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2019 DIGILAW 1451 (MAD)

V. Ramachandran v. G. Kanagasabapathy

2019-05-22

S.RAMATHILAGAM

body2019
JUDGMENT : 1. This Civil Miscellaneous Appeal has been filed against the order dated 22.08.2013 in I.A.No.31 of 2012 in I.A.No.149 of 2010 in O.S.No. 124 of 2010 on the file of the III Additional District Court, Tirunelveli. 2. In I.A.No.31 of 2012, the appellant herein is the first respondent. Respondents 1 to 4 herein are the petitioners, who are the third parties. 5th respondent herein is the 2nd respondent. For the sake of convenience, the parties will be referred as to their rank in I.A.No.31 of 2012. 3. I.A.No.31 of 2012 was filed by the third parties. In the said I.A., the petitioners, who are the third parties have contended that the petitioners 1 to 3 are the brothers of the 2nd respondent namely G.Thirumalainainar and 4th petitioner is the son of the 2nd respondent. The petitioners further contended that the first respondent has filed a suit in O.S.No.124 of 2010 for recovery of money and other reliefs as against the 2nd respondent and also filed I.A.No.149 of 2010 under Order 38 Rule 5 of C.P.C., seeking the 2nd respondent to furnish the security for the amount fixed by the trial Court, failing which to pass an order of attachment before judgment of the petition schedule property. Since the 2nd respondent has not furnished security, the properties have been attached. 4. The third parties further contended that the properties attached by the Court, belonged to the father of the petitioners 1 to 3 and the grand father of the 4th petitioner viz., Ganapathiappa Pillai. The grand father died in the year 2002 leaving behind his wife, the petitioners 1to 3 and the 2nd respondent are his legal heirs. The 2nd respondent turned hostile to the wishes and welfare of the family and hence, all the brothers decided to make an amicable family arrangement for dividing the entire family properties between themselves and they also decided to provide some specific properties to the wife of the 2nd respondent and the same was accepted by the 2nd respondent. Pursuant to which a compromise talks headed by the Mediator one Mr.S.S.Thiyagarajan on 16.03.2008, all the family properties were orally divided in between all the petitioners, the 2nd respondent and his wife viz., Mrs.T.Rajeswari. Pursuant to which a compromise talks headed by the Mediator one Mr.S.S.Thiyagarajan on 16.03.2008, all the family properties were orally divided in between all the petitioners, the 2nd respondent and his wife viz., Mrs.T.Rajeswari. In the said family arrangement, the property attached by the Court below particularly mentioned in the 1st item of the petition schedule was divided into three portions and each portions have been allotted to the petitioners 1 to 3 respectively. Likewise, the property attached by the Court particularly mentioned in the 2nd item of the petition schedule was allotted to the 4th petitioner. The 2nd respondent has no share in the allotted property. As per the family arrangement all the petitioners and the 2nd respondent took over the possession of the properties allotted to their respective shares on 16.03.2008. Subsequent to that, the said family arrangement was reduced into writing and confirmed by an un-registered deed of family arrangement dated 23.03.2008. The petitioners 1 to 3 also obtained separate patta in their respective names, so far their respective portions in Survey No.132-5 of Vellalankulam Village and they are paying kist for their respective portions. Considerable extent of lands in their respective portions were alienated by the petitioners 1 to 3 and the same are reflected in the Encumbrance Certificate. Hence, the 2nd respondent has no right title or interest over the properties attached by the Court which are particularly described in the petition schedule. The 4th petitioner applied to the Tirunelveli City Municipal Corporation for mutation of his name over the 2nd item of the property on the basis of the above said un-registered deed of family arrangement dated 23.03.2008 and the same was rejected by order dated 02.05.2011. The said order of the Tirunelveli Corporation was questioned by the 4th petitioner in W.P.No. 7997 of 2011 before this Court and this Court was pleased to upheld the un-registered deed of family arrangement and set aside the impugned order passed by the Tirunelveli Corporation. Thereafter, the Tirunelveli Corporation effected mutation of the name of the 4th petitioner for the said property and now the 4th petitioner is paying tax for the said property. Since the 2nd respondent has no title or interest over the properties attached by the Court below, the order of attachment before judgment is legally unsustainable. Thereafter, the Tirunelveli Corporation effected mutation of the name of the 4th petitioner for the said property and now the 4th petitioner is paying tax for the said property. Since the 2nd respondent has no title or interest over the properties attached by the Court below, the order of attachment before judgment is legally unsustainable. The petitioners came to know the attachment only when they took the encumbrance certificate for the said properties. The petitioners further contended that unless the order of attachment before judgment is raised at the earliest, serious loss will be caused to the petitioners. Hence, they filed I.A.No.31 of 2012 to raise the order of attachment before judgment. 