Narayana Pai, J.
1. The appellant was the 2nd defendant in O.S. No. 30 of 1956 on the file of the District Court, Bangalore, filed by respondents 1 to 4 as the plaintiffs. The appellant 2nd defendant is the eldest son of Chikka Munisamisa who was the 1st defendant in the suit. The four plaintiffs, the appellant and the 3rd defendant (5th respondent in the appeal) are the six sons of the said Chikka Muniswamisa. Chikkamunisamisa died after filing his written statement but before trial. His wife and two daughters were later impleaded as supplemental defendants 4, 5 and 6. They are respondents 6, 7 and 8 in the appeal.
2. The father Chikka Muniswamisa appears to have been divided from his brothers many years ago. He carried on business along with his sons and amassed considerable wealth. Besides large amount of cash, he also acquired several immovable properties in Bangalore.
3. The property which is the subject-matter of this suit called the timber yard in the evidence is a vacant land 285' x 150' situated in Aralepet or Cottonpet, one of the busiest commercial localities in the city of Bangalore. It was purchased under two sale deeds, originals of Exhibits D-2 and D-3 produced in the case. The first of them is dated 2-11-1946 and the consideration for the purchase was Rs. 36,000/-. The second is dated 13-3-1947 and the consideration was Rs. 83,000/-. Both these purchases were made in the names of the six sons. Exhibit D-2 describes them as Sajjansa & brothers (Sajjansa is the 2nd defendant-appellant, the eldest son of Chikka Munisamisa). IN the second, the names ofall the six sons are mentioned. There is, however, no dispute that the property though purchased in the names of all the six sons, was treated as joint family property of the father and the sons. On the land no substantial structure has yet been put up. There are some temporary structures and sheds occupied by various persons. The rents collected from the various occupants come to about Rs. 450/- per month.
4. On 6-10-1952 Chikka Munisamisa effected a partition of his properties between himself and his six sons. Exhibit D-1 is the partition deed. The timber yard was allotted to the six sons in six equal shares. Paragraph 2 of the deed dealing with this item of property reads as follows:--
'2. I have equally distributed the entire vacant site (Timber yard) bearing present Nos. 143 and 144, measuring east to west 285' and north to south 150' situate at Aralepet, Bangalore City, amongst my six children, that is to say land measuring the remaining 135' and 30' to 40' east to west excluding the path measuring a breadth north to south 15' out of 150' north to south and a length of 285' east to west, in front of the said vacant site. On this site the six persons should build 12 shops. I have equally distributed the remaining area measuring east to west 245' and north to, south 150' (including the area loft out for path) excluding the said buildings, amongst my six children. At present there are some old buildings, and sheds etc., on the aforesaid vacant site. From this there is an income of about Rs. 459-12-0' by means of rent. Any one of my sons should collect this rent amount and the six persons should take equal shares in this amount. The value of the aforesaid vacant site is Rs. 60,000/- (Rupees Sixty thousand).' Another paragraph of the deed which is of relevance to the controversies raised in the suit is paragraph 10 which reads as follows: '10. As I have no income whatever from the houses and sites which are retained by me, each one of my sons should pay a sum of Rupees one hundred (Rs. 100) per month till my death, for the personal expenditure of my family, and for the expenses towards my charity deeds, pilgrimages, gifts and for the perquisites of my daughters, when they come to my house.'
On the same day, namely, 6-10-1952, the six sons executed in favour of the father an agreement marked Exhibit P-2 with reference to the 10th paragraph of the partition deed. As the text indicates, it was executed to avoid inconvenience to the father by any inadvertent omission on the part of any of the sons to make the monthly payment required under 10th paragraph of the partition deed. The operative portion reads:
'You, yourself can recover the rent of the said Timber yard. We have to pay Rupees six hundred per month to you and excluding the rent amount of the said timber yard, we six persons shall pay the balance amount every month according to our respective shares. In future if we construct buildings etc. on the said Timber yard and if you do not get the aforesaid rent, then, we shall pay you rupees one hundred each as shown in the said partition deed.'
5. Although the parties entered into a partition, they continued to live together. Their joint family trade was converted into a partnership trade.
6. On 8-5-1953 and the 14th of the samemonth, two documents marked respectivelyExhibits P-3 and P-1 were executed. Theseare the most important documents in thecase and the entire controversy in the suitcentres round them.
7. Exhibit P-3 is in English and reads as follows:--
'This agreement is entered into this 6th day of May in the year One thousand nine hundred and fifty three between Sri Chickmuniswamisa, on the first part, and Messrs. S. Sajjansa, S.M. Dhondusa, S. Vithoba, S. Muniswamisa, S. Shivasa, and S. Swamy, on the other part.
Whereas as per terms of the partition which has taken place amongst the aforementioned persons as on 80-6-1952, all the movable and immovable assets of the family of which the above persons were members were divided and whereas as per Clause (10) of the partition deed executed amongst them, each or the parties except S. Chickmuniswamisa is liable to pay a sum of Rs. 100/-(Rupees one hundred only), per month to said S. Chickmuniswamisa.
(Whereas one of the items of the immovable properties divided amongst the above per; sons at the time of partition was sites bearing Nos. 143 and 144 measuring 285' X 150' situated at Cottonpet, Main Road, Bangalore, valued at Rs. 60,000 each getting a share of Rs. 10,000 in the said property. Whereas a physical division of the said properties was found to be inconvenient and it was a division of rights and interests agreed and divided in definite portion). Exhibit P-3 (a). Now whereas some differences have arisen as to the management and developments if any of the said assets, and the parties of the second part have agreed that in consideration of the first party foregoing his claim of Rs. 100 per month payable by each of the persons mentioned above of the second part, respectively, they, would release and relinquish their rights and interests of their share in the above property in favour of the first party. The first party has agreed to forego the above claim of Rs. 100 per month receivable from each of the second party.
Pursuant to mutual agreement as aforementioned the first party relinquishes and releases his claim of Rs. 100 per month receivable from each of the second party and each of the second party do hereby release and relinquish their rights and interests in the above immovable property and to more effectually to clothe the first party with absolute rights and titles of the said property necessary registration thereof with the Sub-Registrar shall be done in due course of time.
