{"id":53150,"date":"2008-01-02T00:00:00","date_gmt":"2008-01-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/backiam-vs-rm-subramaniam-on-2-january-2008"},"modified":"2017-03-13T15:53:32","modified_gmt":"2017-03-13T10:23:32","slug":"backiam-vs-rm-subramaniam-on-2-january-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/backiam-vs-rm-subramaniam-on-2-january-2008","title":{"rendered":"Backiam vs Rm.Subramaniam on 2 January, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Backiam vs Rm.Subramaniam on 2 January, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 02\/01\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE G.RAJASURIA\n\nA.S.No.1101 of 2001\n\nBackiam\t        \t... Appellant\/Plaintiff\n\nVs\n\n1.RM.Subramaniam\n2.RM.Muthiah\n3.RM.Sundarajan\n4.RM.Muruganantham\n5.S.Santha\n6.R.Muthumani\n7.RM.Anbazhagan\n8.K.Devika\t\t\t... Respondents\/Defendants\n\n\nPrayer\n\n\nAppeal filed under Section 96 of the  Code of Civil Procedure, against\nthe judgment and decree dated 06.07.2001 in O.S.No.80 of 1999 on the file of the\nSubordinate Judge, Devakottai.\n\n!For Appellant  \t... Mr.K.K.Ramakrishnan for\n\t\t\t\tMr.V.Bharathidasan\n\n^For Respondents\t... Mr.M.Thirunavukkarasu\n\t\t\t\tfor Mr.S.Krishnaswamy\n\t\t\t\t\tfor R.1 to R.3 and R.5 to R.8\n  \t\t\t     Mr.V.K.Vijaya Raghavan\n\t\t\t\tfor Mr.R.Vijayakumar\n\t\t\t\t\tfor R.4\n\n\n\n:JUDGMENT\n<\/pre>\n
\tChallenging the judgment and decree dated 06.07.2001 in O.S.No.80 of 1999
\npassed by the learned Subordinate Judge, Devakottai, this appeal has been filed
\nby the unsuccessful plaintiff.\n<\/p>\n
\t2. The parties, for convenience sake, are referred to hereunder according
\nto their litigative status before the trial Court.\n<\/p>\n
\t3. Broadly but briefly, the case of the plaintiff as stood exposited from
\nthe plaint could be portrayed thus:\n<\/p>\n
\t(i) The plaintiff and the defendants are the children of the deceased
\ncouple, Ramasamy Pillai and Pattammal.  Ramasamy Pillai died on 28.09.1981 and
\nPattammal died on 08.10.1994.  The plaintiff is a handicapped lady affected by
\nPolio and she remained unmarried and was brought up under the protective
\namperage of her parents.  After the demise of her parents, she was under the
\ncare and custody of her brothers.  Ramasamy Pillai was running rice mills.  From
\nout of such income, he purchased certain items of the suit properties and the
\nsaid Pattammal, from out of her efforts and own source of income purchased
\ncertain items of the suit properties.\n<\/p>\n
\t(ii) As such, the suit items of properties nine in number happened to be
\nthe self-acquired properties of Ramasamy Pillai and Pattammal and after their
\ndeath, the plaintiff and her brothers and sisters totally nine legal heirs are
\nentitled to 1\/9th share each in all the suit properties.  Whereas the brothers
\nwho are expected to be cordial and kind towards the plaintiff, proved otherwise
\nas they denied her share.  The defendants 1 to 7 are running the rice mills and
\nenjoying the benefits and they are also getting income from the suit properties.
\nAs such, they are bound to render accounts.  Accordingly, she prays for
\npartition with consequential benefits and for rendition of accounts.\n<\/p>\n
\t4. Denying and disputing, gainsaying and impugning the
\nallegations\/averments in the plaint, the seventh defendant filed the written
\nstatement which was adopted by the defendants 1 to 4, thus:\n<\/p>\n
\t(i) The suit properties and other properties belonged to the joint family
\nand an amicable settlement was arrived at in the presence of Panchayatars and in
\nmemory of it, a memorandum of family settlement was written in the year 1998
\nwherein all the co-sharers signed.  However, the fourth item of the suit
\nproperties is an exclusive property of the second defendant who purchased it
\nfrom M.M.D.A from out of his own salary savings.\n<\/p>\n
\t(ii) The first item of the suit schedule belonged to Sri
\nPuttridamkondeeswarar Devasthanam, whereupon the rice mill buildings were
\nconstructed, machineries were installed and electricity connection was obtained
\nand the machineries were purchased in the name of the sons of the said Ramasamy
\nPillai and in the said family settlement, it was allotted to the share of the
\nfirst defendant.\n<\/p>\n
\t(iii) The second item of the suit Schedule was purchased from out of the
\nincome generated from the first item of the suit properties (rice mills) in the
\nname of the first defendant.\n<\/p>\n
\t(iv) The third item of the suit properties was purchased by Ramasamy in
\nhis name whereupon the joint family house was constructed and it is under the
\noccupation of the second defendant.  The fourth item of the suit property was
\npurchased by the second defendant from M.M.D.A from out of his own salary
\nsavings.  Item Nos.5 and 6 of the suit properties were purchased by the joint
\nfamily and allotted to the share of the third defendant as per the family
\nsettlement, who in turn, sold it to Balakrishnan and Sivasubramanian.\n<\/p>\n
\t(v) The seventh item of the suit properties was purchased by the joint
\nfamily in the name of Ramasamy Pillai and the rice Mill was constructed thereon
\nand it was allotted to the share of the fourth defendant.  The eighth item of
\nthe suit properties was allotted to the defendants 1, 3, 4 and 7 and it was
\nsubsequently, sold by the fourth defendant to one Ramu.  The ninth item of the
\nsuit properties was the joint family property and it was allotted to the seventh
\ndefendant under the settlement, thereupon the seventh defendant constructed a
\nhouse.\n<\/p>\n
\t(vi) The daughters of Ramasamy Pillai relinquished their right over the
\nsuit properties, in lieu of it, those female members were given with the  family
\njewels; whereas the plaintiff was allotted more jewels than the ones in favour
\nof other female members in view of her physical disablement in addition to
\nhaving provided her with the family silver articles.  In fact, a plot purchased
\nin the name of the plaintiff from out of the family funds was sold by her and
\nshe appropriated the entire proceeds for herself. She has also been conducting
\nfinance business which was run by her mother Pattammal, the mother of the
\nparties.  An Ambassador car is owned by the plaintiff, even though it happened
\nto be the one purchased from out of the joint family funds.\n<\/p>\n
\t(vii) The second defendant also permitted the plaintiff to stay in the
\nhouse allotted to him.  The plaintiff is worldly wise and due to the instigation
\nof her power agent, Ramanathan, she has also filed the suit, which is also bad
\nfor non-joinder of the purchasers of item Nos.5, 6 and 8 of the suit properties.
