This appeal had been filed by the plaintiff in O.S.No.94 of 2004, challenging the judgement and decree dated 17.03.2006, by the learned Additional District Judge, Fast Track Court No.II, Madurai. This CMP(MD).No.1941 of 2017 is filed by the appellant to receive as many as 22 documents as mentioned in the affidavit as additional evidence in the main AS(MD) No.108 of 2017.
2. OS.No.94 of 2004 had been filed by the plaintiff M.Sanjeevi, seeking a preliminary decree for partition and for separate possession of 1/3rd share in the suit 'A' schedule property and 1/7th share in the suit 'B' schedule property and for accounts with respect to suit 'C' and 'D' schedule and on such determination of accounts, for 1/7th share in 'C' and 'D' schedule and for costs.
3. The 'A' schedule property in the suit is land and building in door No.95, Old Natham Road, Tallakulam, Madurai North. The 'B' schedule are vacant sites, measuring 3060 square feet in plot Nos.12 and 13 in patta No.9, R.S.No.220/20, Old Natham Road, Tallakulam, Madurai. The 'C' schedule is Life Insurance Corporation of India policy to the value of Rs.2,92,609.60/-. The 'D' schedule is the value of a revolver valued at Rs.1,50,000/-. The plaintiff, M.Sanjeevi, is the son of late Murugan. The first defendant, Tmt.Leelavathi @ Lilly, is the wife of late Murugan and the mother of the plaintiff. The second defendant Lakshmi, third defendant Rajendran, fourth defendant Dhayalan, fifth defendant Bhanumathi, sixth defendant Vinoth Kumar are the sons and daughters of late Murugan. The seventh defendant Sivasankaran Chettiyar and eight defendant Chellappan are creditors to estate of late Murugan.
4. According to the plaintiff, the 'A' schedule property was purchased by him and by third defendant Rajendran and fourth defendant Dhayalan, by a registered sale deed, dated 24.11.1985. It had been stated that since they are the owners of the property and since partition has not been effected, the plaintiff is entitled to an undivided 1/3rd share in the suit property. It had been further stated that the 'B' schedule property was purchased by late Murugan, by a registered sale deed dated 07.04.1986. Since he died intestate, all his Legal Heirs including the plaintiff and the defendants 1 to 6 are entitled to an undivided 1/7th share in the said property. Consequently, the plaintiff has sought an undivided 1/7th share in the suit, with respect to 'B' schedule property. With respect to 'C' schedule property, namely, amount due from the Life Insurance Corporation, it has been stated that the first and third defendants had received the amount as nominees and consequently, the plaintiff has claimed 1/7th share of the amount due, payable along with interest. With respect to 'D' schedule property, it had been stated that the first and third defendants had sold the revolver, belonging to late Murugan and had received a sum of Rs.1,50,000/-. The plaintiff has claimed undivided 1/7th share in the said amount. The plaintiff further claimed that the seventh defendant had issued a notice stating that he was due and payable a sum of Rs.45,000/- from late Murugan and similarly, the eighth defendant had also issued a notice, with respect to the amount due to him. Consequently, since they are creditors to the estate, they have also been impleaded as parties. It has been stated that the plaintiff had invested amount in putting up building in the 'A' schedule property and also in the 'B' schedule property. The plaintiff issued an advocate notice dated 28.08.1995, for which the defendants did not reply. Consequently, claiming partition and separate possession, the suit has been filed.
5. The defendants 1 and 4 to 6 filed a written statement, claiming that the tenants in the property have not been impleaded and that the suit is bad for non-joinder of necessary parties. It had been stated that the 'A' schedule property was purchased by late Murugan, from and out of his own income in the name of the plaintiff and third and fourth defendants. Since the entire family is a joint family, it had been stated that all the family members are entitled to equal shares in the said 'A' schedule property. Similarly, with respect to 'B' schedule, the defendants also claimed 1/7th undivided share in the 'B' schedule suit property. With regard to the amount payable by the Life Insurance Corporation, it has been stated that it was the plaintiff who took away the said amount and consequently, there is no amount due and payable to the plaintiff. With respect to the 'D' schedule property, it has been stated that the defendants were not aware about the possession of revolver by late Murugan. Consequently, they stated that they are not liable for accounts or for payment of any amount to the plaintiff. With respect to the eighth defendant, it had been stated that the second, fifth and sixth defendants had paid a sum of Rs.1,00,000/- in full settlement of the loan. It had been therefore stated that the suit should be dismissed as there is no cause of auction for claiming partition.