'In witnesses whereof each of the parties have agreed to the above. --Signatures:
1. B. Chikkamuniswamisa
2. S. Rajanusah
3. S. M. Dhoudusa
4. S. Vithoba
5. S. Muniswami
6. S. Sivasa
7. S. Swamy
1. N. Sreenivasa Rao (in Kannada)
2. G. Narasimha Murthy Rao' Exhibit P-1 is in Kannada and has been translated as follows:
'Deed of relinquishment of right in respect of the property dated 14th May, 1953 executed in favour of S. Chikka Muniswamisa s/o Subgayi Dhekvappa, residing at Shantha Veeraiayana Street, attached to Chikpet, Bangalore City, jointly by six persons, namely 1. Sajjinusa, 2. S.M. Dhondusa, 3. S. Vittoba 4. S. Munisami, 5. S. Shivasa and 6. S. Swamy all are the sons of the aforesaid
5. Chikka Munnisamisa, residing as Shanthaveeraiahna Street, Chickpet, Bangalore City is as follows: As shown in the registered partition deed dated 6th October, 1952, which is registered as No. 2394, in Book No. I, Volume 1225, at pages 111 to 135 in the office of the Sub-Registrar, the 2nd item immovable property of the 2nd page, i.e., the entire immovable property mentioned in the schedule herein below i.e., the (timber yard), bearing Nos. 143 and 144, situate at Aralepet has been equally divided amongst us the aforesaid six members, each getting 1/6th share. As there arc small structures and some sheds etc., at some places in the said property and as our respective shares, in the said property, have not been clearly mentioned in the said partition deed and at present as it is inconvenient for us to derive consideration after constructing buildings on the respective shares in the said property, we six persons, thought over this matter and we have transferred the entire immovable property in your favour under this (deed) after taking (back) the portions which have gone to the respective shares. Hereafter either we or our heirs have no right, title and interest whatever over the schedule property. Hereafter you are the absolute owner of the schedule property and you are entitled to construct buildings, etc. in any manner you like on the schedule property and to dispose of the same in any manner you like. To this effect is this Release deed in respect of the immovable property executed of our free will and consent.
Schedule: The entire property namely, Timber yard bearing Nos. 143 and 144, measuring East to West 285 feet and North to South 150 feet, situate at Aralepet, Bangalore City, is bounded as follows:
To the East: Aralepet Main Road;
To the West: Vacant site;
To the North: Timber yard belonging to D. Subraya;
To the South: Municipal Drainage.
The entire property, situate within the above limits is subjected to this Release deed. For the purpose of registration the value of this immovable property Rs. 8000/- (Rupees eight thousand) only.
Sd. S. Sajanusah
Sd. S.M. Dhoudusa
Sd. S. Vitoba
Sd. S. Munisami
Sd. S. Shivasa
Sd. S. Swamy.
1. Sd. N. Srinivasa Rao,
2. Sd. Narayanasa,
3. Sd. M. Viswanath,
4. Sd. S. M. Krislmasa.
Scribe G. Narasimha Murthy, Clerk.
Presented in the office of the Sub-Registrar of Bangalore City at 4-10 p. m. on 14-5-1953.
L. T. M. and signature of Chikka Munisamisa.
Execution admitted by:
L. T. M. and signature of S. Rajanusah
L. T. M. and signature of S. M. Dhondusa,
L. T. M. and signature of S. Vithoba
L. T. M. and signature of S. Munisami
L. T. M. and signature of S. Sivasa
L. T. M. and signature of Swamy.
Identified by G. Narasimha. .. .Rao, 185. Ramakrishniah Street, Seshadripuram, Bangalore City.
Registered as No. 538 of 1958-54 in Book I, Volume 126-1, Pages 174 to 177; fee recovered Rs. 2,1-13-0 for registration. Dated 14-5-1953.
Sub-Registrar, Bangalore City.
Seal of the Sub-Registrar, Bangalore City.' The Kannada expression for the description 'Deed of relinquishment' appearing at the commencement of the translation is (words in Kannada omitted). .
For the expression 'Transfer' used in the translation, the original Kannada document also uses the word (word in Kannada omitted).
8. The parties continued to live together till about the end of September, 1958. By that time differences had arisen between them. The partnership was dissolved on 29th September, 1955. The plaintiffs left the father's house and took up separate residences elsewhere. The eldest and the youngest sons defendants 2 and 3 continued to reside with the father.
9. On 20th March, 1956 the plaintiffs caused to be issued to their father a lawyer's notice Exhibit P-14 putting forward the case that the two documents Exhibit's P-3 and P-1 were totally void and inoperative, that Exhibit P-3 was superseded by Exhibit P-1, that Exhibit P-1 did not confer any rights whatever upon the father and that therefore they continued to retain then original title to the timber yard acquired under the partition deed. The lawyer concluded the notice with the statement that his clients hoped that the father would set things right by acknowledging the rights of the sons and executing such documents as may be necessary for the purpose, failing which they proposed to file a suit. They followed it up with the suit out of which this appeal arises. It was instituted on 29th March, 1956. The father's reply through his lawyer is Exhibit P-15 dated 28-3-1056.
10. In the suit the plaintiffs asked for a decree declaring that the release deed Exhibit P-1 dated 14-5-1953 is invalid and inoperative in respect of the plaintiffs' 2/3rd share in the timber yard and for a partition and delivery to them of the said share together with an account of the income arising out of the properly.
11. As already stated, the, father, the first defendant, died after filing of the written statement but before trial. The principal contestant of the suit was therefore the 2nd defendant who claimed to be entitled to the entire property under a gift as well as a will executed after the suit by the father.
12. After trial at which considerable evidence was brought on record, the trial Court made a decree in favour of the plaintiffs that they are entitled to partition and delivery to them of their 2/3rd share in the property and directing the 2nd defendant to deliver the said share after partition by metes and bounds and also to render an account of ifs income from the date of suit till delivery of possession. The trial Court, however, declined to award costs to the plaintiffs.
13. The 2nd defendant has appealed against the decree, and the plaintiffs have cross-objected against the disallowance of costs to them.
14. The plaintiffs' case with regard to the legal value or effect of Exhibits P-3 and P-1 is set out in paragraph 8 of the plaint. As the same appears to have been formulated with great care and attention to details and the answer to the same in the first defendant's written statement constitutes an equally well thought-out statement of his case which since his death has been espoused by the 2nd defendant, it is necessaryin our opinion, to set out the entire text of the said 8th paragraph of the plaint. It reads as follows:--
'8. The plaintiffs state that neither the one document nor the other can operate to affect their rights in the property obtained by them under the partition. The document dated 8-5-1953 being unregistered, is invalid and inoperative for any purpose; and further it must be deemed to have been superseded by the later document. The plaintiffs state that the registered deed dated 14-5-1953 is equally invalid and inoperative to effect a transfer of their right in the suit property or extinguish their rights therein for several reasons. In the first place, there cannot be a release of their rights in favour of the father, who himself had no interest in the property. Secondly it cannot operate as a transfer because the document does not purport to be a transfer, has not been stamped and registered as a transfer and more than all, there is no consideration for the transfer and as such it is void. Thirdly, it cannot operate either as a transfer or as a gift, because the property belongs to the joint family of the plaintiffs and their own sons, and in law, it is incompetent for the father to alienate by transfer or gift for no consideration, the joint family property or even their share therein. Fourthly, the document has been obtained as a result of misrepresentation and the exercise of undue influence by the first defendant in the manner stated above, and as such also it is invalid as against them.'
The said paragraph closely follows the case as formulated in the lawyer's notice Exhibit P-14. Likewise, the 1st defendant's reply follows the case as formulated in his reply through lawyer Exhibit P-15. The first branch of 1st defendant's case is that the partition deed and the two documents Exhibits P-3 and P-1 should be read together as constituting a single transaction. The second is an answer to the several points made in the 8th paragraph of the plaint. The first branch of the case is found stated in paragraph 3 of the written statement. It reads as follows:--
'3. This defendant denies the allegations made in paragraph four of the plaint that he told his sons in order to enable the construction of buildings it was necessary that a document should be executed in his favour 'and accordingly got the plaintiffs and defendants two and three to sign the documents. The sons who were liable to pay this defendant Rs. 100 per mensem from 6-10-1952 had not fulfilled that term. The suit property was yielding Rs, 459-12-0 per mensem. It was agreed that the sons should transfer their rights in the suit property to favour of this defendant and their liability to pay Rs. 100 each to this defendant be extinguished. A reading of the three deeds dated 6-10-1955, 8-5-1953 and 14-5-1953 clearly also establishes this position.'
