Madras High Court
K.Subramaniam vs K.Dhasaradan Chettiar (Died) on 23 November, 2011
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23/11/2011 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Appeal Suit No.748 of 1992 and Appeal Suit No.350 of 1994 and C.M.P.No.6851 of 1994 in A.S.No.350 of 1994 A.S.No.748 of 1992: K.Subramaniam .. Appellant/Plaintiff Vs. 1.K.Dhasaradan Chettiar (Died) 2.K.Dhandapani Chettiar 3.Alamelu Ammal 4.Gohila Bai 5.Vasantha 6.Anusuya 7.Dhanalakshmi .. Respondents 1 to 7/ Defendants 8.J.Kaladevi 9.V.Suryakala 10.M.Chandrakala 11.M.Shanthi 12.B.Lakshmi 13.N.Maheswari 14.D.Ramalingam 15.D.venkatesan .. Respondents 8 to 15/ LRs of 1st Defendant (Respondents 8 to 15 brought on record as LRs of the deceased 1st respondent vide order dated 24.06.09 made in M.P.(MD) No. 4 to 6 of 2009 in A.S.(MD) No.748/ 1992 by MMSJ) A.S.No.350 of 1994: 1.K.Dhasaradan Chettiar (Died) .. 1st Appellant/1st Defendant 2.J.Kaladevi 3.V.Suryakala 4.M.Chandrakala 5.M.Shanthi 6.B.Lakshmi 7.N.Maheswari 8.D.Ramalingam 9.D.venkatesan .. Appellants 2 to 9/ LRs of 1st Defendant(Appellants 2 to 9 brought on record as LRs of the deceased 1st appellant vide order dated 24.06.09 made in M.P.(MD) No. 3 of 2009 in A.S.(MD) No.350/ 1994 by MMSJ) vs. 1.K.Subramaniam .. 1st Respondent/Plaintiff 2.K.Dhandapani Chettiar 3.Alamelu Ammal 4.Kohila Bai 5.Vasantha 6.Anusuya 7.Dhanalakshmi .. Respondents 2 to 7/ Defendants 2 to 7 Common Prayer The Appeal Suits have been filed under Section 96 of the Code of Civil Procedure, against the judgment and decree dated 09.04.1991 made in O.S.No.600 of 1979 on the file of the Subordinate Judge, Dindigul. A.S.No.748 of 1992: !For Appellant ... Mr.M.V.Venkataseshan ^For 1st Respondent ... Died For Respondents 3, 8 to 15... Mr.J.Parekkumar for Mr.P.Srinivas For Respondents 2, 4 to 7 ... No Appearance A.S.No.350 of 1994: For Appellants ... Mr.J.Parek Kumar for Mr.P.Srinivas For 1st Respondent ... Mr.M.V.Venkataseshan For 3rd Respondent ... Died For Respondents 2, 4 to 7... No Appearance :COMMON JUDGMENT
The Appeal Suit in A.S.No.748 of 1992 is focussed by the original plaintiff and the Appeal Suit in A.S.No.350 of 1994 is focussed by the original 1st defendant, animadverting upon the judgment and decree dated 09.04.1991, passed in O.S.No.600 of 1979 by the learned Subordinate Judge, Dindigul in partly decreeing the original suit.
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 recounting and recapitulation of the relevant facts, absolutely necessary and germane for the disposal of these Appeal Suits would run thus:
The plaintiff filed the suit seeking partition and for allotment of his 1/4th share in all the four items in the 'A' Scheduled property and 'B' Scheduled properties of the plaint.
4. The first defendant filed the written statement resisting the suit by contending that relating to items 1 and 4 in 'A' Scheduled property, he became the absolute owner by virtue of the plaintiff having relinquished his right over the said 1st item and his deceased father and the second defendant sold their shares in respect of the same item and by virtue of he having purchased the said item No.4. According to him, item No.3 of the 'A' Scheduled property was settled in favour of the first defendant - K.Dhasaradan Chettiar by his mother, the third defendant - Alamelu Ammal on the strength of the sale deed - Ex.B.11 standing in her name.
5. The second defendant filed a separate written statement contending that the plaintiff is having no right to claim partition, because there is no property left out for being divided among the plaintiff, the first defendant and the second defendant. However, he would contend that item No.2 of the 'A' Scheduled property was settled by his mother, the third defendant - Alamelu Ammal in his favour on the strength of the sale deed - Ex.B.4 standing in her name.
6. Defendants 4 to 7, the daughters of the third defendant remained exparte.
7. Whereupon, the trial Court framed the relevant issues.
8. During the trial, on the side of the plaintiff, P.Ws.1 and 2 were examined and Exs.A.1 to A.13 were marked. On the side of the defendants, D.Ws.1 to 3 were examined and Exs.B.1 to B.29 were marked.
