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2022 DIGILAW 2810 (MAD)

Savithri Ammal v. Sakunthala

2022-08-18

C.V.KARTHIKEYAN

body2022
JUDGMENT (Prayer: The Second Appeal filed under Section 100 of CPC, against the judgment and decree made in A.S.No.266 of 1991 dated 19.02.1993 on the file of the Additional District Court Vellore, modifying the judgment and decree made in O.S.No.312 of 1982 dated 16.12.1989 on the file of the Sub Court Vellore.)              The 5th, 10th, 11th, 12th, 14th, 16th and 17 defendants in O.S.No.312 of 1982 on the file of the Sub Court at Vellore are the appellants herein. 2. O.S.No.312 of 1982 had been filed by the 1st respondent herein, Sakunthala wife of M.V.Munusamy against the defendants therein, seeking partition and separate possession of 5/12 shares in the properties described in A, B, C and D schedules to the plaint and for appointment of Commissioner to so divide the said properties and also to order an enquiry for mesne profits under Order 20 Rule 12 CPC and for costs of the suit. By judgment dated 16.12.1989, the learned Sub Judge, Vellore had partly decreed the suit with respect to A schedule properties excepting item Nos.14 and 20 and with respect to B schedule properties. However, the suit was dismissed with respect to the relief sought against C and D schedule properties. 3. Questioning that judgment, the 3rd, 4th, 5th, 7th, 8th, 10th to 17th defendants filed A.S.No.266 of 1991 before the Additional District Court, Vellore. By judgment dated 19.02.1993, the appeal suit was partly allowed by granting decree for partition and separate possession with respect to item Nos.2, 5 and 6 in A schedule property and with respect to item Nos.11 and 12, it was stated that the plaintiff is entitled for the cash value of 5/12th share which should be determined at the time of the final decree application. With respect to B schedule property, it was stated that the 5th and 6th respondents were entitled to right of equity consequent to their purchase. With respect to other aspects, the Trial Court judgment was modified and confirmed. 4. Questioning that particular judgment, the present Second Appeal had been filed by the 3rd, 4th, 5th, 7th, 8th, 10th to 17th defendants in the suit. 5. The Second Appeal had been admitted on 07.09.1998 on the following three substantial questions of law:- “i). Whether the findings of the Lower Appellate Court with regard to Ex.B3 is correct in law? ii). Questioning that particular judgment, the present Second Appeal had been filed by the 3rd, 4th, 5th, 7th, 8th, 10th to 17th defendants in the suit. 5. The Second Appeal had been admitted on 07.09.1998 on the following three substantial questions of law:- “i). Whether the findings of the Lower Appellate Court with regard to Ex.B3 is correct in law? ii). Whether the lower Courts overlooked the legal position that Ex.B3 can be looked into for collateral purpose? iii). Whether the Lower Appellate Court is correct in law in directing the compensation to be paid to the plaintiff in respect of suit Items 11 and 12 of the plaint A schedule?“ 6. The plaintiff claimed that the properties described in A and B schedule to the plaint which were mainly agricultural lands and also the residential house originally belonged to her paternal grandfather Manicka Naidu. Her paternal grandmother was Muniammal who died in the year 1954. Manicka Naidu died in the year 1970. They had two sons and two daughters. The 1st son Venkatasami Naidu was the father of the plaintiff, Sakunthala. He died in the year 1965. The mother of the plaintiff had pre-deceased him and died in the year 1961. The plaintiff further claimed that her paternal uncle, Gurusami Naidu, who was shown as the 1st defendant in the suit, made use of the produce available from cultivating the A and B schedule properties to purchase the C schedule properties in his name and the D schedule properties in his wife-s name. 7. Claiming that the said properties also formed part of the joint family nucleus namely, the A and B schedule properties, the plaintiff had claimed partition and separate possession of 5/12th share. She had claimed that share by stating that during the lifetime of Manicka Naidu the co-parcenary consisted of himself and his two sons Venkatasami Naidu and Gurusami Naidu. They were each entitled to an undivided 1/3rd share. On the death of Manicka Naidu his undivided 1/3rd share fell to his two sons and two daughters. This would imply that the two sons got an undivided 5/12th share each and the two daughters got undivided 1/12th share each. Since the parents of the plaintiff died, she claimed partition and separate possession of the undivided 5/12th share of her father, Venkatasami Naidu, in the suit schedule properties. 8. This would imply that the two sons got an undivided 5/12th share each and the two daughters got undivided 1/12th share each. Since the parents of the plaintiff died, she claimed partition and separate possession of the undivided 5/12th share of her father, Venkatasami Naidu, in the suit schedule properties. 8. The 1st defendant in the suit was her paternal uncle, Gurusami Naidu and her two paternal aunts / sister of her father were the 2nd and 3rd defendants. The 4th defendant was the wife of Gurusami Naidu, the 1st defendant. The D schedule properties stood in her name. The 5th and 6th defendants were alienees of portions of B schedule property from the 1st and 4th defendants. The 7th to 11th defendants were impleaded as legal representatives of the deceased 2nd defendant. On the death of the 1st defendant, the 12th to 17th defendants were impleaded as his legal representatives. 