C.Radhakrishnan Vs K.Anandhu

( 2nd respondent died. R5 & R6 brought into record as LRs of the deceased 2nd respondent (C.K.Kumar),vide Court order dated 07.09.2021 made in CMP No.3002 of 2018 in AS.No.892/2012)

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A.S.No.892 of 2012

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Prayer: First Appeal has been filed under Section 96 C.P.C r/w. Order 41 Rule 1 of the Civil Procedure Code against the judgment and decree dated 22.12.2011 passed in O.S.No.46 of 2010 on the file of the Principal District Court, Cuddalore.

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For Appellants : Mr. Sathia Chandran For Respondent : Mr. T.V.Vinoth Kumar Nos.1 & 3 to 6

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JUDGMENT

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Aggrieved over the judgment and decree dated 22.12.2011 passed in O.S.No.46 of 2010 on the file of the Principal District Court, Cuddalore, the

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defendants 1 and 2 have preferred the first appeal.

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For the sake of convenience, the parties are referred to as per their rankings in the trial Court.

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3.The plaintiff filed the suit for preliminary decree by partitioning the suit schedule property and allot 1/6th share to the plaintiff in the plaint schedule property and for permanent injunction restraining the defendants 1 and 2 or their men, agents, servants from encumbering the plaint schedule property and for cost.

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A.S.No.892 of 2012

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4.

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4. The plaintiff/1st defendant's case is as follows:

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The suit property originally belonged to late Govindasamy Padayachi,

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who is maternal uncle of Kaliyamoorthy, father of the plaintiff and the defendants 3 to 5 and K. Chandrasekaran, father of the defendants 1 and 2. The said Govindasamy executed a Will on 19.02.1947 and according to the Will, Chandrasekaran and Kaliyamoorthy will enjoy the property for their life time and after their demise, their male descendent will inherit equally with all powers of alienation. All the male descendents have to get the property equally is specifically mentioned in the said Will. Now all the male descendents of late Chandrasekaran and late Kaliyamurthi got married and are living separately. Now the building is occupied by the defendants 2 to 4 and the 2nd defendant is occupying one portion and the defendants 3 and 4 along with their mother is occupying another portion of the suit property. Now the building is in a dilapidated condition as the same was constructed with sun burnt bricks and mud mortar.

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For proper enjoyment of the property by all male descendents of late Chandrasekaran and late Kaliyamurthi, the property has to be divided equally by metes and bounds and the plaintiff has been repeatedly requesting the 3/20

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defendants to come for an amicable settlement. Though the plaintiff's brothers, namely, the defendants 3 to 5, are agreeing for an amicable settlement, the defendants 1 and 2 are not cooperating to divide the property according to the clause contained in the Will executed by Govindasamy with some malafide intention to grab the entire property for themselves and to cause disharmony among the family members. The plaintiff estimates the mesne profits at the rate of Rs.12,000/- per month for entire building and the monthly income from the portion occupied by the 2nd defendant is estimated at Rs.6000/-. On 28.7.2009, plaintiff issued a legal notice to the defendants 1 and 2 for partition by enclosing the rough sketch showing how the property has to be divided as already informed to the defendants 1 and 2 by the plaintiff among the male descendants of Chandrasekaran and Kaliyamurthi marking a copy to his brothers, the defendants 3 to 5. The 5th defendant has already released his right over the suit property in favour of the defendants 3 and 4 vide a release dead on 19.7.2004. The defendants 1 and 2 sent an evasive reply stating that the property has already been partitioned between Chandrasekaran and Kaliyamurthi and they had also obtained patta according to that. It is unenforceable either in law or on facts and do not have any legal significance, since they have no right to deal with the property according to the profounder of the Will.

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The defendants 1 and 2, the plaintiff and his 3 brothers,viz., the defendants 3 to 5 are entitled to 804 square feet each in the suit property. As per the customary practice, among the family members, the eldest member has to be allotted on the western side and youngest member will be allotted the eastern extremity of the property. Plaintiff came to know that the defendants 1 and 2 are now seriously attempting to encumber the suit property without partitioning the property by metes and bounds and without knowledge of plaintiff and defendants 3 to 5. Hence the suit.

