BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 02/01/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.1101 of 2001 Backiam ... Appellant/Plaintiff Vs 1.RM.Subramaniam 2.RM.Muthiah 3.RM.Sundarajan 4.RM.Muruganantham 5.S.Santha 6.R.Muthumani 7.RM.Anbazhagan 8.K.Devika ... Respondents/Defendants Prayer Appeal filed under Section 96 of the Code of Civil Procedure, against the judgment and decree dated 06.07.2001 in O.S.No.80 of 1999 on the file of the Subordinate Judge, Devakottai. !For Appellant ... Mr.K.K.Ramakrishnan for Mr.V.Bharathidasan ^For Respondents ... Mr.M.Thirunavukkarasu for Mr.S.Krishnaswamy for R.1 to R.3 and R.5 to R.8 Mr.V.K.Vijaya Raghavan for Mr.R.Vijayakumar for R.4 :JUDGMENT
Challenging the judgment and decree dated 06.07.2001 in O.S.No.80 of 1999
passed by the learned Subordinate Judge, Devakottai, this appeal has been filed
by the unsuccessful plaintiff.
2. The parties, for convenience sake, are referred to hereunder according
to their litigative status before the trial Court.
3. Broadly but briefly, the case of the plaintiff as stood exposited from
the plaint could be portrayed thus:
(i) The plaintiff and the defendants are the children of the deceased
couple, Ramasamy Pillai and Pattammal. Ramasamy Pillai died on 28.09.1981 and
Pattammal died on 08.10.1994. The plaintiff is a handicapped lady affected by
Polio and she remained unmarried and was brought up under the protective
amperage of her parents. After the demise of her parents, she was under the
care and custody of her brothers. Ramasamy Pillai was running rice mills. From
out of such income, he purchased certain items of the suit properties and the
said Pattammal, from out of her efforts and own source of income purchased
certain items of the suit properties.
(ii) As such, the suit items of properties nine in number happened to be
the self-acquired properties of Ramasamy Pillai and Pattammal and after their
death, the plaintiff and her brothers and sisters totally nine legal heirs are
entitled to 1/9th share each in all the suit properties. Whereas the brothers
who are expected to be cordial and kind towards the plaintiff, proved otherwise
as they denied her share. The defendants 1 to 7 are running the rice mills and
enjoying the benefits and they are also getting income from the suit properties.
As such, they are bound to render accounts. Accordingly, she prays for
partition with consequential benefits and for rendition of accounts.
4. Denying and disputing, gainsaying and impugning the
allegations/averments in the plaint, the seventh defendant filed the written
statement which was adopted by the defendants 1 to 4, thus:
(i) The suit properties and other properties belonged to the joint family
and an amicable settlement was arrived at in the presence of Panchayatars and in
memory of it, a memorandum of family settlement was written in the year 1998
wherein all the co-sharers signed. However, the fourth item of the suit
properties is an exclusive property of the second defendant who purchased it
from M.M.D.A from out of his own salary savings.
(ii) The first item of the suit schedule belonged to Sri
Puttridamkondeeswarar Devasthanam, whereupon the rice mill buildings were
constructed, machineries were installed and electricity connection was obtained
and the machineries were purchased in the name of the sons of the said Ramasamy
Pillai and in the said family settlement, it was allotted to the share of the
first defendant.
(iii) The second item of the suit Schedule was purchased from out of the
income generated from the first item of the suit properties (rice mills) in the
name of the first defendant.
(iv) The third item of the suit properties was purchased by Ramasamy in
his name whereupon the joint family house was constructed and it is under the
occupation of the second defendant. The fourth item of the suit property was
purchased by the second defendant from M.M.D.A from out of his own salary
savings. Item Nos.5 and 6 of the suit properties were purchased by the joint
family and allotted to the share of the third defendant as per the family
settlement, who in turn, sold it to Balakrishnan and Sivasubramanian.
(v) The seventh item of the suit properties was purchased by the joint
family in the name of Ramasamy Pillai and the rice Mill was constructed thereon
and it was allotted to the share of the fourth defendant. The eighth item of
the suit properties was allotted to the defendants 1, 3, 4 and 7 and it was
subsequently, sold by the fourth defendant to one Ramu. The ninth item of the
suit properties was the joint family property and it was allotted to the seventh
defendant under the settlement, thereupon the seventh defendant constructed a
house.
