K. Sreedhar Rao, J.
1. This second appeal arises out of the Judgment and Decree passed by the District Judge, Mandya in R. A. No. 50/94 arising out of the Judgment and Decree passed in O. S. No. 114/91 on the file of Addl. Civil Judge, Mandya. The appellant is the plaintiff filed a suit for declaration of title and for permanent injunction against the defendants not to interfere with the peaceful possession and enjoyment of the suit schedule property. The suit came to be dismissed and the consequent appeal is also dismissed. Aggrieved by the said judgment, the present second appeal is filed.
2. According to the plaintiff's contention, he constituted a joint family along with the defendants 1 to 3. The joint family owned around 7 acres of wet land. The first defendant is the father. The second defendant is his mother and the third defendant is the elder brother. It is said that the father and elder brother of the plaintiff found that the property could be conveniently managed by the plaintiff. Therefore, executed a power of attorney to manage the joint family properties. During the course of management of joint family properties, three lands came to be purchased. One land was, purchased in the name of the plaintiff. One land was purchased in the name of the third defendant and the suit land was purchased in the name of the second defendant under a registered sale deed for a consideration of Rs. 12,000/-. The plaintiff contends that the family was owning sufficient large extent of wet lands generating sufficient income and around the time pf purchase five house sites belonging to the joint family came to be sold. The funds realised from the said sale and with the surplus funds of the joint family the suit land and the other two lands came to be purchased. On account of the differences between the family members, a partition took place. Under the partition marked at Ex. P5, the properties were divided among the members of the family. Apart from the other properties, the suit land was allotted to the share of the plaintiff. Similarly, the properties have been allotted jointly to defendants 1 and 2 and properties were separately allotted to the third defendant. The instrument effecting division of property has been described by the plaintiff in the pleadings as family settlement evidencing the record of a past oral transaction between the parties. By virtue of allotment of properties under Ex. P5 the plaintiff claims lawful possession and enjoyment of the property as the owner and allege illegal interference on the part of defendants: and further contends that the second defendant has illegally alienated the property in favour of the 4th defendant, who is the stranger to the joint family. Hence, seek declaration of title and injunction.
3. The defendants 1 to 3 have filed common written statement. It is contended that the suit land is purchased by the second defendant by pleading the gold belonging to her and from the income earned by her from milk vending and specifically contends the suit property is purchased without the aid of joint family funds. It is further contended that by employing intermediary tactics and coercion, the signatures of the 2nd defendant is obtained on some blank papers and the same is concocted as a palupati.
4. The 4th defendant has filed a written statement denying the claim of the plaintiff. It is pertinent to note that the 4th defendant does not take up the plea of bona fide purchaser supports the title of the second defendant and contends that it is a self-acquired property of the second defendant.
5. The trial Court on the basis of the pleadings and the evidence found that the suit property has been purchased by the second defendant by her own funds and without the aid of the joint family funds. Further, holds that the second defendant being a female member her self acquired property not being a joint family property could not have been blended with the joint family property to make it a subject matter of partition. The trial Court has not formulated any issue regarding the voidable circumstances pleaded by the defendants in assailing the validity of the palupati Ex. P5. However, the parties were fully aware of the pleadings and consciously have let in evidence on all the material aspects of the pleading with requisite awareness and concentration on the due execution of the palupati. The plaintiff has given evidence examined one of the attesting witnesses and has examined the scribe. The second defendant has examined herself and has given evidence with specific reference to the plea taken by her in respect of the execution of palupati, in the first appeal, the parties were conscious of the pleadings regarding the validity and the execution of palupati and have submitted the arguments.
6. On careful perusal of the pleadings and the evidence I find that non-formulation of an issue regarding the execution of a palupati has not resulted in any miscarriage and distracted the attention of the parties from adducing the evidence on the due execution of palupati. Therefore, I find that absence of a specific issue on the point does not appeal to be a fatal lapse, as the parties have adduced necessary evidence available at their command. The question of absence of issue and the burden of proof thereon pales into insignificance.
7. The Appellate Court, however has considered in detail at para 32, the circumstances relating to execution of palupati andthe evidence adduced by the parties in thatbehalf holds that the execution of thepalupati is plodded by the suspicious circumstances. The Appellate Court agreeswith the finding of the trial Court that thesuit property is the self acquired propertyof the second defendant (a female member)and could not have been blended with thejoint family property to make it a subjectmatter of partition.
