Dismissed

Thirupurammal v. Mohanammal(Died)

Madras HC14 Oct 2019SA/915/2019

Case brief

AI extract

What is this about?

In this Second Appeal challenging a partition suit decree, the Court upheld the Lower Courts refusal to admit an unregistered, unstamped instrument as proof of a prior family partition. The document was found to create rights in presenti rather than record a past oral arrangement. Consequently, the appeal was dismissed.

What did the court decide?

Second Appeal dismissed with no order as to costs.

Thirupurammal Vs Mohanammal(Died) — Partition | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Reserved on Delivered on 19.09.2019 14.10.2019

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CORAM

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THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

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S.A.No.915 of 2019

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and CMP No.19469 of 2019

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Thirupurammal 2. P.Sundaresan

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Thavamani ..Appellants/Appellants/Defendants 2 to 4

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vs.

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Mohanammal (died)

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Pushpa 2. Ananthanayagi 3. Geetha

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Sudarabai

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Natheeswaran (died)

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Kotteswaran 7. Gowri 8. Mohan 9. Jayaraman

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Neelan

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Periya Kanniammal 12. Chinna Kanniammal 13. Boomiammal 14. Nandagopal 15. Dhanalakshmi 16. Sasikala 17. Jothilakshmi 18. Kumutha ... Respondents/Respondents

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Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code against the Judgment and Decree in AS No.7 of 2012 on the file of the Subordinate Court, Ponneri dated 18.03.2019 in confirming the Judgment and Decree in O.S.No.40 of 1998 on the file of the District Munsif Court, Ponneri dated 25.01.2011.

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For Appellants : Mr.V.Raghavachari

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For Respondents : Mr. R.Krishnasamy

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for 1^st Respondent/plaintiff

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J U D G E M E N T

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The second defendant in OS No.40 of 1998 is the appellant. The said suit was filed by one Mohanaammal seeking partition and separate possession of her half share in the suit properties. She also claimed mesne profits and other reliefs. The claim was made on the basis that the properties in question originally belonged to one Singara Mudaliar, who died leaving behind two sons, viz., Subramania Mudaliar and Krishnaswamy Mudaliar.

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It is the case of the plaintiff that she is the legally wedded wife of Krishnasamy Mudaliar, who died issueless on 19.09.1987. Upon the death of her husband his half share in the suit properties had devolved on her. The defendants are the descendants of Subramania Mudaliar. Subramania Mudaliar had two sons and two daughters, viz., Perumal Mudaliar, Balasubramaniyam Mudaliar, Sarvabhushanammal and Sundaribai. Perumal Mudaliar, died leaving behind his wife Thirupurammal, one son Sundaresan and four daughters. While Balasundara Mudaliar, was arrayed as the first defendant, Thirupurammal her son and her four daughters were arrayed as the defendants 2 to 7. Sarvabhushanammal died and her sons Nandeeswaran and Koteeswaran were impleaded as defendants 9 and 10. Sundaribai was arrayed as the eighth defendant.

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The suit was resisted by the defendants. The first defendant Balasundara Mudaliar filed a written statement admitting the status of the plaintiff as the wife of Krishnasamy Mudaliar. It is also admitted that Subramania Mudaliar and Krishnaswamy Mudaliar were the sons of Singara Mudaliar. The ownership of the property by the family of Singara Mudaliar was also admitted. The entire relationship and Genealogical tree filed by the plaintiff was accepted by the defendants. It is claimed that the residential house, chattel and other movables were divided between the sons of Subramani Mudaliar and Krishnaswamy Mudaliar as early as in the year 1985. The lands of the family were divided between the heirs of Perumal Mudaliar and Krishnaswamy Mudaliar in the presence of Panchayatdars and the said division was recorded in writing on 07.09.1985.

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The lands that were allotted to Krishnaswamy Mudaliar in the partition that was recorded on 07.09.1985, were cultivated by Perumal Mudaliar and the first defendant Balasundara Mudaliar. They also paid Kuthagai at six bags of paddy per acre. It was also expressed by Krishnaswamy Mudaliar that after the lifetime of the plaintiff and himself the properties would be taken by Balasundara Mudaliar and heirs of Perumal Mudaliar. The names of the Panchayatdars were also set out in the written statement. Therefore, the essence of the defence is that there had already been a partition of the property and hence the suit for partition is not maintainable.

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The second defendant filed a written statement substantially adopting the written statement filed by the first defendant. It is also contended on behalf of the defendants that the plaintiff had issued a notice demanding partition on 01.03.1988 to which a reply was sent by the defendants on 27.03.1988. But without suing immediately thereafter, the plaintiff had issued another notice dated 06.10.1997 to which also a detailed reply notice was sent on 25.11.1997. On the above contentions, the defendants sought for dismissal of the suit.

