Madras High Court
G.Madhava Rao (Deceased) vs M.Rukmani Bai on 14 September, 2012
Author: G. Rajasuria
Bench: G. Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.09.2012 Coram: THE HONOURABLE MR.JUSTICE G. RAJASURIA A.S.No.310 of 2010 1. G.Madhava Rao (deceased) 2. M.Babu Rao 3. Kala @ Poornima Bai 4. M.Karthik Rao 5. M.Yashwanth Rao 6. M.Barath Rao 7. K.G.Megala Bai 8. L.Kasthuri Bai 9. V.Padmavathy Bai 10.B.Parvathi Bai .. Appellants (Appellants 2 to 10 brought on record as LRS of deceased sole appellant vide order of Court dated 27.08.2012) vs. 1. M.Rukmani Bai 2. N.J.Thulasi Bai 3. R.Sulochana Bai .. Respondents This Appeal is focussed as against the judgment and decree dated 23.10.2009 made in O.S.3902 of 2007 on the file of Fast Track Court No.IV, Chennai 1. For appellants : Mr.R.G.Annamalai For Respondents : Mr.V.R.Thangavelu JUDGMENT
This appeal is focussed at the instance of the original defendant animadverting upon the judgment and decree dated 23.10.2009 passed in O.S.3902 of 2007 on the file of Fast Track Court No.IV, Chennai 1
2. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
3. Compendiously and concisely, the germane facts absolutely necessary for the disposal of this Appeal would run thus:
(a) The plaintiffs filed the suit seeking the following reliefs:
"(i) For partition of the schedule mentioned property by metes and bounds into four shares and allot three shares to the plaintiffs;
(ii) for mesne profits from the rental income of the schedule mentioned property from the year 1980 till date of partition by this Hon'ble Court; and
(iii) For costs." (Extracted as such) as against the original defendant/Madhava Rao, their brother, on the main ground that the suit property originally belonged to the parties' father, namely Govinda Rao, vide the sale deed dated 27.04.1947. The said Govinda Rao died during the year 1980, leaving behind his wife and his four children namely, one son- the defendant and three daughters - the plaintiffs 1 to 3. All the daughters got married during the life time of their father, namely Govinda Rao. Their mother died during the year 1984. As such, they prayed for partition and allotment of 1/4th share in favour of each of the plaintiffs and the defendant.
(b) The defendant resisted the suit on various grounds including the one that the plaintiffs during the year 1989, executed a notary attested affidavit, Ex.B34 relinquishing and releasing their right over the suit property and that too for the consideration received by them, so to say, the first plaintiff received a sum of Rs.15,000/- and the second and third plaintiffs received Rs.10,000/- each, from the defendant; that the defendant had been enjoying the suit property as the absolute owner by getting effected mutation in the property tax register and also paying the tax and mortgaging the property also as many as five times as per Exs.B6 to B10 after the emergence of Ex.B34. Even before such release, the defendant mortgaged the suit property. Those mortgages were all effected purely for the purpose of meeting the family expenses, so to say, for providing facilities to the plaintiffs and in that connection only expenditures were incurred by raising the mortgage debts and those mortgage debts were discharged only by the defendant. Over and above that, debts had been incurred for arranging the marriages of the plaintiffs and in that connection also those debts were incurred and subsequently discharged by the defendant from out of his income which he earned by doing business in polishing jewellery.
Accordingly, he would pray for the dismissal of the suit.
4. During trial, the second plaintiff-Thulasi Bai examined herself as P.W.1 and Exs.A1 to A6 were marked. The defendant examined himself as D.W.1. and Exs.B1 to B35 were marked.
5. The trial Court passed the preliminary decree, allotting 1/4th share in favour of each of the plaintiffs and the defendant.
6. Being aggrieved by and dissatisfied with the judgment and the preliminary decree of the trial Court, this appeal is focussed on various grounds.
7. The learned counsel for the appellant/defendant would pyramid his arguments, which could tersely and briefly be set out thus:
(a) The plaintiffs on receipt of the consideration as found set out in the written statement, relinquished and released their right over the suit property during the year 1989 as evidenced by Ex.B34. Simply because the said affidavit Ex.B34 was not registered, it cannot be taken that the plaintiffs retained their right over the suit property. To the knowledge of the plaintiffs, the defendant got the entries in the property tax register mutated in his favour and they did not object to it. Over and above that, the mortgages as per Exs.B6 to B10 emerged subsequently at the instance of the defendant and at that time also there were no objections forthcoming from the plaintiffs.
