NAGARATHINAM PILLAI Vs. K.K. NATESAM CHETTIAR

JUDGEMENT

(1.) The second Defendant is the Appellant before this Court and the first Defendant is the Respondent. The Plaintiff is the wife of the second Defendant and the first Defendant is the brother of the Plaintiff. The suit properties originally belonged to Kannammal the mother of the Plaintiff and the first Defendant. The said Kannammal executed a settlement deed in favour of the Plaintiff, the second Defendant and her other five daughters on 24th November, 1956. Subsequently, the first Defendant also obtained another settlement deed in his favour from his mother and in pursuance thereof came into possession of the entire properties The Plaintiff filed Original Suit No. 342 of 1969 against the first Defendant contending that the settlement deed executed by her mother in favour of the first Defendant is not valid in law and demanded partition and separate possession of her 1/7th share in plaint items 1 to 11 and 1/14th share in plaint items 12 to 23. The other sisters of the Plaintiff were not impleaded, as the first Defendant had obtained a release, dated 24th November, 1956 from his other sisters by paying them Rs. 2,000 each. The second Defendant was impleaded in the suit as he was also entitled to a similar share in the suit properties. The second Defendant remained ex parte in the suit. The first Defendant ultimately compromised the suit and a preliminary decree was passed declaring the Plaintiff's title to 114th share in all the suit items. The Plaintiff filed an application in Interlocutory Application No. 1472 of 1972 to pass a final decree and notice was ordered to the Defendants At that stage, the second Defendant filed an application in Interlocutory Application No. 1903 of 1972 and sought allotment of his 1/14th share in the suit properties by paying the necessary Court -fees. Overruling the objections of the first Defendant, the trial Court passed a final decree in favour of the Plaintiff and the second Defendant. On appeal by the first Defendant, the lower appellate Court held that passing of a final decree straightaway in favour of the second Defendant without an amendment of the preliminary decree declaring his right in the suit properties or a supplemental preliminary decree to that effect was not proper and the final decree passed by the trial Court was set aside and the matter was remanded to the trial Court for fresh disposal after adjudicating the dispute regarding the right of the second Defendant to get a share in the suit properties. After remand the second Defendant filed Interlocutory Application No. 1322 of 1974 to amend the preliminary decree declaring his 1/14th share in the suit properties and then pass a final decree in his favour in accordance with the amended preliminary decree. In that application, the first Defendant filed a counter stating that the second Defendant received Rs. 1,500 from him and executed the Varthamanam letter, exhibit B -1 disclaiming his interest in the suit properties and releasing his share in favour of the first Defendant, and he is entitled to claim relief under Sec. 53 -A of the Transfer of Property Act. The first Defendant also pleaded adverse possession. The claim of adverse possession was negatived by the trial Court on the ground that the first Defendant is in possession only as a co -owner. The trial Court held that the varthamanam letter exhibit B -1 is a true and genuine document and the first Defendant cannot claim protection under Sec. 53 -A of the Transfer of Property Act as it can operate only as a release deed and not a conveyance or contract of transfer between the parties and granted a preliminary decree in favour of the second Defendant declaring his 1/14th share in the suit properties. On appeal, the lower appellate Court held that exhibit B -1 can be construed as a deed of conveyance and since all the requirements of Sec. 53 -A of the Transfer of Property Act are complied with, the first Defendant is entitled to protection under Sec. 53 -A of the Transfer of Property Act and on this finding the preliminary decree passed by the trial Court was set aside. Hence the present second appeal by the second Defendant.

(2.) The learned Counsel for the second Defendant (Appellant) contended that under exhibit B -1 the second Defendant has merely released in favour of the first Defendant the rights conferred on him under the settlement deed dated 24th November 1956 executed by his mother -in -law and being a release deed extinguishing the rights of the second Defendant, it cannot operate as a conveyance and hence exhibit B -1 cannot be construed as a contract of transfer of immovable property within the meaning of Sec. 53 -A of the Transfer of Property Act. The Supreme Court, in the decision reported in Kuppuswami Chettiar v/s. Arunugam Chettiar, (1967) 2 M.L.J. 29 (S.C.) has held that a registered instrument styled as a release deed releasing the right, title and interest of the executant in any property in favour of releasee for valuable consideration may operate as a conveyance, if the document clearly discloses an intention to effect transfer and a release deed by using words of sufficient amplitude can transfer title to one having no title before the transfer. A document though styled as a release deed can be construed as a deed of conveyance if the words used therein ate of sufficient amplitude to show transfer of title to one having no title before the transfer and the operative words used therein show a transfer of the right, title and interest of the executant in any property in favour of the releasee for valuable consideration. Then the release deed can be construed as a deed of conveyance and a contract to transfer immovable property for consideration for purposes of Sec. 53 -A of the Transfer of Property Act.

(3.) In the instant case, the rights conferred on the second Defendant by the settlement deed executed by his mother -in -law has been released by the second Defendant in favour of the first Defendant under exhibit B -1 and the second Defendant has unequivocally stated that he has delivered possession of the properties to the first Defendant and he or his heirs will have no claim over the properties. As the words used in exhibit B -1 show that there has been a release of the rights of the second Defendant in favour of the first Defendant by transferring his title and interest in the suit properties which he has acquired under the settlement deed executed in his favour by his mother -in -law, there is a contract of transfer of immovable property as contemplated under Sec. 53 -A of the Transfer of Property Act. The learned Counsel for the second Defendant (Appellant) contended that in the Supreme, Court case quoted above, the release was by a registered instrument and there could be no transfer of right, title and interest under exhibit B -1 which is an unregistered document and hence there could be no transfer of right, title and interest under exhibit B -1 and as the contract relied on cannot be specifically enforced Sec. 53 -A of the Transfer of Property Act will have no application.