 2nd plaintiff admits execution of another specific power of attorney dated 20-12-1083 Ex. D.10 authorising the 1st defendant to execute the deed relinquishing her share in M/s. Singaramma Roller Flour Mills, attested by her counsel Sri Ranganayakalu, and M. K. Swamy. before the notarty public at Cuddapah. With regard to the allegation of fraud. P.W. 2 states thus :
"I do not remember the names of my relatives who told me that I have been cheated by my brothers. I do not remember the dates. My relatives told me when I came to Bangalore to attend a function. 1 do not remember to which function I came to attend on that day. After the death of my mother, I am given 1/11th of 1/3 share in item No, 2 of the SCH property,"
40. The deposition of P.W. 1 discloses that she studied at Sophia's convent, can read, write and understand English language, and carries on business in sale of silk sarees, along with her husband, as also business, in poultry. On the death of Singaramma, P.W. 1 admits execution of a specific power of attorney dated 3-2-1985 Ex. D.4, appointing the 2nd defendant as her power of attorney, authorising him to execute and register the lease deed in favour of the 9th respondent, in respect of the immovable property suit schedule item No. 2 to the extent of her 1/11 th share in 1/3 share of her mother. The convenants in the power of attorney, make reference to the factum of execution of the partition deed Ex. D.6, P.W. 1's 1/11th share in 1/3 share of Singaramma, which are not disputed by P.W. 1. This witness does not dispute the execution and registration of the deed of lease, Ex. D.14, in favour of the 9th defendant, attested by her husband, nor is there any dispute as regards the convenants in the deed, relating to the rights of the parties emanating from the partition deed Ex. D.6, the death of Singaramma. P.W. 1 in her cross-examination on the claim of fraud and fraudulent misrepresentation, states thus :
"I do not remember what was the function in the house of defendants 1 and 2 on 5-8-1983. In the year 1988 I came to know that my brothers have cheated me. I came to know about the cheating on being told by others. I am unable to give the names of the said persons. I do not remember the date on which I came to know and where I came to know about the cheating. I do not know that was the income tax and wealth tax due from our family after the death of my father. I have not asked or verified any accounts of our parents/family."
In her further cross-examination, she states thus :
"I cannot say on how many paper's my brothers have taken my signature, I am unable to give the dates on which our signatures were taken. Our signatures were taken in our parental, house whenever there used to be any functions. Our signatures were taken whenever we used to attend death ceremonies of my parents on every year."
41. D.Ws. 3, 4 and 5, in their depositions admit, execution of the partition deed, the lease deed and receipt of their share of the rents while D.W. 3 in addition, admits having received 25 sovereigns of gold at the time of her marriage. Ex.. D. 13 the lease deed is executed by defendants 2 to 8 and defendant 1 for himself and as power of attorney of the 2nd plaintiff. The lease deeds Ex. D. 13 and D.14 are admittedly attested by the husband of the 1st plaintiff,
42. Having regard to the facts admitted by the sisters in their depositions, coupled with the covenants in the power of attorney, the partition deed, the compromise decree in OS 2459/82, the lease deeds, the receipt of lease rentals, and the fact that the sisters were educated enough to understand English language, makes it all the more improbable that the 1st plaintiff, a woman entrepreneur did not make enquiries and signed Ex, D.6, without noticing its contents. The 1st plaintiff seeks to explain her conduct of not making enquiries with her brothers on the said day on the allegation of "some function". The particulars as regards the function are not forthcoming and the explanation is bereft of details. If defendants 1 and 2 did not inform the sisters about the contents of the documents, as alleged, or did not say anything about the document itself, then the allegation of fraud and fraudulent misrepresentation by defendants 1 and 2 regarding the character of the document and its contents, at the time of execution of the partition deed Ex. D6, becomes doubtful.
43. The following are the decisions of the Supreme Court relied upon by Sri. Ron, learned counsel.
(i) In Bhishundeo v. Seogeni Rai, , it is observed thus :
"25. It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from there in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Court ought to take notice, however strong the language in which they are couched may be, and the same applies to undue influence and coercion. See Order. 6, Rule 4, Civil P.C."
The said principle was followed in a latter decision of the Apex Court in V. S. Vishwavidyalaya v. Rajkishore, .
44. In Subhas Chandra v. Ganga Prosad, while examining the plea of undue influence, it is held thus (page 881):
"10. Before, however a Court is called upon to examine whether undue influence was exercised or. not, it must scrvitinise the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. See Order 6 Rule 4 of the Code of Civil Procedure. This aspect of the pleading was also given great stress in the case of Ladli Prasad Jaiswal, above referred to. In that case it was observed (at p. 295) (of SCR) (at p. 1288 of AIR) :
"A vague or general plea can never serve this purpose, the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence and the unfair advantage obtained by the other."
