The appellant herein, is the plaintiff in the suit has preferred the appeal against the judgment and decree made in O.S.No.84 of 1994 dated 30.08.1995, on the file of the Subordinate Judge, Devakkottai.
2. The brief case of the plaintiff in a nutshell is as follows:
a) The plaintiff and the first defendant in the suit are children of one R.M.K.Palaniappa Chettiar. The said R.M.K.Palaniappa Chettiar died on 17.05.1988, leaving behind the plaintiff, the first defendant and their mother Lakshmi Aachi. The suit properties except Item 2 are the self acquired properties of Palaniappa Chettiar. There is no other properties except Item 2 as ancestral property and the said property being the house, there is no income from the same. Item No.3 of the suit properties are the jewels and the plaintiff is entitled to 1/3th share out of the Items 1 & 3 of the suit properties and 1/6th share out of the Item 2 of the suit properties.
b) After the death of their father, R.M.K.Palaniappa Chettiar, the plaintiff asked the first defendant for partition of the jewels as per the caste custom but the first defendant has refused to part with any of them. The key for the room in which the jewel locker have been kept was with the plaintiff and the keys for the jewel locker is with the first defendant. On 05.06.1988, the first defendant asked the plaintiff to come to his house at Karaikudi to take inventory of the jewels. However, there were six persons present in the house along with the former M.L.A. Mr.C.T.Chidambaram and they wanted the jewels to be brought. The plaintiff did not have any choice except to open the door. The first defendant opened the jewel box and took most of the jewels. Only B- Schedule jewels have been given to the plaintiff and the first defendant has kept the A-Schedule jewels. The first defendant has asked one of the persons present to get signatures of the plaintiff in the papers and forcibly signatures have been obtained. The jewels given to the plaintiff were of inferior quality and they will not constitute 1/10th of the total value. The remaining 9/10th share was taken by the first defendant. The first defendant prepared some written documents and forced the plaintiff and her son to sign stating that if the plaintiff does not sign she will not get any jewels. Ex. M.L.A. C.T.Chidambaram is a relative of the first defendant. The plaintiff was forced to sign because the men of the first defendant were ready to beat her. The plaintiff does not know the contents of the document. Under those circumstances, the plaintiff was constrained to issue legal notice under Ex.A1 and on receipt of the same, a reply was given under Ex.A2 on untenable and false grounds. A reply was given by the plaintiff under Ex.A3. The contentions of the first defendant that there was an oral partition on 03.06.1988, in which the plaintiff has agreed to take utensils is not correct. It is also not correct that on 05.06.1988, the plaintiff went to the first defendant house with her husband and two children and there was no panchayat on that day. It is not true that there was any settlement between the parties on 05.06.1988 and no letter has been given for change in the mutation of the revenue records. After the issuance of the legal notice, the mother of the plaintiff died. Therefore, the plaintiff is now entitled to half share in Items 1 & 3 of the suit properties and 1/4th share in the Item 2 of the suit properties.
3. The case of the defendant in the nutshell is as follows:
a) It is true that the father Palaniappa Chettiar died on 17.05.1988 and it is also true, that the plaintiff was having the key to the room in which the jewel box and other utensils have been kept. There was a settlement which is an oral settlement between the plaintiff and her husband on one hand and the first defendant on the other hand, wherein, it was agreed that the plaintiff would relinquish all her share in the suit properties and take the utensils. It was further agreed that the plaintiff would come to the house of the first defendant and take the utensils on 05.06.1988 and give receipt for the same. It was further agreed that the mother would be maintained by the first defendant. Items 1 & 3 of the suit properties are not self acquired properties of the father, since he was actually working for a sum of Rs.200/- as an employee under the plaintiff's husband, who was running a financial concern by name 'R.M.M.Bank'.
b) It is the further case of the first defendant that on 05.06.1988, the plaintiff with her husband and two sons along with two other persons came to Item 2 of the suit property, in which the first defendant is residing. The first defendant has made arrangements for writing of the document of the family settlement and also, for effecting mutation in the revenue records. The plaintiff and her husband have refused to sign the document by saying that until or unless the share is given in the jewels of the mother, they will not sign. Therefore, in the presence of the panchayatdars namely, former M.L.A. C.T.Chidambaram, P.R.P.L.Palaniappa Chettiar and A.Nachiayappa Chettiar, the documents were signed by the plaintiff and her son and thereafter, the plaintiff has taken the jewels and the utensils.