\nAccordingly, the defendants prayed for the dismissal of the suit.\n<\/p>\n
\t5. Whereas the defendants 5, 6 and 8 remained ex-parte.\n<\/p>\n
\t6. The trial Court framed various issues.  During trial, the plaintiff
\nexamined herself as P.W.1 and no document was marked.  On the side of the
\ndefendants, D.W.1 and D.W.2 were examined and Exs.B.1 to B.7 were marked.\n<\/p>\n
\t7. Ultimately, the trial Court dismissed the suit.\n<\/p>\n
\t8. Being aggrieved by and dissatisfied with, the judgment and decree of
\nthe trial Court, the plaintiff filed this appeal on the following main grounds
\namong others:\n<\/p>\n
\tThe trial Court erroneously held that Ex.B.4, the alleged family
\nsettlement was signed by the plaintiff, because of its faulty approach in
\ncomparing the disputed signature of the plaintiff with her other signatures in
\nthe plaint.  The burden of proving Ex.B.4 was on the contesting defendants which
\nthey miserably failed to discharge.  Ex.B.4 was not a genuine document; over and
\nabove, it is in the nature of a partition deed requiring registration, but it
\nwas held as though it was a family settlement.  The Notary Public allegedly
\nattested Ex.B.4 was not examined which fact was ignored by the trial Court.  The
\nalleged partition itself was not proved.  Even though, D.W.2 admitted that as
\nmany as nine copies were executed, yet only one was produced before the trial
\nCourt.  The suit properties are the joint properties and they are liable to be
\npartitioned.  The trial Court wrongly held as though the plaintiff relinquished
\nher right over the suit properties.  The trial Court has ignored the fact that
\nthe plaintiff is an illiterate and handicapped woman.  Accordingly, the
\nplaintiff prayed for decreeing the suit after reversing the judgment and decree
\nof the trial Court.\n<\/p>\n
\t9. The points for consideration are:\n<\/p>\n
\t(i) Whether the suit properties are Hindu Joint Family properties or self-
\nacquired properties of the deceased Ramasamy Pillai and the deceased Pattammal?\n<\/p>\n
\t(ii) Whether Ex.B.4 was signed by the plaintiff and if so, whether it is
\nrequiring registration or a family settlement requiring no registration?\n<\/p>\n
\t(iii) Whether the plaintiff is entitled to partition and for rendition of
\naccounts as prayed by her?\n<\/p>\n
\t(iv) Whether there is any infirmity in the judgment and decree of the
\ntrial Court?\n<\/p>\n
Point No:(i)<\/p>\n
\t10. Unassailably and indubitably, the plaintiff and the defendants are the
\nchildren of the deceased couple Ramasamy Pillai and Pattammal.\n<\/p>\n
\t11. A mere perusal of the written statement and Ex.B.4 which the
\ncontesting defendants relied on, would leave no doubt in the mind of the Court
\nthat the contesting defendants themselves repeatedly described the suit
\nproperties as joint family properties.\n<\/p>\n
\t12. The learned Senior Counsel for the defendants contending that without
\nunderstanding  the significance, the term “bghJf; FLk;gr; brhj;J” was used in
\nEx.B.4 and consequently in the written statement, would develop the argument
\nthat in the name of his father, a few items of the suit properties were
\npurchased and the remaining items were purchased individually by the sons of the
\nsaid Ramasamy Pillai with their respective resources and at the time of oral
\npartition, the respective properties purchased by the male members were allotted
\nto them in recognition of their pre-existing right in respect of those
\nproperties and as such, he would reiterate in his arguments the stand of the
\ncontesting defendants.\n<\/p>\n
\t13. Indisputably and admittedly, Ramasamy Pillai did not inherit any
\nproperty from his forefathers and as such, the question of invoking the co-
\nparcernary concept as well as the concept of joint family, does not arise.