45. In Afsar Shaikh v. Soleman Bibi, considering the effect of Order 6 Rule 4 of CPC With reference to the allegation of fraud, etc. it is observed thus :
"15. While it is true that 'undue influence', 'fraud', 'misrepresentation' are cognate vices and may, in part, overlap in some cases, they are in law distinct categories, and are in view of Order 6, Rule 4, read with Order 6, Rule 2 of the Code of Civil Procedure, required to be separately pleaded, with specificity, particularity and precision. A general allegation in the plaint, that the plaintiff was a simple old man of ninety who had reposed great confidence in the defendant, was much too insufficient to amount to an averment of undue influence of which the High Court could take notice, "particularly when no issue was claimed and no contention was raised on that point at any stage in the trial Court, or, in the first round, even before the first appellate Court."
46. Following the said decision, the High Court of Orissa in Padma v. Krupasindhu, held that the plea of fraud is to be raised in the pleadings by furnishing the particulars as required by Order 6, Rule 4, CPC, which should be concise but also precise and it is not enough to use the general word such as 'fraud'.
47. A Coordinate Division Bench of this Court in K. S. Mariyappa v. K. T. Siddalinga Shetty, , following the authoritative pronouncements of the Apex Court in Subhas Chandra (supra); Afsar Shaikh (supra) and Vishwavidyalaya's case (supra), held that-Where general allegations that an act or deed is vitiated by fraud and collusion, is no plea of fraud and collusion. Material particulars such as -- when and how and who, and in what manner and for that purpose fraud was practiced and who colluded with whom and in what manner and with what object or purpose etc., must be averred.
48. There is a well recognized distinction between the statement of material facts which are required to be averred as required by Order 6, Rule 2 of CPC, and particulars which are necessarily to be stated as required by Order 6, Rule 4, CPC. A charge of fraud must be substantially proved. When one kind of fraud is charged, another kind of fraud cannot, upon the failure of proof, be substituted for it. This is the principle laid down by the Apex Court in Bijendranath Srivastava v. Mayarik Srivastava .
49. In Ladly Prasad v. Karnal Distillery Co. , it is laid down that the object of a pleading is to bring the parties to a trial by concentrating their attention on the matter in dispute, so as to narrow the controversy to precise issues, and to give notice to the parties of the nature of testimony required on either side in support of their case. A vague or general plea cannot serve this purpose; the party pleading must therefore be required to plead the precise nature of fraud, the manner of use, and the unfair advantage obtained. This rule has been evolved with a view to narrow the issue and protect the party charged with improper conduct from being taken by surprise.
50. In the facts and circumstances of this case, it is useful to extract the observations of Lord Selborne in Wellingford v. Mutual Fund Society (1818) 5 AC 685 at page 697.
"With regard to fraud, if there be any principle which is perfectly well settled it is that general allegations however strong may be the words in which they are stated are insufficient even to amount to an averment of fraud of which any Court ought to take notice"
51. In a recent decision of the Supreme Court in A. C.. Ananthswamy v. Boraiah , their Lordships observed thus :
"Fraud is to be pleaded and proved. To prove 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. The degree of proof required in such cases is extremely high."
52. A co-ordinate Division Bench of this Court in Kanchawwa v. Amagonda, held that in an advarserial system of administration of justice when a party approaches the Court of law, specifically alleging certain facts, to secure a relief, the pleading is called "Facta-Probanda". A denial by the other side of the said facts, results in an issue and to prove the same, the party on whom the burden lies is required to place acceptable legal evidence which is known as "Facta-Probaritia", The party pleading fraud or misrepresentation will have to not only plead the details, but will have to lead evidence in support of such allegations. In the words of learned Judge "Facta-Probanda-" and "Facta-Probantia" go hand-in-hand and Court of law cannot afford to spell out a case in favour of such a litigant either merely acting upon "Facta-Probanda" or "Facta-Probantia". The Bench extracted the following passage from Sarkar on Evidence. 13th edition at page 933:
"A person who charges another with fraud must himself prove the fraud, and he is not relieved from this obligation because the defendant has told an untrue story."'
53. A minute scrutiny of the averments set out in the plaint disclose that the allegations are general in nature. Except for the use of the words "fraud" and "misrepresentation", the plaintiffs have not pleaded as to each verbal misrepresentation, or occasion thereto. Order 6, Rule 4 of the Code of Civil Procedure is of a distinct category in law, requiring pleading with specificity, particularity and precision. The plaint averments are wanting in the pleadings of fact of misrepresentation and fraud, which the defendants 1 and 2 could meet. It is not the mere use of the general words such as 'fraud' or 'collusion' that, can serve as a foundation for the plea. Such expressions are quite ineffective to form a legal basis when denuded of particular statement of facts which alone can furnish the requisite basis for the action. The plaint averments, in our opinion, do not set out with reasonable precision, the particulars, so as to constitute allegations of fraud and misrepresentation, by defendants 1 and 2. The trial Court was correct in not framing issues on other questions in the absence of Pleadings, except for issue No. 5, based on general pleadings.
54. In the absence of pleadings and substantial legal evidence to establish fraud, it is well neigh impossible for this Court to conclude that the sisters, did not, on their own volition and without consent execute Exs. D6 and D8. The principle laid down by the Apex Court in the case of Ratnam Chettiar v. S. M. Kuppuswami, , in the circumstance, is apposite.