9. Ultimately, the trial Court partly decreed the suit in respect of item Nos.2 and 3 of the 'A' Scheduled property mandating that 1/4th share shall be allotted to plaintiff in respect of those items only and in respect of the 'B' Scheduled property, the suit was dismissed.
10. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court these two appeals emerged.
11. The Appeal Suit in A.S.No.748 of 1992 is focussed by the plaintiff for not granting the relief in respect of the remaining items, viz. the 1st and 4th items of the suit 'A' Scheduled properties on various grounds.
12. The Appeal Suit in A.S.No.350 of 1994 is focussed by the 1st defendant challenging the partition granting 1/4th share in the items 2 and 3 of the 'A' Scheduled property, in favour of the plaintiff.
13. The nub and essence of the arguments of the learned Counsel for the plaintiff spotlighting the grounds of appeal, could tersely and briefly be set out thus:
(a) The trial Court fell into error in not giving full weightage to Exs.A.6 and A.7 - the requisition for convening the panchayat and also the minutes of the panchayat; these documents would exemplify and demonstrate, express and expatiate that the parties concerned amicably settled the matter before the Panchayatars, who were disinterested personalities in the locality concerned. However, the third defendant - Alamelu Ammal, the mother of the plaintiff and defendants 1, 2 and 4 to 7, had turned turtle by having a volte face and filed the written statement contending that she did not agree for partition by putting her properties in items 2 and 3 of the 'A' Scheduled property, in view of the sale deeds Exs.B.4 and B.11 standing in her name.
(b) The Court below even though correctly held that items 2 and 3 of the 'A' Scheduled property should be the subject matter of partition on the strength of Ex.A.6 and A7, it failed to grant any relief in respect of items 1 and 4 of the 'A' Scheduled property.
(c) The concept 'joint family' was not considered properly by the trial Court. During the existence and subsistence of joint family, if any property is acquired by one of the co-sharers, that should be made available for partition among all the co-sharers. But, the Court below failed to take note of that point and to allot his share in items 1 and 4 of the 'A' Scheduled property.
(d) The trial Court should have mandated the defendants to produce the 'B' Scheduled movable properties, but it failed to do so.
(e) The plaintiff in order to save his own skin from the debtors executed the namkevaste release deed - Ex.B.1, which should not have been given undue importance by the trial Court. But, the trial Court took it for gospel truth and held as though the plaintiff had lost his right over the said item.
(f) Notwithstanding the fact that the 4th item, apparently, stands in the name of the first defendant, it was purchased from out of the income of the joint family nucleus. Accordingly, the learned Counsel prays for allowing the appeal in A.S.No.748 of 1992 and for granting share in favour of the plaintiff in respect of the 1st and 4th items of the 'A' Scheduled properties also.
14. The learned Counsel for the first defendant would pilot his arguments, inviting the attention of this Court to various portions of the evidence, thusly:
(a) The trial Court committed gross error in ignoring the fact that the third defendant had acquired absolute right over the items 2 and 3 of the 'A' Scheduled properties as per Ex.B.4 and Ex.B.11.
(b) By virtue of Section 14 of the Hindu Succession Act, 1956, the third defendant's right over the items 2 and 3 of the 'A' Scheduled properties was beyond challenge. But, the trial Court simply was carried away by her alleged commitment before the Panchayat as though those properties would be made available for partition by her.
(c) The third defendant also executed the settlement deeds, pentende lite one in favour of the first defendant and another in favour of the second defendant settling items 3 and 2 of the 'A' Scheduled properties respectively.
(d) The plaintiff is not at all entitled to any share in the suit properties. Accordingly, he prays for the dismissal of the original suit itself, by allowing A.S.No.350 of 1994.
15. To put it pithily and precisely, the appellant in A.S.No.748 of 1992 opposes A.S.No.350 of 1994 and the appellants in A.S.No.350 of 1994 opposes the appeal in A.S.No.748 of 1992. No other party participated in these appeals.
16. The points for consideration are:
(i) Whether the trial Court was justified in holding that the release deed
- Ex.B.1 was validly executed by the plaintiff in favour of the other co-sharers and thereafter, the first defendant acquired absolute right by virtue of his purchase of the shares of the shares of his father and his brother - the second defendant in the said item.
(ii) Whether the trial Court justly decided that the 4th item of the 'A' Scheduled property was the self acquired property of the first defendant and he out of his own income purchased it and not from out of the income derived from the joint family nucleus?
