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2008 DIGILAW 934 (MAD)

S. Raghunatha Gounder v. Pattappa Gounder

2008-03-14

V.DHANAPALAN

body2008
JUDGMENT :- 1. The plaintiff in the suit is the appellant herein. Aggrieved by the judgment and decree, dated 25.01.1996 passed in A.s. No.92 of 1994 on the file of the subordinate Judge, Thiruvannamalai, partially modifying the judgment and decree dated 110. 1993 passed in O.s. No.1431/1981 by the District Munsif, Thiruvannamalai, the plaintiff has preferred this Appeal. 2. The case of the plaintiff, Raghunatha Gounder as put forth before the Trial Court is as follows : (i) The land situated in Varagur Village in s.No.195/2, measuring 3.76 acres belongs to one subbaraya Naicker. He had three sons, namely, Appayee Naicker, Mottaiyan @ Chinnasami Naicker and Ayyakannu. After the death of subbaraya Naicker, the above said land measuring 3.76 acres was equally divided into three shares among the three sons and they were in possession and enjoyment of their respective share of 1.25 1/3 acres of land, each. Chinnasami Naicker and his brother Ayyakannu died leaving their sons as legal heirs, who were in possession and enjoyment of their respective portion of land. (ii) The plaintiff, Raghunatha Gounder purchased an extent of 1.25 1/3 acres of land for Rs.3,200/- from the sons of the deceased Mottaiyan @ Chinnasami Naicker on 28. 1975 and an extent of 1.25 1/3 acres of land for Rs.3,200/- from the sons of the deceased-Ayyakannu on 11. 1976, by way of registered sale Deeds. The case of the plaintiff is that he was in possession and enjoyment of 2.50 2/3 acres of land, as per the registered sale Deeds. (iii) Ayyakannu was cultivating his lands in s. No.195/2 along with the lands in s.No.194/3, belonging to one Arumugham and Ramasami and shared the profit among themselves. Only for the sake of convenience, Ayyakannu was cultivating his land with that of Arumugham and Ramasami, but the lands were in possession of the respective owners. While that be so, when Arumugham and Ramasami sold their lands to one sevi Gounder, they executed a sale Deed on 18. 1972, including an extent of 1.25 1/3 acres of land belonging to Ayyakannu in s. No.195/2. Neither Ayyakannu and his sons nor the plaintiff were parties to the sale Deed. According to the plaintiff, he is in absolute possession of the lands to an extent of 2.50 2/3 acres purchased in s.No.195/2. 1972, including an extent of 1.25 1/3 acres of land belonging to Ayyakannu in s. No.195/2. Neither Ayyakannu and his sons nor the plaintiff were parties to the sale Deed. According to the plaintiff, he is in absolute possession of the lands to an extent of 2.50 2/3 acres purchased in s.No.195/2. (iv) In order to disturb the plaintiffs peaceful possession of the land, Sevi Gounder sold the land measuring an extent of 1.25 1/3 acres in s.No.195/2, which do not belong to him to one Pattappa Gounder, the respondent herein. Pattappa Gounder, without giving notice to the plaintiff, transferred patta to his name, in respect of the lands in s. No.195/2. Hence, the plaintiff filed a Petition before the Tahsildar, Thiruvannamalai and the Tahsildar cancelled the patta by order dated 211. 1978. Pattappa Gounder went on Appeal before the Revenue Divisional Officer and the Revenue Divisional Officer, by order dated 20.6.1981, cancelled the order of the Tahsildar, Thiruvannamalai dated 211. 1978. The plaintiff filed an Appeal before the District Revenue Officer, Vellore, pleading that though he is in possession of the lands in s. No.195/2, Pattappa Gounder by means of patta, claimed adverse possession of the same. On 18. 1981, when Pattappa Gounder and his men attempted to trespass into the schedule mentioned property, the plaintiff obstructed their entry with great difficulty; thereafter, the plaintiff filed a suit in O.s. No.1431 of 1981 for declaration of the possession of the schedule mentioned property. 3. The case of the defendant as stated in the written statement is as follows : (i) According to the defendant, the plaintiff is not the owner of the land in s. No.195/2. The case of the plaintiff that after the death of subbaraya Naicker, his three sons divided the land in s. No.195/2 into three equal shares, orally and were in enjoyment and possession of the same is false and baseless. The defendant has stated that an extent of 3.76 acres of land in s. No.195/2 and 1.66 acres of land in s.No.194/3 and the remaining portion of the family properties was equally divided among the three sons of subbaraya Naicker on 26. 1924 by means of a Koor Chit, marked as ex.B30. (ii) The defendant further stated that the deceased Ayyakannu was not given any share of the land in s. No.195/2. 