Mercy Dharamaraj Bency Grace Ammal M. ... vs M. Gomathy And Ors. on 26 April, 2007

[Cites 31, Cited by 0]

Madras High Court

Mercy Dharamaraj Bency Grace Ammal M. ... vs M. Gomathy And Ors. on 26 April, 2007

1. These Second appeals have been filed against the Judgment and decree, dated 11.10.2004, passed by the Principal Subordinate Judge, Tirunelveli, in A.S. No. 88 of 2003, reversing the Judgment and Decree passed by the Court of the First Additional District Munsif, Tirunelveli, in O.S. No. 572 of 1996, dated 30.04.2003.

2. Since both the above mentioned second appeals have arisen under the same facts and circumstances, a common Judgment is passed.

3. Heard the learned Counsels appearing for the appellants as well as for the respondents.

4. The appellants in the Second Appeal S.A. (MD) No. 286 of 2005 were the defendants 1, 2 and 20 in the suit O.S. No. 572 of 1996, on the file of the First Additional District Munsif, Tirunelveli, and they were respondents 1, 2 and 19 in the first appeal A.S. No. 88 of 2003, on the file of the Principal Sub-ordinate Judge, Tirunelveli.

5. The plaintiffs' in the suit O.S. No. 572 of 1996 had prayed for a Judgment and Decree to declare that the plaintiffs' are exclusively entitled to the plaint Page 1331 schedule lands and for a consequential permanent injunction restraining the defendants therein, their men, servants, agents and derivatives-in-interest from in any manner interfering with the plaintiffs' peaceful possession and enjoyment of the plaint schedule lands and for costs of the suit and for other reliefs.

6. It has been stated by the plaintiffs' in the suit that the lands described in the plaint schedule were originally Inam lands at Vijayaraghava Mudaliar Chatram Village, Palayamkottai Taluk. After bifurcation of Tirunelveli Taluk, on 11.01.1982, Vijayaraghava Mudaliar Chatram Village, which was originally in Tirunelveli Taluk, had been included within the Palayamkottai Taluk limits. The Inam included extensive lands at Vijayaraghava Mudaliar Chatram Village and the Inamdar had gifted the plaint schedule lands and other lands by way of 'Manibam' to his accountant one Thiruvengadam Pillai, but the actual possession and enjoyment of the plaint schedule lands were with one Arumuga Thevar, son of Dakshinamoorthy Thevar of Vijayaraghava Mudaliar Chatram Village. Arumuga Thevar was the father of the plaintiffs' 1 to 7 and father-in-law of the 8th plaintiff. The said Arumuga Thevar was cultivating the plaint schedule lands and he was paying the annual rent to Thiruvengadam Pillai, till his death, on 28.09.1959 and thereafter, the rent was being paid to his son Paramasivam Pillai. In the year 1961, the said Paramasivam Pillai, by taking into consideration the legal right which had been exercised by his father for a long time and on the basis of the Inam Patta issued to him on his succession to the estate of his father as his legal heir, had sold away all the items of the suit properties to Arumuga Thevar, who was in actual enjoyment of the lands, for valuable consideration, by and under a registered Sale Deed, dated 07.07.1961. By virtue of the said registered Sale Deed, Arumuga Thevar, who was already in physical possession and enjoyment of the suit lands, had become the lawful owner of the said lands. Since then, Arumuga Thevar had stopped paying the rent to Paramasivam Pillai. The said Arumuga Thevar, as the owner of the suit lands, had sold an extent of 17 cents from out of the lands covered under the Sale Deed, dated 07.07.1961, to one Minor Madasamy of Thirukalur, through a registered Sale Deed, dated 23.07.1964.

7. In the year 1966, a family arrangement had taken place among the members of the family of Arumuga Thevar. All the properties of the family including the suit lands were clubbed together and a division was effected. As per the family arrangement, the plaint schedule properties were entirely and jointly allotted to the shares of the first wife and her son and daughters and the second wife and her sons and daughters. The other properties in the family were separately allotted to the share of Arumuga Thevar. From the date of the family arrangement, all the plaint schedule properties were in the joint possession and enjoyment of all the said legal heirs of Arumuga Thevar. Subsequent to the family arrangement, a yadast, dated 14.03.1966, recording the earlier allotment of the properties to Arumuga Thevar and other share holders, was signed.

Page 1332

8. In the year 1963, Inam was abolished by the Government under Act 26 of 1963. Proceedings were initiated by the Government for the grant of Ryotwari Patta to the eligible persons through Settlement Proceedings. The Settlement Tahsildar No. 1, Kovilpatti, had initiated suo motu enquiry in the year, 1971, under the provisions of the said Act. Since the enquiry proceedings had been conducted without due notice being given to the plaintiffs', the Settlement Tahsildar No. 1, Kovilpatti, had conducted further proceedings thereafter, in accordance with the provisions of the Act and had passed the final order, on 08.01.1973, ordering the grant of Ryotwari Patta in favour of the plaintiffs' with regard to the plaint schedule lands. The said patta was ordered to be granted under Section 12(1) read with Section 10(i) (ii) of Act 16 of 1963. No appeal had been preferred against the order and hence, it has become final.

9. Based on the said order, entries were made in the 'A' Register (Re-settlement Register) in the village and as per the 'A' Register, the plaintiffs' alone are the pattadars of the plaint schedule lands. The Revenue Patta in the name of the plaintiffs', as per the 'A' register, bears No. 574. After the grant of Ryotwari Patta, the plaintiffs' have been paying the 'kist' to the Government, as owners and pattadars of the suit schedule lands. The defendants had no title or possession over the suit schedule lands at any point of time. However, the defendants 1, 2 and 21 had started making claims over the suit schedule lands and they are also attempting to enter into sale negotiations with third parties, with regard to certain portions of the said lands, without having any legal right over the said properties. It was found that the said defendants had managed to include their names in the new patta No. 883, relating to the suit schedule lands, with the aid of the Tahsildar, Palayamkottai, showing the lands as though they had been sub-divided. The said defendants had also obtained separate pattas. The plaintiffs' have claimed that such proceedings cannot bind them as the lawful title over the suit schedule properties are still vested with them. No notice or opportunity was given to the plaintiffs' in the proceedings alleged to have taken place before the Tahsildar, Palayamkottai, for the sub-division of the properties and for the grant of separate patta. The plaintiffs had preferred appeals before the Revenue Divisional Officer, Tirunelveli, for cancellation of the illegal orders passed by the Tahsildar, Palayamkottai, ordering sub-division and grant of patta with regard to the suit schedule lands. The appeal was taken on file and an interim order had been passed staying the portion of the order of the Tahsildar, Palayamkottai.

