Full Judgment
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 09.10.2014 CORAM THE HONOURABLE MR.JUSTICE R.KARUPPIAH S.A(MD)No.209 OF2006 Muthulakshmi ..Appellant/Appellant/Plaintiff .versus Petchiammal ..Respondent/Respondent/Defendant PRAYER Second Appeal filed under Section 100 of the Civil Procedure Code, against the judgement and decree made in A.S.No.119 of 2004, dated 23.12.2004 on the file of the I Additional District Judge, Madurai confirming the judgement and decree passed in O.S.No.590 of 1992 dated 22.10.2003 on the file of the I Additional Subordinate Judge, Madurai.
!For Appellant : Mr.A.Arumugam for M/s.Ajmal Associates ^For Respondent : M/s.N.Vallinayagam Date of Reserving the order : 11.08.2014 Date of Pronouncing the order: 09.10.2014 :JUDGMENT
The appellant, who is the plaintiff in the original suit preferred this Second Appeal as against the decree and judgement made in A.S.No.119 of 2004, dated 23.12.2004 confirming the decree and judgement of the I Additional Subordinate Court, Madurai in O.S.No.590 of 1992, dated 22.10.2003.
2.For the sake of convenience, the plaintiff in the original suit is referred to as appellant and the defendant in the original suit is referred to as respondent hereafter.
3.The appellant/Plaintiff filed a suit for partition of 1/5th share in the suit property as against his sister(D1) and also her father(D2) in the original suit who died during the pendency of the suit on 29.09.2002.
4.Briefly the case of the appellant is that the suit property originally belonged to one Vasanthra.
The deceased father of the appellant and respondent one Kaliappa Thevar who was the second defendant in the original suit.
The appellant and respondent are sisteRs.The deceased father (i.e.,) the second defendant in the suit took the suit property on lease as a vacant site.
Since the married life of the respondent herein was not happy, she came to Madurai to live with her father and therefore in order to safety, the father of the appellant endorsed lease of the suit property in the name of the respondent herein.
After that, the suit property was purchased in the name of respondent out of the joint family fund on 23.7.1980.
At the time of purchase, the appellant herein gave five sovereign of gold jewels for pledging in order to raise money for purchasing the suit property to the respondent.
Therefore the suit property was treated as a joint family property.
Since the respondent herein tried to take the entire property, there was a panchayat on 4.10.1980 and a partition agreement was written on that date in which both parties agreed to the terms of partition agreement as the suit property is the joint family property of both parties.
Later due to the misunderstanding, the respondent herein filed a suit for in O.S.No.232 of 1982 for permanent injunction against the appellant and father of the appellant(D2).In the above said suit, the appellant contended that the suit property is a joint family property of both parties and also marked the above said partition agreement as Ex.D1 in O.S.No.232 of 1982.
But the above said suit was dismissed in the trial Court, but allowed the appeal in A.S.No.61 of 1988 holding that the appellant and her deceased father(D2) should not interfere with the possession of the respondent herein.
Aggrieved by the above said reveral findings, the appellant preferred second Appeal in S.A.No.110 of 1990 and it is pending before this Court.
The appellant herein filed the present suit for partition to get her half share in the suit property.
5.The respondent, who is fiRs.defendant in the suit filed a detailed written statement in which denied the contentions of appellant that father of the appellant and respondent(D2) had taken the suit property on lease as vacant site and endorsed the lease in favour of the respondent.
It is also denied that the suit property has been purchased in the name of the respondent herein from and out of the joint family fund on 23.7.1980.
It is further denied that the appellant had given five sovereigns of gold jewels for pledging the same to raise money for purchase of the suit property.
According to the respondent, the respondent had purchased the property from and out of her own fund and put up construction therein and enjoying the property as an exclusive owner thereof.
The suit property was not treated as a joint family property.
Further, the respondent specifically denied the said alleged panchayat held on 4.10.1980 and also stated that no partition agreement was written on that date as alleged in the plaint.
