Madras High Court
Rajendran vs Anthony Ammal(Deceased) on 21 September, 2015
Author: M.Duraiswamy
Bench: M.Duraiswamy
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 21.09.2015
CORAM
THE HONOURABLE MR.JUSTICE M.DURAISWAMY
S.A.No.28 of 1999
and
C.M.P.No.476 of 1999
1.Rajendran
2.Albhons
3.Maria Santhanam .. Appellants/Appellants 2 to 4
Vs.
Anthony Ammal(deceased) ... Respondent/Respondent/Plaintiff
1.Josephinal
2.Joseph ... Respondents
(Cause title accepted vide
order dated 04.01.1999 in
C.M.No.1921148)
Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code
against the decree and judgment dated 30.06.1998 rendered in A.S.No.27 of
1996 on the file of the Principal Subordinate Judge, Srivilliputtur,
confirming the decree and judgment dated 12.09.1995 rendered in O.S.No.454 of
1994, on the file of the Additional District Munsif of Srivilliputtur.
!For Appellants : Mr.S.Subbiah
^For Respondents : Mr.M.Thirunavukkarasu
for R.1
:JUDGMENT
The above Second Appeal arises against the judgment and decree passed in A.S.No.27 of 1996, on the file of the Principal Subordinate Court, Srivilliputtur confirming the judgment and decree passed in O.S.No.454 of 1994, on the file of the Additional District Munsif Court, Srivilliputtur.
2.The legal representatives of the deceased first respondent have filed the above Second Appeal. The respondents are the legal representatives of the deceased plaintiff. The plaintiff filed the suit in O.S.No.454 of 1994 for declaration and permanent injunction.
3.The brief case of the plaintiff is as follows:
According to the plaintiff, the second defendant is her brother. The first defendant is the wife of Late Chinnappan, who is the brother of the plaintiff and the second defendant. The suit property originally belonged to one Chinnammal who is the mother of the plaintiff and the second defendant and the mother-in-law of the first defendant. The said Chinnammal died intestate leaving behind the plaintiff and the defendants as her legal heirs. After the death of Chinnammal, the suit property was succeeded by the plaintiff and the defendants 1 and 2. In the year 1970, the said Chinnammal executed a settlement deed in favour of the second defendant in respect of the suit property. On 09.11.1970, the second defendant gave the northern portion of the suit property to the plaintiff.
(ii)The second defendant filed a suit in O.S.No.193 of 1975 against the first defendant for declaration in respect of the suit property. The plaintiff was not a party to the said suit. The defendants 1 and 2 compromised the matter and did not prosecute the suit. The compromise decree passed in the said suit is not binding on the plaintiff. The plaintiff came to know about the compromise decree in the year 1979. When the plaintiff explained about the compromise to the defendants, they executed a varthamana letter dated 28.04.1979 stating that the suit property belongs to the plaintiff. Hence, according to the plaintiff, the defendants cannot claim right in respect of the suit property. Thereafter the plaintiff divided the property east-west and leased out the western portion to one Pushparaj on a monthly rent. The plaintiff prescribed title by adverse possession. Since the defendants interfered with her possession, the plaintiff sent a legal notice dated 14.08.1986. The second defendant sent a reply dated 29.081986, admitting the title of the plaintiff. But, subsequently since the defendants tried to interfere with the possession of the plaintiff and claimed title over the property, the plaintiff has filed the suit.
4.The brief case of the first defendant is as follows:
According to the first defendant, the property was not given to the plaintiff under the varthamana letter. The averment that the first defendant tried to interfere with the plaintiff's possession is false. The first defendant has given a proper reply to the notice sent by the plaintiff. The plaintiff has no right or title in respect of the suit property. The property was not leased out to one Pushparaj. The tenant in possession of the property is one Joseph Pushpanathan and not Pushparaj. The property was leased out to the said Joseph Pushpanathan by the first defendant. The first defendant is in possession of the southern portion of the property. The tenant is in possession of the property since 1989, paying the monthly rent to the first defendant. The first defendant also mortgaged the suit property three times under registered mortgage deeds and also discharged the mortgage. According to the first defendant, the property is under mortgage now. The plaintiff and the first defendant are co-sharers and therefore, the suit filed by the plaintiff for permanent injunction is not maintainable. The plaintiff should have filed the suit for partition and not for declaration and injunction. In these circumstances, the first defendant prayed for dismissal of the suit.