(vi) The daughters of Ramasamy Pillai relinquished their right over the
suit properties, in lieu of it, those female members were given with the family
jewels; whereas the plaintiff was allotted more jewels than the ones in favour
of other female members in view of her physical disablement in addition to
having provided her with the family silver articles. In fact, a plot purchased
in the name of the plaintiff from out of the family funds was sold by her and
she appropriated the entire proceeds for herself. She has also been conducting
finance business which was run by her mother Pattammal, the mother of the
parties. An Ambassador car is owned by the plaintiff, even though it happened
to be the one purchased from out of the joint family funds.
(vii) The second defendant also permitted the plaintiff to stay in the
house allotted to him. The plaintiff is worldly wise and due to the instigation
of her power agent, Ramanathan, she has also filed the suit, which is also bad
for non-joinder of the purchasers of item Nos.5, 6 and 8 of the suit properties.
Accordingly, the defendants prayed for the dismissal of the suit.
5. Whereas the defendants 5, 6 and 8 remained ex-parte.
6. The trial Court framed various issues. During trial, the plaintiff
examined herself as P.W.1 and no document was marked. On the side of the
defendants, D.W.1 and D.W.2 were examined and Exs.B.1 to B.7 were marked.
7. Ultimately, the trial Court dismissed the suit.
8. Being aggrieved by and dissatisfied with, the judgment and decree of
the trial Court, the plaintiff filed this appeal on the following main grounds
among others:
The trial Court erroneously held that Ex.B.4, the alleged family
settlement was signed by the plaintiff, because of its faulty approach in
comparing the disputed signature of the plaintiff with her other signatures in
the plaint. The burden of proving Ex.B.4 was on the contesting defendants which
they miserably failed to discharge. Ex.B.4 was not a genuine document; over and
above, it is in the nature of a partition deed requiring registration, but it
was held as though it was a family settlement. The Notary Public allegedly
attested Ex.B.4 was not examined which fact was ignored by the trial Court. The
alleged partition itself was not proved. Even though, D.W.2 admitted that as
many as nine copies were executed, yet only one was produced before the trial
Court. The suit properties are the joint properties and they are liable to be
partitioned. The trial Court wrongly held as though the plaintiff relinquished
her right over the suit properties. The trial Court has ignored the fact that
the plaintiff is an illiterate and handicapped woman. Accordingly, the
plaintiff prayed for decreeing the suit after reversing the judgment and decree
of the trial Court.
9. The points for consideration are:
(i) Whether the suit properties are Hindu Joint Family properties or self-
acquired properties of the deceased Ramasamy Pillai and the deceased Pattammal?
(ii) Whether Ex.B.4 was signed by the plaintiff and if so, whether it is
requiring registration or a family settlement requiring no registration?
(iii) Whether the plaintiff is entitled to partition and for rendition of
accounts as prayed by her?
(iv) Whether there is any infirmity in the judgment and decree of the
trial Court?
Point No:(i)
10. Unassailably and indubitably, the plaintiff and the defendants are the
children of the deceased couple Ramasamy Pillai and Pattammal.
11. A mere perusal of the written statement and Ex.B.4 which the
contesting defendants relied on, would leave no doubt in the mind of the Court
that the contesting defendants themselves repeatedly described the suit
properties as joint family properties.
12. The learned Senior Counsel for the defendants contending that without
understanding the significance, the term “bghJf; FLk;gr; brhj;J” was used in
Ex.B.4 and consequently in the written statement, would develop the argument
that in the name of his father, a few items of the suit properties were
purchased and the remaining items were purchased individually by the sons of the
said Ramasamy Pillai with their respective resources and at the time of oral
partition, the respective properties purchased by the male members were allotted
to them in recognition of their pre-existing right in respect of those
properties and as such, he would reiterate in his arguments the stand of the
contesting defendants.
13. Indisputably and admittedly, Ramasamy Pillai did not inherit any
property from his forefathers and as such, the question of invoking the co-
parcernary concept as well as the concept of joint family, does not arise.
There is no whisper that Ramasamy Pillai and his sons joined together and
intended to form a fresh joint family as contemplated under the Hindu Law and it
is not at all the case of the contesting defendants also in the written
statement, wherein they would candidly narrate that the various items of the
suit schedule were purchased from out of the income derived from the suit item
of some other properties including the two rice mills referred to supra.