\nThere is no whisper that Ramasamy Pillai and his sons joined together and
\nintended to form a fresh joint family as contemplated under the Hindu Law and it
\nis not at all the case of the contesting defendants also in the written
\nstatement, wherein  they would candidly narrate that the various items of the
\nsuit schedule were purchased from out of the income derived from the suit item
\nof some other properties including the two rice mills referred to supra.\n<\/p>\n
\t14. Relating to the item No.4 of the suit properties, which is a house in
\nChennai was purchased from M.M.D.A by the second defendant from out of his
\nsalary and it therefore could readily be taken as the self-acquired property of
\nthe fourth defendant and there is absolutely no evidence to the contrary and
\naccordingly, the item No.4 should be excluded from partition and also from the
\nclaim of the plaintiff, whereas other items of the suit properties, even as per
\nthe own admissions of the contesting defendants, were acquired one after another
\nfrom out of the income derived from the properties gradationally.  Ramasamy
\nPillai was undoubtedly running two mills as contended by the plaintiff and
\nevidence also would speak to that effect.  In Ex.B.4, it is found stated thus:
\n\t“ek; bghJ FLk;gj;jpw;fhf bghJ FLk;g tUkhdj;jpypUe;J ek;Kila bgw;Bwhh;fspd;
\nbgahpYk; ek;kpy; mtuth;fs; bgahpYk; brhj;Jf;fs; Kjyhditfs; thA;fg;gl;L bghJthf
\nmDgtj;jpy; nUe;J tUk; ek;Kila bgw;Bwhh;fs; fhyq;brd;Wtpl;lhh;fs;.  ehk; bghJ
\nFLk;gkhf nUe;J tuKoahj R{H;epiyapy; ehk; bghJFLk;gj;ij fiyj;Jtpl;Blhk;.”\n<\/p>\n
\t\t\t\t(emphasis supplied.)<\/p>\n
\t15. The above excerpt would demonstrate that the defendants’ own stand in
\nEx.B.4 torpedoes the quite contrary stand taken by them in the written
\nstatement.  Quite antithetical to what they set out in Ex.B.4, in the written
\nstatement, they veered round and took a plea which is untenable both on facts
\nand law.\n<\/p>\n
\t16. Absolutely, there is nothing on record to prove that the male members
\nof the family had any independent source of income to purchase the suit
\nproperties, except item No.4 purchased by the second defendant.  D.W.1, the
\nfirst defendant is the protagonist of the theory that the properties were
\npurchased from out of the joint family income and as such, his own admission
\nwould clearly prove that the sons of Ramasamy Pillai had no independent source
\nof income to purchase the suit properties except item No.4 by the second
\ndefendant.  Once it is found that Ramasamy Pillai during his life time, had run
\ntwo mills and purchased various items in his own name as well as in the names of
\nhis sons, then as a sequela, it follows that after his death, the properties
\nshould be taken to be self-acquired properties of Ramasamy Pillai and not co-
\nparcernary properties or joint family properties.  All his sons and daughters
\nshould be treated as class I heirs as per the Hindu Succession Act, as he died
\nin the year 1981, long after the commencement of the Hindu Succession Act, 1956.\n<\/p>\n
\t17. There is nothing to show that the mother of the deceased had any
\nseparate source of income, so  as to enable her to purchase any propety from out
\nof her own income.  The contesting defendants’ stand is that the said Pattammal
\nduring her life time was running finance business.  However, P.W.1 would expound
\nthat Pattammal even during her life time, closed that business.  No accounts
\nwere produced relating to such finance business and there is nothing to prove
\nthat P.W.1 inherited such business as contended by the defendants.  P.W.1 would
\nadmit that a plot was purchased in her name at Kottaiyur, which she sold it in
\nfavour of her sister.  In such a case, the plot at Kottaiyur should be subjected
\nto the partition and this Court accordingly directs so.\n<\/p>\n
\t18. The plaintiff would pose as though she is a lady who is not in the
\nknow of things whereas the contesting defendants would expatiate and detail that
\nshe is owing an Ambassador car.  There is nothing to highlight that the
\nAmbassador car was purchased from out of her income as she is admittedly a
\nhandicapped lady ever since her childhood and hence she could not have generated
\nincome to purchase such a car.  The Ambassador car, therefore should also be the
\nsubject matter of partition.\n<\/p>\n
\t19. The contesting defendants would submit that P.W.1 in one breathe would
\nstate that her mother during her life time, apportioned the jewels and utensils
\nand handed them over to the respective parties; whereas during cross-
\nexamination, she would admit that her mother died abruptly and that no jewels
\nwere apportioned.  It is therefore crystal clear that some family jewels were
\ngiven to the female members by the male members of the family. However, the
\nexact details are not readily available and during the final decree proceedings,
\nthe facts relating to family jewels and silver articles shall be dealt with by
\nthe trial Court after giving due opportunity to both sides to adduce evidence in
\nthis regard.   Accordingly, point No.(i) is decided.\n<\/p>\n
Point No:(ii)<\/p>\n
\t20. Ex.B.4 is described as a memorandum of family settlement by the
\ncontesting defendants.  Whereas the plaintiff would contend that there was no
\noral partition at all and hence, in such a case, there could not be any
\nsubsequent recording of memorandum of such alleged family settlement.  The
\nlearned Counsel for the contesting defendants would cite the decision in Kale v.
