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2005 DIGILAW 1535 (MAD)

G. Das & Others v. Y. Mary Glory Bai & Others

2005-09-14

R.BANUMATHI

body2005
Judgment :- (Second Appeals filed against the Judgment and Decree dated 06.04.1993 made in A.S.Nos.67 & 85 of 1991 on the file of the District Court, Kanyakumari at Nagercoil filed against the Judgment and Decree dated 19.06.1991 made in O.S.Nos.10/1986 and 87/1990 on the file of the Court of Subordinate Judge, Kuzhithurai.) Common Judgment The Appellants are the Defendants in O.S.No.10/1986 and Plaintiffs in O.S.No.87/1990. These second appeals are preferred against the concurrent findings of the District Court, Kanyakumari, passed in A.S.No.67/1991 and A.S.No.85/ 1991 (dated 6.4.1993), confirming the Judgment and Decree made in O.S.No.87/1990 and O.S.No.10/1996 (dated 19.6.1991), on the file of the Subordinate Court, Kuzhithurai. 2. O.S.No.10/1986 on the file of the Sub Court Kuzhithurai was filed by the Plaintiffs – Mary Glory Bai and her minor daughter Francis Dharmarani for declaration of Title and Injunction in respect of 'B' Schedule properties and for recovery of possession in respect of 'C' schedule properties. D-1, D-13, D-10 and the children of D-10 have filed O.S.No.87/1990 on the file of Sub Court, Kuzhithurai for partition and to set aside the Gift Deed - Ex.A-1 (30.10.1980) executed in favour of Dharmaraj, by Gnanamony and Muthaiyan. In the trial Court, evidence was recorded separately and suits have been disposed of by separate judgments. In the Appellate Court, both the appeals were dismissed by common judgment. For convenience and to avoid mistaken reference, parties are referred in their rank in O.S.No.10/1986. 3.The parties are related as under :- Karuman | --------------------------------------------------------------------------------------- | | | | Ramasamy Gnanamony Muthaiyan Podiyappi D-5 (D-1) D-6 (D-2) = Rathina Bai D-13 (P-2) | -------------------------------------------------------------------------------------------------- | | | | | | | Chelladurai Dharmaraj | Das Thangapalam Mary Ranjitham died in 1982 died in 1981 | 1st Appellant D-7 D-8 D-9 | D-1 (P-1) (D-5) (D-6) (D-9) =Rosammal =Mary Glory | (P-3) D-10 Bai P-1 (D-3) | | | Kasi | | died in 1973 | | Unmarried | | | Francis Dharmarani | P-2 ------------------------- | | Chellaiyan Kamalam @ Justin Durai @ Joslin (D-11) (D-12) (Arraignment of parties within bracket, as per O.S.No.87/1990. Outside the bracket as per O.S.No.10/1986.) 4. The suit properties relate to - 'A' Schedule - S.No.2549A, 2549B of Killiyoor - 41 cents and shops R.S.No.27/7 'B' Schedule is 26 cents deducting the 15 cents sold to D-4 – Mariadoss 'C' Schedule is 3 shops within 'B' Schedule property. D.Nos.11-5A, 11-5B and 11-5C. Outside the bracket as per O.S.No.10/1986.) 4. The suit properties relate to - 'A' Schedule - S.No.2549A, 2549B of Killiyoor - 41 cents and shops R.S.No.27/7 'B' Schedule is 26 cents deducting the 15 cents sold to D-4 – Mariadoss 'C' Schedule is 3 shops within 'B' Schedule property. D.Nos.11-5A, 11-5B and 11-5C. 5. Case of the Plaintiffs in O.S.No.10/1986 is as follows:- The Plaintiffs – Mary Glory Bai and minor Daughter Francis Dharmarani are the wife and daughter of Dharmaraj. Gnanamony and Muthaiyan have executed Ex.A-1 – Gift Deed dated 30.10.1980, in favour of Dharmaraj. Dharmaraj has accepted the gift and patta was changed in his name and he was paying the tax. Dharmaraj had executed the Sale Deed to Mariadoss under Ex.B-1, selling fifteen cents to the said Mariadoss. Mariadoss died on 28.05.1981, leaving behind him the Plaintiffs as his legal representatives. During the life time of Dharmaraj, the shops were let out to the first Defendant, who refused to vacate. Hence the suit O.S.No.10/1986 was filed for - 1.declaration of title and injunction in respect of 'B' Schedule property and recovery of possession of 'C' Schedule properties; 2.recovery of Rs.1,080/- towards arrears of rent from 2nd Defendant and his assets. 3.furture mesne profits at the rate of Rs.30/- per month for 'C' schedule Items 1 and 3 and at the rate of Rs.60/- per month for 'C' Schedule Item No.2. 6. The Defendants resisted the suit contending that the subject matter of the Gift in the Joint Family Property. The property was purchased from out of the joint family income. The gift executed settling the joint family property is voidable and not binding upon the Defendants. After the gift, possession was not handed over to Dharmaraj. The first Defendant is in occupation of the shops in his own rights and not in the capacity as a tenant. The first Defendant had already filed O.S.No.248/1985 for declaring that the Gift Deed is void and not binding on them. The suit O.S.No.10/1986 filed after O.S.No.248/1995 (O.S.No.87/1990) is liable to be dismissed. 7. O.S.No.87/1990, Sub Court Kuzhithurai :: (O.S.No.248/1985, District Munsif Court Kuzhithurai) The suit was originally filed in O.S.No.248/1985 and later it was transferred to Sub Court, Kuzhithurai and renumbered as O.S.No.87/1990. Case of the Defendants is that the suit property belonged to the family of Karuman. Gnanamony and Muthaiyan were allotted 'B' Schedule Properties. 7. O.S.No.87/1990, Sub Court Kuzhithurai :: (O.S.No.248/1985, District Munsif Court Kuzhithurai) The suit was originally filed in O.S.No.248/1985 and later it was transferred to Sub Court, Kuzhithurai and renumbered as O.S.No.87/1990. Case of the Defendants is that the suit property belonged to the family of Karuman. Gnanamony and Muthaiyan were allotted 'B' Schedule Properties. The Settlement Deed executed by Gnanamony and Muthaiyan in favour of Dharmaraj on 29.08.1981 would not bind the shares of the Defendants 1, 13 and 10 and the children of D-10, who are the Plaintiffs in O.S.No.87/1990. The said Gnanamony and Muthaiyan along with the Plaintiffs have attempted to interfere with the possession and enjoyment of the shops by the first Defendant/Das. Hence D-1, D-13, D-10 and children of D-10 have filed O.S.No.87/ 1990 for partition and for cancellation of the Gift Deed - Ex.A-1, in favour of Dharmaraj. 8. The Plaintiffs - Mary Glory Bai and her minor Daughter Francis Dharmarani have filed the Written Statement contending that the gift in favour of Dharmaraj is valid and Dharmaraj has accepted the same and taken over possession. He has also sold a portion of the property – fifteen cents to one Mariyadoss. Patta was also transferred in the name of Dharmaraj and he was also paying kist. D-1/Das is a tenant in respect of the Building Nos.1 and 2 and is trespasser in respect of Building No.3. Hence D-1 is bound to surrender possession of the building with arrears of rent and mesne profits, as claimed in O.S.No.10/1986. 9. On the above pleadings, issues were framed in both the suits. By separate judgments, the learned Subordinate Judge, Kuzhithurai has decreed the suit O.S.No.10/1986 and dismissed the suit for partition O.S.No.87/1990, inter-alia on the following findings :- *** that Ex.A-1 -Gift Deed is a valid one and the ownership of the suit property was transferred to Dharmaraj and on his death, the property devolved on his wife and daughter. Ex.A-1 - Gift Deed is not vitiated by fraud or undue influence; *** in view of withdrawal of the earlier suit, O.S.No.647/1983, the Donors are estopped from challenging the validity of Ex.A-1. *** Dharmaraj was running a tea shop in Shop Nos.1 and 2 and later on, the same were given as a lease in respect of that shop to the first Defendant/Das. *** Dharmaraj was running a tea shop in Shop Nos.1 and 2 and later on, the same were given as a lease in respect of that shop to the first Defendant/Das. **** The trial Court found that Das has trespassed into Shop No.3 and that he is bound to pay arrears of rent and mesne profits, as claimed in the plaint. Declaring the title of the Plaintiff over the Suit Property, the trial Court held that the Plaintiffs are entitled to recover 'C' schedule property with mesne profits as claimed in the plaint. 10. Finding that the donors are estopped from challenging Ex.A-1 - Gift Deed, it was held that Ex.A-1 is binding upon every family member and on those findings, the partition suit O.S.No.87/1990 filed by the first Defendant/Das and others was dismissed. 11. Unsuccessful Defendants have preferred A.S.No.67/ 1991 and A.S.No.85/1991. In the Appellate Court, for the first time, the plea was raised that by registering Ex.A-1 - Gift Deed in Parasalai, Kerala State, there was a fraud on Registration and hence Ex.A-1 - Gift Deed is inadmissible in evidence. Placing reliance upon 1989 TLNJ 242, the appellate Court found that there is no collusion between the parties in executing Ex.A-1 - Gift Deed and the objections advanced by the Appellants on the registration of Ex.A-1 in the Sub Registrar's Office at Parasalai, Kerala State was rejected by the Appellate Court. The Appellate Court confirmed the findings of the trial Court and dismissed both the appeals. 