1924 by means of a Koor Chit, marked as ex.B30. (ii) The defendant further stated that the deceased Ayyakannu was not given any share of the land in s. No.195/2. Mottaiyan @ Chinnasami Naicker sold an extent of 1.25 1/3 acres of land to the south of s. No.195/2 to his sisters husband Kutla Naicker in 1925 for a sum of Rs.50/- orally. since they were close relatives, Kutla Naicker did not execute any sale Deed for the sale of the said land and from the date of sale, Kutla Naicker was in possession and enjoyment of the property. (iii) Ayyakannu sold all his properties to Kutla Naicker by way of a registered sale deed dated 26. 1932, marked as ex.B2. Thereafter, Ayyakannu left Varagur Village and got settled in Tiruvannamalai and even his sons did not reside in Varagur Village and they did not possess any property. According to the defendant, the sons of Ayyakannu did not possess any property in s. No.195/2 or in any other survey Number and they did not pay any tax. (iv) The defendant denied the averments of the plaintiff that he purchased an extent of 1.25 1/3 acres each from the sons of Mottaiyan @ Chinnasami Naicker and Ayyakannu for Rs.3,200/- each by way of registered sale Deeds dated 25.08.1976 and 011. 1976, respectively, as false. According to the defendant, Chinnasami Naicker sold an extent of 1.25 1/3 acres of land in s. No.195/2 out of 1.66 acres to his sisters husband, by name, Kutla Naicker and the remaining 40 2/3 cents of land alone were in possession of Chinnasami Naicker. After the death of Chinnasami Naicker, his sons were in possession of the same. The defendant contended that the plaintiff has no right over the said land, even by the sale deed dated 11. 1976. Therefore, the defendant claimed possession of the land measuring 1.25 1/3 acres in s. No.195/2 and prayed for dismissal of the suit. 4. During the trial, the Trial Court raised substantial questions of law. The defendant contended that the plaintiff has no right over the said land, even by the sale deed dated 11. 1976. Therefore, the defendant claimed possession of the land measuring 1.25 1/3 acres in s. No.195/2 and prayed for dismissal of the suit. 4. During the trial, the Trial Court raised substantial questions of law. The contention of the counsel for the respondent, at the time of trial is extracted hereunder: "Even though an unregistered koor Chit is not admissible in evidence to prove the partition, the said koor Chit ex.B30 (which has been duly validated) can be relied upon for the collateral purpose of proving the nature of possession of the properties by respective parties subsequent to 26. 1924 as per the provisions of section 49 of the Indian Registration Act." The Trial Court found that the three sons of subbaraya Naicker divided the land among themselves as per ex.B30-Koor Chit on 26. 1924. The Trial Court also held that ex.B5-sale Deed, dated 18. 1972, executed by Arumugham in favour of sevi Gounder and ex.B6-sale Deed, dated 6. 1975, executed by sevi Gounder in favour of Pattappa Gounder for Rs.2,400/- as true valid and binding on the respondent. On consideration of the facts and circumstances of the case and on evaluation of the evidence on record, the Trial Court held that the plaintiff failed to prove that he and his predecessors were in possession of the schedule mentioned property on the date of filing the suit. In fine, the Trial Court held that the plaintiff is not entitled to adverse possession of the schedule mentioned property and dismissed the suit in favour of the respondent. 5. Aggrieved by the order of the Trial Court, the plaintiff preferred an Appeal in A.s. No.92 of 1994. The Lower Appellate Court, on evaluation of the evidence on record, found that only an extent of 40 2/3 cents of land was in possession of Mottaiyan @ Chinnasami Naicker, which was sold to the plaintiff and the same is binding on the plaintiff. The Lower Appellate Court held that the plaintiff is in possession of 402/3 cents of land in s.No.195/2 and granted permanent injunction as sought by him. Not satisfied with the judgment of the Lower Appellate Court, the plaintiff, Raghunatha Gounder has preferred this Second Appeal, praying to allow the First Appeal in full. 6. This Court, on 7. The Lower Appellate Court held that the plaintiff is in possession of 402/3 cents of land in s.No.195/2 and granted permanent injunction as sought by him. Not satisfied with the judgment of the Lower Appellate Court, the plaintiff, Raghunatha Gounder has preferred this Second Appeal, praying to allow the First Appeal in full. 6. This Court, on 7. 1996, admitted the second Appeal on the following substantial questions of law:, (i) Whether the Lower Appellate Court is right in law in looking into the recitals of exhibit B-30 as a partition deed even though it is unregistered ? (ii) Whether the Lower Appellate Court is right in law in holding that there was a partition between the sons of subbaraya Naicker as per Exhibit B-30, when ex.B-30 is sought to be relied upon as a partition deed to prove a partition particularly, when it is unregistered ?" 