case laws;-

1) As the deed of partition and the deed of relinquishment were void ab

initio being hit by Section 25 of the Indian Contract Act, it was not
necessary to pray for any relief for setting aside the said deeds.

2.The partition deeds as also the deed of relinquishment were void

being hit by Section 25 of the Indian Contract Act as for the said purpose
passing of adequate consideration was necessary, love and affection
being not the requisite consideration therefor. 16 The partition of the
properties being unfair and unequal, reopening of the partition is
permissible, wherefor also it is not necessary to seek cancellation of the
documents.

3.In the event it be held that it is not necessary to seek declaration of

the deed of partition and deed of release being void, Article 65 or Article
110 of the Schedule appended to the Limitation Act would be attracted
and not Article 59 thereof

4.Consideration within the meaning of Section 25 of the Indian Contract

Act, love and/or affection being consideration must be disclosed in the
document, which having not been done, the impugned judgments could
not have been sustained
5.Prem Singh v. Birbal and Others [(2006) 5 SCC 353] wherein this
Court held: “16. When a document is valid, no question arises of its
cancellation. When a document is void ab initio, a decree for setting
aside the same would not be necessary as the same is non 33 est in the
eye of the law, as it would be a nullity.”

6.Section 16 of the Indian Contract Act 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 arises in

regard to its genuineness.

In Prem Singh (supra), it was stated:

“27. There is a presumption that a registered document is validly

executed. A registered document, therefore, prima facie would be valid
in law. The onus of proof, thus, would be on a person who leads
evidence to rebut the presumption. In the instant case, Respondent 1
has not been able to rebut the said presumption.”

It was opined:

“12. An extinction of right, as contemplated by the provisions of the

Limitation Act, prima facie would be attracted in all types of suits. The
Schedule appended to the Limitation Act, as prescribed by the articles,
provides that upon 34 lapse of the prescribed period, the institution of a
suit will be barred. Section 3 of the Limitation Act provides that
irrespective of the fact as to whether any defence is set out or is raised
by the defendant or not, in the event a suit is found to be barred by
limitation, every suit instituted, appeal preferred and every application
made after the prescribed period shall be dismissed.” In Mst. Rukhmabai
(supra), this Court held: “In unraveling a fraud committed jointly by the
members of a family, only such letters that passed inter se between
them can give the clue to the truth…”

Yet again in A.C. Ananthaswamy v. Boraiah [(2004) 8 SCC 588], this

Court categorically laid down that in establishing alleged 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. Level of proof required in such a case
was held to be extremely high

7.Another aspect of the matter cannot also be lost sight of.

Order VI, Rule 4 of the Code of Civil Procedure reads as under:

35 “4. Particulars to be given where necessary In all cases in which the

party pleading relies on any misrepresentation, fraud, breach of trust,
wilful default, or undue influence, and in all other cases in which
particulars may be necessary beyond such as are exemplified in the
forms aforesaid, particulars (with dates and items if necessary) shall be
stated in the pleading.”

8.We are, however, not oblivious of the decisions of this Court and
other High Courts that illegality of a contract need not be pleaded. But,
when a contract is said to be voidable by reason of any coercion,
misrepresentation or fraud, the particulars thereof are required to be
pleaded.
 In Chief Engineer, M.S.E.B. and Another v. Suresh Raghunath Bhokare
[(2005) 10 SCC 465], the law is stated in the following terms:

“…The Industrial Court after perusing the pleadings and the notice
issued to the respondent came to the conclusion that the alleged
misrepresentation which is now said to be a fraud was not specifically
pleaded or proved. In the show-cause notice, no basis was laid to show
what is the nature of fraud that was being attributed to the appellant. No
particulars of the alleged fraud were given and the said pleadings did not
even contain any allegation as to how the appellant was responsible for
sending the so-called fraudulent proposal or what role he had to play in
such proposal being sent...”

[See also Prem Singh (supra)] 39

In Ramesh B. Desai and Others v. Bipin Vadilal Mehta and Others

[(2006) 5 SCC 638], this Court emphasized the necessity of making
requisite plea of Order VI, Rule 4 stating:

“22. Undoubtedly, Order 6 Rule 4 CPC requires that complete particulars

of fraud shall be stated in the pleadings. The particulars of alleged fraud,
which are required to be stated in the plaint, will depend upon the facts
of each particular case and no abstract principle can be laid down in this
regard.”

