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2012 DIGILAW 3703 (MAD)

Kannusamy Naicker (died) v. Nataraja Naicker

2012-08-27

G.RAJASURIA

body2012
Judgment :- 1. This appeal is focussed by the plaintiff as against the judgement and decree dated dated 30.11.2004 passed by the Additional District Judge(Fast Track Court III), Vridhachalam, in O.S.No.6 of 2004, which is one for partition. 2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court. 3. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this appeal, in a few broad strokes can be encapsulated thus: (i) The first appellant herein, who died during the pendency of the appeal, as plaintiff, filed the suit O.S.No.6 of 2004 for partition of the 'A' and 'B' scheduled suit properties into three equal shares among himself, D1 and D2 and allot one such share in his favour. The appellants 2 to 6 are the LRs of the original plaintiff, the first appellant. (ii) Indubitably and indisputably, unarguably and unassailably the properties described in the schedules of the plaint originally belonged to Lakshmana Naicker-the father of the plaintiff, D1 and D2. The said Lakshmana Naicker died on 25.1987 leaving behind his three sons. (iii) The contention of the plaintiff in brief is that there was no partition among the three sons; however, the defendants 1 and 2 went to the extent of alienating various items of properties in favour of the remaining defendants, namely, D3 to D11, D13 to D21. (iv) In fact, the plaintiff himself sold one item, namely, item No.28 of the suit properties in 'A' schedule in favour of D12. (v) Defendants 1 and 2 filed the written statement separately and defendants 12, 14 and 17 filed a separate written statement resisting the suit. (vi) The other defendants remained ex parte in the suit. (vii) The gist and kernel of the defendants' theory is that there was actually partition during the life time of Lakshmana Naicker himself and in that, the plaintiff, D1 and D2 were allotted shares in the suit properties. Accordingly they would pray for the dismissal of the suit. (viii) Whereupon issues were framed by the trial Court. During trial, the plaintiff examined himself as P.W.1 and marked Exs.A1 to A7. On the defendants side, as many as ten witnesses were examined and Exs.B1 to B34 were marked. Accordingly they would pray for the dismissal of the suit. (viii) Whereupon issues were framed by the trial Court. During trial, the plaintiff examined himself as P.W.1 and marked Exs.A1 to A7. On the defendants side, as many as ten witnesses were examined and Exs.B1 to B34 were marked. (ix) Ultimately, the trial Court partly decreed the suit, allotting the plaintiff 1/3rd share in some of the items of the suit properties only. 4. Being aggrieved by and dissatisfied with the same, the plaintiff filed this suit on various grounds: 5. The learned counsel for the plaintiff by placing reliance on the grounds of appeal would develop her arguments which could pithily and precisely be set out thus: (i) The decree passed by the lower Court is as vague as vagueness could be and it is not based on any legal principle. (ii) The lower Court has not only erroneously held that there was partition, but it went to the extent of granting some relief to the plaintiff in some small area of the suit properties and that too, not exclusively, but only 1/3rd share in it. (iii) The lower Court mainly relied upon certain recitals relating to partition in Ex.B1-the sale Deed dated 25.10.1993, executed by the plaintiff and his sons in favour of D12, and simply held that the plaintiff could not deny the partition. Simply because there were recitals to that effect in Ex.B1 the lower Court was not justified in jumping to the conclusion that there was partition among the family members. (iv) The patta will not confer title, but the lower Court relied upon Exs.B3 to B6, B10 to B12-the pattas and held that in view of the fact that pattas stand in the name of D1 and D2 in respect of certain items, the plaintiff could not lay claim over the said items. (v) The burden was on the defendants to prove that there was partition as alleged by them, in the absence of a registered deed. The lower Court, without adhering to the principles governing 'the burden of proof' barely held as though there was partition and the entire judgement is based only on the said recitals in Ex.B1, which cannot be countenanced and upheld as the correct one. The lower Court, without adhering to the principles governing 'the burden of proof' barely held as though there was partition and the entire judgement is based only on the said recitals in Ex.B1, which cannot be countenanced and upheld as the correct one. (vii) The lower Court assumed and presumed as though the properties alienated by D1 and D2 were all the properties allotted to their shares and that those properties should be excluded from the purview of partition. (viii) The oral sale, as pleaded by the defendants in respect of certain item was upheld by the lower Court, unjustifiably. Accordingly, the learned counsel for the plaintiff would pray for setting aside the judgement and decree of the lower Court and for decreeing the suit in to allotting 1/3 share in the suit properties in favour of the plaintiff. 