4. The son of the plaintiff, who is P.W.2 in the present case is a M.A. degree holder. It is not true that the signatures have been obtained from the plaintiff and her son by force. Mr.C.T.Chidambaram was an Ex. M.L.A. and former Chairman of the Municipality, Mr.Palaniappa Chettiar was an elderly person aged about 70 years and Mr.Nachiappa Chettiar was a retired Bank Officer. The first defendant has made substantial improvement in the suit properties. Hence, the first defendant has prayed for dismissal of the suit and the suit is also liable to be dismissed as barred by limitation.
5. The defendants 2 to 15 are tenants and they have filed written statement stating that the dispute between the plaintiff and the first defendant would not cover them and they have no objection for any division between the plaintiff and the first defendant.
6. The following issues have been framed by the trial Court which are as follows:
1) Is the plaintiff entitled to half share in Item Nos.1 & 3 of the suit properties and 1/4th share in Item No.2 of the suit property or not?
2) Is the suit maintainable?
3) What other relief the plaintiff is entitled to?
7. The plaintiff and her son Ramaiyah have been examined as witnesses and three documents have been marked on the side of the plaintiff which are legal notice sent by the plaintiff, the reply given by the first defendant and re- joinder . On the defendant's side, three witnesses have been examined including the first defendant and two other persons of whom one is the panchayatdar and the other one is scribe. The defendants marked Ex.B-1 to B-15 on their side. Ex.B12 is the settlement document between the plaintiff and the first defendant. Ex.B-3 is a letter signed by the plaintiff and P.W.2. Ex.B-14, which is the acknowledgement of the plaintiff and her son for the receipt of diamond and gold jewels.
8. Heard the learned counsels appearing for the appellants as well as the first respondent.
9. As seen from the pleadings, the plaintiff has made a demand for partition of the jewels after the death of her father on 24.05.1988. The said fact has been mentioned in the plaint as well as in Ex.A1, legal notice. It is the further case of the plaintiff that when she went to the first defendant's house for the purpose of taking inventories, she was forced to sign the papers and to take disproportionate share in the jewels along with the utensils. Therefore, she was constrained to file the suit seeking partition of the suit properties.
10. In this connection, it is useful to extract the statement made in Ex.A1 which is as follows:
"That on his death my client demanded the jewelleries as per the caste custom but you have refused to part with any of them"
Thereafter, it is the case of the plaintiff that she locked the door of the room in the house which is Item 2 of the suit property and in which, the first defendant was residing and kept the keys with her. It is the further case of the plaintiff that on 05.06.1988, she and her son Ramiayah, who is P.W.2 herein, went to the house of the first defendant since the request was made to open the door for the purpose of taking inventories of the jewels and also admitted that P.W.2 is a degree holder.
11. On a perusal of the pleadings, the evidence of the plaintiff and the legal notice issued on her behalf, it is made clear that her specific case is that she went on 05.06.1988 to meet the first defendant only for the purpose of taking inventories. Therefore, that her pleadings, the legal notice as well as the evidence show that her grievance was only with reference to the jewels since after the death of her father she made the demand for partition of jewels alone. The legal notice also mentioned primarily about the non partitioning of the jewels earlier. Hence, from the above said facts, it is clear that the dispute between the plaintiff and the first defendant was only with reference to the jewels. It is further to be seen that no explanation was given in the plaint for filing the suit only on 28.04.1994, when according to the plaintiff forcible signature has been obtained as early as on 05.06.1988 itself. The plaintiff having alleged that forced signatures has been obtained from her and the documents have been created, neither she has not taken any steps from 05.06.1988 nor gave any police complaint except giving a legal notice in Ex.A1 dated 14.06.1988.
12. It is also seen that the plaintiff has admitted that she has taken all the utensils as well as the jewels given to her on 05.06.1988. There is also no proper explanation as to why she took the jewels and utensils. The evidence available on record shows that the plaintiff's husband was running a financial company and the plaintiff's son, who is P.W.2 is a graduate and the other son is a lawyer. The above said facts would indicate that the allegations that the plaintiff and P.W.2 were forced to sign the documents cannot be true as mentioned earlier. There is also no explanation for the delay in filing the suit after issuing the legal notice as early as on 14.06.1988.