According to the respondent,the appellant has no right or title over the suit property and the suit property is exclusively belongs to the respondent and therefore the appellant not entitled to any relief as prayed for in the plaint.
6.The deceased second defendant in the suit i.e., father of the appellant and respondent herein filed a separate written statement in which it is denied the contention of the appellant that the suit property is a joint family property and he took the suit property on lease as a vacant site.
According to the father of the appellant and respondent(i.e.,) D2 the respondent alone originally a lessee in the suit property and the above said property was purchased only by the respondent herein out of her own fund.
The appellant has not given five sovereigns of gold chain for pledging the same to raise money for purchase of the suit property.
It is also denied the above said alleged panchayat held on 4.10.1980 by stating that no such partition agreement was written on 4.10.1980.
Further it is stated that the suit is barred by res-judicata in view of the decision in A.S.No.61 of 1988.
The appellant is not entitled to any share in the suit property and hence prayed for dismissal of the suit.
7.Before the trial Court,on the side of the appellant/plaintiff, the appellant alone deposed as P.W.1 and marked two documents as Ex.A1 and Ex.A2.
On the side of the respondent/fiRs.defendant, the respondent alone deposed as D.W.1 and marked five documents as Ex.B1 to Ex.B5.
The trial Court has considered the above said oral and documentary evidence adduced on either side and finally dismissed the suit filed by the appellant.
Aggrieved over the above said finding of the trial Court, the appellant preferred fiRs.appeal in A.S.No.119 of 2004.
The fiRs.appellate Court also confirmed the decree and judgement passed by the trial Court and dismissed the fiRs.appeal.
Being aggrieved by the above said concurrent findings of the courts below, the appellant herein preferred this Second appeal.
8.This Court has admitted the Second Appeal on the following substantial questions of law for consideration: Whether both the courts below committed error in dismissing the suit when the fiRs.defendant admits the signature in Ex.A2, which is a partition deed?.
9.The learned counsel for the appellant mainly contended that both the courts below have wrongly held that the suit property is not a joint family property and it was purchased only by the respondent from her own fund.
The learned counsel further pointed out that the appellant herein filed Ex.A2- partition agreement to prove that the suit property is a joint family property but both the Courts below have not considered the contention of the appellant that the appellant had given five sovereigns of gold jewels to pledge the same for the purchase of suit property to the respondent and hence the suit property is a joint family property.
The learned counsel further submitted that at the time of oral evidence, the respondent herein admitted the signature found in Ex.A2 and also admitted that the jewels of the appellant were pledged and from the above said facts, the appellant proved her case and therefore the findings of both the Courts below are perveRs.and also illegal.
10.Per contra, the learned counsel for the respondent would submit that the appellant admitted that the suit property was purchased in the name of the respondent/D1- who is a female member of the family while the father of the appellant and respondent(i.e.,)D2 was alive.
The learned counsel further pointed out that the appellant herein has not stated any reason in the plaint or at the time of evidence, why the property had been purchased in the name of a female member while the father of the appellant and respondent was alive.
Further, the learned counsel pointed out that even Ex.A2 is taken as a partition deed., for agreement sake, the above said document is not registered document and also all the sharers of the suit property are not the parties in the above said document since the deceased father not a party in the above said document and hence the appellant cannot claim any right on the basis of the above said document.
The learned counsel further pointed out that the appellant has not produced any documents and also not adduced any reliable oral evidence to prove that the above said property was purchased from and out of the family fund or fund raised by pledging jewels of the appellant.
Further, the learned counsel appearing for the respondent pointed out that the respondent herein has not at all admitted the alleged panchayat held on 4.10.1980 as a genuine document.
Further the learned counsel submitted that the suit filed in O.S.No.237 of 1982 by the appellant for permanent injunction against the respondent and deceased father also dismissed in the appeal and become final.
For that reason also, the appellant is not entitled to seek the relief of partition in the present suit.
Therefore the learned counsel for the respondent prayed for dismissal of the appeal.
11.Both sides admitted that the suit property originally belonged to one Vasundara.