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The defendants 3 to 5 remained exparte. The defendants 1 and 2 alone contested the suit. The contentions in the written statement filed by the 2nd defendant and adopted by the 1st defendant in brief are as follows:-

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Except the facts, which are admitted herein, all other allegations in plaint are denied. The suit for partition is not maintainable as already a partition had taken place 26.10.1971. The original owner of the property, namely, Govindasami executed a Will bequeathing a right to enjoy in favour of his two concubines with a further bequeath in favour of his elder sister's sons Chandrasekaran, Ramalingam and Kaliyaperumal. The three of them should enjoy the property without power of alienation and after their life time, their male children shall take the properties absolutely. Ramalingam predeceased the

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testator and hence the bequeath in his favour failed. The Will took effect in 1960 on the death of Govindasami and his two concubines also died. Chandrasekaran and Kaliamurthi became entitled to half share each. Both of them decided to divide the same and on 26.10.1971, they divided the properties by partition. In which, Kaliyamurthi was given a large share as B schedule in partition. Defendants 1 and 2 have copy of deed and the original deed was in the custody of Kaliyamurthi.

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Both Chandrasekaran and Kaliyamurthi have been in possession and enjoyment of the properties as per allotment from 1971 onwards and dealing along with their sons. Kaliyamurthi for himself and on behalf of his sons plaintiff and defendants 3 to 5 mortgaged the properties allotted to him under partition on 05.03.1983. Kaliyamurthi, Plaintiff and 3rd defendant again mortgaged the properties to one Baskaran on 24.8.1987. In both the documents, they mentioned about the allotment of the share under partition in the year 1971. Similarly Chandrasekaran also mortgaged his properties allotted to him and he died about 7 years ago leaving the defendants 1 and 2. Kaliyamurthi died 2 years earlier. They have been in possession and enjoyment of their share under partition after their death, the sons have been in possession for 30 years. Hence, prays for dismissal of the suit with costs.

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On the basis of the abovesaid pleas set out by the respective parties,

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the trial Court framed the following issues for consideration:-

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1. Whether the death of Ramalingam has changed the mode of bequeathing under the Will dated 19.02.1947 ?

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1. Whether the said Will has been acted upon after the demise of Govindasamy Padayachi?

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1. Whether the plaintiffs are in joint possession and enjoyment of the suit properties?

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1. Whether a partition was effected as on 26.10.1971?

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1. If so, whether the plaintiffs are entitled to 1/6th share in the suit properties?

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1. Whether the court fee is proper and correct?

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1. To what relief the plaintiff is entitled to ?

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Before the trial Court, the plaintiff examined himself as PW1. Six

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documents were marked as Ex.A1 to A6. The 2nd defendant examined himself

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as DW1 and thirteen documents were marked as Ex.B1 to B13.

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The trial Court, upon considering the evidence on record, passed a

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preliminary decree for partition and separate possession of the plaintiff's 1/6 share in the suit property besides granted permanent injunction restraining the defendants 1 and 2 and their men from encumbering the suit property till passing of final decree with cost. Aggrieved by this judgment and decree of the Trial Court, the defendants 1 and 2 have preferred this First Appeal before this Court.

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The points for consideration before this Court are as follows:-

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Whether the plaintiff is in possession and enjoyment of the suit

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properties and entitled to 1/6 share in the suit properties ?

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Whether the suit properties were partitioned on 26.10.1971 as

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contended by the appellants/defendants 1 and 2 ?

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Whether the trial Court is right in holding that Ex.B.1 dated

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26.10.1971 is only an arrangement for effecting partition?

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To what other relief ?

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The learned counsel for the appellants/defendants 1 and 2 would submit that the judgment and decree of the Trial Court is contrary to law, against the weight of evidence and probabilities of the case. Further contended that the Trial Court overlooked the facts of on earlier partition dated 26.10.1971, evidenced by the defendants 1 and 2 as Ex.B.1 and further contended that the Trial Court overlooked the fact in pursuance of the partition held on 26.10.1971. The plaintiff himself had executed two mortgage deeds in the year 1983 and 1987, which is evidenced by Ex.B.11 and Ex.B.12. Now, the plaintiff cannot deny the earlier partition and not entitled to seek partition of the suit properties once again. When the parties acted upon the partition held on 26.10.1971, the plaintiff is trying to escape from making prayer for another partition and separate possession and the Trial Court committed an error in law and facts. The learned counsel reiterated the other grounds raised in the grounds of appeal and pleaded to set aside the judgment and decree of the Trial Court and pleads to allow the appeal. To support his argument, the learned counsel relied upon the judgment of this Court in the case of Venkatasubramaniya Chettiyar (died) & others /vs/ Perumal Chettiar & others reported in CDJ 2012 MHC 1245.