10. The plaintiffs had further stated that the defendants 3 to 20 are also claiming bogus title over portions of the suit schedule lands, along with the defendants 1, 2 and 21. The said defendants were making illegal attempts to disturb the peaceful possession and enjoyment of the suit schedule properties by the plaintiffs. Hence, the plaintiffs had filed the suit in O.S. No. 572 of 1996, on the file of the First Additional District Munsif, Tirunelveli.

Page 1333

11. The averments in the written statement filed by the first and second defendants in O.S. No. 572 of 1996 are as follows:

The suit filed by the plaintiffs is not sustainable and that the plaintiffs are not entitled to the reliefs prayed for. Since the suit had been filed by the plaintiffs without having any basis for their claims and as it has been filed only to harass the defendants, the suit is not maintainable in law or on facts and therefore, it is to be dismissed with costs. Since the suit schedule lands belong to the defendants, the plaintiffs have never been in possession or enjoyment of the said properties.

12. Prior to the abolition of Inam, the suit schedule properties belonged to Thiruvengadam Pillai. Thiruvengadam Pillai had a son through his first wife by the name of Paramasivam Pillai. Arunachalathammal is the name of the second wife of Thiruvengadam Pillai. Thiruvengadam Pillai had three sons and two daughters through his second wife, Arunachalathammal. Thiruvengadam Pillai had died, on 28.9.1959. At the time of his death, he had seven legal heirs. The second wife of Thiruvengadam Pillai and her children together had 6/7th portion of the estate of Thiruvengadam Pillai. Paramasivam Pillai born through the first wife, was entitled to the remaining 1/7th share of Thiruvengadam Pillai's properties.

13. By a sale deed, dated 20.7.1961, the properties belonging to Arunachalathammal and her five children had been purchased by one J.E.S. Thomas, for a consideration of Rs. 800/-. Thereafter, the said J.E.S. Thomas, had been in enjoyment of the properties. On 7.2.1962, the second defendant had purchased 41/2 acres of land and the first defendant had also purchased 41/2 acres of land from J.E.S. Thomas. Since then, they have been in enjoyment of the properties purchased by them.

14. The plaint schedule properties were originally in an Inam Village. After the Inam was abolished by The Tamil Nadu Act 26 of 1963, the Settlement Tahsildar, Kovilpatti, had initiated suo motu proceedings to grant patta, in accordance with the procedure established by law. K. Ayya Subramania Mudaliar was the Inamdar of the Inam Village. He had raised the plea that all the suit schedule properties belonged to him, as he had purchased the same. K. Ayya Subramania Mudaliar took the stand that Arumugha Thevar had written a release deed, dated 7.6.1968, releasing the properties in his favour. Arumugha Thevar had purchased the properties from Paramasivam Pillai, son of Thiruvengadam Pillai, through his first wife.

15. Paramasivam Pillai had only 1/7th share of the estate of Thiruvengadam Pillai. Since the Settlement Tahsildar did not have the authority to state as to what share of the properties each of the defendants had, he had granted a Joint Patta. No appeal had been filed against the same. The second defendant had filed a suit in O.S. No. 155 of 1974, on the file of the District Munsif Court, Tirunelveli, making the first defendant and K. Ayya Subramania Mudaliar as parties thereto. The said suit had been decreed in favour of the first defendant in the present suit. Based on the sale deed, Page 1334 the order of the Settlement Tahsildar and the report of the Commissioner, the lower Court had passed the said decree. Later, K. Ayya Subramania Mudaliar had preferred an appeal before the High Court of Judicature at Madras, Chennai. Even though the Commissioner had measured the portion of the properties and allocated the same in favour of the first defendant, the final decree could not be granted since the relevant fee for the same had not been paid, initially. Therefore, a suit in O.S. No. 12 of 1989, had been preferred, on the file of the District Munsif, Tirunelveli, for partition. Arumugha Thevar and the plaintiffs knew full well about the proceedings of the Settlement Tahsildar and the appeal proceedings as well as the proceedings in the suit. Since K. Ayya Subramania Mudaliar had lost his case, the plaintiffs had filed the suit at the instance of K. Ayya Subramania Mudaliar, the predecessor-in-title of the plaintiffs. Having granted the release, the plaintiffs and their predecessors-in-title cannot have any right in the suit schedule properties relating to the possession and enjoyment of the said properties. From the time of the purchase of the properties, the first and second defendants have been in enjoyment of their share of the properties. They are also paying (sic) in relation to the said properties. Further, the claims made by the plaintiffs regarding adverse possession cannot be sustained.

16. All the claims made by the plaintiffs have to be proved by them, as they have not been accepted by the defendants. The plaintiffs have to prove that there was a family settlement amongst the family members of Arumugha Thevar in the year, 1966, and that in the said settlement, the suit schedule properties were allotted to the wives of Arumugha Thevar and their children. Further, the plaintiffs have to prove that subsequent to the family settlement, the suit schedule properties were in the joint possession and enjoyment of the family members and that there was a Yadast made, subsequently. Since the plaintiffs and their predecessors-in-title did not have any right in the suit schedule properties in the year 1971, the Settlement Tahsildar had not issued any notice to them, as it was unnecessary. However, the Settlement Tahsildar had issued sufficient notice in accordance with law before initiating the proceedings to all those who had rights in the properties.

