These two appeals are arising out of two suits in which, one suit in O.S.No.177 of 1987 filed by Muniammal and Backiam against Lakshmi and others for declaration that the settlement deed dated 17.10.1984 registered as document No.3953 of 1984 in respect of 'A' and 'B' schedule properties as null and void and to declare that the plaintiffs are entitled for possession and enjoyment and another suit in O.S.No.224 of 1989 filed by Lakshmi and others against Muniammal and others for partition and separate possession.
2. For the sake of convenience, the parties are described as per their rank and status shown in the original suits.
3. The brief facts leading to the second appeals are as follows:
'A' schedule property in the suits was allotted to one Kandasamy during the partition among the brothers and he was in possession and enjoyment of it till his death in the year 1982. He died intestate and after his death, the first defendant Lakshmi(O.S.No.177 of 1987), who is the wife of Kandasamy along with her three children, who are the defendants 2 to 4 namely, Selvi, Savithiri and Gandhimathi; and Ramayee ammal, the mother of Kandasamy are jointly enjoying the 'A' schedule property. The said Ramayee ammal, who had 1/5 share in the 'A' schedule property, out of affection towards her two daughters by name, Muniammal and Bakiyam (who are the plaintiffs in O.S.No.177 of 1987) settled her share in favour of her daughters on 17.10.1984 and the same was registered on 18.10.1984. Since then, the plaintiffs are in possession and enjoyment of the property. The defendants, knowing about the execution of the settlement deed executed by Ramayee ammal in favour of her daughters, took Ramayee ammal to their place and got executed a partition deed fradulently and registered it on 22.10.1984, as if the same was executed on 13.10.1984, so as to nullify the registered settlement deed executed by Ramayee ammal in favour of the plaintiffs on 17.10.1984. In sofar as 'B' schedule property is concerned, the plaintiffs claim 1/12 share as alternate plea, if the 5th defendant, who is the brother of Kandasamy, denies the partition between their brothers.
4. The defendants have disputed the partition between Kandasamy and his brother regarding the suit schedule property and also the claim of the plaintiffs that the 'A' schedule property was allotted to Kandasamy and enjoyed by Kandasamy, his wife, mother and children. They have denied the execution of the settlement deed by Ramayee ammal on 17.10.1984 in respect of' A' schedule property and also her right to settle the same. The allegations made against the defendants that they have fradulently created the partition deed and got it registered on 22.10.1984 to nullity the settlement executed on 17.10.1984 by Ramayee ammal, are also denied. Similarly, the alternate relief of 1/12 share in the 'B' schedule property has also been denied and the same was disputed by the defendants in their written statements.
5. The specific case of the defendants is that the suit properties were originally owned by Appachi gounder and his sons Kandasamy and Muniappan. Appachi gounder died in the year 1977 leaving behind his wife Ramayee ammal, sons and daughters. Kandasamy died in the year 1982. After the death of Kandasamy, the defendants 1 to 5 are in possession and enjoyment of the properties, which was bestowed on them through a release deed of their father Appachi gounder executed on 23.3.1944. After the death of Kandasamy gounder, the properties were subjected to partition on 13.10.1984. As per the partition deed, 'A' schedule property was allotted to the 5th defendant and the 'B' schedule property was allotted to defendants 1 to 4 and the plaintiffs, who are the legalheirs of the deceased Kandasamy. Items 3 and 4 in the 'C' schedule property were allotted to Ramayee ammal, till her life. The defendants 1 to 4 and the 5th defendant each gave Rs.5000/- per stripe and a total sum of Rs.10,000/- was given to Ramayee ammal on the date of executing the partition deed. After the life time of Ramayee ammal, items 3 and 4 in the 'C' schedule property were to be enjoyed by the 5th defendant and the defendants 1 to 4 respectively. Accordingly, they have taken possession of these two properties and enjoying it.