12. Submitting that the Courts below have not properly appreciated the aspect of fraud on Registration, the learned Senior Counsel Mr.T.R.Mani, has made meticulous submissions. drawing the attention of the Court to a number of decisions. It is contended that Ex.A-1 Gift Deed executed in the State of Kerala, including a fictitious item in Parasalai, the Registration is in violation of the Registration Laws and the Registration ceases to be in force and rendering the documents inadmissible in evidence. The learned counsel has inter-alia raised the following submissions :- (i)the suit property is the joint family properties of Karuman and not the separate property of Gnanamony and Muthaiyan and no document is produced showing the suit property as the separate property of the Donors. The learned counsel has inter-alia raised the following submissions :- (i)the suit property is the joint family properties of Karuman and not the separate property of Gnanamony and Muthaiyan and no document is produced showing the suit property as the separate property of the Donors. The Gift Deed executed regarding coparcenary property is invalid; (ii)if Ex.A-1 - Gift Deed is inadmissible in evidence for want of proper Registration and D-1/Das and other Defendants are entitled to 1/3 share; (iii)when executors themselves have denied Ex.A-1 - Gift Deed the Courts below erred in granting the relief to the Plaintiffs and decreeing the suit O.S.No.10/1986. 13.Countering the arguments, learned counsel for the respondents has submitted that numerous evidence has been adduced showing that the property is the separate property of Gnanamony and Muthaiyan and that Ex.A-1 - Gift Deed is valid. The main argument advanced is that no contention was raised in the trial Court regarding the Registration of the document at Parasalai and the Appellate Court ought not to have taken up the plea regarding registration at Parasalai. It is further submitted that the circumstance for registering the document at Parasalai is a matter of evidence and that the strongest possible evidence ought to have been adduced proving the collusion. It is further submitted that the Lower Appellate Court has rightly referred to 1989 TLNJ 242 and that in the absence of collusion, the contention of the Defendants cannot be accepted. It is further contended that the concurrent findings of the Courts below cannot be interfered with by the High Court under Section 100 CPC. In support of his contention, the learned counsel for the Plaintiffs relied upon number of decisions. 14.Both the appeals were admitted on the following common substantial questions of law :- 1.Whether the Courts below were right in accepting and giving effect to the alleged Gift Deed 30.10.1980 when the original document is not produced and when no case is made out for reception of secondary evidence ? 2.Whether the Gift Deed dated 30.10.1980 is not void as offending the provisions of the Indian Registration Act ? 3.Whether the dismissal of I.A.No.435/1992 and I.A.No.434/1992 even without consideration, is legal and proper ? 4.Whether the properties are not Joint Family Properties liable to partition as prayed for ? 2.Whether the Gift Deed dated 30.10.1980 is not void as offending the provisions of the Indian Registration Act ? 3.Whether the dismissal of I.A.No.435/1992 and I.A.No.434/1992 even without consideration, is legal and proper ? 4.Whether the properties are not Joint Family Properties liable to partition as prayed for ? 15.Father of Dharmaraj viz., Gnanamony and his paternal uncle Muthiayan have settled 'A' schedule property - 41 cents and the 'C' schedule property- shops thereon, under Ex.A-1 - Gift Deed dated 30.10.1980. Two items of properties were conveyed under the Gift Deed. Item No.1 – 41 cents in Killiyoor Village; Item No.2 is a property situated within Parasalai village of Kerala State. According to the Defendants, Item No.2 Property at Parasalai Village is a fictitious one and non-existent. Validity of Ex.A-1 - Gift Deed is attacked mainly on the grounds - (i)that the suit property belongs to Joint Hindu Family to which the Defendants 1, 5 and 6 are coparceners; (ii)that the Gift Deed was obtained by Dharmaraj, by misrepresentation and the Gift Deed was not acted upon; - and - (iii)getting Ex.A-1 - Gift Deed executed at Parasalai including a fictitious property – Item No.2, and there is a fraud on registration. The substantial questions of law framed reflect only these aspects. 16.Certain facts and circumstances emerging are to be firstly highlighted. For better appreciation of the contentious points raised, we may usefully refer to certain relevant dates. Date of execution of Ex.A-1 Gift Deed - 30.10.1980 Dharmaraj died on - 29.05.1981 Notice sent by the Executive Officer, Killiyoor - 10.12.1981 Date of Cancellation Deed - 28.12.1981 Executive Officer executed change of transfer in the name of Plaintiff (Ex.A.23) - 19.01.1982 Suit O.S.No.647/1983 filed on - 19.10.1983 17.The differences deepened between the parties only after the death of Dharmaraj. For effecting name transfer of the houses, the Executive Officer, Killiyoor had sent notice on 10.12.1981; immediately thereafter, Gnanamony and Muthaiyan had cancelled the Settlement Deed (by Cancellation Deed dated 28.12.1981). Even after the effect of name transfer (19.01.1982), D-5 and D-6 have remained inactive. They have chosen to file O.S.No.164/1983 only on 19.10.1983. That suit was withdrawn on 24.01.1984. After withdrawal of that suit, Gnanamony and Muthaiyan have not chosen to take any steps to set aside the Settlement Deed. They remained content by filing the Written Statement in O.S.No.10/1986, on 18.06.1987. Before the trial commenced, Gnanamony died. They have chosen to file O.S.No.164/1983 only on 19.10.1983. That suit was withdrawn on 24.01.1984. After withdrawal of that suit, Gnanamony and Muthaiyan have not chosen to take any steps to set aside the Settlement Deed. They remained content by filing the Written Statement in O.S.No.10/1986, on 18.06.1987. Before the trial commenced, Gnanamony died. There was slumber on the part of Gnanamony and Muthaiyan and there appears to be deliberate inaction on their part for quite a long time. The withdrawal of the suit O.S.No.164/ 1983 (on 24.01.1984), is a strong piece of evidence against the stand of D-5 and D-6, assailing the Gift on various grounds. This aspect was rightly taken note of by the Courts below in upholding the validity of Ex.A-1. 18.According to the Defendants, the suit property belongs to Karuman which was inherited by the sons and the same was not the separate property of Gnanamony and Muthaiyan. Ex.A-1 - Gift Deed executed by Gnanamony and Muthaiyan is void. 19.The Donee Dharmaraj was a Christian. But there is nothing to show that the Donors and their father Karuman are also Christians. In Ex.B-3 – Othi Deed, Karuman is stated to be a Hindu. Similarly, in the Cause Title in O.S.No.647/ 1983, filed by Gnanamony and Muthiayan, they are stated to be Hindus. There is no denying that Donee - Dharmaraj and the Plaintiffs/Mary Glory Bai and their daughter are Christians. 20.Though the parties are said to be Hindus, in the Courts below, no evidence has been adduced showing that Item No.1 of the property – 41 cents of Killiyoor Villgae is the property of Karuman and the Joint Hindu Family Property. In Ex.A-1 - Gift Deed, Item No.1 is said to be properties of the donors Gnanamony and Muthaiyan, as is seen from the following :- "gl;of 1 k; ek;gh; t!;Jit rk;ge;jpr;R V';'l;F tpynel;lKs;sJk; Ma;J rk;ge;jpr;R //// v';fSbl ngh;f;F fps;spa{h; tpy;ny$[py; epe;Ek; nky; tpthpr;r ek;gh; gl;la';;'fs; rpj;jpr;R rh;t Rthj';jhPah tfhr';'nshL To mDgtpr;R tU';'Jk; ///// 21.While the Item No.1 of the property is said to be belonging to the Donors - Gnanamony and Muthaiyan, the Defendants, have not produced any documents showing that the property was owned by Karuman and it was the Joint Hindu Family Property. To the notice issued by the Plaintiffs, D-1 had sent Ex.A-9 Reply. But D-1 has not stated that the property is the Joint Hindu Family Property. To the notice issued by the Plaintiffs, D-1 had sent Ex.A-9 Reply. But D-1 has not stated that the property is the Joint Hindu Family Property. On the other hand, he has only stated that the shops absolutely belong to his father and that excepting his father - Gnanamony, others have no manner of right or interest in the shops thereon. In Ex.A-19 - Reply letter sent by D-1, he has stated as follows:- "mjpy; Fwpg;gpl;oUf;fpwgo 11-5B ek;gh; filnahL filapy; cs;s rhkhd';fnsh c& tif brhj;njh. vd;nfh ntW ahUf;Fnkh chpik ,y;yhjJk;. c& tif fila[k;. filapy; cs;s rhkhd';fSk; c& tif brhj;Jk; vd;Dila jfg;gdhh; "hdkzp ehlhUila tifa[k; MFk;/" 22.Though in the notice D-1 has stated that the shops absolutely belong to his father Gnanamony, in the Plaint in O.S.No.87/1990 and in the Written Statement in O.S.No.10/ 1986, the Defendants have alleged that the Suit Property is the Joint Family Property of Karuman and his sons. The trial Court referring to the recitals in Ex.A-1 - Gift Deed and Ex.A-19 Reply by D-1, found that the property is the separate and absolute property of Gnanamony. The Appellate Court found that the property purchased by Gnanamony (under Ex.A-1 in O.S.No.87/1990 - Ex.A-24 in O.S.No.10/1986), was only the settled in favour of Dharmaraj. That finding of the First Appellate Court reads :- "Mfnt/ "hdkzp th/rh/M/1 K:yk; fpuak; bgw;w brhe;j brhj;ijg; bghWj;J gp/rh/M/1 (th/rh/M/1) d;go ed;bfhilg; gj;jpuk; jd; kfd; jh;kuh$; nghpy; vGjpf; bfhLj;jpUf;fpwhh; vd;gJ bjspthfpwJ/" The property covered under the above Sale Deed Ex.A-24 (Ex.A-1 in O.S.No.87/1990) is nine cents. The above finding of the First Appellate Court is erroneous and incorrect. 