The reply to the specific points made in paragraph 8 of the plaint is found in paragraphs 7 and 8 of the 1st defendant's written statement which reads as follows:--
'7. The allegation in paragraph 8 of the plaint that the two documents dated 8-5-53 and 14-5-53 cannot operate to affect their rights under the partition are false and untenable. The said documents are quite Valid and operative. By reason of the said documents the plaintiffs were benefited as there was no need or liability to pay Rs. 100/- per mensem each to their father for his lifetime as per the partition deed. By whatsoever name the documents may be called, they are valid and operative. The several grounds alleged in para. 8 of the plaint are false and untenable.
8. The allegation that the document was obtained as a result of misrepresentation and the exercise of undue influence is false.' In their reply the plaintiffs reiterated their Case and repudiated the suggestion that Exhibits P-3 and P-1 should be read together. The main portion of the reply is the 3rd paragraph which reads as follows: '3. The plaintiffs state that the documents dated 8-5-1953 and 14-5-53 cannot be read together; the document dated 8-5-1953 is unregistered, and therefore invalid and inoperative for effecting legal rights. The document dated 14-5-1953 is also invalid and inoperative for reasons mentioned in the plaint. It was not acted upon. There were other moneys of the plaintiffs in the hands of the 1st defendant which, he was taking In lieu of Rs. 100/- payable by them.'
15-16. The 1st defendant later filed what is described as additional or amended written statement. He repeated his case as stated in the first written statement, but added an alternative case invoking Section 53-A of the Transfer of Property Act. The said alternative case is found stated in para. 9 of the further written statement. It reads as follows:
'9. It is submitted that the contract contemned in the agreement dated 8-5-1953 has been acted upon and the 1st defendant has been in possession of the suit property in terms thereof and there has been part performance thereof by virtue of 1st defendant not claiming Rs. 100 per mensem from plaintiffs and defendants 2 and 3 and their enjoying absolution from this liability until now and 1st defendant is ready and willing to perform all his obligations under this agreement including abstention from making any claim against plaintiffs and defendants 2 and 3, for payment of Rs. 100 per mensem by each of them. First defendant therefore claims that the plaintiffs and defendants 2 and 3 are precluded from claiming possession of the suit property in virtue of Section 53-A, Transfer of Property Act and the suit is liable to be dismissed. Plaintiffs in their further reply repudiated the case of part performance under Section 53-A of the Transfer of Property Act contending that the facts and circumstances give no room or scope for invoking the said section. They also pointed out that the claim conflicts with what had been stated in the lawyer's reply on his behalf Exhibit P-15.
17. The 3rd defendant, the youngest son of the 1st defendant, filed a written statement supporting the plaintiffs case. In the last paragraph of his written statement he stated that it was necessary and desirable that he should be transposed as a plaintiff and allowed to make a joint claim with them for his 1/6th share in the suit property. No further steps, however, were taken by him to achieve that result. It also appears that he has since filed a separate suit in the Court of the Civil Judge, Bangalore, for reopening the partition evidenced by Exhibit B-1 on the ground of fraud and other circumstances vitiating the same. It is not therefore necessary in this appeal to refer to or examine his claim for a share. There is also nothing in the written statements of the supplemental defendants which is of relevance to the disposal of the appeal.
18. In the appeal as in the suit, the contest clearly is between the plaintiffs on the one hand and the 2nd defendant on the other. His case is the same as that of the deceased 1st defendant, and arguments on his behalf in the appeal are all based on the written statement of the 1st defendant.
19. From this summary of the pleadings, it becomes clear that the only point for serious consideration is the legal value or legal effect of Exhibit P-1 dated 14-5-1953, the case of the plaintiffs being that neither the said document nor the previous document Exhibit P-3 dated 8-5-1953 had any such operation as to deprive them of the title acquired by them to the timber yard under the partition deed Exhibit D-1 and the case of the 2nd defendant being that under the said documents all the sons of the deceased Chikka Munisamisa including the plaintiffs parted with their title to the timber yard absolutely and irrevocably.
20. According to the plaintiffs, Exhibit P-3 dated 8-5-1953 is useless for the purpose of supporting the claim by the 2nd defendant in the name of the 1st defendant for the reason that the document purports to transfer title but cannot be regarded as successfully conveying title because the same has not been registered. Their further case is that Exhibit P-3 has been superseded by Exhibit P-1. As to Exhibit P-1 although the points of attack are formulated as constituting four different points, they resolve themselves into a single point for consideration in this appeal. The case of misrepresentation and undue influence was not accepted by the trial Court. It has also notbeen repeated before us for the very good reason that there is scarcely any support available therefor anywhere in the evidence adduced by or on behalf of the plaintiffs. The first reason that the document cannot possibly be regarded as release because the claimant or transferee under the deed, the 1st defendant, did not possess any interest either fractional in respect of the whole property or full in respect of a portion of the property, is also of little consequence because whatever may he the name given to a document by the parties, the document will have to be examined in the light of the language employed in it and the objects sought to be achieved by it before any decision in regard to its effect can be arrived at. It is no doubt true that in ordinary circumstances or in a majority of cases, a release deed is executed by one or more co-sharers of a properly in favour of the remaining co-sharer or co-sharers whereby the first named, release their interest in favour of the second named resulting in an augmentation of the share or interest of the second named. That was how the matter was understood and explained by a Bench of three Judges of this court in Nanjunda Setty v. State of Mysore, AIR 1964 Mys 124 (SB) and also in a Full Bench ruling of the Madras High Court in Board of Revenue v. Murngesa Mudaliar, : AIR1955Mad641 (FB). Both the cases dealt with the question of stamp duty payable in respect of the document . which they were considering. But as pointed out by the Supreme Court in Kuppuswami v. Arumugam, : 1SCR275 , although a deed described as a release deed, 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 remainderman to a tenant for life, and the release then operates as an enlargement of a limited estate, it can also be made, by using words of sufficient amplitude, to transfer title to one having no title before the transfer. In the case before them, their Lordships reading the entire suit document, interpreted it as a gift without consideration by the transferor in favour of the transferee on the finding that the clear intention of the parties was to effect a transfer of title.
21. Exhibit P-1 in this case uses both the expressions 'release' as well as 'transfer', former as a description of the document and the latter in the operative portion. The text of the document which we have already set out in full leaves no room for doubt that the purport of the same is to convey title from the sons to the father. We have no doubt, therefore, in our mind, that arguments based on the name given to the document are wholly irrelevant and that the document has to be examined and its operation or effect ascertained on the footing that it purports to be a conveyance of title to the property concerned.
