IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 09.02.2010 CORAM THE HON'BLE Ms.JUSTICE R.MALA S.A.No. 2090 of 2000 D.Sivagnanam ... Appellant vs. 1.Thirugnanaprakasham 2.Rajendran 3.Thirukulandai ... Respondents Second Appeal filed under Section 100 of CPC against the judgment and decree dated 14.12.1999 made in A.S.No.149/1998 on the file of the Principal Subordinate Judge, Mayiladuthurai, reversing the judgment and decree dated 28.10.1998 made in O.S.No. 387/1995 on the file of District Munsif Court, Sirkali. For Appellant ... Mr.S.Ramamurthi For Respondents ... Mr.S.Sounthar for R1 and R2 No Appearance for R3 J U D G M E N T
The Second Appeal is filed against the judgment and decree dated 14.12.1999 made in A.S.No.149/1998 on the file of the Principal Subordinate Judge, Mayiladuthurai, reversing the judgment and decree dated 28.10.1998 made in O.S.No. 387/1995 on the file of District Munsif Court, Sirkali.
2. The averments in the plaint are as follows:-
(i) The suit properties were owned by the plaintiff’s father Duraiappa Padayachi and his brother Ayyadurai Padayachi. They were enjoyed in an undivided state by the joint family of Duraiappa Padayachi and his brother Ayyadurai Padayachi.
(ii) The plaintiff is the eldest son of Duraiappa Padayachi.The defendants 1 and 2 are the plaintiff’s brother. The third defendant is the son of Ayyadurai Padayachi.
(iii) After the death of Duraiappa Padayachi, the joint family properties were divided under a family arrangement between the plaintiff and defendants 1 and 2 and the plaintiff’s mother since deceased Thangappa Ayal, in respect of the wet lands of the family of Duraiappa Padayachi on 09.10.1977. ‘A’ schedule property mentioned in Karai Olai were allotted to the plaintiff. He is in possession and enjoyment of the same from 1977. So, he prescribed title by adverse possession.
(iv) In respect of dry lands, there was another partition taken place on 14.06.1978 and by which, the plaintiff became the absolute owner of ‘B’ schedule property. Each party was given a copy of Karai Olai. He is in exclusive possession from 1978, ousting other sharers and adverse to the interest of others and to their knowledge. Hence, he prescribed title by adverse possession.
(v) The plaintiff issued a notice to the defendants on 22.05.1981 to effect the division of the house and partition deed to be executed in a stamp paper and for registration. A reply has been sent by the first defendant.
(vi) The defendants have no right over the property. Now, they attempted to interfere with the possession. Hence, the plaintiff come forward with the suit for injunction restraining the defendants from interfering with the peaceful possession and enjoyment.
3. The gist and essence of written statement filed by the second defendant, adopted by the first defendant, are as follows:-
(i) The plaintiff is not in possession of ‘A’ schedule property. No cause of action for the suit. The plaintiff and defendants 1 and 2’s father Duraiappa Padayachi has executed a settlement deed in favour of plaintiff in the year 1959 and settled 10 acres of land. Likewise, in 1972, he has settled 10 acres of land to the defendants 1 and 2. He also settled 10 acres to his brother Ayyadurai Padayachi. The settlement deeds have been duly executed, validly accepted and acted upon. They are in possession in pursuance of the settlement deeds.
(ii) In ‘A’ Schedule property – Item Nos. 19/2, 19/6, 60/7, 84/1, 86/1 and 62/3 – 3 acres 74 cents were allotted to the first defendant in the settlement deed. It is in his possession and enjoyment. Likewise, in ‘A’ Schedule property Item Nos. 86/2 and 85/4 – 2 acres 41 cents has been settled by father Duraiappa Padayachi in favour of the second defendant. The plaintiff wantonly suppressed the same and come forward with the false suit.
(iii) The plaintiff has not taken possession in pursuance of the partition list dated 09.10.1977 and hence, it is not valid in law. On 17.07.1989, a panchayat was convened, in which, both the parties accepted to take the property as mentioned in the settlement deed and in respect of house also, the property has been divided. It was decided to execute a partition deed and got it registered. But the plaintiff has wantonly suppressed all the material facts and come forward with the false suit.
(iv) The plaintiff’s father Duraiappa Padayachi filed O.S.No. 526/1961 against the plaintiff and his brother Ayyadurai Padayachi for injunction and obtained an order of injunction, which shows that the plaintiff is not in possession of the suit properties. The plaintiff is never in possession of the suit properties. The defendants alone are in possession of the suit properties and they are enjoying the suit properties by raising the paddy and black gram. Hence, he prayed for the dismissal of the suit.