23.Ex.A.24 (Ex.A-1) relates to the property of nine cents or three cents (actual extent not clearly discernible from the vernacular in the document) purchased by Gnanamony from one Nadan Kannu. 'A' Schedule property in O.S.No.10/1986 is an extent of 41 cents. The property in O.S.No.87/1990 is 'B' Schedule property – an extent of 41 cents (25 + 16 cents). While so, the Lower Appellate Court erred in saying that the property covered under Ex.A-24 (Ex.A.1) is the one settled in favour of Dharmaraj under Ex.A-1 - Gift Deed. 24.In the trial Court, only scant evidence was available regarding the nature of the property. Best evidence was not adduced. Findings of the Courts below regarding the finding that the Suit Property is the self acquired/separate property of Gnanamony and Muthaiyan is not quite convincing. 24.In the trial Court, only scant evidence was available regarding the nature of the property. Best evidence was not adduced. Findings of the Courts below regarding the finding that the Suit Property is the self acquired/separate property of Gnanamony and Muthaiyan is not quite convincing. Since proper evidence was not available, the Courts below were unable to arrive at a correct finding on the nature of the property. This Court is of the view that without analysing the factual situation, it would not be proper to endorse that concurrent findings of the Courts below, finding that the Suit Property is the absolute property of Gnanamony and Muthaiyan. Findings of the Courts below concluding that the property is the absolute property of Gnanamony is erroneous. The Courts below have committed serious and substantial error on this aspect which has definite bearing in determining the rights of the parties. Additional evidence adduced throws light upon the nature and character of the property. To arrive at a proper conclusion, it has become necessary to receive additional documents, though produced in the Second Appellate stage. 25. I.A.No.434/1992 and I.A.No.435/1992:- (filed in the First Appellate Court) These applications were filed in the First Appellate Court under Or.41, R.27 CPC to receive additional evidence in the appeal – Registered Sale Deed dated 7.5.1960 executed by Ramasamy Nadar, one of the sons of Karuman, in favour of one Raja Rathinam, dealing with the portion of his share in the family properties bearing reference to the Suit Property as the Joint Family Properties. The First Appellate Court did not consider the applications and they were dismissed on 06.04.1993, when the appeals were disposed of. The applications under Or.41 R.27 CPC were dismissed with endorsement "since the appeal is disposed of, this petition is dismissed". The Lower Appellate Court erred in refusing to receive the documents/Sale Deed by Ramasami S/o Karuman, which has a definite bearing on the issues involved in the litigation. 26. C.M.P.Nos.13287/2004 & 13288/2004 – Under Or.41 R.27 CPC : These applications are filed under Or.41, R.27 CPC, to receive the following documents as Additional Evidence :- 1.Registration copy of Sale Deed dated 12th of Singa Month, 1912 M.E. (1937) – executed by Annammal Nadachi in favour of KochanNadar and Karuman Nadar. 2.Registration copy of Sale Deed dated 07.05.1960 executed by Ramasami Nadar in favour of Rajarathinam Nadar. 2.Registration copy of Sale Deed dated 07.05.1960 executed by Ramasami Nadar in favour of Rajarathinam Nadar. 3.Certificate of encumbrance dated March 2003 issued by the Office of the Sub Registrar, Parasalai. 4.Xerox copy of Certificate dated 16.04.2003 issued by Tahsildar, Neyyatinkara. 27.Contending that additional evidence cannot be received in the appellate stage to fill up the lacuna, the learned counsel for the Plaintiffs relied upon 2001 7 SCC 503 , [N.Kamalam and another Vs.Ayyasamy and another] wherein the Supreme Court has held that after a long time-lag, the Appellate Court cannot receive the additional evidence after a period of ten years from the date of filing the appeal. It is further contended that the ingredients of Or.41, R.27 CPC is not attracted to receive the additional evidence. In the said decision, the Supreme Court has held : "The provisions of Or.41 R.27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the Court of appeal – it does not authorise any lacunae or gaps in evidence to be filled up. The authority and jurisdiction as conferred on to the appellate Court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way. The time-lag in the matter under consideration is enormous. The suit was instituted in the year 1981 and the decree therein was passed in 1983. the first appeal was filed before the High Court in April 1983 but the application for permission to adduce additional evidence came to be made only in August 1993. Needless to record that the Courts shall have to becautious and must always act with great circumspection in dealing with the claims for letting in additional evidence particularly, in the form of oral evidence at the appellate stage and that too, after a long lapse of time. A plain reading of Or.41 R.27 would depict that the rejection of the claim for production of additional evidence after a period of 10 years from the date of filing of the appeal cannot be termed to be erroneous or an illegal exercise of discretion. The three limbs of Rule 27 do not stand attracted. A plain reading of Or.41 R.27 would depict that the rejection of the claim for production of additional evidence after a period of 10 years from the date of filing of the appeal cannot be termed to be erroneous or an illegal exercise of discretion. The three limbs of Rule 27 do not stand attracted. The learned trial Judge while dealing with the matter has, as a matter of fact, very strongly commented upon the lapse and failure on the part of the Plaintiffs even to summon the attestors to the will and contextually, the justice of the situation does not warrant any interference." 28.The above decision cannot be applied to the case in hand since the additional documents have not been produced for the first time in the second appeal. Even in the Lower Appellate Court, I.A.No.434/1992 and I.A.No.435/1992 were filed under Or.41, R.27 CPC for reception of additional evidence. The Lower Appellate Court being final Court on factual aspects, ought to have received the document and considered the matter. In fact, the second appeal itself has been admitted on the substantial question of law, whether the dismissal of I.A.No.434/1992 and I.A.No.435/1992 for reception of Additional Evidence even without consideration, is legal and proper. When that being so, it would be improper to refuse to receive the additional evidence which throws light upon the nature and character of the property. 29. Contending that the power of the High Court under Section 100 CPC is limited only to the substantial question of law, the learned counsel for the Plaintiffs has submitted that by receiving the documents the Court cannot interfere with the concurrent findings of the Courts below. In support of his contention, the learned counsel for the Plaintiffs has relied upon 2005 (3) CTC 504 : "As per settled law, the scope of exercise of the jurisdiction by the High Court in Second Appeal under Section 100 CPC is limited to the substantial questions of law framed at the time of admission of the appeal or additional substantial questions of law framed at a later date after recording reasons for the same. It was observed in Santosh Hazari's case (supra) that a point of law which admits of no two opinions maybe a proposition of law but cannot be a substantial question of law. It was observed in Santosh Hazari's case (supra) that a point of law which admits of no two opinions maybe a proposition of law but cannot be a substantial question of law. To be a 'substantial' question of law must be debatable not previously settled by law of the land or a binding precedent and answer to the same will have a material bearing as to the rights of the parties before the Court. As to what would be the question of law 'involving in the case' there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by the court of facts and it must be necessary to decide that question of law for a just and proper decision between the parties." 