"The partition effected between the members of the Hindu undivided family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case, the Court should require strict proof of facts because an act intervolves cannot be lightly set-aside."
55. Drawing inspiration from the aforestated consecrated decisions, laying down the law and applying the same to the facts of this case, we find no substance in the contentions put-forth by the learned Counsel for the appellants and the respondents 3 to 8, that the pleadings and depositions, conclusively establish fraud and misrepresentation. It is beyond comprehension as to how anyone expected to reasonably and judiciously adjudicate a claim of fraud and fraudulent misrepresentation, by objective process of reasoning, could, on the basis of such perfunctory and slender material on record, in the absence of legally acceptable evidence, with no pleadings, and evidence whatsoever, in this connection, draw certain conclusions. The finding of the trial Court that all the sisters voluntarily executed the deed of partition, Ex. D6 is well merited, justified and does not call for interference.
56. Sri, G. S. Visweswara, the learned Senior counsel for the 2nd appellant contends that the document Exhibit D-6 is void, hit by Section 25 of the Contract Act, 1872, for short Contract Act, since the consideration of Re. 1/- to each of the daughters (sisters) for release and relinquishment of their rights to claim a share, is illusory and is no consideration in the eye of law, while placing reliance on the decision of the Apex Court in the case of John Tinson and Company Pvt. Ltd. v. Surjeet Malhan, and the decision of the Division Bench of this Court in the case of S. Rajanna v. S. M. Dhondusa, AIR 1970 Mysore 270. Sri. Narayan, learned Counsel for the 1st appellant adds that Re. 1/- consideration to each of the sisters would shock the conscience of the Court, an ingredient, which should weigh heavily with the Court of equity.
57. Per contra, learned Counsel for the contesting respondents points out to the pleadings in the plaint, and the appeal memorandum, to contend that there being neither pleading nor an issue or ground in the appeal memorandum, the respondents are taken by surprise and have no opportunity to meet the said contention to establish, as a matter of fact, that Exhibit D6 falls under the exceptions to Section 25 of the Contract Act, since such a plea is not a pure question of law, but a mixed question of fact and law having application only to commercial transactions. In addition, it is contended that if a release can be without consideration, Exhibit D-6 cannot be tested by case law under Section 25.
58. Sri Ron places reliance on the observations of the Supreme Court in (i) Gouri Shankar v. Hindustan Trust Limited, which reads thus :
"While giving - permission to argue that point, the Court has to look at all the facts and circumstances, the conduct of the parties seeking to raise that point is of great importance."
(ii) In Yeshwant v. Walchand, in which their Lordships of the Supreme Court followed the observations of Lord Watson in Connecticut Fire Insurance Co. v. Kavangah, (1892) AC 473 which reads:--
"When a question of law is raised for the first time in a Court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interest of justice to entertain the plea. The expediency of adopting that course may be doubted when the plea cannot be disposed off without deciding nice questions of fact in considering which the Court of ultimate review is placed in a much less advantageous position than the Court below."
59. Countering the plea of inadequate consideration, Sri Ron places reliance on the decision of the Special Bench of the Madras High Court in the case of Board of Revenue v. K. Manjunatha Rai, wherein it is held that a release in law may be effected either for consideration or for no consideration.
60. In view of the contentions advanced by the learned Counsel for the parties, a question that necessarily arises for consideration is, "Whether, this Court in the exercise of judicial discretion, at the stage of arguments, should permit the appellants to canvass a plea that was not advanced before the trial Court ?"
61. In order to appreciate the contentions of the learned counsel, it would be useful to refer to the contents of the Power of Attorney Exhibit D 8 executed by the 2nd appellant, which reads thus :
"The joint family members of the said late K. Srinivasalu, have agreed to partition the properties belonging to the family and I have agreed to relinquish my right to claim a share in the said properties and pursuant to the said agreement, a partition deed is required to be executed and registered.
Now know ye all men to execute and register the deed of partition on such terms the conditions and covenants as my attorney shall deem fit."
(Emphasis supplied)
62. The appellants did not pead that Re. 1/- consideration was inadequate and that it was a fraud or fraudulent misrepresentation. Strangely, P.W. 1 in her deposition admits that each of the sisters were given Re. 1/- and their signatures obtained on the Partition Deed on 5-8-1983. The witness further states that as there was some function on the said date, she did not enquire as to why their signatures were taken on the said document, nor was she informed of the reasons by her brothers.
63. It is not disputed that the plea of inadequacy of consideration for the release and relinquishment of a right to claim a share in the joint family properties, by reason of which the partition deed Ex. D. 6 was void, hit by Section 25 of the Contract Act, was not raised in the pleadings of the plaintiffs before the trial Court, nor an issue framed, or evidence lead on the said point much less arguments advanced. Hence there was no occasion for the defendants 1 and 2 to offer any explanation, or lead evidence on the said point.
