# · [2008] 9 S.C.R. 297 RANGANAYAKAMMA AND ANOTHER v. ~ K.S. PRAKASH (D) BY L.RS. AND OTHERS - **Citation:** [2008] 9 S.C.R. 297 - **Court:** Supreme Court of India - **Decided:** 2008-05-16 - **Case number:** Civil Appeal No. 3635 of 2008 - **Bench:** S.B. Sinha, Lokeshwar Singh Panta - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2008-9-s-c-r-297-ranganayakamma-and-another-v-k-s-prakash-d-by-l-rs-and-others-24857 - **Pages:** 49 ## Headnote -( HtNDU LAW: Joint family properties - Partition of through family settlement - Sisters relinquishing their rights in properties in favour c of their brothers - Consent decree based on family settlement - HELD: A partition by meets and bounds may not always be possible - A family settlement is entered into for a larger purpose of achieving peace and harmony in the family - It is not ' .... a case where settlement was contrary to any statutory proviD "" sion or was opposed to public policy - Court shall apply the statute to uphold a compromise unless it is otherwise vitiated in law - Contract Act, 1872 - s. 23. DEEDS AND DOCUMENTS." Deed of 'release' - Relinquishment of right in properly E by, sisters in favour of their brothers - HELD,· Release by an heir other than coparcener does not need any consideration - s. 25 of Contract Act must be read and construed having " regard to the fact situation obtaining in the case - Renunciation in Indian context may be or may not be for consideration F - Contract Act, 1872 - s.2 (d) and 25 - Transfer of Property Act, 1882 - ss. 122 and 123. CONTRACT AcT, 1872: ss. 17 and 19 - 'Fraud' - Voidabi/ity of agreement - Suit G -I by sisters against their brothers and other sisters alleging fraud in obtaining consent decree in an earlier partition suit- HELD: When a fraud is alleged, particulars thereof are required to be 297 H 298 SUPREME COURT REPORTS [2008] 9 S.C.R. A pleaded - In the instant suit, no particulars of alleged fraud or misrepresentation have been disclosed - Besides, documents on record show that partition consequent upon consent decree had been acted upon - Papers were signed either in office of advocate or before Sub-Registrar - Both the courts B below recorded a finding that the sisters had jointly taken a stand that they would not claim any share in properties - No case of fraud or misrepresentation has been made out - Code of Civil Procedure, 1908 - Or. 6, r.4. L1M1TATION Acr, 1963: c Schedule -Articles 59, 65 and 110 - Suit alleging fraud in obtaining deed of partition - Limitation - HELD: Applicability of Article 59 would depend upon the question as to whether deed of partition was required to be set aside or 'not - In the D instant case, it was required to be set aside - In view of Article 59, suit was barred by limitation. ~ The plaintiffs-appellants, two sisters, filed Suit No. 1760 of 1990 against their brothers defendants-respondents Nos.1 and 2 and other sisters for partition of the E suit properties on the ground that the same were self acquired properties of their father, 'KS'. It was also stated that the two brothers defendants-respondents no.1 and 2 acted fraudulently in getting the Power of Attorneys from them and obtaining a consent decree in earlier partition suit No. 2459 of 1982. The stand of the defendants-respon- ... F dents nos. 1 and 2 was that their father 'KS' alongwith other family members came to acquire the properties through a partition of joint family properties effected in the year 1957. 'KS' had two wives namely 'S' and 'V' and G in Partition Suit No. 2459 of 1982 the properties were further divided half and half between the two branches of 'KS' by a consent decree passed in terms of a compromise. Pursuant to the said compromise decree, a further deed of partition was executed on 5.8. 1983 (Ext. D-6) H amongst the children of 'KS' from 'S' in terms whereof 1/3 RANGANAYAKAMMAAND v. K.S. PRAKASH (D) 299 AND OTHERS . "" share in the property shown as Item No.3 was allotted to A their mother 'S' and rest of the properties were retained by the two brothers, defendants-respondents nos.1 and 2, in whose favour the sisters relinquished their right in the property out of love and affection. 'S' died on 10.9.1983. Defendants-respondents no. 1 and 2 pleaded that the suit B without prayer for cancellation of partition deed was not maintainable and was also barred by limitation. The trial ... court dismissed the suit. However, it held that the two plaintiffs ## Text _Characters 0–39,890 of 91,692. This is a partial read: ask again with offset=39890 for what follows._ · [2008] 9 S.C.R. 297 RANGANAYAKAMMA AND ANOTHER A v. ~ K.S. PRAKASH (D) BY L.RS. AND OTHERS ' (Civil Appeal No. 3635 of 2008) MAY 16, 2008 8 [S.B. SINHA AND LOKESHWAR SINGH PANTA, JJ] -( HtNDU LAW: Joint family properties - Partition of through family settlement - Sisters relinquishing their rights in properties in favour c of their brothers - Consent decree based on family settlement - HELD: A partition by meets and bounds may not always be possible - A family settlement is entered into for a larger purpose of achieving peace and harmony in the family - It is not ' .... a case where settlement was contrary to any statutory proviD "" sion or was opposed to public policy - Court shall apply the statute to uphold a compromise unless it is otherwise vitiated in law - Contract Act, 1872 - s. 23. DEEDS AND DOCUMENTS." Deed of 'release' - Relinquishment of right in properly E by, sisters in favour of their brothers - HELD,· Release by an heir other than coparcener does not need any consideration - s. 25 of Contract Act must be read and construed having " regard to the fact situation obtaining in the case - Renunciation in Indian context may be or may not be for consideration F - Contract Act, 1872 - s.2 (d) and 25 - Transfer of Property Act, 1882 - ss. 122 and 123. CONTRACT AcT, 1872: ss. 17 and 19 - 'Fraud' - Voidabi/ity of agreement - Suit G -I by sisters against their brothers and other sisters alleging fraud in obtaining consent decree in an earlier partition suit- HELD: When a fraud is alleged, particulars thereof are required to be 297 H 298 SUPREME COURT REPORTS [2008] 9 S.C.R. A pleaded - In the instant suit, no particulars of alleged fraud or misrepresentation have been disclosed - Besides, documents on record show that partition consequent upon consent decree had been acted upon - Papers were signed either in office of advocate or before Sub-Registrar - Both the courts B below recorded a finding that the sisters had jointly taken a stand that they would not claim any share in properties - No case of fraud or misrepresentation has been made out - Code of Civil Procedure, 1908 - Or. 6, r.4. L1M1TATION Acr, 1963: c Schedule -Articles 59, 65 and 110 - Suit alleging fraud in obtaining deed of partition - Limitation - HELD: Applicability of Article 59 would depend upon the question as to whether deed of partition was required to be set aside or 'not - In the D instant case, it was required to be set aside - In view of Article 59, suit was barred by limitation. ~ The plaintiffs-appellants, two sisters, filed Suit No. 1760 of 1990 against their brothers defendants-respondents Nos.1 and 2 and other sisters for partition of the E suit properties on the ground that the same were self acquired properties of their father, 'KS'. It was also stated that the two brothers defendants-respondents no.1 and 2 acted fraudulently in getting the Power of Attorneys from them and obtaining a consent decree in earlier partition suit No. 2459 of 1982. The stand of the defendants-respon- ... F dents nos. 1 and 2 was that their father 'KS' alongwith other family members came to acquire the properties through a partition of joint family properties effected in the year 1957. 'KS' had two wives namely 'S' and 'V' and G in Partition Suit No. 2459 of 1982 the properties were further divided half and half between the two branches of 'KS' by a consent decree passed in terms of a compromise. Pursuant to the said compromise decree, a further deed of partition was executed on 5.8. 1983 (Ext. D-6) H amongst the children of 'KS' from 'S' in terms whereof 1/3 RANGANAYAKAMMAAND v. K.S. PRAKASH (D) 299 AND OTHERS . "" share in the property shown as Item No.3 was allotted to A their mother 'S' and rest of the properties were retained by the two brothers, defendants-respondents nos.1 and 2, in whose favour the sisters relinquished their right in the property out of love and affection. 'S' died on 10.9.1983. Defendants-respondents no. 1 and 2 pleaded that the suit B without prayer for cancellation of partition deed was not maintainable and was also barred by limitation. The trial ... court dismissed the suit. However, it held that the two plaintiffs and defendants 1 to 8 were entitled to 1/33 share each in Item No.2 of the suit properties. In the appeal the c plaintiffs filed an application under Or.6 r.17 read withs. 151 of the Code of Civil Procedure, 1908 seeking amendment to the plaint stating that some more properties belonging to their father were also available for partition and the same were required to be added as Items nos. 5 and 6 D ..., to the Schedule of the properties. The High Court dis- ...\· missed the appeal. In the instant appeal filed by the two plaintiffs it was contended for the appellants that the averments made in Suit No. 2459 of 1982 being fraught with the elements of E fraud and mis-representation, no reliance could have been placed thereupon nor the plaintiffs-appellants could be said to have voluntarily made admissions in the said pleading; that the deed of partition and the deed of relin- " quishment being void ab initio and hit by Section 25 of the F )( Indian Contract Act as for the said purpose passing of adequate consideration was necessary, love and affection being not the requisite consideration therefor and, as such, it was not necessary to pray setting aside of the deeds of partition and relinquishment; that the partition G of the properties being unfair and unequal, reopening of the partition was permissible, wherefor also it was not necessary to seek cancellation of the documents; that in the facts and circumstances of the case, Article 65 or Article 110 of the Schedule to the Limitation Act would be H 300 SUPREME