30.No doubt, the powers of the High Court under Section 100 CPC is limited to the substantial question of law. But when the Courts below have committed serious and substantial error and the findings are manifestly erroneous, in exceptional cases, the High Court could reassess the evidence to arrive at a correct conclusion. The Courts below have committed a serious error in not properly considering the nature and character of the Suit Property which has a definite bearing, determining the rights of the parties. Hence it has become necessary to receive the additional evidence and re-assess the entire evidence adduced by the parties and receive additional evidence. 31. For arriving at proper conclusion regarding the character of the Suit Property, the above documents 1 and 2 are received in evidence as Additional Documents and the Petitions are allowed partly. The sale deeds dated 12th Singa month 1912 and 7.5.1960 are received in evidence in S.A.No.1306/1993 (O.S.No.10/1986) as Exs.B-7 and B-8. In S.A.No.1307/1993 (O.S.No.87/1990), the said documents are received and marked as Additional Documents Exs.A-19 and A-20. 32. The first document is the Sale Deed in favour of Kochan Nadar and Karuman Nadar by one Annammal, selling S.No.2550B, S.No.2549A – 1.28 acres of Killiyoor village. The Suit Property forms part of the property purchased under Ex.B-7 by Karuman and Kochan Nadar. It is not known how Kochan Nadar and Karuman Nadar have divided the properties. Suffice it to point out that the suit S.No.2549A is the property of Karuman and is the Joint Family Property of Karuman. 33. The Suit Property forms part of the property purchased under Ex.B-7 by Karuman and Kochan Nadar. It is not known how Kochan Nadar and Karuman Nadar have divided the properties. Suffice it to point out that the suit S.No.2549A is the property of Karuman and is the Joint Family Property of Karuman. 33. Another additional document – Ex.B-8 is the Sale Deed dated 7.5.1960 executed by Ramasami, S/o Karuman, in favour of one Raja Rathinam. The additional documents – Ex.B-8 - Sale Deed by Ramasami clearly proves the character of Suit Property that it is the Joint Family Property and that Ramasami had dealt with his share of 5 cents in S.No.2549A. Vendor Ramasami S/o Karuman has clearly traced his title to the Sale Deed of his father Karuman, which is clear from the following : 34. The above recitals in Ex.B-8 strengthens the contention of the Defendants that the property is the Joint Family Property of Karuman, devolved upon his four sons viz., Ramasami, Gnanamony, Muthaiyan and Podiyappi. The First Appellate Court committed serious error in dismissing the I.A.No.434/1992 and I.A.No.435/1992 in refusing to receive the additional evidence viz., Sale Deed dated 7.5.1960, which definitely shows that the property is the property of Karuman and not the self-acquired property of Gnanamony and Muthaiyan. The Substantial question No.3 is answered accordingly. 35. Gift of Joint Family Property – whether invalid ? According to the Defendants, after the death of Karuman, the Joint Family Property of Karuman devolved upon his sons Ramasami, Gnanamony, Muthaiyan and Podiyappi. It is their further case that the brothers partitioned 'A' Schedule Property and Gnanamony and Muthaiyan got 'B' Schedule Properties to their share and were enjoying the same. According to the Defendants, in the partition, Gnanamony and Muthaiyan got 'B' Schedule properties to their share and were enjoying the same. It is their further contention that 'C' Schedule property, said to be three cents, was purchased by Gnanamony from out of family income. It is also the contention of the Defendants that the Suit Property is the Joint Family Property of Gnanamony and his four sons viz., Chelladurai, Dharmaraj, Kasi and the first Defendant/Das. On that basis, the Defendants claim their respective share. According to them, Muthaiyan is entitled only to half share and Gnanamony is entitled to 1/10th share (1/2 x 1/5 = 1/10). 36. On that basis, the Defendants claim their respective share. According to them, Muthaiyan is entitled only to half share and Gnanamony is entitled to 1/10th share (1/2 x 1/5 = 1/10). 36. The main contention advanced is that the Suit Property being the Joint Family Property, the Gift of Joint Family Property by one coparcener without the consent of others is void. A Gift by a coparcener of his undivided interest in the coparcenary property is void. By an alienation of his undivided interest in the coparcenary property, a coparcener cannot deprive the other coparceners of their right to the property. The object of this strict rule against the alienation by way of gift is to maintain the jointness and ownership and possession of the coparcenary property. It is well settled that the gift by a coparcener in a Mitakshara family of his undivided interest is wholly invalid. 37. The substantial question of law No.4, had been formulated on the validity of the gift relating to the Suit Properties and whether it was acted upon between the parties. The main point for consideration is whether the above settled position of Hindu Law could be applied to Ex.A-1. The main contentions of the Defendants is that the gift of undivided property by Gnanamony and Muthaiyan is invalid and void-ab-initio. 38. The learned Senior Counsel has raised the contention in attacking the validity of the Gift Deed as void. The objection regarding the validity of Gift Deed could be sustained only as regards Gnanamony. It is not open to the Muthaiyan to raise that plea. It is to be pointed out that Muthaiyan is the divided brother of Gnanamony and is unmarried. Even in the plaint averments in O.S.No.87/1990, it is alleged that the brothers have partitioned 'A' schedule property and Gnanamony and Muthaiyan got 'B' Schedule Property - Items 1 and 2 viz., - 25 cents + 16 cents. 39. As discussed infra, the Gift Deed has been validly executed by Gnanamony and Muthaiyan. Validity of the Gift Deed accepted by the Courts below is unassailable (vide discussion infra). While so, it is not open to D-6/Muthaiyan to attack the validity of Ex.A-1 on the ground that it is a Gift of undivided property. 39. As discussed infra, the Gift Deed has been validly executed by Gnanamony and Muthaiyan. Validity of the Gift Deed accepted by the Courts below is unassailable (vide discussion infra). While so, it is not open to D-6/Muthaiyan to attack the validity of Ex.A-1 on the ground that it is a Gift of undivided property. Ex.A-1 being a gift out of his own will and volition to his own brother's son, it is not open to D-6/Muthaiyan to attack the validity of Ex.A-1 against his share. 40. In that view of the matter, now let us confine ourselves to consider the validity of the Gift Deed to the extent of share of Gnanamony. Can his another son, a legal heir of another son Chelladurai, raise objection regarding the validity of Ex.A-1 - Gift Deed, on the ground that it is a gift of undivided share by a coparcener is the point for consideration. Can it be attacked in toto or is the Gift Deed by Gnanamony could be valid to the extent of share of Gnanamony (1/10), are the points arising for consideration. The object of the strict rule against alienation by way of gift by coparcener is to maintain the jointness of ownership and possession of the Joint Family Property. The deceased Dharmaraj continued to be a member of the Joint Family. Ex.A-1 is a gift of one coparcener – father Gnanamony in favour of another coparcener - son Dharmaraj. This document Ex.A-1, though termed as gift, since the same is in favour of another coparcener, jointness of ownership and possession of the Joint Family Property is not lost and hence the same could be treated as a Release Deed by one Coparcener to another Coparcener. 