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The Courts below upon a consideration of evidence on record concluded that the defendants have not proved the partition pleaded by them. The Trial Court also found that the alleged record of partition dated 07.09.1985 was not produced by the defendants. On the other hand, an unregistered instrument styled as a “Bagaprivinai” dated 19.08.1987 was produced as Ex.P10. The Courts below disbelieved the said document not only on the ground that was not referred to in the written statement, but also on the ground that it is an unregistered instrument, which was also not sufficiently stamped. The Courts below on a consideration of the language of the document found that it is a document creating a right in presenti and therefore, it would be inadmissible in evidence for want of registration.

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On the above findings, the Courts below concluded that the property remained undivided and therefore, the plaintiff as the wife of Krishnasamy Mudaliar, would be entitled to half share in the suit properties. It is this concurrent findings of the Courts below, which is challenged in this Second Appeal by the defendants 2 to 4.

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I have heard Mr.V.Raghavachari, learned counsel appearing for appellants and Mr. R.Krishnasamy, learned counsel appearing on caveat for the first respondent/plaintiff.

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Mr.V.Raghavachari, learned counsel appearing for the appellants would vehemently contend that the Courts below erred in disbelieving the family arrangement marked as Ex.P10. He

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would also submit that the conduct of the plaintiff in issuing a notice demanding partition on 01.03.1998 and not following it up immediately thereafter would show that the family arrangement evidenced by Ex.P10 is true.

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It is also the contention of Mr.V.Raghavachari, that the Courts below fell in error in concluding that Ex.P10 requires registration. According to him, being a record of a partition that had already been taken place, Ex.P10 does not require registration. He would invite my attention to the judgment of the Hon’ble Supreme Court in Sita Ram Bhama v. Ramvatar Bhama, reported in 2018 (15) SCC 130, in support of his contention. In the said judgment, the Hon’ble Supreme Court had extracted the broad principles of law relating to a family arrangement laid down in Kale v. Director of Consolidation, reported in 1976 (3) SCC 109. According to Mr.V.Raghavachari, if the said principles laid down by the Hon’ble Supreme Court are applied, the conclusions of the Courts below that the Family arrangement dated 19.08.1987 is invalid cannot stand.

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Mr.V.Raghavachari, would also draw my attention to various documents filed by the defendants to show mutation of Revenue Records pursuant to the partition that said to have taken place on 19.08.1987.

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I have considered the rival submissions.

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The broad principles set out by the Kale v. Director of Consolidation, with reference to the Family arrangement are as follows:

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….(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;

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(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence:

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(3) The family arrangement may be even oral in which case no registration is necessary;

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(4) It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for in formation of the court for making necessary mutation. In such a case the

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memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;

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(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property 'It which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same;

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(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.”

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Mr.V.Raghavachari, would also draw my attention to the judgment of this Court in Gajalakshmi and another v. T.V.Lakshmipathi Naidu, reported in 1988 (1) LW 541, relating to admissibility of unregistered instrument of partition for proving division in status and factum of partition as a collateral purpose.

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I have considered the submissions of the learned counsel. There is no dispute regarding the relationship/status between the parties. The only defence that is pleaded is that there was a partition, in and by which, the family properties were divided and the said division was recorded by a Memorandum of oral partition on 07.09.1985. It is also specifically claimed in the written statement that the following persons were Panchayatdars for the said partition.

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• A.C.Sambandha Mudhali of Ammanambakkam Village

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Govindhan of Ammanambakkam Village

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T.Govindha Naidu of Dhevadhanam Village

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T.Radhkrishna Naidu of Dhevadhanam Village

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Saranga Mudhali of Kumarasirulapakkam

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S.Sundhara Mudhali of Kumarasirulapakkam

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Kuzhandhaivelu Mudhali of Perumbedukuppam

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Manikkam Pillai ex-karnam of Dhevadhanam

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Kathirvelu Pillai ex-karnam of Kaniyambakkam

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It is also alleged that Kathirvelu Pillai wrote the Memorandum dated 07.09.1985. Once the defendants admit the nature of the property and the right of the plaintiff to claim a share and set up a defence of a prior partition. It is for the defendants to prove the prior partition claimed by them. The defendants, who set up a specific case of an earlier partition in the presence of certain Panchayatdars, have not chosen to examine any of the Panchayatdars. No witness has been examined except Sundaresan, who is the third defendant and son of Perumal Mudaliar. Though the partition is said to have been effected in the presence of nine panchayatdars, not even one of them has been examined to prove the partition. It is the specific case of the defendants that partition of the movables happened in July 1985 and the immovable properties were partitioned subsequently and the same was recorded on 07.09.1985.