64. It is no doubt true that mere inadequacy of consideration as set out in explanation (2) of Section 25 is not relevant, unless it affects the question of free consent to contract. Inadequacy of consideration when found in conjunction with fraud, misrepresentation or any other such circumstances weighs powerfully with the Court of equity alone.
65. The evidence on record discloses that the plaintiffs and the supporting respondents failed to discharge their burden to prove fraudulent misrepresentation by defendants 1 and 2 in execution and registration of the two documents, Exs. D6 and D8 while on the contrary the parties elected to act upon the two documeists by collecting their share of rental income, therefrom. The conduct of the parties in not raising the plea of inadequacy of consideration or no consideration as required by Section 25 of the Contract Act, either in the pleadings, at the trial, or arguments, before the trial Court and having advanced the plea after a lapse of more than 21 years from the date of execution of the partition deed, Ex. D6, in the year 1983, coupled with the manner the plea is sought to be raised before this Court, at the time of arguments, the law laid down in the decisions referred to supra, apply on all its fours. In the absence of, adequate pleading in conformity with the requirements of Section 25 and proof of basic facts which would attract the application of that Section, a Court is not justified to allow such a plea to be raised and to decree the suit on that footing.
66. The view that we have taken is supported by the following four decisions. (i) Latif Jarian Begatn v. Md. Nabi Khan, AIR 1932 All 174, wherein it is held thus :
"This plea was not taken In the written statement. No issue was framed on this point. No arguments were addressed to the trial Court and the plea was not taken in the memorandum of appeal to the lower appellate Court. The defendant ought not to have been allowed to break fresh ground during the progress of the argument in a Court of appeal. The question did not involve a mere point in law. It required the determination of a question of fact viz. whether the agreement was made on account of natural love and affection...."
The existence of a dispute or the assertion of a claim to any property is not essential for the creation of a family settlement where an arrangement has been arrived at between certain members of the family that is designed to promote peace and goodwill amongst certain of its members, this by itself is a good consideration to support the transaction. In cases of family arrangement. Courts will not scan too closely the quantum of consideration.
(Emphasis supplied)
(ii) In Ramachandra Agarwalla v. Kantapall Gram Panchayat, 1971 (2) CWR 775, considering the scope of Section 25 of the Contract Act, and the duty of the plaintiff, it was held thus :
"To attract this provision, a number of pre-requisites have to be established and the plaintiff must indicate on which part of this provision of law, he would like to bring his case under, and plead necessary facts for the purpose. This Sub-section (3) envisages that such a novated contract may be made by a person to be charged therewith or by his agent specially authorised in that behalf."
(iii) Moreover in Ratnam Chettiar v. S. M. Kuppam, (supra), the Apex Court held that in the case of a partition effected between members of a Hindu undivided family by their own volition and consent, cannot be lightly set aside or reopened unless it is shown that the same is established by strict proof of evidence of fraud, coercion, misrepresentation or undue influence.
(iv) In Thimmaiah v. Ningarnrna the Supreme Court, observed at paragraph 20, thus :
"The rationale behind the impermissibility of certain disposition of coparcenery properties is the protection of the interest of other coparceners. Where other persons have an interest in coparcenary property, whether inchoate or otherwise, and willingly acquiesce in the depletion of such interest for whatever purpose, such a disposition would be permissible...."
67. The Judgment in John Tinson's case (supra), referred to by the learned Senior Counsel, in our considered opinion has no application to the facts of this case. In the said case there was no concluded contract between the share holder and a broker. The Supreme Court found that the acquiescence of the share holder did not amount to consent since she had not expressly authorised her husband to transfer her shares. The wife having pressed into service the application of Section 25(1) of the Contract Act, it was held that the transfer agreement was void and the consideration of Rs. 1/- for the transfer of shares has no consideration in the eye of law. Keeping in mind the facts and circumstances of the present case, we are of the considered opinion that the said principle has no application. In S. Rajanna's case (supra), a Division Bench of this Court observed that the property conveyed was the interest of the transferors in the joint family property of themselves and their respective sons, and therefore the transfer was held to be void. This case being one distinguishable on facts, is not applicable to the case on hand.
68. It is next contended that defendants 1 and 2 made fraudulent misrepresentations as to the character of documents Exs. D6 and D8 and their contents, the nomenclature of the document, Ex. D6 reads "partition deed", while its contents disclose a release and relinquish of the right to claim a share hi the family property by the sisters, which according to the learned Counsel is a conveyance, Without consideration, hence void. So also is the contention as regards the Power of Attorney Exhibit. D-8.
69. Sri V. H. Ron learned Counsel contends in the alternative assuming the partition deed, Ex. D-6 is procured by fraud, it is' not void since the plaintiffs had the means of discovering the truth with ordinary diligence, more so in view of the contents set out in the partition deed, Ex. D6, the power of attorney, the lease deeds and the receipt of the lease rentals by all the sisters. Learned counsel places reliance on the observation of Mauled, in Pilbrowv. Pilbrow's R.Y.C.O.5 C.D. 440 at page 453 extracted at 508 of Brooms legal maxims -- 10th Edition (1939) reads thus :
"It is not true that a deed that is obtained by fraud is therefore void. The rule is that the party defrauded may, at his election treat it as void, but he must make his election within a reasonable time. The party guilty of fraud has no such election."