5.Before the trial Court, on the side of the plaintiff, two witnesses were examined and 15 documents Exs.A.1 to A.15 were marked. On the side of the defendants, two witnesses were examined and 9 documents Exs.B.1 to B.9 were marked. The trial Court, after taking into consideration the case of both parties, decreed the suit. Aggrieved over the judgment and decree of the trial Court, the defendants preferred an appeal in A.S.No.27 of 1996, on the file of the Principal Subordinate Court, Srivilliputtur and the lower Appellate Court also confirmed the judgment and decree of the trial Court and dismissed the appeal. Before the lower Appellate Court, the application filed by the defendants in I.A.No.352 of 1997 under Order 41 Rule 27 of the Code of Civil Procedure was dismissed by the lower Appellate Court and the application in I.A.No.65 of 1998 filed by the plaintiff was allowed and Exs.A.16 and A.17 were received as additional documents. Aggrieved over the judgment and decree of the lower Appellate Court, the legal representatives of the first defendant have filed the above Second Appeal.
6.Heard Mr.S.Subbiah, learned Counsel appearing for the appellants and Mr.M.Thirunavukkarasu, learned Counsel appearing for the first respondent.
7.The appellants have raised the following Substantial Questions of Law in the second appeal:
?(a) When a person claims title under a deed of settlement can the title be declared without the production of the document itself by the alleged real owner of the suit property?
(b) Whether a Varthamana letter containing the recitals as to earlier documents can operate as an act of estoppel against the claimant, especially when those documents were not produced before the Court?
(c) Whether a Varthamana letter purporting or operating to create, declare, assign, limit or extinguish, any right title or interest in an immovable property over the value of Rs.100/- is admissible without the registration of the document?
(d) Whether a co-owner being aware of her claim of her weakness in claim in laying exclusive claim over the other co-owners without pleading or proving ouster is entitled for declaration of her title on the basis of adverse possession?
(e) Whether the family arrangement under Hindu Law can be applied to the persons professing Christianity when they got their right to the property under the Indian Succession Act?
(f) Whether a mere non sending of a reply will amount to the admission of the contents of the notice and will operate as an estoppel under Section 115 of Evidence Act??
8.Mr.S.Subbiah, learned Counsel appearing for the appellants submitted that when the plaintiff claims title under a deed of settlement, she should have produced the settlement deed before the trial Court and even in the case of non-production of the settlement deed, the lower Appellate Court erroneously decreed the suit. Further the learned Counsel submitted that since the Varthamana letter conveys the title in respect of the suit property, it is compulsory registrable under the Registration Act. Since the said document is an unregistered document, the same cannot be relied upon. The learned Counsel also submitted that the non-sending of reply will not amount to admission of the contents of the notice and shall not operate as an estoppel under Section 115 of the Indian Evidence Act.
9.In support of his contentions, the learned Counsel appearing for the appellants relied upon the following judgments:
(i) In Palaniswamy Konar Vs. Gopala Konar and 8 Others reported in 1997-3-L.W. 888, wherein this Court held that the admission alone will not confer title, it would only shift the burden to prove want of title in persons in whose favour the admission is made.
(ii)In C.T.Devaraja, Proprietor of Jayalakshmi Industries and also of ?Vil Ambu? a Tamil Weekly T.Nagar, Madras In re. , reported in (2008)8 MLJ, 862, wherein this Court held as follows:
?4.The contention, that no reply was given by Adityan to the lawyer's notice and that this would prove admission of the fact of instruction and defamation is too absurd to be discussed. Supposing an unconnected woman claims to be the wife of a man and sends him a notice claiming maintenance, or an unconnected man claims to be a son and sends him a notice claiming partition, the law in the Republic of India will not oblige the man who receives such an absurd and vexatious notice to reply to it, and will not conclude from the mere fact of non-reply that the person sending the notice is the wife of the son.?
10.Countering the submissions made by the learned Counsel appearing for the appellants, Mr.M.Thirunavukkarasu, learned Counsel appearing for the first respondent submitted that the lower Appellate Court has rightly confirmed the judgment and decree of the trial Court and decreed the suit, taking into consideration the oral and documentary evidences let in by both parties.
11.In support of his contentions, the learned Counsel appearing for the first defendant relied upon the following judgments:
(i) In Swaminathan and Others Vs. Koonavalli and Others reported in 1994 L.W. 764, wherein this Court held as follows:
?The above recitals in the document clearly indicate that there was an earlier decision by the Panchayatdars and as per the decision, the properties have been divided and the document is brought into existence only to record the earlier division. Ex.A.1 nowhere says that it itself effects a division in praesenti. Therefore, the document can be taken to be one which records an earlier transaction of partition suggested by the Panchayatdars. In this view of the matter I have to hold that Ex.A.1 is admissible in evidence even though it has not been registered.?
(ii) In Kaliya Perumal Vs. Dhandapani reported in 2010-2-L.W. 644, wherein this Court held that when a document is challenged as inadmissible on the ground that it was not stamped as required after the document was admitted and marked as Exhibit before the trial Court, though the trial Court has committed an apparent error in admitting an unstamped and unregistered release deed, the same cannot be questioned by the other side who was also a party to such a lapse at the time of marking the document in the face of embargo found under Section 36 of the Indian Stamp Act.