4. The trial court after considering the averments both in the plaint and written statement had framed four issues and considering the oral evidence of PWs 1 and 2, DWs 1 to 4 and Exs.A1 to A15 and Exs.B1 to B23, granted a decree of injunction. Against that, the defendants have preferred an appeal. The first appellate court after considering the arguments of both counsels framed three points for determination and setting aside the decree and judgment passed by the trial court, allowed the appeal and dismissed the suit filed by the plaintiff. Against that, the present second appeal has been preferred by the plaintiff.
5. At the time of admission of the second appeal, the following substantial questions of law were framed for consideration:-
i.Whether the lower appellate court erred in law in holding that Exs.A14 and A15 are not admissible in evidence due to want of registration of the said documents.
ii.Whether the lower appellate Court erred in law in failing to hold that Exs.A4 and A5 record a family arrangement and as such they need not be registered.
iii.Whether the lower appellate Court erred in law in failing o hold that in view of the admission in Exs.A2 and A3 the burden of proving that as to when the suit properties have come to the possession of respondents 1 and 2 is on the respondents 1 and 2 and that they have failed to prove the same.
6. Substantial Question of Law No. i and ii :- The appellant as plaintiff filed a suit for injunction stating that ‘A’ schedule property is the wet land and it was allotted to him in the partition list-Ex.A14 dated 09.10.1977. ‘B’ schedule property has been allotted to him in the partition list-Ex.A15 dated 14.06.1978. From that date onwards, he is in possession and enjoyment of the suit properties. He is in open, long and continuous possession, so, he prescribed title by adverse possession. Since, the defendants attempted to interfere with his possession, he came forward with the suit and he prayed for an injunction. The respondents/defendants resisted the suit stating that the suit properties are purchased by the defendants 1 and 2’s father Duraiappa Padayachi and his brother Ayyadurai Padayachi and during the life time of Duraiappa Padayachi, he executed settlement deeds in favour of his sons viz., plaintiff and defendants 1 and 2. In pursuance of the settlement deeds, they are in possession. The alleged partition lists-Exs. A14 and A15 are not admissible in evidence. Hence, they prayed for the dismissal of the suit. The trial court after framing necessary issues and considering the oral and documentary evidence granted a decree of injunction. Against that, the defendants preferred an appeal. The first appellate court observing that Exs.A14 and A15 are admissible in evidence, set aside the decree and judgment passed by the trial court and allowed the appeal and dismissed the suit filed by the plaintiff. Against that, the plaintiff has come forward with the present second appeal.
7. The learned counsel appearing for the appellant would contend that Duraiappa Padayachi is the owner of the suit properties. He had three sons, viz., (i) D.Sivagnanam/plaintiff; (ii) Thirugnanaprakasam/first defendant; and (iii) Rajendran/second defendant. The first defendant/first respondent is employed as a Teacher in Panchayat Union School and the second defendant/second respondent is a Doctor in Government Hospital. So, the plaintiff/appellant is in possession and enjoyment of the suit properties. Subsequently, the properties are divided as per Exs.A14 and A15. It is only a Karai olai. It need not be registered. But the first appellate court has come to the conclusion that the documents are liable to be registered, which is against law. In pursuance of partition, he was in possession and enjoyment of ‘A’ and ‘B’ Schedule properties. Now, the respondents/defendants have attempted to interfere with the possession. Hence, he come forward with the suit. The first appellate court is wrong in rejecting Exs.A14 and A15. To substantiate his claim, he relied upon the decisions reported in AIR 1974 Madras 239, C.S.Kumaraswami Gounder vs. Aravagiri Gounder and another and 1991 LW 156, Booraswami vs. Rajakannu and others and submits that Exs.A14 and A15 are admissible in evidence.
8. Per contra, the learned counsel for the respondents would contend that the suit properties have been settled by Duraiappa Padayach. So ‘A’ and ‘B’ schedule properties are not the absolute property of the plaintiff/appellant herein. Exs.A14 and A15 are not admissible in evidence. It is engrossed only in white paper. So, it is no admissible even for the collateral purpose. To substantiate his submision, he relied upon the decision reported in 2001 (1) CTC 112, A.C.Lakshmipathy and another vs. A.M.Chakrapani Reddiar and five others. The learned counsel further submits that a Panchayat has been convened and in the Panchayat, Ex.B6-Moochalika has been written. In that, it was stated that all the parties must enjoy the property settled to them in the settlement deed. Moreover, the patta and adangal stands in the name of the respondents and that has been considered by the first appellate court, so, the judgment and decree does not warrant any interference. Hence, he prayed for the dismissal of the second appeal.