(iii) Whether the finding of the trial Court that the third defendant purchased as per Exs.B.4 and B.11, the items 2 and 3 of the 'A' Scheduled properties from out of her own income, is correct?.
(iv) Whether there is any perversity or illegality in the judgment and decree of the trial Court? and
(v) Whether the appeals have to be allowed or dismissed?
17. All these points are taken together for discussion as they are inter- linked and inter-woven, inter-connected and entwined with one another.
18. Indubitable and indisputable, or at least the undeniable facts could be portrayed thus:
One Kanakaraj Chettiar died leaving behind his three sons namely the Plaintiff - K. Subramaniam, the first defendant - K.Dhasaradan Chettiar, the second defendant - K. Dhandapani Chettiar, and the third defendant his widow and defendants 4 to 7 his daughters.
19. The plaintiff narrated his case in the plaint by laying the faction with a trowel in the plaint that all the 4th items of properties are the joint family properties; that he is entitled to 1/4th share, because on the death of Kanagaraj Chettiar, the plaintiff and the defendants 1 to 3 are entitled to 1/4th share each. Whereas the defendants 1 to 3 as set out supra filed their respective written statements contesting the matter.
20. The Plaintiff's main contention was that as per Ex.A.6, a requisition was given for convening a panchayat and in commensurate with that, the panchayat was convened whereat a consensus was arrived among the parties voluntarily and volitionally without any coercion and Ex.A.7 was prepared which constitutes the minutes bearing the signatures of the parties concerned and it is binding on them.
21. The learned counsel for the plaintiff would also add one more plea that the Doctrine of Estoppel could be ushered in; having expressed acceptance before the panchayat, none of the participants should be allowed to veer round and take a plea quite antithetical to what they committed themselves before the panchayat. However, according to him, the trial Court did not give any importance to Exs.A.6 and A.7, but simply decreed the suit partly.
22. In support of his contention, the learned Counsel for the plaintiff cited the decision of the Hon'ble Apex Court in B.L.Sreedhar v. K.M. Munireddy reported in AIR 2003 Supreme Court 578. Certain excerpts from it, would run thus:
"23. 'Estoppe', commeth of a French word 'estoupe', from whence the English word stopped, and it is called an estoppel, or conclusion, because a man's owne act or acceptance stoppeth or closeth up his mouth to allege or plead the truth; and Littleton's case proveth this description" [Co Litt 352a, where it is said estoppel is of three kinds i.e. matter (1) of record, (2) in writing i.e. semble, by deed, (3) in Paiis]. To the same effect is the definition in Termes de la Ley. (See Stroud's Judicial Dictionary, 4th Edn., p. 943.)
24. "An estoppel," says Lord Coke, "is where a man is concluded by his own act or acceptance to say the truth". Mr Smith, in his notes to Duchess of Kingston case characterizes this definition as a little startling but it nevertheless gives a good idea of what it is, by no means easy to include within the limits of a definition. (1 Smith LC 760)
25. Though estoppel is described as a mere rule of evidence, it may have the effect of creating substantive rights as against the person estopped. An estoppel, which enables a party as against another party to claim a right of property which in fact he does not possess is described as estoppel by negligence or by conduct or by representation or by holding out ostensible authority.
26. Estoppel, then, may itself be the foundation of a right as against the person estopped, and indeed, if it were not so, it is difficult to see what protection the principle of estoppel can afford to the person by whom it may be invoked or what disability it can create in the person against whom it operates in cases affecting rights. Where rights are involved, estoppel may with equal justification be described both as a rule of evidence and as a rule creating or defeating rights. It would be useful to refer in this connection to the case of Depuru Veeraraghava Reddi v. Depuru Kamalamma (AIR 1951 Madras 403) where Vishwanatha Sastri, J. observed: (AIR p. 405, para 7) "An Estoppel though a branch of the law of evidence is also capable of being viewed as a substantive rule of law insofar as it helps to create or defeat rights which would not exist and be taken away but for that doctrine."
27. Of course, an estoppel cannot have the effect of conferring upon a person a legal status expressly denied to him by a statute. But where such is not the case a right may be claimed as having come into existence on the basis of estoppel and it is capable of being enforced or defended as against the person precluded from denying it."
23. A plain reading of Ex.A.7 would display and demonstrate that there are various clauses under which the parties had undertaken to carry out certain measures. It is not a mere minutes containing the recording of past events. Ex.A7 does not refer to any partition which became a fait accompli, but the parties had expressed their undertaking to carry out certain measures.