\nDy. Director of Consolidation<\/a> reported in AIR 1976 SUPREME COURT 807.  Certain
\nexcerpts from it would run thus:\n<\/p>\n
\t“10. In other words to put the binding effect and the essentials of a
\nfamily settlement in a concretised form, the matter may be reduced into the form
\nof the following propositions:\n<\/p>\n
\t“(1) The family settlement must be a bona fide one so as to resolve family
\ndisputes and rival claims by a fair and equitable division or allotment of
\nproperties between the various members of the family;\n<\/p>\n
\t(2) The said settlement must be voluntary and should not be induced by
\nfraud, coercion or undue influence;\n<\/p>\n
\t(3) The family arrangement may be even oral in which case no registration
\nis necessary;\n<\/p>\n
\t(4) It is well settled that registration would be necessary only if the
\nterms of the family arrangement are reduced into writing. Here also, a
\ndistinction should be made between a document containing the terms and recitals
\nof a family arrangement made under the document and a mere memorandum prepared
\nafter the family arrangement had already been made either for the purpose of the
\nrecord or for information of the court for making necessary mutation. In such a
\ncase the memorandum itself does not create or extinguish any rights in immovable
\nproperties and therefore does not fall within the mischief of Section 17(2) of
\nthe Registration Act and is, therefore, not compulsorily registrable;
\n\t(5) The members who may be parties to the family arrangement must have
\nsome antecedent title, claim or interest even a possible claim in the property
\nwhich is acknowledged by the parties to the settlement. Even if one of the
\nparties to the settlement has no title but under the arrangement the other party
\nrelinquishes all its claims or titles in favour of such a person and
\nacknowledges him to be the sole owner, then the antecedent title must be assumed
\nand the family arrangement will be upheld and the courts will find no difficulty
\nin giving assent to the same;\n<\/p>\n
\t(6) Even if bona fide disputes, present or possible, which may not involve
\nlegal claims are settled by a bona fide family arrangement which is fair and
\nequitable the family arrangement is final and binding on the parties to the
\nsettlement.\n<\/p>\n
\t11. The principles indicated above have been clearly enunciated and
\nadroitly adumbrated in a long course of decisions of this Court as also those of
\nthe Privy Council and other High Courts, which we shall discuss presently.
\n\t…\n<\/p>\n
\t24. This Court has also clearly laid down that a family arrangement being
\nbinding on the parties to the arrangement clearly operates as an estoppel so as
\nto preclude any of the parties who have taken advantage under the agreement from
\nrevoking or challenging the same. We shall deal with this point a little later
\nwhen we consider the arguments of the respondents on the question of the
\nestoppel. In the light of the decisions indicated above, we shall now try to
\napply the principles laid down by this Court and the other courts to the facts
\nof the present case.”\n<\/p>\n
\t21. The aforesaid extract from the precedent of the Honourable Apex Court
\nwould clearly highlight as under what circumstances, the registration would be
\nrequired relating to any alleged family settlement recorded in writing, even
\nthough the document is nomenclatured as family settlement.  My above discussion
\nsupra, would clearly spotlight that the brothers of the plaintiff came forward
\nwith unreal facts and as such, bona fide was lacking in Ex.B.4.  The important
\ningredient which would keep the family settlement out of the necessity of
\nregistration is that it should not contain the terms of family arrangement.\n<\/p>\n
\t22. Here, a mere perusal of Ex.B.4, would show that it was written like a
\nfulfledged partition deed evidencing the alleged partition and it was intended
\nto be acted upon as evidence of the alleged partition and the contesting
\ndefendants took pains to get allegedly the attestation of the Notary Public
\nalso.  In Ex.B.4, the parties are found clearly described;  those five male
\nmembers were described as five separate parties as they only virtually got
\npartitioned as per Ex.B.4, the immovable properties without allotting to any
\nshare to the female members who were all described under one caption as party
\nNo.6 in Ex.B.4.  The acquisition of the suit properties according to them and
\nabout the income generated by them, have all been found set out including the
\nvalue of those respective items.\n<\/p>\n
\t23. It is also found written in Ex.B.4 about the alleged handing over of
\nthe movable properties, such as jewels to the female members in commensurate
\nwith their shares and about their relinquishment of their rights over the
\nimmovable properties and the  rice mill business.  As such, the said Ex.B.4
\nsatisfies all the ingredients of a partition deed cum release deed.\n<\/p>\n
\t24. If not Ex.B.4 should be treated as a partition deed cum release deed,
\nthen whatelse could be treated as a regular partition deed cum release deed.  It
\nis therefore crystal clear that as per the decision of the Honourable Apex Court
\nreferred to supra, Ex.B.4, which embodied in itself all the details of a
\npartition cum release deed, cannot be termed as a mere memorandum of family
\nsettlement.  In fact, the parties intended to rely upon Ex.B.4 as an evidence of
\nthe alleged unrealistic partition.  The Honourable Apex Court also clearly
\nposited that such family settlements should not be taken as valid ones when they
\nare fraught with misconception of facts.  Here, the contesting defendants
\nthemselves would virtually admit that Ex.B.4 emerged due to misconception of
\nfacts as discussed supra under point No.(i).\n<\/p>\n
\t25. There was no co-parcernery or joint family property, but as per the
\ncontesting defendants, they proceeded on the footing as though the suit
\nproperties were joint family properties.  As such, this aspect in addition to
\nother aspects, would indicate that Ex.B.4 cannot be termed and treated as a mere
\nunregisterable memorandum of family settlement.\n<\/p>\n
\t26. The learned Counsel for the plaintiff would correctly and convincingly
\nwould set out both in  his oral arguments as well as his written argument, that
\nabsolutely there is no iota or shred of evidence either oral or documentary to
\nprove precisely as on what date, such alleged oral partition took place among
\nthe parties to the suit.\n<\/p>\n
\t27. In the written arguments, the following relevant excerpts from the
\nevidence of D.W.1 are found set out correctly thus:\n<\/p>\n
\t“tha;bkhHp FLk;g Vw;ghL ve;j Bjjpapy; Vw;gl;lJ vd;W bjhpahJ.  tha;bkhHp
\nFLk;g Vw;ghl;od; BghJ rhl;rpfis Tg;gpltpy;iy.”\n<\/p>\n
\t“thjpf;F jpUkzk; eilbgwtpy;iy.  thjpf;F tPl;il bghWj;j mstpy; xU miw
\nxJf;fg;gl;lJ.  2tJ rBfhjuh; Kj;ijaht[f;F xJf;fg;gl;l miwapy; thjpf;F
\nxJf;fg;gl;lJ.  FLk;g Vw;ghl;oYk; nJgw;wp Bgrg;gl;lJ.  Mdhy; gp4y; vGjg;gltpy;iy.