It is also not in dispute that the appellant and respondent are daughters of the deceased Kaliyappa Thevar/second defendant in the original suit, who died during the pendency of the suit.
The main contention of the appellant is that the father of the appellant and respondent, namely Kaliyappa Thevar took the suit property as a vacant site for lease.
Since the respondent not lived with her husbabd and she came to live with her father, the father in order to safety, endorsed the lease of the suit property in the name of the respondent herein.
It is also the case of the appellant is that subsequently the suit property was purchased out of the joint family fund and also the respondent pledged the jewels given by the appellant to raise money for purchase of the suit property and therefore the suit property is a joint family property even though the property was purchased in the name of the respondent.
12.Both the Courts below discussed the oral and documentary evidence adduced on either side and held that the appellant has not produced any document to prove that the deceased father of the appellant and respondent namely Kaliyappa Thevar took the property on lease and assigned the above said lease in the name of the respondent.
Further both the Courts below have held that the appellant herein has not averred in the plaint or at the time of evience, about the particulars of the joint family properties available to raise money for purchase of the suit property and also not produced any documentary evidence to prove the above said contention.
Further, both the Courts below have discussed the contention of the appellant and held that the appellant has not stated in the plaint or in the evidence that the appellant pledged her jewels and given money to the respondent to purchase the property.
But the case of the appellant is only that the appellant gave her five sovereigns of gold jewels to the respondent and the respondent alone pledged the jewels and purchased the property.
The Courts below have further held that the appellant failed to prove the above said contention also.
Further both the Courts below have held that the appellants have not produced any document to prove that the father of the appellant purchased the suit property as vacant site and he put up super-structure in the suit property.
Further the suit filed by the appellant in O.S.No.232 of 1982 also finally decided by the appellate Court in favour of the respondent.
Both the Courts below have further held that the appellant has miserably failed to prove the genuineness and validity of the partition under Ex.A2-Unregistered partition agreement, dated 4.10.1980.
13.Further, both the Courts below have discussed about the documents adduced on the side of the respondent, particularly, Ex.B1-sale deed, Ex.B2 to Ex.B4(series)-Tax Receipts paid from 1984 to 2002 and finally held that the respondent is entitled to the suit property under Ex.B1-Sale deed and also proved the above said fact by producing documentary evidence under Ex.B2 to Ex.B4(series) and hence the appellant is not entitled to the relief of partition.
Both the Courts below have further discussed about the decision relied on by the respondent reported in 1992(2) L.W402and held that since the property purchased in the name of female member of the family while her father was alive and the appellant also has not stated any reason for purchase of the property in the name of the junior female member of the family and also failed to prove that the said property was purchased with the aid of the family fund for the benefit of the family and therefore refused to grant the relief of partition as prayed for by the appelant and dismissed the suit.
14.The learned counsel appearing for the appellant mainly contended before this Court that the appellant has produced Ex.A2-Partition Agreement and at the time of cross examination, the respondent admitted the signature found in Ex.A2-Partition Agreement and from the above said oral admission, it is clear that the appellant had given the jewels to purchase the property in the name of the respondent and therefore it is a joint family propery.
15.The fiRs.appellate Court extracted the entire recitals made in Ex.A2.
In Ex.A2, apart from the suit property, two other properties also referred.
But the appellant filed the suit for partition only in respect of the suit property and not included the other two items of properties and she has not given any reasons for not including the above said two items of properties in the present partition suit.
Further the appellant has not examined any witnesses to prove the contention of Ex.A2.
Admittedly, Ex.A2 is an unregistered document.
On a careful reading of the contention of the agreement of partition reveal that it is not at all a partition agreement as alleged by the appellant and also not signed by the alleged all the joint family members in the above said document.
Therefore, both the Courts below have correctly discussed about the genuineness and validity of Ex.A2 document and held that from the above said document, the appellant cannot claim any right in the suit property.
16.Further, as stated in the earlier parargraphs 12 and 13 both the Courts below have discussed the oral and documentary evidence adduced on either side and rejected the various contentions of the appellant and given a correct finding.
