This appeal has been filed, against the judgement and decree, dated 14.7.1999 in OS.No.37 of 1987, by the Principal Sub Judge, Trichy, dismissing the said suit.
2. The Appellant herein was the Plaintiff in OS.No.37 of 1987. The said suit had been filed, seeking partition of A-Schedule property into four equal shares and allotment of 1/4th share to the Plaintiff and for rendition of accounts from 1972 and to ascertain the Plaintiff's 1/4th share.
3. A-Schedule property was at Old Door No.51-78, New Door No.55, Town Survey Nos.2867 and 2875, Block No.19, Ward No.6, Trichy Fort, Rani Street, Trichy and Door Nos.213, 214 and 215 in Town Survey No.2877 and 2876, Big Bazaar Street, Trichy Fort, Trichy.
4. The Plaintiff claimed 1/4th undivided share in the said properties. The Plaintiff is the son of R.L.Rangachari. The 1st, 2nd and 3rd Defendants are also sons of R.L.Rangachari and brothers of the Plaintiff. R.L.Rangachari was a business man and he had established several establishments and he did businesses under the name and style of Chary Sons (Money lending) , Chary Enterprises andL SLV.Corporation (paper, Stationery) at Trichy. He also purchased the properties with his own funds. They were his self acquired properties. He was in possession and enjoyment of the properties as owner. His wife predeceased. He died in 1972.
5. It has been stated that R.L.Rangachari died, leaving behind him four sons, namely, the Plaintiff and the 1st to 3rd Defendants and he also had four daughters, who were not parties to the suit. He left behind a Will dated 27.12.1971. It was executed when he was in a sound state of mind. It was executed, attested and registered in accordance with law. It came into force after his death. In terms of the said Will, the properties in A- Schedule were bequeathed to all the sons, namely, the Plaintiff and the 1st to 3rd Defendants to be divided by them equally. After his death, all the four sons purchased Door Nos.214-215 in Big Bazaar Street, Trichy, in their joint names. They put up new construction annexing the properties purchased with that of A-Schedule. The Plaintiff commenced new business in 1976 and has been having his own separate business. The 1st to 3rd Defendants are also doing separate business. After the death of R.L.Rangachari, the 1st Defendant, as eldest brother, has been managing the Printing Press and Stationery business, shown in the B-Schedule in the Will. The Printing Press was in a rented premises. The premises was vacated in 1974 by the 1st Defendant after receiving goodwill from the landlord and the business was run by the 1st Defendant himself. In 1976, the 1st Defendant sold the machineries, types, dhalavadasamans, etc. for two lakhs, but he did not pay any amount to the Plaintiff.
6. It has been stated that the 1st to 3rd Defendants had incurred loans in their respective business. The Plaintiffs claimed that he was not bound by the said loans. Thereafter, the 1st to 3rd Defendants made the Plaintiff to execute certain documents. They did not act and fulfil the promises made. The Plaintiff therefore withdrew his act. According to the will, the Plaintiff is entitled to 1/4th share in the Plaintiff Schedule properties. He is in joint possession. It has been stated that the 1st to 3rd Defendants had been receiving income from the rent collections for which they will have to render accounts. The Plaintiff is also entitled to 1/4th share of the income derived. It has been further stated that the 1st Defendant received the jewels of the wife of the Plaintiff weighing 15 sovereigns and pledged them for their benefit and a sum of Rs.5000 was received by the 1st Defendant from the Plaintiff. The 1st Defendant had not given any account with respect to the same. The 1st Defendant also sold the family car, motorcycle and has not given any accounts. It has been stated that the 4th, 5th and 6th Defendants are the tenants in the A-Schedule items (1) and (2). The rents given by them are being collected by the 1st to 3rd Defendants. In such circumstances, the suit has been, as stated above, for partition and for rendition of accounts, has been filed.