6. With these pleadings, the parties agitated their cause before the trial Court by letting in evidence both oral and documentary. On behalf of the plaintiffs, Exs.A1 to A25 were marked and P.W.1 to P.W 3 were examined. On behalf of the defendants, Exs.B1 to B4 were marked and D.W.1 to DW3 were examined.
7. Based on these pleadings and evidence, the trial Court held that the alleged partition among the brother of Kandasamy 20 years prior to the suit was believed and accepted. Purusant to that, it held both the settlement deed and the partition deed are genuinely executed by Ramayee ammal. Further held that the partition deed marked as Ex.B3, dated 13.10.1984 will prevail upon the settlement deed marked as Ex.B1, dated 17.10.1984, since it is prior in point of time Accordingly, O.S.No.224 of 1989 was allowed and O.S.No.177 of 1987 was dismissed.
8. Aggrieved by this, Muniammal and Bakiyam the plaintiffs (O.s.No.177of 1987) have preferred two appeals, in which one A.S.No.92 of 1997 directed against the declaration of right of the plaintiffs in 'A' and 'B' schedule properties and the declaration of settlement deed dated 17.10.1984 executed in favour of the plaintiffs on 17.10.1984 are valid and another A.S.No.93 of 1997 directed against the dismissing suit in O.S.No.177 of 1987 for partition filed by the plaintiffs. The lower appellate Court through a common judgment dismissed both the appeals.
9. Aggrieved by the same, the present two Second Appeals are preferred. This Court, at the time of admission, has formulated the following a common Substantial Questions of Law for both the appeals:
1. Will not the failure to consider the evidence of D.W.1 in chief, without setting forth any ground for its rejection amounts to failure to consider the evidence on record?
2. Whether the construction of the learned lowerAppellate Court of the decision of the Hon'ble Supreme Court of India in Kali Prasad vs. M/s Bharat Coking Coal Ltd. (A.I.R. 1989 S.C.1530) is erroneous which has rendered the judgments and decree impugned be set aside?
3. Is the necessary pleading on a crucial aspect of the case be dispensed with on the ground that evidence has been let in?
4. Whether the ratio of the decision of the Hon'ble Supreme Court of India in Kali Prasad v. M/s Bharat Coking Coal Ltd. (A.I.R.1989 S.C. 1530) is applicable to the facts of the case?
5. Whether the Courts below have failed to follow the ratio of the Hon'ble High Court in Krishnan v. Sivalinga Gounder and another (reported in 1996(1) Law Weekly 622)?.
10. The learned counsel appearing for the appellants/plaintiffs read through the evidence of D.W.3 Muniappan wherein he has deposed the circumstances under which, the partition deed marked as Ex.B3 came into existence. According to the said evidence, he has purchased the stamp papers to prepare Ex.A3 on 12.10.1983. Surveyor was asked to measure the property and prepare sketch and after obtaining the sketch from the surveyor, the document was registered on 22.10.1984. As per his evidence, on 20.10.1984, the Surveyor measured the property. It is the specific evidence that he asked Ramayee ammal is mother to come and execute the partition deed on 22.10.1984. At that time, she informed that she has already settled the property in favour of her daughters. She has demanded Rs.5000/- from them and if they pay that money, she will sign the partition deed. Thereafter, they took Ramayee ammal to the Register Office on 22.10.1984 and got the deed registered.
11. Further, the learned counsel appearing for the plaintiffs/appellants pointed out that the witnesses denied the suggestion that they signed Ex.B3 on 13.10.1984. Therefore, he contended that the witness himself has admitted that the partition deed was not prepared on 13.10.1984 and Ramayee ammal signed the document only on 22.10.1984, which is subsequent to the execution of settlement deed in favour of her daughters. So, the Courts below ought not to have rejected the settlement deed executed on 17.10.1984 as later in point of time.