5. The appellant herein who is the first respondent in I.A.No.31 of 2012 has filed a counter statement by contending that the petitioners have to prove that the suit properties originally belonged to Ganapathiappa Pillai who died in the year 2002, leaving behind his wife, four sons and two daughters as his legal heirs. The other rights claimed by the petitioners are denied by the first respondent. The further allegation regarding the compromise talks headed by the Mediator Mr.S.S.Thiyagarajan and orally divided the properties in between the petitioners are all denied by the first respondent. The said mediator Mr.S.S.Thiyagarajan is none other than the sister's husband of the 2nd respondent. Since the properties particularly mentioned as 1st item of petition schedule were divided into 3 portions to the petitioners 1 to 3 and particularly mentioned in the 2nd item of the petition schedule was allotted to the 4th petitioner, no share in the said properties were allotted to the 2nd respondent are all false. The first respondent further contended that the alleged family arrangement is a fraudulent one and it was created for the purpose of the case in collusion with the 2nd respondent. In order to defeat the valuable right of mine to recover the decree amount, the petitioners took all the documents and filed the petition. Hence, the first respondent seeks to dismiss the I.A.No.31 of 2012. 6. The trial Court has observed the contentions raised by both sides and decided the issues by taking the points for consideration as whether the petition has to be allowed or not. Hence, the first respondent seeks to dismiss the I.A.No.31 of 2012. 6. The trial Court has observed the contentions raised by both sides and decided the issues by taking the points for consideration as whether the petition has to be allowed or not. The trial Court has also discussed that the suit was filed by the first respondent for recovery of a loan amount of Rs.13,00,000/- and also discussed I.A.No.149 of 2010 which was filed by the first respondent to furnish the security for a sum of Rs.24,00,000/-. The trial Court has observed that since the security has not been furnished, the properties have been attached. Against which, the third parties have filed I.A.No.31 of 2012 to raise the order of attachment before passing judgment. In the said I.A.No.31 of 2012, the third parties have contended that the loan availed by the 2nd respondent has got nothing to do with the joint family business property and as per the family arrangement between the family members, the 1st item was allotted to the petitioners 1 to 3 and the 2nd item was allotted to 4th petitioner and hence, the 2nd respondent has not given any share in the property. Further stated that the 2nd respondent had some immoral relationship and acting against the interest of joint family. The trial Court has examined the first petitioner as P.W.1 and he deposed that the 2nd respondent has got no right to attach the properties for the alleged loan availed by him. Another witness was examined as P.W.2 who is none other than the sister's husband of the 2nd respondent. The memorandum of family arrangement was marked as Exhibit.P7 and the Tirunelveli Corporation Tax assessment order was marked as Exhibit P4 and the order passed in the writ petition was also marked as Exhibit P1. The trial Court further observed that the family arrangement was upheld by this Court in W.P.No.7997 of 2011 and hence the trial Court has given a finding that the loan availed by the 2nd respondent is his personal loan and the transaction will not bind the assets of the Mill. Further, the trial Court has observed that whether the loan transaction involves the interest of the Mill of any other members of the joint family or the purpose of expanding the joint family business, cannot be decided at this stage. Further, the trial Court has observed that whether the loan transaction involves the interest of the Mill of any other members of the joint family or the purpose of expanding the joint family business, cannot be decided at this stage. Hence, on seeing the available documents, the 2nd respondent alone is the signatory in the loan transaction that has been entered between the 1st and the 2nd respondent and the family arrangement is also proved to be true and valid, the 1st respondent cannot have any right to attach those properties which was not fall for the share of the 2nd respondent and the element of fraud if any in the said family arrangement cannot be taken as an issue in the petition or in the suit. The trial Court after observing all these things, has passed an order that the attachment made before judgment should be raised as prayed by the petitioners and allowed the I.A.No.31 of 2012. 