7. The 1st Defendant has filed his written statement. According to him, ?the person named as R.L.Rangachari?, who in fact was his own father, passed away on 12.3.1972 and the businesses had been closed on 31.3.1972. The allegation that Chary Sons, Chary Enterprises and SLV.Corporation had been started by the deceased R.L.Rangachari was denied. It has been stated that these businesses had been started after his death, by the Plaintiff and the 1st to 3rd Defendants and the businesses have been closed in the year 1975. It has been stated that the properties are not the self-acquired properties of R.L.Rangachari. It has been stated that item (1) in the A- Schedule, namely Door No.213, Big Bazaar Street, Trichy alone was purchased by R.L.Rangachari and after his death, Door Nos.214-215 have been purchased by the Plaintiff and the 1st to 3rd Defendants. The fact that the properties were bequeathed in four equal shares by the Will was also denied. The fact that the properties were purchased by the four brothers in Door Nos.214-215 and improvements had been made over them had been accepted. It has been stated that all the four brothers maintained the Printing Press and Stationery business. It has been denied that the 1st Defendant received goodwill and vacated the rented premises. It has been stated that the machineries of the Printing Press and stock of Stationery business were sold in 1972 itself.
8. It has been stated that taxes have been paid from the said sales and the expenses owing to death of R.L.Rangachari were borne from the said sales. It has been stated that marriages of the Plaintiff, 3rd Defendant and one of the sisters were celebrated after the death of R.L.Rangachari and expenses have been borne by all the brothers. The 1st Defendant denied that he sold everything in 1977. It has been stated that all the four brothers have incurred loans from Federal Bank Limited and from third parties and the Plaintiff was also equally liable for them. It has been stated that the Plaintiff was not entitled to 1/4th share in the suit property or to 1/4th share in the income as alleged by him. It has been stated that 14 sovereigns of jewels had to be given to the Plaintiff and it had also been given, apart from Rs.40,000/-.
9. It has been stated that the Plaintiff executed release deeds before the concerned Sub Registrar. It has been stated that it was false to state that the 1st Defendant received Rs.5000 from the Plaintiff. With respect to car and motorcycle, it has been stated that the 2nd Defendant was the owner and he had sold them. It has been further stated that the Plaintiff had received the amount mentioned in the release deed and jewels and he had gone away from the family in the year 1976. It has been stated that the 4th to 6th Defendants are alone tenants and the 7th Defendant has nothing to do with the suit property. It has been further stated that the Plaintiff had entered into an agreement of release deed dated 27.9.1976 with the 1st to 3rd Defendants and agreed to release all his rights for a consideration of Rs.40,000/-. He accordingly received Rs.33,000/- and made necessary endorsements on 5.4.1977. He agreed to receive the balance of Rs.7000 and 14 sovereigns of jewels at the time of registration. Accordingly, the balance amount of Rs.7000 as well as 14 sovereigns of jewels were given to the Plaintiff and the release deed was reduced into writing and the same was also signed by the Plaintiff. The release deed was presented before the Sub Registrar, Joint-III, Trichy on 2.2.1979 and the registration was kept pending in P.No.14 of 1979 for want of production of income tax clearance certificate from the Income Tax Department. It was the duty of the Plaintiff to produce the said document. Since he had not produced the same, the Registrar sent a letter dated 8.6.1979. Thereafter, the Plaintiff got back the document from the Registrar Office. The Plaintiff had written two letters dated 16.2.1979 and 21.6.1979 with respect to the above.
10. It has been stated that all the members of the family are liable to pay income tax arrears. Subsequently, the 1st to 3rd Defendants wanted to settle the matter out of court and thereafter, another release deed was reduced into writing. That was also signed by the Plaintiff and presented for registration before the Sub Registrar. It was also kept pending in P.No.29 of 1980 for want of production of income tax clearance certificate. Again the Plaintiff had not produced the said certificate. The Sub Registrar sent a letter on 28.4.1981. It has been stated that the Plaintiff was not interested in getting the income tax clearance certificate. It has been, therefore, stated that the Plaintiff is estopped from filing the suit for partition. It has been stated that the Plaintiff had received the consideration of Rs.40,000/- and 14 sovereigns of jewels from the 1st to 3rd Defendants. It has been further stated that the 2nd Defendant filed OS.NO.377 of 1982 before the I Additional Sub Court, Trichy and the Plaintiff had filed IA.No.6 of 1983 to implead himself as a party. That suit was dismissed for default on 9.1.1986. Without restoring the said suit, the Plaintiff had filed the present suit. The 1st Defendant prayed that the suit should be dismissed with costs.
11. The 7th Defendant has filed his written statement and stated that as his father was a tenant in a portion of the suit property, he paid Rs.3000 as rental advance to the 1st to 3rd Defendants and therefore, the 7th Defendant became a tenant at Rs.80 per month. It has been stated that he was a statutory tenant and was an unnecessary party to the suit.
