IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.09.2008 C O R A M THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.1221 of 1995 Minor Navaneetha Krishnan through his uncle and next friend Rajendran .. Appellant Vs. 1. T.Jayaprakash 2. M.S.Doraisami 3. T.Muthammal 4. T.Neelaveni 5. Chinnammal 6. S.Ramanathan 7. C.Gunaraj .. Respondents Appeal filed as against the judgment and decree dated 01.08.1995 passed by the learned Subordinate Judge, Udumalpet in O.S.No.473 of 1994. *****
For Appellant : Mr.M.V.Venkataseshan
For respondents : Mr.N.Damodaran
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J U D G M E N T
This appeal is focussed as against the judgment and decree dated 01.08.1995 passed by the learned Subordinate Judge, Udumalpet in O.S.No.473 of 1994. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court.
2. Quintessentially and briefly, the case of the plaintiff as stood exposited from the plaint could be set out thus:
The plaintiff is the son of the first defendant, who is the son of the second and the third defendants. The fifth defendant is the concubine of the second defendant. The fourth defendant is the mother of the plaintiff. The sixth and the seventh defendants are planning to purchase the suit properties. The suit properties are the joint family properties. As per partition deeds Exs.A1 and A2 dated 13.09.1958 and 05.06.1961, which emerged between the second defendant and his brother during the year 1958, the suit properties were allotted to the share of the second defendant. The first defendant is not an educated person well versed in worldly affairs and therefore, he was under the domination of the second defendant. The plaintiff being the son of the first defendant is entitled to 1/4th share in all the properties. The first and the second defendants are not looking after the family properly. They never care for the plaintiff and his mother, the fourth defendant. The plaintiff came to know that the second defendant brought about some transactions to the detriment of the plaintiff and they are trying to dispose of the family property. Hence, the suit for partition.
3. The pith and marrow of the written statement filed by the first defendant would run thus:
The second defendant unilaterally effected a partition taking undue advantage of the first defendant’s lack of worldly knowledge and experience. The second defendant was dominating the family members. The fifth defendant being the concubine of the second defendant is influencing him. The Panchayat was held and in that it was agreed that the first defendant should cultivate all the suit properties and maintain the second defendant. The first defendant therefore, has been in exclusive possession of all the suit properties ever since 1986, the year in which the said Panchayat took place. Accordingly, the first defendant concluded the written statement supporting the case of the plaintiff.
4. Per contra, denying and refuting, challenging and impugning the allegations/averments in the plaint, the second defendant filed the written statement, the warp and woof of it would run thus:
The fifth defendant is not the concubine of the second defendant. The first defendant, even before his marriage started behaving in an uncouth manner inimically. Whereupon, the partition emerged as per Ex.B1, whereby, the ‘B’ Scheduled properties thereunder were allotted to the share of the first defendant. Consequently, the first and the second defendants separately started enjoying their respective shares. In fact, the first defendant based on Ex.B1, alienated certain portions of his property to the third parties. Even after such alienation, still the first defendant is retaining an extent of 11 acres. As such, the plaintiff could claim partition as against the first defendant only relating to the property allotted to the first defendant. The suit filed by the minor with the help of his paternal uncle is untenable in law and that too, when his parents are very much alive. Ex.B1, the partition deed emerged long prior to the marriage of the first defendant and in such a case, the plaintiff cannot question the partition as contended in Ex.B1. In fact, the first defendant engineered the suit through his minor son the plaintiff. Accordingly, he prayed for the dismissal of the suit.
5. The third defendant filed the written statement in support of the plaintiff’s cause.
6. The fourth defendant filed the written statement supporting the prayer of the plaintiff. She also prayed for maintenance in her favour payable by the first defendant. D4 was awarded maintenance in a sum of Rs.400/- per month payable by D1.
7. The trial Court framed the relevant issues. During trial, on the side of the plaintiff P.W.1 was examined and Exs.A1 and Ex.A2 were marked. On the side of the respondents D.Ws.1 to 5 were examined and Exs.B1 to B28 were marked. Ultimately, the trial Court decreed the suit only to the extent of the properties which the first defendant obtained in the partition deed Ex.B1.
