IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30-10-2009
Coram
THE HONOURABLE MR. JUSTICE B. RAJENDRAN
A.S. No. 1324 of 1989
1. Sakunthala Ammal
2. Vijayalakshmi
3. Vijayakumar
4. Manjula
5. Jayanthi .. Appellants
Versus
1. Kannan (died)
2. Rajagopal (died)
3. Navaneethamma;
4. Ethiraj
5. Shanmugam
6. Parvathiammal
7. Rukmani
8. Vendabai
9. Anjala
(RR6 to 9 were brought on record
as legal heirs of the deceased first
respondent vide Order dated 16.12.2005
in CMP No. 10586 to 10588 of 2000)
10. Sambasivam
11. Kalaivani
12. R. Punniyakodi
13. Padmavathy
(RR10 to 13 were brought on record as
legal heirs of the deceased second
respondent vide order dated 10.12.2007
made in CMP Nos. 2153 to 2155 of 2007) .. Respondents
Appeal filed under Section 96 of Code of Civil Procedure against the Judgment and decree dated 23.03.1989 made in O.S. No. 162 of 1982 on the file of Subordinate Judge, Tiruppatur, North Arcot District.
For Appellants : Mr. Viswanathan
For Respondents : Mr. T.R. Rajaraman
JUDGMENT
The above appeal suit is filed challenging the decree and judgment dated 23.03.1989 made in O.S. No. 162 of 1982 on the file of Subordinate Judge, Tiruppatur, North Arcot District.
2. The first Plaintiff namely Muniraj has instituted the above suit in O.S. No. 162 of 1982 on the file of Subordinate Judge, Tirupathur claiming partition and separate possession as against the defendants 1 to 3. Pending suit, the first Plaintiff died and his legal representatives were impleaded as Plaintiffs 2 to 5. Similarly, the first defendant Govindan died and his legal heirs were brought on record as defendants 4 to 6 in the suit.
3. Pending first appeal, the second defendant/first respondent herein died, hence, his legal representatives were brought on record as respondents 6 to 9 in the first appeal. Similarly, the third defendant/second respondent herein also died and his legal heirs were brought on record as respondents 10 to 13 in the first appeal.
4. For the sake of convenience, the parties shall be referred to as they were arrayed in the suit before the trial court.
5. The case of the plaintiff is that the first plaintiff Muniraj is the son of Thoppa and the defendants 1 to 3 are sons of Saman. Both Toppa and Saman are brothers and they died undivided leaving behind the properties owned by them. The first Plaintiff had issued a legal notice Ex.B10 dated 18.08.1992, calling upon the defendants 1 to 3 to divide the properties left by Thoppa and Saman into metes and bounds. The defendants 1 to 3 have sent a reply notice, Ex.B11, dated 27.08.1982 denying the right of partition and claimed that they have been enjoying the suit property adversely to the interest of the first plaintiff and refused to partition the property. According to the first plaintiff, no partition took place between him and defendants 1 to 3, either orally or in writing. The alienation mentioned in the reply notice, Ex.B11 dated 27.08.1982 pursuant to the alleged prior partition is false and it has been fradulently brought out and such a prior partition is not true, valid and binding on the first plaintiff inasmuch as the first plaintiff is not a party to the alleged partition. Therefore, according to the first plaintiff, the suit is maintainable.
6. The defendants 1 to 3 have filed written statement admitting the relationship between the parties. It was also admitted that Thoppa and Saman have died undivided and after their death, misunderstanding arose between the first plaintiff’s mother Manonmani Ammal and defendants 1 to 3 in the enjoyment of the properties owned by them, consequently, a partition was effected among the surviving co-parceners in the year 1948 itself with the help of Panchayatars and first Plaintiff’s uncle Subramania Mudali. Since the first plaintiff was minor at the time of partition in the year 1948, he was represented by his mother Manonmani Ammal as a guardian. Though the first Plaintiff was minor at that time when the partition took place and not in a position to understand the nature and consequences thereof, he actually participated in the division and allotment of the properties. Therefore, according to the defendants 1 to 3, the partition was effected with the concurrence and participation of the first plaintiff, represented by his mother. It was further contended that the first plaintiff, after attaining majority confirmed the partition took place earlier by acceptance and enjoyment of the property allotted to him; by dealing with the property as that of his own; by making recitals in some documents dealt with by him confirming the partition; and by otherwise acting on it fully and freely. Further, it was contended that though the properties allotted to the first plaintiff were taken possession by his mother, as guardian, on attaining majority, the first plaintiff came to be in possession of the suit properties and enjoying the same.