12. The 1st Defendant has filed an additional written statement. It has been stated that the Plaintiff had benefited by receiving consideration while signing the release deed. It has been stated that the Defendants are entitled to invoke the benefits of
Section 53A of the Transfer of Property Act.
13. During the trial, the 2nd to 7th Defendants were set exparte. On consideration of the rival pleadings, the following issues were framed for trial:-
1.Whether the Plaintiff is entitled for partition as claimed?
2.Whether the Plaintiff is entitled for the relief of rendition of accounts from the year 1972?
3.Whether the 7th Defendant is a necessary party to the suit?
4.To what other reliefs are the parties entitled?
14. During the trial, the Plaintiff examined himself as PW.1 and marked Ex.A1 to Ex.A10. The 1st Defendant examined himself as DW.1 and also examined another independent witness, Ramasamy, as DW.2 and marked Ex.B1 to Ex.B18.
15. Among the documents marked by the Plaintiff, Ex.A1 dated 27.12.1971 is the copy of the Will of R.L.Rangachari. Ex.A2 dated 5.11.1976 is the letter written by Ramamurthy to the Plaintiff. Ex.A3 dated 4.11.1976 is the letter written by the 1st Defendant. Ex.A4 dated 10.11.1975 is the discharge receipt for Rs.5000/-. Ex.A5 dated 4.4.1982 is the copy of the notice sent to the 1st to 3rd Defendants. Ex.A7 is the notice issued by Federal Bank to the Plaintiff and the 1st to 3rd Defendants. Ex.A8 dated 2.2.1979 is the agreement entered into between the Plaintiff and the 1st to 3rd Defendants. Ex.A9 dated 23.8.1994 is the letter written by the tax authorities to the Plaintiff and Ex.A10 is the receipt given by Balaji Finances to the Plaintiff in OS.No.756 of 1980.
16. Among the documents filed by the Defendants, Ex.B1 is the agreement dated 27.9.1976 between the Plaintiff and the 1st to 3rd Defendants. Ex.B4 dated 8.6.1979 is the letter written to the Plaintiff by the Joint Sub Registrar. Ex.B5 dated 28.4.1981 is the letter written by the Joint Sub Registrar to the Plaintiff and the 1st to 3rd Defendants. Ex.B9 is the extract of the register from Sub Registrar Office. Ex.B10 is the execution petition filed in OS.No.350 of 1983 and Ex.B11 is also related to the said suit. Ex.B12 is the judgement in OS.No.348 of 1981. Ex.B13 is the certificate for registration of Chary Enterprises under the Tamil Nadu Sales Tax. Ex.B14 is the similar certificate for SLV.Corporation. Ex.B18 is the advocate notice with respect to filing of the document in OS.No.377 of 1982.
17. On consideration of the oral and documentary evidence, the Trial Court dismissed the suit for partition, holding that under Ex.B3 agreement, the Plaintiff was under an obligation to execute the release deed, after receiving consideration of Rs.40,000/- and also jewels. It has been further stated that under
Section 53A of the Transfer of Property Act , the 1st to 3rd Defendants had performed their part of the agreement and consequently, the Plaintiff cannot seek for partition.
18. The Plaintiff is in appeal as against the said judgement and decree. During the pendency of the present appeal, the 3rd Defendant died and as his legal representatives, the 8th to 10 Respondents were brought on record. The matter was thereafter protracted since it was represented that the 9th Respondent was a person with unsound mind. This court had naturally had to conduct an enquiry under Order 32 rule 15 of CPC. After obtaining report, as is contemplated, from the Medical Board, this court had finally appointed the 10th Respondent as the guardian of the 9th Respondent.
19. MP(MD)No.2 of 2015 has been filed under Order 41 Rule 27 of CPC to receive additional documents, namely, the release deed executed by the Plaintiff in favour of the 1st to 3rd Defendants, dated 2.2.179, another release deed executed by the Plaintiff in favour of his brothers dated 4.10.1980, a publication made by the Plaintiff dated 17.9.1976 in Dinamalar Newspaper and a letter sent by Ramamurthy to the Plaintiff, enclosing a letter dated 4.11.1976 sent to him by the 1st Defendant.