8. Animadverting upon the judgment and decree of the trial Court, the plaintiff filed the appeal on the following grounds among others, the gist and kernel of them would run thus:
Ignoring the factum of the suit properties being the ancestral properties and that the plaintiff is entitled to 1/4th share in it, the trial Court simply dismissed his prayer believing Ex.B1 the partition deed and Ex.B25 the sham and nominal document created by the second defendant. In Ex.B1, the first defendant did not sign at all. The first defendant came to know about Ex.B1 only at the time of Panchayat conducted during the year 1986. While the first defendant was only 19 years old, Ex.B1 emerged. The second defendant obtained Ex.B2 the Power of Attorney deed dated 14.07.1975 whereupon, he entered into an agreement of sale as per Ex.B3. Subsequently, under compulsion, the sale deed Ex.B22 was executed by the first defendant. Such transactions cannot be construed as one indicating that Ex.B1 partition was acted upon. These salient features have not been taken into account by the trial Court. Exs.B4 to B7 series and Exs.B16 to B21 would demonstrate that even after Ex.B1, the suit properties were enjoyed jointly, but the trial Court ignored them. Accordingly, the plaintiff prayed for setting aside the judgment and decree of the trial Court and for decreeing his original suit.
9. Heard both sides.
10. The points for consideration are as to:-
(a) Whether Ex.B1 the partition deed is a not genuine one brought about at the instance of the first defendant for serving his own interest and to the detriment of the first defendant and whether Ex.B1 could be challenged legally by the plaintiff?
(b) Whether there is any infirmity in the judgment and decree of the trial Court ?
POINT NO.1:
11. The unassailable and indubitable facts which are absolutely necessary and germane for the disposal of this appeal would run thus:
The relationship among the parties is an admitted one. However, the second defendant would contend that the fifth defendant is not his concubine. As per Exs.A1 and A2, the partition deeds emerged among the second defendant and his brothers, the suit properties herein were allotted to the second defendant’s share and accordingly, they could rightly be labelled as ancestral properties. When the first defendant was not married and aged about 19 years, Ex.B1 the partition deed dated 15.10.1972 emerged. Ex.B1 was signed only by the second defendant and the tenor of the recitals in it would expatiate that the second defendant expressed his desire for partition consequent upon the inimical attitude of the first defendant towards the second defendant and that it would not be proper for him to be in joint status with his son.
12. The learned counsel for the plaintiff would attack the validity of Ex.B1 on the ground that it was not a partition deed in view of the fact that the first defendant did not sign it. The core question arises as to whether the first and the second defendants agreed to carry out the contents of Ex.B1. It is a trite proposition of law that among the co-parceners, the partition could be oral. This vital point has not been taken into consideration on the side of the plaintiff. At this juncture, my mind is redolent with the following decisions:
(i) AIR 1966 SC 292 (Tek Bahadur Bhujil vs. Debi Singh Bhujil). An excerpt from it would run thus:
“10. There is nothing in the agreement, Exhibit 3, with respect to the property the mother was to keep with herself. It is however alleged in the plaint and deposed to by respondent No.1 that the agreement was arrived at with the consent of the mother and that she alone was to own and enjoy the house property in Shillong Cantonment bearing No.5 Jalupara Bazaar. The mother was therefore a party to the family arrangement. The fact that her statement was not invalidate the family arrangement which can be arrived at orally. We are therefore of opinion that the Courts below rightly held that there had been a family arrangement between the appellant and respondents Nos.1 and 2 on December 31,1942 and that the agreement Exhibit 3 is a record of that family arrangement.”