24. At this juncture, the crucial question of law is, as in what manner the principle of estoppel could be ushered in and how Ex.A.7 could be taken as a binding document on all the parties and that too when it is not even a registered document supported by quid pro quo. No doubt the defendants impugning and challenging the genuineness of Ex.A.7 would contend as though in blank papers the signatures of the parties concerned were obtained and subsequently they were converted into Panchayat minutes etc. Before my mind's eye the legal maxim looms large that witnesses might lie but the circumstances would not do so. The manner and method in which the clauses are found written would ensure the genuineness. In fact, on the plaintiff's side, one of the panchayatar was examined and he deposed about the genuineness and truthfulness of Exs.A6 and A7. The panchayatars, indubitably belonged to Sowrastra community and the parties to the document did choose them for conducting panchayat concerning their property dispute. The defendants did not dispute the signatures in Ex.A.7 as well as in Ex.A.6 - the requisition to convene the panchayat.
25. My mind is reminiscent and redolent of the following adage:
An educated person after signing presumably in a blank paper cannot simply disown the consequences of his act by pointing out as though he signed in blank paper unwillingly or unknowingly.
26. Had really in blank paper such signatures been obtained, it is not known as to how even after some time, the defendants did not raise their little finger as against such emergence of the said Exs.A6 and A7. Absolutely, there is no such circumstances supporting the plea of the defendants that they signed only in blank papers. The third defendant did not figure as a witness to speak against the genuineness of Exs.A6 and A7.
27. At this juncture, I would like to refer to the following decisions of the Hon'ble Apex Court:
(i) (1999) 3 Supreme Court Cases 573 - Vidhyadhar v. Manikrao and another.
Certain excerpt from it would run thus:
"17. Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh case. The Allahabad High Court in Arjun Singh v. Virendra Nath held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witness-box.
18. Defendant 1 himself was not a party to the transaction of sale between Defendant 2 and the plaintiff. He himself had no personal knowledge of the terms settled between Defendant 2 and the plaintiff. The transaction was not settled in his presence nor was any payment made in his presence. Nor, for that matter, was he a scribe or marginal witness of that sale deed. Could, in this situation, Defendant 1 have raised a plea as to the validity of the sale deed on the ground of inadequacy of consideration or part-payment thereof? Defendant 2 alone, who was the executant of the sale deed, could have raised an objection as to the validity of the sale deed on the ground that it was without consideration or that the consideration paid to him was highly inadequate. But he, as pointed out earlier, admitted the claim of the plaintiff whose claim in the suit was based on the sale deed, executed by Defendant 2 in his favour. The property having been transferred to him, the plaintiff became entitled to all the reliefs which could have been claimed by Defendant 2 against Defendant 1 including redemption of the mortgaged property.
...
21. The above decisions appear to be based on the principle that a person in his capacity as a defendant can raise any legitimate plea available to him under law to defeat the suit of the plaintiff. This would also include the plea that the sale deed by which the title to the property was intended to be conveyed to the plaintiff was void or fictitious or, for that matter, collusive and not intended to be acted upon. Thus, the whole question would depend upon the pleadings of the parties, the nature of the suit, the nature of the deed, the evidence led by the parties in the suit and other attending circumstances. For example, in a landlord-tenant matter where the landlord is possessed of many properties and cannot possibly seek eviction of his tenant for bona fide need from one of the properties, the land lord may ostensibly transfer that property to a person who is not possessed of any other property so that that person, namely, the transferee, may institute eviction proceedings on the ground of his genuine need and thus evict the tenant who could not have been otherwise evicted. In this situation, the deed by which the property was intended to be transferred, would be a collusive deed representing a sham transaction which was never intended to be acted upon. It would be open to the tenant in his capacity as a defendant to assert, plead and prove that the deed was fictitious and collusive in nature. We, therefore, cannot subscribe to the view expressed by the Privy Council in the case of Lal Achal Ram in the broad terms in which it is expressed but do approve the law laid down by the Calcutta, Patna and Orissa High Courts as pointed out above.
22. In the instant case, the property which was mortgaged in favour of Defendant 1 was transferred by Defendant 2, who was the owner of the property, to the plaintiff. This transfer does not, in any way, affect the rights of Defendant 1 who was the mortgagee and the mortgage in his favour, in spite of the transfer, subsisted. When the present suit for redemption was filed by the plaintiff, Defendant 2, as pointed out above, admitted the claim of the plaintiff by filing a one-sentence written statement that the claim of the plaintiff was admitted. When the plaintiff entered the witness-box, Defendant 2 did not cross-examine him. He did not put it to the plaintiff that the entire amount of consideration had not been paid by him. Defendant 1 alone raised the question of validity of the sale deed in favour of the plaintiff by pleading that it was a fictitious transaction as the sale consideration had not been paid to Defendant 2 in its entirety. Having pleaded these facts and having raised the question relating to the validity of the sale deed on the ground that the amount of consideration had not been paid, Defendant 2 (sic 1) did not, in support of his case, enter the witness-box. Instead, he deputed his brother to appear as a witness in the case. He did enter the witness-box but could not prove that the sale consideration had not been paid to Defendant 2.