13. In so far as the contentions raised by the first defendant that there was a family arrangements between the plaintiff and the first defendant on 03.06.1988, wherein, the settlement has been arrived to the effect that the first defendant will take all the immovable properties and the plaintiff will have to take all the utensils, the same has been supported by the evidence of D.W.1 to 3 as well as Ex.B12 to B14. The panchayat was held in the presence of one C.T.Chidambaram, who was an Ex.M.L.A. and former Chairman of the Municipality. The other two persons present are Mr.Palaniappa Chettiar was an elderly person aged about 70 years and Mr.Nachiappa Chettiar was a retired Bank Officer. The stamp papers contained in P.W.12 shows that it has been purchased on 03.06.1988. The said fact supports the case on the first defendant in view of the settlement made on 03.06.1988, that they have been purchased to be used on 05.06.1988. Further, even though the plaintiff has alleged that D.W.2 and other panchayatdars are interested persons, no evidence is brought forth in support of the said contentions. It is further to be seen that the case of the plaintiff is that after raising the dispute during the death ceremony of her father, she went to see the first defendant for taking inventories alone and not for the settlement and so, she cannot accept the facts of the case. It is also seen from the evidence of D.W.2 and D.W.3, they did not know and make any panchayat about the partitioning of the immovable properties thereby, leading to the inference that what was decided on 05.06.1988 was only in respect of jewels alone.
14. The trial Court on an appreciation and on proper analyzation of the evidence let in both oral and documentary on the side of the plaintiff as well as the first defendant has come to the conclusion that the contentions of the first defendant that there was an oral partition on 03.06.1988 is true.
15. The trial Court has further held that the contentions of the plaintiff that Items 1 & 3 of the suit properties are self acquired properties of the father is not true since the father of the plaintiff worked out under the husband of the plaintiff for a sum of Rs.200/- which is inclusive of his expense towards his food. The trial Court has further held that in view of the factual finding that there was an oral partition regarding the immovable properties on 03.06.1988 and in view of the fact, that there was no such discussion over the immovable properties on 05.06.1988 coupled with the contents of Ex.B12, there is no need for registering Ex.B12, since it is only evidencing the earlier partition between the parties. In other words, the trial Court has held that Ex.B12 does not purport to clear, declare, assign, limit or extinguish any right, title or interest of any immovable properties. Hence, the trial Court has dismissed the suit.
16. Therefore, the trial Court has gone into the entire issues involved in the suit and has given a well merited judgment. When the trial Court has considered the evidence on record and gave convincing reason for rendering judgment, the appellate Court in the normal circumstances shall not disturb the findings and reverse the judgment. It is true that an appeal is on re-hearing and the appellate court can re-appreciate the appeal and review the entire case. But it should be borne in mind, that the trial Court's appraisal of evidence shall not be disturbed normally until or unless it is erroneous and contrary to law and unreasonable. This is for the reason, the trial Court is in a position to observe the demeanour of the witness before recording its findings. In this connection, it is useful to refer the judgment of the Hon'ble Supreme Court in 2008 (6) MLJ 842 (Jagdish Singh Vs. Madhuri Devi) wherein, the Hon'ble Supreme Court was pleased to hold that in the normal circumstances the findings given by the trial Court on applying its mind shall not be disturbed unless for convincing reasons to be recorded by the appellate court. Therefore, considering the same, this Court is of the opinion that the findings of the Court below are perfectly agreeable and they do not warrant any interference.
17. In the present case, the conduct of the party also will have to be seen here. It is the case of the plaintiff that after raising the dispute that she went to see the first defendant only for taking inventories. Her evidence both oral and documentary also shows that her grievance was with respect to the jewels. She has not proved about the force exercised by the first defendant. It is also seen from the evidence that the plaintiff's father was working under her husband. It is further seen that the plaintiff's children were educated and one of the son is a lawyer. It is not in dispute that she has taken the jewels in pursuant to the settlement on 05.06.1988. There is also no explanation as to why she has not given any complaint for the alleged possession. Finally, there was no explanation for filing the suit in the year 1994, for the occurrence which took place on 05.06.1988. The above said factors would clearly show that the conduct of the plaintiff is not true and genuine. The Court below has also given a finding that the plaintiff was accompanied by her family members including her lawyer son. In the judgment reported in 2009 (2) CTC 858 (Vimal Chand Ghevarchand Jain & Others Vs. Ramakant Eknath Jajoo), the Hon'ble Supreme Court has pleased to hold that while considering the evidence of a party as to whether it is true or not, the Court may consider his conduct. In the present case on hand, the trial court has considered the conduct of the plaintiff while considering the evidence and appreciated it and therefore, this Court is of the opinion that such appreciation of fact cannot be set aside.