20. This court heard the learned counsel on either side and also perused the materials placed on record.
21. The primary issue before this court is whether the suit properties are partitionable or whether, in view of the stand of the 1st Respondent that the Appellant had released his share for valuable consideration, the properties are not partitionable. The validity of the documents said to have been executed by the Plaintiff has also to be considered. The application under Order 41 rule 27 of CPC will have to be decided.
22. The Appellant and the 1st to 3rd Respondents are the sons of late R.L.Rangachari. They have also had four other sisters, who were not parties to the suit. The Appellant 1/4th undivided share in the A-Schedule property and also for rendition of accounts on the ground that R.L.Rangachari had purchased the properties, for which partition and separate possession is sought and also executed a Will dated 27.12.1971. According to him, under the said Will, the Appellant and the 1st to 3rd Respondents were entitled to 1/4th undivided share in the said property. The said Will was also produced as a document before the Trial Court, as Ex.A1.
23. According to the Appellant, his father, R.L.Rangachari was a business man and was having businesses, under the name and style of Chary Sons (Money Lending), Chary Enterprises and SLV.Corporation (paper, Stationery), at Trichy. He had also purchased the properties with his own funds. According to the Appellant, his father purchased the properties with his own funds. He was in possession and enjoyment of the properties in his own right as owner. His wife predeceased him. He died in the year 1972. According to the Will, which was marked as Ex.A1, the properties mentioned in the plaint has to be devolved equally among the Appellant and the 1st to 3rd Respondents. It was on such basis that the Appellant claimed 1/4th undivided share in the suit properties. The suit properties, for which the Appellant claimed 1/4th undivided share, were at Old Door No.51-78, New Door No.55, Town Survey Nos.2867 and 2875, Block No.19, Ward No.6, Trichy Fort, Rani Street, Trichy and Door Nos.213, 214 and 215 in Town Survey No.2877 and 2876, Big Bazaar Street, Trichy Fort, Trichy.
24. It has been stated that both the items are in one building. The Appellant had traced title for the said properties from the businesses established by his father, R.L.Rangachari. According to him, subsequent to the death of R.L.Rangachari, the Appellant and each one of the 1st to 3rd Respondents commenced their independent businesses. However, the 1st Respondent was managing the Printing Press and Stationery business. The Printing Press was in a rented premises. The 1st Respondent vacated the said premises and received goodwill from the landlord. It was also stated that each of the Respondents was running business independently. It is under such circumstances that the Applicant claimed 1/4th undivided share in the suit properties.
25. It has been the case of the 1st Respondent, who alone contesting the suit, that there was an agreement between the Appellant on the one hand and the 1st to 3rd Respondents on the other hand. According to the said agreement, the Appellant agreed to release all his rights over the suit properties on receipt of consideration of Rs.40,000/- and 14 sovereigns of jewels. According to the 1st Respondent, the Appellant received Rs.33,000/- and also singed and executed release deeds. However, at the time of registration of the release deed, he was also paid another sum of Rs.7000/- and also the gold jewels. The said document was presented for registration. However, the Sub Registrar, did not register the same for want of income tax clearance certificate. According to the 1st Respondent, a duty was cast upon the Appellant to produce the income tax clearance certificate. The Appellant did not do so. Thereafter, another release deed was presented for registration, but it was not again registered for want of income tax clearance certificate. Consequently, the 1st Respondent stated that the Appellant having received consideration is estopped from instituting the suit for partition.
26.
Section 53A of the Transfer of Property Act is as follows:- ??53A. Part performance:-
Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed there for by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.?
27. The Trial Court had relied on the above provision and stated that since the Appellant had received the entire consideration, he was debarred from enforcing his claim as against the Respondents. The Trial Court also held that the Appellant having received the consideration towards his share of the property cannot institute the suit.
28. In AIR 2008 SC 493 (A.Lewis Vs. M.T.Ramamurthy) the Honourable Supreme Court has held as follows:-
?The existence of right to claim protection under
Section 53A would not be available if the transferee just kept quiet and remained passive without taking effective steps. Further, he must also perform his part of the contract and convey his willingness.?