14. Relating to the item No.4 of the suit properties, which is a house in
Chennai was purchased from M.M.D.A by the second defendant from out of his
salary and it therefore could readily be taken as the self-acquired property of
the fourth defendant and there is absolutely no evidence to the contrary and
accordingly, the item No.4 should be excluded from partition and also from the
claim of the plaintiff, whereas other items of the suit properties, even as per
the own admissions of the contesting defendants, were acquired one after another
from out of the income derived from the properties gradationally. Ramasamy
Pillai was undoubtedly running two mills as contended by the plaintiff and
evidence also would speak to that effect. In Ex.B.4, it is found stated thus:
“ek; bghJ FLk;gj;jpw;fhf bghJ FLk;g tUkhdj;jpypUe;J ek;Kila bgw;Bwhh;fspd;
bgahpYk; ek;kpy; mtuth;fs; bgahpYk; brhj;Jf;fs; Kjyhditfs; thA;fg;gl;L bghJthf
mDgtj;jpy; nUe;J tUk; ek;Kila bgw;Bwhh;fs; fhyq;brd;Wtpl;lhh;fs;. ehk; bghJ
FLk;gkhf nUe;J tuKoahj R{H;epiyapy; ehk; bghJFLk;gj;ij fiyj;Jtpl;Blhk;.”
(emphasis supplied.)
15. The above excerpt would demonstrate that the defendants’ own stand in
Ex.B.4 torpedoes the quite contrary stand taken by them in the written
statement. Quite antithetical to what they set out in Ex.B.4, in the written
statement, they veered round and took a plea which is untenable both on facts
and law.
16. Absolutely, there is nothing on record to prove that the male members
of the family had any independent source of income to purchase the suit
properties, except item No.4 purchased by the second defendant. D.W.1, the
first defendant is the protagonist of the theory that the properties were
purchased from out of the joint family income and as such, his own admission
would clearly prove that the sons of Ramasamy Pillai had no independent source
of income to purchase the suit properties except item No.4 by the second
defendant. Once it is found that Ramasamy Pillai during his life time, had run
two mills and purchased various items in his own name as well as in the names of
his sons, then as a sequela, it follows that after his death, the properties
should be taken to be self-acquired properties of Ramasamy Pillai and not co-
parcernary properties or joint family properties. All his sons and daughters
should be treated as class I heirs as per the Hindu Succession Act, as he died
in the year 1981, long after the commencement of the Hindu Succession Act, 1956.
17. There is nothing to show that the mother of the deceased had any
separate source of income, so as to enable her to purchase any propety from out
of her own income. The contesting defendants’ stand is that the said Pattammal
during her life time was running finance business. However, P.W.1 would expound
that Pattammal even during her life time, closed that business. No accounts
were produced relating to such finance business and there is nothing to prove
that P.W.1 inherited such business as contended by the defendants. P.W.1 would
admit that a plot was purchased in her name at Kottaiyur, which she sold it in
favour of her sister. In such a case, the plot at Kottaiyur should be subjected
to the partition and this Court accordingly directs so.
18. The plaintiff would pose as though she is a lady who is not in the
know of things whereas the contesting defendants would expatiate and detail that
she is owing an Ambassador car. There is nothing to highlight that the
Ambassador car was purchased from out of her income as she is admittedly a
handicapped lady ever since her childhood and hence she could not have generated
income to purchase such a car. The Ambassador car, therefore should also be the
subject matter of partition.
19. The contesting defendants would submit that P.W.1 in one breathe would
state that her mother during her life time, apportioned the jewels and utensils
and handed them over to the respective parties; whereas during cross-
examination, she would admit that her mother died abruptly and that no jewels
were apportioned. It is therefore crystal clear that some family jewels were
given to the female members by the male members of the family. However, the
exact details are not readily available and during the final decree proceedings,
the facts relating to family jewels and silver articles shall be dealt with by
the trial Court after giving due opportunity to both sides to adduce evidence in
this regard. Accordingly, point No.(i) is decided.
Point No:(ii)
20. Ex.B.4 is described as a memorandum of family settlement by the
contesting defendants. Whereas the plaintiff would contend that there was no
oral partition at all and hence, in such a case, there could not be any
subsequent recording of memorandum of such alleged family settlement. The
learned Counsel for the contesting defendants would cite the decision in Kale v.
