Subbiah Naidu vs Govindaraja and another

Shanmukham, J.—An interesting question of law is involved in this second appeal. The defendant in O.S. 560 of 1974 is the appellant in this

second appeal. The respondents plaintiffs in that action brought the said suit for partition, for recovery of future mesne profits and for rendition of

accounts. The respondents contended that the suit properties are the ancestral properties in the bands of their father and his brother, the appellant,

that the release deed Ex. A1, dated 30th April, 1957 executed by their father in favour of the appellant whereby their father purported to surrender

not only his interest but also the interest of the plaintiffs on the suit property will not bind their interests and therefore, they are entitled to a half

share in the property. The defence is, the original to Ex. A1 is really a sale, that such a sale was for discharging antecedent debts and that therefore

Ex.A1 is binding on the respondents. It is unnecessary to refer to the other defences taken by the appellant, viz., that the properties are not the

joint-family properties in the hands of the plaintiffs'' father and the appellant, because there is a concurrent finding of fact by both the courts below

holding otherwise and because the learned counsel for the appellant had not made any submission in this connection. It may also be stated that the

property obtained by the respondent''s father and the appellant under Ex.A3 dated 1st July, 1942 was held to be the separate property of both the

respondents'' father and the appellant and therefore, the suit was dismissed so far as that particular item is concerned and that Ex.A3 related to

southern half out of 3.80 cents in S. No. 178/2. The respondents did not challenge that part of the decree rendered by the trial court and therefore

the decree dismissing the suit in respect of the said southern half in S. No. 178/2 has become final. This second appeal is therefore confined to

northern half of S. No. 178/2 measuring 1.90 acres and the other item comprised in S. No. 178/3 measuring 1.44 cents together with a motor

pumpset of 7� H.P.

The trial court held that Ex.A1 is a sale and therefore dismissed the suit without costs.

On appeal A.S. No. 95 of 1977, the learned Subordinate Judge, Coimbatore, held that these two items which are subject-matter of this appeal

are joint-family properties, that there was no necessity for the respondents'' father to execute Ex.A1, release deed and that no benefit was derived

by their father under the said document. According to the learned Subordinate Judge, the finding given by the trial court that Ex.A1 amounted to a

sale deed cannot be considered as correct. The learned Subordinate Judge also held that Ex.A1 release deed will enure to the benefit of all the

members of the coparcenary in the instant case not only the appellant but also the respondents relying upon a Full Bench decision of this Court in

Chella Subbanna and Another Vs. Chella Balasubbareddi and Others, . In the above view, he allowed the appeal and granted a preliminary decree

for partition in respect of the respondents'' half share. Hence, this second appeal.

It is a well settled principle of law that a member of a joint Hindu family governed by the Mitakshara law cannot give his interest in the family

estate to one of several coparceners if they remain joint in estate and in such circumstances, he can relinquish his interest but the relinquishment

operates for the benefit of all the other members--See Chella Subbanna and Another Vs. Chella Balasubbareddi and Others, and Viswanatha

Chettiar and others v. Deivanayaga Chettiar 1976 T.N.L.J. 53. It is also well settled that a registered instrument styled a release deed releasing the

right, title and interest of the executant in any property in favour of the release for valuable consideration may effect a transfer and though the word

''surrender'' is used and though the document is styled a release deed, it operates as an assignment--See Thayyil Mammo and Another Vs.

Kottiath Ramunni and Others, . To the same effect is the decision in Kuppuswamy Chettiar Vs. A.S.P.A. Arumugam Chettiar and Another, . In

Pandit Chunchun Jha Vs. Sheikh Ebadat Ali and Another, the Supreme Court has held--

There is no hard and fast rule for determining whether a given transaction is a mortgage by conditional sale or sale outright with a condition for

purchase.

Each case must be decided on its own facts. The intention of the parties is the determining factor but the intention must be gathered from the

document itself which has to be construed to find out the legal effect of the words used by the parties. If the word are express and clear, effect

must be given to them, and any extraneous enquiry into what was thought or intended is ruled out. If, however, there is ambiguity in the language

employed then it is permissible to look to the surrounding circumstances to determine what was intended.