\n\tFLk;g Vw;ghl;oy; gl;lh khw;Wtjw;Fk; iybrd;!; khw;Wtjw;Fk; thjp ifbaGj;J
\nBghl;L juBtz;Lbkd;W Bgrg;gltpy;iy.\n<\/p>\n
\tgp4y; Bjit Vw;gl;lhy; thjp ifbaGj;J BghLtJ gl;lh khw;WtJ rk;ge;jkhft[k;
\nchpik khw;WtJ rk;ge;jkhft[k; Bgrg;gl;lJ.\n<\/p>\n
\ttha;bkhHp FLk;g Vw;ghl;oy; Bgrhj Bkw;fz;l tpraj;ij gp.4y; vGjpa[s;Bshk;.”
\n\t“vf;rpgpl;l gp-4 vA;fsJ tPl;oy; itj;Jjhd; vGjg;gl;L ifbaGj;Jg; Bghl;Blhk;.
\nvf;rpgpl;l gp-4 vGjg;gl;l BghJ 4 rBfhjhpfSk;, 3 rBfhjuh;fs; 3 gq;rhaj;jhh;fSk;
\nnUe;Bjhk;.  g[Jtaypy; vA;fsJ tPl;oy; itj;J jhd; ifbaGj;J Bghl;Blhk;.  fhiyapy;
\nifbaGj;jpl;Blhk;.  vdJ rBfhjuh;fspy; xUth; jhd; brd;W ifbaGj;J Behl;lhp
\ngg;spf;fplk; ifbaGj;J thA;fpdhh;.  gq;rhaj;jhh;fs; brhy;yp jhd; Behl;lhp
\ngg;spf;fplk; ifbaGj;J thA;fpBdhk;.  Behl;lhp gg;spf;fplk; ehd; bry;ytpy;iy.
\nvy;yh gpujpfspYk; ifbaGj;J thA;fg;gl;ljh my;yJ xU gpujpapy; ifbaGj;J
\nthA;fg;gl;ljh vd;W vdf;F bjhpahJ.”\n<\/p>\n
\t“1-tJ mapl;l jsthl kw;Wk; fl;olA;fs; vdJ je;ijahh; vA;fs; rBfhjuh;fs; 5
\nBgh;fs; bgahpYk; thA;fpa[s;shh;.  mjw;fhd mry; fpiuag;gj;jpuk; gp.rh.M.2.
\n\t3tJ yf;fr; brhj;jhdJ vdJ je;ijahh; nlk; thA;fp tPL fl;odhh;.
