The defendant is the appellant. The second appeal is preferred against the decree and judgment passed in A.S.No.53 of 2006, dated 31.01.2007, on the file of the learned Principal Sub-Judge, Tenkasi, confirming the judgment and decree passed in O.S.No.369 of 2005, dated 08.03.2006, on the file of the learned Additional District Munsif Court, Tenkasi. The suit is filed for declaration, recovery of possession and for mandatory injunction.
2.The brief facts of the case are as follows:
Plaint first schedule property originally belonged to Valangaipulithevar S/o.Maruthappa Thevar. The plaintiff purchased the plaint schedule property on 18.01.1975 through a registered sale deed and he has been residing in the suit property by putting up a hut on the western portion and there is a cow shed on the eastern portion. The defendant is the brother of the plaintiff. The plaintiff put up a hut in the first schedule property and he was in possession and enjoyment of the entire property and he has used the second schedule vacant site along with the cattle shed. He had also put up a hut in the 3rd schedule property, in which his mother was residing for some time. The defendant, being a bachelor, was living in a rented house and during the life time of his mother, the defendant used to visit there and at that time the plaintiff and the defendant were in good terms. In the year 1999, there was a fire and the plaintiff renovated the house and obtained an electricity connection. After the death of the mother, the plaintiff permitted the defendant to enjoy the 3rd schedule property. However, the defendant has no right or interest in the 3rd schedule property. On 01.06.2005, the plaintiff and his family went to Kerala and when they returned on 11.06.2006, the plaintiff found that the defendant started putting up a construction in the 3rd schedule property and when the plaintiff questioned the same, the defendant denied the title of the plaintiff and therefore, the suit is filed for declaration of title, recovery of possession and for mandatory injunction.
3.The suit was resisted by the defendant stating that the suit property was purchased in the name of the plaintiff as a joint family property. The suit property was in joint enjoyment of the mother and two sons. The defendant, being a bachelor, was residing in the 3rd schedule property for many years. The house was assessed to house tax in the name of the defendant at Door No.86. The electricity connection No.791 is also in the name of the defendant and for the last 35 years, he is in possession and enjoyment of the said property. However, on 08.04.2000, there was an Yathasthu (family arrangment) executed by the plaintiff and thereby he had obtained the title to the 3rd schedule property and the suit is misconceived and the plaintiff is not entitled for any relief.
4.On the basis of the above averments, the learned Additional District Munsif, Tenkasi, framed triable issues and has found that the entire suit property was purchased by the plaintiff and the claim of the defendant that the property was purchased in the name of the plaintiff as joint family property is not true and also found that the Yathasthu, an unregistered document is not valid to give any right to the property and therefore, decreed the suit in entirety.
5.The defendant preferred an appeal before the learned Subordinate Judge, Tenkasi, and the learned first appellate Court also analysed the evidence and found that the plaintiff has proved his title and the defendant has miserably failed to prove his case and thereby, confirmed the decree and judgment of the trial Court.
6.Aggrieved by the same, the plaintiff has preferred the present appeal on the following grounds:-
(i) Both the Courts below ought to have upheld Ex.B1. They are wrong in holding that Ex.B1 requires registration and stamp.
(ii) Both the Courts below failed to note that Ex.B-1 is only a memorandum recording a prior partition between the plaintiff and the defendant, who are brothers.
(iii) Both the Courts below ought to have held that Ex.B-1 is only the family arrangement recording the prior partition. So it does not require registration. It is only an acknowledgement of prior partition between the brothers.
(iv) Both the courts below ought to have held that the suit property is ancestral in nature.
(v) Both the Courts below ought to have held that after having entered into a partition agreement, the plaintiff is estopped from claiming title to third schedule of property.
(vi) Both the Courts below failed to take into consideration Exs.B2, to B5. These documents prove that Ex.B1 was acted upon by the brothers and the defendant has paid house tax for 3rd schedule property in pursuance of family arrangement.
7.On admission, this Court has framed the following substantial question of law.
(i) Whether the Courts below are correct in coming to the conclusion that Ex.B1 requires registration?
(ii) Whether the Courts below are correct in disbelieving Exs.B2 to B6?
8. I have carefully considered the rival contentions. The case of the plaintiff is that he has purchased the property under Ex.A1, dated 18.01.1975 and he has put up two houses in Door Nos.86 and 86-A and he has been in enjoyment of the same. He would admit that in the eastern part of the property, in Door No.86, his mother was living and after her death, the defendant was permitted to reside. According to the plaintiff, the defendant was permitted to reside from only 2000.
9.On the contrary, the case of the defendant is that the entire suit property, which is shown as the first schedule property, has been purchased in the name of the plaintiff, as joint family property. It is also the contention of the defendant that by 'Yathasthu' on 08.04.2000, there was a partition between the brothers and the 3rd schedule property was allotted to him and it has been in his enjoyment.