9. The 1st defendant filed a written statement stating that he joined military service in the year 1943 and was the only earning member of the family. He claimed that the father of the plaintiff was both deaf and dumb and when he died, the plaintiff was aged only eight years. Her mother had pre-deceased her father. The plaintiff therefore bought her up, educated her and had given her in marriage. During the marriage substantial sreedhana was also provided. He further stated that it was false to state that A and B schedule properties were available for partition. He stated that he and the 4th defendant had every right to deal with portions of the B schedule property to the 5th and 6th defendant. He further stated that with the help of his earnings in military service, he had purchased the C schedule properties in his name and he further claimed that his wife 4th defendant had independent source to purchase the D schedule properties. He claimed that the suit filed by the plaintiff was vexatious and he also claimed that on the date of her marriage, her husband had apparently written a settlement deed on 27.08.1972 acting on behalf of the plaintiff who was a minor at that time, aged 17 years, undertaking that neither he nor his wife the plaintiff would seek any right over the family properties, in view of the sreedhana given during the marriage. 10. 10. The 1st defendant further stated that thereafter owing to further disputes raised by the plaintiff, a panchayat was held and the plaintiff had again executed an undertaking on 19.01.1976 affirming the earlier document written by her husband and relinquishing all her rights in the family properties owing to sreedhana gifts given and also owing to financial offers given for the construction of her house at Bangalore. Pointing out these two documents, the 1st defendant asserted that the suit should be dismissed. 11. The 4th defendant filed a written statement claiming that she had purchased the properties mentioned in D schedule out of her earnings and out of her source of income. She asserted title to the said properties. 12. The 10th and 11th defendants who were impleaded as legal representatives of the deceased 2nd defendant also filed a written statement putting the plaintiff to strict proof of the averments made by her and stating that the shares of the defendants who are minors would not be liable for partition. 13. The Trial Court Judge in the course of judgment framed as many as 18 issues for trial. The first four issues were with respect to determining whether the properties in A, B, C and D schedule properties were family properties and whether C schedule properties were purchased by the 1st defendant in his name from and out of the income obtained from the A and B schedule properties and whether the 4th defendant was entitled for the D schedule properties or whether the said properties were purchased in her name by the defendant. The 5th issue was with respect to the sale made in favour of the 5th and 6th defendants. 14. During the course of trial, the plaintiff examined herself as PW-1 and she marked Exs.A1 and A2. Ex.A1 was the chitta in the name of Gurusami Naidu and Ex.A2 was the chitta in the name of Munusamy Naidu and Gurusamy Naidu. 15. On the side of the defendants, the 7th defendant was examined as DW-1. The 5th defendant was examined as DW-3. The 4th defendant was examined as DW-4 and one more witness was examined as DW-5. 16. The defendants marked Exs.B1 to B40. Ex.B2 dated 27.08.1972 is the settlement deed executed by the husband of the plaintiff on 27.08.1972 and Ex.B3 is the family arrangement written down by the plaintiff on 19.01.1976. The 5th defendant was examined as DW-3. The 4th defendant was examined as DW-4 and one more witness was examined as DW-5. 16. The defendants marked Exs.B1 to B40. Ex.B2 dated 27.08.1972 is the settlement deed executed by the husband of the plaintiff on 27.08.1972 and Ex.B3 is the family arrangement written down by the plaintiff on 19.01.1976. All the other documents related to various transactions made with respect to the suit properties including documents for payment of land tax and such other statutory dues. 17. The learned Additional Sub Judge Vellore, on the basis of the pleadings, oral and documentary evidence found as a fact that the A and B schedule properties belonged to the joint family except item Nos.14 and 20. It was specifically found that there was no evidence to hold that the C and D items of properties were purchased from and out of the income of the A and B items of properties. The learned Additional Sub Judge, with respect to Exs.B2 and B3 held that the said documents having not been registered in manner known to law cannot be looked into and rejected them. The learned Additional Sub Judge, therefore fell back to the normal rules of succession and found as a fact that the plaintiff, in view of her birth in the family, was entitled to and undivided 5/12 share in the suit properties. Accordingly, the suit was partly decreed with respect to items in A schedule properties, except for item Nos.14 and 20 / houses and decreed with respect to B schedule properties, but dismissed with respect to C and D schedule properties. 