7. Aggrieved against the said order, the first respondent preferred this Civil Miscellaneous Appeal. 8. In the grounds of appeal, the learned counsel for the appellant has contended that the trial Court ought to have held that Exhibit P.7, the alleged family arrangement dated 23.03.2008 is not a true and genuine one. 9. The other grievances of the learned counsel for the appellant are that the appellant herein is not a party to Exhibit P1 (the order of this Court in W.P.No.7997 of 2011) proceedings and it is a collusive proceedings among the respondents. Exhibit P7, the alleged family arrangement is not an admissible document in any legal proceedings. Exhibit.P1 is not binding upon this appellant, since the appellant is not a party to the said proceedings. Further the trial Court has failed to consider and appreciate Exhibit R3, a complaint in C.C.No.170 of 2010 on the file of the learned Judicial Magistrate No.1, Tirunelveli under Section 138 of Negotiable Instruments Act initiated by the appellant against the 5th respondent which is still pending. The trial Court failed to consider the fact that the learned Judicial Magistrate No.1, Tirunelveli proclaimed 5th respondent as a absconder, but the 5th respondent is appearing through the advocate in the Civil proceedings and helping the other respondent to defeat the lawful claim of the appellant. The trial Court failed to consider the fact that the learned Judicial Magistrate No.1, Tirunelveli proclaimed 5th respondent as a absconder, but the 5th respondent is appearing through the advocate in the Civil proceedings and helping the other respondent to defeat the lawful claim of the appellant. Hence, the trial Court ought to have held that the petition schedule properties in I.A.No.31 of 2012 do not belong to the respondents 1 to 4 alone, but belong to the joint hindu family consisting of respondents 1 to 5. Hence, the attachment ought not to have been raised, which was passed in I.A.No.149 2010. The reasons stated by the trial Court are unsound and an unacceptable. Hence, the order passed in I.A.No.31 of 2012 is liable to be set aside. 10. The learned counsel for the appellant has contended that the said family arrangement is a disputed document, not being stamped could not have been accepted as evidence. In support of his contention, he replied upon the judgment of the Hon'ble Apex Court reported in (2018) 4 MLJ 454 (SC) in the case of Sita Ram Bhama Vs. Ramvatar Bhama wherein it has has held as follows: "Neither plaintiff nor defendant had any share in property on day when it was said to have been partitioned by father- after father's death plaintiff, defendant and their mother as well as sisters become legal heirs - disputed document divided entire property between plaintiff and defendant which document was signed by their mother and sisters - there was relinquishment of rights of other heirs of properties.... Disputed document not being stamped could not have been accepted in evidence" 10.1. The arguments advanced by the appellant herein is that the process of partition contemplates three phases i.e., severancy of status, division of joint property by means and bounds and nature of possession of various shares. In a suit for partition and unregistered document can be relied upon for collateral purpose ie. severancy of title, nature of possession of various shares but not for the primary purpose ie. division of joint properties by means and bounds. Hence, an unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellant defendant want to mark these documents for collateral purpose, it is open for them to pay the stamp duty together with penalty and get the document impounded. 11. division of joint properties by means and bounds. Hence, an unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellant defendant want to mark these documents for collateral purpose, it is open for them to pay the stamp duty together with penalty and get the document impounded. 11. The learned counsel for the appellant further has relied upon the judgment of this Court reported in 2018(3) CTC 775 (S.R.Kalyana Venkatarama Raja Vs. Commissioner, Ambasamudram Municipality, Tirunelveli District) wherein it has been held as follows: "the Constitution of India, Article 226 - Writ Jurisdiction - Right of title over property cannot be decided in writ proceedings- Writ proceedings cannot be converted into Civil proceedings to examine veracity of documents by both sides ...... A Writ proceeding cannot be converted into a civil proceedings to examine as to which of the documents produced by the warring parties, is true and valid" 12. In the present case, the appellant has contended that the writ proceedings initiated by the 4th petitioner against the impugned order passed by the Tirunelveli Corporation for getting assessment of tax to be transferred in his name. When the validity of said unregistered family arrangement was questioned by the Tirunelveli Corporation, the 4th petitioner preferred the writ petition wherein this Court held as follows: "it is too late in the day to say that an unregistered deed of family arrangement, which records a past transaction, requires