Dy. Director of Consolidation reported in AIR 1976 SUPREME COURT 807. Certain
excerpts from it would run thus:
“10. In other words to put the binding effect and the essentials of a
family settlement in a concretised form, the matter may be reduced into the form
of the following propositions:
“(1) The family settlement must be a bona fide one so as to resolve family
disputes and rival claims by a fair and equitable division or allotment of
properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by
fraud, coercion or undue influence;
(3) The family arrangement may be even oral in which case no registration
is necessary;
(4) It is well settled that registration would be necessary only if the
terms of the family arrangement are reduced into writing. Here also, a
distinction should be made between a document containing the terms and recitals
of a family arrangement made under the document and a mere memorandum prepared
after the family arrangement had already been made either for the purpose of the
record or for information of the court for making necessary mutation. In such a
case the memorandum itself does not create or extinguish any rights in immovable
properties and therefore does not fall within the mischief of Section 17(2) of
the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have
some antecedent title, claim or interest even a possible claim in the property
which is acknowledged by the parties to the settlement. Even if one of the
parties to the settlement has no title but under the arrangement the other party
relinquishes all its claims or titles in favour of such a person and
acknowledges him to be the sole owner, then the antecedent title must be assumed
and the family arrangement will be upheld and the courts will find no difficulty
in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve
legal claims are settled by a bona fide family arrangement which is fair and
equitable the family arrangement is final and binding on the parties to the
settlement.
11. The principles indicated above have been clearly enunciated and
adroitly adumbrated in a long course of decisions of this Court as also those of
the Privy Council and other High Courts, which we shall discuss presently.
…
24. This Court has also clearly laid down that a family arrangement being
binding on the parties to the arrangement clearly operates as an estoppel so as
to preclude any of the parties who have taken advantage under the agreement from
revoking or challenging the same. We shall deal with this point a little later
when we consider the arguments of the respondents on the question of the
estoppel. In the light of the decisions indicated above, we shall now try to
apply the principles laid down by this Court and the other courts to the facts
of the present case.”
21. The aforesaid extract from the precedent of the Honourable Apex Court
would clearly highlight as under what circumstances, the registration would be
required relating to any alleged family settlement recorded in writing, even
though the document is nomenclatured as family settlement. My above discussion
supra, would clearly spotlight that the brothers of the plaintiff came forward
with unreal facts and as such, bona fide was lacking in Ex.B.4. The important
ingredient which would keep the family settlement out of the necessity of
registration is that it should not contain the terms of family arrangement.
22. Here, a mere perusal of Ex.B.4, would show that it was written like a
fulfledged partition deed evidencing the alleged partition and it was intended
to be acted upon as evidence of the alleged partition and the contesting
defendants took pains to get allegedly the attestation of the Notary Public
also. In Ex.B.4, the parties are found clearly described; those five male
members were described as five separate parties as they only virtually got
partitioned as per Ex.B.4, the immovable properties without allotting to any
share to the female members who were all described under one caption as party
No.6 in Ex.B.4. The acquisition of the suit properties according to them and
about the income generated by them, have all been found set out including the
value of those respective items.
23. It is also found written in Ex.B.4 about the alleged handing over of
the movable properties, such as jewels to the female members in commensurate
with their shares and about their relinquishment of their rights over the
immovable properties and the rice mill business. As such, the said Ex.B.4
satisfies all the ingredients of a partition deed cum release deed.
24. If not Ex.B.4 should be treated as a partition deed cum release deed,
then whatelse could be treated as a regular partition deed cum release deed. It
is therefore crystal clear that as per the decision of the Honourable Apex Court
referred to supra, Ex.B.4, which embodied in itself all the details of a
partition cum release deed, cannot be termed as a mere memorandum of family
settlement. In fact, the parties intended to rely upon Ex.B.4 as an evidence of
the alleged unrealistic partition. The Honourable Apex Court also clearly
posited that such family settlements should not be taken as valid ones when they
are fraught with misconception of facts. Here, the contesting defendants
themselves would virtually admit that Ex.B.4 emerged due to misconception of
facts as discussed supra under point No.(i).
25. There was no co-parcernery or joint family property, but as per the
contesting defendants, they proceeded on the footing as though the suit
properties were joint family properties. As such, this aspect in addition to
other aspects, would indicate that Ex.B.4 cannot be termed and treated as a mere
unregisterable memorandum of family settlement.
26. The learned Counsel for the plaintiff would correctly and convincingly
would set out both in his oral arguments as well as his written argument, that
absolutely there is no iota or shred of evidence either oral or documentary to
prove precisely as on what date, such alleged oral partition took place among
the parties to the suit.