7. Mr. N.C. Ashok Kumar, learned Counsel appearing for the appellant has contended that the learned Judge erred in relying upon an unregistered Koor Chit, ex.B30, which is not at all admissible in evidence. He further contended that the learned Judge failed to see that in the absence of ex.B30, which has not been proved and which is inadmissible in evidence, the three sons of the deceased-subbaraya Naicker are each entitled to 1/3rd share in the suit property. It is also contended by the learned Counsel that the learned Judge misconstrued the recitals in ex.B30 and erred in relying upon the recitals of ex.B30, which is inadmissible in evidence. 8. In support of his contentions, learned Counsel for the appellant relied on the following judgments: (i) In a decision reported in the case of The Divisional Manager, New India Assurance Co. Ltd. v. Murugan, 1997 (1) CTC 654 , this Court in paragraph 10 has held as follows: "10. The Trial Court has held that the burden is on the plaintiff to prove that the Consignment was entrusted to the defendant, that the defendant is a common carrier and the damage was caused due to the negligence of the defendant, etc., and the Trial Court has put the entire burden of proof only on the plaintiff. The Trial Court has held that the burden is on the plaintiff to prove that the Consignment was entrusted to the defendant, that the defendant is a common carrier and the damage was caused due to the negligence of the defendant, etc., and the Trial Court has put the entire burden of proof only on the plaintiff. We have already seen that the evidence of the defendant itself shows that the consignment was entrusted to him for safe carriage and the defendant is a common carrier and the damage was caused due to the negligence of the defendant. Further, in the same decision, which I have referred above, it is held that the question of burden proof is not of much practical importance when mass of evidence is before the Court and that a common carriers liability is that of an Insurer and that such liability can be limited only by a special contract. In the present case, in view of the evidence placed by both sides, the suit cannot be dismissed holding that the burden of proof was on the plaintiff and the plaintiff has not established the same. The evidence has actually established the case of the plaintiff. There is no evidence that there is a special contract between the consignor and the defendant, in which, the liability of the common carrier is limited. The plaintiff is only exercising their right in pursuance of the special power given to them by the consignor and the letter of subrogation, given by the consignor in view of the fact that the claim of the consignor has been satisfied by the plaintiff. Therefore, the observation of the Trial Court that the plaintiff on whom the burden of proof rests, has not discharged the same is not a tenable one. In this connection, it will not be out of context to observe that the question whether the defendant was negligent or not will not arise and the defendant will always be held liable for the loss or damage as a common carrier, the liability is that on an Insurer. section 9 of the Carriers Act is to that effect. In this connection, it will not be out of context to observe that the question whether the defendant was negligent or not will not arise and the defendant will always be held liable for the loss or damage as a common carrier, the liability is that on an Insurer. section 9 of the Carriers Act is to that effect. Therefore, it is not open for the defendant to contend that there was no negligence on the part of the defendant." (ii) In a decision reported in the case of A.C. Lakshmipathy v. A.M. Chakrapani Reddiar & 5 others, 2001 (1) LW 257 , this Court in paragraph 41 has held as follows : "41. We hold that the document in question being an unstamped and unregistered, cannot be looked into for any purpose. Similarly, oral evidence cannot be let it about the contents of the said document." (iii) In a decision reported in the case of Rengasami Reddiar (died) and others v. M.K. Mummachi Reddiar (died) and others, 2002 (1) MLJ 760 , this Court in paragraph 8(a) has held as follows : "8(a). Admissibility of Ex.A4 : ex.A4 was relied on by the plaintiff to show the existence of joint family properties and the fact of partition. It was further urged that even if it could not be accepted as evidence of the fact of partition in view of non-registration, atleast, it could be relied on for the collateral purpose of showing that the parties treated the properties as their joint family properties liable