8. The second appeal came to be admitted on the question of law formulated to thegrounds of appeal, which are extracted hereunder :--
'1. Whether the suit property had been acquired by the then joint family consisted of plaintiff and defendants 1 to 3 or, it is the self-acquired property of the 2nd defendant?
2. Whether the suit property had fallen to the share of plaintiff under Palu Patti dated 22-4-1989 and as such, he is in possession of it as owner?
3. Whether finding arrived at by the trialCourt on the issues framed by it are notproper?'
9. On the basis of the pleadings, evidenceand the arguments addressed in the courseof appeal, an additional point also requiresto be formulated for consideration in thefollowing manner :--
'Whether the Courts below have grossly erred in appreciating the pleadings and the evidence and thus the findings are perverse, illegal and contrary to evidence on record.'
10. The certified copy of the registered will dated 21-2-1990 executed by the defendants 1 and 2. The certified copy of the deposition of the second defendant in HRC 1/90 recorded on 16-12-1994, 5-1-2000 and 7-6-2000 and the certified copy of the order in W. P. No. 25166/1992 dated 27-10-1997 are produced as additional evidence to support the contention that the palupati Ex P5 relied on by the plaintiff is genuinely executed and acted upon by the second defendant.
11. The learned counsel for the respondents submits that the documents 1 and 3 produced as additional evidence has no bearing on the issues and not binding on the second defendant since both the documents are the put come of the actions of the first defendant to which the second defendant is not a party. However, admits the deposition of the second defendant recorded in HRC 1/90. Therefore, the request for production of additional evidence is granted only in respect of deposition in HRC No. 1/90 and the request in respect of other documents is required.
12. The proposition of Hindu Law that any property ostensibly standing in the name of any coparceners could be presumed as a Joint Family Property, if it is shown that the family had sufficient nucleus and funds to acquire the property. However, the presumption is rebuttal, the co-parcener is entitled to show that the property indeed is a self-acquired property. The said presumption does not apply when the property stands in the name of a female member without the aid of presumption the party alleging has to convincingly prove that the female member is only an ostensible owner and the same has been purchased out of the joint family funds. Now, from the date of passing of the Benami Transaction Prohibition Act, the legal position regarding the plea of Benami has undergone a thorough change.
13. The plaint deals with all the greater details of facts about the utilisation of the joint family funds for purchase of the schedule property. In evidence also in greater detail, PW 1 refers to the total extent of assets held by the family and the income generated from the estate to show that there was enough nucleus to purchase the schedule property and that indeed it was so purchased. The second defendant has examined herself and she has produced the material to show that the three months prior to the date of purchase of the schedule property she: has pledged the gold and raised a loan of Rs. 9,100/- from the State Bank of India. The Manager of that Bank is also examined to corroborate the contention. The second defendant contends that with the loan borrowed a substantial portion of the consideration amount was already paid and further by the income earned from the milk vending, she was able to pay the balance consideration on the date of execution of the sale deed. The recitals of the sale deed substantiates the contention that the major portion of the consideration amount was already paid and on the date of registration a sum of Rs. 2,000/- was tendered.
14. The defendants 1 to 3 in the written statement have categorically denied the execution of the palupati as alleged by the plaintiff. However, contends that one H. L. Krishna and one Thimmalah, Advocate of Maddur obtained the signatures on blank papers from defendants 1 to 3 by fraudulent means and conveying threat to life. It is stated that the said blank papers have been concocted as palupati. It becomes necessary in the light of pleadings and the evidence to ascertain whether there has been an execution of palupati and division of properties as contended by the plaintiff. In this regard it is necessary to refer the oral and documentary evidence produced by the parties. The second defendant in her evidence states that Thimmiah and Krishnappa obtained her signatures about five years ago. She gives go by to the theory of coercion and threat in evidence. The learned counsel for the 4th defendant produced in the course of arguments, the plaint in O. S. No. 575/90 filed by the second defendant on the file of Munsif, Maddur. It was the earliest suit filed by the second defendant challenging the claim of the plaintiff over the suit property and it was an injunction suit. In the said plaint, the second defendant has taken up a contention that by fraud and misrepresentation the thumb impression of the plaintiff has been taken on palupati. There appears to be inconsistent and variegated version given by the 2nd defendant at different stages regarding the conditions under which she has signed the palupati. Excepting the self-serving testimony of the second defendant, there is no independent evidence to establish that the LTM of the second defendant is taken on the palupati either by coercion, fraud, misrepresentation or by threat in any manner. The First Appellate Court however has laboured to cull out the discrepant circumstances attending Ex. P5. It is observed that the stamps are issued in the year 1985 and the documents are executed in 1989 and finds that there is discrepancy in the evidence about the place of execution of the document. The fact that the palupati is not registered is also seriously considered as one of the suspicious circumstances to doubt the genuineness and veracity of Ex. P5.