7. It is the further case of the defendants 1 to 3 that ever since the date of partition, the first plaintiff and defendants 1 to 3 have been in possession and enjoyment of their respective shares of the properties allotted to them and dealing with the same as that of their own and exclusive properties. The first Plaintiff and the defendants 1 to 3 have also caused mutation of their respective names in the revenue records and paid kist and tax for their respective items of properties. It is also alleged that the parties had separate residence and mess from the date of partition and they have been separate and even mutual transaction. Since there has been a complete, full and final partition of all the properties among the parties, which was also acted upon, it is false to contend that the family is still joint and the claim for partition of the so called suit property is not maintainable. Therefore, it was contended that there is no common property at all exist and even if the first plaintiff has any right, title or interest in the suit property, such right got extinguished by limitation, by his ouster and exclusion thereof and by virtue of long possession by the defendants 1 to 3 for many decades, adverse to the interest of the first plaintiff.
8. The defendants 1 to 3 would further contend that the first plaintiff is estopped from claiming the relief of partition inasmuch as he had participated in the partition, ratified it subsequently, acted upon the partition and enjoying the property separately as his own. The defendants 1 to 3 have also pointed out the various sales and purchase of the properties allotted to the first plaintiff by virtue of the partition between the parties. It was further contended that the first plaintiff had earlier issued a notice dated 17.02.1974 for which the defendants 1 to 3 have sent a reply dated 05.03.1974, which were not disclosed in the plaint by the first plaintiff. The defendants have disputed the quantum of court fee paid by the first plaintiff on the ground that there is no joint possession of the suit property.
9. Before the court below, the fourth Plaintiff namely M. Vijayakumar was examined as PW1 and one Murugesa Udayar and Panchanatha Mudaliar as Pws 2 and 3 respectively. On the side of plaintiff no document was marked. On behalf of the Defendants, Exs. B1 to B88 were marked. The second defendant namely Kannappa Mudaliar examined himself as DW1 along with five other witnesses including the defendants 3 and 5.
10. The court below, on perusal of the pleadings made by the parties as well as the oral and documentary evidence on record, dismissed the suit on the ground that it is not maintainable in view of the earlier partition took place between the parties in the year 1948 and in view of the subsequent conduct of the parties in accepting the partition and dealing with the properties allotted to them as their own. Questioning the correctness of the decree and judgment of the court below, the plaintiffs have filed the appeal.
11. The learned counsel appearing on either side heavily relied on Ex.B18, Kurchit dated 05.07.1948, an unregistered document. According to the counsel for the plaintiffs/appellants, Ex.B18 is an unregistered document and therefore it cannot be relied upon to prove that there was an earlier partition between the parties. It was further contended by the learned counsel for the Plaintiffs/ appellants that how far Ex.B18, an unregistered Kurchit would affect the right of the plaintiffs to claim partition was not properly considered by the court below.
12. Per contra, the learned counsel for the respondents/defendants submitted that the fact that Ex.B18, Kurchit dated 05.07.1948 is an unregistered document would not by itself give any right to the plaintiffs to claim partition inasmuch as the fact that an earlier partition took place between the parties was otherwise proved by the defendants by letting in legally acceptable evidence. Except this point, both sides have not argued any other grounds in support of their respective case.
13. Therefore, the point for consideration in this appeal is whether Ex.B18, Kurchit dated 05.07.1948, which was an unregistered document, would by itself prohibit the plaintiffs/appellants from claiming partition and separate possession of the suit property
14. It is pertinent to point out here the pleadings in the plaint as well as the written statement. It is seen from the pleadings made by the parties that it was admitted that the original owners namely Thoppa and Saman are brothers, they have owned the properties and they died undivided. The ownership of the above said Thoppa and Saman was not in dispute. It is also not in dispute that the first plaintiff and defendants 1 to 3 are the legal heirs and are entitled to the properties left by Thoppa and Saman.
15. I have gone through Ex.B18 in original. In Ex.B18, Kurchit, which was executed on 05.07.1948, it was clearly mentioned that the first Plaintiff, Muniraj, who was by then a minor was represented by his mother Manonmani Ammal to enter into a partition. By virtue of Ex.B18, shares have been allotted and divided between the parties so that they can enjoy the properties equally. It was also clearly stated in Ex.B18 that the parties have agreed to enjoy the properties separately and their division in status has also been mentioned in clear terms. It was also made clear in Ex.B18 that division of the property has taken place in the midst of Panchayatars, Subramania Mudaliar, uncle of the first Plaintiff, who are responsible for bringing out the settlement between the parties and after partition, the parties can enjoy the property separately as that of their own.
16. Whenever an instrument is executed, under law, it must be registered under Section 17 (1) of the Registration Act. In this case, Ex.B18, Kurchit, is an unregistered document, however, such unregistered document can be relied upon for the purpose of bringing out the status of the division among the parties. If Ex.B18 is not treated as a partition deed, it can be treated as a document for establishing the severed status of the parties. If this document is construed to be a proper document, atleast for the purpose of proving the factum of severance in status between the parties, then the next question would arise as to how far this document has been accepted between the parties and acted upon and the conduct of the parties in enjoying the properties as their own.