for division. This document is neither stamped nor registered. To what extent it can be relied on will depend upon the nature of the document. The document reads thus : There is no averment regarding the existence of joint family properties nor is there anything to show that there was a dispute which was resolved by the Panchayat. But, what is evident is, it is this document which is the source of title. In A.C. Lakshmipathy and another v. A.M. Chakrapani Reddiar, 2000 (2) TLNJ 315, a Division Bench of this Court has held that such a document cannot be looked into for any purpose because it is neither stamped nor registered. But, what is evident is, it is this document which is the source of title. In A.C. Lakshmipathy and another v. A.M. Chakrapani Reddiar, 2000 (2) TLNJ 315, a Division Bench of this Court has held that such a document cannot be looked into for any purpose because it is neither stamped nor registered. It was held therein that where the parties reduce a family arrangement in writing with the purpose of using that writing as proof of what they had arranged and where the arrangement is brought about by the document as such, that document would require registration. But, a document which is in the nature of a memorandum evidencing a family arrangement already entered into and prepared as a record, it need not be stamped or registered. But a reading of this document would show that under this document, the properties were divided. So, this document was intended to create the separate rights in the immovable property and therefore, it is not admissible in evidence and Courts cannot also let in any oral evidence with regard to such a document. ex.A4 is not admissible in evidence, and cannot be relied on." (iv) In a decision reported in the case of Tuticorin Diocesan Trust Association, thro. its Procurator at Tuticorin and others, 2003 (1) CTC 478, this Court in paragraphs 13 and 15 has held as follows: "13. In our case, the plaintiff through ex.A1 to A4 has established that the suit property originally belonged to Alwar and the same was purchased by the plaintiff under ex.A5. As the suit property is a "Grama Natham" and it is lying vacant, neither the plaintiff nor the defendants were able to file any other record to show, whether they are enjoying the property and also paid some tax to the Government, but, that will not take away the right of the plaintiff in the suit property. 15. ... It is, no doubt, true that both the plaintiff and the defendants have not filed any document to show their respective possession to the suit property. 15. ... It is, no doubt, true that both the plaintiff and the defendants have not filed any document to show their respective possession to the suit property. But, however, ex.A1, as we have already seen, is in anterior point of time than ex.B1 and therefore, it could easily be presumed without any difficulty that the beneficiaries under ex.A1, were in possession and enjoyment of the property and said possession was transferred subsequently to who have purchased the property, and therefore, the Lower Appellate Court is correct in coming to the conclusion that the plaintiff and his predecessors in title have been enjoying the property for well over a period of 12 years and therefore, the suit is not barred by time. As against the same, there is absolutely no material in favour of the appellants/defendants to hold that they are in possession of the suit property and therefore, their claim is rejected." (v) In a decision reported in the case of Balakrishnan and another v. Chandrasekharan, 2003 (3) MLJ 45 , this Court in paragraph 7 has held as follows : "7. It is settled law that if the family arrangement is reduced to writing and it purports to create, declare, assign, limit or extinguish any right, title or interest of any immovable property, it must be properly stamped and duly registered as per the Indian stamp Act and Indian Registration Act. If the family arrangement is stamped, but not registered, it can be looked into for collateral purposes. A person cannot claim a right or title to a property under the said document, which is being looked into only for collateral purpose. A family arrangement which is not stamped and not registered, cannot be looked into for any purpose, in view of the specific bar in section 35 of the Indian stamp Act. A document must be read as a whole. As to the nature of transaction under the document, it cannot be decided by merely seeing the nomenclature. Mere usage of past tense in the document should not be taken indicative of a prior arrangement. A document must be read as a whole. As to the nature of transaction under the document, it cannot be decided by merely seeing the nomenclature. Mere usage of past tense in the document should not be taken indicative