22. That the property conveyed was the interest of the transferors in joint family property of themselves and their respective sons admits of no doubt. Parties are Hindus governed by the Hindu Mitakshara Law. The 2nd defendant has admitted in his evidence that each one of the plaintiffs had at least one son at the time Exhibit P-1 was executed. The transfer, therefore, must be regarded as a transfer of an undivided interest by a coparcener of a Mitakshara coparcenary in the property belonging to the coparcenary. That such a transfer if made without consideration is totally void, is a well-established and undoubted proposition of Mitakshara Law.
23. Hence if the document Exhibit P-1 evidences a transfer of interest without consideration, then the plaintiffs succeed in their case that the document is of no effect as a transfer and that therefore the interest or title they acquired under the partition deed Exhibit D-1 still remains with them.
24. That exactly is the reason, in our opinion, why the entire attempt on the part of the contesting defendant has been to make out and try to establish that the transfer under Ex. P-1 was a transfer for consideration. It should also he pointed out that even in regard to consideration, the case of the contesting defendant is not a case stated in general terms but a specific and clearly formulated case as to what constituted consideration for this transfer. Both in the written statement of the 1st defendant as well as in that of the 2nd defendant what is pointed out as having been the consideration for the said transfer is the relinquishment by the father of Chikkamunisamisa, the transferee under Ex. P-1, his right under the 10th paragraph of the partition deed Ex. D-l to receive from each one of his six sons a sum of Rs. 100 per month. This consideration, however, is found expressly Stated only in Ex. P-3 and not in Ex. P-1. The latter prima facie mentions no consideration whatever for the transfer. Its text seems to set out what, in effect, is only the reason or the occasion for the transfer or the motive for the transfer and certainly not what may be rightly regarded as consideration in the eye of law.
25. It now becomes clear why the main plank of the 1st defendant's case, even from the very commencement as first formulated in his lawyer's reply notice Ex. P-15, is that the two documents Exs. P-3 and P-1 should be read together as constituting a single transfer. That attempt is not given up even now and one part of the case of the appellant is largely made up of various arguments leading to the desired result., viz., that the giving up of the right by the father to receive Rs. 100 under or as stated in Ex. P-3 is the consideration or should be regarded as the consideration for the transfer under Ex. P-1.
26. It is with a view to meet this case or this attempt that the plaintiffs have from the commencement contended that Ex. P-3 was totally superseded by Ex. P-1, that because Ex. P-3 is unregistered whereas Ex, P-1 is registered, the former cannot be made use of or depended upon to affect or modify the terms of Ex. P-1 by reading the two documents together, and that as Ex. P-1 is a formal document, registered according to the relevant provisions of the law retarding registration of documents, containing all the terms of the transaction evidenced by it, it is not open to supplement the same by recourse to oral evidence.
27. The attempt on behalf of the 2nd defendant, therefore, has been firstly to make out that the use he proposes to make of Ex. P-3 is not to any extent prohibited by Section 49(c) of the Registration Act, and secondly to rely on the second proviso to Section 92 of the Evidence Act and to depend upon oral evidence as to the existence of a separate oral agreement as to a matter on which the document is silent.
28. Before proceeding to discuss the Several arguments addressed by Mr. B.Y. Ramachandra Rao, learned counsel for the appellant, it is necessary, even at the outset, to point out that the two parts of his arguments summarised above are in the nature of things quite independent of each other. It is necessary to bear in mind this distinction to avoid the confusion that is inevitable in the situation, because the consideration for Exhibit P-1 which he wishes to establish is one stated in a written document Ex. P-3. If the document goes out of the range of evidence by reason of the operation of Section 49(c) of the Registration Act, when, the second part of the case has necessarily to be made out on the basis of oral evidence rendered admissible by the second proviso to Section 92 of the Evidence Act. To depend upon the latter for the purpose of bringing into the range of evidence a portion of the written text in Ex. P-3 would, in actual event, be an attempt to circumvent, if not directly disobey, the provisions of Section 49(c) of the Registration Act.
29. We shall, therefore first examine the case for the admission of Ex. P-3 in a way not opposed to Section 49(c) of the Registration Act.
30. The relevant part of the said Section reads:
'49. No document required by Section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall --
(a) affect any immovable property comprised therein, or
(b) XXX XX XX
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
Provided that an unregistered document affecting immovable property and requiredby this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of Section 55A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument.'
31. Now, Ex. P-3, though described as an agreement, states in its operative portion that Chikkamunisamisa relinquishes his right to receive Rs. 100/- per month and each of his sons relinquishes his right in the timber yard, and proceeds to state:
'to more effectually to clothe the first party with absolute rights and titles of the said property, necessary registration thereof with the Sub-Registrar shall be done in due course of time.' There can be no doubt whatever that this language employed in the document is language appropriate to an auctorial transfer of their rights in the property by the sons in favour of their father in consideration of their further giving up his right to receive Rs. 100/-from them as provided in the partition deed. The relinquishment of the right by the father to receive Rs. 100/- from each of his six sons and the relinquishment of their lights by the sons by means of a transfer of their share in the property is sought to be effected under the document itself or by virtue of the document. In fact, the document says:--
'.... the second party do hereby release and relinquish.......' That it was so understood by the parties themselves is also clear from the fact that the document concludes with the statement that the same will be got registered.
32. It cannot therefore be disputed that the document was one which was compulsorily registrable under Section 17 of the Registration Act as an instrument purporting or operating to transfer in presenti the right, title or interest to or in immovable property of a value exceeding Rs. 100. This position is in fact not disputed.
33. The burden of the argument on the first part of the case has throughout been that what is prohibited by Section 49(c) of the Registration Act is the reception or Ex. P-3 as evidence of any transaction affecting immovable property and that the expression 'affecting immovable property' according to various decisions cited is only a compendious statement of the more elaborate expression used in Section 17(1)(c) of the Registration Act. viz., 'purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards to or in immovable property', That such is the meaning to be assignedto Clause (c) of Section 49 of the Registration Act may be conceded. But to go further and say that the use which the learned counsel wants to make of Ex. P-3 in this case does not by receiving Ex. P-3 as evidence of such a transaction affect immovable property is an attempt which requires to be scrutinised with greater care.
34. The first thing to take note of is that the attempt to show that consideration for the transfer under Ext. P-1 is the consideration mentioned or set out in Ex. P-3 is an attempt to read both the documents together as constituting a single transaction. It may be remembered that that is exactly the first branch in the case of the 1st defendant and now of the 2nd defendant. What follows from this attempt as a necessary consequence is that for purposes of giving effect to the transaction as intended, the two documents, Exts. P-3 and P-1, must be read as a single document, or that the two documents, one of which is unregistered and the other is registered, must be read together as embodying the terms of the same transaction. As the transaction spoken of is one whereby title to immovable property is transferred and is therefore a transaction which affects immovable property in the sense explained above, each one of the two documents has inevitably to be regarded as a document evidencing a transaction affecting immovable property. If so, the appellant is up against the prohibition contained in. Section 49(c) of the Registration Act,
35. That is exactly the effect of a decision of the Supreme Court (as yet un-reported) in Civil Appeals Nos. 457 and 458 of 1968, D/- 3-2-1969 (reported in : 3SCR497 ). The suit document considered in that case was a deed marked Ex. 4 dated 27th July, 1922 which was registered and which in all its terms read as and amounted to a mortgage. The attempt before the Court was to snow that the said deed, though in terms of a mortgage, must be regarded as an out-and-out sale. For the said purpose, it was pointed out that there was a subsequent deed of sale dated 8th October, 1922 marked Ex. A-26 and that the document Ex. 4 must be construed along with the subsequent document Ex. A-26 as forming part of the same transaction. Ex. A-28 was not registered. The Supreme Court held that for the said reasons, Ex. A-26 was not admissible in evidence to prove the nature of the transaction covered by the registered deed Ex. 4.