COURT REPORTS [2008] 9 S.C.R. A attracted and not Article 59 thereof. )- Dismissing the appeal, the Court HELD: 1.1 The source of title in respect of properties in suit is not in question, as the same have all along B been treated as joint family properties by both the branches of 'KS' tllrough his two wives 'S' and 'V'. This is evident from the records of O.S. No. 2459 of 1982. The .; fact that in the said suit, the properties of 'KS' were de- ,.. scribed as the joint family coparcenary properties is not c in dispute. Even otherwise, in view of the well-settled principle of law that when a son gets a property from his father, as soon as sons are born to him, a joint family is constituted. It is not a case that sons from either side of the family were born before the Hindu Succession Act D 1956 came into force. [para 23 and 26] [323-A,F,G. 326-A,B] .. Mst. Rukhmabai v. Lala Laxminarayan and Others 1960 ~ (2) SCR 253 - relied on. 1.2 The earliest deed of partition dated 22"a July, 1957 E was a registered document. A perusal of the averments made in the plaint categorically goes to show that the partition referred to therein related to the partition effected in 1957. The admissions made by the appellants in their pleadings in Suit No. 1760 of 1990 themselves are suffiF cient to hold that the property was a joint family property and by reason of the said deed of settlement culminating ~ in passing of the compromise decree dated 20.12.1982, a valid consent decree was passed. [para 25] [325-D,F,G] 1.3 It may be true that although the properties were G described as coparcenary properties and both the branches were granted equal share, but it must be remembered that the decree was passed on the basis of the settlement arrived at. It was in the nature of a family settlement. Some 'give and take' was necessary for the purH pose of arriving at a settlement. A partition by meets and RANGANAYAKAMMAAND v. K.S. PRAKASH (D) 301 AND OTHERS bounds may not always be possible. A family settlement A is entered into for achieving a larger purpose, viz., achieving peace and harmony in the family. [para 24] [324-E,F] Hari Shankar Singhania and Others v. Gaur Hari Singhania and Others (2006) 4 sec 658; Govt. of A.P and Others v. M. Krishnaveni and Others (2006) 7 SCC 365 and B Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel (2006) 8 sec 726 - relied on. 1.4 When there arises a question as to whether the suit was to be regarded as having adjusted by way of c mutual agreement so that it can be disposed of on the said terms, in the event of a dispute, the consideration is different. However, where a settlement had been arrived at and a decree was passed on the premise that the said compromise was lawful, the same cannot be permitted to be re0 opened only on the question as to whether the properties were joint properties or self-acquired properties of the common ancestor. A consent decree was passed in Suit No. 2459 of 1982 pursuant to a settlement arrived at between the two branches. The properties were divided half and half through a deed of partitlon (Ext. D-6). Indisputably, the E said consent decree has been acted upon and ten sale deeds and some lease deeds have been executed and, therefore, question of reopening entire Suit No. 2459 of 1982 by setting aside the decree passed therein would not arise. [Para 23 and 39] [323-G, 324-A,B, 336-B,C,D] F • 2.1 In the instant case, the basis for the entire suit being commission of fraud in obtaining the consent decree in suit No. 2459of1982, it was obligatory on the part of the plaintiffs in Suit No. 1760of1990 to pray for setting G aside the said decree. The pleadings of the appellants in the suit in which they were parties are binding on them in the subsequent proceedings proprio vigore. Unless fraud was proved, they could not have got rid of the same. When a fraud is alleged, as provided in Order 6, r.4, Code H 302 SUPREME COURT REPORTS [2008] 9 S.C.R. A of Civil Procedure, 1908, the particulars thereof are required to be pleaded. In suit No. 1760 of 1990 no particulars of the alleged fraud or misrepresentation have been disclosed. The plea of fraud raised therein is general in nature. It is vague. It was alleged by the plaintiffs that sigB natures were obtained on several papers on one pretext or the other and they had signed in good faith believing the representations made by the respondents, which according to them appeared to be fraudulent representations. When such representations were made, what was c the nature of representations, who made the representations and what type of representations were made, have not been stated. [para 23, 35-36] [324-C,D, 331-D,E,F,G] D A. C. Ananthaswamy v. Boraiah (2004) 8 SCC 588 - relied on. 2.2 If a fraud or misrepresentation is to be attributed, the same must be attributed to the entire family representing both the branches and not to respondent No.1 alone. They must have thought that by reason of such averE ments a .settlement can be brought about. The averments made in the suit filed by one branch were accepted by the other branch without any demur whatsoever. [para 