70. In support of the aforesaid proposition, reference is also made to a decision of the Apex Court in the case of Ningawwa v. Byrappa, wherein Their Lordships observed thus :
"It is well established that a contract or other transaction induced or tainted by fraud is not void, but only voidable at the option of the party' defrauded. Until it is avoided, the transaction is valid, so that. third parties without notice of the fraud may in the meantime acquire rights and interests in the matter which they may enforce against the party defrauded.
"The fact, that the contract has been induced by fraud does not make the contract void or prevent the property from passing, but merely gives the party defrauded a right on discovering the fraud to elect whether he shall continue to treat the contract as binding or disaffirm the contract and resume the property. If it can be shown that "the party defrauded" has at any time after knowledge of the fraud either by express words or by unequivocal acts affirmed the contract, "his" election is determined for ever. The party defrauded may keep the question open so long as he does nothing to affirm the contract" Clough v. L and N.W. Ry., (1871) LR 7 Ex. 26 at p. 34.
(5) The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable;"
71. It is no doubt true that the covenants in the partition deed. Ex. D6. read that the sisters have released and relinquished their right to claim a share in the family properties, for a consideration of Re. 1/- each. It is trite that relinquishment deed is effective as regards joint or joint family properties, but not separate properties which could be done only by a conveyance. At a partition. it is open to the parties to arrive at an arrangement, which according to them, is just and equitable in the circumstances of the family, at that time. A partition is an agreement between two or more persons who are bound by it, whereas a release deed is a one-sided document which binds the executant alone. A release in law may be effected either for consideration or for no consideration. We draw support from the Judgment of a Coordinate Division Bench of this Court in the case of Veerabhadrappa v. Lingappa, AIR 1963 Mysore 5 wherein it is held :
"It is well to remember that a partition of family property under the Hindu Law is not a mere division or distribution of properties or a mere enforcement of what may be strictly described as legal rights. The nature of right in respect of joint family properties, its management and its enjoyment by the several members of the family are such that it cannot possibly be equated to considerations appropriate to English law ideas of joint tenancy or tenancy in common nor as the position of joint family Manager one comfortably assimilated in English Law ideas of trusteeship, agency or mere managership."
72. The plaintiffs' allegation is that defendants 1 and 2 verbally misrepresented to them that their signatures were necessary on the documents "for proper management of the properties and estate of late K. Srinivasulu." However, the witnesses for the plaintiffs and D.Ws. 3 to 5, in their depositions state that their signatures were taken for the purpose of income tax and wealth tax. This demonstrates clear variation between pleadings and proof. As a matter of fact, the decree in O.S. 2459/82 sets apart three immovable properties to be sold and the consideration to be paid towards tax liabilities, pursuant to which both the widows of late K. Srinivasulu together with their children on 27-8-1983 executed the sale deed conveying the immovable property for valuable consideration in order to discharge the statutory liabilities. The plaintiffs and defendants 1 to 8 parties to the said decree, the alleging that defendants 1 and 2 had taken their signatures for tax purposes is Improbable, moreover such an allegation is not set out in the plaint or the written statement of defendants 5 to 7. The plaintiffs have not called in question the judgment and decree in O.S. No. 2459/82. but have allowed the same to become Anal and binding. Even otherwise, as noticed supra, the plaintiffs have failed to plead and prove the fraud or fraudulent misrepresentation. On the contrary, it is established that they elected to act upon the partition deed, Ex. D6, by executing the documents such as. Power of Attorney and the lease deeds and the receipt of the lease rentals. The election made by the plaintiffs and defendants 3 to 8, assuming that they were defrauded, cannot be retracted by them and the validity of the partition deed Ex. D6 cannot be challenged.
73. Sri Narayan would place strong reliance on the observations of the Apex Court in the case of Girijanandini v. Bijendra Narain, to contend that a plea that the evidence In support of the defendants case is unreliable, could be raised without pleadings or by amending the plaint.
74. There can be no dispute about the said legal propositions. The facts of the said case was that the defendant relied on a document which the plaintiff claimed to be fabricated and Their Lordships held that there was no necessity for the plaintiff to plead whether the evidence of the defendants case is reliable. This case is distinguishable on facts. In the present case, the plaintiffs and the supporting defendants, the sisters, admit execution and registration of the two documents, Exs. D6 and D8, called in question in the suit, but however claim, were obtained by playing fraud and misrepresentation by defendants 1 and 2. It is not the case of the plaintiffs that defendants 1 and 2 fabricated the documents Exs. D6 and D8. As noticed supra, the plaintiffs having charged the defendants 1 and 2 with fraud, must prove the fraud and the plaintiffs are not relieved of their obligation merely because the defendants told an untrue story. The plaintiffs have failed to prove fraud, the very foundation of their case but. seek to secure a relief on the basis that the evidence of defendants 1 and 2 was Insufficient, which in our opinion cannot be countenanced,
75. A feeble attempt was made by the learned Counsel for the 1st appellant to contend that the document, Ex. D6 was void since the sub-registrar had not explained the contents of the document to the appellants while registering the same.