36. We are unable to see any difference in principle between the attempt made in the Supreme Court case and rejected by it and the attempt now made before us for reading an unregistered document along with a registered document in such a way as to construe the terms of the registered document in the light of the terms contained in the unregistered document and arrive at aconclusion that the transaction under the registered document is of a nature different from what the terms of the registered document suggest and clearly make out.
37. We are also of the opinion that even the factual basis for the case that both the. documents were intended to represent a single transaction or that one was intended to qualify the terms of another, cannot be made out on the evidence.
38. Ex. P-3, as already stated, was first of the documents prepared and executed on 8th May, 1953. It was prepared by an Auditor by name, R.P. Mallya. He opened his deposition with the statement--
'I see Ex. P-3. I think I prepared it. It was typed in my office. It was prepared at the instance or the parties.' He could not remember when and where it was signed by the parties, but added:
'I think almost all of them were there when I was instructed to prepare Ex. P-3 and I got from them all the information contained in it.' Later, he stated:
'I prepared a draft of Ex. P-3 and perhaps I had a copy of the partition deed with me when I prepared Ex. P-3. No, I do not remember now if when I prepared Ex. P-3, I had a copy of the partition deed with me.' Nothing more useful regarding the preparation of the document was elicited from this witness. Ex. P-3 is signed by all the sons as well as by the father Chikkamunisamisa, 39. As already stated, Ex. P-3 was never registered.
40. Ex. P-1 was executed on 14th May, 1953 and was registered the same day. It is signed by the six sons alone; father is not a party to it.
41. It will be remembered that Ex. P-3 expressly concludes with the statement that it was proposed to register it with a view to convey clear title to the transferee, the father. But, within less than a week after it, Ex. P-1 is not only executed but actually registered without any lapse of time. The clear inference, in our opinion, is that the parties, who had got prepared two documents and had, both the documents with them and who had been fully aware of the fact that the transaction evidenced by each one of them required the document in question to be registered, deliberately chose Ex. P-1 for being registered. They should, therefore, be held to have discarded Ex. P-3 and deliberately chosen Ex. P-1 as the document embodying the terms of the transaction they were proposing to put through. That the choice was deliberate is further strengthened, in our opinion, by the fact that the father, who was a party to Ex. P-3, did not join Ex. P-1. The clear inference is that he wanted only a formal conveyance from his sons by means of a document to which he was not a party, which points to a deliberate choice by him as to the form of document not involving or necessitating himself joining as a party thereto.
42. What is stated above clearly supports the plaintiffs' case that Ex. P-3 was superseded by Ex. P-1 and that Ex. P-1 was the only document regarded by the parties as the one embodying the terms of the transaction.
43. There is further material in the evidence suggesting that the choice of the most advantageous way of making use of the timber yard was a matter on which the parties had been from time to time changing their ideas. Though the pleadings do not make any clear or specific mention of it, the evidence makes it clear that one of the ideas entertained by the parties was to put up a cinema theatre on the land. On that matter, much material has been elicited from the 2nd defendant when he was deposing as a witness. He states in his evidence:--
'We attempted to build a cinema theatre on it and we carried on correspondence with the Municipality to gel a licence to build a cinema theatre on it and Ex. P-25 a letter from the Town Planning Committee. Exhibit P-26 is a copy of letter written by me to the District Magistrate, but I am unable to say if the original has been sent to the District Magistrate. Exhibit P-26 is the letter of S. Sajjanusa, that is, myself. Exhibit P-26 (a) is my letter......I received Exhibit P-27 requesting to grant permission. I have also received Exhibits P-28 and P-29.
Question: The plan Exhibit P-12 had been got prepared by yon in connection with building a cinema theatre?
Answer: Yes, We had got it prepared. Aduplicate of Exhibit P-12 had been sent tothe Municipality which has acknowledgedit as per Exhibit P-12 (b) and P-12 (c) -- thepostal receipt. Exhibit P-17 (a) is the endorsement front the Municipal ExecutiveEngineer. Exhibits P-30 to P-32 are the postal envelopes which I received in thatconnection.' ,
As already stated, the 3rd defendant has since filed a suit for reopening the partition under Exhibit D-1. In connection with that suit, an inventory of papers and articles found in the residential house of the deceased 1st defendant and the 2nd defendant was got prepared through a Commissioner appointed by the Court. At that time, a slip of paper containing the writing of the 2nd defendant was found. It was suggested to him that he tried to tear it off; but he denied the suggestion. The original document in the records of the case marked Exhibit P-13 contains evidence of tearing and subsequent gumming up of the pieces by pasting a strip of paper at the back. It contains incomplete Kannada text reading: (Text in Kannada omitted -- Ed.)
'Free translation thereof is:--'Kengeri Dodda bailu Khane and Timber Yard to be enjoyed in equal shares by the six persons. If cinema (building) is to be put up, what way ?'
With reference to Ex. P-13, the oral evidence of the 2nd defendant is: ,
'I had written Ex. P-13 in regard to what should be done at the time of partition if a cinema theatre had to be built on it and I kept it with me. I wrote Ex. P-13 because we had thought even 4 or 5 years before the partition that cinema had to be built on the timber yard and my brothers suggested 11 months or one year before the partition took place that I should note down as to how the question of building a cinema on the timber yard should be decided at the time the actual partition took place and so I wrote Ex. P-13. At the time of writing partition deed the topic of building the cinema on the timber yard came -up and we all said that there was no need to refer to it in the partition deed as the boundaries of each of 1/6th portion of the timber yard were being clearly mentioned in the partition deed.'
44. We have already extracted the second paragraph of the partition deed Ex. D-1, according to which the timber yard was allotted to six sons in six separate shares, though undivided, and it was recorded that they should put up two shops each after providing for a road in a portion of it.
45. In the evidence of the 1st plaintiff Dhoudusa, he says:
'My father said that he would build a cinema theatre on it and improve the properties and thereafter doing so, he would give the said properties to us and he said that it would facilitate his taking licence and to build on and improve the properties if the properties were in his name.'
Everyone of the three witnesses for the plaintiffs, viz P. W. Narayanasa, P. W. 3 Krishnasa and P. W. 4 Narasimhamurthy, the first two of whom are attestors and the third the scribe of Ex. P-1, deposes that the deceased 1st defendant Chikka Munisamisa stated that he wanted to construct some buildings on the timber yard and that ha would build and give the property back to the sons.
46. This part of the evidence has been depended upon by the plaintiffs to make out that the actual transfer of title was not intended under Ex. P-1. The trial Judge seems to accept this theory.