17. So far as the conduct of the parties is concerned, the following four documents namely Exs. B2, B3, B27, B47, B10 and B11 would categorically and clinchingly prove beyond any reasonable doubt that the parties under the Kurchit, Ex.B18 have acted upon the terms of partition and allotment thereof and enjoyed their respective shares of property as their own.
18. Ex.B2 is a mortgage deed executed by the defendants 1 to 3 in favour of a third party namely Natesa Mudaliar on 24.08.1948 registered as document No. 1526 of 1948. In Ex.B2, the defendants 1 to 3 have categorically stated that “v’;fspd; 3 ngUf;F ghj;jpag;gl;L nkw;goahUf;F mlkhdk; bra;a[k; bghUl;L////” This will clearly indicate that the defendants 1 to 3, subsequent to the partition, have treated the property mentioned in Ex.B2 as the property of their own and also mortgaged it to a third party.
19. Ex.B3 dated 24.07.1957 is a registered mortgage deed registered as document No. 1623 of 1957 executed by Muniraj, the first plaintiff in favour of Uthampakkam Co-operative society for obtaining an agricultural loan. In Ex.B3, the first plaintiff has stated that the property is his own property and therefore he, as an owner, executing the mortgage deed for the purpose of getting a agricultural loan.
20. Ex.B27 is a registered sale deed dated 02.01.1970, which was also executed by the first Plaintiff Muniraj in favour of one Subramania Mudaliar. In that document, he had categorically admitted that “vd; bgahpy; gl;lhthfp vd; RthjPd mDgtj;jpy; ,Ue;J tUk;////////” which would mean that subsequent to the partition, he mutated the revenue records in his name and also obtained patta and that the property, which has been allotted to him under Ex.B18 Kurchit is being sold by him in his individual capacity as an owner of the property. In this context, I am fortified by the decision of a Division Bench of this Court reported in (Sivalingam vs. Sakthivel and another) 1998 2 Law Weekly 348 wherein it was held that when a person has admitted in a solemn registered document about a fact and when there was no motive for him to make a false statement at that time when there was no dispute, then such an admission is conclusive as against that party making such admission. The relevant portion of the said decision can be usefully extracted hereunder:-
“The question will be in each case to consider on the facts of the case whether the admission by the concerned party was actuated by ulterior motive or not. If there was no occasion for such an admission being with vitiated by any ulterior motive, then the admission is conclusive as against that party, unless it is explained by the party himself. In the present case, about 33 years prior to the dispute T, had admitted in a solemnly registered document that A, the mother of the plaintiffs, was his wife. There was absolutely no motive for him to make a false statement in the sale deed at that time. Hence, that admission made in the sale deed, Ex.A4, proves, conclusively that A was the wife of T. No evidence is required toprove that A was the legally wedded wife of T in the circumstance of the case.”
21. In this case, in Ex.B27, a registered sale deed dated 02.01.1970, the first plaintiff Muniraj has admitted that the property was his patta land and he is selling the same in his individual capacity as an owner thereof. This admission would prove that there was a partition took place as contended by the defendants 1 to 3.
22. Ex.B47 is a registered mortgage deed dated 27.05.1952 executed by the first Defendant Govindan in favour of one Natesa Mudaliar. In this document, the first defendant, in the description of the property, has indicated the four boundaries as “ej;jj;jpy; tPjpf;F nkw;F; Kdpuh$; Kjyp tifauh epyj;jpw;F fpHf;F; ikdh; Kdpuh$; ghfk; tPl;ow;F bjw;F; enlrd; tifawh tPl;ow;F tlf;F”. Therefore, it is clear that even in the year 1952, the first plaintiff’s property was shown as a boundary by the first defendant to his property. If really partition has not taken place in the year 1948, it could not be gain said that the parties would recite the adjoining property in the four boundaries, as owned by the other party, which was allotted to him under the partition. Therefore, the recitals in the document would prove beyond any reasonable doubt the the parties, subsequent to 1948 partition, have been enjoying their respective property as their own. Moreover, the first plaintiff Muniraj himself has admitted in one of the documents namely Ex.B27 that patta in respect of his share of the property allotted under the partition was issued and that he mutated his name in the revenue records. When such being the case, this Court is of the view that there was a partition took place in the year 1948 and pursuant to such partition, the parties are enjoying their respective share in accordance with the division of shares took place between them.