76. The Privy council in Md. Ihtisham Ali v. Jairmna Prasad, AIR 1922 Privy Council 66 observed that Registration is a solemn act and if no other evidence is available the Court can presume that the Registrar performed his duty of satisfying himself that the document presented to him for registration was duly executed by the executants and the executant was duly and properly identified before him. This observation was followed by the Madras High Court in the ease of Irudayam Ammal v. Salayath Mary, . We find it necessary to refer to the two other decisions, upon which Sri V. H. Ron would place reliance, in the case of Shiv Das v. Devki, AIR 1978 Punjab and Haryana 285 and Amir Bi v. Management, Nilasandra Mosqua, AIR 1960 Mysore 103, with regard to the certificate endorsed on a registered deed which would constitute a strong piece of evidence to prove the execution of the deed. We say so because the execution and registration of D6 and D8 are admitted by all the parties.
77. The evidence of 2nd defendant, who examined himself as D.W. 1 and that of Sri R. V. S. Nayak, Advocate, examined as D.W. 2, discloses that the Sub-registrar did read out and explain the contents of Ex. D6 to the parties at the time of registration. Moreover, a presumption is attached to the final acts done by the Sub-registrar in the course of registering the document as is discernible from illustration (e) of Section 114 of the Evidence Act, which remains unrebutted. As noticed supra, except for a mere assertion by way of self-serving statements of the sisters, that the Sub-Registrar did not read out and explain the contents of the documents, the sisters have placed no legal evidence to substantiate the same. The contention of the 1st appellant is rejected.
78. The finding of the trial Court upholding the contention of defendants 1 and 2 that the suit is not maintainable, without the plaintiffs seeking a declaration that the partition deed, Ex. D6, is void, is assailed on the ground that since the document is challenged as being void, there is no need to seek a declaration. Though the decisions hereinbelow referred to are relied upon by the learned Counsel for the appellants, are not applicable, we, however, consider it appropriate to make a brief reference to the facts of each case.
(i) Mt. Izhar Fatimabibi v. Ansar Fathima bibi, AIR 1938 Allahabad 348;
(ii) Aisha Begurn v. Kundan Jan, AIR 1945 Allahabad 367;
(iii) Khata Chinna Eswarareddi v. Kukkala Reddigari Venkatachelamma Reddi, ;
(iv) Md. Nazeerv. Mt. Zulaikha, AIR 1928 Allahabad 267;
(v) Appanna v. Jami Venkatappadu, ;
(i) In Fatimabibi's case, a Pardanashin lady executed a deed of relinquishment, a transaction between mother and daughter, which the Court held as void and therefore, unnecessary to avoid or to get it cancelled, following the observations of the Privy Council in 36 ALN 81 in the case of Kalibaksh Singh v. Ramgopal Singh, 36 ALN 81, that the law throws around a pardanashin lady a special clock of protection. In the very same judgment a reference is made to the case of Mt, Faridunnissa v. Mukhtar Ahmed, 1947 LL 703 wherein the Privy council observed that it would be separate matter in case of fraud, duress and actual undue influence.
(ii) In Aisha Begum's case (supra), the Allahabad High Court held that there was a distinction between a void and voidable contract and that in the former, there was no necessity to seek a declaration to the said effect and the rights of the parties could be determined independent of the deed,
(iii) The Madras High Court in Khata Chinna Eswarareddi's case held that if the plaintiff alleges that a sale deed is taken by fraud or for no consideration, the same is a void contract which need not be set aside before one could seek recovery of possession ignoring the said sale deed.
(iv) The obiter in Md. Nazeer's case (supra) is chat when a deed is null and void, there is no necessity for the party to come to Court, promptly and have the deed actually cancelled or set aside. Where, however, a deed is good but is voidable and can be avoided at the option of the party aggrieved, he must come to Court within three years to have it set aside.
(v) In Appanna's case (supra), the Madras High Court considering the facts and circumstances of the said case, held, that when a deed of one character is executed on a representation that it is of a different character, such a deed is wholly void and inoperative,
(vi) The decision of the Supreme Court in Ningainma's case (supra), is that a contract or other transaction induced or tainted by fraud is not void but only voidable at the option of the party defrauded, provided the party defrauded has done nothing to affirm the contract. It is further held that the document is void if the fraudulent misrepresentation is as regards its character but voidable if it is as regards its contents. Following the aforesaid legal principles, the Division bench of this Court in Kenchawwa's case (supra) held that it is only when the plaintiff makes out a case of fraud and misrepresentation that the document in question would be void.