\n\t9tJ mapl;l mokid vdJ je;ijahhpd; g{h;tPf brhj;J. njpy; vdJ je;ijahUf;Fk;
\nrpwpa je;ijahUf;Fk; ghjp ghjp ghj;jpak;.  vdJ rpj;jg;ghtpw;Fs;s kPjp gA;if vdJ
\njhahh; bgahpy; thA;fp bfhz;Blhk;.  njpy; bghJ FLk;g tUkhdj;jpypUe;J 7 filfs;
\nfl;oa[s;Bshk;.  me;j fl;olkhdJ vdJ jhahh; bgahpy; cs;sJ.”\n<\/p>\n
\t28. Placing reliance on those extracts, the learned Counsel for the
\nplaintiff would contend that by no stretch of imagination, Ex.B.4 could be taken
\nas a memorandum of family settlement which requires no registration.  The
\nalleged evidence of D.W.2, Abubakkar one of the Panchayatars, in no way
\nenlightens the position as he would simply depose as though one year prior to
\nthe emergence of Ex.B.4, there had been an oral partition.  Neither in the
\nwritten statement nor in Ex.B.4, such a fact is found set out.  For the first
\ntime, unconvincingly D.W.2 would simply quip as though one year prior to the
\nemergence of Ex.B.4, there had been such alleged oral partition.  Even though,
\nD.W.2 would delineate as though those brothers agreed that the plaintiff could
\nstay in the house of the second defendant, yet Ex.B.4, is conspicuous of absence
\nof such version found set out.  He would even go a step further and unbelievably
\nproject an event as if he raised about such absence of clause in Ex.B.4, for
\nwhich the brothers had stated that it was not necessary to be incorporated in
\nEx.B.4.\n<\/p>\n
\t29. It is therefore crystal clear that D.W.2 as a partisan witness stoop
\ndown to the level of blindly supporting the case of the male members by dishing
\nout pleas which the male members themselves have not set out in their defence.\n<\/p>\n
\t30. Additionally, during cross-examination, D.W.2 has deposed that during
\nmorning hours, Ex.B.4 and eight other documents had emerged and those documents
\nwere signed in the house of the parties.  An excerpt from the deposition of
\nD.W.2 during cross-examination is extracted hereunder for ready reference:
\n\t“9 gj;jpuA;fs; vGjg;gl;l ehd; 9 ifb aGj;Jf;fs; Bghl;Bld;.  fhiyapy; jhd;
\nvGjg;gl;L ifbaGj;Jf;fs; Bghl;Bld;.  cgathjpfs; tPl;oy; jhd; ifbaGj;Jg;
\nBghlg;gl;lJ.  BgUuhl;rp jiytUk; rhl;rpahf ifbaGj;J Bghl;lhh;.  tPl;oy; itj;J
\nifbaGj;J Bghl;L MgpRf;F bfhz;L brd;W rPy; itj;J bfhLj;jhh;.  kw;bwhU rhl;rpa[k;
\nifbaGj;J Bghl;L gpd;dh; mtuJ rPy; bfhz;L tur;brhy;yp rPy; itf;fg;gl;lJ.  rhl;rp
\nifbaGj;Jg; Bghl;l midtUk; bghpa kdpjh;fs; jhd;.  thjp, gpujpthjpfspd; Bjitf;fhf
\njhd; ehA;fs; rhl;rp ifbaGj;J Bghl;Blhk;.  thjp gpujpthjpfspd; tPLfspd; mUfpy;
\njhd; vA;fs; tPLk; cs;sjhy; tur;brhy;yp brd;W ifbaGj;J Bghl;Blhk;.  ehA;fs; Kd;W
\nBgUk; jhd; rhl;rpfshf ifbaGj;J bra;Bjhk;.  BtW ahUk; ny;iy.  gp.rh.M.4 y; fz;l
\nbrhj;Jf;fs; midj;Jk; bghJf;FLk;gr; brhj;Jf;fs; vd;W midtUk; xj;Jf;bfhz;ldh;.”\n<\/p>\n
\t31. D.W.1 in his deposition would narrate that he did not know precisely
\nand accurately on what date, the said oral partition was effected.  Had really
\nsuch an oral partition which obviously and indubitably should be considered by
\nany reasonable  man as a significant one relating to enjoyment of family
\nproperties, taken place, then one would not forget the date of such event.  The
\nNotary Public was not examined, despite the plaintiff specifically denied her
\npurported signature in Ex.B.4.  It is her contention that the brothers were in
\nthe habit of getting her signatures in some blank papers also under the pretext
\nor the other.  In view of P.W.1 having impugned and challenged, denied and
\ndisputed, her purported signature in Ex.B.4, the Notary Public at least, should
\nhave been examined to prove P.W.1’s  purported signature in Ex.B.4, but the
\ncontesting  defendants withheld such evidence consciously to the risk of it
\nbeing disbelieved by the Court of justice.\n<\/p>\n
\t32. Absolutely, there is no valid reason for non-examination of the Notary
\nPublic.  There is nothing to establish or demonstrate as to whether the Notary
\nPublic actually visited the house of the parties where Ex.B.4 was allegedly
\nwritten or all the nine parties to Ex.B.4 and the three Panchayatars totally
\ntwelve in number, went to the Office of the Notary Public and signed it in his
\npresence. In the register maintained by the Notary Public, there should have
\nbeen reference to it, with the signatures of all those who attended his office
\nand signed the document, if at all, all those twelve persons appeared before him
\nand signed Ex.B.4.  Had the Notary Public been examined, the whole truth might
\nhave come out during cross-examination.  The Notary Public as per law is
\nexpected to read out the contents of the documents which he is bound to attest,
\nto the signatories and thereupon, after they having signed before him, he should
\nattest it.\n<\/p>\n
\t33. It is a very serious matter touching upon the alleged relinquishment
\nof the right of the plaintiff over the immovable properties and the contesting
\ndefendants had allegedly chosen to obtain the signature of the Notary Public,
\nbut they did not choose to examine him before the trial Court.  Necessarily, in
\nthis factual matrix, adverse inference should be drawn as against the contesting
\ndefendants.\n<\/p>\n
\t34. The learned Counsel for the plaintiff has correctly cited the maxim
\n“Omnia Praesumuntur contra spoliatorem. [Every presumption is made against a
\nwrongdoer.]”\n<\/p>\n
\t35. Here, in the absence of any valid reason, the evidence of Notary
\nPublic was withheld.  The trial Court without considering these aspects simply
\nof its own accord, compared P.W.1’s impugned signature with that of her
\nsignature in her pleadings.  In paragraph No.13, the trial Court in a most
\nuntenable manner resorted to such an approach to the purported signature of