registration and stamp duty. The petitioner is the grand son of the original owner. There is no dispute between the petitioner and the other heirs. Therefore, the impugned order is wholly unsustainable" 13. The learned counsel for the appellant further contended that the said family arrangement is not a registered document, in which, the 2nd respondent has not given any share, though he is a legal heir of the father. Hence, the said document has to be compulsorily registrable under Section 17 of the Registration Act. The learned counsel for the appellant further contended that the said family arrangement is not a registered document, in which, the 2nd respondent has not given any share, though he is a legal heir of the father. Hence, the said document has to be compulsorily registrable under Section 17 of the Registration Act. Hence, the arguments advanced by the learned counsel for the appellant is that when the 2nd respondent was not given any share in the said family arrangement, these documents ought to have been registered under the Registration Act and the impugned order passed by the Tirunelveli Corporation is very much reasonable and in the Writ petition, this appellant is not a party and the order is only to an extent that it is an old document and the other family members also not disputing the same and the property also given by his grand-father. So, the Writ Court did not consider the other related proceedings. It is further contended by the appellant by quoting the case law of the Hon'ble Supreme Court reported in 2003 SAR (Civil) 583 (Sh.Dwarka Prasad Agarwal Vs.B.D.Agarwal and others ) wherein, it has been held as follows: "It is well settled that an order passed by the Court without jurisdiction is nullity. Any order passed or action taken pursuant thereto or in furtherance there are would also be nullities. In the said case, as the High Court did not have any jurisdiction to record the compromise for the reasons stated hereinbefore and in particular as no writ was required to be issued having regard to the fact that public law remedy could not have been restored to, the impugned orders must be held to be illegal and without jurisdiction and are liable to be set aside" 14. The learned counsel for the appellant herein further contended that the loan was obtained by the 5th respondent herein on 05.02.2007 agreeing to pay a sum of Rs.13,00,000/- to the appellant herein and executed a loan bond on 05.02.2007 with interest at 2 % per month. The said loan was obtained to start a spinning mill at Mukkudal for the benefit of the 5th respondent, his son, 4th respondent herein and his wife. By utilizing the said loan amount, machineries were purchased and installed in the building. This transaction is very well known to the wife of the 5th respondent. The said loan was obtained to start a spinning mill at Mukkudal for the benefit of the 5th respondent, his son, 4th respondent herein and his wife. By utilizing the said loan amount, machineries were purchased and installed in the building. This transaction is very well known to the wife of the 5th respondent. Hence, the appellant herein has issued a legal notice on 09.07.2008 demanding the loan amount. The copy of the said notice was also sent to the respondents 1 to 3. The respondents 1 to 3 and the 5th respondent, at that time they were the Directors of the another spinning mill. The 5th respondent has received the notice and sent a reply on 22.07.2008 through Advocate admitting his claim and pleaded 3 months time for payment. Since he failed to keep up his promise, the appellant has filed a suit for recovery of amount with interest in O.S.No.124 of 2010 along with petition in I.A.No.149 of 2012 under Order 38 Rule 5 C.P.C. The order of attachment was also obtained in the said I.A. In the meanwhile, the 5th respondent entered appearance by stating that he had filed a written statement in the main suit and the same may be treated as counter in I.A.No.149 of 2010. 15. On perusal of records, it is observed that M.P.No.1 of 2013 in C.M.A.No.2055 of 2013 was filed by the appellant herein to stay the operation of the fair and decreetal order passed in I.A.No.31 of 2012 in I.A.No.149 of 2010. In the said M.P., the appellant has contended that the properties which are described in I.A.No.149 of 2010 and in I.A.No. 31 of 2012 are the self acquired properties of father of the respondents 1 to 3 and the 5th respondent herein. The father of the 5th respondent herein died in the year 2002, leaving behind his wife, respondents herein totally five legal heirs apart from two daughters. 16. The further contentions raised by the learned counsel for the appellant is that in order to defeat the lawful claim of the appellant herein, the 5th respondent herein and his wife conspired among with the respondents herein and filed I.A.No.31 of 2012 to raise attachment and the said I.A., was allowed by the trial Court by dismissing the attachment order passed in I.A.No.149 of 2010. 17. 