18. The learned counsel for the appellant submitted that on a perusal of Ex.B12 clearly states that it creates a right and title in favour of the first defendant and it also, extinguishes the right of the plaintiff in the suit properties and therefore, the same should be construed as a partition deed warranting the registration under Section 17 of the Indian Registration Act, 1908. According to the learned counsel that under those circumstances in view of the embargo envisaged under Section 49 of the said Act, Ex.B12 cannot be looked into. It is further submitted that only to get over the same, the first defendant has set out the plea of oral partition. The learned counsel for the appellant relied upon several judgments reported in AIR 1988 SC 881 (Roshan Singh and others Vs. Zile Singh and others), 1999 (II) CTC 555 (D.Agastin and another Vs. Devasagayan and another), 2001 (1) CTC 112 (A.C.Lakshmipathy and another Vs. A.M.Chakrapani Reddiar and Five Others), 2007 (1) MLJ 586 (Sellamuthugounder Vs. Marappagounder and Others) as well as the judgment reported in 2007 (5) CTC 444 (Ranjganathan Giramani Vs. Visalatchi & Others) in support of his contentions that a document which is creating or extinguishing any right to a party will have to be registered compulsorily and in the absence of the same, the same cannot be made admissible in evidence. Hence, according to the learned counsel Ex.B12 is nothing but a partition deed and therefore, it has to be rejected and hence, the suit ought to have been decreed.
19. In order to appreciate the contentions of the learned counsel for the appellant one as to look into the provision of the Indian Registration Act, 1908,
Section 17 of the Registration Act, 1908 is extracted hereunder for useful reference:
"17.Documents of which registration is compulsory.-(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely,-
a)instruments of gift of immovable property;
b)other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;"
and similarly,
Section 49 of the Registration Act is extracted hereunder for ready reference:
"49.Effect of non-registration of documents required to be registered.- No document required by
section 17 [or by any provision of the Transfer of Property Act, 1882,] to be registered shall-
a) affect any immovable property comprised therein, or
b) confer any power to adopt, or
c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
[Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of any collateral transaction not required to be effected by registered instrument.]"
20. On a perusal of the said provisions, it is clear that
Section 17 speaks about compulsory registration of document which create, declare, assign limit or extinguish any right or title or interest in immovable properties.
Section 49 of the said Act mandates that such a document which requires registration under
Section 17 shall not be received in evidence. The proviso to the suit document however, says that the said document can be looked into for collateral purposes.
21. A family arrangement between the members of the family can be made orally or reduced in writing. However, when the document is reduced in writing and used as a partition deed, then it has to be registered since it attracts
Section 17 of the Indian Registration Act. Similarly, when it attracts the provisions of
Section 17 of the Indian Registration Act, it also attracts the provisions of the Indian Stamp Act as well. However, when a document is only a memorandum recording the factum of a partition which had already taken place then the question of registration does not arise for consideration. The question whether a document is a partition deed requiring the complaints of
Section 17 of the Registration Act or Indian Stamp Act is one of the fact involving the construction of the document as coupled with oral evidence. In the judgment reported in AIR 1988 SC 881 (Roshan Singh and others Vs. Zile Singh and others), the Hon'ble Supreme Court has pleased to hold that in a given case, when there was an oral partition by which, a partition has been effected between the parties and the same was recorded in a subsequent written document, the question of registration does not arise, since the subsequent document only records the earlier oral arrangement. The Hon'ble Supreme Court has held as follows:
"It is well-settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under S.17(1)(b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction."
Therefore, the judgment relied upon by the learned counsel for the appellant does not supports his case but only holds that the registration is not required, when the document only records the earlier oral partition. In the judgment reported in 1999 (II) CTC 555 (D.Agastin and another Vs. Devasagayan and another), the Hon'ble High Court has held that when a document is a partition deed, the same is inadmissible in view of non registration. There is absolutely no difficulty in accepting the said proposition of law, since the Hon'ble High Court has held that on facts that the document in question in the said case was one of the partition. Hence, the said judgment is not also applicable to the present case on hand. In the Judgment 2001 (1) CTC 112 (A.C.Lakshmipathy and another Vs. A.M.Chakrapani Reddiar and Five Others), the Hon'ble High Court has held that it is permissible to have a family arrangement orally but when a family arrangement is made in writing for the first time, then it must be properly stamped and duly registered in accordance with the Stamp Act and Indian Registration Act. The Hon'ble High Court has also held that when a document is in the nature of memorandum evidencing the earlier oral partition and when the same has been prepared only for recording the same, it need not be stamped or registered. Therefore, the said judgment of the Division Bench also does not support the case of the appellant. The learned counsel also relied upon the judgment of the Hon'ble High Court reported in 2007 (1) MLJ 586 (Sellamuthugounder Vs. Marappagounder and Others) and 2007 (5) CTC 444 (Ranjganathan Giramani Vs. Visalatchi & Others) to contend that a deed of partition requires the registration of payment of necessary stamp duty. As held earlier that there is no dispute about the said principle of law but the question to be decided is as to whether a document is a deed of partition or not. In those two cases, a finding has been given that the documents were deeds of partition.