25] [325-G, 326-A] 2.3 Before the deed of partition was entered into, on F 151h July, 1983 a special power of attorney was executed by plaintiff no.2 in favour of respondent No.1. A clear recital was made therein that she had agreed to relinquish her interest and the power of attorney was being executed pursuant thereto. Power of attorney need not necessarG ily be preceded by a regular deed. Relinquishment may be unilateral. A sister relinquishing her right in favour of the brothers may do so in various ways. Expression to that effect may be made in several ways. A power of attorney need not disclose the purpose for which the relinH quishment is made or the consideration thereof. [para 28- RANGANAYAKAMMAAND v. K.S. PRAKASH (D) 303 AND OTHERS 29) [326-D,E,F,G,H] A 2.4 Section 19 of the Contract Act 1872 provides that any transaction which is an outcome of any undue misrepresentation, coercion or fraud shall be voidable. If, however, a document is prima facie valid, a presumption B arises in regard to its genuineness. [para 33) [330-A,B] Prem Singh v. Birbal and Others (2006) 5 SCC 353 - relied on. 2.5 In the plaint of Suit No. 1760 of 1990, execution c or validity of the documents including the registered power of attorneys and deeds of lease being Exhibit Nos. 9, 10, 11, 12, 13 and 14 executed between 1983 and 1985 are not in question. There are a large number of documents brought on record by the parties wherefrom a positive knowledge of execution of the partition deed (Ext. DD ·~ ~ 6) on the part of the sisters is possible to be attributed. These documents in categorical terms go to show that the partition effected in 1983 had been acted upon. Admittedly, the papers were signed either in the office of the advocate or before the Sub-Registrar. It was, therefore, E done at a public place. No signature was obtained on the blank paper. Plaintiff-appellant No. 1 in her deposition before the trial court admitted that each of the sisters had been given one rupee and their signatures were obtained ~ on the partition deed dated 5th August, 1983. She was fluF ~ ent in English and signed the documents in English. Both the courts below have come to the conclusion that the sisters jointly had taken a stand that they would not claim ~ny share in the property. One of the sisters, who wanted a share in the property, had been paid a sum of Rs. 40,000/ G - and she had executed a deed of relinquishment. The said fact is not denied. All other sisters were, thus, aware thereof. They knew what was meant by relinquishment. All deeds including the said deed of partition was executed with the knowledge that they had been signing the deed H 304 SUPREME COURT REPORTS [2008) 9 S.C.R. A of partition and no other document. The plaintiff-appel- >.,. lants never stated that any fraud or misrepresentation had been practiced in regard to the character of the documents. No case of fraud or mis-representation has been made out. It was, therefore, difficult to arrive at a concluB sion that the plaintiffs-appellants were not aware of the nature of the document or that any fraud had been practiced on them. These findings have a direct bearing on the question as to whether the deed of partition as also the power of attorneys were vitiated by reason of any c fraud or misrepresentation on the part of respondents Nos. 1 and 2. Jt is a well-settled principle of law that a void document is not required to be avoided whereas a voidable document must be. [para 29-32, 37 and 54) [327 -D-F, 329E,F 332-A-D, 343-F] D Prem Singh v. Birbal and Others (2006) 5 SCC 353 - )'-, relied on. ;. 3. It is not a case where the settlement was contrary to any statutory provision or was opposed to public policy E as envisaged under Section 23 of the Contract Act. The court shall apply the statute for upholding a compromise unless it is otherwise vitiated in law. It is not required to go into the question as to whether the contents of the said settlemen.t are correct or not. Only in a case where fraud on the party or fraud on the court has been alleged F or established, the court shall treat the same to be a nul- 'I lity. [para 40) [336-D,E,F] Chief Engineer, M.S.E.B. and Another v. Suresh Raghunath Bhokare (2005) 10 SCC 465; Ramesh B. Desai G and Others v. Bipin Vadi/al Mehta and Others (2006) 5 SCC 638; Sangramsinh P Gaekwad and Others v. Shantadevi P Gaekwad (Dead) Thr.ough LRs. and Others (2005) 11 SCC ~ 314 - relied on. Sundar Sahu Gountia and others v. Chamra Sahu H Gountia and others AIR 1954 Orissa 80 - held inapplicable. RANGANAYAKAMMAAND v. K.S. PRAKASH (D) 305 AND OTHERS ;_ Ganpatbhai Mahaijibhai Solanki v. State of Gujarat and A Ors. 2008 (3) SCALE 556 - referred to. 4.1 A deed of 'release' for a consideration is a transaction. When, a release is made for consideration, the particulars of consideration and other particulars are required B to be averred in the deed being essential elements thereof. Relinquishment of a property by a sister in favour of her ... brother for a consideration or absence of it, stands on a different footing. Section 25 of the Contract Act must be read and construed having