41.In the case before the Supreme Court in AIR 1987 SC 1775 (Thamma Venkata Subbamma (dead) by L.R.Appellant V. Thamma Tattamma and others) two brothers and sons and daughters and one of them constituted Joint Hindu Family Property governed by Mitakshara school of Hindu Law. One of the brothers executed a Deed of Settlement in favour of his brother conveying his entire undivided interest in the coparcenary, reserving his life interest to himself and also providing that after his death, his brother should maintain his wife. One of the brothers executed a Deed of Settlement in favour of his brother conveying his entire undivided interest in the coparcenary, reserving his life interest to himself and also providing that after his death, his brother should maintain his wife. In that case, pointing out that it enures for the benefit of remaining coparceners, the Supreme Court has found the same valid, considering the settlement as a Deed of Relinquishment by the Donor of his interest in the coparcenary and found that the consent of other coparceners was immaterial. In the said decision, the Supreme Court has held :: "Held that although the gift is ostensibly in favour of brother, but really the donor meant to relinquish his interest in the coparcenary in favour of the brother and his sons. Assuming that it is a renunciation in favour of one of the coparceners, namely, the brother, such renunciation enures for the benefit of all other coparceners and not for the sole benefit of the coparcener in whose favour the renunciation was made. The gift should be construed as renunciation of his undivided interest in the coparcenary in favour of the brother and his sons who were the remaining coparceners. The gift was, therefore, valid construing the same as renunciation or relinquishment by the donor of his interest in the coparcenary and, accordingly, the consent of other coparceners was immaterial. (underlining added)." 41.A.In the above decision, the Supreme Court has referred to the following passage from Mulla's Hindu law, 15th Edition, Article 264 at page 357:- "Art. 264(1) Renunciation or relinquishment of his share – A coparcener may renounce his interest in the coparcenary property in favour of the other coparceners as a body but not in favour of one or more of them. If he renounces in favour of one or more of them, the renunciation enures for the benefit of all other coparceners and not for the sole benefit of the coparcener or coparceners in whose favour the renunciation is made. Such renunciation is not invalid even if the renouncing coparcener makes it a condition that he would be paid something towards maintenance. The renunciation or relinquishment must, of course, be genuine. If fictitious and not acted upon it would not be operative as between the parties and partition can be claimed. Such renunciation is not invalid even if the renouncing coparcener makes it a condition that he would be paid something towards maintenance. The renunciation or relinquishment must, of course, be genuine. If fictitious and not acted upon it would not be operative as between the parties and partition can be claimed. " 42.Applying the above decision, this Court finds that it would be appropriate to uphold the validity of Ex.A-1 Gift Deed though it is the undivided share of Gnanamony (1/10th share) and share of Muthaiyan (1/2nd share). The Gift Deed is to be upheld to that extent. Ex.A-1 - Gift Deed is construed as a Release Deed by the father Gnanamony to the extent of his share. 43.The question might arise as to the extent of the validity of the Gift Deed which is valid only to the limited extent of share of Muthaiyan and Gnanamony. We have already found that the divided brother Muthaiyan cannot challenge the validity of Ex.A-1 - Gift Deed to the extent of his share. Even in the Plaint, in O.S.No.87/1990, it is alleged that Muthaiyan is entitled to 1/2 share in the Plaint 'B' and 'C' schedule properties. Gnanamony is entitled to 1/10 share in the Plaint 'B' and 'C' schedule properties. Ex.A-1 - Gift Deed is valid to the extent of the share of Gnanamony (1/10th share) and Muthaiyan (1/2nd share). 44.At this juncture, the vagueness and lack of clarity in the description of the Plaint Schedule Properties in O.S.No. 87/1990 is to be pointed out. In O.S.No.87/1990, 'A' Schedule is said to be an extent of 1.12 acres in S.No.2549A and S.No.2549B. In Ex.B-8 (Ex.A.20), the property owned by Karuman, out of which Ramasami sold, is stated as under :- S.No.2549A - 0.82 - 5 Cents S.No.2549B - 0.32 - 4 Cents S.No.2550 - 0.14 - 1 Cent ----- 1.28 ----- By a careful reading of Ex.B-8, (Ex.A.20) Sale Deed, it is seen that the Extent of S.No.2549A is 0.82 acres. But in the Plaint, in O.S.No.87/1990, in 'A' Schedule, S.No.2549A and S.No.2549B is said to be 1.12 acres. But in the Plaint, in O.S.No.87/1990, in 'A' Schedule, S.No.2549A and S.No.2549B is said to be 1.12 acres. 'B' Schedule is said to be Item No.1 - 25 cents Item No.2 - 16 cents 'C' Schedule is said to be - 3 cents (as per Document – 9 cents – Ex.A-24 - Extent 9 cents or 3 cents not clear) 45.It is not known whether all the properties owned by Karuman are included in the Plaint Schedule Properties. For instance, in the additional documents produced, Ex.B-7 (Ex.A.19), Karuman is said to have purchased an extent of property in S.No.2550B also. The same is confirmed in Ex.B-8 (Ex.A.20), where the extent of S.No.2550B is stated to be 14 cents. The same is not shown in the Plaint Schedule in O.S.No.87/1990, the suit for partition. Similarly, from Ex.B-3, it is seen that there was an Othi in favour of Karuman by another Karuman, which relates to S.No.2544 – 1.37 acres; S.No.1219 – 60 cents. All these documents only show that Karuman must have been in possession of other property, which are not included in the partition suit. However, at this distant point of time, this Court is not proposed to go into that aspect or remand the matter for inclusion of those items. Suffice it to point out that the Plaintiffs would be entitled to 2/30 share in other times of family properties (which are not included in the partition suit), as legal heirs of Dharmaraj (1/10 x 2/3). The mother Rosammal would be entitled to 1/30 share. (1/10 x 1/3) 46.In this litigation, the parties are concerned only with S.No.2549A – 41 cents. As found earlier, Ex.A-1 Gift Deed is valid to the extent of Muthaiyan Share – ½ share and the share of Gnanamony 1/10 share. Thus Dharmaraj would be entitled to 1/2 + 1/10 + 1/10 = 7/10 share (as per the Gift Deed and as coparcener in the Joint Family Property). Out of 7/10, the Plaintiffs would be entitled to two shares and the mother of Dharmaraj would be entitled to one share, which is 7/30 + 7/30 = 14/30 and 7/30 in the entire property. 47. Out of 7/10, the Plaintiffs would be entitled to two shares and the mother of Dharmaraj would be entitled to one share, which is 7/30 + 7/30 = 14/30 and 7/30 in the entire property. 47. PLEA OF MISREPRESENTATION :- In the Written Statement filed by Gnanamony and Muthaiyan, it is alleged "that Dharamaraj took them to Parasalai and representing it to be a power of Attorney, got the Gift Deed registered at Parasalai, by fraud and misrepresentation and the Defendants who are illiterate and sick and old persons were duped by Dharmaraj. Before the trial commenced, D-5 - Gnanamony died. Onbehalf of the Defendants, it is mainly contended that D-5 and D-6 have been taken to Parasalai and being illiterates, their signatures have been obtained by misrepresentation and the burden of proof lies upon the Plaintiffs to prove that the document is not vitiated by misrepresentation. In support of his contention, learned Senior Counsel has relied upon 1992 (2) LW 209 , 1993 (1) LW 466 . The contention that the signatures of Gnanamony and Muthaiyan had been obtained by misrepresentation does not merit acceptance. It is not as if the donors are so ignorant and not worldly wise. Even in the year 1975, Gnanamony had purchased the property from Nada kannu and the same was registered at Parasalai (as an item of property in Parasalai). Hence, it is not as if Gnanamony was not in the know of things. 