In my considered opinion, the field covered by the latter principle of law is wider than what is occupied by the former principle of law referred to

above, in other words, the later principle governs a case where a document wearing the garb of release is executed by one coparcener to another

member of the coparcenery which included other members. No doubt, Mr. Sivamani, learned counsel for the respondents contended that a release

deed in respect of joint family property stands on a different footing and that only in a case where the release is by one to another not owning any

interest in the property which is the subject matter of the release, the principle relating to construction of documents will be attracted. I am unable

to agree. For, the decision of the Supreme Court in Kuppuswamy Chettiar Vs. A.S.P.A. Arumugam Chettiar and Another, had not laid down the

said principle of law propounded by the learned counsel. In this context, it is essential to quote the penultimate paragraph in that judgment:--

Counsel next submitted that a release can only enlarge an existing title of the release , and there can be no release in favour of a release who has no

interest in the property. He relied on the following observation in Hutchi Gowder v. Bheema Gowder 1959-2-M.L.J. 324. ''A release deed can

only feed title but cannot transfer title'', and another observation in S.P. Chinnathambiar v. R.P. Chinnathambiar 1953-2-M.L.J. 387 = 66 L.W.

''Renunciation must be in favour of a person, who had already title to the estate, the effect of which is only to enlarge the right. Renunciation

does not vest in a person a title where it did not exist''. Now, it cannot be disputed that a release can be usefully employed as a form of

conveyance by a person having some right or interest to another having a limited estate, e.g., by a remainder man to a tenant for life, and the

release then operates as an enlargement of the United estate. But, in this case, we are not concerned with a release in favour of the holder of a

limited estate. Here, the deed was in favour of a person having an interest in the property, and it could not take effect as an enlargement of an

existing estate. It was intended to be and was a transfer of ownership. A deed called a deed of release can, by using words of sufficient amplitude,

transfer title to one having no title before the transfer. The cases relied upon by counsel are not authorities for the proposition that the operative

words of a release deed must be ignored. In S.P. Chinnathambiar''s cases 1953-2-M.L.J. 387 = 66 L.W. 671, the document could not operate as

a transfer, because a transfer was hit by S. 34 of the Court of Words Act, and viewed as a renunciation of a claim, it could not vest title in the

release . In Hutchi Gowder v. Bheema Gowder 1959-2-M.L.J. 324, the question was whether covenant of further assurance should be enforced

by directing the defendant to execute a release deed or a deed of conveyance, and the Court held that the defendant should execute a deed of

conveyance. These decisions do not lay down that a deed styled a deed of release cannot, in law, transfer title to one who before the transfer had

no interest in the property.

(Underlined by me).

I may reiterate that the principle relating to construction of a document as laid down in Thayyil Mamma v. Kottiath Ramunni 1966-1-S.C.J. 138,

will apply to all deeds of release--be it they were executed by one who has interest in a property in favour of another, who had no interest at all or

by one having some interest in favour of another prepped are who also owns some interest in the said property. It may not be wise to exclude the

application of general rule of examination of documents to joint family properties, particularly when in Hindu Law, a member of the coparcenary

governed by Mitakshara law can sell his individual interest to another member of the coparcenary.

The immediate question is whether Ex.A1 is a release deed as indicated by the nomenclature of the document or a sale. Ex.A1 is in Tamil

executed by the respondents'' father to the appellant. Under the said document, the respondents'' father had relinquished all his interest in the

property set out thereunder (suit properties) to and in favour of the appellant for a sum of Rs. 1,000. It is also covenanted therein that since the

date of the document, the release (appellant) shall possess and enjoy the property absolutely and for ever and also that henceforth, the releasor

(respondents'' father) had no interest whatever in the said properties. It is further stipulated that the appellant is entitled to have the patta transferred

in his name. Thus, it is seen that the transaction is supported by consideration and the releasor had transferred all his right, title and interest in the

said property to and in favour of the appellant. In Thayyil Mamma v. Kottiath Ramunni 1966-1-S.C.J. 138, the facts are almost identical and the

facts as found by their Lordships are--

Since I have this day received to satisfaction in ready cash, the sum of Rs. 935, made up of the above balance purapped of Rs. 135 and the

kanom amount of Rs. 800, and which you have paid to me, the entire rights, liabilities and claims belonging to me under the aforesaid kanom deed

No. 266 and a marupat deed No. 267 have been surrendered to you.