In Sangramsinh P. Gaekwad and Others v. Shantadevi P. Gaekwad

(Dead) Through LRs. and Others [(2005) 11 SCC 314], this Court held:

“207. We may now consider the submissions of Mr Desai that Appellant

1 herein is guilty of commission of fraud. Application filed by Respondent
1 before the Gujarat High Court does not contain the requisite pleadings
in this behalf, the requirements wherefor can neither be denied nor
disputed.

208. It is not in dispute that having regard to Rule 6 of the Companies

(Court) Rules, the provisions of the Code of Civil Procedure will be
applicable in a proceeding under the Companies Act. In terms of Order 6
Rule 4 of the Code of Civil Procedure, the plaintiff is bound to give
particulars of the cases where he relies on misrepresentation, fraud,
breach of trust, etc.”

at and a decree has been passed on the premise that the said
compromise was lawful, we are of the opinion that the same cannot be
permitted to be reopened only on the question as to whether the
properties were joint properties or the self-acquired property of
Sreenivasulu. The said decision, therefore, in our opinion cannot be said
to have any application whatsoever.

9. It is also not a case where the settlement was contrary to any

statutory provision or was opposed to public policy as envisaged under
Section 23 of the Indian Contract Act. If the principle ex turpi causa non
oritur actio is to be applied in respect of the consent decree, the matter
might have been different. The court shall apply the statute for 43
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
settlement are correct or not. Only in a case where fraud on the party or
fraud on the court has been alleged or established, the court shall treat
the same to be a nullity. Fraud, as is well known, vitiates all solemn acts.
[See Ganpatbhai Mahijibhai Solanki v. State of Gujarat and Ors., 2008
(3) SCALE 556] but the same must be pleaded and proved.

10. We may now consider the submission of Mr. Chandrasekhar as to

what is meant by ‘release’. Reliance has been placed on De’Souza’s
Conveyancing, page 1075, wherein it has been stated:
“A deed of release does not create title. A release may be drafted in the
same form as a deed of transfer or simply as a deed poll or a deed to
which both parties may join stating the circumstances under which the
release is based. Either the monetary consideration or “the premises”,
i.e., facts in consideration of which the release is made shall be stated.”

11.Our attention has also been drawn to essentials of ‘release’ from the
said treatise, which are as under: 44 “(i) Full recitals of the origin of the
claim, which form the most important part; (ii) knowledge of the releaser
about the claim, intended to be released; (iii) words and expressions
sufficiently clear to convey the intention of the releaser to discharge the
right or the claim.

12. A deed of ‘release’ for a consideration is a transaction. When, thus,

a release is made for consideration, the particulars of consideration and
other particulars which 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. Section 25 of the Indian Contract Act must be read and
construed having regard to the fact situation obtaining in the cases.

In Smt. Manali Singhal and another v. Ravi Singhal and others [AIR
1999 Delhi 156], it was held:

“20. Learned counsel for the defendants has then argued that the
impugned settlement is without any consideration. Hence the same is hit
by S. 25 of the Contract Act. The contention of the learned counsel may
be an ingenious one but can be brushed aside without any difficulty.
Parties more often than not settle their disputes amongst themselves
without the assistance of 45 the Court in order to give quietus to their
disputes once and for all. The underlying idea while doing so is to bring
an era of peace and harmony into the family and to put an end to the
discord, disharmony, acrimony and bickering. Thus the consideration in
such type of settlements is love and affection, peace and harmony and
satisfaction to flow therefrom.

13. We would proceed on the basis that the consideration of rupee one
shown in the deed of partition is no consideration in the eye of law.
However, the question is as to whether a partition deed would be
violative of Section 25 of the Indian Contract Act for want of
consideration. It 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 been taken even in the memo of appeal before the High Court. The
validity of the partition deed (Ex. D-6) by reference to the recitals of the
release of shares by the daughters of Sreenivasulu has not been
questioned.