9. It is a simple suit for bare injunction stating that as per Exs.A14 and A15, ‘A’ and ‘B’ schedule properties have been allotted to the plaintiff/appellant herein and in pursuance of that, he is in possession. Now, the respondents/defendants attempted to interfere with the possession. Hence, he prayed for injunction.
10. At this juncture, it is appropriate to consider as to, whether the partition lists-Exs.A14 and A15, alleged to be executed on 09.10.1977 and 14.06.1978, are admissible in evidence.
11. While perusing Exs.A14 and Ex.A15, it is seen that it is written in white paper and it is not engrossed in the stamp paper. At this juncture, it is appropriate to incorporate Section 17 of the Registration Act, 1908 and Section 35 of Stamps Act. Section 17 of the Registration Act, 1908, reads as under.
“17. Documents of which registration is compulsory.– (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No.XVI of 1864, or the Indian Registration Act, 1866 (XX of 1866), or the Registration Act, 1871 (VIII of 1871), or the Indian Registration Act, 1877 (III of 1877), or this Act came or comes into force, namely:
(a)instruments of gift of immovable property;
(b)other non-testamentary instruments which purport or operate to create, declare assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.
(c)Non-testamentary instruments, which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation extinction of any such right, title or interest ;
(d)leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; and
(e)non-testamentary instruments transferring or assigning any decree or order of a court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:
Provided that the [State Government] may, by order published in the [Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.
[(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of Sec. 53A of the Transfer of Property Act, 1882 (4 of 1882), shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001, and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.]
(2) Nothing in Cls. (b) and (c) of sub-section (1) applies to — (i) any composition deed; or
(ii)any instrument relating to shares in a Joint Stock Company, notwithstanding that the assets of such company consist in whole or in part of immovable property; or
(iii) any debenture issued by any such company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such company; or
(v) Sec. 3(b) vide the Gazette of India Extraordinary, Part II, Sec.1 dated 24th September, 2001 for the words “any document”. [any document other than the documents specified in sub-section (1A) and] not itself creating, declaring, assigning limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court, [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter or the suit or proceeding]; or
(vii) any grant of immovable property by the [Government]; or
(viii) any instrument of partition made by a Revenue Officer; or
(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, (XXVI of 1871), or the Land Improvement Loans Act, 1883 (XIX of 1883); or
(x) any order granting a loan under the Agriculturists Loans Act, 1884 (XII of 1884); or instrument for securing the repayment of a loan made under this Act; or
(x-a) any order made under the Charitable Endowments Act, 1890 (VI of 1890), vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or]
(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any purporting sold by public auction by a Civil or Revenue Officer.
[Explanation.– A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.]
(3) Authorities to adopt a son, executed after the first day of January, 1872, and not conferred by a will, shall also be registered.”
Section 35 of The Indian Stamp Act, reads as under:-
“S.35. Instruments not duly stamped inadmissible in evidence, etc.– No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:
Provided that —
(a) any such instrument not being an instrument chargeable with a duty not exceeding ten naye paise only, or a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;
(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;
(c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;
(d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898;
(d) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act.”
12. Exs.A14 and A15-partition lists are written in white paper. In Ex.A14, partition list, it was stated as under:-
“…mtuth;fSf;F tplg;gl;l brhj;Jf;fis mtuth;fns neupilahf rhFgo bra;J mDgtpj;Jf; bfhz;Lk; rh;f;fhh; fp!;jpa[k; brYj;jp tu ntz;oaJ/ ,jdoapy; fz;l D bcwoa{y; brhj;Jf;fis ek; jhahh; j’;fg;gh Mahs; mth;fs; $Ptjdryiwapy; ghh;jPdk; bra;a; ghj;jpakd;dpapy; mtu;fns khjy; bra;J mDgtpj;Jf; bfhz;L mtu;fSila $Ptjirf;Fg; gpwF mtUila ,isa Fkhuh; uhn$e;jpud; ru;tRje;jpu ghj;a’;fSld; mDgtpj;Jf; bfhs;s ntz;oaJ///”
So, while perusing Ex.A14, it is seen that a right has been conferred under this document. So, in such circumstances, the document has to be compulsorily registered.