23. The findings of fact concurrently recorded by the trial Court as also by the lower appellate court could not have been legally upset by the High Court in a second appeal under Section 100 CPC unless it was shown that the findings were perverse, being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion."
(ii) (2010) 10 Supreme Court cases 512 - Man Kaur (Dead) by Lrs. V. Hartar Singh Sangha, certain excerpts from its would run thus:
"14. In Vidhyadhar v. Manikrao this Court reiterated the following well- recognised legal position: (SCC pp. 583-84, para 17) "17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct?."
15. We may next refer to two decisions of this Court which considered the evidentiary value of the depositions of the attorney-holders. This Court in Janki Vashdeo Bhojwani v. Indusind Bank Ltd. held as follows: (SCC pp. 222-24, paras 13, 17-18 & 21) "13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to 'act' on behalf of the principal. In our view the word 'acts' employed in Order 3 Rules 1 and 2 CPC confines only to in respect of 'acts' done by the power-of- attorney holder in exercise of power granted by the instrument. The term 'acts' would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has rendered some 'acts' in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.
* * *
17. ? In Shambhu Dutt Shastri v. State of Rajasthan it was held that a general power-of-attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in the witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power-of-attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.
18. The aforesaid judgment was quoted with approval in Ram Prasad v. Hari Narain. It was held that the word 'acts' used in Rule 2 of Order 3 CPC does not include the act of power-of-attorney holder to appear as a witness on behalf of a party. Power-of-attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but be cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of CPC. * * *
21. We hold that the view taken by the Rajasthan High Court in Shambhu Dutt Shastri followed and reiterated in Ram Prasad is the correct view." (emphasis supplied)
18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:
...
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his "state of mind" or "conduct", normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his "bona fide" need and a purchaser seeking specific performance who has to show his "readiness and willingness" fall under this category. There is however a recognised exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or "readiness and willingness". Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad."
28. The crucial question arises for consideration is as to how far Ex.A.7 could be pressed into service so as to fasten the defendants with legal liability. The answer is at once clear that Ex.A.7 is having apparently and obviously, axiomatically and legally no legal binding effect. At the most, it could only be taken as the one in record of the expression of the parties concerned, and it cannot be dignified to the level of a legally enforceable contract. Ex.A.7, ignoring Section 17 of the Indian Evidence Act cannot be termed as a family arrangement as tried to be canvassed by the learned Counsel for the plaintiff.
29. I call up and recollect the decision of the Hon'ble Apex Court in Tek Bahadur v. Debi Singh reported in AIR 1966 Supreme Court 292. Certain excerpts from it, would run thus:
"12. Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only 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 what rights in what properties the parties possess. The document Exhibit 3 does not appear to be of such a nature. It merely records the statements which the three brothers made, each referring to others as brothers and referring to the properties as joint property. In fact the appellant, in his statement, referred to respondents 1 and 2 as two brother co-partners; and the last paragraph said:
"We, the three brothers, having agreed over the above statement and having made our own statements in the presence of the Panch called by us, and signed and kept a copy of each of this document as proof of it."
The document would serve the purpose of proof or evidence of what had been decided between the brothers. It was not the basis of their rights in any form over the property which each brother had agreed to enjoy to the exclusion of the others. In substance it records what had already been decided by the parties. We may mention that the appellant and respondent No. 1, even under this arrangement, were to enjoy the property in suit jointly and it is this agreement of theirs at the time which has later given rise to the present litigation between the two. The document, to our mind, is nothing but a memorandum of what had taken place and, therefore, is not a document which would require compulsory registration under Section 17 of the Registration Act.
13. Learned counsel for the appellant laid great stress on what this Court said in Sabu Madho Das v. Mukhand Ram, 1955-2 SCR 22 at pp. 42-43: ((S) AIR 1955 SC 481 at pp. 490-491). Reliance is placed on the following in support of the contention that the brothers, having no right in the property purchased by the mother's money, could not have legally entered into a family arrangement. The observations are:
"It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognizing the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary."
These observations do not mean that some title must exist as a fact in the persons entering into a family arrangement. They simply mean that it is to be assumed that the parties to the arrangement had an antecedent title of some sort and that the agreement clinches and defines what that title is. Similar assumption can be made in the present case even on the basis that the property was purchased with the moneys of the mother. How they got some antecedent title in the property is not for us to determine. The plaintiff (respondent No. 1) alleged that the property belonged to the family. The appellant did not allege that it could not have belonged to the family as it was purchased with the moneys of the mother but claimed that it was his self-acquired property. In the circumstances, it can be assumed that the parties recognized the existence of such antecedent title to the parties to the property as was recognized by them under the family arrangement. It is not so much an actually existing right as a claim to such a right that matters.