6. Per contra, in a bid to torpedo and extirpate the arguments as put forth and set forth on the side of the plaintiff, the learned counsel for defendants 2, 13, 15 and 16 would develop his arguments, which could tersely and briefly be set out thus: (i) The initial burden of proof is on the plaintiff to prove that he was entitled to seek for partition. But in this case, there is no shard or shred, molecular or jot of explanation available on the side of plaintiff in respect of his own commitments in black and white in Ex.B1-the sale deed dated 25.10.93 to the effect that there was partition among the family members. One cannot blow hot and cold, approbate and reprobate. The lower Court appropriately and appositely extracted the relevant recitals in Ex.B1 and held that even as per the version of the plaintiff there was partition and in such a case, the plaintiff was not justified in filing the suit for partition, suppressing the materials facts. (ii) The lower Court in fact taking into account the equities granted certain reliefs and in such a case absolutely there is no reason for interfering with the judgement and decree of the lower Court. 7. The points for consideration are as under: (1) Whether the lower Court was justified in holding that there was partition among the family members, nevertheless ordering partition in respect of a few items and that too, allotting 1/3rd share each in favour of the plaintiff, D1 and D2? 7. The points for consideration are as under: (1) Whether the lower Court was justified in holding that there was partition among the family members, nevertheless ordering partition in respect of a few items and that too, allotting 1/3rd share each in favour of the plaintiff, D1 and D2? (2) Whether the finding of the lower Court with regard to the oral sales as alleged by the defendants is tenable? (3) Whether the lower Court was justified in placing reliance on the pattas in favour of the defendants 1 and 2 and other defendants and in holding that they acquired title to those properties? (4) Whether the lower Court was justified in rejecting the request of the defendants to get marked the note books two in number purported to contain the facts relating to the partition and allotment of shares? (5) Whether the decree as such is sustainable in law? (6) Whether there is any perversity or illegality in the judgement and decree of the lower Court? 8. All these points are taken together for discussion as they are interwoven and interlinked, interconnected and entwined with one another. 9. At the out set I would like to point out that the lower Court no doubt placed reliance on the following recitals in Ex.B1. "11. Yet another vital document which was marked through P.W.1 in the cross examination is Ex.B1. Ex.B1 is the registration copy of the sale deed dated 25.10.93 executed by plaintiff and his sons in favour of 12th defendant for valuable consideration of Rs.29,700/-. In Ex.B1 the following wordings do find place “TAMIL” The aforesaid wordings incorporated in Ex.B1 would clearly go to show that the plaintiff himself has admitted that there was a partition by virtue of partition schedule and same was acted upon. In the four boundaries stated in Ex.B1 the following wordings do find place:- “TAMIL” such wordings would clearly go to show that there was already a partition in the family as claimed by defendants 1 and 2. Ex.B1 would clearly estop plaintiff from claiming that there was no partition in the irrespective of the year on which defendants place their reliance. The cumulative effect of............" and held that even as per the stand of the plaintiff there was partition and in such a case the plaintiff was not justified in seeking partition once again. 10. Ex.B1 would clearly estop plaintiff from claiming that there was no partition in the irrespective of the year on which defendants place their reliance. The cumulative effect of............" and held that even as per the stand of the plaintiff there was partition and in such a case the plaintiff was not justified in seeking partition once again. 10. At this juncture, I would like to point out that if really the lower Court was satisfied that as per the version of the plaintiff there was partition, then in that case, the Court should have mandated for enforcing such partition after probing as to whether there was any violation of it at the instance of the parties concerned. 