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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 05.01.2017

CORAM

THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

A.S.No.1039 of 2007

1.M.Chinnappan (deceased)
S/o.Munusamy Chettiar
2.C.Vanitha, W/o.M.Chinnappan
3.Minor.C.Sathish, S/o.M.Chinnappan
4.Minor.M.C.Bharath Kumar,S/o.M.Chinnappan ...Appellants

(Appellants 2 to 4 brought on record as LR's

of the deceased Sole Appellant vide Order of this
Court dt.16.12.2016 in CMP.No.19357/2016 in
A.S.No.1039 of 2007).

(Appellants 3 & 4 are represented by

mother/natural guardian C.Vanitha)
..Vs..

1.M.Ranganathan
S/o.Munusamy Chettiar

2.B.M.Chenniya Chetty,
S/o.Munusamy Chettiar ..Respondents

Prayer: Appeal filed Under Section 96 and Order 41 Rule 1 C.P.C

against the judgment and decree dt.29.06.2007 made in O.S.No.5/2004,
on the file of the Principal District Judge, Dharmapuri, Krishnagiri.
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For Appellants : Miss.Sripriya

for Mr.V.Raghavachari

For RR-1 : Ms.P.T.Asha for

M/s.Sarvabhauman Associates

For RR-2 : Mr.V.Anantha Natarajan

JUDGMENT

The second defendant in O.S.No.111 of 1995 is the appellant

herein. The said suit was filed by the first respondent/plaintiff claiming

that the suit properties which are 4 in number, were purchased from and

out of the contributions of three sons of Munusamy Chettiar; namely

B.M.Chenniya Chetty (first defendant), M.Chinnappan (second defendant),

and M.Ranganathan, the plaintiff.

2.According to the plaintiff though the family was joint, it

has no ancestral property. The first defendant and the plaintiff are doing

cloth business, and the second defendant was employed in the Veterinary

Hospital. Suit items 1 & 3 were purchased in the names of all the

3 brothers on 25.10.1968, 26.08.1970 and 07.09.1972 respectively. Item

4 was purchased on 26.11.1974 in the name of the first defendant, even

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though the three brothers are contributed for purchased Item 4 also.

According to the plaintiff, none of the properties were divided while the

plaintiff was residing in item 2, item 1 was in enjoyment of the first and

second defendants. On the above pleadings, the plaintiff sought for

partition and separate possession of his 1/3rd share in the suit properties.

3.The first defendant filed a written statement wherein, he

would admit the case of the plaintiff with reference to items 1 to 3 and in

so far as item 4 is concerned he would claim that he acquired the said

property by purchase from out of his own money and the sale deed was

taken in his name alone. Therefore neither the plaintiff nor the second

defendant can claim any share in the said item.

4.The second defendant filed a separate written statement

contending that all the four properties are common properties. He would

further contend that there was a partition in the year 1976, and in the

said partition item 1 was allotted to him to be enjoyed by him as his

absolute property. He would further claim that the the partition is

evidenced by a Muchalika dated 24.10.1976. He would also claim that

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he has been in a possession of item 1 from the date of the said partition

namely on 24.10.1976, and hence he has perfected title by adverse

possession. A rejoinder was filed by the plaintiff denying the partition

dated 24.10.1976, and an additional written statement was also filed by

the second defendant reiterating the partition. On the above pleadings,

the learned Principal District Judge, Dharmapuri framed the following

issues.

1.Whether the plaintiff is entitled to partition?

2.Whether the plaintiff is entitled to get perpetual

injunction as claimed by him?

3.Whether the 4th item is the separate property of the

1st defendant?

(recast as per the order in I.A.No.337/2000 dated

27.07.2000).

4.Whether the item No.1 is the separate property of

the 2nd defendant?

5.Whether the father of the plaintiff and the

defendants 1 and 2 is a necessary party to the suit?

6.What is the relief for which the plaintiff is entitled?

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(Additional issues framed as per Order in

I.A.No.337/2000 dated 02.07.2000).

7.Whether the partition in 1976 pleaded by the 2nd

defendant is true?

5.The plaintiff examined himself as PW-1 and Exs.A-1 to A-7

were marked. The first defendant was examined as D.W-1, and one

Theerthagiri who claims himself to be the witness in Ex.A-4 sale deed

was examined as D.W-2. The second defendant was examined as D.W-3,

Exs.B-1 to B-12 were marked on the side of the defendants. The

Commissioner's report and plan marked as Exs.C-1 and C-2. The final

report and sketch were marked as Ex.C-3 and C-4.

6.Upon a consideration of the oral and documentary

evidence, the learned Principal District Judge, Dharmapuri rejected the

defence of the first defendant relating to item 4 of the suit properties.