14. The observations further indicate that by family arrangement no title passes from one in whom it resides to the person receiving it and as no title passes no conveyance is necessary.
15. In support of the contention that the agreement Exhibit 3 requires registration, reliance is placed on what was said further in Madho Das's case, 1995-1 SCR 22: ((S) AIR 1955 SC 481), which reads:
"But, in our opinion, the principle can be carried further....we have no hesitation in taking the next step (fraud apart) and upholding an arrangement under which one set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges, that the sole and absolute title to all the properties resides in only one of their number (provided he or she had claimed the whole and made such an assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration is present.
The legal position in such a case would be this. The arrangement or compromise would set out and define that the title claimed by A to all the properties in dispute was his absolute title as claimed and asserted by him and that it had always resided in him. Next, it would effect a transfer by A to B, C and D (the other members to the arrangement) of properties X, Y and Z; and thereafter B, C and D would hold their respective titles under the title derived from A. But in that event, the formalities of law about the passing of title by transfer would have to be observed, and now either registration or twelve years adverse possession would be necessary. This Court extended the principle behind the family arrangement to other cases which were not covered by the earlier observations. It is urged, on the basis of these further observations, that registration is necessary for a document recording a family arrangement regarding properties to which the parties had no prior title. These observations apply to a case where one of the parties claimed the entire property and such claim was admitted by the others and the others obtained property from that recognized owner by way of gift or by way of conveyance. In the context of the document stating these facts this Court held the real position to be that the persons obtaining the property from the sole owner derived title to the property from the recognized sole owner and such a document would have to satisfy the various formalities of law about the passing of title by transfer. The facts of the present case arc different. The agreement, Ex. 3, does not recognize that any of the brothers had the sole and absolute title to any of the properties dealt with by them. On the other hand the recitals in the document indicate that the three brothers considered the property to be joint property of all of them. The fact that in the present proceedings the evidence shows that the landed property at Mawprem was purchased from the moneys of the mother does not affect the nature of the arrangement arrived at between the three brothers."
A poring over of the above excerpts and for that matter, the whole of the judgment of the Hon'ble Apex Court cited supra, would glaringly and appositely show that Ex.A7 can never be treated as a family arrangement and no more elaboration in this regard is required.
30. There is nothing to indicate that because of D3's commitment as though the items 2 and 3 of the 'A' Scheduled properties could be the subject matter of partition, she was precluded from contending that those properties should be treated as per the absolute properties and that she had the right to deal with them as she liked. Hence, I am of the considered view that based on only Ex.A.7, the trial Court was not proper in holding that D.3 could claim her exclusive right over her properties and that she allegedly admitted that the properties in her name are only the joint family properties.
31. The trial Court summarized in paragraph 6 of its judgment the facts that the deceased Kanagaraj Chettiar, the husband of the third defendant and the father of plaintiff and the defendants 1, 2 and 4 to 7, got a house, viz. the first item of the 'A' Scheduled properties towards his share in the partition emerged among himself and his brothers during the year 1952 and that the said Kanagaraj owned a grocery shop and derived income out of it over which there is no controversy.
32. The trial Court in paragraph Nos.7 and 8 of its judgment epitomized the oral and documentary evidence adduced before the Court and held that the plaintiff could not in any manner claim right over the 1st item of the suit 'A' Scheduled property after relinquishing his right as per Ex.B.1, the release deed dated 15.02.1973, in favour of his father and his two brothers, namely D1 and D2. At no point of time, the plaintiff earlier to the filing of the suit, raised his little finger to get Ex.B.1 cancelled. The trial Court appropriately cited reasons for not believing the repudiating version of the plaintiff in respect of the operable nature of Ex.B.1 as against him.
33. A poring over and perusal of Ex.B.4 unambiguously and unequivocally, pellucidly and palpably, evince and evidence that as per Ex.B.4, the third defendant purportedly purchased item No.2 in her name and it was her husband Kanagaraj Chettiar, who paid the sale consideration, which is indicative of the fact that it is not as though D3 from out of her own savings purchased the said item No.2 of the 'A' Scheduled properties.
34. The contention of the plaintiff that D3 had no independent source of income and that the said property was purchased out of the income of the joint family nucleus, is found buttressed by the endorsement made by the Sub-Registrar in the sale deed Ex.B.4 and this aspect, the lower Court failed to take note of.