of a prior arrangement. The expression "collateral purposes" is no doubt a very vague one and the Court 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 proceeding to bring about indirectly the effect which it would have had, if it is registered. When the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and where the arrangement is brought about by the document as such, that the document would require registration as it is, then that it would be a document of title declaring for future rights in what properties the parties posses." (vi) In a decision reported in the case of R. Deivanai Ammal (died) and other v. G. Meenakshi Ammal and others, 2004 (4) CTC 208 : 2005 (1) LW 343 , this Court in paragraphs 23 and 24 has held as follows: "23. ... It is argued that panchayat was held 4 or 5 days after the death of Ganapathy Moopanar, and on the basis and on certain terms arrived at therein, an Athatchi under ex.B28 was executed only on 30.11.1976, in such a circumstances, according to the counsel, it is only a memorandum prepared after the family arrangement had already been made and the said Athatchi is only for the purpose of record; hence it need not be stamped nor registered. It is true that the above referred supreme Court decision makes it clear that registration would be necessary only if the terms of family arrangement are reduced into writing. A distinction was made in that decision. An arrangement was made and thereafter a memorandum was prepared either for the purpose of record or for making necessary mutation. Then it does not require registration. A distinction was made in that decision. An arrangement was made and thereafter a memorandum was prepared either for the purpose of record or for making necessary mutation. Then it does not require registration. However, in our case it is clear from ex.B28 and the evidence let in that in lieu of their share in the properties of Ganapathy Moopanar on receipt of cash of Rs.8,000/-and jewels worth 20 soverigns the document says that the plaintiff and the first defendant relinquished their right. In other words, only on execution, namely, on the date of execution the plaintiff and first defendant received the cash and jewels and relinquished their right in the property of Ganapathy Moopanar. Though Mr. Arunagirinathan argued that panchayat and settlement was made prior to the execution of ex.B28, the perusal of the recital in that document amply show that both parties, i.e. the plaintiff and the first defendant, daughters of Ganapathy Moopanar, on receipt of cash and jewels, agreed to relinquish their entire right in his properties. ..." ... The document in our case, namely, Athatchi, ex.B28 comes within the legal position No.3 pointed out above. As said earlier, ex.B28 is not only a document of family arrangement reduced to writing, but it purports to create, declare/extinguish right, title or interest of the properties of Ganapathy Moopanar. In such a circumstance, we hold that it must be properly stamped and duly registered as per the Indian stamp Act and Indian Registration Act respectively. There is no dispute that if a document is in the nature of a memorandum evidencing a family arrangement already entered into and document prepared as a record of what had been agreed upon, it need not be stamped or registered. Considering the recital in the document and categorical statement made therein, we are satisfied that ex.B28 cannot be treated as a mere document in the nature of memorandum, but it is a family arrangement in which plaintiff and first defendant extinguished their right, title or interest of the immovable properties of Ganapathy Moopanar by accepting cash and jewels as agreed to in para 2 of the document; accordingly we hold that the said document ex.B-28 which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar in section 35 of the Indian stamp Act. The learned subordinate judge failed to advert these material aspects and committed an error in relying on the said document; accordingly the said conclusion cannot be sustained. 24. Though it is contended that since the family members are in occupation of the dwelling house left by Ganapathy Moopanar, the plaintiff being the female member has no right to ask for partition till the male members decide to partition of their properties, the evidence let in and the materials placed clearly show that Ganapathy Moopanar had left several houses besides various other properties, we are of the view that section 23 of the Hindu succession Act, 1956 is not an absolute bar to the claim of the plaintiff, hence we reject the said contention.” 9. Learned Counsel for the respondent contended that the plaintiff claims adverse possession of the land in s. No.195/2 and that the respondent is the absolute owner of the property in s. No.195/2, by means of a sale deed dated 6. 