Therefore, I find no difficulty in construing Ex. A1, though styled a release deed, is really a sale deed.

It may not be out of place to refer to the decision of Mr. Justice Somayya in Somu Achari Vs. Singara Achari and Another, where the learned

Judge has held--

In considering whether a document is a sale deed or a release what the court has to do is to see all the terms of the document and consider

whether there is not an intention that what was till then the right of the executant is being conveyed to the person in whose favour the document is

executed. The word release is not conclusive.

According to the appellant, besides the sum of Rs. 1,000, referred to in Ex.A1, the appellant had discharged other debts binding on the

property and therefore, even those debts had to be taken into consideration in assessing whether Ex.A1 was executed by the respondents father

for discharging antecedent debts. Per contra, Mr. Sivamani, learned counsel for the respondents, contended that the appellant is not entitled to rely

upon the other debts discharged by the appellant. But, I find, the appellant''s contention finds support from the decision of the Calcutta High Court

in Birendra Nath Banerjee and Others Vs. Shibaram Aditya and Others, A Division Bench of the Calcutta High Court has held that--

The absence of recital about legal necessity in the document of alienation does not vitiate the alienation, because legal necessity may be proved by

other evidence. The fact that the bulk of the money borrowed was utilised for discharging the previous debt justifies the conclusion that the loan

was for legal necessity.

Even the reputed author Mulla in his book at page 241 has stated--

The absence of a recital of necessity in a deed of sale does not vitiate the sale. The necessity may be proved by other evidence.

The connected question is whether the appellant has succeeded in establishing whether there were antecedent debts and whether Ex. A1 came

to be executed by the respondents'' father to the appellant for the discharge of such debts. In the foremost, there is the admission of P.W.1 himself.

In cross-examination, he had stated that by mortgaging the first item for Rs. 3,000, the second item was acquired, that there was already in

existence a mortgage for Rs. 1,500, for the first item and that later, both the items were mortgaged for Rs. 2,000, for deepening the well. No

doubt, he would not admit that these debts were discharged by the appellant. But there are documentary evidence, viz., Ex.B4 to B8 to establish

that the appellant had discharged all these debts as also the payments due to the State. Ex.B4 mortgage deed dt. 27th April, 1949 was discharged

on 16th April, 1964, vide endorsement made thereon ; so too, Ex.B5 mortgage dated 2nd May, 1949 was discharged--see the various

endorsements of payments recorded therein. Ex.B6 mortgage dated 15th June, 1951, was again discharged by several payments, last of which is

on 17th May, 1970 vide endorsements made on the said document, Ex.B7 is a receipt issued by the village munsif for Rs. 555.08, towards

discharge of the loan for installing pumpset. Ex.B5 is a receipt for Rs. 403, issued by the village munsif for discharging the same debt. Thus, in all,

the total payments made by the appellant is Rs. 10,213, including Rs. 1,000, referred to in Ex.A1. As the respondents'' father was entitled to a half

share which included the interest of the appellant as well, it cannot be disputed that the said half share is bound upto a sum of Rs. 5,106 50. As

already stated, the appellant had thoroughly established that he discharged the debt owing by the respondents'' father to the extent of Rs.

4,106.50. A reference to these documents will show that these are all debts incurred long before Ex.A1 dated 30th April, 1957. Then, I have no

hesitation to hold that these are all antecedent debts. Nevertheless, Mr. Sivamani, learned Counsel for the respondents contends that so far as the

mortgage for Rs. 3,000 subsisting on the first item it could not be treated as an antecedent debt, because that was an unpaid purchase price. In this

context, learned counsel relied upon the decisions reported in Chot Ram v. Ram Singh, 44 All. 368 and AIR 1945 1 (Privy Council) . So far as

the Privy Council case is concerned, such a ratio was not laid down. As regards the other decision, a close examination of the same will reveal that

the decision has to be understood on the facts found in that case. The facts in that case are as follows--

A member of Mitakshara joint family in 1904, gave a usufructuary mortgage over part of the ancestral property to secure an advance then

obtained by him. In 1907, he sold the equity of redemption to the mortgagee, the mortgage being discharged out of the price and a balance paid to

the mortgagor. There was no legal necessity for either transaction, but it was not proved that the money was applied by the alienor to immoral

purposes. After his death, but during the life of his sons, his grandsons sued to recover the property.