27. In the written arguments, the following relevant excerpts from the
evidence of D.W.1 are found set out correctly thus:
“tha;bkhHp FLk;g Vw;ghL ve;j Bjjpapy; Vw;gl;lJ vd;W bjhpahJ. tha;bkhHp
FLk;g Vw;ghl;od; BghJ rhl;rpfis Tg;gpltpy;iy.”
“thjpf;F jpUkzk; eilbgwtpy;iy. thjpf;F tPl;il bghWj;j mstpy; xU miw
xJf;fg;gl;lJ. 2tJ rBfhjuh; Kj;ijaht[f;F xJf;fg;gl;l miwapy; thjpf;F
xJf;fg;gl;lJ. FLk;g Vw;ghl;oYk; nJgw;wp Bgrg;gl;lJ. Mdhy; gp4y; vGjg;gltpy;iy.
FLk;g Vw;ghl;oy; gl;lh khw;Wtjw;Fk; iybrd;!; khw;Wtjw;Fk; thjp ifbaGj;J
Bghl;L juBtz;Lbkd;W Bgrg;gltpy;iy.
gp4y; Bjit Vw;gl;lhy; thjp ifbaGj;J BghLtJ gl;lh khw;WtJ rk;ge;jkhft[k;
chpik khw;WtJ rk;ge;jkhft[k; Bgrg;gl;lJ.
tha;bkhHp FLk;g Vw;ghl;oy; Bgrhj Bkw;fz;l tpraj;ij gp.4y; vGjpa[s;Bshk;.”
“vf;rpgpl;l gp-4 vA;fsJ tPl;oy; itj;Jjhd; vGjg;gl;L ifbaGj;Jg; Bghl;Blhk;.
vf;rpgpl;l gp-4 vGjg;gl;l BghJ 4 rBfhjhpfSk;, 3 rBfhjuh;fs; 3 gq;rhaj;jhh;fSk;
nUe;Bjhk;. g[Jtaypy; vA;fsJ tPl;oy; itj;J jhd; ifbaGj;J Bghl;Blhk;. fhiyapy;
ifbaGj;jpl;Blhk;. vdJ rBfhjuh;fspy; xUth; jhd; brd;W ifbaGj;J Behl;lhp
gg;spf;fplk; ifbaGj;J thA;fpdhh;. gq;rhaj;jhh;fs; brhy;yp jhd; Behl;lhp
gg;spf;fplk; ifbaGj;J thA;fpBdhk;. Behl;lhp gg;spf;fplk; ehd; bry;ytpy;iy.
vy;yh gpujpfspYk; ifbaGj;J thA;fg;gl;ljh my;yJ xU gpujpapy; ifbaGj;J
thA;fg;gl;ljh vd;W vdf;F bjhpahJ.”
“1-tJ mapl;l jsthl kw;Wk; fl;olA;fs; vdJ je;ijahh; vA;fs; rBfhjuh;fs; 5
Bgh;fs; bgahpYk; thA;fpa[s;shh;. mjw;fhd mry; fpiuag;gj;jpuk; gp.rh.M.2.
3tJ yf;fr; brhj;jhdJ vdJ je;ijahh; nlk; thA;fp tPL fl;odhh;.
9tJ mapl;l mokid vdJ je;ijahhpd; g{h;tPf brhj;J. njpy; vdJ je;ijahUf;Fk;
rpwpa je;ijahUf;Fk; ghjp ghjp ghj;jpak;. vdJ rpj;jg;ghtpw;Fs;s kPjp gA;if vdJ
jhahh; bgahpy; thA;fp bfhz;Blhk;. njpy; bghJ FLk;g tUkhdj;jpypUe;J 7 filfs;
fl;oa[s;Bshk;. me;j fl;olkhdJ vdJ jhahh; bgahpy; cs;sJ.”
28. Placing reliance on those extracts, the learned Counsel for the
plaintiff would contend that by no stretch of imagination, Ex.B.4 could be taken
as a memorandum of family settlement which requires no registration. The
alleged evidence of D.W.2, Abubakkar one of the Panchayatars, in no way
enlightens the position as he would simply depose as though one year prior to
the emergence of Ex.B.4, there had been an oral partition. Neither in the
written statement nor in Ex.B.4, such a fact is found set out. For the first
time, unconvincingly D.W.2 would simply quip as though one year prior to the
emergence of Ex.B.4, there had been such alleged oral partition. Even though,
D.W.2 would delineate as though those brothers agreed that the plaintiff could
stay in the house of the second defendant, yet Ex.B.4, is conspicuous of absence
of such version found set out. He would even go a step further and unbelievably
project an event as if he raised about such absence of clause in Ex.B.4, for
which the brothers had stated that it was not necessary to be incorporated in
Ex.B.4.