48. The contention that the Gift Deed had been obtained by misrepresentation and that the burden of proof lies upon the Plaintiffs to prove that the document was not obtained by misrepresentation cannot be applied to the case in hand. As noted earlier in paragraph 16, Dharmaraj died on 29.05.1981. Only after notice was issued by Executive Officer for effecting name transfer, D-5 and D-6 have cancelled the Gift Deed by a Cancellation Deed dated 28.12.1981. Two yeas thereafter, they have filed O.S.No.649/ 1983 (on 19.10.1983) for Permanent Injunction restraining the Executive Officer from effecting the name transfer. Obviously, only long time after the death of Dharmaraj, D-5 and D-6 appear to have challenged the Gift Deed. The inaction on the part of D-5 and D-6 for nearly three years and the acquiescence goes a long way, strengthening the genuineness of Ex.A-1 - Gift Deed. 49. Obviously, only long time after the death of Dharmaraj, D-5 and D-6 appear to have challenged the Gift Deed. The inaction on the part of D-5 and D-6 for nearly three years and the acquiescence goes a long way, strengthening the genuineness of Ex.A-1 - Gift Deed. 49. In the plaint in O.S.No.647/1983, D-5 and D-6 have only alleged that they have admitted the execution of Gift Deed in favour of Dharmaraj on 30.10.1980. They have only alleged that the buildings in the Plaint Schedule Property has been excluded from the Gift Deed. It is further alleged that after the death of Dharmaraj, the Gift Deed was cancelled on 28.12.1981. In O.S.No.647/1983, D-5 and D-6 have sought for declaration of their title and possession over the property, including the buildings. In O.S.No.647/1983, there are no averments regarding the alleged misrepresentation and fraud and the fraud on Registration. The suit O.S.No.647/1983 was withdrawn by D-5 and D-6 and the suit was dismissed on 24.01.1984. If really the Gift Deed was so obtained by fraud and misrepresentation, the D-5 and D-6 would have certainly pursued the suit. 50.In the light of absence of allegations about the misrepresentation and fraud in O.S.No.647/1983 and the withdrawal of the suit, no weight could be attached to the averments in the Written Statement alleging misrepresentation and fraud. Much arguments have been advanced, contending that withdrawal of the suit in O.S.No.647/1983 would not operate as Res-judicata. The question is not Res-judicata, but the conduct of D-5 an D-6 in withdrawing the earlier suit O.S.No.647/1983, which goes a long way, strengthening the genuineness of Ex.A-1 - Gift Deed. Absence of allegations on the alleged misrepresentation in O.S.No.647/1983 and the withdrawal of the suit O.S.No.647/1983 is a strong militating circumstance against the contention of Defendants 5 and 6. 51.Case of the Plaintiffs is also attacked on the ground that Ex.A-1 - Gift Deed was not acted upon and that it had not come into force and that the family continued to be in possession of the Plaint Schedule Property. In this regard, the case of the Plaintiffs is attacked for non-production of the original Gift Deed Ex.A-1. Dharmaraj married the first Plaintiff on 8.2.1980 and the marriage was solemnized in a Church as per the Christian custom. Within one year after the marriage, Dharmaraj died on 29.05.1981. In this regard, the case of the Plaintiffs is attacked for non-production of the original Gift Deed Ex.A-1. Dharmaraj married the first Plaintiff on 8.2.1980 and the marriage was solemnized in a Church as per the Christian custom. Within one year after the marriage, Dharmaraj died on 29.05.1981. Within a few days after the death of Dharmaraj, the first Plaintiff is alleged to have been driven away from the family house. In her evidence, PW-1 has stated : "vd; fzth; ,we;j gpd;g[ bfh";r ehs; jhd; rpndfkhf ,Ue;jdh;/ vd; ifapypUe;J filia thliff;F vLj;j gpd;g[ vd;id btspnaw;wptpl;lhh;fs;/ ehd; ,g;nghJ vd; tajhd bgw;nwhh;fSld; FoapUe;J tUfpnwd;/" If she was so forcibly driven away from the family house, the first Plaintiff might not have been in a position to take the original of Ex.A-1 along with her. No adverse inference could be drawn against the case of the Plaintiffs on the ground of non-production of the original of Ex.A-1 - Gift Deed. On the ground of non production of original of Ex.A-1 - Gift Deed, the Defendants are not right in putting forth the contention that Ex.A-1 - Gift Deed was not acted upon. The trial Court has rightly admitted the Registration copy of Ex.A-1 - Gift Deed and the substantial question of law No.1 is answered accordingly. 52.Equally, the contention that Gift Deed was not acted upon and that the family continued to be in possession of the shops, has no force. The new Survey Number of the Suit Property (S.No.2549A) is S.No.27/7. Ex.A-12 is the patta issued in the name of the first Plaintiff/Mary Glory Bai . The Adangal has also been issued in the name of the first Plaintiff for S.No.27/7. Exs.A-2 to A-5 are the kists paid by the Plaintiff for S.No.27/7. As discussed earlier, the first Plaintiff had given a petition to the Executive Officer, Killiyoor to effect name transfer for the shops 11-5A, 11-5B, 11-5C. On the application, notice was also issued to the Defendants, who had submitted their representation to the Executive Officer through their Advocate. After enquiry, the Executive Officer, Killiyoor had effected name transfer under Ex.A-23 proceedings dated 19.01.1982. Documentary evidence adduced by the Plaintiffs clearly show that Ex.A-1 was well acted upon. The concurrent factual findings arrived at by the Courts below that Ex.A-1 was acted upon is to be endorsed with. 53. After enquiry, the Executive Officer, Killiyoor had effected name transfer under Ex.A-23 proceedings dated 19.01.1982. Documentary evidence adduced by the Plaintiffs clearly show that Ex.A-1 was well acted upon. The concurrent factual findings arrived at by the Courts below that Ex.A-1 was acted upon is to be endorsed with. 53. CONTENTION ON THE REGISTRATION AT PARASALAI:- Case of the Plaintiffs is mainly attacked on the ground of validity of Ex.A-1, that it has not been registered before the Registrar having jurisdiction to register the document and on the other hand, Ex.A-1 was registered in Parasalai, Kerala State including item No.2, which is a fictitious property. In Ex.A-1 - Gift Deed, Item No.2 is a property at Parasalai, which is described as - "fiuf;fhL g[uaplj;jpy; tlf;fUF 10 brd;wpD 4 Mh; 5 r/ kPl;lh; g[uaplk; xw;wpt!;Jt[k; ToahFe;E/ fpHf;F fiuf;Fk; tlf;F nWoDk; nkf;F ,ltHpf;Fk; bjf;F epyj;jpDk;" 54.Item No.2 is said to be belonging to the Donor, by way of Othi, which is stated in Ex.A-1 as under :- "gl;of 2 Mk; ek;gh; t!;Jit rk;ge;jpr;R FLk;gj;jpnyf;F 1046 y; bea;ahw;wpd; fu rg; u$p!;luhgP!; Kfnd 100-= U:gh mh;j;Jk; Rkj;jp 88 hk; ek;guhap xw;wpth';'Pl;Ls;sjk; gpd; Jlh;r;rhtfhr tHp "';'l;F rpj;jpr;R "';fs; mDgtpr;R tUe;EJk; gpw!;Jj 2 hk; ek;gh; t!;J xw;wptut[ Mfahy; nghf;Ftut[ bra;naz;l Mtrpak; ,y;yhj;jJk; ///" 55.Much arguments have been advanced that the above description of the item shows that the property is a non-existent one and that it is a fictitious property, included mainly for getting the document registered at Parasalai. It is also contended that the Donors – Gnanamony and Muthaiyan had no semblance of right and title to the said property that exist in Kerala, much less the othi, over the said property. The main contention advanced is that the property at Parasalai, Kerala State has been deliberately included and the parties have chosen to register the Sale Deed at Parasalai, Kerala State, with a view to defeat the provisions of the Registration Act. In support of his contention, the learned Senior Counsel has relied upon a number of decisions. 56.The sale deeds are compulsorily registrable under Section 17 of the Indian Registration Act of 1877. Sec.28 of the Act requires that every registrable document shall be presented for registration in the office of a Sub Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate. 56.The sale deeds are compulsorily registrable under Section 17 of the Indian Registration Act of 1877. Sec.28 of the Act requires that every registrable document shall be presented for registration in the office of a Sub Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate. Sec.49 enacts that no registrable instrument shall affect any immovable property comprised therein unless it has been registered in accordance with the provisions of the Act. Sec.65 provides for the transmission of copies to the office of other districts in which any of the property is situate. 57.As per the provisions of Registration Act, the document should be registered only before the Sub Registrar, within whose jurisdiction the property is situated. The Suit Property being situated at Killiyoor, the Sub Registrar Office is said to be Karingal - Sub Registration District, Marthandam Registration District. 58.It is the case of the Plaintiff that the inclusion of a fictitious property in Kerala in the sale deeds, just for the purpose of getting the documents registered in Kerala, is a fraudulent act. Therefore, the documents should be held to be void. Reliance was placed on the decision of the privy Council in AIR 1914 PC 67 [Harendra Lal Ray Vs. Haridasi Debi]. In that case, the properties comprised in a deed of mortgage were all situated outside the limit of Calcutta, except for a portion which did not belong to the mortgagor and which neither the mortgagor nor the mortgagee intended to be included in the mortgage. In those circumstances, the Privy Council held as follows:- "Their Lordships hold that this parcel is in fact a fictitious entry, and represents no property that the mortgagor possessed or intended to mortgage, or that the mortgagee intended to form part of his security. Such an entry intentionally made use of by the parties for the purpose of obtaining registration in a district where no part of the property actually charged and intended to be charged in fact exists, is a fraud on the Registration Law, and no registration obtained by means thereof is valid." 