The second defendant in O.S.No.111 of 1995 is the appellant herein. The said suit was filed by the first respondent/plaintiff claiming that the suit properties which are 4 in number, were purchased from and out of the contributions of three sons of Munusamy Chettiar; namely B.M.Chenniya Chetty (first defendant), M.Chinnappan (second defendant), and M.Ranganathan, the plaintiff.
2.According to the plaintiff though the family was joint, it has no ancestral property. The first defendant and the plaintiff are doing cloth business, and the second defendant was employed in the Veterinary Hospital. Suit items 1 & 3 were purchased in the names of all the 3 brothers on 25.10.1968, 26.08.1970 and 07.09.1972 respectively. Item 4 was purchased on 26.11.1974 in the name of the first defendant, even though the three brothers are contributed for purchased Item 4 also. According to the plaintiff, none of the properties were divided while the plaintiff was residing in item 2, item 1 was in enjoyment of the first and second defendants. On the above pleadings, the plaintiff sought for partition and separate possession of his 1/3rd share in the suit properties.
3.The first defendant filed a written statement wherein, he would admit the case of the plaintiff with reference to items 1 to 3 and in so far as item 4 is concerned he would claim that he acquired the said property by purchase from out of his own money and the sale deed was taken in his name alone. Therefore neither the plaintiff nor the second defendant can claim any share in the said item.
4.The second defendant filed a separate written statement contending that all the four properties are common properties. He would further contend that there was a partition in the year 1976, and in the said partition item 1 was allotted to him to be enjoyed by him as his absolute property. He would further claim that the the partition is evidenced by a Muchalika dated 24.10.1976. He would also claim that he has been in a possession of item 1 from the date of the said partition namely on 24.10.1976, and hence he has perfected title by adverse possession. A rejoinder was filed by the plaintiff denying the partition dated 24.10.1976, and an additional written statement was also filed by the second defendant reiterating the partition. On the above pleadings, the learned Principal District Judge, Dharmapuri framed the following issues.
1.Whether the plaintiff is entitled to partition?
2.Whether the plaintiff is entitled to get perpetual injunction as claimed by him?
3.Whether the 4th item is the separate property of the 1st defendant?
(recast as per the order in I.A.No.337/2000 dated 27.07.2000).
4.Whether the item No.1 is the separate property of the 2nd defendant?
5.Whether the father of the plaintiff and the defendants 1 and 2 is a necessary party to the suit?
6.What is the relief for which the plaintiff is entitled?
(Additional issues framed as per Order in I.A.No.337/2000 dated 02.07.2000).
7.Whether the partition in 1976 pleaded by the 2nd defendant is true?
5.The plaintiff examined himself as PW-1 and Exs.A-1 to A-7 were marked. The first defendant was examined as D.W-1, and one Theerthagiri who claims himself to be the witness in Ex.A-4 sale deed was examined as D.W-2. The second defendant was examined as D.W-3, Exs.B-1 to B-12 were marked on the side of the defendants. The Commissioner's report and plan marked as Exs.C-1 and C-2. The final report and sketch were marked as Ex.C-3 and C-4.
6.Upon a consideration of the oral and documentary evidence, the learned Principal District Judge, Dharmapuri rejected the defence of the first defendant relating to item 4 of the suit properties. He had infact come to the conclusion that item 4 of the suit properties was also purchased by the brothers out of their joint contribution, and therefore, the first defendant cannot claim any independent/absolute right over the suit item 4. The learned Principal District Judge also rejected the claim of the second defendant regarding the alleged partition dated 24.10.1976. With reference to the Muchalika executed on 24.10.1976 which has been marked as Ex.B-5, the learned Principal District Judge found that the said document has been marked subject to objections and even during the course of the evidence it is made clear that the document is produced for the purpose of proving possession and not for proving partition. The learned Principal District Judge also found that the document being one which effects the partition by itself it requires to be stamped and registered. In the absence of proper stamp and registration, the learned Principal District Judge refused to accept the theory of partition put forth by the second defendant. The fact that the none of the witness of the said document were examined by the second defendant was also take a note of the learned Trial Judge. On the above conclusions, the learned Trial Judge decreed the suit as prayed for granting 1/3rd share to the plaintiff in all the suit properties. Aggrieved by the said judgment and decree, the second defendant alone has filed the above appeal. The first defendant who claimed that the 4th item of the suit properties belongs to him, has accepted the decree of the Trial Court. Considering the scope of the appeal, the following points are framed for determination in this appeal:-
1.Whether the 2nd defendant has proved the alleged partition said to have been taken place on 24.10.1976?