1.Hindu Succession Act, 1956. Ancestral property

partitioned and sold prior to 2005 amendment. Suit for
partition by daughter is maintainable under the 1994
Karnataka amendment. Plaint cannot be rejected.

2. Suit for declaration. If the plaintiff is not entitled for

whole of the property Court can pass a decree for partition
of his share without driving him to file another suit for
partition. Karnataka High Court.

3. Plaint in a suit for partition based on amended Section 6

of the Hindu Succession Act is liable to be rejected if there
is clear admission in the plaint about registered partition of
ancestral properties prior to the amendment. Karnataka
High Court.

4. Family settlement arrived as oral partition and later put

into writing for the purpose of information is not required
to be compulsorily registered, and stamp duty need not be
paid in respect of the same. Delhi High Court.

5. Acceptance of lesser share by father in ancestral

properties in family partition will not prevent his son
from claiming actual/correct share in the properties.
Karnataka High Court.

son has right

son’s share
unequal partition

6. Plaint in a suit for partition based on amended Section 6

of the Hindu Succession Act is liable to be rejected if there
is clear admission in the plaint about registered partition of
ancestral properties prior to the amendment. Karnataka
High Court.
7. Suit for partition. Limitation Act, Section 110. The
period of limitation does NOT start where there is no
specific demand for partition of share in the property and
no refusal or denial by defendant. Karnataka High Court.

8. Property purchased in the name of minor is his absolute

property unless there is evidence to show it was also joint
family property- (see the Note). Karnataka High Court.

9. Suit for partition by daughters based on the amended

Section 6 of the Hindu Succession Act. Properties sold
prior to 20 December 2004 are not available for partition.
Karnataka High Court.

10. In a suit for partition filed by woman against her

father/brother based on amended Section 6 Hindu
Succession Act, joint family properties given to her
husband as dowry can also be included. Karnataka High
Court.

11. Suit for partition by woman coparcener is not

maintainable if the ancestral property was sold before
coming into force of the amended Section 6 of the Hindu
Succession Act. Karnataka High Court.

12. Property allotted to a female in family partition

between herself and her father is her absolute property and
does not revert to heirs of her father under Section 15 (2)
of the Hindu Succession Act. Karnataka High Court.

13. Hindu Succession Act. Partition of properties inherited

under Section 8 will not change the nature of the properties
to coparcenary. Karnataka High Court.

14. Inclusion of properties already partitioned in a suit for

partition amounts to vexatious and scandalous litigation.
Court can order deleting the properties from the plaint
under Order 6 Rule 16 of CPC. Karnataka High Court.

15. Law of Limitation. Suit challenging the earlier

partition, filed several decades after the partition deed, is
liable to be dismissed by rejecting the plaint under Order 7
Rule 11. Supreme Court.
16.Ancestral property fallen to the share of father in a
family partition among his father and brothers cannot be
claimed by his son since the property so allocated to his
share becomes his exclusive property. Karnataka High
Court.

17. Suit for partition filed three years after the minor
coparcener attaining majority merely pleading that
alienation of ancestral properties by karta is not binding on
him is barred by law of limitation. Karnataka High Court.

18. Suit for partition based on amended Section 6 of the

Hindu Succession Act. Plaint can be rejected in respect of
a particular item of property which was already sold prior
to coming into force of the amendment. Karnataka High
Court.
19. Court can grant relief of partition and separate
possession of a portion even though prayer is for relief of
declaration of title to the entire property. Karnataka High
Court.

20. When there is a doubt as to whether an unregistered

document is partition deed or relinquishment deed, it can
be adjudicated only during the trial. Trial Court cannot
refuse to accept it in evidence by conducting a mini trial.
Karnataka High Court.

21. Suit for partition. Mere purchase of property in the

name of co-sharer does not prove self acquisition when
there is joint family nucleus and when independent income
is not proved. Karnataka High Court.

22. Suit for partition. When one co-sharer is in possession

of the properties, all other co-sharers are presumed to be in
possession on the basis of joint title. Karnataka High
Court.

23. When decree for declaration of title cannot be granted,

the court can grant a decree for partition of the properties.
Karnataka High Court.