(b) Ever since 19m89, there had been no claim over the suit property, so to say, for 17 long years, till the plaintiffs issued their lawyer's notice, vide Ex.A5 dated 01.07.2006.
(c) The defendant from out of his own income, raised additional construction in the suit property. As such absolutely there is no basis for ordering partition and accordingly the judgment and decree of the trial Court have to be set aside.
8. Per contra, in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the appellant/defendant, the learned counsel for the respondents/plaintiffs would advance his arguments, which could concisely and precisely be set out thus:
(a) Ex.B34 could by no stretch of imagination be labelled or described as a release deed. The law has got well settled that a co-owner or a co-sharer, could release his right over the immovable property only by a registered document. The recitals in Ex.B34 itself would show that allegedly they agreed to release the right at a future date and it had not been recited therein that they by Ex.B34 itself released or relinquished their right over the suit property. Even if that be so, it would be bad for want of registration. As such, viewing Ex.B34 from any angle, it cannot be construed as a release deed.
(b) Because of the cordial relationship between the plaintiffs and the defendant, they tolerated the postponement of the partition at the instance of the defendant.
(c) The deposition of D.W.1 during cross examination would amply support the case of the plaintiffs that because of the cordinal relationship alone, the partition got postponed and that it does not mean that the plaintiffs relinquished their right over the suit property.
(d) During the life time of the father of the parties, the father himself raised construction and the defendant did not raise any construction as alleged by him from out of his own income. The contention of the defendant that he expended money for providing facilities to the plaintiffs, is false.
(e) There is nothing to indicate that any family debts were there and that too in connection with the solemnization of the marriages of the plaintiffs and that such debts were discharged by the defendant.
Accordingly he would pray for the dismissal of the appeal.
9. The points for consideration are as to:
(1) Whether Ex.B34 could be construed as a document legally capable of divesting the right of the plaintiffs over the suit property, which is a house, in favour of the defendant?
(2) Whether the defendant who pleaded ouster proved the same by adducing clinching evidence?
(3) Whether the lower Court committed error in ordering partition as found set out in the preliminary decree?
(4) Whether the valuation of the suit and the Court fee paid thereon by the plaintiffs were in order?
(5) Whether there is any perversity or illegality in the judgment and decree of the lower Court?
10. All these points are taken together for discussion as they are inter linked and inter woven with one another.
11. At the outset itself, I would like to refer to the decisions of the Hon'ble Apex Court, cited on the side of the appellant/defendant:
1. AIR 1991 SC 1972 [Dattatraya alias Prakash and others v. Krishna Rao alias Lala Saheb Baxi through L.Rs., etc.]
2. AIR 1995 SC 1728 [Digambar Adhar Patil v. Devram Girdhar Patil (died) and another]
3. AIR 1997 SC 3767 [Anil Kumar Mitra and others v. Ganendra Nath Mitra and others]
4. AIR 2003 SC 3800(1) [D.S.Lakshmaiah and another v. L.Balasubramanyam and another]
12. A bare perusal of the aforesaid decisions would exemplify and demonstrate that those decisions are in no way helpful to the case of the defendant.
13. The decision of the Hon'ble Apex Court reported in AIR 1991 SC 1972 [Dattatraya alias Prakash and others v. Krishna Rao alias Lala Saheb Baxi through L.Rs., etc.] would highlight the point that the burden is on the co-sharer who pleads that there was no joint possession of the property concerned and that he became the absolute owner of the property. This would highlight the point that, simply because the property might stand in the name of one of the co-sharers in the official records, that would not mean that it is the exclusive property of the individual concerned. Relating to such proposition there could be no quarrel.
14. The decision of the Hon'ble Apex reported in AIR 1995 SC 1728 [Digambar Adhar Patil v. Devram Girdhar Patil (died) and another], would envisage a case of partition. The question arose in that matter was whether the partition could be proved by citing relevant entries in the Record of Rights, maintained in the official course of business. The Hon'ble Apex Court would shed light on the point that there is no necessity that the partition should be effected only by a registered partition deed. As such, relating to such proposition of law as found enunciated in the factual matrix of that case, there could be no doubt.
15. The decision of the Hon'ble Apex Court reported in AIR 1997 SC 3767 [Anil Kumar Mitra and others v. Ganendra Nath Mitra and others], is on the point that once a partition got effected by filing a suit, subsequently another suit would not be maintainable unless re-union among the co-sharers is proved.
16. The Hon'ble Apex Court in AIR 2003 SC 3800(1) [D.S.Lakshmaiah and another v. L.Balasubramanyam and another], would advert to the point that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. Relating to such proposition also there could be no controversy.