2.Whether Ex.B-5, Muchalika dated 24.10.1976 can be admitted in evidence for proving the partition?
7.I have heard Ms.Sri Priya, learned counsel appearing for appellant and Ms. P.T.Asha, learned counsel appearing for respondents. Ms. Sri Priya, learned counsel appearing for appellant would contend that the plaintiff as well as the first defendant admitted their signature partition Muchalika dated 24.10.1976. According to the learned counsel, the said document records a oral partition and it cannot be treated as a document effecting the partition in itself. She would further contend that the fact that the second defendant has been in possession of the 1st Item of property in his own right since the partition would show that the partition was accepted and acted upon. It is also her further claim that the suit 1st item purchased from mother in law of the second defendant hence the same was allotted to him in the partition.
8.Per contra Ms.P.T.Asha, learned counsel appearing for respondents would contend that Ex.B-5 Muchalika itself was marked subject to objections and even during the recording of evidence it was conceded, that the said document was marked only for collateral purpose and not for proving the partition. She would also drawn my attention to the evidence of DW-3 with reference to marking of Ex.B-5 Muchalika dated 24.10.1976. The said evidence is as follows :
ehDk; vd; rnfhjuUk; ghfg; gphptpid gj;jpuk; vGjp gjp[t[ bra;J bfhs;stpy;iy/ Kr;rypf;fh kl;Lk; vGjpf; bfhz;nlhk;/ me;j Kr;rypf;fh gp/rh/M?5/ (nkw;go Mtzk; ghfg; gphptpidia epU:gpg;gjw;fhf my;yhky; RthjPdj;ijf; fhl;Ltjw;fhf Jizf; fhhpaj;jpw;fhf kl;LnkDk; FwpaPL bra;a ntz;Lbkd;W nfl;Lf; bfhz;ljd; nghpYk;. mjw;fhd Fwpg;g[ xd;W vGjpf; bfhLj;jjd; nghpYk; rhd;whtzkhf Vw;Wf; bfhs;sj;jf;fjh? ,y;iyah? Vd;gij tHf;F tprhuiz Kotpy; Kot[ bra;ayhk; vd;w epge;jidapd; mog;gilapy; nkw;go Mtzk; rhd;whtzkhff; Fwpaplg;gl;lJ/
9.Relying upon the aforesaid evidence, the learned counsel would contend that Ex.B-5 cannot be relied upon to prove a partition. Inviting me to the recitals of Ex.B-5 she would contend that a reading of document itself would show that it cannot be treated as a record of a past oral partition. The language applied in the document very clearly shows it is a document in presenti, and the same cannot be relied upon for want of stamp duty and registration.