regard to the fact situation obtaining in the cases. Renunciation in Indian context may c be for consideration or may not be for consideration. [para 43 and 45) [337-D,E,F, 338-E] Smt. Manali Singhal and another v. Ravi Singhal and others AIR 1999 Delhi 156; Kuppuswamy Chettiar v. A.S.P.A. D Arumugam Chettiar and Another (1967) 1 SCR 275; Chief ~ Controlling Revenue Authority, Referring Officer v. Rustorn Nusserwanji Patel AIR 1968 Madras 159; The Chief Controlling Revenue Authority, Board of Revenue, Madras v. Dr. K. Manjunatha Rai AIR 1977 Madras 10- referred to. E De' Souza's Conveyancing, page 1075 - referred to. 4.2 Section 25 of the Contract Act contains several exceptions, that is to say: (i) if it is in writing; (ii) if it is reg- " istered or (iii) if the same has been executed on account of )<; natural love and affection. The deed of partition is both in F writing and registered. The fact that the parties are near relatives is not in dispute. The love and affection of the sisters on the brothers has categorically been accepted by plaintiff No. 1 in her deposition. [para 47] [340-C,D,E] 4.3 Assuming that the consideration of rupee one G '"';' shown in the deed of partition is no consideration in the eye of law. However, a partition deed is per se not a void document. No such plea was raised. No issue has been framed. No evidence has been adduced. No ground has H 306 SUPREME COURT REPORTS [2008] 9 S. C.R. A been taken even in the memo of appeal before the High Court. Validity of the partition deed (Ex. D-6) by reference to the recitals of the release of shares by other daughters has not been questioned. The parties knew the nature of the document. Appellants and other sisters being highly B educated were supposed to know the contents thereof. Their husbands are well-off in the society. The transaction, therefore, was transparent. Furthermore, the mother was alive. She was also a party to the deed of partition. She must have played a pivotal role. She might be anxC ious to see that family properties are settled. Release by an heir other than a co-parcenar does not need any consideration. A release is valid even without consideration. [para 44 and 48] [338-B,C,D, 340-F,G, 341-A] 4.4 The High Court, therefore was correct in not alD lowing the appellants to raise the plea of consideration. As defined in s.2(d) of the Contract Act, 1872, consider- • ation, even in the Indian context would mean a reasonable equivalent or other valuable benefit passed on by the promiser to the promisee or by the transferor to the E transferee. Love and affection is also a consideration within the meaning of Sections 122 and 123 of the Transfer of Property Act. [para 51 and 53] [342-C,D, 343-D] Mt. Latif Jahan Begam v. Md. Nabi Khan AIR 1932 Allahabad 174; Gauri Shanker v. Mis. Hindustan Trust (Pvt.) F Ltd. and Others (1973) 2 SCC 127; Mis. John Tinson and Co. >< Pvt. Ltd. and others v. Mrs. Surjeet Ma/han and another AIR 1997 SC 1411 - referred to. Bhikhubhai Vithlabhai Patel & Ors. v State of Gujarat & G Anr 2008 (4) SCALE 278 - Distinguished. 5. Applicability of Article 65 or Article 110 of the Limitation Act, 1963 on the one hand, and Article 59 thereof, ~ on the other, would depend upon the factual situation involved in a case. A decree for setting aside a document H may be sought for in terms of Section 31 of the Specific I- RANGANAYAKAMMAAND v. K.S. PRAKASH (D) 307 AND OTHERS [S.B. SINHA, J.] Relief Act, 1963. Applicability of Article 59 would indisputA ably depend upon the question as to whether the deed of partition was required to be set aside or not. In the instant case, it was required to be set aside. It is not a case where the deed of partition by reason of purported wrong factual contention raised in the plaint leading to grant of B a consent decree was void ab initio. It was not. The effect -I of it would be that the same was required be set aside. In view of Article 59 of the Limitation Act, the suit was barred by limitation. [para 57] [344-G, 345-B,C,D,E] Prem Singh v. Birbal and Others (2006) 5 SCC 353; Ml c s. Bay Berry Apartments Pvt. Ltd. & Anr. v. Sh ob ha & Ors. 2006 (10) SCALE 596; and Utha Moidu Haji v. Kuningarath Kunhabdulla and Ors. 2006 (14) SCALE 156 - referred to. CIVILAPPELLATE JURISDICTION: Civil Appeal No. 3635 D of 008 From the final Judgment dated 21.9.2005 of the High Court of Karnataka at Bangalore in R.F.A. No. 605/1997 GV. Chandrasekhar, N.K. Verma andAnjana Chandrashekar E for the Appellants. S.S. Javali, T.N. Rao, S. Balaji, Madhusmita, V.H. Ron and Gurudatta Ankolekar for the Respondents. '"' )<. The Judgment of the Court was delivered by F S.B. SINHA, J. 1. Leave granted. 