29. It must be kept in mind that in the present case, the Respondents have not come to court. It was the Appellant, who instituted the suit as Plaintiff seeking partition and separate possession. If the 1st Respondent or the 2nd and 3rd Respondents had relied on
Section 53A, for part performance, they should have come to court and sought for declaration that the release deed, which had been returned as unregistered by the Sub Registrar, should be compulsorily registered. In this connection, it is also to be seen that under
Section 17 of the Registration Act, release deed must be compulsorily registered.
30.
Section 17 of the Registration Act is 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 the Indian Registration Act, 1871, (7 of 1871) or the Indian Registration Act, 1877, (3 of 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.
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration assignments, limitation or extinction of any such right, title or interest?
(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of
section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said
section 53A.31. The Respondents have not taken any steps either seeking specific performance or compulsory registration of the two documents. In fact, they had not produced the said documents in the court at all. Therefore, it is also to be mentioned that the said documents not having been registered have no value at all. The 1st Respondent, who filed his written statement, has also not filed any counter claim, calling upon the Appellant herein, who was the Plaintiff, to come forward to specifically enforce the release deed and register the same.
32. The Respondents had not taken any steps. They had kept quiet. They cannot seek any relief in the suit instituted by the Appellant. In the suit, seeking partition and possession, the Appellant had established that he is the son of R.L.Rangachari and according to Ex.A1 Will, he was entitled to 1/4th undivided share in the suit properties and for accounts. This has not been denied by the 1st Respondent. However, the Trial Court had travelled much beyond the pleadings and had commented upon the release deeds, which were not part of the records at all.
33. It is also seen that under Ex.B2, there are reciprocal promises. Then, naturally,
Section 57 of the Contract Act, is also attracted.
Section 57 of the Contract Act, is as follows:- ?57. Reciprocal promise to do things legal, and also other things illegal.? Where persons reciprocally promise, firstly, to do certain things which are legal, and, secondly, under specified circumstances, to do certain other things which are illegal, the first set of promises is a contract, but the second is a void agreement.?
34. In this case, primarily there is no evidence to show that the release deeds had been executed and registered in a manner known to law. If, according to the 1st Respondent, he had performed his part of the agreement under the release deeds, then he should have taken steps to call upon the Appellant to compulsorily register the documents.
35. In the judgement impugned in this appeal, the Trial Court had referred to a suit by sisters and a suit by Bank and return of the documents from the Sub Registrar Office. According to the learned counsel for the Respondents, the release deed is only a formal agreement and is strictly unenforceable. However, this goes against the fundamental principles under
Section 17 of the Registration Act, which has been extracted above.
36. It is also seen that the Appellant had produced the originals and copies of the release deeds as additional documents to this appeal. However, no legal value can be placed on documents, which are unregistered. Even in the absence of the said documents, I hold that the Respondents cannot seek to deny partition without filing any counter claim to the suit for partition and without calling upon the Appellant to compulsorily register the documents. Consequently, I hold that the appeal succeeds and it will not be necessary for the court to once again go into an enquiry with respect to the circumstances surrounding the release deeds.
37. Fundamentally, the Appellant had established that as a son of R.L.Rangachari, he is entitled to 1/4th undivided share under the Will executed by R.L.Rangachari, which was marked as Ex.A1. It is for the Respondents to come forward to speak about the release deed and for that they must have approached the court, seeking part performance and compulsory registration of the release deeds. The Respondents have waited in eternity for the Appellant to institute the suit.
38. It is also seen that the release deeds are dated 2.2.1979 and 4.2.1980 respectively. The suit by the Appellant, herein was instituted on 21.1.1987. For nearly seven years, the Respondents have not taken any steps to seek part performance of the agreement. They have kept quiet and the court cannot come to their rescue. In these circumstances, I hold that this court has to necessarily interfere and reverse the impugned judgement of the Trial Court.
39. In the result, this appeal suit is allowed with costs. The connected MP is dismissed. The documents produced are inadmissible in evidence since they are not registered in accordance with
Section 17 of the Registration Act. Consequently, no purpose will be served by examining the said documents. The judgement and decree dated 14.7.1999 in OS.No.37 of 1987 by the Principal Sub Judge, Trichy, dismissing the said suit, is set aside and OS.No.37 of 1987 is decreed as prayed for with costs.
To:
1.The Record Keeper, VR Section, Madurai Bench of Madras High Court, Madurai.
2.The Principal Sub Judge, Trichy.
.