17. The defendants did not have any knowledge of any Patta being issued to the plaintiffs with regard to the suit schedule properties. No notice had been received by the defendants with regard to the same. The order, dated 8.1.1973, is not valid in the eye of law and therefore, it is not binding on the defendants. If any entries or changes have been made in the Revenue Records, based on the said order, it would not remain valid and no right would accrue based on the same. It is wrong on the part of the plaintiffs to state that the defendants did not have any right in the suit schedule properties and the plaintiffs did not have any right to question the possession or the enjoyment of the suit schedule properties by the defendants. It is not true to state that the defendants with the help of the Tahsildar, Palayamkottai, had obtained a Patta in Patta No. 883. It is only in accordance with the relevant law that Sub-divisions have been validly Page 1335 made. All the subsequent proceedings are true and valid in the eye of law. It is improper for the plaintiffs to have obtained a stay order against the order of the Tahsildar, Palayamkottai, after a lapse of two years, by filing an appeal before the Revenue Divisional Officer, Tirunelveli. No notice of the proceedings had been received by the defendants from the Revenue Divisional Officer, Tirunelveli. The description of the suit schedule properties have not been given properly and the relationship of the parties in the suit have also not been properly given. The prayer in the suit cannot be granted, as the various claims of the parties concerned have not been clearly stated in the plaint. Further, the suit is bad in law due to defects of misjoinder of parties and misjoinder of cause of action. Inspite of the detailed report filed by the Commissioner in O.S. No. 155 of 1974, with regard to the properties concerned, it is improper for the plaintiffs to re-agitate the matter by way of filing the present suit by describing the properties differently. Hence, the suit is to be dismissed with costs.

18. Based on the avernments made by the plaintiffs in the plaint and in the written statement filed in the suit O.S. No. 572 of 1996, on the file of the First Additional District Munsif Court, Tirunelveli, the trial Court had framed the following issues for consideration:

(1) Whether the necessary parties have not been made as parties in the suit?

(2) Whether Paramasivam Pillai, who had sold the suit schedule properties to Arumugha Thevar, had a right only with regard to 1/7th share of the suit schedule properties?

(3) Whether the plaintiffs are entitled to the relief of declaration as sought for in the plaint?

(4) Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for in the plaint?

(5) What other reliefs the plaintiffs are entitled to?

19. P.W.1 to P.W.5 have been examined on behalf of the plaintiffs. Exhibits A.1 to A.20 have been marked in favour of the plaintiffs. D.W.1 to D.W.4 have been examined as witnesses on behalf of the defendants and Exhibits B.1 to B.48 have been marked as Exhibits in favour of the defendants.

20. It has been contended on behalf of the defendants in the suit and the appellants herein that they had produced Exhibit B.17 to show that the suit properties were purchased by J.E.S. Thomas from Arunachalathammal and her children. J.E.S. Thomas, in turn, had sold the properties to the defendants. The said documents relating to the sale of the suit properties were marked as Exhibits in O.S. No. 155 of 1974. Though the plaintiffs were not parties to the said suit and the subsequent proceedings thereon, the judgment in the said proceedings have been produced by the defendants before the trial Court as evidence to substantiate their claims of purchase of the properties by J.E.S. Thomas from Arunachalathammal and her children and the subsequent purchase by the defendants from J.E.S. Page 1336 Thomas. The plaintiffs had placed reliance on Exhibit B.1, the document filed in the appeal arising out of O.S. No. 155 of 1974. The plea of the plaintiffs that they were not parties to the said proceedings will not destroy the evidentiary value of the said documents.

21. The contention by the plaintiffs, who are the respondents in the present second appeals, that the last page of Exhibit B.17 was missing would not, automatically, confer the title on the plaintiffs, unless they could establish that they had acquired the title with regard to the suit properties under Exhibit A.2.

22. A further contention raised on behalf of the defendants in the suit and the appellants in the present second appeals is that Arumugha Thevar had executed a Release Deed to K. Ayya Subramania Mudaliar. The effect of Exhibit B.14, is sought to be nullified by the plaintiffs by contending that the defendants cannot approbate and reprobate. The reliance on Exhibit B.14 by the plaintiffs is only for the purpose of demonstrating that subsequent to the alleged family arrangement, in the year 1966, Arumugha Thevar had executed a document in favour of K. Ayya Subramania Mudaliar and this shows that Exhibit A. 2 was only a make believe arrangement for the sake of the suit and cannot be taken to be a true and valid document.

23. It has also been contended on behalf of the defendants that the admission of P.W.1 relating to the death of the first wife during the life time of Thiruvengadam Pillai is of real significance. The claim made on behalf of the plaintiffs that it is only an innocuous slip, while letting in evidence and that it will not have any legal consequence, if it is taken in the context of all the materials placed before the Court, cannot be sustained. Therefore, based on a correct analysis of the evidence available on record, the trial Court had rightly come to the conclusion that the claims made by the plaintiffs were not sustainable in law or on facts. Therefore, the trial Court had rightly dismissed the suit filed by the plaintiffs in O.S. No. 572 of 1996.

24. The learned Counsel appearing on behalf of the appellants in Second Appeal No. 1145 of 2006, who were the defendants 3, 5 to 10, 22 and 23 in O.S. No. 572 of 1996, had stated, in the written statements filed on their behalf, that Thiruvengadam Pillai, who was admittedly the original owner of the suit properties, had two wives. Thiruvengadam Pillai's first wife had pre-deceased him leaving behind one son by the name of Paramasivam Pillai. Thiruvengadam Pillai had a second wife by the name of Arunachalathammal, who had three sons and two daughters. After the death of Thiruvengadam Pillai, Arunachalathammal and her five children had executed a sale deed, dated 20.7.1961, marked as Exhibit B.17, conveying the suit properties in favour of J.E.S. Thomas. J.E.S. Thomas had, in turn, sold 4.5 acres in Survey No. 192/2 in favour of the first defendant and another 4.5. acres in the same Survey number in favour of the second defendant and an another extent of 4.33 acres in favour of D.21 and that the other defendants had purchased the portions of the said properties from D.21. Paramasivam Pillai was only one of the 7 Page 1337 heirs of Thiruvengadam Pillai and that the sale by Paramasivam Pillai, under Exhibit A.1, to Arumugha Thevar could only be with reference to his 1/7th share of the suit properties. Therefore, neither Arumugha Thevar nor his successors, who are the plaintiffs in the suit, could claim title to the entire suit properties. Arumugha Thevar had executed a registered Release Deed, on 7.6.1968, marked as Exhibit B.14 and therefore, whatever was purchased by Arumugha Thevar, namely, 1/7th share of Paramasivam Pillai in the suit properties had also been lost.