12. The learned counsel appearing for the appellants streanously submitted that once the witnesses admit that the document was not signed on 13.10.1984 then, the settlment deed dated 17.10.1984 prevails and the plaintiffs in O.S.No.177 of 1989 ought to have been given their share, based on the settlement deed. Further, the learned counsel appearing for the appellants pointing out the deposition of DW3, who has stated that he went to call his mother to sign Ex.A3, she informed him that she has already executed the settlment deed in favour of her daughters. Therefore, it is evidently, clear that the prior document is only the settlement deed and not the partition deed, though it is dated 13.10.1984.
13. Per contra, the learned counsel appearing for the respondents/defendants submitted that DW3 has reconciled the portion of DW3 evidence pointed out by the learned counsel appearing for the appellants, when he was again recalled on 21.01.1993, wherein he has categorically deposed that the process of effecting partition of the property commenced long before and on 13.10.1984 itself the document was signed but, due to delay in measuring the property by Surveyor, it could not be registered immediately. The contemplation of partition deed had commenced prior to the execution of the settlement deed and therefore, there is no need to interfere with the judgments of the Courts below.
14. For the contention raised by the appellants that the trial Court has gone beyond the pleadings and taken note of the evidence in connection with facts not pleaded, the lower appellate Court has referred the following passage of the Hon'ble Supreme Court judgment in Kali Prasad Agarwalla & Others v. Bharat Coking Coal Limited & others reported in 1989 AIR 1530, which reads under:-
“The parties went to trial knowing fully well what they were required to prove. They have adduced evidence of theft choice in support of the respective claims. That evidence has been considered by both Courts below. They cannot now turn round and say that the evidence should not be looked into. This is a well accepted principle”.
15. The perusal of the lower appellate Court reveals that as a response to the averment that the partition deed Ex.B3 is a anti dated document, the defendants have given an explanation for the delay in registering the document. The trial Court and the lower appellate Court have accepted the same and have held that Ex.B3 was executed on 13.10.1984 and got registered on 22.10.1984. In the said context, the lower appellate Court has referred the Supreme Court judgment cited above and has distinguished it with the facts of the case in hand.
16. In so far as the ratio laid down by the Hon'ble Supreme Court in Krishnan v. Sivalinga Gounder and another reported in (1996)1 LW 622, it is to point out that the execution of the document contemplated the case of prior contract between the seller and the purchaser, which is subsequently put down in writing and signed by the seller, even though the registration is required for the purpose of validating, the contract referred in the document registeration by itself will not convey the title, it only validity or gives a legal title to the purchaser. In this context, the Courts below have considered the Ex.B3 partition deed and bearing in mind, the dicta laid down by the judgment of the Madras High Court cited supra that:
“11. Even though it can be presumed that a document was executed on that date on which it purports to have been executed and bears the date, that is only a weak presumption. When the execution is challenged, and the allegation is that it is ante-dated, it is for the person claiming under the document to prove that it was executed on the date which it bears. Even the weak presumption will apply only between the parties to the transaction and not against the third person.”
17. The Courts below have holisticly analysised the documents and the deposition of the witnesses spoken about the document and have come to the conclusion that the settlement deed relied by the appellants has lost the legal enforcibility, in view of the partition deed, which was contemplated prior to the settlement deed and duly executed and registered. Having found that the settlement deed relied on by the appellants is shrouded with suspicious whereas, the partition deed does not suffer such infirmity, this Court finds that the Substantial Questions of Law raised by the appellants have no force, since it has been consistently pleaded and proved by the defendants that the partition deed was executed prior to the settlement deed and the evidences let in and accepted by the Courts below are only a manifestation of the pleadings and not new facts alien to the pleadings. The reason for the delayed registration has been explained by the defendants through the witnesses. Omission to provide reason for delayed registration of the partition deed in the pleadings per se will not be nullify the document,if the execution is duly proved.
18. For the aforesaid reasons, both the Second Appeals are dismissed. No order as to costs.
14.02.2017 Idex:Yes/No Internet:Yes/No ai To
1. The District Judge at Erode.
2. The Subordiante Judge at Bhavani.
Dr.G.Jayachandran, J.
ari
S.A.Nos.1040 and 1041 of 1999
14.02.2017
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