RAMAN Vs. KUNCHU

JUDGEMENT

(1.) WE shall now take up the cross-objection filed on behalf of the second defendant. The main ground raised by the second defendant in the cross-objection is that Ex. B-4 is a deed of assignment executed by the plaintiff's father in favour of the second defendant conveying his interest in items 1 to 4 and 6 to 7 in the plaint B schedule and therefore the plaintiff is entitled only to 1/6th share in those items and not for 4/18th share decreed to him. Ex. B 4 is styled a deed of relinquishment executed by the plaintiff's father in favour of the second defendant. Both the lower courts found that Ex. B-4 is a deed of surrender by the plaintiff's father in favour of the second defendant and the legal effect of such a surrender though in the name of the second defendant eo nomine is a renunciation of the share of the plaintiff's father in the joint family properties in favour of all the three co-parceners including the second defendant. Their Lordships of the Supreme Court in Mammo v. Ramunni 1965 KLT. 1196 at 1199 expressed the view that a registered instrument styled a release deed releasing the right, title and interest of the executant in any property in favour of the releasee for valuable consideration may operate as a conveyance if the document clearly discloses an intention to effect a transfer. Their Lordships observed: "ex. B clearly discloses an intention to transfer all the rights of Baithan to defendants 1 to 5, and though the word "surrender' is used and though the deed is styled a release deed, it operates as an assignment. " Both the courts below took the view that though the consideration recited in the document was Rs. 500/-the actual consideration was only Rs. 8 a. 1 ps. 9 which according to the courts below is inadequate. This view taken by the courts below is incorrect. Ex. B-4 was executed in consideration of the undertaking by the second defendant to discharge the debts of the plaintiff's father to the extent of Rs. 500/ -. No doubt in Ex. B-4 the right of the plaintiff's father to collect the debts to the extent of Rs. 414-3 was also included. On a reading of Ex. B-4 it is clear that the liability of the second defendant to discharge the debts or rs. 500/- is not conditional on his realising the sum of Rs. 414-0. The second defendant also undertook to indemnify the plaintiff's father against any loss that may be occasioned to him on account of default of the second defendant to discharge the debts recited in the document. In these circumstances, it is clear beyond any doubt that Ex. B-4 was executed for consideration. Ex. B-4 clearly discloses intention on the part of the plaintiff's rather to convey his interest in the properties comprised in Ex. B-4 in favour of the second defendant. It therefore follows that though Ex. B-4 is termed a deed of relinquishment, it is in effect a deed of transfer conveying the I/ 16th interest of the plaintiff's father in items 1 to 4 and 6 and 7 in favour of the second defendant. If so the plaintiff and the first defendant can claim only 1 /3rd share each in the plaint schedule items 1 to 4, 6 and 7 and not 4/18th share as found by the two courts below.

(2.) BUT it was contended on behalf of the appellant that ex. B-4 was stamped only as a release and no advalorem stamp duty was paid which is necessary for a conveyance and therefore no interest could validly pass to the second defendant under Ex. B-4. This contention of the learned advocate for the appellant cannot be accepted for two reasons. The claim of the appellant for 4/18th share was based on Ex. B-4 on the ground it was a release. We have held that it is not a release but a conveyance. So the plaintiff is not entitled to any relief on the basis that Ex. B-4 is a release. Secondly Ex. B-4 was admitted in evidence by the trial court without any objection.

(3.) IN the result, the appeal is dismissed confirming the decrees of the courts below in respect of plaint B schedule item 5. The memorandum of cross-objection filed on behalf of the second defendant is allowed and the decrees and judgments of the courts below are modified by giving the plaintiff 1/6th share in the plaint schedule items 1 to 4, 6 and