79. In the present case, the trial Court rightly pointed out that the plaintiffs acted upon the partition deed, Ex. D6 and executed lease deeds in respect of their 1/11 share in the deceased mother's 1/3 share, in the property in question and received the rents from the 9th defendant, the tenant. The plaintiffs claiming to be defrauded did not keep the question of fraud open by doing nothing to affirm the partition deed, Ex, D6. The plaintiffs claim that it is a case of fraud as to the contents of the document, as also its character. Having regard to the nature and quality of evidence placed on record, in our opinion, the evidence is highly insufficient, lacks in material particulars and totally unacceptable. In the view that we have taken, the document, Ex. D6, the partition deed as well as the document, Ex. D8 -- Power of attorney cannot be held to be void but voidable. The plaintiffs ought to have sought for a declaration to the said effect. The finding of the trial Court is well merited and cannot be faulted with.
80. The appellants contend that they had no knowledge of the fraud and fraudulent misrepresentation practiced by defendants 1 and 2 (i) at the time of instituting O.S. 2459/1982, by the 1st wife, Singaramma along with her children against the 2nd wife and children of late K. .Srinivasulu, for partition; (ii) the subsequent compromise; (iii) on 15-7-1983 when the 2nd plaintiff executed the Power of Attorney, Ex. D8 and Ex. D9; (iv), when all the parties executed partition deed, Ex. D6 on 5-8-1983: (v) on. 11 -22-1985 when the lease deeds in favour of the defendant were executed. According to them, the fraud came to light only during the year 1988 and the suit filed in the year 1990 is within the period of limitation/The trial Court having considered the pleadings and evidence on record concluded that, the suit was barred by limitation,, which finding is assailed in this appeal, as being contrary to well settled principles of law,
81. No doubt the appellants have stated in the plaint that they carne to know of the fraud from their friends and relatives during the year 1988, but that by itself and without anything more is grossly insufficient to establish the starting point of limitations. The mere allegations of fraud and misrepresentations devoid of proof, is but a ruse to overcome the limitation. The evidence of P.W. 2 that she voluntarily executed the special Power of Attorney, Ex. D.9 on 20-12-1983 attested by her lawyer at Cuddapah containing recitals about the partition deed, Ex. D. 6, it is difficult for us to accept the plea of the plaintiffs that they carne to know about the alleged fraud only during the year 1988. No exception can be taken to the finding of the trial Court.
82. The plaintiffs, by way of abundant caution, filed an Interlocutory application dt. 25-3-1997 under Order 6 Rule 17 of the CPC, before the trial Court, which Was numbered as IA-XII for amendment of the plaint to incorporate additional facts and a prayer to cancel the partition deed, Ex. D6, being rejected by Order dt. 13-3-1997, is questioned in this appeal. The trial Court held that the suit filed on 23-9-1990 for partition, without avoiding the partition deed, Ex. D6, was void. The defendants 1 and 2, in their written statement, filed on 2-7-1991, at para 23, advanced a positive plea that the suit is not maintainable in the absence of a relief to cancel, Ex. D6. Despite the written statement, the plaintiffs did not take steps till 25-3-1997, by which date, a fresh suit, on the amended claim, was barred by limitation. Allowing the application would seriously prejudice and take away the rights accrued in favour of the of defendants 1 and 2. The reasons assigned by the trial Court while following the principles laid down by the Apex Court in the case of Radhika Devi v. Bajrangi Singh, , it cannot be said that the order is either perverse or suffers from any legal infirmity.
83. Sri Narayan, learned Counsel for the 1st appellant points out to Section 215 of the Contract Act to contend that the power of attorney EX. D.8 executed by the 2nd plaintiff, did not in fact, operate as a release and relinquishment of her claim to a share in the family properties in favour of any particular person much less defendants 1 and 2, hence the partition deed Ex. D6 executed by the power of attorney holder, releasing and relinquishing the properties in his favour, is illegal. Section 215 of Contract Act, reads thus :
"215. Right of principal when agent deals, on his own account, in business of agency without principal's consent -- If an agent deals on his own account in the business of the agency without first obtaining the consent of his principal and acquainting him with all material circumstances which have come to his own knowledge on the subject, the principal may repudiate the transaction, if the case shows, either that, any material fact has been dishonestly concealed from him by the agent, or that the dealing of the agent have been disadvantageous to him."
84. Reliance is placed on the observations made in Raghunath v. Ram Prathap, AIR 1935 Sindh 38 extracted below :
"I think therefore even supposing the question is to be put in the form proposed by Rupchand A.J.C. in such a case as it is the burden of proving that the transaction Was not disadvantageous to the principal ought to lie upon the agent".
In the facts of that case it was further held:
"The plaintiffs have not alleged and proved the incidents of that system. They have not shown that the defendants firm, if and when they entered into these contracts, knew that the plaintiffs were acting as principals and in that capacity selling their own wheat to themselves in their capacity of agents to the defendants. We think that such a transaction, which necessarily puts the agent's duty in conflict with the interest must be presumed to be disadvantageous to a principal who is not informed of the fact." .