6. The seventh defendant filed a written statement, stating that he is an unnecessary party to the suit and consequently, claimed that the suit should be dismissed against him.
7. The eight defendant also filed a written statement, stating that the second, fifth and sixth defendants approached him and paid a sum of Rs.1,00,000/- on 21.03.1999 towards the loan of Rs.45,000/- and accrued interest. Consequently, it had been stated that he is also an unnecessary party to the suit.
8. The parties went to trial. On the basis of their respective rival pleadings, the learned Additional District Judge, Madurai, had framed the following issues for trial:-
1.Whether the plaintiff and the third and fourth defendants have jointly purchased the 'A' schedule property?
2.Whether the plaintiff has spent his own money and has constructed building in 'A' and 'B' schedule properties?
3.What is the share of both parties in the 'A' and 'B' schedule Properties?
4.Is there any family loan and is there any family liability? If so, what are the liabilities of the parties to the suit?
5.Who is entitled to have the equity in the process of partition of schedule properties?
6.To what relief the parties are entitled?
9. During the trial, the plaintiff had examined himself as P.W.1 and the fourth defendant had examined himself as D.W.1. On the side of the plaintiff, Ex.A.1 to Ex.A.33 were marked. Ex.A1 is the sale deed with respect to 'A' schedule property, dated 24.11.1985 in favour of M.Sanjeevi, Rajendran and Dhayalan. Ex.A2 is the sale deed in favour of I.Murugan dated 07.04.1986. Ex.A.3 to Ex.A.23 are the revenue records with respect to the 'A' and 'B' schedule properties. Ex.A.24 dated 05.08.1996 is the notice and Ex.A.25 is a receipt in the name of the plaintiff. Ex.A.26 to Ex.A.33 are house tax receipts. On the side of the defendants, Ex.B.1 to Ex.B.5 were marked. Ex.B1, dated 28.02.2005 is a registered sale deed executed in favour of the plaintiff. Ex.B2 is the copy of the advocate notice. Ex.B3 is full settlement discharge issued by the eighth defendant. Ex.B4 is a mortgage executed by Murugan. Ex.B5, dated 07.04.1986 is a sale dead executed by K.C.Joseph.
10. On consideration of the oral and documentary evidence, the learned Additional District Judge, Fast Track Court No.II, Madurai by judgment and decree dated 17.03.2006 granted a preliminary decree in favour of the plaintiff with respect to 1/7th share in 'A' and 'B' schedule properties. It had also been stated that the plaintiff is liable to reimburse the first, second and sixth defendants for the discharge of father's debt to a sum of Rs.14,285.71/-. It had also been decreed that the plaintiff is liable to render accounts, with respect to rent he has received from the properties. The suit was dismissed with respect to 'C' and 'D' schedule properties. A preliminary decree was granted accordingly. This appeal has been filed by the plaintiff, challenging the grant of decree to only 1/7th share in the 'A' schedule property and also that part of the decree that he should pay a sum of Rs.14,285.71/- to the first, second and sixth defendants for the discharge of the debt of their father late Murugan.
11. Heard Mr.K.Suresh Kumar, learned counsel appearing for the appellant and Mr.A.Arumugam, learned counsel appearing for the respondents 1 to 6.
12. At the outset, it is to be stated that the respondents 1 to 6, in their written statements have not paid any court fees, towards their claim of partition and separate possession. They can pay necessary court fees during final decree proceedings. The respondents 1, 2 and 6, however, have also not paid any court fees towards their claim towards payment of Rs.1,00,000/- by them, towards discharge of loan received by I.Murugan. They have also not paid any court fees for the direction to the appellant to render accounts. Consequently, in so far as the decree that the appellant was liable to reimburse the first, second and sixth respondents to a sum of Rs.14,285.71 and that he has to render accounts with respect to rent which he has received, cannot stand scrutiny in the eye of law. On this short ground namely ?no court fees, no relief?, with respect to the said directions of the trial Court, the judgment and decree to that extent is liable to be set aside.
13. The plaintiff is the son of late.Murugan. The first defendant is the widow of late.Murugan. The defendants 2 to 6 are the other sons and daughters of late Murugan. On his death, in his name, he left behind the 'B' schedule property. He died intestate. Naturally, since he left behind seven Legal Heirs, the 'B' schedule property is divisible into seven equal parts and the appellant/plaintiff is entitled to 1/7th share. Similarly, the defendants 1 to 6 are also entitled to an undivided 1/7th share. In the trial Court, with respect to 'B' schedule property, undivided 1/7th share has been granted to the appellant and to the respondents 1 to 6.