17. The learned counsel for the appellant has further contended that the entire scheme of the respondents is that if any decree is passed against the appellant herein, nothing to be recovered from him and to have that idea, the respondents and others fraudulently and cunningly brought forth the plea of oral partition and the unregistered deed of family arrangement and to give colour, an application for name transfer on the strength of the unregistered deed of family arrangement to the Tirunelveli Municipal Corporation has been given by the 4th respondent herein and he wantonly invited an order of rejection and then he filed W.P.No.7997 of 2011 and got an order behind the back of all other owners. If oral partition and the unregistered family arrangements are true, the 5th respondent, 4th respondent and the wife of the 5th respondent are answerable for the suit amount. During the life time of 5th respondent, the 4th respondent and the wife of the 5th respondent cannot be a heir to the estate of 5th respondent's father. But as a matter of fact and truth, the alleged oral partition and the alleged unregistered deed of family arrangement were brought forth to defeat and delay to enjoy the fruits of the decree and the trial Court has erroneously allowed I.A.No.31 of 2012. 18. Hence, the learned counsel for the appellant has contended that there are the issues involving the family arrangement which is not a genuine one and the order passed in W.P. is only against the impugned order and that too between the 4th respondent and the Tirunelveli Corporation, wherein this appellant is not a party. Only for the purpose of quashing the impugned order, the Writ petition was filed and in which, the validity of the documents was stated as that it need not to be stamped and the validity cannot be questioned since none of the parties disputed the same. It is argued by the appellant herein that the order passed in the writ petition cannot be taken for consideration in deciding the interim application. 19. The grievance of the appellant herein is that the trial Court has not framed any issue regarding the genuineness of the document which is the main document fraudulently created for the purpose of preventing any action by an order obtained by the appellant herein. 19. The grievance of the appellant herein is that the trial Court has not framed any issue regarding the genuineness of the document which is the main document fraudulently created for the purpose of preventing any action by an order obtained by the appellant herein. Hence, the genuineness of the document has to be proved and the petition has to be tried like a suit, whereas the trial Court has taken it as a point for determination as to whether the petition is allowed or not. The issue is one that the appellant herein has filed the suit for recovery of money and the 5th respondent herein has also given a reply notice stating that he is ready to pay the amount within a period of 3 months and the said loan was also obtained for improving the spinning mill and also the written statement which was filed in the suit was adopted as counter in I.A.No.149 of 2010. The genuineness of the oral family arrangement has to be proved like a suit by way of framing issues. Hence, the grievance of the appellant herein is that when the legal notice was issued to the respondents herein and they also received the same, they have not stated anything about the family arrangement. The order passed by the trial Court has not discussed anything about the documents relating to the family arrangement, when the attachment order was passed against the 1st item of the property, whereas the said property was allotted to the 4th respondent herein by way of family arrangement and also an unregistered document. The trial Court has come to the conclusion as follows: "it is found that the 2nd respondent alone is the signatory in the loan transaction has between the 1st and 2nd respondent. Since the family arrangement is proved to be true and valid, the 1st respondent cannot have any right to attach those properties which did not fall for the share of the 2nd respondent" 20. The trial Court further observed as follows: "since the family arrangement proved to be true and valid, the 1st respondent cannot have any right to attach those properties which did not fall for the share of the 2nd respondent". 21. The trial Court further observed as follows: "since the family arrangement proved to be true and valid, the 1st respondent cannot have any right to attach those properties which did not fall for the share of the 2nd respondent". 21. Further, the trial Court has observed that the element of fraud, if any in the said family arrangement cannot be taken as an issue in the petition or in the suit. Since the petition mentioned property does not belong to the 2nd respondent, the attachment made before judgment should be raised as prayer by the petitioners. 