47. Whether or not such a theory can be clearly made out, one thing that is perfectly clear is that the ideas of the parties as to use to which the timber yard should be put or as to the best and most advantageous way of utilising the same were undergoing a change from time to time which lends support to the inference that Ex. P-3 was one of the stages of this process ofchanging ideas and that therefore Ex. P-1, which was not only executed but actually got registered, the same day, must be regarded as representing the final shape given by the parties to their ideas and therefore as containing as exhaustive statement of the terms of the transaction they were entering into or giving effect to under Ex. P-1.
48. In this connection, we might also refer to the observations o the Privy Council in Bomanji v. Secy. of State, AIR 1929 PC 34, which occur at p. 36 of the Report:
'The learned trial Judge examined with great care the correspondence which took place between the parties before the deed of 1847 was granted, and he came to his opinion on the true meaning of the deed, as he puts it himself, 'after a careful consideration of the deed in the light of the correspondence.' Their Lordships must say at once that this way of approaching the true construction of the deed is quite illegitimate. The learned Judge in another passage says that because the correspondence is referred to in the deed that makes it part and parcel of it. The only reference to the correspondence is in the narrative in the preamble of the deed that there had been such a correspondence, but it is a vital mistake to suppose that that introduces the correspondence as a part of the deed. Nothing is better settled than that when parties have entered into a formal contract, that contract must be construed according to its own terms and not be explained or interpreted by the antecedent communing which led up to it. This is especially true of conveyance. There even, if there has been a formal antecedent contract, that contract cannot be looked at to control the terms of the conveyance; much less can mere communing which could only show what parties meant to do but cannot show what they did.'
49. Both as a matter of law as well as a matter of fact, therefore, Ex. P-3 must be kept out of account while assessing the legal value of or interpreting Ex. P-1.
50. We come now to the second branch of the arguments on behalf of the appellant, viz., the attempt to supply the omission in Exhibit P-1 in regard to consideration by having recourse to oral evidence, in the light of the second proviso to Section 92 of the Evidence Act.
51. While discussing the arguments on this part of the case, it is best to bear in mind the exact terms of Section 92 of the Evidence Act and the first two provisions thereto. The said portion of the section reads as follows:--
'92. When the terms of any such contract, grant or other disposition of properly, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any suchinstrument or their representatives in interest, for the purpose of contradiction, varying, adding to, or subtracting from its terms:
Proviso (1). Any fact may be proved which would entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law.
Proviso (2). The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.'
52. Now, the central point in the argument is that Exhibit P-1 is silent on the question of consideration and that therefore the prohibition against the reception of oral evidence contained in the main part of the section is lifted by the second proviso coming into operation. The first thing to take note of is that oral evidence is permitted by the second proviso as to 'any matter' on which the document is silent and secondly, any separate oral agreement as to such matter should not be inconsistent with the 'the terms' of the document. The choice of the word 'matter' and the description of it as something which is not inconsistent with 'the terms' leaves no room for doubt, in our opinion, that the proviso cannot be made use of to alter or qualify or add to what may rightly he regarded as a term of the contract or transaction embodied in the document. Hence, if consideration is to be regarded as one of the terms of the transaction, no oral evidence under the second proviso can be permitted of a matter which would be to any extent inconsistent with the said term of the document. If a document actually states or sots out the consideration for the contract or for the transaction, it is not permissible by oral evidence to contradict, vary, add to, or subtract from the same. It is of course permissible to prove either that no consideration as set out in the document had been received or that a portion thereof alone had been received or/that satisfaction has been received in respect of consideration in a manner otherwise: than set out in the document. But those are matters which come more appropriately under the first proviso because that proviso permits proof of any fact which, invalidates a document -- for example, absence of passing of consideration as set out in the document or as amounting to want or failure of consideration which is expressly stated in the proviso.
53. On the effect of provisos (1) and (2) to Section 92 of the Evidence Act summarised above, there has not been, and cannot, in our opinion, be any doubt. But some difficulty in that regard was created by a decision of the Privy Council reported in Hanif Un-Nissa v. Faiz-Un-Nissa, (1911) ILR 33 All 340. In that case, Faiz Un-nissa had executed a deed in favour of her three children, which purported to be one of sale for a recited consideration of Rs. 60,000. She also admitted in the document that she had received consideration. She sued for a declaration that the deed had no effect against her and in the alternative for recovery of the consideration of Rs. 60,000. The transferees, children, admitted that the consideration had never been paid by them but pleaded that their mother did not intend to take the purchase money mentioned in the deed. The trial Court dismissed the suit. But the High Court of Allahabad decreed the same holding that the children, defendants, were precluded by Section 92 from giving parole evidence for the purpose of showing that the deed of sale was in reality intended by their mother, the plaintiff, to be a deed of gift. Upon appeal, the Privy Council remanded the matter back to the High Court with a short judgment reading:--
'Their Lordships think the decree appealed from cannot be sustained. They are of opinion that the proper course will be to remit the case to the High Court to be dealt with on the evidence, and they will humbly advise His Majesty accordingly.'
54. This judgment has been variously interpreted by the High Courts in several subsequent decisions. In some cases it was depended upon to show that oral evidence was permissible to prove that though a document expressly stated a consideration and the passing of the same, the actual intention of the parties was not to give and receive consideration for the contract or transaction, as the case may be. The judgment of Wallace, J. in M. Krishnayya v. Md. Galeb Sahib, AIR 1930 Mad 659 refers to various decisions of the Madras High Court discussing the effect of the said Privy Council ruling and states the ultimate result as follows:
'The net result of that discussion of the Privy Council ease is that it is open to a party to prove want of consideration or failure of consideration or a difference in kind of consideration, but it is not open to him to prove a variation in the amount of consideration. As to evidence being admissible to show a difference in kind of consideration I own to some doubt, as such evidence appears to me to be an attempt to vary the term in the document as to consideration.' In regard to the last mentioned point of view of his Lordship, we might say that there have been other cases in which it has been pointed out that the better view to take is that evidence as to a different kind of consideration may be received only if the attempt is to prove that different kind of consideration has actually been received in satisfaction of the consideration mentioned in the document, but that it is not open to prove that though the document mentions one kind of consideration, the parties agreed that a different kind pf consideration should be given and received.
55. Chagla, C.J. discusses the Privy Council case at some length in his judgment in Bai Hiradevi v. Official Assignee, : AIR1955Bom122 . The facts of that case were that certain transfers prima facie in the nature of gifts by an insolvent sought to be avoided by the Official Assignee were sought to be supported by the transferees by trying to prove that though expressed as gifts, they were in fact transfers for consideration. Reliance was placed by their counsel on the above ruling of the Privy Council. Chagla, C.J. dealt with the argument as follows:--
'Mr. Laud says that the case before us is a converse one, but that the principle is the same, and that if the Privy Council could permit the transferees to prove that a deed of sale was in reality a deed of gift, it is open in this case to prove that a deed of gift is a deed of sale or a conveyance for consideration. Now, if the Privy Council had really laid that down, then undoubtedly there would be considerable force in Mr. Laud's contention. But, in our opinion, when we scrutinise this judgment, the Privy Council has not laid down that broad and wide proposition which is contended for by Mr. Laud. It must be borne in mind that in this case the appellant had admitted receipt of consideration, and notwithstanding that, in the alternative, she was suing for Rs. 60,000, the consideration mentioned in the deed, and the sons admitted that although the receipt of consideration was mentioned in the document they had never paid the consideration. Now, there can be no doubt, according to the principle we have just stated, it would be open to the plaintiff to prove as a fact that consideration had not been received.'