On those facts, it was held that--

There was no such antecedent debt as made either the mortgage or the sale binding upon the grandsons, and that they were not as a condition to

recovering the property under a pious duty to repay to vendees the money received by their grandfather.

There it was found that the debts were not for family necessity. What the learned Judge rejected was the contention that although by the rules of

the Mitakshara law, a mortgage is at its date an invalid deed in so far as it purported to encumber the joint family property, yet when it purports to

become the consideration for a sale, it then becomes a just and a legal consideration on the principle of antecedent debt. In this case, as already

pointed out by me, the debts are admitted. It is, therefore, I hold that the above decision of the the Allahabad High Court will not be of any

assistance to the respondents.

It is also contended by the learned counsel for the respondents that there was no plea at all by the appellant that Ex.A1 assuming it to be a sale,

is for discharging antecedent debts. But the learned counsel is not quite correct, because I find, in paragraph 10 of the written statement, there is a

detailed reference to the debts and the factum of discharge. Further, as referred to earlier, P.W.1 has admitted these debts. The learned counsel

further contended that no specific issue was raised either in the trial court or in the appellate Court and therefore, the appellant is not entitled to

urge this ground. Such a contention in my view is hardly tenable, because it is well settled that even though no issue as such was framed, if the

parties had adduced evidence and if the court had considered such evidence and came to a particular conclusion, the irregularity cannot be availed

of by any of the parties. What is material is whether the parties had ample opportunity to meet the case of another and to adduce evidence in

support of their respective contentions and whether the Court had occasion to examine such a point in relation to the evidence adduced before it.

Here, there is evidence and there is discussion by both the courts below. Therefore, this contention is rejected.

It is also pointed out by the learned counsel for the respondents that the properties are very valuable and there was no need for the

respondents to have released the interest of the coparcenary comprised of himself and the respondents in all the items. According to the learned

counsel, an alienation of one item was enough to discharge such debts and the court should take into consideration that as far as possible the

minor''s share should be protected. But, unfortunately, for the respondents, no foundation had been laid for accepting such a contention. When the

appellant had pleaded in his written statement regarding various debts incurred by the respondent''s father jointly with the appellant and also

referred to the discharge made by him, the respondents did not file any reply statement contending that the properties are worth much more than

Rs. 5000 and therefore, there was no necessity for their father to have sold all the items. Even factually, such a contention cannot be supported.

Under Ex.B1 dated 10th April, 1929, and under Ex.B2 dated 3rd June, 1929, 1.90 acres were acquired for a total sun of Rs. 600, while under

Ex.B3 dated 9th May, 1949, an extent of 1.44 acres was purchased for Rs. 3,000. Ex.A1 is of the year 1957. There is no evidence as between

1949 and 1957, there was no steep rise in price of the land. As between 1929 and 1957, no doubt, there would have been appreciation of price

of the properties but considering the fact that they were acquired for Rs. 600, the total value of half share belonging to the respondents'' father

would not have exceeded Rs. 5,000. Thus, in neither view of the matter, are the respondents entitled to contend that there was no need for their

father to have conveyed both the items to the appellant.

Yet another contention was urged by the learned counsel for the respondents and that is, the appellant did not discharge the debts immediately

after Ex.A1, but it took several years for him to discharge the debt. I do not find any substance in the argument. The crucial test is whether the sale

was for discharging antecedent debts but not whether the debts are discharged instantaneously. To put it differently, if the debts are not discharged,

it is the property that would be held liable. The learned counsel for the respondents had not cited any decision in support of his argument. Even,

this argument does not make any impression in me. In the result, the second appeal succeeds. The judgment and decree of the learned Subordinate

Judge in A.S. 95 of 1977 are set aside and the suit will stand dismissed. However, I direct both the parties to bear their costs throughout.