14. The appellant has challenged the preliminary decree, with respect to the grant of only 1/7th share in 'A' schedule property, in contrast to the 1/3rd share claimed by him.
15. Ex.A1 is the sale deed with respect to 'A' schedule property. This is a registered document and registered as document No.4155 of 1985, in the Office of the Sub Registrar, Tallakulam, Madurai. This property has been purchased in the names of M.Sanjeevi (Appellant), M.Rajendran (3rd respondent) and M.Dhayalan (4th respondent) who are all described as sons of I.Murugan. They had attained the age of majority. The sale deed had been executed on 24.11.1985, by K.B.S.Iyer, son of A.Kalyana Sundaram Iyer. The total sale consideration was Rs.49,000/-. In the sale deed, it had been stated that the vendor had received the sale consideration from the purchasers. It had also been stated that on the date of purchase, possession had also been given. It had been further stated that title had also been transferred in the names of M.Sanjeev (Appellant), M.Rajendran (3rd respondent) and M.Dhayalan (4th respondent). Ex.A1 is a registered document as stated above. Unless evidence is produced to the contrary, the document speaks for itself. The names of the purchasers and the schedule of the property are also mentioned in the document. It is the case of the respondents that the sale consideration was actually given by I.Murugan, the father. However, the burden of proof in such case is heavily upon the respondents to prove that the entire consideration was spent only by I.Murugan.
16. In this connection, the appellant has also filed CMP(MD) No.1941 of 2017 under Order 41 Rule 27 of Civil Procedure Code, to receive additional documents as additional evidence as stated above. It is his claim that he had been profitably employed in sale of breed dogs. He also stated that even when he was studying, he was doing part time business as a Video cameraman and Photographer. He was working as a Supervisor in New Arya Bhavan Hotel. He also went to abroad namely, Singapore, Malayasia. He was also doing business as agent in Peerless Insurance Company. He has also sold his property on 18.10.1985 to one Saroja for a sale consideration of Rs.25,000/-. Therefore, he claimed that he had source of money to purchase the property. This application has been filed under Order 41 Rule 27 of Civil Procedure Code. However, in view of the narrow scope of the appeal, I am not inclined to consider the documents filed along with this petition.
17. I hold in favour of the appellant based on the clauses in Ex.A.1 itself, in which, the consideration was said to have been paid by the purchasers to the vendor. If contra evidence is to be given, then as stated above the burden is heavily on the person, who disputes that payment and who has to also establish that the said statement in Ex.A.1 is not correct. In this case, I am not prepared to accept the evidence of D.W.1.
Section 92 of the Indian Evidence Act, in clear terms states that no amount of oral evidence can be given as against the writings in a document, particularly in a registered document. Evidence can be adduced if fraud is alleged. However, fraud has to be pleaded and proved. In this case there is no pleading and there is no acceptable evidence to doubt the statement regarding payment of consideration in Ex.A.1. Consequently, I have no hesitation in reversing the judgment and decree of the trial Court in so far as granting 1/7th share alone to the appellant, with respect to 'A' schedule property. I hold that the appellant is entitled to an undivided 1/3rd in the 'A' schedule property as claimed by him in the plaint.
18. In the result, this Appeal Suit is allowed in part to the extent mentioned below and the connected MP and CMP are closed :-
1.In so far as the impugned judgement and decree in O.S.No.94 of 2004 dated 17.03.2006, on the file of Additional District Judge (Fast Track Court No: II), Madurai, granting 1/7th share in the A-Schedule property to the appellant/plaintiff is concerned, it is modified and it is held that the appellant is entitled to an undivided 1/3rd share in the 'A' schedule property.
2.In so far as the impugned judgement and decree that the appellant is liable to reimburse the first, second and sixth respondents to a sum of Rs.14,285.71/- and that he has to render accounts with respect to rent which he has received, the judgment and decree in O.S.No.94 of 2004 dated 17.03.2006, on the file of Additional District Judge (Fast Track Court No: II), Madurai, is set aside.
3.In respect of directions with respect to schedule 'B', 'C' and 'D' are concerned, the impugned judgement and decree in O.S.No.94 of 2004 dated 17.03.2006, on the file of Additional District Judge (Fast Track Court No: II), Madurai, is confirmed.
4.However, in view of the relationship among the parties, the parties have to bear their own costs.
To
1. The Additional District Judge, Fast Track Court No.II, Madurai.
2. The Record Keeper, VR Section, Madurai Bench of Madras High Court, Madurai.
.