The principles earlier stated are:--
'Now, it is always open to parties to an agreement or a document containing disposition of property to prove that certain recitals which are statements of fact are not correct. If the parties were to do that, then they are not in any way contradicting or varying or adding to or subtracting from the terms of the contract or disposition. **** But consideration is undoubtedly a term --and a very important term -- of a contract or of a deed of conveyance or of gift. A conveyance may mention the consideration for the transfer of property. A deed. of gift may mention that lye term of the transfer of property is that there is no consideration. Now in our opinion, it is not open to the parties under section 92 when consideration is mentioned to prove that there was no term as to consideration or that the consideration was different from the one mentioned in the document. In the case of a conveyance, it would not be open to either of the parties to the document to prove that, if the consideration was mentioned as Rs. 10,000, in fact the consideration was less or more; equally, in a deed of gift it could not be open to a party to prove that, although the term of the deed was that there was to be no consideration, still the term was different from what was mentioned in the document and that there was consideration for the document. It seems to us difficult to understand, how it could possibly be contended that, when the appellants tried to establish that the deed of gift was not a deed of gift but a conveyance of property for consideration, they were not contradicting an important term of the deed of gift.'
56. We respectfully agree with the statements of principle made by Chagla, C.J. in the said judgment.
57. Mr. Ramachandra Rao has placed strong reliance on a judgment of Chandrasekhara Aiyar, J., in S. Mutyalu v. C. Veerayya, AIR 1946 Mad 452. In that case, there was a letter by the 1st plaintiff to the defendant stating that he, the 1st plaintiff, had no connection whatever with the suit property and that the defendant can himself enjoy the property which had been given to his wife, the sister of the defendant, by the father under a deed of gift in 1933. The defendant sought to prove that though the letter mentioned no consideration, the same was preceded by mediation as a result of which the defendant gave up a claim to recover Rs. 350 from the 1st plaintiff in consideration of the 1st plaintiff giving up the right in the suit properly which belonged to his wife. Oral evidence of such previous mediation was held to be permissible to prove consideration for giving up of the property under the letter in question. This is what is stated in the judgment:--
'The prohibition in Section 92 is only as regards evidence sought to be adduced for the purpose of contradicting, varying, adding to or subtracting from, the terms of a contract. So long as the passing of consideration is not a terra of the contract, evidence adduced to show that it did pass, even though the contract does not recite it, is not within the scope of the prohibition in Section 92'.
The careful statement 'So long as the passing of consideration is not a term of the contract' indicates, as far as we can see, that his Lordship understood that the contract was not one contained in the letter but one arrived at and concluded at the preceding mediation referred to, because the mediation itself is described as having resulted in one party giving Up a claim for money against the other in consideration of that other party giving up his right to certain property. If, however, the letter itself is to be regarded as contract with respect, we find it difficult to agree that the omission to mention consideration therein can be supplied by oral evidence because, for the reasons already stated, consideration is undoubtedly a term--a very important term of a contract or a transaction.
58. Another case depended upon by Mr. Ramachandra Rao is a decision of the Calcutta High Court in Satyesh Chunder Sircar v. Drunful Singh, (1897) ILR 24 Cal 20. In that case, the lessor of certain immovable property agreed in writing to allow the lessees an abatement of rent to certain extent. The agreement was not registered but was stated in the plaint in a previous suit brought by the lessor as plaintiff. The Court held that the defendant could rely on the agreement although the same was unregistered and also that because the agreement did not operate as a lease, it would not require registration. The case has greater relevance to the argument under Section 49(c) of the Registration Act than to the argument under Section 92 of the Evidence Act. But, we might point out that the decision itself was later distinguished by the Calcutta High Court in Durga Prasad Singh v. Rajendra Narain Bagchi, (1910) ILR 37 Cal 293 on the ground that there had been an admission of the agreement in the previous pleadings, and it was expressly observed that if the defendant's plea had rested solely on unregistered agreement, it would have failed, the document being inadmissible for want or registration. Apart from that, the principle, if accepted, would mean that the terms of a registered document could be varied by an unregistered document which is opposed to the unreported ruling of the Supreme Court already referred to by us, in Civil Appeals Nos. 457 and 458 of 1968 = (reported in : 3SCR497 ). However, as we understand the argument, the particular use Mr. Ramachandra Rao wants to make of this decision is that, if there is an admission in pleadings of or about the passing of consideration, he can make use of it to supplement the terms of the registered document Ex. P-1. We do not accept the proposition that the provisions of Section 92 of the Evidence Act can be circumvented that way. Further, we do not find anywhere in the pleadings an admission by the plaintiffs that the father relinquished his right to receive Rs. 100/-per month under the 10th paragraph of the partition deed and that in consideration thereof, the sons transferred their interest in the timber yard. The so-called admission is a statement in paragraph 9 of the plaint to the effect that subsequent to the execution of Ex. P-1 the 1st defendant (father) began collecting rents from the suit property without informing the plaintiffs as to what ho was doing with those collections. Another admission is said to consist in the fact that whereas the 1st defendant had stated in paragraphs 2 and 6 of his written statement that he had given up the right to receiveEs. 100/- per month from each of his sons and was collecting rents after the execution of Ex. P-1, the plaintiffs have not made effective answer to it in their reply. In fact, they say in para. 3 of their reply which we have already extracted that Exs. P-3 and P-1 cannot be read together, and that there were Other moneys in the hands of their father which he was taking in lieu of Rs. 100/-per month payable by each of them. The reply dearly means that the father had not given up his right to receive money but has actually had full satisfaction in respect of it.
59. Another proposition made by Mr. Ramachandra Rao is as follows (in his own words):--
'If the document expressly says that the transfer is for no consideration, then, I cannot prove the contrary. If, however, it says nothing about the consideration, I can prove by oral evidence whether it was for consideration or without consideration'. All that we can say is that the distinction sought to be made is without any difference whatever. A transfer made without mentioning any consideration is as much a gift or transfer (with) consideration as a transfer made with the express statement that it is being made without consideration. In either case, it is clear that the transferor cannot sue the transferee for payment of consideration.
60. Further, the statement of reasons for the transfer contained in Ex. P-1 viz., that the respective shares of the transferors are not set out in the partition deed and there are structures and sheds thereon and that it is inconvenient for them to derive any advantage or benefit from the property, itself excludes, in our opinion, any idea of payment by the transferee of any monetary consideration or consideration having any money value.