10.There is a plan filed along with plaint to show the suit property. The entire suit property is shown as the first schedule property and the portion, which is in enjoyment of the plaintiff is shown as second schedule property and the portion disputed is shown as 3rd schedule property. However, a Commissioner was appointed and he has filed a report along with the plan under Exs.C1 and C2. The Commissioner has also shown that the entire suit property is shown as first schedule property is the entire property and almost half of the western portion is shown as second schedule property and the eastern half portion is shown as 3rd schedule property, wherein the Commissioner has seen some new construction. Admittedly, there is a house in the 3rd schedule property in which the defendant is residing. The possession and enjoyment of the defendant in the 3rd schedule property is admitted by the plaintiff. The plaintiff would state that it is a permissive occupation but the defendant would state that the entire suit property was purchased as joint family property and he has claimed independent title under Ex.B1. Both the Courts below have rejected Ex.B1, being an unregistered document.
11.The learned counsel for the appellant would state that Ex.B1 is onlyaa family arrangement and it does not require registration, being the Yathasthu or a proof of document evidencing the earlier partition.
12.The learned counsel for the appellant relied on the judgment of this Court reported in 2005 (4) CTC 457 (P.R.Kannaiyan (died) and others Vs. Ramasamy Mandiri) for the following proposition::
"when the property is in the name of Kartha, the Karth has to prove that the property in his name had been acquired without the aid of joint family income.
13.The learned counsel for the appellant next relied on the judgment of the Hon'ble Apex Court reported in AIR 1976 SC 807 (Kale Vs. Dy.Director of Consolidation) wherein it has been held as follows:-
"The family arrangement may be even oral in which case no registration is necessary. The registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for the information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and is, therefore, not compulsorily registrable".
14.The learned counsel for the appellant also relied on the judgment of the Hon'ble Apex Court reported in AIR 1988 SC 881 (Roshan Singh Vs. Zile Singh) for the same proposition.
15.The learned counsel for the respondent would submit that Ex.B1 is not a document evidencing oral partition and therefore, it is not admissible.
16.The learned counsel for the respondent invited the attention of this Court to the Judgment of the Division Bench of this Court in A.C.Lakshmipathy and another Vs. A.M.Chakrapani Reddiar and five others reported in (2001 (1) CTC
112), wherein this Court laid down the guidelines and the essential ingredients of family arrangement, which requires no registration.
17.The learned counsel, next, invited the attention of this Court to the judgment of the Division Bench of this Court in (Deivanai Ammal Vs. Meenakshi Ammal) reported in (2004 (3) M.L.J 507) for the proposition that the burden of proof is on the person, who claims that the property is joint family property.
18.The learned counsel also relied on the judgment of this Court reported in 2005 (2) C.T.C. 385 (Amudha and others Vs. K.Jeyaraman and another) wherein this Court has held, "the document which constitutes a release of right in the property has to be stamped in accordance with
Section 35 of Stamp Act".
19.The entire case of the defendant revolves around Ex.B1, an agreement. The recital would show as if the plaintiff has executed the Yathasthu (agreement) in favour of the defendant. There is a recital in the document stating that the suit property belonged to the father of the plaintiff and the defendant and they are enjoying the same by oral partition and therefore, Door No.86, within four boundaries as recited has to be enjoyed by the defendant. According to the defendant, it is a document evidencing the family arrangement.
20.It is well settled principle that the person, who claims that the suit property is a joint family property has to prove that the property is the joint family property purchased from the joint family income.
21.The property was purchased under Ex.A1 in the year 1975. There is no iota of evidence on the side of the defendant to prove that the property was purchased as joint family property and there is no proof to show that there was a nucleus, out of which the property was purchased in the name of the plaintiff. Therefore, the claim that the suit property is the joint family property is not sustainable. Only for a joint family property, there can be a partition between the sharers. The recitals in Ex.B1 would show that the executant viz., the plaintiff, has almost released his right in the property mentioned in the schedule therein. Therefore, Ex.B1 is more in the nature of a release deed than that of an agreement evidencing the oral partition.
22.
Section 17(1) of the Registration Act reads as follows:-
"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 No.XVI of 1864, or the Indian Registration Act 1866 (20 of 1866) or Indian Registration Act, 1871 (8 of 1871) or the Indian Registration Act, 1877 (3 of 1877) or this Act came or comes into force, namely --
(a) .......
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether 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;
23.The judgment reported in 2001 (1) CTC 112 (cited supra), the Division Bench of this Court has held that when the document in question was executed with the intention that the document itself constitutes the sole repository as document of title, then it cannot be looked into for any purpose, if the same is unstamped or unregistered.
24.In my considered view, the recital in Ex.B1 would indicate that the document is a release deed for the simple reason that the plaintiff purported to have released his rights and title in the property purchased in his name, which requires registration under
Section 17 of the Registration Act and also it requires to be stamped under
Section 35 of the Indian Stamp Act, 1839. Therefore, the Courts below are right in holding that Ex.B1 cannot be looked into as it requires registration and stamping.
25.As far as Exs.B2 and B6 are concerned, the patta proceedings and tax receipts will not confer any right or title to the defendant and therefore, the Courts below have not placed much reliance on Exs.B2 and B6. The substantial questions of law are answered accordingly.
25.In the result, the appeal fails and the same is dismissed. However, there will be no order as to costs.
MPK To
1.The Principal Sub-Judge, Tenkasi.
2.The Additional District Munsif, Tenkasi.