25. It was also contended on behalf of the defendants that the family arrangement pleaded by the plaintiffs was false and that Exhibit A.2, said to be a record of the family arrangement, required registration, since it brought about a division in the properties in question. Since the said document in Exhibit A.2 was unstamped and unregistered, it could not be relied on by the plaintiffs to establish their title in the suit properties.

26. The trial Court, after a detailed consideration of the facts and the law, had found that Thiruvengadam Pillai had two wives and six children and that Paramasivam Pillai had only 1/7th share in the suit properties after the death of Thiruvengadam Pillai. Exhibit A.1 executed by Paramasivam Pillai could, therefore, convey only 1/7th share in the suit properties to Arumugha Thevar and in view of Exhibit B.14, which is said to be a Release Deed executed by Arumugha Thevar, he had lost even that 1/7th share. The trial Court had also found that Exhibit A.2 was invalid and inadmissible for want of registration. The trial Court had further found that in view of Exhibit B.17, the remaining 6/7th share in the suit properties had been sold by 6 heirs of Thiruvengadam Pillai in favour of J.E.S. Thomas and it had also been found that though the last page of Exhibit B.17 was missing, in view of the fact that the said document had been marked as an Exhibit in the earlier proceedings to which the first and second defendants were parties, the defendants had acquired valid title.

27. It has also been found by the trial Court that under Exhibit A-14, dated 07.07.1968, Arumuga Thevar, had released the suit properties purchased by him under Exhibit A-1 in favour of Ayya Subramania Mudaliar. It was also held that the sub-divisions were effected in respect of the properties purchased by the defendants 1 and 2, who are the appellants 1 and 2, in the present Second Appeal, and pattas were granted in their favour. It was also held that no document had been filed to show that the sub-divisions were cancelled and a fresh enquiry was held by the Tahsildar. The Encumbrance Certificate produced by the defendants does not show that the plaintiffs had purchased the suit property. Further, no documents have been filed by the plaintiffs to show that the change was effected in the village accounts after the cancellation of the sub-divisions. Therefore, the plaintiffs had not established their possession. Based on the above findings, the trial Court had dismissed the suit in O.S. No. 572 of 1996, by its judgment and decree, dated 30.4.2003.

28. Therefore, the plaintiffs had filed an appeal against the judgment and decree of the trial Court, dated 30.4.2003, in A.S. No. 88 of 2003, on Page 1338 the file of the Principal Sub-ordinate Court, Tirunelveli. Based on the rival contentions, the Lower Appellate Court had framed the following point for determination, which is as follows:

Whether the present Appeal is to be allowed or not?

29. After a detailed discussion on various aspects, the Lower Appellate Court had found that under Exhibit A-2, dated 14.03.1966, the family arrangement had been made by which the properties were allotted to the wives and children of Arumuga Thevar. Exhibit A-2, cannot be said to be inadmissible. The lower appellate Court had also held that Exhibit A-4, dated 08.01.1972, which is the order passed by the Settlement Tahsildar is final. With regard to the aspect of possession, it was held that the Kist receipts marked as Exhibits A-8, A-9, A-12, A-13, A-14 and A-17, would establish the fact that the plaintiffs are in possession of the properties in question. Since the plaintiffs were not parties to the suit in O.S. No. 155 of 1974, A.S. No. 29 of 1980, S.A. No. 1572 of 1988 and O.S. No. 12 of 1989 and A.S. No. 41 of 1996 filed by Pency Grace and Mercy Dharmaraj, the judgments rendered therein and the Exhibits B.4 to B.12 cannot be binding on the plaintiffs. It was also held that Exhibit B.17 did not contain the last page and therefore, the properties purchased by J.E.S. Thomas from Arunachalathammal and others were not established. It was also held that Exhibit A.2, which is a document with regard to the family arrangement, need not be registered, since it was only a record of a prior partition.

30. It was also held that the Release Deed, namely, Exhibit A-14, dated 07.07.1968, cannot be accepted. According to the family arrangement, dated 29.01.1966, the suit properties were allotted to the appellants. Further, no documents had been filed on behalf of the appellants in the present Second Appeal to show that they were in possession of the suit properties. It was also held that the plaintiffs in the suit and the respondents in the Second Appeal had proved their possession with regard to the suit properties.

31. Based on the above findings, the lower appellate Court had reversed the Judgment and Decree of the trial Court, dated 30.04.2003, and decreed the suit as prayed for by its Judgment and Decree, dated 11.10.2004.

32. The defendants 1, 2 and 20 are the appellants in the Second Appeal in S.A. No. 286 of 2005. The said Second Appeal has been admitted by this Court, on 30.03.2005, on the following substantial questions of law, which had arisen for consideration.

(i) Whether the failure of the First Appellate Court to frame issues for consideration is miscarriage of justice?

(ii) Whether the previous litigations between the appellants 1 and 2 and the erstwhile Inamdar is binding upon the plaintiffs?

(iii) Whether the order passed by the Settlement Tahsildar for the suit property for the second time is valid in law?

Page 1339

33. The Second Appeal had been preferred by the appellants, raising various grounds, inter alia, stating that the First Appellate Court had passed the Judgment and Decree contrary to law, the weight of evidence and the probabilities of the case. The First Appellate Court had failed to apply the Principles of Law applicable to the case. It has also been stated that the First Appellate Court had failed to consider the specific issues raised for consideration.

34. It had also been stated that the First Appellate Court ought to have held that the previous judgments rendered in O.S. No. 155 of 1974 and O.S. No. 12 of 1989 and in the consequential appeals shall be binding on the plaintiffs.