1975 executed in his favour by sevi Gounder. He further contended that the plaintiff and the predecessors of the property in s. No.195/2 did not prove that they were in possession of the same on the date of filing the suit and hence prayed for dismissal of the second Appeal. 10. In support of his contentions, learned Counsel for the respondent relied on the following judgments: (i) In a decision reported in the case of P. Thangavelu v. R. Dhanalakshmi Ammal and other, 1982 (95) LW 708 , this Court in paragraph 32 has held as follows : "32. ... The plaintiff can succeed in the suit for declaration under the plaint as amended only on the basis of a valid title to the property. If he did not have any title to the property, then he cannot pick holes in the title of the defendants and try to succeed. That the plaintiff can succeed only on the basis of the proof of his own allegation in the Plaint as regards his title and he cannot succeed by picking holes in the title of the defendants is too well established to need citation of any authority. The plaintiff having failed to make out a case of valid title to the suit property cannot succeed in getting a declaration as prayed for in the Plaint. The plaintiff having failed to make out a case of valid title to the suit property cannot succeed in getting a declaration as prayed for in the Plaint. The suit was rightly dismissed by the Trial Court, and the confirmation of the decree by this Court cannot be open to any interference." (ii) In a decision reported in the case of Pravin Kumar v. P. Rajeswaran and others, 1987 (100) LW 895, this Court in paragraph 26 has held as follows : "26. There can be no doubt that the present suit by the plaintiff for recovery of possession of specific items of property is based upon the allotment made by Prakasam Pillai under ex.A2. But for ex.A2, the plaintiff cannot make a claim for the specific items. He will, therefore, be covered by the language of section 213 of the Indian succession Act, which refers to right claimed under the Will. The right claimed by the plaintiff in the present suit is clearly under the Will ex.A2 executed by Prakasam Pillai. As Prakasam Pillai was admittedly a Christian ex.A2 requires probate. The plaintiff is, therefore, precluded from establishing any right under the will before probate is granted." (iii) In yet another decision reported in the case of V. Manakkan and five others v. Veera Perumal, 1998 (2) CTC 157 , this Court in paragraph 18 has held as follows: "The Lower Appellate Court has made yet another serious mistake and that is it has produced to hold that the plaintiff had proved his title by produced ex.A1, Title Deed and that the transferor did not come to Court and dispute the title and more than that, even according to the defendants, Lakhsmanan was in possession for atleast 10 years with the permission of defendants 1 to 3 and this they had not established, and therefore, the plaintiffs case should be accepted. To say the least, this has faulty reasoning and the conclusion based on this cannot be allowed to stand. It is settled law that a plaintiff should stand or fail on the strength of his own case and not rely on the alleged weakness of the defendants case." 11. Heard the respective parties at length and perused the entire records for consideration. 12. From the pleadings, it is seen that originally one subbaraya Naicker owned 3.76 acres of land in Varahur Village. Heard the respective parties at length and perused the entire records for consideration. 12. From the pleadings, it is seen that originally one subbaraya Naicker owned 3.76 acres of land in Varahur Village. He had three sons, namely, Appayee Naicker, Mottaiyan @ Chinnasamy Naicker and Ayyakannu. After the death of subbaraya Naicker, the suit land measuring 3.76 acres was equally divided into three shares, each measuring an extent of 1.25 1/3 acres among his three sons, by way of oral partition. It is also seen that Chinnasamy Naicker had four sons, namely, Munusamy, Ramakrishnan, Arumugham and subramanian, in short referred to as Munusamy vahaiara. Ayyakannu had four sons, namely, swaminathan, Gopal, Ramamoorthy and Kannan, in short referred to as sami Naicker vahaiyara. Both Chinnasamy Naicker as well as Ayyakannu died leaving their sons as legal heirs. Later, one Raghunatha Gounder purchased an extent of 1.25 1/3 acres of land, each for Rs.3,200/- from the legal heirs of Chinnasami Naicker and Ayyakannu by way of registered sale Deeds, exs.A1 and A2. According to Raghunatha Gounder, the appellant herein, he is in possession and enjoyment of 2.50 2/3 acres of the land in question. 