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A perusal of the written statement particularly Sub paragraph (f) of Paragraph 15 would show that the defendants had not come up with the specific case regarding the partition. Though it is claimed that the partition was effected and the same was recorded under a writing dated 07.09.1985, no such writing has been produced. An instrument dated 19.08.1987, styled as a Deed of Partition, has been marked as Ex.P10. Though the same recites that the partition has been effected in the presence of the Panchayatdars mentioned therein, no names of the Panchayatdars has been mentioned in the said document. The Panchayatdars have also not signed as witnesses to the said instrument. The stamp papers for an instrument dated 19.08.1987 had been purchased even on 01.09.1986. The language used in the document clearly shows that it is a partition effected under the document and not a record of a past oral partition. It will be useful to extract the recitals in document which reads as follows:

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c& br';fy;gl;L o!;ohpfl;L c& bghd;ndhp rg;o!;ohpfl;L 85 bek;gh; fhzpahk;ghf;fk; fpuhkj;jpYk; 84 bek; Fkhu rpusghf;fk; fpuhkj;jpYk; ek; bghpnahh;fshYk;. ek;khYk; rk;ghjpf;fg;gl;L ehk; ,Jtiu Vf FLk;gkha; , Ue;J FLk;gk; elj;jpte;njhk;/ Mdhy; jw;nghJ ekJ FLk;gj;jpy; mof;fo rr;rut[ Vw;gl;L te;jjhy; fPH;fz;l gd;rha;j;jhh;fis itj;J fPH;fz;l tptug;go

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ghfpj;Jf;bfhz;nlhk;.

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A bc&l;a{ypy; fz;l brhj;ij ek;kpy; S bgUkhs; Kjypahh; mila ntz;oaJ vd;Wk; B bc&l;a{ypy; fz;l brhj;ij ek;kpy; C.S. ghyRe;jpu Kjypahh; mila ntz;oaJ vd;Wk; C bc&l;a{ypy; fz;l brhj;ij ek;kpy; C fpUc&;z rhkp Kjypahh; mila ntz;oaJ vd;Wk; jPh;khzpf;fg;gl;lJ/

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//// ,dp ekf;Fs; xUtUf;bfhUth; R{jf ghj;ank jtpu jdbuhd ghj;jpaij xd;Wk; fpilahJ/

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The above recitals in the document would clearly show that the partition was effected under the document and the allotment was made under the document. Therefore, it is a document which requires to be duly stamped and registered in accordance with law. In the absence of proper stamp duty and registration, the document cannot be looked into to prove a partition.

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A Division Bench of this Court in A.C.Lakshmipathi v. A.M.Chakrapani Reddiar, reported in 2001 (1) CTC 112, has set out the essentials of the family arrangement. After exhaustive reference to almost all the cases on the point, the Division Bench has summed up the legal position as follows:

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…. (I) A family arrangement can be made orally.

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(II) If made orally, there being no document, no question of registration arises.

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(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.

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(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.

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(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.

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(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 for future what rights in what properties the parties possess.

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(VII) If the family arrangement is stamped but not registered, it can be looked into for collateral purposes.

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(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.

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(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.

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From the law laid down by the Division Bench of this Court in A.C.Lakshmipathi v. A.M.Chakrapani Reddiar’s case, and the Hon’ble Supreme Court in Kale v. Director of Consolidation, it is clear that an oral family arrangement is valid. However, if the same is reduced to writing, it would require registration and proper stamping, unless it is clear from the recitals in the document itself that it is a record of a past oral transaction. If the recitals in the document show that a partition had taken place under the document or pursuant to the document and interest in presenti is created by virtue of the document, the same cannot be looked into for the purpose of proving a partition, if it is neither stamped nor registered.

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As pointed out by the Division Bench, these factual questions will have to be decided on the basis of the evidence available in each case. As already pointed out, the defendants have admitted the relationship and entitlement of the plaintiff to have share in the property, the only defence set up by them is the partition, that is said to have taken place in the year 1985 and recorded on 07.09.1985. The said record dated 07.09.1985 has not been produced before Court, on the other hand another instrument dated 19.08.1987 has been filed claiming that it is a record of a past oral partition. The recitals in the document extracted above, would show that it is not a record of a past oral partition. Therefore, I am of the considered opinion that the Courts below were right in rejecting the instrument marked as Ex.P.10 as the evidence of past oral partition.

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Once the instrument dated 19.08.1987 cannot be relied upon, the plaintiff would be entitled to half share in the suit property. The Courts below, in my opinion, had analysed the evidence in the right perspective and have come to a factual conclusion that Ex.P10 cannot be relied upon for the purposes for proving a partition in the family. The said findings of the Courts below cannot be termed as perverse or not based on any evidence.

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Mr.V.Raghavachari, learned counsel appearing for the appellants would contend that the Courts below have misunderstood the scope of the document namely, Ex.P.10. I have considered the recitals in Ex.P.10 which clearly show that the partition was effected under the said instrument. Therefore, I do not find any error of law in the conclusions of the Courts below that Ex.P10 is not a record of a past oral partition.

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In view of the above, I do not find any question of law much less substantial question of law to entertain the Second Appeal. The Second Appeal is therefore dismissed. However, in the circumstances, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.

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Sd/-

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Assistant Registrar (CS-VIII)

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//True Copy//

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Sub Assistant Registrar

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