13. At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the respondents reported in 2001 (1) CTC 112, A.C.Lakshmipathy and another vs. A.M.Chakrapani Reddiar and five others, wherein this Court has held as under:-
“42. To sum up the legal position
I. A family arrangement can be made orally.
II.If made orally, there being no document, no question of registration arises.
III.If the family arrangement is reduced to writing and it purports to create, declare, assign, limit or extinguish any right, title or interest of any immovable property, it must be properly stamped and duly registered as per the Indian Stamp Act and Indian Registration Act.
IV.Whether the terms have been reduced to the form of a document is a question of fact in each case to be determined upon a consideration of the nature of phraseology of the writing and the circumstances in which and the purpose with which it was written.
V.However, a document in the nature of a Memorandum, evidencing a family arrangement already entered into and had been prepared as a record of what had been agreed upon, in order that there are no hazy notions in future, it need not be stamped or registered.
VI.Only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring fur future what right in what properties the parties possess.
VII.If the family arrangement is stamped but not registered, it can be looked into for collateral purposes.
VIII.Whether the purpose is a collateral purpose, is a question of fact depends upon facts and circumstances of each case. A person can not claim a right or title to a property under the said document, which is being looked into only for collateral purposes.
IX.A family arrangement which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar in section-35 of the Indian Stamp Act.
On a reading of the decision cited supra, is seen that the family arrangement has been executed with intention that document itself constitute sole repository as document or title. The family arrangement is neither stamped nor registered. So, it is held that the family arrangement cannot be looked into as it is unstamped and unregistered.
14. Here also, on perusal of Exs.A14 and A15, it is seen that a title has been conferred in respect of the suit properties to each sharers. In such circumstances, the documents ought to have been engrossed in stamp paper and registered. Exs.A14 and A15 are unstamped and unregistered documents and therefore, it is not admissible in evidence. Even it cannot be looked into for collateral purpose.
15. At this juncture, the learned counsel for the appellant relied upon the decision reported in AIR 1974 Madras 239, C.S.Kumaraswami Gounder v. Aravagiri Gounder and another, and submits that even an unregistered document is admissible in evidence for collateral purpose. In the said decision, this Court has held as under:-
“10. A partition in a joint Hindu family may denote either of two things: (i) a division in status as between the members of the coparcenary; and (ii) an actual division of the properties belonging to the joint family by metes and bounds as between the different members of the family. The expression ‘partition’ has been used indiscriminately to denote either one or the other of the two things. Once a partition of the properties by metes and bounds has taken place, naturally there will be consequential transaction of the parties, to whom the properties have been allotted separately, taking possession of these properties. Thus it will be seen that in the case of an express, completed partition there will be three different stages (i) the stage of effecting a division in status, (ii) the stage of each party taking possession of the properties allotted to his share. As far as these three stages are concerned, it is conceded, having regard to the decided cases, that each and every one of them can be effected orally without there being a document. Even if there is a written document in respect of the first and third stages, then also it is conceded that the document does not require registration, because neither the division in status nor the actual taking possession of the properties can be said to create, declare, assign, limit or extinguish any right, title or interest to or in immovable property. Therefore, it is only with regard to the second stage,namely, division of properties in different shares and allotment thereof to the various members, if the same is reduced to writing, it requires registration under Section 17(1)(b) of the Act. Under the Hindu law it is well settled that, severance in status can take place either by the unilateral declaration of one of the coparceners or by agreement between all the coparceners. Where severance is effected as above, it is not a transaction which requires any writing and even if it is effected by means of any instrument in writing, that will not fall within the scope of Section 17(1)(b) of the Act. Similar will be the position with regard to taking possession of the properties. From the very nature of the case, once a division of the properties by metes and bounds has taken lace as between the members of a coparcenary and the parties take possession as exclusive owners of the respective items allotted tothem, such a partition assumes a division in status having taken place between the parties. Therefore, though an unregistered partition deed cannot be admitted. In evidence to prove the terms of the partition, it can certainly be admitted in evidence for proving the division in status and the fact of partition, as pointed out by several decisions based on the judgement of the Privy Council in Rajangam Ayyar v. Rajangam Ayyar, 50 Ind App 134: (AIR 1922 PC 266). Similarly, taking possession of the shares allotted to each one of the parties at the partition will be a purpose collateral to the purpose of partition and such taking possession not creating, declaring, assigning, limiting or extinguishing any right, title or interest to or in immovable property, will not require registration, and therefore an unregistered deed of partition can be used for the collateral purpose, namely, for proving the nature and character of the possession of the respective items of properties in the hands of the members of the coparcenary….”