11. The plaintiff also had not chosen to spell out the recitals in Ex.B1, in the plaint and explain the reasons for having set out such recitals in Ex.B1. As per the defendants, the plaintiff's attempt in suppressing such factum of partition is like hiding elephants in mouse holes. 12. The learned counsel for the plaintiff would try to explain and expound that inasmuch as the defendants 1 and 2 were going on selling the joint properties at their whims and fancies, the plaintiff also at one point of time, so to say in the year 1993 unwittingly did choose to make such recitals and sell away only one item, namely, item No.28 in favour of D12 and that it does not mean that he admitted the partition in respect of the suit properties in toto. Scarcely could it be stated that the plaintiff was not in a catch 22 situation. He ought to have legally attempted to resolve his problem. 13. It has to be pointed out that such explanations should have been found spelt out in the plaint itself or at least at the time of trial, but it appears he did choose to turn his face away from the problem which he himself invited. 14. Be that as it may, the lower Court having chosen to probe in entirety into the pros and cons of the matter should have necessarily given opportunity to mark the said one quire note book two in number purportedly containing the signatures of the parties concerned, subject to law relating to stamp duty and registration. 15. 14. Be that as it may, the lower Court having chosen to probe in entirety into the pros and cons of the matter should have necessarily given opportunity to mark the said one quire note book two in number purportedly containing the signatures of the parties concerned, subject to law relating to stamp duty and registration. 15. If at all the Court finds that stamp duty should be collected, then such stamp duty and penalty should be collected. 16. Regarding non-registration is concerned, it has to be found out as to how far Section 49 of the Registration Act could be ushered in for placing reliance on such document. 17. At this juncture, I would like to recollect and call up the following decisions of the Honourable Apex Court: (i) AIR 2001 Supreme Court 1158 (Bipin Shantilal Panchal vs. State of Gujarat and another), certain excerpts from it would run thus: "13.When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.) 14. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses." (ii) (2010) 8 SCC 423 [ Shalimar Chemical Works Limited vs. Surendra Oil and Dal Mills (Refineries and others) ]. Certain excerpts from it would run thus: 10. ....................."An objection to the admissibility of the document can be raised before such endorsement is made and the court is obliged to form its opinion would depend, the document being endorsed, admitted or not admitted in evidence. In support of the submission he relied upon a decision of this Court in R.V.E.Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P.Temple where it was observed as follows: (SCC p.764, para 20) "20. .....The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself is inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court." (emphasis in original). 15. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. In the first case, acquiescence would be no bar to raising the objection in a superior court." (emphasis in original). 15. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial court should not have "marked" as exhibits the xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. The appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded." 18. A bare running of the eye over the above precedents would exemplify and demonstrate that marking is different from proving a document. As such, the lower Court Judge should have kept himself appraised of the current provisions of law. 19. Without adhering to the said provisions of law, the lower Court simply, at page No.6 of the judgement, held that he had rejected the request of defendants 1 and 2 for marking the note books on the main ground that those note books were in incomplete shape. However, in the written statement the defendants would contend that those note books do contain the signatures of the parties, including the plaintiff and it is also their contention that one such note book is available with the plaintiff; however, the plaintiff would deny the same. Unless the items found specified in those note books are known, the Court might not be in a position to give a specific finding as to what are the items allotted to the plaintiff, D1 and D2 respectively. Only thereafter, if at all the Court does not want to interfere with such partition, then by way of enforcing that partition, it should see as to whether the parties exceeded their limits in alienating their respective shares in favour of third parties. The purchasers can only be deemed to have stepped into the shoes of the respective sharers' rights and accordingly, equity