35. The endorsement made by the Sub-Registrar is not an empty formality. The learned counsel for the first defendant would try to expound and explain away by unconvincingly submitted as though the said endorsement made by the Sub Registrar should be taken as the one by way of recording as to who physically handed over the money i.e., the sale consideration at the time of registration of the sale deed and that endorsement cannot be taken as the one evidencing that the consideration was passed from Kanagaraj chettiar from out of the income derived by him from the joint family nucleus. Such an argument, in my considered view, is a farfetched one, and proves to be illogical on being tested at the anvil of the "Reductio ad absurdem" theory. For instance, if a vendee goes to the Sub-Registrar's Office along with his servant and if the servant by standing by his side hands over the currency notes, no Sub-Registrar with his self would record a statement that the servant of the vendee paid the sale consideration. Wherefore, it is at once clear that when a public official like the Sub-Registrar makes an endorsement relating to payment of sale consideration, it is presumed that he ascertained from the persons available before him as to who actually paid the sale consideration and thereafter, alone he recorded the statement. The Sub-Registrar is not expected to mechanically endorse on the sale deed as to who physically handed over the money to the vendor.
36. In this case, it is quite obvious and axiomatic that D3's husband Kanagaraj Chettiar paid the sale consideration under Ex.B.4 and in such a case, it cannot be contended that there is no iota or shred, miniscule or molecular extent of evidence to establish and prove that the consideration paid for purchasing the second item of property was not from the income derived from the undivided joint family property.
37. This Court being the last Court of facts in this case, can very well re-appreciate the evidence and come to its own conclusion. Accordingly, if viewed, it is clear that the plaintiff was right in claiming share in item No.2 of the suit 'A' Scheduled property. But, the trial Court simply based on some presumptions proceeded to hold as though she was the absolute owner of the II item of the suit property. No doubt, Section 14 of the Hindu Succession Act would highlight that if a property is acquired by a female in her own name, then, it is deemed to be her own property and on that there should be no clog on her ownership. But, it is a rebuttable presumption and that one should not lose sight of it. Once it is proved that the property purchased in the name of a female, was from out of the income of the joint family property, then there is no embargo in law that it should not be proved before the Court that the property stricto-sensu, is the joint family property. As such, in my considered view, item No.2 of the 'A' Scheduled suit property should be made available for partition as mandated by the lower Court and no interference is warranted in that aspect.
38. Relating to item No.3 of the 'A' Scheduled property is concerned, the third defendant who claimed absolute ownership as per Ex.B.11, which contains certain peculiar clauses to the effect that the vendors incurred mortgage debt to the tune of Rs.5,000/- (Rupees Five Thousand only); that they sold the item No.3 of the 'A' Scheduled property in favour of the third defendant with the stipulation; that the vendee should pay a sum of Rs.3,000/- (Rupees Three Thousand only) towards the said mortgagee concerned and that itself would constitute sale consideration. Ex-facie and prima-facie, there is nothing to indicate and convey that as to whether any money was paid under the sale deed at all. However, D3 would claim that it was she who discharged the mortgage debt. In these circumstances, there is nothing to indicate that the plaintiff rebutted the presumption contemplated under section 14 of the Hindu Succession Act. In the absence of any evidence that the sale consideration was paid from out of the income derived from the joint family nucleus, the presumption is certainly in favour of D3 in whose name the sale deed stands. But, the trial Court failed to consider this aspect. Even if there is no proof of discharge of the mortgage debt still that would strengthen the third defendant's case that at any rate no money of the joint family was paid towards the purchase of said item No.3. In such a case, the third defendant's absolute title over said item No.3 is beyond doubt.
39. In support of D3's contention, the decision of the Hon'ble Apex Court in Gangamma v. G. Nagarathnamma reported in (2009) 15 Supreme Court Cases 756 is cited. An excerpt from it, would run thus:
"9. Section 14(1) of the Hindu Succession Act, 1956 (hereinafter referred to as "the Act") has a bearing on the issue. As the properties at Items 1 and 2 are recorded in the name of the appellant, in the absence of any evidence to the contrary in this case, the appellant by operation of Section 14(1) of the said Act is the full owner of those properties. In the facts of this case discussed above it has to be accepted that those properties are not joint properties but the appellant is the sole owner of those properties.
10. The principle laid down in Section 14(1) of the said Act has been read by courts in a very comprehensive manner since the said Act overrides the old law on stridhana in respect of properties possessed by a female Hindu. In Eramma v. Veerupana, AIR 1966 SC 1879, Ramaswami, J. speaking for the Court held that Section 14(1) of the Act contemplates that a female Hindu, who in the absence of the said provision would have been a limited owner of the property, will now become full owner by virtue of the said section. Such female Hindu will have all powers of disposition to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder.