\nP.W.1 in Ex.B.4.  He without any basis simply states as though P.W.1’s impugned
\nsignatures in Ex.B.4, tally with the signatures in her deposition and other
\ndocuments.\n<\/p>\n
\t36. Such an approach by the trial Court is condemnable in unmistakeable
\nterms for the reason that he has not even chosen to highlight in what manner the
\nimpugned signatures do tally with the admitted signatures.  No doubt, Section 73
\nof the Indian Evidence Act enables the Court itself to compare the impugned
\nsignature with the admitted signature.  There should be ‘ante litum motum’
\nadmitted signatures for the Court to compare those signatures with the impugned
\nsignatures.  There are decisions to the effect that in certain circumstances and
\nthat too merely the Court can compare such sort of signatures, but there should
\nbe reasoning found set out in support of the ultimate conclusion of the Court in
\nthat regard.  The similarities and dissimilarities between the two sets of
\nsignatures  should be detailed and delineated in accordance with the scientific
\nrules relating to examination of questioned documents.  No carte blanche is
\ngiven to any Court to have subjective satisfaction relating to the disputed
\nsignatures and simply declare in a cavalier fashion as though the impugned
\nsignatures are tallying with the admitted signature of the party concerned.\n<\/p>\n
\t37. Here, the trial Court’s attitude and approach in arriving at its
\ndecision relating to the impugned signatures is far from satisfactory.  Even
\nthough the contesting defendants have not taken the assistance of the hand-
\nwriting expert, yet they could have examined the Notary Public, but for the
\nreasons best known to themselves, they have not chosen to examine the Notary
\nPublic.  In such a case, the trial Court should not have given such finding in
\nfavour of the contesting defendants in paragraph No.13 as well as in other
\nparagraphs of its judgment.  In fact, his discussion demonstrates as though the
\nburden of proof is on the plaintiff to prove that the impugned signatures are
\nnot that of her signatures.  To say the least, the trial Court should not have
\ngiven such a finding on Ex.B.4 in the absence of clinching evidence.  The trial
\nCourt has also not distinguished and differentiated the legal concepts relating
\nto the joint family property and self-acquired property as highlighted in this
\njudgment supra under point No.(i).\n<\/p>\n
\t38. It is therefore clear that the defendants have not proved the
\ngenuineness of Ex.B.4, and it cannot be also termed as a memorandum of family
\nsettlement.  More over, no oral partition has been proved in this case.\n<\/p>\n
\t39. The learned Counsel for the defendants cited the following decisions:\n<\/p>\n
\t(i) Roshan Singh v. Zile Singh<\/a> reported in AIR 1988 SUPREME COURT 881.\n<\/p>\n
\t(ii) Swaminathan v. Koonavalli<\/a> reported in 1994 L.W 764.\n<\/p>\n
\t(iii)Meenambal v. Chockalinga Chettiar<\/a> reported in 1978 M.L.J 398.\n<\/p>\n
\t(iv) Duraipandian v. Tamiljothi<\/a> reported in 2000(II) CTC 574.\n<\/p>\n
\t40. The aforesaid four decisions are also on the same point which are in
\nno way different from the decision of the Honourable Apex Court in  Kale v. Dy.
\nDirector of Consolidation<\/a> reported in AIR 1976 SUPREME COURT 807.\n<\/p>\n
\t41. The learned Counsel for the plaintiff would cite the following
\ndecisions:\n<\/p>\n
\t(i) M.Venkataramana Hebbar v. M.Rajagopal Hebbar<\/a> reported in (2007) 6
\nSupreme Court Cases 401.  An excerpt from it, would run thus:
\n\t“11. … But there cannot be any doubt whatsoever that before the Court
\nrejects a claim of partition of joint family property, at the instance of all
\nthe co-owners, it must be established that there had been a partition by metes
\nand bounds.”\n<\/p>\n
\t\t\t\t(emphasis supplied)<\/p>\n
\t(ii) Lakshmi Perumallu v. Krishnavenamma<\/a> reported in 1965 M.L.J 105.  An
\nexcerpt from it, would run thus:\n<\/p>\n
\t“No doubt a family arrangement which is for the benefit of the family
\ngenerally can be enforced in a Court of law.  But before the Court would do so,
\nit must be shown that there was an occasion for effecting a family arrangement
\nand that it was acted upon.”\t\t(emphasis added)<\/p>\n
\t(iii) Madanlal v. Yoga Bai<\/a> reported in (2003) 5 Supreme Court Cases 89. An
\nexcerpt from it, would run thus:\n<\/p>\n
\t“5. The High Court has not believed the case of the defendants that there
\nhad already been a settlement in respect of the properties in question.  It at
\nleast indicates that even according to the contesting defendants, some
\nsettlement of the property amongst the members of the family was necessary which
\nhad already taken place earlier i.e, to say existence of joint property cannot
\nbe denied.  Once their case of settlement in respect of the same property having
\ntaken place earlier has been disbelieved, there remains hardly any ground to
\nresist the claim of the plaintiff for partition and share in the properties.”\n<\/p>\n
\t\t\t\t\t(emphasis supplied)<\/p>\n
\t42. The discussion supra and the precedents adverted to above, on the side
\nof the plaintiff, would make the point crystal clear that the defendants have
\nnot proved the plea of oral partition and the alleged subsequent emergence of
\nEx.B.4.\n<\/p>\n
\t43. Various other decisions have been cited on the side of the defendants
\nwhich are not absolutely necessary in view of the aforesaid precedents of the
\nHonourable Apex Court referred to supra.\n<\/p>\n
\t44. The learned Counsel for the contesting defendants has put forth his
\nargument as though the plaintiff accepted the settlement and in such a case, she
\ncannot approbate and reprobate in view of the decision in S.Nagarathinam v.