should be worked out. The purchasers can only be deemed to have stepped into the shoes of the respective sharers' rights and accordingly, equity should be worked out. But curiously enough the trial Court went on holding that the properties which are not covered under Exs.B3 to B6 and Exs.B10 to B12 and the other items of properties which are not purchased by the defendants, namely, 8, 12, 13, 15 and 16, plaintiff is deemed to have been allotted 1/3rd in the partition of the year 5.5.1969. Wherefore such clause (2) in the decree is highly imaginary and by no stretch of imagination that could be countenanced as correct. It is therefore just and necessary to extract the operative portion of the lower Court's erroneous decree in entirety hereunder: "Decree 1. Preliminary decree is passed allotting 1/3rd share in item No.7 and Item No.18 of 'A' Schedule properties and accordingly such share is allotted to plaintiff. 2.The properties which are not covered under Ex.B3 to B6 and Ex.B10 to Ex.B12 and other items of properties which have not been purchased by defendants namely 9, 12, 13, 15 and 16, plaintiff is deemed to have been allotted 1/3rd share in the partition of the year 5.5.1969. 3. As far as defendants 4, 5, 6, 7, 8, 10, 11, 12, 14, 17, 18, 19, 20 and 21 are concerned plaintiff is entitled to work out his remends be before proper forum if any of the suit properties had been alienated to those persons by defendants 1 and 2. 4. Suit filed by the plaintiff for partition and separate possession of his 1/3rd share in respect of properties alienated by defendants 1 and 2 and plaintiff in favour of defendants 9, 12, 13, 15 an 16 is hereby dismissed. 5. Plaintiff is entitled to get possession of his share of properties in respect of 7th item and 18th item of suit properties in A schedule by way of filing final decree petition and getting the advocate commissioner appointed to divide those properties by metes and bounds. 6. And accordingly limited preliminary decree is passed on the lines as indicated above." (extracted as such) (emphasis supplied) 20. 6. And accordingly limited preliminary decree is passed on the lines as indicated above." (extracted as such) (emphasis supplied) 20. The clause (1) of the decree would be to the effect that 1/3rd share in items 7 and 18 in 'A' scheduled properties are allotted in favour of the plaintiff, which means, the remaining 2/3rd shares are allotted to D1 and D2. 21. I am at a loss to understand as to how, without comprehensively having a knowledge about the actual division which purported to have taken place among the plaintiff, D1 and D2 , the Court could carve out only items 7 and 18 and hold that those items should be divided into three shares and it should be allotted in favour of the plaintiff, D1 and D2, at the rate of 1/3rd each. As such, ex facie and prima facie that finding is antithetical to the settled proposition of law relating to partition. 22. Clause (2) in the decree, as already pointed out supra, is based on the following erroneous notion on the part of the lower Court. Exs.B3 to B6 and Exs.B10 to B12 are pattas standing in the name of D1 and D2. Patta will not confer title. It appears, the lower Court assumed and presumed as though the defendants 1 and 2 in respect of some of the items of suit properties based on the partition only got patta changed in their names and for which, the plaintiff simply kept quiet. 23.Patta would not constitute title is the trite proposition, which got exemplified in the following decisions of this court: (i) 1998 (I) CTC 630 in Srinivasanand six others Vs. Sri Madhyarjuneswaraswami, Pattavaithalai, Tiruchirapally District by its Executive Officer at Pattavaithalai Devasthanam and five others. (ii) unreported judgement of this Court dated 08.08.2008 in A.S.No.747 of 1990 [Venkatachalam(died) and others vs. Rajammal and others] (iii) Unreported judgement of this Court dated 28.04.2009 in S.A.No.39 of 2009 R.Pannerselvamvs. A.Subramanian and another]. 24. There is no presumption that the defendants 1 and 2 got the patta changed only in respect of the items which were allotted to their respective 1/3rd shares and for that there is no evidence also. 24. There is no presumption that the defendants 1 and 2 got the patta changed only in respect of the items which were allotted to their respective 1/3rd shares and for that there is no evidence also. Unless the items as found set out in the said two note books are considered, the question of the Court holding in any manner in favour of the defendants would not arise at all and it would be a well neigh impossibility. Even in the written statements there is no clarity as to which of the items of the suit properties were allotted in favour of the respective three sharers. 