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The learned counsel for the respondents supported the judgment and decree of the Trial Court and further contended that Ex.B.1, the alleged partition dated 26.10.1971 is only an agreement, not a registered partition deed. As per the agreement, the parties have not acted as to date and they are still in joint possession. Being an agreement for partition, it cannot be held that partition has been effected legally. Therefore, the Trial Court rightly treated Ex.B.1 as an agreement for partition and passed a preliminary decree, which is sustainable in law and there is no ground for interference and thus, pleaded to dismiss the appeal as it has no merits.

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I have considered the matter in the light of the submissions made by the learned counsel for the parties and perused the materials available on records carefully.

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16. Point Nos.1 and 2

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On perusal of the records, the fact reveals that the suit property originally belongs to one Govindaswamy Padayatchi. He is the maternal uncle of Kaliyamoorthy Padayachi, who is the father of the plaintiff and the 10/20

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defendants 3 to 5 and Chandrasekaran Padayachi, father of the defendants 1 and 2. The above said Govindaswamy Padayachi had executed a Will on 19.02.1947 in favour of one Papammal and Mathurathammal with life interest and also gave life interest to Chandrasekaran, Kaliyamoorthy and Ramalingam. After their lifetime, their male descendants will inherit equally with all powers including alienation and it is evidenced as Ex.A.1. The abovesaid fact is admitted by the parties. There is no dispute that Ramalingam pre-deceased the testator of the Will.

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According to the plaintiff, the said Chandrasekaran and

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Kaliyamurthy has not effected a valid partition. Hence, seeking to pass preliminary decree for partition of the plaint schedule properties. According to the defendants 1 and 2, on 26.10.1971, partition took place between the Chandrasekaran and Kaliyamurthy, which is evidenced as Ex.B.1. The parties are enjoying the properties separately and paying house tax and electrical bills, which are evidenced as Ex.B.2 to Ex.B.10. Further more, the plaintiff has also mortgaged the property in the year 1983 and 1987, which is evidenced as Ex.B.11 & Ex.B.12 and hence, the second partition is unsustainable.

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I have gone through the document Ex.B.1 alleged partition dated

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26.10.1971. A perusal of Ex.B.1, it reveals that it is headed as partition agreement. But reading of the contents reveals that the parties have effected partition and had given possession separately and only for want of money for registration, they had not registered the document and postponed the registration. For better appreciation, the contents of the said documents are reproduced as it is :-

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" ,jdoapy; fz;l brhj;J ek;Kila jha; khkDk; mhpag;gilahl;rp FkhuUkhd fhy";brd;w nfhtpe;jrhkp gilahl;rp vGjp itj;jpUf;Fk; 19/02/1947k; njjpa (rpjk;guk; rg;o/ B.3.V.51.P.41 Regd.No.7/1947 ) capy; gpufhuk; ek;kpUtUf;Fk; fpilj;J ehkpUtUk; ehsJ tiuapy; bghJ ghj;jpaj;Jld; mDgtpj;J tUfpnwhk;. ,dpa[k; mt;tpjk; bghJthf mDgtpj;J tu ehk; gphpag;glhjjhYk; ehkpUtUk; jdpj;jdpna tut[ bryt[fs; itj;Jf; bfhz;Ls;sjhYk; ek;kpUtUila ed;ikfisa[k;. trjpiaa[k; yhgfuj;ija[k; kdjpy; bfhz;L ek;kpUtUila kdg;g{h;tkhd tpUg;gj;jpd; nghpy; ,jdoapy; rhl;rpak; bra;jpUf;Fk; egh;fs; Kd;dpiyapy; ekf;Fs; RKfkhfnt ,jdoapy; fz;l brhj;ij ,jdoapy; fz;lthW ,jd; K:yk; ehsJ njjpapy; ghfg;gphptpid bra;J bfhz;oUf;fpnwhk;/

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,jdoapy; fz;l A bc&oa{y; brhj;ij ek;kpy; 1tJ egUk; B bc&oa{y; brhj;jpy; ek;kpy; 2tJ egUk; ehsJ njjp Kjy; ,jd; K:yk; mile;J mtuth;fs; ghf brhj;ij rh;t Rje;jpu ghj;jpakhft[k; jhdhjptpepnahf tpw;fpua';fSf;F nahf;fpakha[k; Mz;L mDgtpj;Jf; bfhs;s ntz;oaJ/ ,jd; K:yk; mtuth;fs; ghf brhj;ija[k; ehsJ njjpapnyna RthjPdk; bra;J bfhz;L tpl;nlhk;/ mtuth;fs; ghf