Therefore only on the ground that the respondent herein admits the signature in Ex.A2-alleged unregistered agreement of partition, at the time of cross examination alone not give any right to the appellant in the suit property as rightly contended by the learned counsel for the respondent.
17.Further the learned counsel appearing for the respondent would submit that the admission must be read along with entire evidence.
But the learned counsel for the appellant relied on one line at the time of cross- examination and therefore the contention of the learned counsel for the appellant cannot be accepted.
In support of his contention, the learned counsel for the respondent relied on a decision of the Honourable Supreme Court reported in CDJ 1970 SC366Chikkam Koreswara Rao .versus Chikkam Subba Rao and otheRs.dated 25.02.1970 in which the Honourable Supreme Court held that the admission must be read along with evidence given by him in his chief-examination.
Therefore on perusal of the entire evidence of D.W.1 reveal that the respondent has not admitted the execution and genuineness of Ex.A2-document as contended by the appellant.
18.The learned counsel for the appellant relied on a decision reported in AIR1976 Supreme Court 807(Kale .versus Deputy Director of Consolidation) and submitted that the family arrangements may be even oral, in which case, no registration is necessary and in the instant case, Ex.A2-Agreement for partition only on the basis of oral family arrangement and therefore need not be registered.
In the above said judgement, para 10 reads as under: ?.10.In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions: 1.The family settlement must be a bonafide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family; 2.The said settlement must be voluntary and should not be induced by fraud, coercion or undue infleunce; 3.The family arrenagements may be even oral in which case no registration is necessary; 4.It is well settled that 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 information of the Court for making necessary mutation.
In such case, the memorandum itself does not create or extinguish any rights in immoveable properties and therefore does not fall within the mischief of Section 17(2)(Sic)(Sec.17(1)(b?.) of the Registration Act and is, therefore, not compulsorily registrable; 5.The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement.
Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner,, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same; 6.Even if bonafide disputes, present or possible, which may not involved legal claims are settled by a bonafide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.?.
19.On a careful reading of the law laid down by the Honourable Supreme Court in the above said decision, this Court is of the view that Ex.A2- Agreement for parttion, (i.e.,) unregistered document relied on by the appellant is not valid in law.
Further the appellant filed a suit for partition regarding only one item without impleading the other two items of properties for partition.
Therefore the appellant is not entitled to claim any right under Ex.A2.
20.The learned counsel appearing for the respondent further submitted that the appellant claimed right over the property by contending that the suit property was purchased in the name of the respondent as if purchased as benami for the benefit of the joint family membeRs.In the above said circumstances, burden of proof is only lie on the appellant.
But the appellant failed to prove the above said facts.
To substantiate his contention, the learned counsel appearing for the respondent relied on a decision reported in 2004-2-L.W227Govindammal(died) and another .versus Ramayi(died) and another ).in which relevant portiton of para 8 reads as under: ?.8......We find that he committed the mistake by placing the onus of proof on the fiRs.defendant to establish the benami nature of a transaction is on the person who pleads the same.?.
21.Per contra, on the side of the respondent has clearly proved that the respondent is the owner of the property under Exz.B1-Registered sale deed and also proved the possession by adducing several documents.
Further in the earlier suit in O.S.No.232 of 1982 filed by the appellant was dismissed by the appellate Court in A.S.No.61 of 1998 and becomes final.
Further as already discussed, the appellant has not produced any acceptable evidnece to prove that the suit property was purchased out of joint family fund or with the help of the appellant's fund as contended by the appellant.
Therefore the appellant failed to prove that Ex.A2 is not a genuine document and further it is invalid in law.In the above said circumsances, this Court is of the view that both the Courts below have not committed any error in dismissing the suit and the substantial question of law is answered against the appellant and in favour of the respondent.
22.In the result, the Second Appeal is dismissed.
No costs.
To 1.The I Additional District Judge, Madurai.
2.I Additional Subordinate Judge, Madurai.