13. On the other hand, the defendant, in his Written statement has denied the averments of the plaintiff-Raghunatha Gounder, stating that after the death of subbaraya Naicker, the lands were divided among his three sons by means of a Koor Chit, marked as ex.B30. Out of 3.76 acres of land in s.No.195/2, Appayee Naicker was given 2.10 acres of land and Chinnasamy Naicker was given 1.66 acres of land. Ayyakannu was given an extent of 1.66 acres of land in s.No.194/3. According to the defendant, the three sons of subbaraya Naicker were in their respective possession of the lands and after their death, their sons were in enjoyment and possession of the lands. Mottaiyan @ Chinnasami Naicker sold an extent of 1.25 1/3 acres of land in S. No.195/2 to his sisters husband Kutla Naicker orally and due to their close relationship, Chinnasami Naicker did not execute any sale Deed. From the date of sale, Kutla Naicker was in possession and enjoyment of the said lands. Ayyakannu sold all his lands to his sisters husband-Kutla Naicker by way of a registered sale Deed dated 26. 1932, marked as ex.B2. From the date of sale, Kutla Naicker was in possession and enjoyment of the said lands. Ayyakannu sold all his lands to his sisters husband-Kutla Naicker by way of a registered sale Deed dated 26. 1932, marked as ex.B2. According to the defendant, Chinnasami Naicker after the sale of 1.25 1/3 acres of land to Kutla Naicker out of his share of 1.66 acres of land in s. No.195/2 possessed only 40 2/3 cents, which land after his death was in possession and enjoyment of his sons. It is the case of the defendant that the plaintiff-Raghunatha Gounder is entitled to claim possession of only 40 2/3 cents of land in s. No.195/2. 14. It is further seen from the Written statement that after the death of Kutla Naicker, his sons, Munusamy and Arumugam along with Ramasamy sold 1.25 1/3 acres of land in s.No.195/2 and 1.66 acres of land in S.No.194/3 to one Sevi Gounder for Rs.1,500/-by way of a registered sale Deed dated 11.08.1972. Thereafter, sevi Gounder sold the said lands to one Patappa Gounder, the respondent herein for Rs.2,400/- by way of a registered sale Deed dated 6. 1975. According to the defendant/respondent, he is in possession and enjoyment of the said lands and the appellant Raghunatha Gounder is not entitled to claim possession over the same. 15. The fact that subbaraya Naicker owned an extent of 3.76 acres of land and that he had three sons by names, Appayee Naicker, Chinnasamy Naicker and Ayyakannu is admitted on both sides and are not disputable. It is also not in dispute that Chinnasamy Naicker had four sons and Ayyakannu had four sons. Both Chinnasamy Naicker and Ayyakannu died leaving behind their sons as their legal heirs. 16. On an analysis of the entire records, it is seen that the lands of subbaraya Naicker were divided into equal shares among his three sons by means of a Koor Chit, dated 26. 1924. The said Koor Chit marked as ex.B30 is an unstamped and an unregistered document. Whereas, exs.A1 and A2, sale Deeds dated 28. 1976 and 11. 1976 executed by Munusamy and others and sarni Naicker and others for Rs.3,200/-each, in favour of Raghunatha Gounder are registered documents. exs.B2 to B4, sale Deeds dated 26. 1932 executed by Ayyakannu in favour of his sisters husband Kutla Naicker and ex.B5, sale Deed dated 18. 1972 are also registered documents. 1976 and 11. 1976 executed by Munusamy and others and sarni Naicker and others for Rs.3,200/-each, in favour of Raghunatha Gounder are registered documents. exs.B2 to B4, sale Deeds dated 26. 1932 executed by Ayyakannu in favour of his sisters husband Kutla Naicker and ex.B5, sale Deed dated 18. 1972 are also registered documents. exs.A3 and A4, dated 2. 1979 and 3. 1980, respectively, are the receipts for the land tax paid by Raghunatha Gounder. exs.A5 and A6 are the proceedings of the Tahsildar, Tiruvannamalai, dated 211. 1978 and 20.6.1981, respectively, for the transfer of pattas. 17. P.Ws.2 and 3, in their cross-examination have deposed that the defendant has purchased one share alone. Looking into the oral and documentary evidence, the Trial Court held that exs.A1 and A2, dated 28. 1976 and 11. 1976, respectively, do not bind on the defendant and and therefore, on appreciation of the evidence as per the principles laid down and on the basis of ex.B30, Koor Chit, held that the plaintiff is not entitled to claim adverse possession and resultantly, dismissed the suit in entirety. However, the Lower Appellate Court interfered with the findings of the Trial Court, holding that the plaintiff is entitled to only 402/3 cents and in respect of other portion of the property, held that the plaintiff is not entitled to get any decree. The First Appellate Court also ruled out that ex.B30, Koor Chit though an unregistered document can be relied on for collateral purpose. Both the Courts below have relied on ex.B30-Koor Chit, an unregistered and an unstamped document for collateral purpose. 