59.Referring to the above decision in AIR 1921 Privy Council 8 [Mathura Prashad and others Vs. Chandra Narayan Chowdhry] it was held that :- "Where in a mortgage deed, property which exists but in which the parties intend to transfer no interest, is included merely for the purpose of obtaining registration in the district wherein that piece of property is situate, the registration of the deed is invalid as being obtained by fraud." 60.Finding that insignificance item of no value and completely inaccessible when included only for registration and that such sale is a mere devise to avoid Registration Act, in AIR 1934 Privy Council 157 [Collector of Gorakhpur Vs. Ram Sundar Mal and others], it was held as follows:- "The word 'fictitious' used in AIR 1914 P.C.67 is not confined to non-existing properties. It is satisfied if the deed does not 'relate' to a specified property for any effective purpose of enjoyment or use. An insignificant item of property included to the sale-deed was of no value, both in respect of the interest taken in it and in respect of its complete inaccessibility. It was incapable either of being utilized or enjoyed by the purchaser; the vendor refused to include in the sale any property to which these disadvantages did not attach in the place where registration was effected: Held: that one of two inferences alone was possible, either that it was never intended by either party that the item should, for any purpose other than that of registration, be subject of sale at all, or that the vendor only included it because he knew that it never could become an effective subject of enjoyment or occupation by the purchaser. The so-called sale was a mere device to evade the Registration Act." Following the above decision in AIR 1937 Madras 32, (Karutha Syed Muhammad Rowthar Vs. Official Receiver, Coimbatore and another), it was held that inclusion of a particular item of property to get the Sale Deed registered at a particular place is bad and the registration was held as invalid. 61.Finding that such registration in a place within the Sub Registrar is a fraud on the registration and that the document should be treated as unregistered document for all purposes, in AIR 1937 Calcutta 347 [Sailendra Nath Singha Vs. 61.Finding that such registration in a place within the Sub Registrar is a fraud on the registration and that the document should be treated as unregistered document for all purposes, in AIR 1937 Calcutta 347 [Sailendra Nath Singha Vs. Keshab Chandra Choudhury] it was held :: "Where the parties to a mortgage deed for over for Rs.100, get the deed registered by the registering officer by fraudulently representing to him that part of the mortgaged property is situate within the District over which he has jurisdiction while in fact such property is a fictitious one and has no existence, the entry of such part of the property in the mortgage deed having been intentionally made use of by the parties for the purpose of obtaining registration in a District where no part of the property actually charged and intended to be charged in fact exists, is a fraud on the registration law, and no registration obtained by means thereof is valid. The effect of fraud on the registration law is that the document should be treated as an unregistered document for all purposes and the deed cannot be treated as an unregistered document for one purpose and a registered document for another. The mortgage deed being only registrable under section 28 of the Act and none else, the deed cannot be deemed to be registered document under Section 29 of the Act so as to entitle the mortgagee to sue on the personal covenant as on a registered bond." To the same effect is the decisions - AIR 1936 PC 91, AIR 1939 Madras 467, AIR 1940 Patna 504. 62.Elaborating upon the expression 'fictitious', in AIR 1953 Hyderabad 280, it was held :: "An entry intentionally made use of by the parties for the purpose of obtaining registration in the Sub-District where no part of the property described in the deed exists, is a fraud on the Registration Law and no registration obtained by means thereof is valid. The word 'fictitious' covers cases of a deed which does not relate to a specified property for any effective purpose of enjoyment or use. The intention of the parties is the criterion by which the matter must be decided. The word 'fictitious' covers cases of a deed which does not relate to a specified property for any effective purpose of enjoyment or use. The intention of the parties is the criterion by which the matter must be decided. Where, therefore, in a suit for possession of land and a house, the Plaintiff relied on a sale deed registered at S but the Defendant not only denied the execution of the sale deed but also stated that he did not own any house with the jurisdiction of the sub-registrar at S. Held that Plaintiff did not establish that Defendant owned house within the jurisdiction of sub-registrar at S- the registration of the sale deed was therefore invalid and the Plaintiff did not acquire any title. AIR 1935 Mad 26 and AIR 1941 All 179, distinguished. Case law considered." 63.Though it is well settled that when a fictitious property which is not in existence has been included in the document for the purpose of obtaining registration, in district where no part of the property conveyed exist, it amounts to fraud on the registration. In their Written Statement, D-5 and D-6 have raised the plea that the Gift Deed was executed in Parasalai, Kerala State including a property thereon and that the execution of the Gift Deed is a fraud on registration and hence, the document is void in law and not binding on the Defendants. Though such a plea was raised in the Written Statement, no issue was framed in the trial Court on the alleged fraud on registration, nor evidence was adduced on that aspect. For the first time, the contention was raised only in the First Appellate Court. 64.In the Appellate Court, decision of the Division Bench reported in 1988 1 MLJ 447 [Mohammed Kasim Vs. Rajaram], was referred to, which has also been referred in the second appeal. Placing reliance upon the decision of the Division Bench, the learned Senior Counsel for the Appellants submitted that the document not being registered in accordance with the provisions of the Act has no effect on the immovable property and is invalid and inadmissible in evidence. It is further contended that the Lower Appellate Court erred in not following the decision of the Division Bench and erred in following the decision of Single Judge, reported in 1989 TLNJ 242 [S.Joseph Nadar and another Vs.T.Dasammal Nadathi]. It is further contended that the Lower Appellate Court erred in not following the decision of the Division Bench and erred in following the decision of Single Judge, reported in 1989 TLNJ 242 [S.Joseph Nadar and another Vs.T.Dasammal Nadathi]. In the Judgment of the Division Bench, on the facts and circumstances of the case, on the definite averments in the pleadings and the evidence adduced by the parties, the Division Bench found that the three Sale Deeds have been executed with intention to defeat the lawful claim of the creditors of the first Defendant and that they are not transfers in good faith and for consideration. Under such facts and circumstances of the case, the Division Bench found that the document should be registered only before the Sub Registrar and that a Document not registered in accordance with the provisions of the Act has no effect of immovable property comprised therein. 65.In 1989 TLNJ 242, the learned Single Judge had considered the decision of the Division Bench reported in 1988 (1) MLJ 447 . In the circumstance of that case, the learned Single Judge has found that there was no collusion between the parties to the documents and the learned Judge has relied upon an unreported Division Bench decision in A.S.No.212/1979. Referring to that Judgment, the learned Single Judge pointed out that in the decision before the Division Bench, A.S.No.212/1979, the subject matter was not a bogus property and that the vendor has got title to the same and the Bench held that there was no collusion between the parties to the document. In reference to A.S.No.212/1979, the learned Single Judge has found :: "The decision in 1988 I MLJ 447 relied on by the learned counsel for the appellants as in that case on the admitted facts a Bench of this Court held that there was fraud on registration. But, in that case, the effect of absence of collusion between the parties has not been considered. On the other hand, the Bench affirmed the view in the decision, Appeal No.406/1977 wherein such a question has been elaborately considered and it was observed that there must be collusion between the parties and it should be established by cogent, clear and strong evidence to hold that a particular document is void and a fraud on the law of registration. Hence, the substantial question is answered against the appellants and in favour of the Respondents." 