35. The defendants 3, 5 to 10, 22 and 23 have filed the Second Appeal in S.A. (MD) No. 1145 of 2006. The said Second Appeal has been admitted on 23.11.2006, on the following substantial questions of law arising for consideration.

1. Whether the First Appellate Court had failed to note that the suit is barred by res judicata?

2. Whether the First Appellate Court had erred in giving a perverse finding regarding Exhibits B-1, B-4 to B-10 and Exhibit A-2?

3. Whether the First Appellate Court had erred in not framing points for determination by following the Order 41 Rule 31 of the Civil Procedure Code?

4. Whether the First Appellate Court had failed to consider the impact on Exhibit B-14 in a proper perspective, in the light of subsequent acts of enjoyment of property by the parties to the suit?

36. The appellants in the said Second Appeal had raised various grounds stated in the grounds of appeal while challenging the findings of the lower Appellate Court.

37. The main point that arises for consideration in the Second Appeals is as to whether the plaintiffs in the suit and the respondents in the Second Appeals are entitled to a declaration of their title in the suit properties and for permanent injunction as prayed for by them by establishing their title and possession over the suit properties.

38. The appellants in the above Second Appeals have contended that a reading of the plaint shows that a Sale Deed, dated 07.07.1961, had been executed by Paramasivam Pillai, son of Thiruvenkadam Pillai in favour of Arumuga Thevar, the Predecessor-in-interest of the plaintiffs. However, it is not shown or proved that the said Paramasivam Pillai was the only heir of Thiruvengadam Pillai, when the defendants in the written statement had categorically alleged that Arunachalathammal was the second wife of Thiruvenkadam Pillai and both she and her children were entitled to 6/7th share and that Paramasivam Pillai was entitled to only 1/7th share. When it has been categorically stated by the defendants in the written statement filed by them that Paramasivam Pillai was entitled to only Page 1340 1/7th share in the properties of Thiruvenkadam Pillai, it is for the plaintiffs to have established that Paramasivam Pillai was the only heir of Thiruvenkadam Pillai and that he was competent to sell the entire properties of Thiruvenkadam Pillai in favour of Arumuga Thevar, under Exhibit A-1. No reply statement had been filed by the plaintiffs in the suit denying the allegations regarding the entitlement of Paramasivam Pillai to only 1/7th share of the suit properties. The plaintiffs had not discharged their burden of proving their case that Paramasivam Pillai was entitled to the entire suit properties by acceptable evidence. P.W.1, in his chief examination, had clearly stated that the first wife of Thiruvenkadam Pillai had pre-deceased him. It was not denied by P.W.1 that Arunachalathammal was not the second wife of Thiruvenkadam Pillai.

39. It is also relevant to note that Exhibit B-1 was relied upon by the plaintiffs to show that Arunachalathammal had passed on a letter enabling Paramasivam Pillai to get patta in his name. If Arunachalathammal is not a legal heir entitled to a share in the suit properties, there would be no need for such a letter being given by her. Especially, in view of the fact that the claim made on behalf of the plaintiffs that the said letter was an authorisation to enable Paramasivam Pillai to convey the entire suit properties in favour of Arumuga Thevar.

40. It is a settled position of law that any right in respect of an immovable property cannot be parted away except by way of a registered instrument. Arunachalathammal had not released or relinquished her interest in the property. Therefore, the plaintiffs cannot claim that the entire properties of Thiruvenkadam Pillai was sold by Paramasivam Pillai.

41. It was also contended on behalf of the appellants that in the absence of any specific evidence, plea or proof that Paramasivam Pillai is the only heir to Thiruvenkatam Pillai, the plaintiffs cannot be said to have established the title to the suit schedule property under Exhibit A-1. With regard to the question as to whether the family arrangement under Exhibit A-2, is true and valid, it has been stated that the plaint is silent about the date of the family arrangement. It only states that as per the family arrangement, the suit schedule properties were entirely and jointly allotted to the share of the first wife, her sons and daughters and the second wife and her son and daughter.

42. It has also been stated in the plaint that from the date of the family arrangement, the schedule properties are in the possession and enjoyment of the legal heirs of Arumuga Thevar. Subsequent to the family arrangement, a yadast, recording the earlier allotment of the properties to Arumuga Thevar on the one hand and the remaining shareholders on the other, had been signed. However, there is no indication with regard to the date on which the family arrangement had taken place. The alleged family arrangement yadast bearing the date 14.03.1966 does not show clearly that the properties in question were being enjoyed jointly by the members of the family till the date of the yadast and that the said properties would be Page 1341 enjoyed separately, thereafter, and that the yadast was made only to record their separate enjoyment of the properties concerned. The evidence of P.W.1 clearly shows that it is only under Exhibit A-2, the sharers had partitioned the properties. It is, therefore, clear that the allotment of the properties to the respective sharers has been done only under the said document Exhibit A-2, dated 14.3.1966.

43. It has also been contended on behalf of the appellants that a combined reading of the evidence of P.W.1 and the recitals in Exhibit A-2, makes it clear that the respective sharers of the properties got their shares only under the said document and not at any point of time prior to the said document. Neither the body of the plaint nor the cause of action paragraphs indicate the date on which the family arrangement was entered Into. Exhibit A-2, said to be relating to a family arrangement, had not been produced by the plaintiffs before the Settlement Tahsildar to resist the claims of the defendants in the suit and the appellants in the present Second Appeals.

44. It is relevant to note that the plaintiffs were able to produce only Exhibit A-1 to support their claim for patta. Therefore, Exhibit A-2, cannot be said to be a genuine document. Assuming, without admitting, Exhibit A-2 to be a true document the question arises as to whether the said document is admissible in evidence, since it is unstamped and unregistered. The question would also arise as to whether the said document can form the basis for the claims made by the plaintiffs regarding the title to the suit properties.