29. It is therefore crystal clear that D.W.2 as a partisan witness stoop
down to the level of blindly supporting the case of the male members by dishing
out pleas which the male members themselves have not set out in their defence.
30. Additionally, during cross-examination, D.W.2 has deposed that during
morning hours, Ex.B.4 and eight other documents had emerged and those documents
were signed in the house of the parties. An excerpt from the deposition of
D.W.2 during cross-examination is extracted hereunder for ready reference:
“9 gj;jpuA;fs; vGjg;gl;l ehd; 9 ifb aGj;Jf;fs; Bghl;Bld;. fhiyapy; jhd;
vGjg;gl;L ifbaGj;Jf;fs; Bghl;Bld;. cgathjpfs; tPl;oy; jhd; ifbaGj;Jg;
Bghlg;gl;lJ. BgUuhl;rp jiytUk; rhl;rpahf ifbaGj;J Bghl;lhh;. tPl;oy; itj;J
ifbaGj;J Bghl;L MgpRf;F bfhz;L brd;W rPy; itj;J bfhLj;jhh;. kw;bwhU rhl;rpa[k;
ifbaGj;J Bghl;L gpd;dh; mtuJ rPy; bfhz;L tur;brhy;yp rPy; itf;fg;gl;lJ. rhl;rp
ifbaGj;Jg; Bghl;l midtUk; bghpa kdpjh;fs; jhd;. thjp, gpujpthjpfspd; Bjitf;fhf
jhd; ehA;fs; rhl;rp ifbaGj;J Bghl;Blhk;. thjp gpujpthjpfspd; tPLfspd; mUfpy;
jhd; vA;fs; tPLk; cs;sjhy; tur;brhy;yp brd;W ifbaGj;J Bghl;Blhk;. ehA;fs; Kd;W
BgUk; jhd; rhl;rpfshf ifbaGj;J bra;Bjhk;. BtW ahUk; ny;iy. gp.rh.M.4 y; fz;l
brhj;Jf;fs; midj;Jk; bghJf;FLk;gr; brhj;Jf;fs; vd;W midtUk; xj;Jf;bfhz;ldh;.”
31. D.W.1 in his deposition would narrate that he did not know precisely
and accurately on what date, the said oral partition was effected. Had really
such an oral partition which obviously and indubitably should be considered by
any reasonable man as a significant one relating to enjoyment of family
properties, taken place, then one would not forget the date of such event. The
Notary Public was not examined, despite the plaintiff specifically denied her
purported signature in Ex.B.4. It is her contention that the brothers were in
the habit of getting her signatures in some blank papers also under the pretext
or the other. In view of P.W.1 having impugned and challenged, denied and
disputed, her purported signature in Ex.B.4, the Notary Public at least, should
have been examined to prove P.W.1’s purported signature in Ex.B.4, but the
contesting defendants withheld such evidence consciously to the risk of it
being disbelieved by the Court of justice.
32. Absolutely, there is no valid reason for non-examination of the Notary
Public. There is nothing to establish or demonstrate as to whether the Notary
Public actually visited the house of the parties where Ex.B.4 was allegedly
written or all the nine parties to Ex.B.4 and the three Panchayatars totally
twelve in number, went to the Office of the Notary Public and signed it in his
presence. In the register maintained by the Notary Public, there should have
been reference to it, with the signatures of all those who attended his office
and signed the document, if at all, all those twelve persons appeared before him
and signed Ex.B.4. Had the Notary Public been examined, the whole truth might
have come out during cross-examination. The Notary Public as per law is
expected to read out the contents of the documents which he is bound to attest,
to the signatories and thereupon, after they having signed before him, he should
attest it.
33. It is a very serious matter touching upon the alleged relinquishment
of the right of the plaintiff over the immovable properties and the contesting
defendants had allegedly chosen to obtain the signature of the Notary Public,
but they did not choose to examine him before the trial Court. Necessarily, in
this factual matrix, adverse inference should be drawn as against the contesting
defendants.
34. The learned Counsel for the plaintiff has correctly cited the maxim
“Omnia Praesumuntur contra spoliatorem. [Every presumption is made against a
wrongdoer.]”