24. In a suit for partition of joint family property, a decree

by consent amongst only some of the parties cannot be
passed. Supreme Court.

i) (1976) 1 SCC 214 in Rathnam Chettiar and others vs. M.Kuppuswami

Chettiar and others, for the proposition that partition effected between
member of Hindu Undivided Family cannot be reopened unless it is
shown to be obtained by fraud, coercion, misrepresentation or undue
influence, requiring strict proof of facts

2) AIR 1984 NOC 237 (KAR), in Bidari Basamma (deceased by LRs)

and others vs. Kanchikeri Bidari Sadyojathappa and others, for the
proposition that mere allegation of partition being a sham to avoid taxes
would not be sustainable as mere sham document would not help avoid
tax and also for the proposition that coparceners staying together and
propositus managing properties even after partition would be immaterial

3.(1981) 1 Kar.L.J.174, in Madegowda vs. Madegouda and another, for

the proposition that unless difference in valuation of properties shocked
the conscience of the Court, benefit of illustration (c) to Section 16 of
Indian Contract Act would not be available.

4.sc in ccse of Smt. Krishnabai Bhritar Gapatarao Deshmukh Vs.

Appasaheb Tulajaramarao Nimbalkar and others reported in (1979) 4
SCC 60 and in the case of Parvathamma and others vs. Venkatsivamma
and others reported in (2016) 15 SCC 463 held that mere existence of
unequal shares does not lead to inference of fraud or coercion. The
tenor of cross- 38 examination of defendant witnesses by the plaintiff
does not lead to an inference that the said ground of challenge has been
seriously pursued nor established. The fact that PW.2 or defendant no.2
did not step into witness box to stake their claim against unequal
partition would also justify the finding of the trial court upholding partition

part-2

1).The Hon'ble Apex Court in the case of Azeez Sait dead by Lrs.
And Others vs. Aman Bai and Others reported in (2003) 12 SCC 419,
The Hon'ble Apex Court in para 20 held as under:
20. Learned counsel appearing for the appellants contended that the
parties are governed by the provisions of Cutchi Menons Act. We are of
the view that the issues as to whether Hindu Law or Mohammedan Law
should be applied to the parties under suit is not really relevant and does
not alter the situation because the partition had taken place in the year
1914 as between the brothers. The factum of partition and the deed of
1914 having been accepted, and in the absence of any evidence to
destroy the validity of the partition deed the application of Hindu Law or
Muslim Law would not alter the findings in the case. When the partition
of 1914 has been accepted and acted upon by the brother for all these
years and had brought about an equitable settlement of the distribution
of the properties between them, the plaintiff/appellants cannot now
come round and say that the document is sham and nominal. A reading
of the plaint would show that the plaintiff had never asked for a share in
'Abba Manzil' during the life time of Mohd. Abba Sait, and the suit was
filed only after the death of Mohd. Abba Sait in 1967. It is also admittedly
by the plaintiff that suit item No. 1 was in possession of Mohd. Abba Sait
during his life time. Subsequently, defendants are in possession of the
same. The entire evidence on record shows that the parties have been
in possession and occupation of their respective shares and properties
allotted under the partition deed and have dealt with the same. The trial
court as well as the High Court have accepted the partition of 1914 for
the cogent and convincing reasons recorded thereunder. The appellants
have not shown any reason to interfere with the judgment of the High
Court.

2) 18. Admittedly, in the instant case, partition was effected in the year
1956, 1974 and 1997. Plaintiff Nos.1 and 2 and defendant have affixed
their signature on the said document and on the strength of the partition
deeds, the names of the respective parties are entered in the records as
well as in the Municipal records at Dharwad. The parties have acted
upon on the said partition deeds. It is the case of the plaintiffs that
partition effected between plaintiff Nos.1 and 2 and defendants is
unequal. The said partition effected on 3 occasions i.e., 1956, 1974 and
1997. The plaintiffs have not raised objections on the ground that
partition effected between the parties is unequal till 2007. The Hon'ble
Apex Court in the case of Smt.Krishnabai Bhritar Gapatarao
Deshmukh vs. Appasaheb Tulajaramarao Nimbalkar and Others
reported in (1979) 4 SCC 60 and in the case of Parvathamma and
Others vs. Venkatsivamma and Others reported in (2016) 15 SCC
436 held that mere existence of unequal shares does not lead to
inference of fraud or coercion.