25. It appears, the lower Court also presupposed as though certain items of the properties sold by D1 and D2 to D9, D12 to D16 were all the properties allotted to their respective shares, which again is totally antithetical to the settled proposition of law. The Court cannot indulge in surmises and conjectures and simply pass some decree. 26. Regarding the oral sale is concerned, the Court under paragraph No.24 of the judgement, went to the extent of holding that such sale also is valid, on the alleged assumed ground that the sale consideration was Rs.50/-and that no registration is required. 27. An example here would highlight as to how the lower Court was totally wrong in assuming such a thing. Simply because a party for the purpose of bypassing the embargo as contained in Section 17 of the Registration Act pleads that he purchased orally a property worth several lakhs of rupees for Rs.50/-, would it be possible for the Court to accept the same and entertain the oral sale. 28. The 12th item of the suit property in Survey No.62/4 measuring 33 cents was accepted by the Court to have been sold by one Lakshmana Naicker-D9's father for Rs.50/- during the year 1960. Even by phantasmagorical thoughts or by any stretch of imagination it cannot be visualised that an extent of 33 cents of land was sold for a sum of Rs.50/- during the year 1960. As such, the lower Court was glaringly and obviously erroneous in giving such a finding in favour of the oral sale and the alleged acquisition of right by D9 over item No.9 of the 'A' scheduled property. 29. As such, the lower Court was glaringly and obviously erroneous in giving such a finding in favour of the oral sale and the alleged acquisition of right by D9 over item No.9 of the 'A' scheduled property. 29. In the result, the judgement and decree of the lower Court is set aside and the matter is remitted back to the trial Court with the following directions: (i) The lower Court shall give due opportunity of adducing additional evidence to both sides. (ii) The lower Court shall apply the Honourable Apex Court's judgements in AIR 2001 Supreme Court 1158 and (2010) 8 SCC 423 referred to supra and subject to collection of stamp duty and penalty, the said note books shall be allowed to be marked subject to objections. 30. I would like to make it clear that marking is different from proving. It is the duty of the defendant concerned, who is placing reliance on the said document to prove the contents. The plaintiff also is given the option to explain the recitals in Ex.B1 as extracted in the judgement. 31. Accordingly, the points are decided as under: Point No.(1) is decided to the effect that the lower Court was not justified in holding that there was partition among the family members in the absence of any clinching evidence and the lower Court also was wrong in ordering partial partition. Point No.(2) is decided to the effect that the finding of the lower Court concerning oral sale is not tenable. Point No.(3) is decided to the effect that the lower Court was not justified in placing reliance on the pattas in favour of defendants 1 and 2 in holding that they acquire title to those properties concerned. Point No.(4) is decided to the effect that the lower Court was not justified in rejecting the request of the defendants to get marked the note books two in number purported to contain the facts relating to the partition and allotment of shares. Point Nos.(5) & (6) are decided to the effect that the judgement and decree of the lower Court are liable to be set aside and accordingly set aside. 32. It is for the Court either to give a finding whether there was any partition in the year 1969 or not. Point Nos.(5) & (6) are decided to the effect that the judgement and decree of the lower Court are liable to be set aside and accordingly set aside. 32. It is for the Court either to give a finding whether there was any partition in the year 1969 or not. If it is so, then by way of enforcing that partition, all the shares of the three parties should clearly be spelt out item wise and if it is found that there is any over stepping of such shares by any one of the parties in enjoyment or in alienating them, then that would not be binding on the other sharers. The respective purchasers have to work out their remedies accordingly during the final decree proceedings. On the other hand, if the Court finds that there was no partition at all during the year 1969 then the partition decree simplicitor in respect of the suit properties should be passed and during the final decree proceedings, the respective purchasers have to work out their remedies based on equity. 33. In the result, the appeal is disposed of accordingly. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed. 34. The parties are directed to appear before the trial Court on 24.9.2012. The lower Court shall do well to see that the matter is disposed of within four months from the date of receipt of a copy of this order.