KUPPUSWAMY CHETTIAR versus A. S. P.A. ARUMUGAM CHETTIAR AND ANOTHER

KUPPUSWAMY CHETTIAR

A. S. P.A. ARUMUGAM CHETTIAR AND ANOTHER September 6, 1966

[K. N. WANCHOO, J.C. SHAH AND R. S. BACHAWAT, J J.]

Transfer of Property Act, 1882, s. 123-Registered Release Deed-.exec.uted without consideration in presence of nwre than Hva witnesses-Whether effectively passes 'title-Whether can only enlarge interest of re-leasee--Or transfer title to one havlng no ritle.

By will made in August 1931, P, who was the grand-father of the respondents, bequeithed certa.in immovable ·properties to ~is paternal uncle's daughter K. In January 1952, the respondents instituted suit against sev;iral per$0ns 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 deed in favour of the respondents, releasing the .Wt properties, including certain outstaodings due from third parties, and !his deed was registered on February 26, 1952. The respondents thj>re-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 osking for decree setting asi<;le the release deed of February 1952. on the groun.d that it was vitiated by misrepresentation, fraud, deceit and undue influence. He also alleged that the deed being i!eed of release could not take effect as_ conveyance and did not effectively pass title to the properties. The trial Court decreed the suit holding that the deed was procured by mis-representation 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 releafo can only enlarge an existing title of the release and there can be no release in favour of· releasee who has no in-terest in the property.

HELD: (i) On the facts, the appellant had failed the deed was p'rocl!red by misrepresentation.

to establish that

(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 effec& as gift. The gift was effectively made by registered instrument signed by the donor and attested by more than two witnesses. [278 C-BJ

by the donor and attested by more than two witnesses.

T. Mammo v. K. Ramunni, A.I.R. 1966 S.C.R. 33, 340: folloWed.

(Hi) In the present case the ,deed was in favour of person having oo interest in the property and it could not take effect as an enlargement of an existing estate. It was intended to be and was transfer of owner-ship. deed called deed of release can; by using words of sufficient amplitude, transfer title to one having no title before the transfer. {?79 C-D]

Hutchi Gowder v. Bh.ecmtJ Goivder, [1959] 2 M.L.J. 32:4; 337· S. P. Chinnathambiar v. Y. R. P. Chinnathambiar, (1953} 2 M.L.J, ]37' 391 : distinguished. · '

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 521° of

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. Ganapathy Iyer, for the respondents.

The Judgment of the Court was delivered by

Bachawat, J. Jn this appeal, the question is whether deed

of release was vitiated by misrepresentation, and if, not, whether it operated as conveyance of the suit properties in favour of the respondents. By will dated August 9, 1931, their grandfather Ponnuswami bequeathed the immovable properties to his paternal uncle's daughter, Kannammal. In January, 1952, the respon-dents instituted O.S. No. 24 of 1953 against several pel'Sons includ-ing Kannammal challenging inter alia the validity of the bequest made by Ponnuswami. On February I, 1952, Kannammal diei leaving as her heir the appellant who was her husband's brother's son. On February 25, 1952, the appellant executed deed, Ex. B-1, in favour of the respondents releasing the suit properties including certain outstandings due from third parties. On Feb-ruary 26, 1952, the deed was registered. On the same date, the raipondents 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 impleaded the appellant as defendant to the suit, and stated that in view of the release deed they were entitled to recover the debt. The appellant filed written statement al-leging that the release deed was invalid and the suit was not main-tainable. The suit was decreed by the Munsif. On January 31, 1955, the appellant, institukd the present suit asking for decree for setting aside Ex. B-1. recovery of the suit properties and ac-counts. He alleged that Ex. B-1 was vitiated by misrepresenta-tion, fraud, deceit and undue influence. His main contention wa~ that he was induced to execute the deed on the representation that it was power-of-attorney authorising the respondents to manage the properties on his behalf. He also submitted that Ex. B-1 being deed of release could not take effect as 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

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 ap-pellant now appeals to this Court on 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 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 re-c gistration. 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. Kaving 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 maiia-· ging the properties. In the written statement filed in 0.S. No. 174 of 1953, he took the plea that the deed of release did not effeC-· lively pass title to the outstandings, but he did not then say that it was vitiated by misrepresentation. His present plea that the· deed wa.s 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 release deed could not operate as a. conveyance. Exhibit B-f was styled deed of release. The Paper Book does not show whether it was.· stamped as release or as conveyance. After reciting that Kan-narnmal was the owner of tqe properties and she died leaving the appellant as her heir, the operative part of the deed stated :

"I hereby execute release deed in your favour te> 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 undis-putedly with absolute rights under the huq release . deed executed by me the entire movable and immovable pro-perties belonging to the aforesaid Kannammal and all. th~ outstanding due to her from out~ders, I have not

received any consideration whatever for the said release deed."

The question is whether Ex. B-1 on its true construction con-veyed properties to the respondents. In T. Mammo v. K. Ramunni([1]); this Court ~eld :

"a registered instrument styled release deed 'releasing the right, title and interest of the executant in any property in favour of the releasee for valuable consideration may operate as conveyance, if the document clearly discloses an intention to effect transfer".

Jn the present case, the release was without any consideration. But property may be transferred without consideration. Such transfer is gift. Under s. 123 of the Transfer of Property Act, 1882, gift may be effected by registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Consequently, registered instrument releasing the right, title and interest of the releasor without consideration may operate as transfer by way of gift, if the document clearly shows an in-tention 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 gift. The gift was effectively made by registered instru-ment 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, 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 wit-nesses gave evidence and having regard to s. 68 of the Indian Evi-dence Act, 1,872, 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 wit-nesses cannot be read, and it is not clear whether he figured as 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 release can only enlarge and existing title of the releasee, and there can be no release in favour of releasee who has no interest in the property. He relied on_ the -----------

-----(!) Al.R. t966 S.C. 337, 340.

following observation in Huichi Gowder v. Bheema Gowder (') "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 person, who had already title to the estate, the effect of which is only to enlarge the right. Re-nunciation does not yest in person title where it did not exist ... " JI Now, it cannot be disputed that release can be usefully employed as form 'of conveyance by person having some right or interest to another· having limited estate, e.g., by remainderman to tenant for life, and the release then operates as an enlargement of the limited estate. But in this case, we are not concerned with release in favour of the holder of limited estate. Here, the deed was in favour of 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 transfer of ownership. deed called deed of relea~e can, by using words of sufficient amplitude, transfer title to one having no title before the transfer. The cases relied upon by counsel al'e not authorities for the proposition that the operativ.e words of release deed· must be ignored. In S. P. Chinnathamblar's case (2), the document could not operate as transfer, because transfer was hit bys; 34 of the Court of Wards Act, and viewed as renunciation of claim, it could not vest title in the release. Jn. Hutchi Gewder v. Blieema Gowder ([1]), the ques-1iort was whethor covenant of further assurance should be en-· forced· by clir«:ting the d~ndattt to- execute release deed Gr. deed of conveyance, and' the- Court h~d- that the· defendant should execute deed of conveyance. These decisions do not lay down that deed styled a· deed of release cannot, in law,-transfer titte 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. ,+ppeal _dismissed.

(1) [1959] 2 M,L.J. 324, 337.