45. The learned Senior Counsel appearing on behalf of the appellants had relied on the decision of a Division Bench of this Court in A.C. Lakshmipathy and Anr. v. A.M. Chakrapani Reddiar and Five Ors. 2001 (1) CTC 112, to support the proposition that the document Exhibit A-2, was not admissible in evidence for the reasons stated in the said decision. It has been held that an unstamped and unregistered document cannot be admitted as evidence and it has to be ignored. Therefore, any finding rendered on the basis of the said document by the lower appellate Court is clearly unsustainable.

46. It was also submitted that the next question that arose for consideration is as to whether the proceedings of the Settlement Tahsildar, dated 08.01.1973, had become final. It was stated that the finality of the order passed by the Settlement Tahsildar was only for the purpose of the Tamil Nadu Inam Estates (Abolition and Conversion into Ryotwari) Act, 1963. It will not bar the jurisdiction of the Civil Court to entertain the suit in the event of a dispute of title over the property in question amongst the rival claims.

47. The learned Senior Counsel appearing on behalf of the appellants had relied on the decision of the Supreme Court in The State of Tamil Nadu v. Ramalinga Samigal Madam with State of Tamil Nadu v. K.L.M. Ramamurthy and Ors. , wherein, it was held Page 1342 that the Civil Court's jurisdiction to decide the question of title is not barred. The patta proceedings do not constitute evidence of title to the immovable properties, particularly, when the same is in dispute. Therefore, the order of the Settlement Tahsildar, dated 08.01.1973, cannot come to the aid of the plaintiffs.

48. It has been further submitted that the other question that would arise for consideration is as to whether the proceedings commencing in O.S. No. 155 of 1974 and ending with the Judgment and Decree passed in the Second Appeal No. 1572 of 1988, declaring the rights of the appellants, is binding on the plaintiffs. It has been stated on behalf of the appellants that there is no dispute with regard to the identity of the property claimed by the plaintiffs as well as the defendants. It is only with a view to get over the judgment in O.S. No. 155 of 1974 and the further proceedings thereon, the plaintiffs have now chosen to raise the contention that the property which the defendants have claimed to have purchased from J.E.S. Thomas is different from the suit property. Such a contention has been raised for the first time at the stage of the present Second Appeals and the same is clearly unsustainable.

49. It has also been contended on behalf of the appellants that the plaint, filed in the suit O.S. No. 155 of 1974, does not contain the basic pleas that should have been raised by the plaintiffs. No amount of evidence would be of help to the plaintiffs without the necessary pleadings being made, as held in Privy Council 58 MLJ P7 at 9. The Lower Appellate Court had rendered a finding in favour of the plaintiffs only on the basis of Exhibit A-2, said to be a family arrangement. The said document is clearly inadmissible in evidence.

50. It is not the case of the plaintiffs that de hors the document Exhibit A-2, they have obtained title by adverse possession. In fact, the plea of adverse possession has not been raised by the plaintiffs. If Exhibit A-2, is found to be inadmissible in evidence, the entire case of the plaintiffs should be negatived. Therefore, the plaintiffs, who are the respondents in the above said Second Appeals, have raised a new plea during the course of their arguments that the plaintiffs' title to the suit property is by way of inheritance. Since the plaintiffs have not raised an alternative plea in the plaint filed by them in O.S. No. 572 of 1996, the said plea cannot be raised at this stage. Even in the document Exhibit A-2, it has been stated that the parties had agreed to get the document registered. If Exhibit A-2 is only a record of a past event there is no need for such a document to be registered. In view of the fact that the allotment of the shares had taken place only on the date of the said document and considering the admission of P.W.1 that it is under the said document the properties have been allotted, it becomes clear that Exhibit A-2, is inadmissible in evidence, as it has not been registered. Therefore, the findings of the Lower Appellate Court in favour of the plaintiffs, on the basis of Exhibit A-2, is clearly unsustainable.

Page 1343

51. It has also been contended on behalf of the appellants that the Lower Appellate Court relied on Exhibits A-8, A-9, A-12, A-13, A-14 and A-17, which are kist receipts, for the purpose of holding that the plaintiffs have established their possession. It is relevant to note that Exhibits A-12, A-13, A-14 and A-17 relate to a period subsequent to the filing of the suit. Only two kist receipts, namely, Exhibits A-8 and A-9 are prior to the said suit. The defendants have also filed kist receipts in Exhibits A-8 and A-12 as proof of their possession. It has been pointed out that this Court in Velayudham Pillai v. Sandhosa Nadar and Ors. reported in 1973 MLJ 44, had held that "the grant of patta and the subsequent payments of Tax by the plaintiff on the basis of such a patta cannot establish the plaintiffs' title, when there are rival claims with regard to the title of the suit property. Further, it cannot be taken to show that the plaintiff was in possession of the property, unless, there are other evidences placed before the Court to show actual possession of the property in question. Therefore, it is clear that neither the order of the Settlement Tahsildar, dated 08.01.1973, nor the kist receipts in Exhibits A-8, A-9, A-12, A-14 and A-17 are sufficient to establish the possession of the plaintiffs, particularly, when the title of the property is disputed.

52. With regard to the submissions made by the plaintiffs that the defendants had not established their claim that Arunachalathammal and her children were entitled to 6/7th share of the suit property and the same was conveyed to J.E.S. Thomas, it is the contention of the appellants that it is a well settled legal position, as seen from the decisions of two Division Benches of this Court in P. Thangavelu v. R. Dhanalakshmi Ammal and Ors. 1995 L.W. 708 and in Kannu Reddiar v. T. Palanirajan and Ors. , wherein, it was held that the plaintiff shall succeed or fail on the basis of his own pleadings and evidence and not on the basis of any defect in the pleadings of the defendants. The plaintiff cannot pick holes in the case of the defendants and succeed on that basis.

53. With regard to the claim of the plaintiffs that since Exhibit A-1 is not denied by the defendants it stands proved, the contention of the appellants in the present Second Appeals is that Exhibit A-1 alone cannot advance the case of the plaintiffs, since they claim to have purchased the entire property of Thiruvenkadam Pillai. The case of the defendants that the vendor in Exhibit A-1 is entitled to 1/7th share and the remaining 6/7th share was owned by Arunachalathammal and her children, as set out in the written statement has not been denied by the plaintiffs.