As per the decision cited supra, an unregistered deed of partition is not admissible in evidence for proving the terms of the partition as well as the items of the properties that were allotted to the appellant.
16. The learned counsel for the appellant also relied upon another decision reported in 1991 LW 156, Booraswami vs. Rajakannau, wherein this Court has held that an unregistered document can be looked into for the purpose of finding out whether there has been any division in status.
17. Exs.A14 and A15 are unstamped and unregistered document and those documents were relied as evidence in a suit for bare injunction. The learned counsel for the appellant relied upon another decision reported in 1991 LW 156, Booraswami vs. Rajakannau, wherein this Court in its judgment has drawn to the decision of a Privy Council reported in Ramarattan v. Permanand, AIR 1946 P.C. 51, wherein it has been held that Section 35 prohibits the document from being looked at even for any collateral purpose. This is not a case of an unstamped instrument attracting the operation of Section 35 because the document, as already pointed out, has been stamped. This Court in the decision cited supra, has referred to Privy Council decision and has held as under:-
“16. Our attention was drawn to a decision of the Privy Council in Ramarattan v. Permanand, AIR 1946 P.C. 51. That was also a case in which an unstamped and unregistered document was relied on as evidence in a suit for partition of the properties. The Privy Council held that S. 35 prohibited the document from being looked at even for any collateral purpose. This is not a case of an unstamped instrument attracting the operation of S.35,because the document, as already pointed out, has been stamped. In the case before the Privy Council, the schedule to the unstamped document was the basis of the declaration that the plaintiff was entitled to a half share in the properties described in schedules. Regarding this aspect the Privy Council pointed out that in doing so, the document was not actually received as evidence and that the schedules were merely employed as a convenient means of identifying the properties admitted to be joint. It is therefore necessary for our purpose to go further into this decision of the Privy Council, as the operation of S. 35 of the Indian Stamp Act is not attracted.
18. Here, considering the Privy Council decision, the documents Exs.A14 and A5 are unstamped and unregistered and therefore, it cannot be used even for collateral purpose as per the decision reported in 2001 (1) CTC 112, A.C.Lakshmipathy and another vs. A.M.Chakrapani Reddiar and five others and so, I am of the opinion that the first appellate court in paragraph 12 of its judgment has come to the correct conclusion that Exs.A14 and A15 are family arrangement and it is not admissible in evidence even for collateral purpose. The first appellate court is correct in arriving at the conclusion that Exs.A14 and A15 are inadmissible in evidence due to want of engrossed in stamped paper and registration. Substantial Question of Law Nos. i and ii are answered accordingly.
19.Substantial Question of Law No.iii:- The learned counsel for the appellant would contend that the appellant herein has issued a notice on 22.05.1981 under Ex.A1 demanding partition of the other house property. After receipt of the same, the first defendant-Thirugnanaprakasam issued the reply notice under Ex.A2 dated 03.06.1981 and the second defendant-Rajendran issued the reply notice Ex.A3 dated 5.6.1981, admitting and accepting Exs.A14 and A15, so, now they are estopped from questioning the same.
20. At this juncture it is appropriate to consider the recitals in Exs.A1 to A3. In Ex.A1-Notice, dated 22.05.1981, it was stated as under:-
“7. Therefore you are hereby called upon to have an amicable division of the Sirkali house and the two houses in Sonnianallur in R.S.No. 37/10 within a week from the date of receipt of this notice and have a partition deed executed in respect of the same and the properties allotted as per partition lists dated 09.10.1977 and 14.06.1978 and in the possession and enjoyment of the respective parties, failing which take notice appropriate steps will be taken for division of the house properties through a court of law and for other reliefs which it is hoped you will avoid.”
21. Ex.A2-Reply Notice, dated 03.06.1981 has been issued by the first defendant, the brother of the appellant/plaintiff. In that, he has stated as under:-
“1….it is true the partition agreement was made and I was abided by the same. I have approached several times for arranging a partition for the remaining dry lands, houses and garden etc….
2. Sri Sivagnanam has been enjoying till today the entire properties which were divided in the second partition in the year 1978. Hence I insist upon that necessary compensation should be paid to me for not giving me possession of the said divided property as per the signed agreement. This is a must before dividing the other properties, for which I am prepared.
22. Ex.A3 is the Reply Notice, dated 5.6.1981, issued by the second defendant. In that, in paragraph 3, he has admitted that there was a partition and stated as follows:-
“3. My client admits that there was a partition as stated in para 2 of your notice, and my client has taken possession of the wet lands.”
