ATUL KAPUR Vs. ARUN KAPUR OSA 161/16 06/01/20 [ R.SUBBIAH JJ ]

[ MADRAS HIGH COURT ]

• Transfer of Property Act, Section 5 Specific Relief Act, Section 34 Release deed Suit for partition of the immovable property and For a declaration that the release deed registered as Document is brought about by fraud and undue influence Plea that release deed said to have executed by plaintiff releasing his share in favour of defendants, brothers is brought about by fraud and undue influence Release deed signed by plaintiff and attested by his wife Plaintiff signing as confirming party in about 11 sale deed Plaintiff himself admitting and acknowledging receipt of Rs. 5 lakhs in consideration of execution of release deed Evidence of defendant that said Rs. 5 lakhs were adjusted in accounts of partnership property which was given to plaintiff in lieu of share in suit property – Plaintiff give larger extent of 10 grounds of property with business in partnership firm where plaintiff’s wife and daughter were inducted as partners – Combined reading of partnership-in-lieu of share in suit property Release deed, valid.[Paras 30, 32 and 35]

 

Relevant Paras:

30. But, on a careful perusal of Ex.D-1 release deed, dated 01.04.2002, it is
seen that it was signed and executed by the plaintiff, and that his wife Ritu Kapur
was one of the witnesses who attested the said release deed. In the preamble
portion of the said release deed, the plaintiff has admitted with regard to theconsideration of Rs.5 lakhs and the relevant portion of the release deed reads as follows:
“WHEREAS the releasor and the releasees being family members discussed among themselves and the releasor has agreed to release his remaining 10,646 undivided sq.ft. of land in the property in favour of the releasees herein for a consideration of Rs.5,00,000/- (Rupees five lakhs only) and
WHEREAS the releasor acknowledges the receipt of this sum at the time of his executing this deed of release.
Further, after executing the release deed, the plaintiff also signed as confirming party in about 11 sale deeds being marked as Exs.D-4 to D-14. In the sale deeds, in internal page No.6, it has been stated as follows:
“WHEREAS in terms of Release Deed dated 1st day of April 2002, the VENDOR No.(c) Mr.ATUL KAPUR has released his right in favour of VENDORS (a & b) registered as Document No.646 of 2002 and VENDOR (c) has joined as a measure of abundant caution though he holds no interest and
WHEREAS the VENDORS have entered into Joint Venture Agreement with M/s.SUKRIT CONSTRUCTIONS in terms of Agreement dated 22nd April 1999, for promotion of flats and accordingly M/S.SUKRIT CONSTRUCTIONS have taken possession of the property and are proceeding with the construction of the flats and ..”
32. Further, the appellant/plaintiff gave three Police complaints marked as Exs.P-12 to P-14, in which, he had mentioned about the execution of the release deed. In none of the complaints, he has alleged that the release deed was obtained by fraud or undue influence. In all those complaints, he had only made vague allegations complaining as if his brother is inducing to execute the release deed. Therefore, the case of the plaintiff is that it is nothing, but an after-thought created for the purpose of the case.

35. It is the submission of the learned counsel appearing for the defendants
that the property at No.61, Nelson Manickam Road, ad-measuring about 10 grounds,
was given to the plaintiff, in lieu of his share in the suit property, by way of inducting
partners and also by virtue of retiring partners therein and the property was the
valued at more than Rs.1 crore at that time. The said property was given with lock,
stock and barrel with all the business assets, and the plaintiff also encashed the same. It is the contention of the plaintiff that the source of title in respect of the property at No.61, Nelson Manickam Road and the property at No.52, Taylors Road, is entirely different and the defendants are trying to link the same by creating confusion. But we are of the opinion that absolutely there is no explanation from the appellant/plaintiff as to why he was given a larger extent of 10 grounds of property at No.61, Nelson Manickam Road, together with the business in the partnership firm, namely M/s.Jai Dayal Pran Nath Kapur, in which the defendants 1 and 2 were earlier partners and subsequently, the plaintiff’s wife and daughter were inducted as partners. Moreover, no consideration was paid by the plaintiff to the defendants 1 and 2 for induction of the plaintiff’s wife and daughter as partners in M/s.Jai Dayal Pranath Kapur, which is evident from the declaration of retirement of partners in respect of the partnership deed, dated 02.03.2002 (Ex.D-20). This fact clearly fortifies that the property at No.61, Nelson Manickam Road, Chennai, was given to the plaintiff in lieu of his share in property at No.52, Taylors Road, Chennai. Therefore, on a combined reading of the partnership deed (Ex.D-19) and release deed (Exs.D-1 = Ex.D-27), it clearly gives a presumption that the plaintiff has released his share in the suit property and he was given the property at No.61, Nelson Manickam Road, for consideration of Rs.5 lakhs, which was adjusted in the accounts, which are with the plaintiff. The questions (i) to (iii) are answered in the above terms.

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