\nS.Balakathiresan<\/a> reported in 1994-1-L.W.-133. An excerpt from it, would run
\nthus:\n<\/p>\n
\t“7. … In Bhau Ram v. Baij Nath Singh AIR<\/a> 1961 S.C. 1327, the Apex Court
\nhas pointed out that a person who takes a benefit under an order de hors the
\nclaim on merits cannot repudiate that part of the order which is detrimental to
\nhim, because the order is to take effect in its entirety.  The existence of a
\nchoice between two rights is one of the conditions necessary for the
\napplicability of the doctrine of approbate and reprobate.  While so, it is
\nevident that there is no merit in the contention of the appellant.”\n<\/p>\n
\t45. This decision is not applicable to the facts and circumstances of the
\ncase.  Here, the plaintiff has not even been given with any portion of the
\nimmovable property referred to in Ex.B.4, but for the first time, before the
\nCourt in order to give an equitable colour as though the brothers were kind
\ntowards the plaintiff who is their handicapped sister, they quite against the
\nreality of facts stated as though she was asked to live in the second
\ndefendant’s house.  Hence, in such a case, it cannot be held that there was any
\nreasonable or equitable  partition and that it was the plaintiff who resailed
\nfrom it by turning turtle or having a volte face.\n<\/p>\n
\t46. To the risk of repetition without being tautologous, I would like to
\nobserve that absolutely there is no proof to show that there was oral partition
\nmuch less reasonable partition allotting any share to the handicapped plaintiff
\nand there is also no evidence to show that Ex.B.4 was signed by her and that
\ntoo, consciously after understanding the contents.\n<\/p>\n
\t47. The mere execution of Ex.B.4 in the absence of examining the Notary
\nPublic further worsened the case of the defendants.  Accordingly, this point is
\ndecided as against the defendants and in favour of the plaintiff.\n<\/p>\n
\t48. The trial Court would simply for no good reason rejected the case of
\nthe plaintiff, because other married sisters of the plaintiff are not
\nquestioning Ex.B.4.  It is obvious that the other sisters of the plaintiff are
\nmarried and they got settled in life and for various reasons, they might not
\nhave agitated as against their brothers by claiming partition, but the Court
\ncannot expect the plaintiff also to follow the suit.  No law says that when the
\nplaintiff is filing a suit necessarily her sisters also should support her
\ncause.\n<\/p>\n
\t49. Here is the plaintiff who did not learn anything in the school and she
\nlearnt only  how to sign in English and she could not walk due to polio and when
\nshe claims partition by taking the assistance of her power of attorney, one
\nHomeopathy Doctor, it is unjustifiable to raise accusative finger by her
\nbrothers as though she is not entitled to any share in the properties.\n<\/p>\n
\t50. In fact, the plea of the contesting defendants is that she is entitled
\nto the suit properties and that she only relinquished her rights.  I am at loss
\nto understand the whys and wherefores of her alleged relinquishment of her
\nshare.  It is not known as to why and for what reason, she should have allegedly
\nrelinquished her right. The preponderance of probabilities would govern the
\nadjudication in civil cases.  No lady having head over shoulder will ever agree
\nto accept some jewels and relinquish disproportionately her huge share over the
\nvaluable immovable properties including the two rice mills.\n<\/p>\n
\t51. It is a trite proposition of law that the witnesses might lie, but
\ncircumstances would not lie.  It is therefore crystal clear that the male
\nmembers simply wanted to deprive their handicapped sister by taking undue
\nadvantage of her position in life and for which the trial Court should not have
\nput seal and given recognition by dismissing the suit.\n<\/p>\n
\t52. Even though, the contesting defendants contended that some of the suit
\nitems were disposed of in favour of third parties, in view of the discussion
\nsupra, such non-joinder of the parties would not be fatal to the case of the
\nplaintiff and during the final decree proceedings, the equity shall be worked
\nout to see that the third parties are not affected, to the extent possible by
\nallotting shares accordingly, without in any way causing detriment to the
\nplaintiff’s 1\/9th share in all the suit properties except item No.4.\n<\/p>\n
\t53. In view of the reasons set out supra, the plaintiff is entitled to
\n1\/9th share in the suit properties and also in the income accrued thereon
\nexcept item No.4.  The defendants are bound to render accounts as prayed for in
\nthe plaint  and the plot in Kottaiyur and the Ambassador car should also be
\nincluded in the partition.  Relating to the sale of some of the  items in favour
\nof the third parties by the brothers, equity shall be worked out during the
\nfinal decree proceedings.  The trial Court is at liberty to decide based on the
\nevidence adduced relating to the accounts as well as the jewels and other
\nmovable properties, during the final decree proceedings.  Accordingly, the
\npreliminary decree is passed by allowing this appeal.  However, the parties
\nshall bear their respective costs throughout.\n<\/p>\n
rsb<\/p>\n
To<\/p>\n
The Subordinate Judge, Devakottai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Backiam vs Rm.Subramaniam on 2 January, 2008 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-53150","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nBackiam vs Rm.Subramaniam on 2 January, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/backiam-vs-rm-subramaniam-on-2-january-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Backiam vs Rm.Subramaniam on 2 January, 2008 - 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