15. The learned counsel for the 4th defendant Smt. T. N. Manjula Devi strenuously contended that using the old stamp paper qf. the year 1985 is not permissible under the Stamp Act and Rules that the three of the stamp papers in the document do not bear the seal and signature of the office of the treasury. Therefore, contend that the document Ex. P5 is concocted. The learned counsel further contends that in the first stamp paper the date of sale by the stamp vendor is shown as 22-7-1989. Whereas, the other stamp papers bear the date 22-4-1989. In that view, contend that the document is concocted. After carefully going through Ex. P5, I find, the First Stamp Paper also bears the date 22-4-1989. Upward stroke of the figure 4 is not very prominent. But, on careful examination, it does indicate that the sale of the stamp paper as 22-4-1989. The writing of letters and figures depends upon the idiosyncrasies of the writer and the time and context of writing sometimes in a mechanical hurry it is possible to write a number seven in figures without a prominent upward stroke at the first glance, it could appear as figure 7. But, on close reading with the attendant circumstances and the other contents of the document, the month of the sale of the first stamp paper is the 4th month and not the 7th month as contended.
16. None of the provisions of the Stamp Act and the Rules suggest any time limit for user of the Stamp Paper once sold. The provisions of law referred to by the learned counsel under the Act and the Rules basically pertain to the used and damaged stamps and there is no provision under the Act and the Rules, which declare that an unused stamp to become invalid after certain period. There is no evidence to show that the stamp papers were deliberately kept unsold by the stamp vendor to allow misuse for concocting anti-dated documents. In the absence of such evidence, it is not proper to suspect the bona fide of the stamp vendor.
17. As against the oral evidence discussed above deleting to the execution of Ex. P5. The documentary evidence is placed on record by the plaintiff namely, the certified copy of the proceedings of HRC No. 1/1990 marked at Ex. P. 67 produced by the plaintiff. The said case is instituted by the first defendant during his life time for evidence of a tenant by name one Appu Gdwda in the course of the pleadings in the petition, in para 2 it is stated thus :--
'The plaintiff further reiterated the averments made in para 4 of the plaint and denied the averments made in para 3 of the written statement. The plaintiff is the absolute owner of the property and she is in possession of the property.'
18. During the pendency of the HRC case, the first petitioner dies. The second defendant is impleaded as LR and continued the further prosecution of the case and has given evidence. The deposition copy produced as an additional evidence is admitted as true and correct by the Learned Counsel for the respondent. In the deposition, the second defendant has testified to the factum of execution of the palupati and claims that the property in question in HRG case allotted to their share under the palupati Ex P.5. Therefore, the conduct of the second defendant in asserting and vindicating the rights over the property in HRC proceedings would unequivocally suggest that the palupati is a genuinely executed document and the second defendant has acted upon the said document.
19. The learned counsel for the appellant relied on the ruling of the Supreme. Court in the case of Kale v. Deputy Director of Consolidation reported in : [1976]3SCR202 the following observations are made :--
'42. Finally in a recent decision of this Court in Shanmugam Pillai's case : [1973]1SCR570 after an exhaustive consideration of the authorities on the subject, it was observed as follows :
'Equitable principles such as estoppel, election, family settlement etc., are not more technical rules of evidence. They have an important purpose to serve in the administration of justice. The ultimate aim of the law is to secure justice. In the recent times, in order to render justice between the parties, courts have, been liberally relying on these principles. We would hesitate to narrow down their scope.
x x xIn these circumstances, there can be no doubt that even if the family settlement was not registered it would operate as a complete estoppel against the respondents 4 and 5. Respondent No. 1 as also the High Court, therefore, committed substantial error of law in not giving effect to the Doctrine of Estoppel as spelt out by this Court in so many cases. The learned counsel tor the respondent placed reliance upon a number of authorities in Rachcha v. Mt. Medha AIR 1947 All 177, Chief Controlling Revenue Authority v. Smt. Sathyawai Sood, : AIR1972Delhi171 and some other authorities, which in our opinion have no bearing on the issues to be decided in this case and it is therefore not necessary for us to refer to the same.