10. I have considered the oral and documentary evidence particularly the contents of Ex.B-5. The relevant portion of Ex.B-5 reads as follows:
24/10/1976?k; tUlk; mf;nlhgh; khjk; ,Ugj;jpehY njjpapy; ghy;fnfhL jhY}f;fh. bghk;k cws;sp kJuh Mykuj;Jg;gl;oapy; FoapUf;Fk; B.S.KDrhkp brl;oahh; Fkhuh; rd; B.M.brd;idabrl;o1. M.rpd;dg;g;d 2. u';fehjd;3. Mpfa ehk;K:tUk; Vnfhgpj;J vGjp itj;Jf; bfhz;l th;j;jkhz cld;gof;if vd;dbtd;why; ehk; ,J ehs; tiu VfFLk;gkha; md;nahd;akha; ,Ue;J te;jjpy; ,g;nghijf;F ekf;Fs; mof;fo tPd; rh;irfSk; jfuhUk; Vw;gl;Lte;jjd; fhuzkhf rpy bghJth;fs;. fpuf!;j;jh;fs; g";rhaj;Jgo fPH; fz;l tPjk; ehk; K:tUk; mtuth;fSf;Fz;lhd ghfbrhj;Jf;fis mth; mth;;fs; mile;Jk; mtuth;fspd; fld;fis mtuth;fs; Mz;L mDgtpj;Jf; bfhs;sg;gl;lth;fs;/ ,ij xUth; ghfj;jpy; kw;bwhUth; ghj;jpak; bfhz;lhlnyh gpuntrpf;fnyh TlhJ/
11.From the above recitals it is clear that the document was intended to be partition in itself and it is not a record of something which had happened earlier. Ms.P.T.Ahsha, learned counsel appearing for respondents would drawn my attention to the judgment of Division Bench of this Court in A.C.lakshmipathy and another .v. A.M.Chakarapani Reddiar and five others reported in 2001 (1) CTC 112 wherein, a Division Bench of this Court considered the requirements of a family arrangement and the effect of non registration and non stamping of such documents. After reviewing the entire case law on the subject, the Division Bench had observed as follows:
23.It is now fairly well settled that the co-owners can partition the immovable properties orally. But, however where a document is employed to effectuate a partition or any of the transactions specified in
Section 17 of the Registration Act such document must be registered, notwithstanding with the transaction is one which the law does not require to be put into writing. Such unregistered document cannot be looked into to prove the terms of the partition. But, however the same if inadmissible in evidence for the purpose of creating, declaring, assigning, limiting or extinguishing a right to immovable property. The expression collateral purposes is no doubt a very vague one and the Court must decide in each case whether the parties who seek to use the unregistered document for a purpose which is really a collateral one or as is to establish the title to the immovable property conveyed by the document. But by the simple devise of calling it collateral purpose, a party cannot use the unregistered document in any legal proceedings to bring about indirectly the effect which it would have had if it registered.
12.It is no doubt true that a partition can be oral and a document which records a oral partition that had taken place does not require either stamping or registration. If we are look into the document namely Ex.B-5 dated 24.10.1976, the recitals there in, very clearly show that the parties intended to effect the partition under the said document and it is not a record of a partition which had already taken place between the parties. I also find that Ex.B-5 is written on four rupees stamp paper. Therefore, it is neither stamped in accordance with law nor is it registered. I therefore hold that the said Muchalika dated 24.10.1976 cannot be relied upon the second defendant to prove the alleged partition. As already pointed out the second defendant had not chosen to examine any of the attestors to the said document or any other independent witness to prove his alleged possession as per the said document excepting his interested oral testimony. There is no other reliable evidence to show that the second defendant had in fact ousted the plaintiff or the 1st defendant, so as to debar them from claiming a share in suit item 1.
13.The 2nd defendant has produced Ex.B-8 to show that the revenue records in respect of suit item 1 were mutated in his name by the proceedings of the Tahsildar, Krishnagiri on 27.03.1991. No material evidence is available in the document to show as to whether the plaintiff and the 1st defendant were notified before the said order was passed. The said document alone cannot entail the 1st defendant to claim absolute title to the suit item 1, since the suit has been filed within 4 years from the date of the document. The sale deed inrespect of thesuit item 1, admittedly stands in the name of the plaintiff and the defendants 1 and 2. For all the above reasons, I am unable to accept the contentions of the learned counsel for the appellant, and on the 1st question my answer to is that the plaintiff has failed to establish that a partition had infact taken place on 24.10.1976. For the 2nd question my answer is that Ex.B-5 partition Muchalika cannot be looked into to prove the partition. The 2nd defendant has miserably failed to prove his claim.
14.For the forgoing reasons, I do not see any ground to interfere with the judgment and decree of the trial Court, and therefore the same is confirmed and the appeal is dismissed. Considering the relationship of the parties, there will be no order as to cost.