35. Here, in the absence of any valid reason, the evidence of Notary
Public was withheld. The trial Court without considering these aspects simply
of its own accord, compared P.W.1’s impugned signature with that of her
signature in her pleadings. In paragraph No.13, the trial Court in a most
untenable manner resorted to such an approach to the purported signature of
P.W.1 in Ex.B.4. He without any basis simply states as though P.W.1’s impugned
signatures in Ex.B.4, tally with the signatures in her deposition and other
documents.
36. Such an approach by the trial Court is condemnable in unmistakeable
terms for the reason that he has not even chosen to highlight in what manner the
impugned signatures do tally with the admitted signatures. No doubt, Section 73
of the Indian Evidence Act enables the Court itself to compare the impugned
signature with the admitted signature. There should be ‘ante litum motum’
admitted signatures for the Court to compare those signatures with the impugned
signatures. There are decisions to the effect that in certain circumstances and
that too merely the Court can compare such sort of signatures, but there should
be reasoning found set out in support of the ultimate conclusion of the Court in
that regard. The similarities and dissimilarities between the two sets of
signatures should be detailed and delineated in accordance with the scientific
rules relating to examination of questioned documents. No carte blanche is
given to any Court to have subjective satisfaction relating to the disputed
signatures and simply declare in a cavalier fashion as though the impugned
signatures are tallying with the admitted signature of the party concerned.
37. Here, the trial Court’s attitude and approach in arriving at its
decision relating to the impugned signatures is far from satisfactory. Even
though the contesting defendants have not taken the assistance of the hand-
writing expert, yet they could have examined the Notary Public, but for the
reasons best known to themselves, they have not chosen to examine the Notary
Public. In such a case, the trial Court should not have given such finding in
favour of the contesting defendants in paragraph No.13 as well as in other
paragraphs of its judgment. In fact, his discussion demonstrates as though the
burden of proof is on the plaintiff to prove that the impugned signatures are
not that of her signatures. To say the least, the trial Court should not have
given such a finding on Ex.B.4 in the absence of clinching evidence. The trial
Court has also not distinguished and differentiated the legal concepts relating
to the joint family property and self-acquired property as highlighted in this
judgment supra under point No.(i).
38. It is therefore clear that the defendants have not proved the
genuineness of Ex.B.4, and it cannot be also termed as a memorandum of family
settlement. More over, no oral partition has been proved in this case.
39. The learned Counsel for the defendants cited the following decisions:
(i) Roshan Singh v. Zile Singh reported in AIR 1988 SUPREME COURT 881.
(ii) Swaminathan v. Koonavalli reported in 1994 L.W 764.
(iii)Meenambal v. Chockalinga Chettiar reported in 1978 M.L.J 398.
(iv) Duraipandian v. Tamiljothi reported in 2000(II) CTC 574.
40. The aforesaid four decisions are also on the same point which are in
no way different from the decision of the Honourable Apex Court in Kale v. Dy.
Director of Consolidation reported in AIR 1976 SUPREME COURT 807.
41. The learned Counsel for the plaintiff would cite the following
decisions:
(i) M.Venkataramana Hebbar v. M.Rajagopal Hebbar reported in (2007) 6
Supreme Court Cases 401. An excerpt from it, would run thus:
“11. … But there cannot be any doubt whatsoever that before the Court
rejects a claim of partition of joint family property, at the instance of all
the co-owners, it must be established that there had been a partition by metes
and bounds.”
(emphasis supplied)
(ii) Lakshmi Perumallu v. Krishnavenamma reported in 1965 M.L.J 105. An
excerpt from it, would run thus:
“No doubt a family arrangement which is for the benefit of the family
generally can be enforced in a Court of law. But before the Court would do so,
it must be shown that there was an occasion for effecting a family arrangement
and that it was acted upon.” (emphasis added)
(iii) Madanlal v. Yoga Bai reported in (2003) 5 Supreme Court Cases 89. An
excerpt from it, would run thus:
“5. The High Court has not believed the case of the defendants that there
had already been a settlement in respect of the properties in question. It at
least indicates that even according to the contesting defendants, some
settlement of the property amongst the members of the family was necessary which
had already taken place earlier i.e, to say existence of joint property cannot
be denied. Once their case of settlement in respect of the same property having
taken place earlier has been disbelieved, there remains hardly any ground to
resist the claim of the plaintiff for partition and share in the properties.”
(emphasis supplied)
42. The discussion supra and the precedents adverted to above, on the side
of the plaintiff, would make the point crystal clear that the defendants have
not proved the plea of oral partition and the alleged subsequent emergence of
Ex.B.4.