He had infact come to the conclusion that item 4 of the suit properties

was also purchased by the brothers out of their joint contribution, and

therefore, the first defendant cannot claim any independent/absolute right

over the suit item 4. The learned Principal District Judge also rejected the
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claim of the second defendant regarding the alleged partition dated

24.10.1976. With reference to the Muchalika executed on 24.10.1976

which has been marked as Ex.B-5, the learned Principal District Judge

found that the said document has been marked subject to objections and

even during the course of the evidence it is made clear that the document

is produced for the purpose of proving possession and not for proving

partition. The learned Principal District Judge also found that the

document being one which effects the partition by itself it requires to be

stamped and registered. In the absence of proper stamp and registration,

the learned Principal District Judge refused to accept the theory of

partition put forth by the second defendant. The fact that the none of the

witness of the said document were examined by the second defendant

was also take a note of the learned Trial Judge. On the above

conclusions, the learned Trial Judge decreed the suit as prayed for

granting 1/3rd share to the plaintiff in all the suit properties. Aggrieved by

the said judgment and decree, the second defendant alone has filed the

above appeal. The first defendant who claimed that the 4 th item of the

suit properties belongs to him, has accepted the decree of the Trial Court.

Considering the scope of the appeal, the following points are framed for
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determination in this appeal:-

1.Whether the 2nd defendant has proved the alleged

partition said to have been taken place on

24.10.1976?

2.Whether Ex.B-5, Muchalika dated 24.10.1976 can

be admitted in evidence for proving the partition?

7.I have heard Ms.Sri Priya, learned counsel appearing for

appellant and Ms. P.T.Asha, learned counsel appearing for respondents.

Ms. Sri Priya, learned counsel appearing for appellant would contend that

the plaintiff as well as the first defendant admitted their signature

partition Muchalika dated 24.10.1976. According to the learned counsel,

the said document records a oral partition and it cannot be treated as a

document effecting the partition in itself. She would further contend that

the fact that the second defendant has been in possession of the 1 st Item

of property in his own right since the partition would show that the

partition was accepted and acted upon. It is also her further claim that

the suit 1st item purchased from mother in law of the second defendant

hence the same was allotted to him in the partition.

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8.Per contra Ms.P.T.Asha, learned counsel appearing for

respondents would contend that Ex.B-5 Muchalika itself was marked

subject to objections and even during the recording of evidence it was

conceded, that the said document was marked only for collateral purpose

and not for proving the partition. She would also drawn my attention to

the evidence of DW-3 with reference to marking of Ex.B-5 Muchalika

dated 24.10.1976. The said evidence is as follows :

“ehDk; vd; rnfhjuUk; ghfg; gphptpid

gj;jpuk; vGjp gjp[t[ bra;J bfhs;stpy;iy/

Kr;rypf;fh kl;Lk; vGjpf; bfhz;nlhk;/

me;j Kr;rypf;fh gp/rh/M?5/ (nkw;go

Mtzk; ghfg; gphptpidia

epU:gpg;gjw;fhf my;yhky; RthjPdj;ijf;

fhl;Ltjw;fhf Jizf; fhhpaj;jpw;fhf

kl;LnkDk; FwpaPL bra;a ntz;Lbkd;W

nfl;Lf; bfhz;ljd; nghpYk;. mjw;fhd

Fwpg;g[ xd;W vGjpf; bfhLj;jjd;

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nghpYk; rhd;whtzkhf Vw;Wf;

bfhs;sj;jf;fjh? ,y;iyah? Vd;gij tHf;F

tprhuiz Kotpy; Kot[ bra;ayhk; vd;w

epge;jidapd; mog;gilapy; nkw;go

Mtzk; rhd;whtzkhff; Fwpaplg;gl;lJ/”

9.Relying upon the aforesaid evidence, the learned counsel

would contend that Ex.B-5 cannot be relied upon to prove a partition.

Inviting me to the recitals of Ex.B-5 she would contend that a reading of

document itself would show that it cannot be treated as a record of a past

oral partition. The language applied in the document very clearly shows it

is a document in presenti, and the same cannot be relied upon for want of

stamp duty and registration.