23. The subsequent conduct of the parties would belie the contentions putforth by the plaintiffs. On 17.02.1974, the first plaintiff issued a notice to the defendants 1 to 3 calling upon them to effect partition. But in Ex.B10, dated 18.08.1982, nothing has been mentioned about the earlier notice seeking partition. In the reply dated 27.08.1982, the defendants have categorically denied the right of the plaintiff to seek partition and also brought to light the earlier partition took place in the year 1948 which was also reduced into writing under Ex.B18, Kurchit. Moreover, the first plaintiff himself has sold some of the properties as his own, which clearly prove that there was a partition which took place between the parties and it is valid. Moreover, when the suit was filed by the first plaintiff, he has not chosen to implead the subsequent purchasers also.
24. From the above findings, it is clear that the first Plaintiff Muniraj, who was a minor then, was represented by his mother and natural guardian Manonmaniammal during the partition took place in the year 1948 and got the property allotted to the first plaintiff for his benefit. Further, after attaining majority, the first plaintiff has not challenged Ex.B18, Kurchit and claimed that it was affecting his right, within the period of limitation. If really the first plaintiff’s share was affected by Ex.B18, on attaining majority, he would have challenged the Ex.B18 or sought for partition of the suit properties within a period of three years, from the date of attaining majority, but it was not done. As stated above, the first notice emanated only in the year 1974, thereafter, after the second notice in the year 1982, the suit was filed for partition, exactly after 34 years of Ex.B18. In the interregnum period, both the parties have been enjoying their respective shares of the property as their own, caused mutation of names in the revenue records and paid taxes in their name. They have also dealt with the property as owners thereof and some of the properties were sold or mortgaged by both the parties. They have also admitted in the recitals in some of the documents as to the nature of their holding. This indicate that the parties are enjoying the properties and alienated some of the properties on their own volition. When that being so, the first plaintiff, after 34 years of partition cannot be permitted to simply state that Ex.B18 is an unregistered document. In this connection, the decision of the Honourable Supreme Court Court reported in (K.G. Shivalingappa (D) by Lrs and others vs. G.S. Eswarappa and others) AIR 2004 SC 4130 is relevant to be mentioned wherein the Honourable Supreme Court held that “no doubt in a partition, the document needs registration, but after a long lapse of time if such document, even if it is unregistered can be taken to prove the division in status between the parties and also the subsequent conduct”. In Para Nos. 7 and 14 of the decision, it was held thus:-
“7. ….The document of 1916 itself shows that there was already a division of properties and severance of status in the joint family of the three branches. Partition amongst Hindus can be oral but if the partition is recorded by instrument in writing it is required tobe registered under Sec.17 (1) (b) of the Indian Registration Act though unregistered document could be relied upon to establish the severance of status in the joint family. That the oral and documentary evidence on record established separate possession and enjoyment of the properties that had fallen to the shares of three branches by their respective owners. ……
14. ….The document Exh.D-101 though unregistered could be relied upon to establish the severance of status in the joint family. The parties were having separate possession of the properties over several decades and were enjoyment of the properties that had fallen to the shares of three branches by their respective owners. The branches of Mahadevappa and Rangappa were cultivating equal portions by paying taxes and they had also divided the house which had come to their shares and were living in two portions separately. For the lands acquired the branches of Rangappa and Mahadevappa had received compensation which was distributed by them amongst themselves to the exclusion of thebranch of Shivalingappa-(II), thus evidencing the fact that the properties were partitioned and the respective branches were enjoying the properties and its usufruct separately. The three branches had been disposing of the properties which had fallen to their shares and had purchased separate properties. The Khata entries also indicated that the properties were standing in their names separately. The learned single Judge has not adverted to or set aside any of the findings recorded by the first appellate Court. The learned single Judge has clearly fell in error in reversing the judgment without disturbing any of the findings referred to above.”
25. In this case, Ex.B18, though an unregistered document, disclose the severed status of the parties and it was also acted upon by the plaintiffs as well as the defendants therefore, the court below is right in relying upon Ex.B18, Kurchit.
26. Lastly, it was argued by the learned counsel for the appellants that the first plaintiff, as a affectionate and subservient brother, has followed the foot steps of his brothers/defendants 1 to 3 and carried out the instructions on a bonafide belief, which can be inferred from the fact that most of the documents said to have been executed by the first plaintiff was produced by the defendants themselves and therefore the alleged sale or mortgage said to have been made by the first plaintiff is intended only for the benefit of the family. This argument cannot stand for the simple reason that in some of the documents executed by the first plaintiff himself, it was admitted that patta in respect of the property was transferred in his name and he has been enjoying the property. Moreover, the learned counsel for the appellants is not in a position to point out any perverse finding in the decree and judgment passed by the Court below. Therefore, this court is of the view that the decree and judgment passed by the court below is valid and interference is not warranted.
27. In the result, the appeal fails and is dismissed. However, there shall be no order as to costs.
30-10-2009
rsh
Index : Yes
Internet : Yes
To
The Subordinate Judge
Sub Court
Tiruppatur
North Arcot District
B. RAJENDRAN, J
rsh
A.S. No. 1324 of 1989
30.10.2009