(iii) In Smt.Badami (Deceased) by her L.R. Vs. BhalatIn in an unreported judgment of the Honourable Supreme Court made in C.A.No.1723 of 2008, dated 22-May-2012, wherein the Honourable Supreme Court held 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 dispute and rival claims by a fir 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 arrangements 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) (sic)(Sec.17(1)(b)?) 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 bonafide disputes, present or possible, which may not involve legal claims are settled by a bonafide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.?
12.On a careful consideration of the materials available on record and the submissions made by the learned Counsel appearing on either side, it could be seen that the plaintiff, the second defendant and the husband of the first defendant are the children of one Chinnammal. It is the case of the plaintiff that in the year 1970, the said Chinnammal settled the property in favour of the second defendant. Further the plaintiff contended that the second defendant gave the property on the northern side to the plaintiff on 09.11.1970. According to the plaintiff, on 28.04.1979, the defendants executed a Varthamana letter in favour of the plaintiff in respect of the suit property. The second defendant was examined as P.W.2. In his evidence, P.W.2 also admitted that the property on the northern side was given to the plaintiff. Admittedly the settlement deed dated 09.11.1970 was not produced by the plaintiff. The first defendant is disputing the execution of Ex.A.1- Varthamana letter dated 28.04.1979. On a perusal of Ex.A.1 ? Varthamana letter dated 28.04.1979, it could be seen that in the said document, the execution of the settlement deed dated 09.11.1970 was admitted by the defendants. It has been recited therein that the plaintiff is entitled to the suit property by virtue of the settlement deed dated 09.11.1970. P.W.2 (the second defendant) also admitted the execution of Ex.A.1 ? Varthamana letter and the settlement deed dated 09.11.1970. Ex.A.2 ? legal notice was sent by the plaintiff to the defendants stating that they are interfering with her possession. Under Ex.A.3 ? reply sent by the second defendant, he admitted the title of the plaintiff. Similarly the first defendant's husband, Chinnappan, also sent Ex.A.5 ? reply dated 29.09.1986 admitting the title and the rights of the plaintiff. The first defendant did not send any reply to the plaintiff's notice.
13.When the plaintiff is claiming exclusive right and title over the suit property, the first defendant should have sent a reply denying the title of the plaintiff. Though the non-issuance of reply is not supporting the case of the defendants, but the normal conduct of a person whose title and rights are questioned by the other party would be to give a suitable reply for the notice sent by the other party. But for the reasons best known to the first defendant, she remained silent without sending any reply. It is not the case of the first defendant that Ex.A.5 ? notice was not sent by her husband. When the first defendant's husband had admitted the title and rights of the plaintiff, the first defendant cannot take a different stand now. The first defendant is claiming title over the property only through her husband, Chinnappan. That apart, P.W.2 viz., the second defendant had also admitted the execution of Ex.A.1 ? Varthamana letter and the settlement deed dated 09.11.1970. Therefore, the lower Appellate Court rightly came to the conclusion that the execution of the settlement deed dated 09.11.1970 and the Varthamana letter marked as Ex.A.1 dated 28.04.1979 are true and genuine.
14.The contention raised by the learned Counsel for the appellants with regard to the registration of the Varthamana letter is concerned, the Varthamana letter by itself is not conferring any title on the plaintiff and in fact the title was conferred only by the settlement deed dated 09.11.1970 and by executing EX.A.1 ? Varthamana letter, the defendants had only confirmed the execution of the settlement deed dated 09.11.1970. Therefore, when Ex.A.1 ? Varthamana letter by itself is not transferring the title in favour of the plaintiff, it does not require any registration. In these circumstances, the contention raised by the learned Counsel for the appellant cannot stand and the same is rejected.
15.The judgments relied upon by the learned Counsel for the first respondent squarely apply to the facts and circumstances of the present case.
16.Though there is no dispute with regard to the ratio laid down in the judgments relied upon by the learned Counsel for the appellants, since the facts and circumstances differ from the case on hand, the same are not applicable.
17.Taking into consideration the oral and documentary evidences let in by the parties, the Courts below concurrently decreed the suit.
18.In these circumstances I do not find any ground much less any substantial question of law to interfere with the concurrent findings of the Courts below. The Second Appeal is liable to be dismissed. Accordingly the same is dismissed. However, there shall be no order as to costs. Consequently, the connected Miscellaneous Petition is also dismissed.
To
1. The Principal Subordinate Court, Srivilliputtur.
2. The Additional District Munsif Court, Srivilliputtur..