10. I have considered the oral and documentary evidence

particularly the contents of Ex.B-5. The relevant portion of Ex.B-5 reads

as follows:

“24/10/1976?k; tUlk; mf;nlhgh; khjk;

,Ugj;jpehY njjpapy; ghy;fnfhL jhY}f;fh.
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bghk;k cws;sp kJuh Mykuj;Jg;gl;oapy;

FoapUf;Fk; B.S.KDrhkp brl;oahh; Fkhuh;
rd; B.M.brd;idabrl;o1. M.rpd;dg;g;d 2.
u';fehjd;3. Mpfa ehk;K:tUk; Vnfhgpj;J
vGjp itj;Jf; bfhz;l th;j;jkhz cld;gof;if
vd;dbtd;why; ehk; ,J ehs; tiu
VfFLk;gkha; md;nahd;akha; ,Ue;J
te;jjpy; ,g;nghijf;F ekf;Fs; mof;fo tPd;
rh;irfSk; jfuhUk; Vw;gl;Lte;jjd; fhuzkhf
rpy bghJth;fs;. fpuf!;j;jh;fs; g";rhaj;Jgo
fPH; fz;l tPjk; ehk; K:tUk;
mtuth;fSf;Fz;lhd ghfbrhj;Jf;fis mth;
mth;;fs; mile;Jk; mtuth;fspd; fld;fis
mtuth;fs; Mz;L mDgtpj;Jf;
bfhs;sg;gl;lth;fs;/ ,ij xUth; ghfj;jpy;
kw;bwhUth; ghj;jpak; bfhz;lhlnyh
gpuntrpf;fnyh TlhJ/”

11.From the above recitals it is clear that the document was

intended to be partition in itself and it is not a record of something

which had happened earlier. Ms.P.T.Ahsha, learned counsel appearing

for respondents would drawn my attention to the judgment of Division

Bench of this Court in A.C.lakshmipathy and another .v.

A.M.Chakarapani Reddiar and five others reported in 2001 (1)

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CTC 112 wherein, a Division Bench of this Court considered the

requirements of a family arrangement and the effect of non registration

and non stamping of such documents. After reviewing the entire case

law on the subject, the Division Bench had observed as follows:

“23.It is now fairly well settled that the co-owners

can partition the immovable properties orally. But,

however where a document is employed to effectuate

a partition or any of the transactions specified in

Section 17 of the Registration Act such document

must be registered, notwithstanding with the

transaction is one which the law does not require to

be put into writing. Such unregistered document

cannot be looked into to prove the terms of the

partition. But, however the same if inadmissible in

evidence for the purpose of creating, declaring,

assigning, limiting or extinguishing a right to

immovable property. The expression “collateral

purposes” is no doubt a very vague one and the Court

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must decide in each case whether the parties who

seek to use the unregistered document for a purpose

which is really a collateral one or as is to establish the

title to the immovable property conveyed by the

document. But by the simple devise of calling it

“collateral purpose”, a party cannot use the

unregistered document in any legal proceedings to

bring about indirectly the effect which it would have

had if it registered.”

12.It is no doubt true that a partition can be oral and a

document which records a oral partition that had taken place does not

require either stamping or registration. If we are look into the document

namely Ex.B-5 dated 24.10.1976, the recitals there in, very clearly show

that the parties intended to effect the partition under the said document

and it is not a record of a partition which had already taken place between

the parties. I also find that Ex.B-5 is written on four rupees stamp paper.

Therefore, it is neither stamped in accordance with law nor is it

registered. I therefore hold that the said Muchalika dated 24.10.1976

cannot be relied upon the second defendant to prove the alleged partition.
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As already pointed out the second defendant had not chosen to examine

any of the attestors to the said document or any other independent

witness to prove his alleged possession as per the said document

excepting his interested oral testimony. There is no other reliable

evidence to show that the second defendant had in fact ousted the

plaintiff or the 1st defendant, so as to debar them from claiming a share

in suit item 1.

13.The 2 nd defendant has produced Ex.B-8 to show that the

revenue records in respect of suit item 1 were mutated in his name by the

proceedings of the Tahsildar, Krishnagiri on 27.03.1991. No material

evidence is available in the document to show as to whether the plaintiff

and the 1st defendant were notified before the said order was passed.

The said document alone cannot entail the 1st defendant to claim absolute

title to the suit item 1, since the suit has been filed within 4 years from

the date of the document. The sale deed inrespect of thesuit item 1,

admittedly stands in the name of the plaintiff and the defendants 1 and 2.

For all the above reasons, I am unable to accept the contentions of the

learned counsel for the appellant, and on the 1 st question my answer to is

that the plaintiff has failed to establish that a partition had infact taken
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place on 24.10.1976. For the 2nd question my answer is that Ex.B-5

partition Muchalika cannot be looked into to prove the partition. The 2 nd

defendant has miserably failed to prove his claim.

14.For the forgoing reasons, I do not see any ground to

interfere with the judgment and decree of the trial Court, and therefore

the same is confirmed and the appeal is dismissed. Considering the

relationship of the parties, there will be no order as to cost.

05.01.2017

KP

Index:Yes/No
Internet: Yes/No

To
The Principal District Judge,
Dharmapuri, Krishnagiri.
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R.SUBRAMANIAN.,J.

KP

A.S.No.1039 of 2007

05.01.2017

http://www.judis.nic.in