(ii) AIR 1965 Bombay 74 (Ramdas Chimna vs. Pralhad Deorao and others ). An excerpt from it would run thus:
“6. the question then arises whether it is open to the mother to relinquish her interest in the joint family properties orally when the joint family properties consist of immovable properties like the suit fields and the value of her share therein is more than Rs.100/-. Mr.Deshpande drew my attention to the case reported in Dattatraya govind v. Narayan Gangaram, AIR 1936 Nagpur 186. It was held by Vivian Bose J., in that case that “except in the case of partition among the members of a joint Hindu family, where the unities of possession, interest, title and time are complete and except in the case of entrance to a religious order involving complete renunciation of the world, no person can divest himself of interests which have once vested in him by a mere disclaimer. A title once vested can be divested only by a recognized conveyance or one of the other means allowed by law. It cannot pass by admission, relinquishment, or disclaimer when the law requires a deed”. This case does not lay down that relinquishment cannot be made orally. All that it says is that the title once vested can be divested only by a recongized conveyance or by one of the other means allowed by law. It further says that the title once vested cannot pass by relinquishment when the law requires a deed. What has to be seen is whether the law requires that relinquishment can only be made by a deed or by an instrument. Transfer of Property Act clearly recognizes oral transfers. Section 9 of the Act provides that “a transfer of property may be made without writing in every case in which a writing is not expressly required by law”. It follows, therefore, that an oral transfer of property is rule unless there is law which expressly requries that it should be made in writing. Transfer of Property Act contains various transfers where writing is necessary. Under S.54, a sale of tangible immovable property of the value of Rs.100/- or upwards, or of a reversion or other intangible thing is required to be nade only by a registered instrument. Under Sec.59, a writing is necessary in the case of a simple mortgage or in the case of all other mortgages except a mortgage by deposit of title-deeds where the principal sum secured is Rs.100/- or upwards. Under Sec.107, a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, is required to be made in writing. Under Sec.123, a gift of immovable property can only be made by a writing. Under Sec.130, all transfers of actionable claims have to be made by writing and, under Sec.118, all exchanges are subject to the same rules as are applicable to sales. Thus, when the law requires that there should be an instrument in writing and that instrument must be registered, the transfer can only be effected in that manner. But where no writing is required by the Transfer of Property Act or any other law, the transfer may be made orally. Mr.Deshpande is unable to point out any statute which requires that the relinquishment by the mother of her interest in the joint family property, when the property consists of immovable property and the value of the share therein exceeds Rs.100/-, can only be made in writing or by an instrument registered.”
13. I would like to extract an excerpt from the famous Treatise Mayne’s Hindu Law and Usage, 16th Edition, which would run thus:
“471. Father’s power to effect a partition.- A Hindu father under the Mitakshara law can, it has been held, effect a partition between himself and his sons without their consent and this is rested on the Mitakshara I, ii, 2. This text has been held to apply not only to property acquired by the father himself but also to ancestral property. The father has power to effect a division not only between himself and his sons but also between the sons inter se. So also it would seem that he has the power to make a division when the sons are dead and his grandsons alone are living.
The power extends not only to effecting a division by metes and bounds, but also to a division of status. In all these cases, the father’s power must be exercised bona fide and in accordance with law; the division must not be unfair and the allotments must be equal. However, even if the partition is unequal it cannot be questioned by the tax authorities. Under the Dayabhaga law, where the father gives property to one son and separates himself, the other sons will get the property on his death. But if the son merely lives separately but does not get any property, his right is not affected.
14. It is therefore crystal clear from the aforesaid decisions that partition of the co-parcenary property could be effected even orally. The Father qua kartha of the co-parcenary could effect division of co-parcenary property as spelt out above in the Treatise on Hindu Law. Hence in such a case, simply because the first defendant did not sign Ex.B1, it cannot be taken that Ex.B1 cannot be looked into for any purpose. No doubt, if Ex.B1 alone is available, in the absence of any other document, then certainly this Court has to look askance at it in view of the fact that the first defendant have not signed it. But on the other hand, the learned counsel for the first defendant would invite the attention of this Court to Ex.B22, the sale deed executed by the first defendant in favour of one Rajagopal, Ex.B23 one other sale deed executed by the first defendant and one other person in favour of one Mayilsamy and Ex.B24 dated 13.03.1974 the exchange deed emerged between Palanisamy and the first defendant herein, would develop his argument that the first defendant in fact acted upon Ex.B1 and in such a case, he cannot now veer round and take pleas quite antithetical to what he committed himself in black and white in the form of Exs.B22, B23 and B24. In fact, as per those deeds, some of the properties allotted in his favour under ‘B’ Schedule of Ex.B2 were alienated. Hence it is clear that the first defendant supinely and voluntarily accepted the partition. It is glaringly clear that the partition took place in the year 1972 and thereafter, during the years 1974, 1976 and 1987, D1 dealt with his share of the properties and alienated part of it also. Hence it is too late in the day on the part of the first defendant to simply dish out pleas as against the second defendant purely for the purpose of supporting the cause of the plaintiff.