3) Mr. Manjul Prasad, learned senior counsel appearing for the

appellants submits that the learned appellate court has wrongly reduced
1/4th share decree passed by the learned trial court to the 1/10th share
without considering the amendment of Hindu Succession Act, 2005 and
it is contrary to the recent judgment of the Hon’ble Supreme Court in the
case of “ Vineeta Sharma Vs. Rakesh Sharma and others “AIR 2020
(SC) 3717. He submits that this is substantial question of law and this
appeal may kindly be admitted.

4) It is submitted that the trial court as well as the Appellate Court

wrongly appreciated the legal position as regards to the legal effect of a
family settlement and its impact, while granting decree in favour of the
plaintiff. The learned counsel for the defendant placed Three Bench
decision of the Apex Court reported in [1976 KHC 809 : 1976 (3) SCC
119 : AIR 1976 SC 807 : 1976 (3) SCR 202] Kale v. Deputy Director of
Consolidation, wherein the Apex Court considered many earlier
decisions and finally held as under:

“In other words to put the binding effect and the essentials of a family
settlement in a concretised form, the matter may be reduced into the
form of the following propositions:

(1) The family settlement must be a bona fide one so as to resolve family
disputes and rival claims by a fair and equitable division or allotment of
properties between the various members of the family

(2) The said settlement must be voluntary and should not be induced by
fraud, coercion or undue influence;
(3) The family arrangements may be even oral in which case no
registration is necessary;

(4) It is well settled that registration would be necessary only if the terms
of the family arrangement are reduced into writing. Here also, a
distinction should be made between a document containing the terms
and recitals of a family arrangement made under the document and a
mere memorandum prepared after the family arrangement had already
been made either for the purpose of the record or for information of the
court for making necessary mutation. In such a case the memorandum
itself does not create or extinguish any rights in immovable properties
and therefore does not fall within the mischief of S.17(2) of the
Registration Act and is, therefore, not compulsorily registrable;

(5) The members who may be parties to the family arrangement must
have some antecedent title, claim or interest even a possible claim in the
property which is acknowledged by the parties to the settlement. Even if
one of the parties to the settlement has not title but under the
arrangement the other party relinquishes all its claims or titles in favour
of such a person and acknowledges him to be the sole owners, then the
antecedent title must be assumed and the family arrangement will be
upheld and the Courts will find no difficulty in giving assent to the same.”

5) The learned counsel for the defendant also placed decision of the
Apex Court reported in [2006 KHC 626 : 2006 (4) SCC 658 : AIR 2006
SC 2488 : JT 2006 (4) SC 251] Hari Shankar Singhania and others v.
Gaur Hari Singhania and others, wherein the Apex Court after
referring the decision in Kale’s case (supra) held in paragraph No.67 as
under:

“67. Conclusion: better late than never We have already referred to the
concept of family arrangement and settlement. The parties are members
of three different groups and are leading business people. We, therefore,
advise the parties instead of litigating in the court they may as well
concentrate on their business and, at the same time, settle the disputes
amicably which, in our opinion, is essential for maintaining peace and
harmony in the family. Even though the parties with a good intention
have entered into the deed of dissolution and to divide the properties in
equal measure in 1987, the attitude and conduct of the parties has
changed, unfortunately in a different direction. Therefore, it is the duty of
the court that such an arrangement and the terms thereof should be
given effect to in letter and spirit. The appellants and the respondents
are the members of the family descending from a common ancestor. At
least now, they must sink their disputes and differences, settle and
resolve their conflicting claims once and for all in order to buy peace of
mind and bring about complete harmony and goodwill in the family.”