66.It is to be noted that though D-5 and D-6 have raised the plea of fraud of registration in their Written Statement, earlier in O.S.No.647/1983, the Defendants 5 and 6 have not raised any objection regarding the registration of the document at Parasalai. During the trial, no evidence was adduced showing that Item No.2 is a non-existent property. In CMP Nos.13287 and 13288/2004, a Certificate, said to have been issued by Tahsildar, Neyyatinkara has been sought to be produced as additional documents to show that the property is a non-existent property. These documents produced after several years of the trial cannot be accepted in evidence. This is all the more so when no evidence was adduced in support of that contention. In all the decisions cited, the Courts have held that the documents are compulsorily registrable only before the Sub Registrar, within whose jurisdiction the property is situate. That well settled position was confirmed and laid down in a catena of decisions, only when the pleadings have been raised and the contravention of provisions of the Registration Laws was proved. 67.Circumstance under which the parties registered the document at Parasalai is a matter of evidence. It is the contention that Item No.2 is a non existent one. It is to be pointed out that at the time of purchase of nine cents, of S.No.2549A by Ex.A-24, Sale Deed, (Ex.A-1 in O.S.No.87/ 1990), one item of property in Parasalai has been included in that sale deed. Item No.2 included in Ex.A-1 - Gift Deed might be that item covered under Ex.A-24. Had that contention had been raised in trial Court, the parties might have adduced proper evidence either correlating the same or putting forth circumstances under which the document was registered at Parasalai. 68.In this case, though such plea was raised in the Written Statement of D-5 and D-6, no evidence was adduced. Hence on the contention of fraud and registration, Ex.A-1 Gift Deed cannot be invalidated. In the absence of issues and evidence, it is not possible to accept the contention that there was fraud on registration. In the absence of collusion between the parties, the Lower Appellate Court has rightly followed 1989 TLNJ 242 and there is no reason to take a different view. In the absence of issues and evidence, it is not possible to accept the contention that there was fraud on registration. In the absence of collusion between the parties, the Lower Appellate Court has rightly followed 1989 TLNJ 242 and there is no reason to take a different view. 69.Stamp duty payable is lesser in Kerala State than the Stamp duty payable in the State of Tamil Nadu. Hence to have less expense, that part of the State/Southern Districts of State of Tamil Nadu have been in the practice of registering the documents at Kerala. It is not open to the Defendants to raise contention on the plea of registration to attack Ex.A-1. It is to be noted that Ex.A-24 in O.S.No.10/1986 (Ex.A-1 in O.S.No.87/1990), is a sale Deed in favour of D-5 Gnanamony by Nada Kannu. Ex.A-24 (26.11.1975), itself was registered only at Parasalai by including an item of property in Parasalai. While so, it is not open to the Defendants to attack Ex.A-1, for inclusion of the property at Parasalai, alleging that it is a fraud on registration. This contention advanced by the Defendants in the Lower Appellate Court is clearly an after thought. 70.Taking note of the Registration of the Documents in the nearby State of Kerala, State of Tamil Nadu has amended Section 28 of the Registration Act, by Tamil Nadu Act 19/1997 with effect from 29.03.1997. Under the amended clause (b) of Section 28, any document registered outside the State of Tamil Nadu in contravention of the provisions of Clause(a) shall be deemed to be null and void. The amended provisions came into force with effect from 29.03.1997 only. Ex.A-1 - Gift Deed was registered on 30.10.1980. Hence the validity of Ex.A-1 Gift Deed cannot be alleged that it is a fraud on registration. This contention raised attacking Ex.A-1 - Gift Deed or its registration at Parasalai does not merit acceptance and the substantial question of law formulated is answered against the Appellants. Ex.A-1 Gift - Deed executed by Gnanamony has no binding effect on the share of other coparceners. The Courts below have committed a serious and substantial error in not properly determining the character and nature of the Suit Property. The Lower Appellate Court committed a serious error in dismissing I.A.No.434/1992 and I.A.No.435/1992 and finding that the Suit Property is a self-acquisition of Gnanamony and Muthaiyan. The Courts below have committed a serious and substantial error in not properly determining the character and nature of the Suit Property. The Lower Appellate Court committed a serious error in dismissing I.A.No.434/1992 and I.A.No.435/1992 and finding that the Suit Property is a self-acquisition of Gnanamony and Muthaiyan. The reasoning and findings are not in proper appreciation and the Judgment and Decree of the Courts below are to be set aside and modified. 71.In the light of the foregoing discussions, shares of the Plaintiffs is calculated as 14/30 share and that of the Plaintiffs in O.S.No.87/1990 as 16/30 share, which is calculated as under :- I Share of Dharmaraj ... 1/2 + share of Muthaiyan under Ex.A-1 1/10 share of Gnanamony 1/10 his share in Joint Family Property ------ Total = 7/10 share ------- II Out of share of Dharmaraj } Wife + Daughter entitled } ... 7/10 x 1/3 = 7/30 each ... 7/30 + 7/30 = 14/30 III Mother Rathina Bai entitled to ... 7/30 share of Dharmaraj + 1/10 share of son Das (3/30) ------ Total = 10/30 ------ IV 1st Plaintiff and Das + } 1/10 = 3/30 Plaintiffs 2 to 5 are entitled to } ... (as legal heirs of Chelladurai) } 1/10 = 3/30 Thus Plaintiffs in O.S.No.87/90 } are cumulatively entitled to } ... 3/30 + 3/30 ------ Total = 6/30 ------ 72. S.A.No.1306/1993:- Modifying the Judgment and Decree of the District Court Kanyakumari in A.S.No.67/1991 dated 06.04.1993 (confirming the judgment in O.S.No.10/1986) on the file of the Sub Court, Kuzhithurai this second appeal is partly allowed. It is ordered that the Plaintiffs in O.S.No.10/1986 Mary Glory Bai and her daughter Francis Dharmarani are entitled to 14/30 share in the Suit Property and their title to the Suit Property is declared to that extent. It is further held that the Plaintiffs are also entitled to file Final Decree Application for their share of the Suit Property (on payment of proper Court fee in O.S.No.87/1990). D-4/Mariadoss is the purchaser from Dharmaraj. Equities are to be worked out in the final Decree proceedings. The Plaintiffs are also entitled to the mesne profits to the extent of their share of the Suit Property from the date of the plaint in O.S.No.87/1990. The Plaintiffs are not entitled to other reliefs sought for in O.S.No.10/1986. 73. D-4/Mariadoss is the purchaser from Dharmaraj. Equities are to be worked out in the final Decree proceedings. The Plaintiffs are also entitled to the mesne profits to the extent of their share of the Suit Property from the date of the plaint in O.S.No.87/1990. The Plaintiffs are not entitled to other reliefs sought for in O.S.No.10/1986. 73. S.A.No.1307/1993 :- It is held that the Plaintiffs therein are entitled to 16/30 share and the Judgment and Decree of the Appellate Court/District Court Nagercoil in A.S.No.85/1991, dated 6.4.1993 confirming the Judgment and Decree in O.S.No.87/1990 on the file of Sub Court, Kuzhithurai) is modified and this second appeal is partly allowed. In view of the Judgment in O.S.No.10/1986, D-3 and D-4 are held entitled to 14/30 share in the Suit Property 'B' and 'C' of the Schedule Property. Preliminary Decree for partition of Plaintiffs' 16/30 share (10/30 + 6/30) in the suit 'B' and 'C' Schedule Property and the Defendants' 3 and 4 (Mary Glory Bai and Francis Dharmarani) share 14/30 is passed. Equities are to be worked out in the final Decree proceedings. Mesne profits payable to D-3 and D-4 is relegated to the final Decree stage by filing the application under Or.20 R.12 CPC. 74. In the circumstance of the case and the relationship of the parties, in both the second appeals there is no order as to costs.