22. In order to appreciate the factual position, the Court has to go into the contents of Ex.B12. A reading of Ex.B12 contains that the plaintiff had in fact taken possession already. Therefore, the said clause clearly supports the case of the first defendant that there was an oral partition earlier. The said portion of the Ex.B12 is extracted hereunder for ready reference:
ehk; FLk;g Vw;ghL bra;Jbfhz;L 3tJ eghpd; gA;FtPjj;jpw;F rh;tlf;fkhf i&ahs; ghj;jpugz;lA;fis mile;Jbfhz;Lk; ghf;fpa[s;s !;jhtu $A;fk brhj;Jf;fs; g{uhita[k; nuz;lhtJ egh; khzpf;fk; mile;Jbfhz;Lk; mtutUk; Vw;fdBt RthjPdk; vLj;Jf;bfhz;L tpl;lhh;fs;. Kdprpgy; thptpjpg;g[khWjy; kpd; nizg;g[ khWjy; KjyhditfSf;Fj; Bjitahd ifbaGj;Jf;fs; 2tJ egh; BfhUk; rkak; 1,3 egh;fs; Bghl;Lf;bfhLf;fr;rk;kjpf;fpwhh;fs;.
In pursuant to the same under Ex.B13, the plaintiff also signed the documents enabling the first defendant to carry out the mutations in the revenue records. Therefore, on appreciation of the evidence on record as well as on reading of Ex.B12, this Court is of the opinion that the finding of the trial Court that Ex.B12 is only a recording of past transactions of oral partition of immovable properties has to be confirmed.
23. The entire issue can be seen from another angle as well. Even assuming Ex.B12 requires registration, then even ignoring the same the oral partition made on 03.06.1988 can be made as the basis for dismissing the suit. As stated above, the trial Court has considered the evidence on record thoroughly before coming to the conclusion that a plea of oral partition has been done. Therefore, this Court is of the opinion that contentions raised by the appellant will have to be rejected.
24. Finally, the learned counsel for the appellant submitted that Ex.B12 has not been properly stamped and therefore, it cannot be looked into. On a perusal of the judgment of the trial Court it is seen that no plea of insufficient stamped duty has been raised. Even in the grounds, no such plea has been raised. The question whether Ex.B12 is sufficiently stamped or not being a question of fact cannot be gone into for the first time in the appeal when the same has not been raised. Moreover, in view of the finding that Ex.B12 is nothing but a memorandum recording earlier past oral partition, the said contention cannot be accepted. The judgment relied upon by the appellant reported in 2007 (1) MLJ 586 (Sellamuthugounder Vs. Marappagounder and Others) wherein, it has been stated that a deed of partition, will have to be stamped. The said judgment also will not apply to the facts of the case, since the said case is mentioned earlier the document in question is a partition deed. In the recent judgment reported in 2008 (8) SCC 564 (K.B.Saha & Sons Private Ltd., Vs. Development Consultant Ltd.,) the Hon'ble Supreme Court has defined the word of "collateral purpose". The Hon'ble Supreme Court has held that a collateral transaction must be independent of or divisible from the transactions for which the law requires registration. It is further held that the collateral transactions must be the transactions which does not require a registration.
Therefore, considering the entire materials available on record, this Court is of the opinion that the appeal deserves to be dismissed and accordingly, the first appeal is dismissed and the judgment and decree made in O.S.No.84 of 1994 dated 30.08.1995, on the file of the learned Subordinate Judge, Devakkottai is confirmed. Consequently, connected Miscellaneous Petition is also dismissed. There shall be no orders as to costs.
DP To The Subordinate Judge, Devakkottai.