2. This appeal is directed against the judgment and order dated 21•1 September, 2005 passed by a Division Bench of the Karnataka High Court in R.F.A. No. 605of1997 dismissing an appeal preferred from the judgment and decree dated 27th G _,. May, 1997 passed by the XII Additional City Civil Judge, Bangalore in Original Suit No.1760 of 1990 partly decreeing the suit for partition and separate possession. We may, at the outset, notice the genealogical tree of the H 308 SUPREME COURT REPORTS [2008] 9 S.C.R. A family which is as under:- 8 c D E F G H Kasetty Rangappa Widow smt. Naramma Lakshamamma Naramma Smt. Children of the 1 •1 Wife 1. Smt. Jayamma, Deft. No.3 2. Smt. Kanthamma, Plff. No.1 3. Smt. Ranganayakamma, Plff No.2 4. Smt. Lakshmi Devi, Deft. No.4 5. Smt. Venajakshi 6. Sri K.S. Prakash, Deft. No.1 7. Sri K.S. Ramesh, Deft. No.2 8. Smt. Sarojamma, Deft. No.5 9. Smt. Seethqalakshmi, Deft. No.6 Smt. Venkatalakshamma 2"dwife Children of the 2nd Wife 1. Sri K.S. Mohan 2. Smt. Susheela (Late) 3. Smt. Bhagyalakshmi 4. Smt. Lakshmi Devi 5. Sri K.S. Sudarshan 6. Smt. Saraswathi 7. Smt. Rukmini 8. Sri Sreenivasa Pasad 9. Smt. Padmavathi RANGANAYAKAMMAAND v. K.S. PRAKASH (D) 309 AND OTHERS [S.B. SINHA, J.] 10. Smt. Bharathi, Deft. No.7 A 11. Smt. Kum. Shoba, Deft. No.8 3. We are concerned herein with the branch of K. Sreenivasulu. He had two wives, the first wife being Singaramma. Through his first wife Singaramma, he had eleven B children. Except Venajakshi, they are parties to the suit. Kanthamma and Ranganayakamma are the plaintiffs. Through his second wife, Shri K. Sreenivasulu had nine children. 4. Allegedly there was a partnership firm through which K. Sreenivasulu was doing business in silk sarees. Whether the c said partnership was a firm constituted under the Partnership Act, 1932 or a Hindu joint family Firm is in dispute. However, the said firm was said to have been dissolved. Thereafter K. Sreenivasulu had been carrying on the said business either by himself or as a 'Karta' of the joint family in silk sarees. Very D ' valuable properties were acquired by him. Three items of the said properties are involved in this appeal. Item No. 1 is said to be worth 1 crore. Item Nos. 2 is stated to be worth 3 crores, whereas Item No.4 is said to be worth 1 crore. Although valuations of the said properties are stated by the contesting responE dents i.e. respondents Nos. 1 & 2 in their written statement so as to put forth a contention that the valuation of the suit properties as disclosed by the plaintiff being Rs.10,000/-was not correctand on the aforementioned amounts the court fee would be )< payable, but there cannot be any doubt whatsoever that the propF erties are valuable. As through the first wife, Sreenivasulu did not have any male issue, he married Venkatalakshamma. Allegedly item Nos. 2 and 3 of the suit properties were purchased in the name of Sringaramma. The parties are at issue whether the said propG erties were purchased from the joint family funds or in the name """' of Srirangama for her own benefit. Indisputably, again item No.1 was purchased by Sreenivasulu in his own name. He died on 271h December, 1970. The family allegedly continued to remain joint. One of the daughters of Sreenivasulu being Vanajakshi H 310 SUPREME COURT REPORTS [2008] 9 S.C.R. A released her rights by getting a consideration of Rs.39,615.79. Respondents Nos. 1 and 2 herein, sons of K. Sreenivasulu through Singaramma were the junior members of the family. At the time of her death of Sreenivasulu, they were minors. B 5. Indisputably, a suit for partition being O.S. No. 2459 of 1982 was filed by the first respondent K.S. Prakash besides others. Whereas, according to the appellants, the said suit was filed by way of machination on the part of respondent No.1 herein ~ but admittedly all the parties were plaintiffs therein. c 6. The plaint in the said suit discloses that Sreenivasulu and his brothers partitioned their properties in the year 1957 who constituted a Joint Hindu Family. The said Joint Hindu Family had extensive immovable properties in the towns of Bangalore and Darmavara. Allegedly some immovable properties fallD ing in the share of K. Sreenivasulu are still joint. A coparcenary was constituted between him and his sons. Properties were purchased by him out of the nucleus of the immoveable proper- ~ ties, which fell to the share of Sreenivasulu in the said partition meaning thereby that the partition took place in 1957 and sevE eral other moveable and immovable properties were acquired in the name of Sreenivasulu and other members of the families. They were in joint possession. Ten items of immovable properties, however, allegedly were the subject matter of joint sale for the purpose of discharge of income tax and wealth tax liabiliF ties. They have been excluded from partition. It was furthermore alleged that some other properties had also been transferred '( and deeds of sale were executed by the Bangalore Development Authority in favour of plaintiff Nos. 1 and 2 therein. Paragraph 12 of the said plaint reads as under :- G "12. Thus, item No. 1 to 8 (one to eight) mentioned in the plaint are the properties now available and standing in the names of persons referred to above. This being a suit for r general partition even though some of the properties are in the name of individual members of the family and as H per records, but nevertheless shown in detail with a view RANGANAYAKAMMAAND v. K.S. PRAKASH (D) 311 AND OTHERS [S.B. SINHA, J.] • to avoid unnecessary controversies and to effect just, fair A and equitable partition among the members of the family." 