18. The question to be decided now is whether ex.B30, Koor Chit, an unstamped and unregistered document is admissible in evidence even for collateral purpose. It would be useful, at this stage, to refer to sections 49 and 17 of the Registration Act, which reads as under: "Section 49. 18. The question to be decided now is whether ex.B30, Koor Chit, an unstamped and unregistered document is admissible in evidence even for collateral purpose. It would be useful, at this stage, to refer to sections 49 and 17 of the Registration Act, which reads as under: "Section 49. Effect of non-registration of documents required to be registered.— No document required by section 17 (or by any provision of the Transfer of Property Act, 1882) to be registered shall (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the specific Relief Act, 1877 or as evidence of any collateral transaction not required to be effected by registered instrument. Section 17. Documents of which registration is compulsory. — (I) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely: (a) instruments of gift of immovable property; (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;" 19. Whether to rely on a document or not even for collateral purpose cannot be decided by merely seeing the nomenclature and mere usage of past tense in the document should not be taken indicative of a prior arrangement. The expression "collateral purposes" is no doubt a very vague one and the Court 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. The expression "collateral purposes" is no doubt a very vague one and the Court 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 proceeding to bring about indirectly the effect which it would have had, if it is registered. When the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and where the arrangement is brought about by the document as such, that the document would require registration as it is, then that it would be a document of title declaring for future rights in what properties the parties possess. 20. According to the learned counsel for the appellant, when both parties placed evidence pertaining to issue, burden of proof loses it importance. A careful reading of the decision reported in the case of R. Deivanai Amoral and another v. G. Meenakshi Ammal and others, 2005 (1) LW 343 , (P. sathasivam, J and s. sardar Zackaria Hussain, J.) would show that if the family arrangement is stamped but not registered, it can be looked into for collateral purposes. A family arrangement which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar in Section 35 of the Indian Stamp Act. 21. In the instant case, ex.B30-Koor Chit is an unstamped and unregistered document. A family arrangement which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar in Section 35 of the Indian Stamp Act. 21. In the instant case, ex.B30-Koor Chit is an unstamped and unregistered document. It is a settled proposition that if the family arrangement is stamped but not registered, it can be looked into for collateral purpose, but a family arrangement which is not stamped and not registered, cannot be looked into for collateral purpose in view of section 35 of the Indian stamp Act, which reads as under: "Instrument not duly stamped inadmissible in evidence, etc.— No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidenoe, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:" Therefore, both the Courts below have failed to look into the legal proposition of relying on an unstamped and unregistered document, which is contrary to the settled proposition of law. 22. On consideration of the facts of the case and a perusal of the oral and documentary evidence and in view of the settled legal proposition, it is vivid that an unstamped and unregistered document cannot be taken into account even for collateral purpose. Following the decision rendered by this Court in 2005 (1) LW 343 , the findings rendered by the Trial Court and the Lower Appellate Court in giving due consideration to the Koor Chit cannot be accepted. The judgment of the Lower Appellate Court holding that the appellant/plaintiff is entitled to only 40 2/3 cents of land is set aside. The substantial question raised before this Court as to whether the Lower Appellate Court is right in law in looking into the recitals of ex.B30 as a partition deed even though it is unregistered is answered in favour of the appellant that ex.B30-Koor Chit, an unstamped and unregistered document cannot be taken into account even for collateral purpose. In view of the same, the appellant is entitled to possess only 2.50 2/3 acres of land as claimed by him by way of registered sale Deeds, exs.A1 and A2. With the above direction, the second Appeal is allowed. No costs.