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brhj;Jf;Fk; ,dpnky; mtuth;fSk; jdpj;jdpna Kdprpgy; thp Kjyhditfs; brYj;jpf; bfhs;s ntz;oaJ/ ekf;Fs; ghfg;gphptpid bra;J bfhs;sg;gl ntz;oa brhj;Jf;fs; buhf;fk; tifawhf;fs; ntbwhd;Wk; fpilahJ/ ,dpnky; mtuth;fs; jdpg;gl;l Kwikapy; th';Fk; fld;fSk; ,Jtiu jdpg;gl;l KwikapYk; VnjDk; fld;fs; th';fpapUe;jhYk; mtw;Wf;Fk; fld; th';fpa tUk; mth; ghf brhj;Jf;fSnk bghWg;ghf ntz;oaJ/ kw;w ghf!;jiunah ghf brhj;ijnah fl;Lg;gLj;j KoahJ/

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fl;llg;gFjpapy; ey;yJ bfl;lij mErhpj;J ekf;Fs; RK:fkhfnt ekf;Fs; xg;g[f; bfhz;L ek; rk;kjj;jpd; nghpy; ghf tp!;jPuzj;jpy; rpwpJ TLjy; Fiwt[ itf;fg;gl;Ls;sJ/ mjd;gona ehk; ghfk; mile;J bfhs;s xg;g[f; bfhz;oUf;fpnwhk;/ jw;nghJ bryt[f;F gzk; ,y;yhjjhy; ,e;j ghf ml;ltiz vGjpf; bfhz;Ls;s nghjpYk; gpd;dpl;L ifapy; gzk; fpilj;jJk; nghjpa gj;jpu';fs; th';fp ,jpy; fz;l gpufhuk; ghfg;gphptpid vGjp ifbaGj;jpl;L gjpt[ bra;Jbfhs;s xg;g[f; bfhz;oUg;gJld; mJtiuapy; ,ijna hpf;fhh;lhf ehk; xg;g[f; bfhz;Ls;nshk;/ ,dp ekf;Fs; mg;gj;j rk;ge;jk; VJkpy;iy/ ,jd; gpujp efyy; ek;kpUthplKk; ,Uf;fpwJ/

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ek;kpy; 1tJ egh; re;jpunrfu gilahl;rp ,jd; K:yk; mile;J bfhs;s ntz;oaJ A bc&oa{y; brhj;J tpguk;/

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rpjk;guk; hp/o/ rpjk;guk; rg;o/f!;gh rpjk;guk; Kdprpghypkpl;oy; tps';fpak;kd; nfhtpy; bjUtpy; nky; rufpy; ic& Kdprpgy; Ward No.2, Block No.13, (1) T.S.No.826 sq.feet 926(2) T.S.No.827 sq.feet 3899 tlg[uk; 1316 rJuo Mf ,uz;L lt[d; rh;nt bek;gh;fspYk; fl;Lg;gl;l ghf bkhj;j tp!;jPuzk; 2242 rJuoa[k;

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B

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,jdoapy; fz;l xnu ehd;bfy;iyf;Fl;gl;lJ/ ic& bjUt[f;Fk; (nk) B bc&oa{y; ghfj;Jf;Fk; (t) fpUc&;zK:h;j;jp brl;oahh; fhyp kidf;Fk; (fp) uhkyp';f gilahl;rp tPL njhl;lj;Jf;Fk; (bj) ,jw;Fs; bjd; tly; $hjpago fPH;g[uk; 16. nky;g[uk; 171-2a[k; fPH;nky; may;kidf; bfhj;j Xl;Ltpy;iy tPLkid njhl;lk; cl;glt[k;/

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ek;kpy; 2tJ egh; fypabgUkhs; gilahl;rp ,jd; K:yk; mile;J bfhs;s ntz;oaJ B bc&oa{y; brhj;J tpguk;/