43. Various other decisions have been cited on the side of the defendants
which are not absolutely necessary in view of the aforesaid precedents of the
Honourable Apex Court referred to supra.
44. The learned Counsel for the contesting defendants has put forth his
argument as though the plaintiff accepted the settlement and in such a case, she
cannot approbate and reprobate in view of the decision in S.Nagarathinam v.
S.Balakathiresan reported in 1994-1-L.W.-133. An excerpt from it, would run
thus:
“7. … In Bhau Ram v. Baij Nath Singh AIR 1961 S.C. 1327, the Apex Court
has pointed out that a person who takes a benefit under an order de hors the
claim on merits cannot repudiate that part of the order which is detrimental to
him, because the order is to take effect in its entirety. The existence of a
choice between two rights is one of the conditions necessary for the
applicability of the doctrine of approbate and reprobate. While so, it is
evident that there is no merit in the contention of the appellant.”
45. This decision is not applicable to the facts and circumstances of the
case. Here, the plaintiff has not even been given with any portion of the
immovable property referred to in Ex.B.4, but for the first time, before the
Court in order to give an equitable colour as though the brothers were kind
towards the plaintiff who is their handicapped sister, they quite against the
reality of facts stated as though she was asked to live in the second
defendant’s house. Hence, in such a case, it cannot be held that there was any
reasonable or equitable partition and that it was the plaintiff who resailed
from it by turning turtle or having a volte face.
46. To the risk of repetition without being tautologous, I would like to
observe that absolutely there is no proof to show that there was oral partition
much less reasonable partition allotting any share to the handicapped plaintiff
and there is also no evidence to show that Ex.B.4 was signed by her and that
too, consciously after understanding the contents.
47. The mere execution of Ex.B.4 in the absence of examining the Notary
Public further worsened the case of the defendants. Accordingly, this point is
decided as against the defendants and in favour of the plaintiff.
48. The trial Court would simply for no good reason rejected the case of
the plaintiff, because other married sisters of the plaintiff are not
questioning Ex.B.4. It is obvious that the other sisters of the plaintiff are
married and they got settled in life and for various reasons, they might not
have agitated as against their brothers by claiming partition, but the Court
cannot expect the plaintiff also to follow the suit. No law says that when the
plaintiff is filing a suit necessarily her sisters also should support her
cause.
49. Here is the plaintiff who did not learn anything in the school and she
learnt only how to sign in English and she could not walk due to polio and when
she claims partition by taking the assistance of her power of attorney, one
Homeopathy Doctor, it is unjustifiable to raise accusative finger by her
brothers as though she is not entitled to any share in the properties.
50. In fact, the plea of the contesting defendants is that she is entitled
to the suit properties and that she only relinquished her rights. I am at loss
to understand the whys and wherefores of her alleged relinquishment of her
share. It is not known as to why and for what reason, she should have allegedly
relinquished her right. The preponderance of probabilities would govern the
adjudication in civil cases. No lady having head over shoulder will ever agree
to accept some jewels and relinquish disproportionately her huge share over the
valuable immovable properties including the two rice mills.
51. It is a trite proposition of law that the witnesses might lie, but
circumstances would not lie. It is therefore crystal clear that the male
members simply wanted to deprive their handicapped sister by taking undue
advantage of her position in life and for which the trial Court should not have
put seal and given recognition by dismissing the suit.
52. Even though, the contesting defendants contended that some of the suit
items were disposed of in favour of third parties, in view of the discussion
supra, such non-joinder of the parties would not be fatal to the case of the
plaintiff and during the final decree proceedings, the equity shall be worked
out to see that the third parties are not affected, to the extent possible by
allotting shares accordingly, without in any way causing detriment to the
plaintiff’s 1/9th share in all the suit properties except item No.4.
53. In view of the reasons set out supra, the plaintiff is entitled to
1/9th share in the suit properties and also in the income accrued thereon
except item No.4. The defendants are bound to render accounts as prayed for in
the plaint and the plot in Kottaiyur and the Ambassador car should also be
included in the partition. Relating to the sale of some of the items in favour
of the third parties by the brothers, equity shall be worked out during the
final decree proceedings. The trial Court is at liberty to decide based on the
evidence adduced relating to the accounts as well as the jewels and other
movable properties, during the final decree proceedings. Accordingly, the
preliminary decree is passed by allowing this appeal. However, the parties
shall bear their respective costs throughout.
rsb
To
The Subordinate Judge, Devakottai.