But, in paragraph 7, he has stated as follows:-
“7. My client states that there are other shares such as sisters and they were not included in the partition. My client also states that No.5 in your notice is not a share and he is not entitled to any properties. You have been managing the properties since 1973, and you have to account for the same. You have also purchased properties in your name from out of the income of the joint family properties. Besides movables are to be partitioned. In view of the above facts there is no valid partition. My client calls upon you to give him his legitimate share of the properties within a week, my client is ready to execute and register the partition deed if the partition is done properly”.
23. A reading of Exs.A2 and A3-Reply Notices, dated 03.06.1981 and 5.6.1981 have proved that the sharers have not taken the possession of the property. But, it is stated a deed to be executed and registered. But admittedly, no document has been executed and registered evidencing partition. Ex.B6 came into existence on 17.07.1989. In Ex.B6, it was stated that the house property has been divided amongst themselves. It is only a agreement. It is not a partition deed and therefore, it will not create any estoppel. So, at this juncture, it is appropriate to consider the decision reported in 2001 (1) CTC 112, A.C.Lakshmipathy and another vs. A.M.Chakrapani Reddiar and five others, wherein this Court has held as under:-
“39. The next question is whether in view of the fact that the appellant himself produced the document before Court along with the plaint, is it be taken that the appellant cannot object to for the admission of the document, so also to look into the contents of the document. It may be straight away said that the settled legal position is that if acting on the admission of execution, the document is admitted and looked into then it would amount to acting upon the unstamped document which will be violative of Section-35 of Indian Stamp Act. Reference can also be made to the following rulings:-
(i) Raghava Reddi v. Venkata Reddi, 1954 M.L.J. 131; (ii) Madho Rao v. Mukund Ram, AIR 1955 SC 481; (iii) Mallappa v. Naga, AIR 1919 Mad. 833; (iv) Ram Rattan v. Parma Nand, AIR 1946 P.C. 51; (v) Achutaraman v. Jagannadham, AIR 1933 Mad. 117
40. The next question may arise whether the rule of estoppel will apply and that inasmuch as the appellant was a signatory to the document in question, can it be said that it would be binding on him as it would operate as an estoppel. Such a plea of estoppel can be applied only were the defect in the document is in the nature of formal defect or legal lacunae. AIR 1976 SC 807. Say for instance, a case where the document is stamped but not registered. But, however in a case where the document is not even stamped as required under the Indian Stamp Act, the defect cannot be said to be the formal legal defect or merely a lacuna, as otherwise, it would go against the very provisions of the Indian Stamp Act.
41. We hold that the document in question is being an unstamped and unregistered, the same cannot be looked into for any purpose. Similarly, oral evidence cannot be let in about the contents of the said document.”
24. Merely because, the appellant/plaintiff is a signatory in Exs.A14 and A15-partition lists and the respondents/defendants accepted it in Exs.A2 and A3-reply notices, that would not estop from questioning Exs.A14 and A15, since, it is unstamped and unregistered documents. It is pertinent to note that the father of the appellant herein/plaintiff has filed a suit in O.S.No. 426 of 1961 against the appellant/plaintiff-Sivagnanam and his brother Ayyadurai Padayachi, stating that he already executed a settlement deed in favour of his son Sivagnanam and that he obtained a decree of injunction. Even though, the plaintiff/appellant herein has stated that he is in possession and enjoyment of the suit properties, but no revenue record has been filed before the Court.
25. Per contra, the respondents herein/defendants have filed Adangal and Chitta- Exs.P11 to P22. So, which would clearly prove that on the date of filing the suit, the appellant/plaintiff is not in possession of the suit properties. Hence, the first appellate court has considered this aspect in a proper perspective and come to the conclusion that the appellant/plaintiff is not entitled to injunction as prayed for in the plaint. Substantial Question of Law No. iii is answered accordingly.
26. For the foregoing reasons, I do not find any infirmity or illegality in the decree and judgment passed by the first appellate court and hence, it is liable to be confirmed. The second appeal is liable to be dismissed.
27. In fine,
i.the second appeal is dismissed.
ii.The decree and judgment passed by first appellate court is hereby confirmed.
iii.No costs.
paa 09.02.2010
Index: Yes
Internet: Yes
To
1.The Principal Subordinate Judge,
Mayiladuthurai.
2.The District Munsif Court,
Sirkali.
R.MALA,J
paa
Pre-Delivery Judgment in
S.A.No.2090/2000
09.02.2010