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ic& rpjk;guk; rg;o. f!;gh rpjk;guk; tps';fpak;kd; nfhtpy; bjUtpy; nky; rufpy; ic& Kdprpgy; Ward No.2, Block No.13, (1) T.S.No.827 sq.feet 3899 bjd;g[wk 2583 rJuof;F rf;Fge;jp ic& ; bjUt[f;Fk; (nk) A bc&oa{y; ghfj;Jf;Fk; (bj) fpUc&;zK:h;j;jp brl;oahh; fhypkidf;Fk; (fp) brhf;f ehj brl;oahh; tPLnjhl;lj;Jf;Fk; (t) ,jw;Fs; bjd;tly; $hjpao fPH;g[uk; 21 nky;g[uk; 17 1-2a[k; fPH;nky ; may;kidf; bfhj;jJkhd Xl;Ltpy;iy tPLkid njhl;lk; cl;glt[k;/**

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A reading of the above document Ex.B.1 reveals that though it is mentioned as partition agreement as stated supra, they partitioned the property and took possession separately and enjoying the same. This is supported by documents Ex.B.2 to Ex.B.10 House tax receipts and electricity bills and the mortgage deeds Ex.B.11 and Ex.B.12 effected by the plaintiff in the year 1983 and 1987. Hence, Point Nos.1 and 2 are answered against the plaintiff .

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20. Point Nos.3 and 4

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This Court elaborately considered the family arrangement for unregistered partition in the case of Venkatasubramaniya Chettiyar (died) & others /vs/ Perumal Chettiar & others reported in CDJ 2012 MHC 1245 and in that case this Court relied upon the judgment of the Division Bench of this

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Court in A.C.Lakshmipathy and another /vs/ A.M. Chakrapani Reddiar and

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5 others reported in 2001(1) CTC 112. The observations made by the Division Bench of this Court in CDJ 2012 MHC 1245 is reproduced for better appreciation:

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" 17. In 2001(1) CTC 112(A.C.Lakshmipathy an another /vs/ A.M.Chakrapani Reddiar and five others), thel Division Bench of this Court elaborately considered the family arrangement/unregistered partition. After referring to relevant provisions from Indian Registration Act,1908 and Stamp Act, 1899 as well as the decisions of the Supreme Court and also the earlier decisions of this Court, the Division Bench held as under:-

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" 42) To sum up the legal position

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(i) A family arrangement can be made orally.

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(ii) If made orally, there being no document, o question

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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 halve 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

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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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(iv) 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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18. In 2001(1) T.L.N.J. 191 (Venkatachala Moopar (died) and others V. Balasubramanian) and 2001(3) CTC 328 ( K. Pattabiraman /vs/ K. Banumathi and four others), the single Judges of this Court held that " unregistered document though cannot be the basis for proving title can be looked into for deciding the nature and character of possession."

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In the light of the above principles, I have considered the admissibility/evidentiary value of Ex.B.1 alleged partition, which took place on 26.10.1971. Though the document Ex.B.1 partition dated 26.10.1971 was not registered, it can be looked into the status and also the nature and character of possession. The Subsequent document, Ex.B.11 and Ex.B.12 also reveals the conduct of the parties and treating their property separately. In pursuance of the documents Ex.B.1, Ex.B.2 and Ex.B.12 Trial Court erred and overlooked the contents in Ex.B.1 unregistered partition. The partition, Ex.B.1 dated

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26.10.1971 reflects the fact of previous partition between the parties on 26.10.1971. Therefore, the second partition is not maintainable between the parties .

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The contention of the learned counsel for the respondents that the parties in the partition dated 26.10.1971 are not competent has no merit for not challenging the partition effected on 26.10.1971.

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From the year 1971, in pursuance of the partition, they enjoyed separately and the plaintiff himself mortgaged the property as evidenced under Ex.B11 and Ex.B.12 and benefited under partition, now he cannot deny the partition held on 26.10.1971. Therefore, the contention of the learned counsel for the respondent has no merit. The Trial Court is committed error in considering the document partition deed dated 26.10.1971, Ex.B.1. Hence, the point nos. 3 and 4 are answered against the plaintiff.

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In the light of the above facts and the principles of law, the judgment and the decree of the trial court is unsustainable and the plaintiff is not entitled for partition of preliminary decree. Therefore the judgment and decree of the Trial Court is liable to be set aside .

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In the result, this Appeal is allowed with costs and the judgment and decree dated 22.12.2011 passed by the Principal District Judge, Cuddalore in O.S.No.46 of 2010 is hereby set aside. Consequently, connected miscellaneous petition, if any, is closed.

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04.03.2025

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Index : Yes / No Speaking order: Yes/No mrp

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To

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