15. The learned counsel for the second defendant also would convincingly and appositely drive home the point that the plaintiff instead of figuring himself as one of the plaintiffs along with his minor son, by representing him, did choose to engineer the suit with the help of the plaintiff’s uncle Rajendran, so as to project as though independently the minor was working out his remedy. It is a peculiar case in which both the father and the mother of the minor are alive and they are also parties in the suit as defendants 1 and 4. It cannot be countenanced that a boy of 8 years old during the year 1994 could have thought of filing the suit. P.W.1 Rajendran deposed on behalf of the minor by narrating that he is the minor’s maternal uncle and bringing up in view of his parents abandoned him, which fact has not been established by clinching evidence and as such P.W.1’s version remain only as his Ipsi dixit. There is no convincing explanation as to why D4 herself should not have represented the plaintiff atleast. In my opinion, there is considerable force in the argument of the learned counsel for the second defendant that this suit has been engineered by D1 only.
16. It is a fact that the first defendant was unmarried at the time of emergence of Ex.B1 during the year 1972 and long after that only during the year 1986, the plaintiff was born. No doubt, the co-parcener who subsequently takes birth in a co-parcenary family could challenge the genuineness of a partition, provided there are valid grounds. Here, the main ground of attack is based on the fact that the partition was unequal. The learned counsel for the plaintiff would argue that the second defendant retained the valuable properties, whereas, pococurante and insignificant properties were given to the first defendant. The learned counsel for the second defendant would correctly draw the attention of this Court to the very specification in the Ex.B1 itself which would connote and denote, explain and expound that the ‘A’ scheduled property which the second defendant retained was worth only Rs.13,842/-, whereas, the ‘B’ scheduled property allotted to the first defendant was worth Rs.28,186/-. Even extent wise also, the area allotted in favour of the first defendant was more and it is quite obvious from the perusal of Ex.B.1. The lower Court also has correctly adverted to these facts and held that the partition cannot be stated to be unequal. In fact, the second defendant was allotted 21 acres of land and the first defendant allotted 24 acres of land. In such a case, absolutely there is no exiguous or miniscule extent of evidence to buttress and fortify the contention of the plaintiff that the partition was unequal and that it was not acted upon.
17. The learned counsel for the plaintiff would contend that Exs.B4 to B21 would evidence that Ex.B1 was not acted upon as the tax receipts and electricity charges are in the name of the second defendant only. I am of the considered opinion that merely because those exhibits stand in the name of the second defendant, the Court cannot jump to the conclusion that Ex.B1 was not acted upon and that too in the light of the Exs.B22, B23 and B24 as already been referred to and discussed supra.
18. The learned counsel for the plaintiff would cite the decision of this Court rendered by me on 30.07.2008 in A.S.No.350 of 1996 so as to support his proposition. But a mere perusal of the cited decision would highlight and spotlight pellucidly that the facts involved in that decision are entirely different from the case at hand. The cited decision emerged relating to a suit filed by one lady who attained majority for partition in her father’s property and considering that the brother of the said lady who at the relevant time being the ‘Kartha’ got release of her share while she was minor by citing her mother as guardian, the partition was ordered in her favour setting aside the judgment and decree of the lower Court. But here the facts are entirely different and it is quite obvious that as on the date of emergence of Ex.B1, absolutely there is no legal embargo for effecting such partition and in such a case, no more elaboration is required. In view of the same, this point is decided as against the appellant.
POINT NO.2:
19. In view of the ratiocination adhered to above in deciding the above said issue, I could see no infirmity in the judgment and decree passed by the trial Court and accordingly, the same are confirmed and the appeal is dismissed. However, there shall be no order as to costs.
gms
To
The Subordinate Judge,
Udumalpet