85. Per contra, Sri V. H. Ron, learned Counsel contends that in the facts of the present case, where members constitute a joint family, the 2nd plaintiff executed the Power of Attorney Ex. D.8 with clear instructions to the holder, that as she has released and relinquished her claim to a share in the family properties, to execute and lodge for registration a partition deed of the joint family properties of late K. Srinivasulu. Having agreed to a partition of the joint family and to relinquish her right to claim a share in; the said properties, with instructions to ex ecute and register a partition deed on such terms and conditions and covenants as the attorney may deem fit, according to the learned counsel, the contention of the appellants is without merit. Sri Ron relies upon the decision of the Privy council in Alluri Venkatapati Raju v. Dantuluri Venkatapati; Raju, ILR 1937 Madras 1, wherein it. is observed, that renunciation merely extinguished the renouncing members interest in the family estate, but did not affect the status of the remaining members quad, the family property and they continued to be coparceners as before. The only affect of re-nunciation was held to be reduction in the number of persons to whom shares would be allotted, if, and when, a division of the estate takes place.
86. The Supreme Court in Mst. Rukhma Bai V. Lala Lakxmi Narayn, observed thus :
"A member need not receive any share in the joint estate but may renounce his interest therein his renunciation merely extinguishes his interest in the estate but does not affect that status of the remaining members vis-a--vis the family property".
87. Having read and re-read the covenants in the Power of Attorney, Ex. D.8 we are convinced that P.W. 2 a member of the joint family with the full knowledge of the fact that she agreed to release and relinquish her claim to a share in the joint family properties of late K. Srinivasulu empowered another member as the power of attorney holder, with the authority to execute a partition deed, in express terms, such as in the manner the holder deems fit. What is discernable from the covenants in Ex. D-8 is the true intention of the P.W. 2 in the matter of both partition and the release and relinquishment of her right to claim to a share in the family property while the Power of Attorney holder, being none other than her brother, the release and relinquishment could have been in favour of none other than the members of the joint family of late K. Srinivasulu. If it was not to be, P.W. 2 would have spell out the identity of the person. Neither in the pleading nor in her deposition there is mention of any other person, in whom she had released and relinquished her right over the property. P.W. 2 being fully aware that the agent was also a co-sharer in the family properties, the contention that there is a conflict of interest between the agent and P.W. 2 is without merit. Section 215 of the Contract Act, 1872, muchless the judgments referred to by Sri Narayan, learned Counsel have no application.
88. Judging by the principles laid down in Alluri Venkata Raju's case as well as in Rukhrna Bai's case (supra) there can be no doubt that by renunciation as recorded in Ex. D-8 and the partition deed Ex. D6, not only P.W. 2 but her other sisters too extinguished their rights to claim a share in the family properties without affecting the status of the other members vis-a-vis the joint family properties.
89. Sri. Narayan, learned Counsel for the 1st Appellant would lastly contended that by the registration of the documents Exhibit D6 and Exhibit D8, there arise no presumption as regards their genuineness, and the finding of the Trial Court to the contrary is incorrect.
90. It is indisputable that the Partition Deed Ex. D.6 and the Power of Attorney Exhibit D8 are duly authenticated, executed by the concerned parties, and registered by the jurisdictional Sub-Registrar. Sri V. H. Ron, learned Counsel for Respondent No. 2 would draw our attention to Section 85 of the Evidence Act, 1872 to contend that a presumption can be drawn as regards its genuineness. From the registration of Exhibit D6 and Exhibit D8, there is a presumption of regularity of official acts and we are satisfied that the Sub-Registrar must have satisfied himself in the discharge of his duties that the persons executing the documents were the proper persons. Thus the partition Deed Ex.D.6 and the Power of Attorney Exhibit D8 are valid and effective. Of course, by registration of a document, one can only presume due execution by a proper person and there can be no presumption as regards its genuineness. The challenge is not to the genuineness of the Partition Deed but that it suffers from the vice of fraud and fraudulent misrepresentation. Though the Trial Court's finding is not correct, but that by itself and nothing more, the conclusions arrived at by the trial Court cannot be found fault with. On the other material available on record, the trial Court: negatived the contentions of the Plaintiffs and upheld the partition recorded in Exhibit D6 as well as the release and relinquishment. In this view of the matter, even if the finding of the trial Court to the extent mentioned supra is incorrect, it does not vitiate its final conclusion.
91. Sri B. Vcerappa, learned Counsel for Respondent No. 4 contends, that the said respondent was not: a signatory or party to the Partition Deed Exhibit D6 and the alleged Power of Attorney by which Smt. Singaramma represented R-4. in the Partition Deed, not being produced, is not binding on the fourth respondent. The contention is without any substance and is rejected, since the 4th respondent, though served with the suit summons, remained absent and was placed ex parte before the trial Court, did not contest the suit, nor call in question the judgment and decree in the suit. It is trite that the Appellate Court would not vary or reverse a decree/order in favour of a party who has not preferred any appeal, notwithstanding the provisions of Rule 33 of Order 41 of the CPC.
92. On a fair consideration of the material on record, the findings of the trial Court are well merited, fully justified and they are neither shown to suffer from any infirmity in law or substantiated to be based on no evidence or vitiated on account of any perversity of approach to call for a different conclusion in our hands and interfere with the verdict.
For the reasons aforestated, the suit is unmeritorious and the appeal deserves to be dismissed, with costs.