17. As such, keeping in mind the dicta as found enunciated in the four decisions cited on the side of the appellant/defendant, the facts and evidence could be analysed.
18. The king pin of the defendant's case is that Ex.B34 would constitute release and that would also connote and denote, demonstrate and display that there was snapping of whatever right the plaintiffs had over the suit property.
19. The learned counsel for the appellant/defendant would advance his arguments, that if really the plaintiffs had no intention of releasing the right over the property, then the question would arise as to why should they execute such an affidavit at all. According to him, the executants, namely the plaintiffs herein, received valuable consideration in commensurate with the value of their shares as it existed at the relevant time. Over and above that, they also released their right in recognition of the fact that their brother/defendant, incurred heavy expenditures in providing facilities to them as per customary practises.
20. Whereas, the learned counsel for the plaintiffs, inviting the attention of this Court to Section 17 of the Registration Act, 1908, would submit that nothing short of a registered release deed could be taken as the one capable of snapping the rights of a particular individual over an immovable property.
21. Trite, the proposition of law is, that unless there is a registered release deed relinquishing the share of an individual, the question of assuming and presuming as though there is relinquishment as per some affidavit would not arise at all.
22. At this juncture, I would like to distinguish and differentiate one important fact. The oral partition is entirely different from expressly releasing one's right over an immovable property. Here it is not the case of any oral partition at all and that should not be forgotten. If at all there is any plea of oral partition, then the matter would have been different; on such eventuality, the revenue records and the property tax records would all be taken into consideration for the purpose of buttressing and fortifying the contention of oral partition. But in this case, it is the specific case of the defendant that the plaintiffs relinquished their right by virtue of they having executed Ex.B34. Certain excerpts from Ex.B34, would run thus:
"..... That the first of us is in possession of the property belong to our father at Old No.13/22 and new No.49, Rettaikuzhi lane, Tondiarpet, Madras - 81 and the second, third and fourth of us intend to release our rights in favour of the first of us and the other three of us have No Objections in such transfer of name on records being effected in favour of the first of us, maintained by the corporation of madras in respect of the said property.
We declare the facts deposed above are true and correct to the best of our knowledge and belief and the purpose of this affidavit is to intimate our intention and our No Objection for the above purpose to the Corporation authorities."
23. A plain reading of the recitals in the affidavit would connote and denote that the plaintiffs no doubt authorised the defendant to get his name incorporated in the property tax register of the Chennai Corporation. My mind is redolent and reminiscent of the maxim:
"Verba generalia generaliter sunt intelligenda General words are to be understood generally, which has to be applied in interpreting Ex.B34 and that too strictly as it involves the valuable right of the female heirs of the deceased original owner Govinda Rao. One cannot lose sight of the words used in the said excerpt, "intend to release rights", which would exemplify that they only adumbrated that at a future date certain things would emerge, whereupon they would release their right. Not to put too find a point on it, there is no smidgeon or iota of evidence to establish and convey that a sum of Rs.15,000/- was paid by the defendant to the first plaintiff and Rs.10,000/- each to the plaintiffs 2 and 3 at the time of getting the affidavit Ex.B34 executed by the plaintiffs, in favour of the defendant. Such contention on the side of the defendant remains only his ipse dixit. There is no gainsaying of the fact that there was no reply given by the defendant to the plaintiffs' lawyer's notice as contained in Ex.A5, despite as evidenced by Ex.A6, he acknowledged the receipt of such notice. No doubt the plaintiffs' lawyer's notice as contained in Ex.A5 emerged only on 01.07.2006, so to say, more than 17 years after the emergence of Ex.B34. The appellant/defendant would submit that the very fact that for 17 years the sisters of the defendant kept quiet would indicate that they had no claim over the suit property at all and that they intended that Ex.B34 itself was sufficient to release their right over the suit property.
24. Whereas, the learned counsel for the plaintiffs by inviting the attention of this Court to the deposition of P.W.1 during cross examination, would develop his argument that there was cordial relationship admittedly between the plaintiffs on the one side and the defendant on the other side and the plaintiffs having had soft corner for the defendant, tolerated the postponement of partition at the request of the defendant, whenever the plaintiffs demanded for the same. There should be clear evidence relating to ouster.
25. I call up and recollect the following decisions relating to ouster.
1. (2007) 6 SCC 59 (P.T.Munichikkanna Reddy and others vs. Revamma and others)
2. 2012 (1) MWN (Civil) 840 [Maria Margarida Sequeria Fernandes and others v. Erasmo Jack de Sequera (dead) through L.Rs.)