7. Indisputably both the branches of Sreenivasulu entered into a compromise, i.e., amongst the children of the first and the second wives. Both the branches divided the properties into half and half. The said compromise was recorded. A final deB cree was passed on the basis thereof, directing :- "In terms of compromise, it is ordered and decreed that the plaintiffs are the owners of the properties shown in items t, 2(a) & 2(b) and 3 in the schedule hereto which c are allotted to their shares. It is further ordered and decreed declaring that the defendants are the owners of the properties shown in items 4 and 5 in the schedule hereto which are allotted to their share. It is further ordered and decreed that properties in items D 6 and 7 of the suit schedule properties shall be sold by plaintiffs and defendants and the tax arrears viz., Income Tax, Wealth Tax and Capital Gain Tax in respect of the said items of the Schedule property that is due and payable E by the Hindu undivided family be cleared and discharged out of the sale price of the same and further out of the refund amount as shown in item No.8 of the schedule properties. It is hereby recorded that since the value of items 4 and 5 allotted to the defendants is less than the F value of properties allotted to the plaintiffs, the plaintiffs have this day paid to the defendants a sum of Rs.80,000/ - (Rupees eighty thousand only) which together with Rs.30,000/- (Rupees thirty thousand only) paid earlier by the plaintiff in all amounts to Rs.1, 10,000/- (Rupees one G lakh ten thousand only). It is further ordered and decreed that in case the amounts realized by sale of items 6 and 7 and item 8 are insufficient to clear the Tax arre:Jrs, the plaintiffs shall bear 2/5 share, H 312 SUPREME COURT REPORTS [2008] 9 S.C.R. A the defendants shall bear 3/5 share of the tax liability and in case the amounts realized by the sale and refund claimed in respect of the said propertiE!S are in excess of the Tax liability, the remaining balance amounts shall be shared by plaintiffs and defendants in the proportion of 2/ B 5 and 3/5 share respectively. c It is further ordered and decreed that the plaintiffs and defendants are not liable to each other with regard ti income accruing from the properties allotted to them and also for mesne profits." 8. Allegedly Singaramma was not keeping well. She underwent kidney operation at Vellore. 9. The plaintiffs-appellants alleged that respondent Nos. 1 and 2 used to take signatures them as well as others repreD senting that the same were required for payment of tax and also for managing the properties. The said signatures used to be made as they then had immense faith in their brothers. A Power of Attorney was executed by the first appellant Ranganayakamma in favour of K.S. Prakash on 15th July, 1983, in terms whereof E he was authorized to enter into a partition on her behalf. A recital has also been made therein that Ranganayakamma, appellant No.2 herein, had agreed to relinquish her right as per the agreement. Another Power of Attorney was executed by the 4th defendant in favour of Singaramma F G H 10. A deed of partition was executed on 5th August, 1983 in terms whereof Singaramma was allotted 1/3rd share in item No.3 and rest of the properties were retained by the brothers. The sisters allegedly relinquished their share for a consideration of Re.1/- only; the relevant parts whereof read as under:- "1. The properties described in the Second Schedule hereunder are hereby allotted to the share of the parties of the First and Second Parts. 2. The property described in the Third Schedule hereunder is hereby allotted to the share of the party -. .. RANGANAYAKAMMAAND v. K.S. PRAKASH (D) 313 AND OTHERS [S.B. SINHA, J.] of the Eleventh part. A 3. The parties of the Third, Fourth, Fifth, Sixth, Seventh, Eight, Ninth and Tenth parts do hereby relinquish their right to claim a share in the properties described in the First Schedule in consideration of payment to B each of them of a sum of Re.1/- by parties of the ~ First, Second and Eleventh Parts the receipt of which they hereby acknowledge." 11. Singaramma died on 1 Oth September, 1983. So far as 1/3'd share of Singaramma is concerned, no partition had taken c place. However, a Special Power of Attorney was executed by the appellants on 20th December, 1983. In the said Pow~r of Attorney detailed recitals had been made in regard to the source of the properties, the partitions which had taken place and the ,.. share of the sisters devolved on them from Singaramma which -l was calculated at 1 /11th. D 12. Indisputably, again a deed of lease was executed by plaintiff-appelalnt No.2 herein in favour of M/s. Voltas Company Ltd. 13. According to the appellants, however, no deed of lease E was executed by appellant No.1, Ranganayakamma. A sum of Rs.4,050/- was paid to Kanthamma, appellant No.2, towards ' rent for the period 1.1.1986 to 31.07.1987. ., 14. According to the appellants when they came to learn F about the fraudulent act(s) on the part of respondent Nos. 1 & 2 in getting the Power of Attorneys executed by them, they cancelled the same. They, thereafter, filed a suit for partition and separate possession claiming 1/1Q1h share each. The said suit was filed on G ....,. 