54. It has been contended on behalf of the plaintiffs that there is no need to file a reply statement denying the same. The said contention is misconceived, as the law is well settled that the plaintiffs can succeed or fail on their own pleadings and not on the basis of any error committed by the defendants in their pleadings. Further, the identity of the property Page 1344 claimed by the plaintiffs under Exhibit A-2, and the identity of the property claimed by the defendants in the suit and the appellants in the present Second Appeals was never in dispute. It is only during the course of the arguments made before this Court at the stage of the final hearing of the Second Appeals, the respondents' counsel, for the first time, has raised the plea with regard to the question of identity of the properties concerned. Since the plaintiffs had raised the contention that Exhibit A-2, need not be stamped or registered, since it is only a document recording a past event, the defendants have contended that the Lower Appellate Court ought to have given a finding as to the purpose for which such a document had been relied upon.

55. On the basis of the recitals of the document and on the evidence of P.W.1, Exhibit A-2 cannot be taken as a document recording a past event. Since the plaint and the cause of action paragraphs in the suit O.S. No. 572 of 1996, has been silent with regard to the date on which the past event of the allotment had taken place, it is clear that the said document had been created only for the purpose of sustaining the claims made by the plaintiffs in the suit. Further, the argument put forth on behalf of the plaintiffs with regard to inheritance cannot be sustained, since there is no plea to that effect in the plaint filed in the suit. Further, the order, dated 08.01.1973, passed by the Settlement Tahsildar cannot support the claim of the plaintiffs to establish their title over the suit property. Exhibit A-5 cannot be taken to prove the title of Paramasivam Pillai. Even though he is shown as the Inamdar, it is not clear as to whether Paramasivam Pillai was the owner of the entire suit property or that he is entitled to only 1/7th share of the property. In the light of Exhibit B-1, relied upon by the plaintiffs to show that Arunachalathammal had authorised Paramasivam Pillai to convey the entire property in favour of Arumuga Thevar, it is not open to the plaintiffs to deny the status of Arunachalathammal as the second wife of Thiruvenkadam Pillai, or the claim regarding the entire property. Even though the plaintiffs had relied on Exhibit B-1, they have submitted that the proceedings in O.S. No. 155 of 1974 and the further proceedings thereon are not binding on them. As such the inconsistent stand taken by the plaintiffs cannot be sustained in the eye of law. A mere letter said to have been given by Arunachalathammal and her children cannot deprive them of their right in the immovable property. In fact, Exhibit B-1 can only be taken to reinforce the case of the defendants that Arunachalathammal and her children were the owners of 6/7th share of Thiruvenkadam Pillai's property.

56. It has been contended by the learned Counsel appearing on behalf of the plaintiffs that it is the case of the plaintiffs that the Inam Patta had originally stood in the name of Thiruvenkadam Pillai. By succession, Paramasivam Pillai became the pattadar by Exhibit A-5 and he alone was receiving the annual rent from Arumuga Thevar, as an absolute owner of the property in entirety. He had sold the same to Arumuga Thevar, under Exhibit A-1. Therefore, it is not the case of the plaintiffs that Paramasivam Pillai had got only 1/7th share. The plaintiffs had not admitted the claim of Page 1345 the defendants that there were other heirs to Thiruvenkadam Pillai. Further, the defendants are not entitled to rely on the documents, which have not been exhibited during the proceedings in the suit. The Judgment in S.A. No. 1572 of 1988, dated 13.07.2000, has not been produced or marked. Therefore, they cannot rely or take support from the same.

57. It has also been stated that the plaintiffs' claim of title under Exhibit A-1, in respect of the entirety of the suit properties is proved as Exhibit A-1 deals with the entire suit property. The Inam Patta stood in the name of the vendor Paramasivam Pillai in respect of the entirety of the property. No other person's name has been found in the Inam Patta. The specific case of the plaintiff is that Arumuga Thevar was paying annual rent only to Paramasivam Pillai after the demise of Thiruvenkadam Pillai. Such specific pleadings made by the plaintiffs have not been denied by the defendants either in the written statement or in the evidence let in, in support of their case. Exhibit A-1 has not been denied by the defendants. On the other hand, it has been admitted by them, as per Order 8 Rule 5 of the Civil Procedure Code, 1908, which says that when the alleged facts have not been specifically denied in the written statement by the defendants, they shall be taken to have been admitted. Since the admitted facts need not be proved, Exhibit A-1 has to be taken to have been proved. Thus, the plaintiffs had proved their claim of title under Exhibit A-1 in respect of the entirety of the suit properties.

58. It is the case of the defendants that Paramasivam Pillai is not the owner of the entirety of the property and that he is entitled to only 1/7th share of the property. The claim of the defendants that Thiruvenkadam Pillai had a second wife by name Arunachalathammal and that she had three sons and two daughters has not been proved through acceptable oral and documentary evidence. The defendants cannot rely on mere slip answers of the plaintiffs' witnesses to support their claims. Further, the defendants have not proved Exhibit B-1, since neither the vendor nor the attestor of Exhibit B-1 was examined. Similarly, Exhibit B-17 has also not been proved by examining the vendor or the attestor. Even though the last page of Exhibit B.17, containing the schedule of properties, was missing, no steps had been taken by the defendants to explain it with convincing reasons.

59. The learned Senior Counsel appearing on behalf of the defendants in the suit O.S. No. 572 of 1996 and the appellants in the Second Appeal No. 1145 of 2006, had contended that since the plaintiffs had claimed the title to the suit properties based on Exhibit A.1 executed by Paramasivam Pillai in favour of their predecessor Arumugha Thevar, the first issue that is to be decided would be as to what share Paramasivam Pillai had in the suit properties. According to the defendants, Thiruvengadam Pillai had two wives and six children including Paramasivam Pillai and that having regard to the admitted fact that the first wife of Thiruvengadam Pillai pre-deceased him, there were 7 heirs left behind by Thiruvengadam Pillai on his death and that Paramasivam Pillai had only 1/7th share in the suit Page 1346 properties. In support of the said fact pleaded by the defendants, both oral and documentary evidence had been let in on behalf of the defendants.