6) Latest Three Bench Decision of the Apex Court reported in [2022

KHC 6090 : 2022 (2) KHC SN 8 : 2022 KHC OnLine 6090 : 2022 (2)
SCALE 405 : 2022 (1) KLT OnLine 1158 : 2022 (3) SCC 757 : 2022
SCC OnLine SC 95] Arumuga Velaiah K. v. P.R. Ramaswamy and
another, also has been placed to substantiate the point raised by the
learned counsel for the defendant. In paragraph No.22 of the said
decision, the Apex Court held as under:

“We shall now consider the citations relied upon by the respondents:

a) Kale and Others v. Deputy Director of consolidation, (1976) 3 SCC

119, is a case which had a checkered history in which a discussion on
the effect and value of family arrangements entered into between the
parties with a view to resolve disputes once and for all, came up for
consideration. It was observed that in the case of a family settlement,
usually there would be an agreement which is implied from a long course
of dealing, but such an agreement would be embodied or effectuated in
a deed to which the term "family arrangement" is applied. Such a family
arrangement is not applicable to dealings between strangers but is in the
context of maintaining the interest and peace of the members of the
family. In paragraph 10 of the said judgment, this Court has adumbrated
on the essentials of a family settlement which could be usefully extracted
as under:

"10. In other words to put the binding effect and the essentials of a
family settlement in a concretized form, the matter may be reduced into
the form of the following propositions:
 (1) The family settlement must be a bona fide one so as to resolve
family disputes and rival claims by a fair and equitable division or
allotment of properties between the various members of the family;

(2) The said settlement must be voluntary and should not be induced by
fraud, coercion or undue influence;

(3) The family arrangements may be even oral in which case no

registration is necessary,

(4) It is well settled that registration would be necessary only if the terms
of the family arrangement are reduced into writing. Here also, a
distinction should be made between a document containing the terms
and recitals of a family arrangement made under the document and a
mere memorandum prepared after the family arrangement had already
been made either for the purpose of the record or for information of the
Court for making necessary mutation. In such a case the memorandum
itself does not create or extinguish any rights in immovable properties
and therefore does not fall within the mischief of S.17(2) (sic) (S.17(1)

(b)?) of the Registration Act and is, therefore, not compulsorily

registrable;

(5) The members who may be parties to the family arrangement must
have some antecedent title, claim or interest even a possible claim in the
property which is acknowledged by the parties to the settlement. Even if
one of the parties to the settlement has no title but under the
arrangement the other party relinquishes all its claims or titles in favour
of such a person and acknowledges him to be the sole owner, then the
antecedent title must be assumed and the family arrangement will be
upheld, and the Courts will find no difficulty in giving assent to the same;

(6) Even if bona fide disputes, present or possible, which may not
involve legal claims are settled by a bona fide family arrangement which
is fair and equitable the family arrangement is final and binding on the
parties to the settlement.

" After reviewing several judgments of this Court, the Privy Council and
other High Courts, this Court in paragraph 20 indicated the following
propositions:

"We would, therefore return the reference with a statement of the

following general propositions:

(1) A family arrangement can be made orally.

(2) If made orally, there being no document, no question of registration

arises.

(3) If though it could have been made orally, it was in fact reduced to the
form of a "document" registration (when the value is Rs. 100 and
upwards) is necessary.

(4) Whether the terms have been "reduced to the form of a document" is
a question of fact in each case to be determined upon a consideration of
the nature and phraseology of the writing and the circumstances in
which and the purpose with which it was written.

(5) If the terms were not "reduced to the form of a document",

registration was not necessary (even though the value is Rs. 100 or
upwards); and, while the writing cannot be used as a piece of evidence
for what it may be worth, e.g. as corroborative of other evidence or as an
admission of the transaction or as showing or explaining conduct.

(6) If the terms were "reduced to the form of a document" and, though
the value was Rs. 100 or upwards, it was not registered, the absence of
registration makes the document inadmissible in evidence and is fatal to
proof of the arrangement embodied in the document.

" Ultimately, this Court held that the family arrangement in the nature of
a compromise which was considered in that case did not require
registration. It was further held that since the existence of the family
arrangement was admitted in that case, the same was binding on the
principle of estoppel. Also, even if the family arrangement could not be
registered it could be used for collateral purpose, i.e. to show the nature
and character of possession of the parties in pursuance of the family
settlement and also for the purpose of applying the rule of estoppel
which flowed from the conduct of the parties, who, having taken benefit
under the settlement for seven years, later tried to resile from the
settlement.”