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Panchapegesa Ayyar Vs. Natesa Ayyar and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai
Decided On
Reported inAIR1927Mad593
AppellantPanchapegesa Ayyar
RespondentNatesa Ayyar and ors.
Cases ReferredLatchammal v. Gangammal
Excerpt:
- - it may be they agreed to pay that amount in discharge of their pious obligation to support an aged father which they were to do under the hindu law, i am not satisfied that the father received consideration for his not getting a share of the family property. bhashyam ayyangar is that if something which belongs to the joint family is given to the father, whatever may be the value of that thing, it would be a good partition and t he rest of the property could be taken by the other members of the family and no document would be necessary in such case, but if any of the other members of the co-parcenery undertake to pay another a sum out of his pocket, such a transaction should be viewed as a sale......j.1. the first point urged in this second appeal is that ayyasami sastri released his right in the family property in consideration of a monthly payment of rs. 5 from his two sons, that the release amounts to a sale of the interest of ayyasami sastri in the family property and as such it cannot be valid without a registered instrument. the arrangement evidenced by ex. b was between the two sons of ayyasami sastri, they divided the family house and in the document they agreed to pay rs. 5 to their father. the question is whether there was any actual release by the father, and whether from the terms of the document it can be inferred that the father released his right in favour of the sons for a consideration and whether that arrangement amounted to a sale. it is not stated in the document.....
Judgment:

Devadoss, J.

1. The first point urged in this second appeal is that Ayyasami Sastri released his right in the family property in consideration of a monthly payment of Rs. 5 from his two sons, that the release amounts to a sale of the interest of Ayyasami Sastri in the family property and as such it cannot be valid without a registered instrument. The arrangement evidenced by Ex. B was between the two sons of Ayyasami Sastri, They divided the family house and in the document they agreed to pay Rs. 5 to their father. The question is whether there was any actual release by the father, and whether from the terms of the document it can be inferred that the father released his right in favour of the sons for a consideration and whether that arrangement amounted to a sale. It is not stated in the document that the Rs. 5 was to be paid in consideration of the relinquishment by the father of his share of the family property. The document simply provides for payment by the sons of so much to the father. It may be they agreed to pay that amount in discharge of their pious obligation to support an aged father which they were to do under the Hindu Law, I am not satisfied that the father received consideration for his not getting a share of the family property. It is open to a father to divide the property among his sons reserving nothing to himself. See Brijraj Singh v. Sheodan Singh [1913] 35 All. 337 The argument of Mr. Bhashyam Ayyangar is that if something which belongs to the joint family is given to the father, whatever may be the value of that thing, it would be a good partition and t he rest of the property could be taken by the other members of the family and no document would be necessary in such case, but if any of the other members of the co-parcenery undertake to pay another a sum out of his pocket, such a transaction should be viewed as a sale. Whether the proposition as contended for by Mr. Bhashyam Ayyangar is correct or not, it is unnecessary to consider in this case, for, there is nothing to show that the father received as consideration Rs. 5 a month or agreed to receive Rs. 5 a month in order to relinquish his right to the family property. In the case of a joint Hindu family a person may take nothing when a division takes place and it cannot be said that under such circumstances he releases his right to the other family property in the sense that it is an ordinary release which requires a registered document to validate it, The Subordinate Judge was correct in applying Latchammal v. Gangammal [1910] 34 Mad. 72 to the facts of the case. Mr. Bhashyam relied upon Reference under Stamp Act Section 46 [1895] 18 Mad. 233 and Ariya Puthira v. Muthukumaraswami [1912] 37 Mad. 423 as supporting his contention. In Reference under Stamp Act Section 46 [1895] 18 Mad. 233 there was a document in which there were clear recitals that one party released his right in favour of the other and the Court held that it was a release deed and as such required to be stamped as a release deed.

2. In Ariyaputhira v. Muthukumaraswami [1912] 37 Mad. 423 the mortgagee released his mortgage right over some portion of the mortgaged property in consideration of his getting the right to the equity of redemption in respect of the items which he retained. There the Court held that a registered document was necessary to evidence such a transaction. These cases therefore have no application to the present case. The case in Latchammal v. Gangammal [1910] 34 Mad. 72 was a case of two widows dividing the property over which they had widow's right. It was held that it was open to them to divide the property by an oral arrangement, and thereby give up the right of survivorship which they had as widows.

3. In the result the second appeal fails an d is dismissed with costs.


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