11. Again, in Punithavalli Ammal v. Minor Ramalingam, (1970) 1 SCC 570, a three- Judge Bench of this Court reiterated the position that the said Act has overriding effect and confers full ownership on Hindu female and made it very clear that rights conferred under Section 14(1) to a Hindu female are not restricted or limited by any rule of Hindu Law. In the opinion of the Court in Punithavalli the said section makes a clear departure from all texts of Hindu laws and rules and those texts and rules cannot be used for circumventing the plain meaning of Section 14(1) of the said Act.
12. In Seth Badri Prasad v. Kanso Devi, (1969) 2 SCC 586, the learned Judges held that the word "acquired" in sub-section (1) of Section 14 of the said Act has to be given the widest possible meaning (see paras 6 and 7). In V. Tulasamma v. Sesha Reddy, (1977) 3 SCC 99, Bhagwati, J. speaking for the Court held that sub-section (1) of Section 14 is very large in its amplitude and covers every kind of acquisition of property by a female Hindu. Regardless of whether such property was possessed by a female Hindu on the date of commencement of the Act or was subsequently acquired or possessed, she would be the full owner of the property.
13. In view of such consistent views taken by this Court on the interpretation of Section 14, we hold that Section 14(1) of the said Act would apply in respect of the properties which stand in the name of the appellant and the appellant would be the full owner of those properties."
(underlined by me)
40. The dictum of the aforesaid Hon'ble Apex Court's Judgment could precisely be located at para No.9 of the said judgment, wherein the Hon'ble Apex Court categorically and clearly unambiguously and unequivocally laid down the law, without leaving any scope for doubt, by using the following words:
"in the absence of any evidence to the contrary in this case, the appellant by operation of Section 14(1) of the said Act is the full owner of those properties."
(emphasise supplied) The above excerpt clearly indicates that the presumption that the property standing in the name of female belongs to her absolutely, is a rebuttable presumption. Section 14(1) of the Hindu Succession Act, 1956, contemplates various types of cases. Here, the learned counsel for D1 would put forth a highly generalised statement that by virtue of Section 14(1) of the Hindu Succession Act, 1956, if the property stands in the name of a female, then it should be taken as her absolute property and no one should be permitted to adduce evidence to prove that the property was purchased in her name from out of the income of the joint family so as to treat it as a family property.
41. The judgment cited by him as highlighted supra is not in support of his proposition put by him. I would like to put it precisely, the legal proposition that the onus probandi is on the party concerned, who pleads that the property was purchased from out of the joint family nucleus in the name of the female and in the absence of any such evidence, it shall be presumed that the said lady is the full owner of the property. A precedent should be cited only in consimili casu and should not be applied to a case of different kettle of fish.
42. As such, the trial Court committed an error in simply putting the burden on the defendants to prove that D3 actually purchased item No.3 from out of her own income. The burden is on the plaintiff to prove that the consideration flowed from the joint family nucleus as the plaintiff had succeeded in proving in respect of the 2nd item of suit 'A' Scheduled property.
43. Hence, I am of the view that interference in the judgment of the trial Court warrants in respect of the third item only is concerned and it cannot be the subject matter of partition. Accordingly, item No.3 of 'A' Scheduled Property shall stand deleted from the properties to be partitioned.
44. In the result, the points are answered to the effect that the trial Court was justified in holding that the release deed - Ex.B.1 was validly executed by plaintiff in favour of the other co-sharers and thereafter, D1 acquired absolute right by virtue of his purchase of the shares of his father and his brother - D2 in the said item; the trial Court justly decided that the 4th item of the 'A' Scheduled property was the self-acquired property of D1 and he out of his own income purchased it and not from out of the income derived from the joint family nucleus; the finding of the trial Court that D3 purchased as per Exs.B.4 the items 2 of the 'A' Scheduled properties from out of her own income is not correct, but the finding of the trial Court that D3 purchased as per Exs.B.11 the items 3 of the 'A' Scheduled properties from out of her own income is correct and the appeal in A.S.No.748 of 1992 is liable to be dismissed and the appeal in A.S.No.350 of 1994 is liable to be partly allowed.
45. On balance, the Appeal Suit in A.S.No.748 of 1992 is dismissed, however, the Appeal Suit in A.S.No.350 of 1994 is partly allowed to the extent of deleting item No.3 from the properties to be partitioned. However, there is no order as to costs. Consequently, connected C.M.P. No.6851 of 1994 in A.S.No.350 of 1994 is closed.
sj To
1.The Subordinate Judge, Dindigul.