PANCHAPAGESA AIYAR Vs. NATESA AIYAR

JUDGEMENT

(1.) THE first point urged in this second appeal is that Ayyaswami 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 Ayyaswami Sastri in the family property and as such it cannot be valid without a registered instrument. THE arrangement evidenced by Ex. D was between the two sons of Ayyaswami 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 on 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 bound 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) ILR 35 A 337 : 25 MLJ 188 (PC). THE argument of Mr. Bhashyam Aiyangar 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 the rest of the property could be taken by the other members of the family and no document could be necessary in such a case, but if any of the other members of the co-parcenary 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 Aiyangar 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 Latchumammal V/s. Gangammal (1910) ILR 34 M 72. to the facts of the case. Mr. Bhashyam Aiyangar relied upon Reference under Stamp Act, Section 46(3) and Ariyaputhira V/s. Muthukomaraswami as supporting his contention. In Reference under Stanip Act, Section 46(3) 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. In Ariyaputhira V/s. Muthukomaraswami 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 Latihumammal V/s. Gangammal (1910) ILR 34 M 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.

(2.) IN the result the second appeal fails and is dismissed with costs.