22. It is seen that Exhibit P.7 is the family arrangement made on 23.03.2008, the legal notice issued to the respondents reveal the fact that the said loan was borrowed by Thirumalainainar for starting spinning mill at Mukkudal on 05.02.2007. Hence, the respondents 1 to 4 have benefited with the said amount received by the 5th respondent and they are also enjoying the properties jointly and now they remain silent for the said repayment and they have also tried to alienate all the properties belonging to them. On perusal of Ex.P.7, it shows as follows: “TAMIL” 23. In view of the above said family arrangement, it is observed that there was a misunderstanding between the said 3rd person namely Thirumalai Nainar and his wife and his son, 8th person. Hence, the 7th person, T.Rajeswari, 8th person T.Ganapathiappan are claiming the share of G.Thirumalai Nainar and the same was also accepted. Hence, they arrived at the decision to partition the property in the presence of Mediator on 16.03.2008. Hence, the document dated 23.03.2008 was made, in which G.Thirumalai Nainar was also entitled for share and in which his wife and son were also seeking for their shares. The said family arrangement also denotes the fact that there are number of materials stand in the name of 1 to 5 persons and the said G.Thirumalai Nainar, the 3rd person. Hence, the share of the G.Thirumalai Nainar was very much confirmed in the said family arrangement. By way of said arrangement, the parties have also agreed for taking the property and according to the allotment, they are enjoying the property. 24. Hence, the share of the G.Thirumalai Nainar was very much confirmed in the said family arrangement. By way of said arrangement, the parties have also agreed for taking the property and according to the allotment, they are enjoying the property. 24. It is also observed from the said family arrangement that regarding the 3rd item, there is a reference that the person who is allotted for the 3rd item as to enjoy it as exclusive owner of the said property and if tax stands in some other names, the person who is allotted for the 3rd schedule has to get transfer to his name. Even as per the said family arrangement the 5th respondent, G.Thirumalai Nainar is allotted to a share. In I.A.No.31 of 2012, the respondents herein stated that the 2nd respondent has no share in the family arrangement and it cannot be a genuine one. This Court is of the view that once in the family arrangement, the allotment of share to the 5th respondent herein was ascertained, how the respondents herein averred that there is no property stands in the name of the G.Thirumalai Nainar on the date of the attachment and hence, it cannot be a genuine one. 25. The family arrangement was made in the presence of the Mediator on 16.03.2008 and the document was also made on 23.03.2008. The father of the respondents died in the year 2002. Immediately after the death of their father, no family arrangement was made. In the above said circumstances, it clearly proves that only to deprive the right of the appellant herein, the said family arrangement was made by the respondents that too the said family arrangement was made before the Mediator, who is none other than the sister's husband of the 2nd respondent. Further, deliberate acceptance by the respondents by not giving share to the 5th respondent and giving share to the 7th and 8th persons are very much proved the attitude of the respondents. These arrangements were subsequently made after a very long period of the death of their father. 26. Further, deliberate acceptance by the respondents by not giving share to the 5th respondent and giving share to the 7th and 8th persons are very much proved the attitude of the respondents. These arrangements were subsequently made after a very long period of the death of their father. 26. The grievance of the appellant is that the genuineness of the document namely the family arrangement deed and the petition was filed to raise attachment before judgment based on the said document which has to be clearly proved by framing necessary issues, whereas the trial Court has framed the consideration whether the petition has to be allowed or not and to decide the petition for the purpose of raising the attachment. The genuineness of the said document has to be properly analyzed by the trial Court. Hence, the grievance of the appellant is very much reasonable that the attachment order passed in I.A.No.149 of 2010 based on the family arrangement. Since the genuineness of the family arrangement was not clearly proved, the order of attachment raised in I.A. 31 of 2012 is set aside and the trial Court is directed to proceed with the trial. Hence, the order passed in I.A.No.149 of 2010 stands confirmed till the disposal of the suit. The trial Court is directed to proceed and decide the issue along with loan obtained by the 5th respondent herein in the year 2007. Till for the year 2008, the respondents are all enjoying the properties jointly and the 5th respondent's share was ascertained in the said document. The order of attachment raised by the trial Court in I.A.No.31 of 2012 does not contain any valid reason or any proof to raise the attachment. 27. In view of the above discussion and also on perusal of oral and documentary evidence, this Civil Miscellaneous Appeal is allowed. The order passed in I.A.No.31 of 2012 is set aside by confirming the order passed in I.A.No.149 of 2010. No costs.