18. Questioning that judgment, the defendants then filed A.S.No.266 of 1991. The appeal suit came up for consideration before the Additional District Court, Vellore. By judgment dated 19.02.1993, the learned Additional District Judge, Vellore, framed necessary points for consideration. The learned Additional District Judge, on re-evaluation of the evidence, found as a fact that the plaintiff in the suit was actually entitled to partition and separate possession. The learned Additional District Judge, was again of the opinion that both Exs.B2 and B3 were invalid documents and cannot be looked into for any purpose whatsoever. The learned Additional District Judge, on re-evaluation of the evidence, found as a fact that the plaintiff in the suit was actually entitled to partition and separate possession. The learned Additional District Judge, was again of the opinion that both Exs.B2 and B3 were invalid documents and cannot be looked into for any purpose whatsoever. The learned Additional District Judge, thought it fit to grant partition and separate possession with respect to the three items in A schedule property and directed grant of compensation to be paid over the two house properties and with respect to other aspects, dismissed the appeal suit and confirmed the findings of the Trial Court. 19. This has necessitated the 3rd, 4th, 5th, 7th, 8th, 10th to 17th defendants in the suit to file the present Second Appeal. 20. The Second Appeal had been admitted on 07.09.1998 on the following three substantial questions of law: “i). Whether the findings of the Lower Appellate Court with regard to Ex.B3 is correct in law? ii). Whether the lower Courts overlooked the legal position that Ex.B3 can be looked into for collateral purpose? iii). Whether the Lower Appellate Court is correct in law in directing the compensation to be paid to the plaintiff in respect of suit Items 11 and 12 of the plaint A schedule?“ 21. The first two substantial question of law relate to Ex.B3 which is a document dated 19.01.1976. It has been termed as a family arrangement and was with respect to immovable properties. This had been addressed by the plaintiff to her paternal uncle Gurusami Naidu. In the said document she stated that her mother had died in the year 1961 and her father Venkatasami Naidu had died in the year 1965 when she was eight years old. She further stated that from that time onwards, her paternal uncle Gurusami Naidu had looked after her, brought her up, educated her and had also married her to M.V.Munusamy Naidu by giving as sreedhana nearly, 22 sovereigns of gold and brass vessels worth Rs.2,500/- and had also spent a sum of Rs.5,000/- for her marriage. She further stated that there were ancestral properties falling to her and Gurusami Naidu-s shares. She further stated that since with respect to the said joint family properties certain troubles had arisen, she executed the family settlement in the presence of the panchayaters. She further stated that there were ancestral properties falling to her and Gurusami Naidu-s shares. She further stated that since with respect to the said joint family properties certain troubles had arisen, she executed the family settlement in the presence of the panchayaters. She had further stated as follows and the vernacular is extracted. 22. A reading of the above would show that in view of the fact that her husband had received a total sum of Rs.15,000/- at regular intervals for construction of a house at Bangalore, from that date onwards, Gurusami Naidu can enjoy all the joint family properties and from that date onwards, either she or her husband or any of her legal representatives would not claim any right in the properties and that in this regard her husband had already executed a document on 27.08.1972 and since she had received sreedhana and the cost of construction of the house at Bangalore, from that date onwards Gurusami Naidu can enjoy all the properties. She stated that it was in this regard the family settlement has been executed (-rough translation- ). 23. This particular document had not been stamped and had not been registered. But however, when it was produced as a document and marked as Ex.B2 penalty in accordance with the Stamp Act had been collected and therefore, the issue of inadequate stamp will not arise. However, it will have to be examined whether this document requires to be registered or not. 24. In Kale v. Dy. Director of Consolidation, (1976) 3 SCC 119 : AIR 1976 SC 807 , the principles to be examined with respect to a family arrangement and when it would be required to be registered had been stated with much authority. It had been stated as follows: 10. 24. In Kale v. Dy. Director of Consolidation, (1976) 3 SCC 119 : AIR 1976 SC 807 , the principles to be examined with respect to a family arrangement and when it would be required to be registered had been stated with much authority. It had been stated as follows: 10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions: (1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family; (2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence; (3) The family arrangement may be even oral in which case no registration is necessary; (4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable; (5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same; (6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.” 