26. A plain running of the eye over those precedents would unambiguously and unequivocally highlight and spotlight that the law as it stood now is to the effect that adverse possession cannot be assumed or presumed simply on lapse of certain period of lull. Over and above that, ouster is a serious plea set up by one co-sharer as against the other co-sharer; the co-sharer who asserts ouster is expected to prove it in a fitting manner, otherwise, the valuable right of the other co-sharers would get obliterated. Mere mutation in the property tax register maintained by the Corporation of Madras relating to the suit property based on Ex.B34 by itself, would not confer any right and that too in the absence of any clinching release deed and there is no plea of any oral partition also in this case.
27. The learned counsel for the defendant would submit that mortgages as found evidenced by Exs.B6 to B10, would establish that the plaintiffs kept quiet without challenging the act of the defendant in mortgaging the property subsequent to Ex.B34, for which the learned counsel for the defendant, would convincingly explain and expound by pointing out that the plaintiffs were not at all aware of such mortgages and they were kept in dark and they reposed confidence in their brother, namely the defendant that he would partition the property one day or the other.
28. I recollect the maxim: Ubi jus ibi remedium: Where there is a right there is a remedy.
29. Scarcely could it be denied that once a person is proved to be having a right, that right has to be enforced and it cannot be taken as got extinguished merely by certain pleas. The plaintiffs who are admittedly the sisters of the plaintiffs, and all being the children of the original owner of the suit property, Govinda Rao who died in the year 1980, are Class I heirs as per Hindu Succession Act, 1956. As such, the defendant being one of the Class-I heirs, cannot try to deprive the right of other legal heirs, namely the plaintiffs, who happened to be the daughters of Govinda Rao. Hence, the trial Court properly and appositely recognising their right, held that they are entitled to 1/4th share each in the suit property.
30. There is no jot or pint of evidence exemplifying and establishing that the defendant from out of his income raised additional construction over the suit house. Even for argument's sake it is taken so, that would not confer any additional right on the defendant in view of the settled legal position that the other co-sharers, namely the plaintiffs would be entitled to the amelioration effected by one co-owner without the consent of the others.
31. Relating to valuation is concerned, the learned counsel for the defendant would submit that once the property got mutated in the name of the defendant and admittedly, when the plaintiffs were not in possession as on the date of the filing of the suit property, they ought to have paid ad valorem court fee relating to their shares and filed the suit accordingly. In this connection he would cite the following two decisions:
1. AIR 1952 Madras 539 [Narayanaswami Ayyar v. Kesavan]
2.AIR 1959 Madras 224 [Vuppalla Chinna Venkataramaniah alias Raju v. Vuppalla Peda Venkatramaiah and others]
32. In my view, those two decisions have been cited out of context. The decisions of this Court reported in AIR 1952 Madras 539 [Narayanaswami Ayyar v. Kesavan] is relating to a case, wherein the co-sharer got separated from his other co-sharers and when such was the evidence on record, the Court was justified in holding that merely pleading joint possession would be a well neigh impossibility. But here the factual matrix as discussed supra is entirely different.
33. The decision of this Court reported in AIR 1959 Madras 224 [Vuppalla Chinna Venkataramaniah alias Raju v. Vuppalla Peda Venkatramaiah and others] relates to a partnership and in that connection the said decision emerged, which is having no relevance in the facts and circumstances of this case.
34. The precedents of the Hon'ble Apex Court on this point would clearly demonstrate and indicate that in this factual matrix the possession of the defendant, who is the brother of the plaintiffs, should necessarily be construed as a possession of the plaintiffs. Here it is not a case where the defendant sold the suit property to a third party who is alleged to be in possession, but the defendant himself is in possession and enjoyment of the suit property, even though he might have mortgaged several times in favour of a third party. There is nothing to indicate that the third party got into possession of the suit property and thereby, the concept possession by one co-owner would tantamount to possession by another co-owner, got snapped or became inapplicable. Hence in this view of the matter, the valuation of the suit and court fee paid also cannot be found fault with.
35. The learned counsel for the defendant would stress upon the fact that the defendant incurred debts so as to meet the family expenses relating to the plaintiffs, for which the plaintiffs would gainsay the same. Be that as it may, as of now in this appeal, this Court is concerned only with the shares and not with regard to the family debts etc. If at all there could be any clinching evidence available with the defendant that he discharged any family debts, then only the question of calling upon the plaintiffs to share such debts and burden would arise and those are all matters to be decided during final decree proceedings.
With the above observation I would like to confirm the judgment and preliminary decree of the trial Court. Accordingly, this appeal is dismissed. However, there shall be no order as to costs.
To Fast Track Court No.IV, Chennai 1