21st March, 1990 and was marked as O.S. No.1760of1990 . ' 15. A contention was raised therein that all properties acquired by Sreenivasulu were his self-acquired properties. The =~ plaintiffs-appellants further contended that their brothers used H • 1 l ' 314 SUPREME COURT REPORTS [2008] 9 S.C.R. A to take their signatures on some papers as they enjoyed immense confidence in them as would appear from paragraph 6 of the plaint, the relevant portion whereof reads as under:- "6 The said power of attorney was got executed by playing B a fraud on the 2nd plaintiff taking advantage of her innocence, ignorance and her sex and in the absence of her husband or any other reliable male member of the ~ family. The second plaintiff was not aware of the contents of the said power-of-attorney nor were they read out to her. It was got executed in the Office of the Advocate of the c defendants 1 and 2 and it was drafted and attested by the Advocates belonging to the said Firm of Advocates. Thereafter, in fraudulent abuse of the said power-of-attorney and on the basis of the fraudulent misrepresentations made to the first and second plaintiffs and defendants 3 to 8, an I ~- D alleged deed of partition was got executed on 5.8.1983, again taking fraudulent advantage of the said innocent -i and ignorance of the plaintiffs and defendants 2 to 8, resulting in an unjust, unfair, unequal and fraudulent partition of the schedule properties. The plaintiffs and defendants ·E 3 to 8 were never told by the defendants 1 and 2 that it was a partition deed which was got executed on 5.8.1983 and instead it was misrepresented as on earlier occasion that their signatures were necessary on the document for proper management of the properties and the estate of ":" F late K. Srinivasasalu." 16. Respondents, however, in their written statement denied and disputed the averments made in the plaint. They raised various contentions including the maintainability of the suit as also the question of limitation. It was categorically stated that '-- G the suit properties were acquired by Sreenivasulu out of the properties allotted to him in the family partition amongst his .,.... brothers dated 22nd June, 1957. It was furthermore contended .-- that the relinquishment of interests by the appellants and other ... sisters were out of love and affection. They further averred that ~ H upon the death of Singaramma the deeds of lease which were L .... I RANGANAYAKAMMAAND v. K.S. PRAKASH (D) 315 AND OTHERS [S.S. SINHA, J.] . .-4executed in respect of her share, vested in the plaintiffs-appelA !ants. It was categorically stated that the Power of Attorneys were executed by the appellants voluntarily. Parties in support of their respective cases adduced their own evidence. The learned trial judge framed as many as 12 issues which B are as under:- ..... .._ "1 . Whether the plaintiffs prove that the suit schedule properties are self acquired properties of the deceased Srinivas? 1 (a). Whether the defendants prove that the suit schedule c properties are the ancestral properties? 2. Does defendant No.1 prove plaintiffs executing valid powers of attorney on 15.7.1983; 20.12.1983 and ... 5.8.1985? D .... 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? E 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? 1' F 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? G ;..,.- 9. Whether the valuation made is insufficient? 10. Do the plaintiffs prove their right for partition and possession of 1/10 share to each? H 316 SUPREME COURT REPORTS [2008] 9 S.C.R. A 11 . To what shares the defendants are entitled? 12. To what reliefs the parties are entited?" 17. On issue No.1, the learned trial judge found that the same had not been proved by the plaintiffs-appellants stating B that they have failed to explain th9 admission made by them in the earlier plaint. In regard to issue Nos. 2 and 3 it was held that the properties were ancestral properties and not separate properties of Sreenivasulu. As regards execution of Power of Attorneys as also the Deeds of Release, the trial court opined that c they were voluntary in nature. In regard to issue No.7 pertaining to limitation. it was held that the suit was barred by limitation as the plaintiffs had not sought for cancellation of deed of partition. It was held that since after partition, the deeds of lease have come into existence in February, 1985, the suit filed in 1990 0 without praying for cancellation of the deed of partition was not maintainable. On the said findings, the suit was dismissed. 18. However, it was held that plaintiff Nos. 1 and 2 alongwith defendant Nos. 3 to 8 and defendants 1 and 2 were E entitled to the share of 1 /33 each in Item No. 2 of the suit schedule properties. 19. Appellants preferred an appeal thereagainst. Before the High Court an application was filed under Order VI Rule 17 F read with Section 151 of the Code of Civil Procedure praying