25. In Yellapu Uma Maheswari v. Buddha Jagadheeswararao, (2015) 16 SCC 787 : (2016) 2 LW 656 (SC), it had been held as follows: 15. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exts. B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registrable document and if the same is not registered, it becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exts. B-21 and B-22 are the documents which squarely fall within the ambit of Section 17(1)(b) of the Registration Act and hence are compulsorily registrable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exts. B-21 and B-22 are not admissible in evidence for the purpose of proving primary purpose of partition.” 26. In Sita Ram Bhama V. Ramvatar Bhama, (2018) 15 SCC 130 , the Hon’ble Supreme Court had once again reiterated the position of law with respect to unregistered and unstamped family settlement as laid down in 1976 3 SCC 119 , Kale (referred supra) and held that if there is relinquishment of property under the document, then it has to be compulsorily registered. 27. 27. In the background of the aforementioned legal position, if Ex.B3 is re-examined, it is seen that the 1st respondent herein / plaintiff in the suit had only stated that her husband had earlier written a document namely, Ex.B2 dated 27.08.1972 at the time of her marriage and that towards construction of the house at Bangalore, her husband had received a sum of Rs.15,000/- at intermittent intervals but had very importantly stated that from that date onwards (), namely, the date of Ex.B3 namely, 19.01.1976 the 1st defendant, her paternal uncle Gurusami Naidu can enjoy all the family properties as his own properties and that she relinquishes all rights over the same. 28. Even though the document indicates that she had received monies on earlier dates, the act of relinquishment of her right over the properties commenced from the date of Ex.B3 namely 19.01.1976. Therefore, it was only under Ex.B3 that she had relinquished her birth right namely, the right which she acquired as daughter of Venkatasami Naidu to the ancestral properties on the death of her father. Only on that particular date, by that document had she relinquished her rights. She might have received sreedhana properties at the time of her marriage. Her husband might have received a sum of Rs.15,000/- at regular intervals for construction of house. But receipt of such sreedhana and receipt of money for construction of house had been directly linked to her relinquishment of her birthright over the ancestral properties only under Ex.B3 to take effect from the date of execution of Ex.B3. This would indicate that Ex.B3 must be registered under Section 17(1)(b) of the Registration Act, 1908. It is a relinquishment / release deed. She might have stated that on that date she might not have received any consideration and that she had received monies worth in other forms on earlier dates, but very importantly she had stated in Ex.B3 that there were family issues with respect to the family properties and those issues are being resolved by execution of Ex.B3 and the only manner in which those issues are resolved was by her relinquishing her right, title and interest over the family properties to take effect from that particular date. This very categorically implies that she had given up her rights over her property only on and from the date of execution of Ex.B3. This very categorically implies that she had given up her rights over her property only on and from the date of execution of Ex.B3. I hold that this particular document Ex.B3 therefore requires compulsory registration. The same not having been registered cannot be admissible in evidence. 29. I hold that both the Courts below had correctly rejected Ex.B3 and have proceeded to grant partition and separate possession to the 1st respondent / plaintiff in the suit. That grant of partition and separate possession as minutely examined and granted by the First Appellate Court will have to be upheld and confirmed by this Court. 30. The first and second substantial questions of law are answered that Ex.B3 has been correctly rejected by the Courts below and cannot be looked into for any collateral purpose. As a matter of fact, there is no collateral purpose at all to be examined. The only issue is relinquishment of right and that was from the date of execution of Ex.B3. 31. The third substantial question of law relates to the two houses namely, items 11 and 12. It would only be appropriate that the house are not divided into metes and bounds and it is only appreciable that the monies equivalent of the share of the 1st respondent / plaintiff had been directed to be paid by the First Appellate Court. The said direction holds. No substantial question of law arises in such direction and I would uphold such direction. 32. In view of the aforementioned reasons, i). The Second Appeal is dismissed, with costs of the 1st respondent. ii).The judgment and decree of the First Appellate Court in A.S.No.266 of 1991 dated 19.02.1993 on the file of the Additional District Court Vellore, partly modifying the judgment and decree of the Trial Court in O.S.No.312 of 1982 dated 16.12.1989 on the file of the Sub Court Vellore, is confirmed.