61. Lastly, there is a further serious weakness in the case of the appellant. As already stated, the one and only consideration sought to be established is the relinquishment by the father of his right to receive Rs. 100/-per month as provided in paragraph 10 of the partition deed. The statement and assertion that the sons had not actually paid Rs. 100/- each every month to the father may be literally true. But that does not mean that the amount so due to the father did not reach him at all or that he did not receive satisfaction in that regard. The evidence of both the Auditor R.P. Mallya and the 2nd defendant is that both before and after the execution of Ex. P-1 and right up to the dissolution of the partnership on 29th September, 1955, all the rents from, all the properties including the suit property went into a common account, from which the household expenses were met. The Auditor was conversant with the affairs of the family as he was attending to their income-tax work and states in clear terms:
'I am aware that the rent collected from the timber yard was being put into commonaccount so long as the father and sons resided together'.
The 2nd defendant in the evidence states:
'Each of the brothers used to put into the cash box of the shop the rents collected from his respective shares and that was the contribution to the domestic expenses: The amounts so put into the cash box would be entered on the (original in Kannada omitted) account book kept separately.' Exs. 22 and 23 are the books, the former relating to the period anterior to the execution of Ext. P-1 and the latter to the subsequent period. We should also not forget that even on the date of partition, a separate agreement, Ext. P-2, was executed by the sons, to the terms of which we have already made reference, which make out that whoever might have collected rents from the timber yard, those rents would be made over to the father to be adjusted against the monthly payments to be made by the sons and that the sons would make up the balance from other income.
62. If these facts are taken into account against the background that both before and after the partition right up to end of September 1955, the father and all the sons were living together, there could be little doubt that the father considered the above arrangement as amounting to or involving in actual effect full discharge of the liability of his six sons to pay him Rs. 100/- each every month, and that he was throughout the relevant period in receipt of the same and did not give up his right.
63. This also explains, in our opinion, why when both Exs. P-3 and P-1 fully executed were available for registration, Ex. P-3 was not registered but only Ex. P-1 was registered immediately after its execution.
64. We, therefore, hold that in actual event the father did not give up his right to receive Rs. 100/- from each of his sons every month as provided in the partition deed and did not offer his relinquishment. thereof as consideration for the transfer under Ex. P-1 in his favour.
65. An alternative case has been, for the first rime, argued in the appeal by Mr. Ramachandra Rao, and that is, the transaction under Ex. P-1 can be supported as a family arrangement. The purpose of the argument clearly is to make out that there is consideration in the shape of settlement of disputes. But there is no foundation whatever for this case either in the pleadings or in the evidence. Ex, P-1 itself does not make mention of any disputes which were settled. On the contrary, it is suggested that the entire arrangement was one, proceeding upon an understanding on the part of all of them, come to with a view to put the property to the best possible use. Ex. P-3 no doubt states 'some differences have arisen as to the management and developments, if any, of the said assets', but the Auditor who drafted it has said nothing about these differences in his evidence. We have already referred to the extremely vague statements made by this witness about his authorship or preparation of Ex. P-3. The evidence of other witnesses including the 1st plaintiff and the 2nd defendant does not contain the slightest suggestion of any disputes said to have been settled to lend support to the theory that Ex. P-1 must be regarded as a family arrangement.
66. We, therefore, reject this contention as wholly unsustainable.
67. For all these reasons discussed above, we hold that Ex. P-3 was not acted upon but was superseded by Ex. P-1, that the deceased 1st defendant Chikkamunisamisa did not at any time give up his right to receive Rs. 100/- every month from each of his sons as provided in para 10 of Ex. D-1, that he did in fact receive till the end of September 1955, full satisfaction in respect of it, that Ex. P-1 is a conveyance without any consideration of the interest of the transferors in their coparcenery property and that therefore it is totally void and inoperative.
68. There remains the case of part performance under Section 53-A of the Transfer of Property Act.
69. We have already extracted paragraph 9 of the further written statement of the 1st defendant, on which this case is formulated. It would appear therefrom that his case is that he had acted pursuant to Ex. P-3, that he had been in possession in terms thereof and that he on his part had given up his right to receive Rs. 100/- per month from each of his six sons and that he would not demand payment thereof. As the statement was not quite clear or specific, we asked Mr. Ramachandra Rao whether his case was of taking possession after Ex. P-3 or having been in possession after Exhibit P-3 and continuing in possession in part performance thereof. His answer was that either way, the case of part performance can be made out.
70. Now, the only evidence regarding the taking of possession or continuing in possession pursuant to Ex. P-3 is the undisputed fact that, whereas before the dates of Exs. P-3 and P-1 rents were being collected either by the sons or by some of the clerks and receipts were being issued in the names of the sons, rents subsequent thereto have been collected only by the 1st defendant and the receipts issued in his case. The first or the earliest of such receipts is Ex. D-28 dated 12th June, 1963 under which receipt of rent for the period from 10th May to 10th June was acknowledged.
71. The difficulty in the way of the 1st defendant's case of part performance is that the receipt of rents is the only evidence of possession and that both before and after Exts. P-3 and P-1 all rents went into a common account and were utilised for domestic expenses. As the position is more or less the same throughout, it is difficult on the basis of collection of rents alone to come to any firm conclusion as to with whom the possession stood at any given point of time.
72. It has been contended that application has also been made to the Municipality for change of khatha. The endorsement by the Municipality is Exhibit D-57 which shows that the application for transfer of khatha was made on 12th July, 1953. One cannot say whether this transfer was sought on the basis of Ex. P-3 and not on the basis of Ex. P-1. If, as we have already pointed out, Ex. P-3 was superseded by Ext. P-1, the probabilities are in favour of the view that the application for transfer of khata was based only on Ex. P-1.
73. For the same reasons, even if rents were collected exclusively by the 1st defendant after the dates of Exs. P-3 and P-1, such collection may also be referred to, and should, in the circumstances, more appropriately be referred to Ex. P-1 rather than to Ex. P-3.
74. We are not satisfied therefore that there is any support in the evidence for the case of part performance.
75. That disposes of all points in the appeal.
76. Regarding the memorandum of cross-objection, the reasons why the trial Judge disallowed costs to the plaintiffs seem to be that in his opinion, this was an unfortunate litigation between father and sons and also that the father was perhaps inclined to give back the timber yard to the sons after putting up a theatre but that the plaintiffs without waiting for the same rushed to Court with a suit, because the father had executed a gift deed in favour of his first son, the 2nd defendant. The fact that the litigation is between father and sons or members of the family closely related to each other, is itself not a sufficient ground for not following the normal rule that costs should follow the event. If, as the Judge observes, what provoked the plaintiffs to come to Court was the fact that the 1st defendant had executed a gift deed in respect of the property in favour of the 2nd defendant alone while they were expecting that the father would hand back the property to all of them after constructing a theatre or other building, then it means that the plaintiffs had full justification for coming to Court.
77. We are therefore of the opinion thatthe trial Judge did not act in correct exerciseof his discretion in refusing costs to theplaintiffs.
78. We, therefore, allow the memorandum of cross-objection, dismiss the appeal and confirm the decree of the trial Court except in regard to costs. Regarding costs our direction is that the 2nd defendant-appellant should pay to the plaintiffs costs both in the suit as well as in this appeal. The efendants will bear their own costs in both the Courts.
79. Appeal dismissed. Cross-objections allowed.