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2022 DIGILAW 281 (MAD)

K. Latha v. K. Devi

2022-02-01

S.ANANTHI

body2022
JUDGMENT : (Prayer: Appeal Suit filed under Order 41 Rule 1 & 2 r/w Section 96 of Cr.P.C., to call for the records in O.S.No.75 of 2013 on the file of the learned VI Additional District Judge, Madurai and set aside the Judgment and Decree, dated 08.01.2019 in O.S.No.75 of 2013 passed by the learned VI Additional District Judge, Madurai, by allowing the appeal.) 1. This Appeal Suit has been filed against the Judgment and Decree, dated 08.01.2019 in O.S.No.75 of 2013 passed by the learned VI Additional District Judge, Madurai. 2. The appellant/plaintiff herein has filed a suit in O.S.No.75 of 2013 on the file of the learned VI Additional District Judge, Madurai, against the respondents/defendants herein, for partition of 1/7th share in the suit schedule properties. The said suit was dismissed on 08.01.2019 by the Court below. Against the said dismissal order, the appellant/plaintiff is before this Court. 3. Heard on either side. Perused the material documents placed on record. 4. The appellant herein/plaintiff has filed the suit in O.S.No.75 of 2013 for partition of 1/7th share in the suit schedule properties. The case of the appellant/plaintiff is that, originally, the suit properties were belonged to one Kamatchi. The 1st respondent herein/D-1 is wife of the said Kamatchi and the appellant herein/plaintiff and 2nd to 6th respondents/D-2 to D-6 are his children. The appellant herein/plaintiff has executed a release deed, dated 01.12.2008 without mentioning any property. Subsequently, some of the properties were added in the release deed and forged the signature of the appellant/plaintiff in the suit schedule of properties. When, the appellant/plaintiff came to know the aforesaid facts, she has issued a legal notice to the respondents herein/defendants and also filed the suit. 5. Originally, the Suit properties were belonged to Kamatchi and the relationship between the parties are admitted by the respondents herein/defendants. The only contention raised by the respondents herein/defendants is that the appellant/plaintiff is not entitled to any share in the suit schedule properties, since she has executed the release deed, dated 01.12.2008. 6. The suit in O.S.No.75 of 2013 was dismissed by the learned VI Additional District Judge, Madurai, after full trial. Aggrieved by the Judgment and Decree, dated 08.01.2019, the present appeal has been filed by the appellant herein/plaintiff. 7. The point for determination is as follows : (i) Whether the release deed is a forged one and it could be cancelled? The suit in O.S.No.75 of 2013 was dismissed by the learned VI Additional District Judge, Madurai, after full trial. Aggrieved by the Judgment and Decree, dated 08.01.2019, the present appeal has been filed by the appellant herein/plaintiff. 7. The point for determination is as follows : (i) Whether the release deed is a forged one and it could be cancelled? (ii) Whether the plaintiff has 1/7th right in the suit schedule property? 8. The execution of release deed, dated 01.12.2008 is admitted by the appellant/plaintiff. The case of the plaintiff is suit schedule properties and subsequently added and forged her signature in the papers and no consideration for the release deed. Further, she has cancelled the said release deed. 9. Since execution of sale deed is admitted, only the appellant/plaintiff has to prove the fact that subsequently schedule of properties were added and they forged her signature. The appellant/plaintiff has not taken any steps to get expert opinion on the forged signatures. On perusal of the documents, it is revealed the fact that all signatures contained in the release deed seems to be signed by one person. 10. Further, the release deed executed by all the sisters (3rd to 6th respondents/D3 to D6 & Plaintiff). But it was cancelled only by the plaintiff unilaterally. It is not valid. As per release deed, all the releasers have received consideration of Rs. 3,00,000/-. One of the sister who was examined as D.W.3 has admitted that she has also executed the release deed and received Rs. 3,00,000/-,as consideration. 11. Therefore, cancellation of release deed was not valid. 12. The relevant portions of the Judgment passed by this Court in Appeal Suit No.850 of 2010 in the case of G. Mohanvelu Vs. G. Kokila, are extracted hereunder : ........... 49. Our attention has also been drawn to essentials of release from the said treatise, which are as under: (i) Full recitals of the origin of the claim, which form the most important part; (ii) Words and expressions sufficiently clear to convey the intention of the releaser to discharge the right or the claim. 50. A deed of release for a consideration is a transaction. When, thus, a release is made for consideration, the particulars which (sic) are required to be averred in the deed being essential elements thereof. 50. A deed of release for a consideration is a transaction. When, thus, a release is made for consideration, the particulars which (sic) are required 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. 52(4). Renunciation in the Indian context may be for consideration or may not be for consideration. This has been so held by this Court in Kuppuswami Chettiar Vs. A.S.P.A. Arumugam Chettiar, AIR 1967 SC 1395 , in the following terms: (4). In the present case, the release was without any consideration. But property may be transferred without consideration. Such a transfer is a gift. Under Section 123 of the Transfer of Property Act, 1882, a gift may be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Consequently, a registered instrument releasing the right, title and interest of the releasor without consideration may operate as a transfer by way of a gift, if the document clearly shows an intention to effect the transfer and is signed by or on behalf of the releasor and attested by at least two witnesses. Exhibit B.1 stated that the releasor was the owner of the properties. It showed an intention to transfer his title and its operative words sufficiently conveyed the title. The instrument, on its true construction, took effect as a gift. The gift was effectively made by a registered instrument signed by the donor and attested by more than two witnesses.... 53. The question again came up for consideration before a Special Bench of the Madras High Court in Chief Controlling Revenue Authority, Board of Revenue v. Dr. K. Manjunatha Rai, AIR 1977 Madras 10, in the context of the payment of stamp duty wherein it was categorically held: 14. For a release, in law, may be effected either for consideration or for no consideration. In either case, if the transaction operates as a relinquishment or a renunciation of a claim by one person against another or against a specified property, it will be a release. It is, therefore, no a pure question of law”. Hence, the release deed is valid and the appellant/plaintiff has no right to cancel it. 13. In either case, if the transaction operates as a relinquishment or a renunciation of a claim by one person against another or against a specified property, it will be a release. It is, therefore, no a pure question of law”. Hence, the release deed is valid and the appellant/plaintiff has no right to cancel it. 13. The another contention of the appellant/plaintiff is that, eventhough three suit schedule properties mentioned in the release deed, the plaintiff relinquishes her right in entire joint family properties. The said released was marked as Ex.B.1 before the Court below. The released deed is extracted hereunder : The word “TAMIL” indicates that it is only the schedule properties in the release deed. The suit properties contained in item Nos.1 to 10 & 15 to 18. The Release deed contains item Nos.3, 16 & 17 only. 14. If, really the appellant/plaintiff released her rights in all the properties there is no necessary to shown the three properties as suit schedule. A document should be read as a whole. Therefore, the plaintiff has released her right in three properties. 15. Hence, the appellant/plaintiff is entitled for 1/7th share in the suit properties except item Nos. 3, 16 &17. 16. Finally, this Appeal suit is partly allowed. The appellant/plaintiff is entitled to 1/7th share in the suit schedule properties except item Nos.3, 16 & 17. The Preliminary decree, dated 08.01.2019 passed regarding 1/7th share in the suit schedule properties except item Nos.3, 16 & 17. Regarding item Nos.3, 16 & 17, the suit in O.S.No.75 of 2013 on the file of the learned VI Additional District Judge, Madurai, is dismissed. No Costs. Consequently, connected miscellaneous petition is closed.