43. Finally, it was contended by the respondents that this Court should not interfere because there was no error of law in the judgment of the High Court or that of respondent No. 1. This argument is only stated to be rejected.
44. In view of our finding that the family settlement did not contravene any provision of the law but was a legally valid and binding settlement in accordance with law, the view of respondent No. 1 that it was against the provisions of the law was clearly wrong on a point of law and could not be sustained. Similarly, the view of the High Court that the compromise required registration was also wrong in view of the clear fact that the mutation petition filed before the Assistant Commissioner did not embody the terms of the family arrangement but was merely in the nature of a memorandum meant for the information of the Court. The High Court further erred in law in not giving effect to the Doctrine of Estoppel, which is always applied, whenever any party to the valid family settlement tries to assail it. The High Court further erred in not considering the fact that even if the family arrangement was not registered it could be used for a collateral purpose, namely, for the purpose, of showing the nature and character of possession of the parties in pursuance of the family settlement and also for the purpose of applying the rule of estoppel, which flowed from the conduct of the parties, who having taken benefit under the settlement keep their mouths shut for full seven years and later try to resile from the settlement. In Shyam Sunder v. Siya Ram : AIR1973All382 , it was clearly held by the Allahabad High Court that the compromise could have been taken into consideration as a piece of evidence even if it was not registered or for that matter as an evidence of an antecedent title.'
20. The learned counsel for the appellant relied on the ruling of the decision of the Supreme Court in the case of Jagdish Singh v. Natthu Singh reported in : AIR1992SC1604 to contend that whenever the findings are perverse and vitiated by the non consideration of relevant evidence, the High Court has jurisdiction to record the proper finding.
21. Per contra, the learned counsel for the 4th respondent contends that there is a concurrent findings of facts by the Courts below that the suit property is self-acquired property of the second defendant. Therefore, it is impermissible to interfere with the concurrent finding. The learned counsel also contends that it is impermissible to take up the Plea of Estoppel in the second appeal for the first time.
22. In the context of disputed facts, it may not be a proper approach to analyse the rights of the parties on the basis of the nature and character of the suit property that it is a self-acquired property or a joint property. The plaintiff no doubt, in his pleadings and evidence has not specifically coined the word Estoppel in his defence. But, the sum effect of pleadings and evidence would indicate all the required definitive ingredients of Doctrine of Estoppel and warrant its application instead of coining the defence by raising the plea of estoppel, the plaintiff has rambled in so many words, which in effect would fulfill the definition of estoppel. Therefore, the contention of learned counsel for the appellant on the basis of the plea of Doctrine of Estoppel is not something a departure from the pleadings and evidence of a new case canvassed for the first time. Merely because the plaintiff has not specifically coined the phrase Doctrine of Estoppe1 as a defence, it would be wrong to overlook the true legal effect of the defence. Such a course would only be a hyper-technical approach and may bear the apparent appearance of denying the relief to the litigant for his ignorance and lack of legal skills. Had the 4th defendant raised this objection, at the time, of Ex. P5 perhaps some other property could have been allotted to the plaintiff instead of disputed property. Now, after division of properties by metes and bounds under Ex. P5 and allotment to different parties has resulted in irreversible position without a scope for recompense. Therefore, the justice demands that the 4th defendant should be barred from challenging the allotment on the ground of estoppel.
23. The contention of the learned counsel for the respondent that there is a concurrent finding that the property is the self-acquired property is beside the point involved. Notwithstanding the fact that there might be an evidence to show that the property is a self-acquired property of the 4th defendant. Nonetheless, on the ground that she is a party to Ex. P5 prevents her from challenging the allotment of division on the ground of estoppel. The entire approach and analysis of facts and observations made by the Courts below is grossly perverse and erroneous ,and contrary to the pleadings and the evidence on record.
24. In that view, the second question of law formulated is answered in-affirmative. The points 1 and 3 do not deserve any consideration in the light of answer to point No. 2. Therefore, the judgment under appeal is set aside. The suit of the plaintiff has decreed as prayed for.
25. The learned counsel for the 4th respondent orally submitted for stay of the judgment for two months to enable her to file a SLP before the Supreme Court. I find no merit in the contention. Accordingly, dismissed.