60. It was further contended that the plaintiffs did not file any reply statement to the written statement filed on behalf of the defendants, denying the averments made by them that Thiruvengadam Pillai had two wives and that the second wife had five children. Although the law may not require filing of a reply statement, there is no bar for filing such a reply, especially, when a specific claim had been made by the defendants in their written statement. The plaintiffs had not let in any evidence to contradict the claims made by the defendants with regard to the second wife of Thiruvengadam Pillai and her children.

61. It was also contended on behalf of the defendants that P.W.1, who is the son of Arumugha Thevar, had stated during the chief-examination that the first wife of Thiruvengadam Pillai had pre-deceased him. During the cross-examination, P.W.1 had stated that he was not aware of the fact that Thiruvengadam Pillai had two wives. The statement made by all the plaintiffs' witnesses would go to show that there was no denial with regard to the fact that Thiruvengadam Pillai had a second wife and that he had five children through her. On the contrary, D.W.1, who had been examined on behalf of the defendants, had specifically stated that Thiruvengadam Pillai had two wives and that he had five children through her and from whom the defendants' predecessor had purchased the suit properties. D.W.1 had also spoken about the earlier suit in O.S. No. 155 of 1974, stating that the properties covered by the said suit is the suit schedule property in O.S. No. 572 of 1996. D.W.2 had also spoken about the second wife of Thiruvengadam Pillai and that J.E.S. Thomas had purchased the suit properties from the legal heirs of Thiruvengadam Pillai. D.W.3, who had been examined on behalf of the defendants, had also reiterated the same facts. Further, there has been no proper and sufficient cross-examination to discredit the evidence let in on behalf of the defendants regarding the second wife of Thiruvengadam Pillai and his children born through her and also with regard to the identity of the suit properties.

62. Therefore, in the light of the positive evidence tendered by the defendants and supported by the judgments rendered in the earlier proceedings relating to the suit properties, the findings of the trial Court that Thiruvengadam Pillai had two wives would have to be sustained. The contention of the plaintiffs that none of the witnesses examined on behalf of the defendants were family members of Thiruvengadam Pillai is baseless in view of the fact that there has been no cross examination of the defendants' witnesses in relation to the said issue.

63. With regard to the submissions made on behalf of the plaintiffs that the judgments in the earlier suits are not binding, since the plaintiffs and their predecessors-in-title were not parties to the said proceedings, in view of Sections 41 to 43 of the Indian Evidence Act, 1872, it has been contended on behalf of the defendants that the suits in O.S. No. 155 of 1974 and O.S. No. 12 of 1989, were filed by the first and second defendants, Page 1347 respectively, claiming partition in respect of the suit properties, on the basis of their purchase of the said properties from J.E.S. Thomas, who had purchased the properties from the second wife and the children of Thiruvengadam Pillai. Since the first and second defendants were parties to the said proceedings and since they had let in evidence as to their claims made in the said proceedings and since the properties in issue in the said suit are also the properties in question in the suit O.S. No. 572 of 1996, the reliefs granted in the said proceedings by way of judgment therein are admissible as relevant facts.

64. It is not the contention of the defendants that the said judgment would constitute res judicata or that it could be taken as conclusive evidence. They have been referred to only as corroborative materials to support the evidence let in by the defendants to sustain their claims. It is only when both the plaintiffs and the defendants were not parties in the earlier proceedings, it can be said that the earlier proceedings cannot be relied upon as evidence. Even otherwise, the Court can look into the earlier judgments for the purpose of ascertaining certain aspects with regard to the parties and the properties covered under the earlier proceedings and with regard to the relief granted, in view of the decision of the Supreme Court in State of Bihar v. Radhakrishna Singh and Ors. .

65. With regard to the contention of the plaintiffs relating to the missing last page of Exhibit B.17, it is stated on behalf of the defendants that it is for the plaintiffs to establish their claims with regard to the title in the entirety of the suit property. Since the plaintiffs had failed to establish their claims on account of the fact that Paramasivam Pillai had only 1/7th share in the suit properties, the suit filed by the plaintiffs in O.S. No. 572 of 1996, must fail.

66. It has been contended on behalf of the defendants in the suit O.S. No. 572 of 1996 and the appellants in the second appeals that they have established their title in the suit properties through Exhibit B.17. The judgments in the earlier proceedings, being in favour of the first and second defendants, would establish the claims put forward by them that J.E.S. Thomas had purchased the properties from the second wife and children of Thiruvengadam Pillai. Since there has never been a dispute with regard to the identity of the suit properties during the proceedings both before the trial Court as well as before the Lower Appellate Court, it is not open to the plaintiffs to advance a new argument at this stage as to the identity of the properties in question.

67. It is the contention of the defendants that the document Exhibit A.2 cannot be relied upon to prove the title of the plaintiffs as it is an unstamped and unregistered document. It cannot be said that the admissions of P.W.1 relating to the existence of the second wife of Thiruvengadam Pillai cannot Page 1348 be said to be a mere slip answer, since they have been made consciously and deliberately and as a matter of fact.

68. Therefore, it has been pleaded on behalf of the defendants in the suit, who are the appellants in the second appeals that having regard to the facts and circumstances of the case, the judgment and decree of the Lower Appellate Court deserves to be set aside as it had proceeded on a misconception of the law, misreading of the evidence and by ignoring the relevant evidence, besides referring to and relying upon irrelevant materials.

69. On the other hand the learned Counsel appearing on behalf of the plaintiffs, who are the respondents in the second appeals, while reiterating the facts, has submitted that the suit properties were originally inam lands situated in Vijayaraghava Mudaliar Chattram Village. Thiruvenkadam Pillai was an accountant of Inamdar Mudaliar. Inamdar gave the suit properties by way of Maaniam (Gift) to Thiruvenkadam Pillai. Thus, Thiruvenkadam Pillai became the owner of the suit properties. Arumuga Thevar, the father of the plaintiffs, was in actual possession and enjoyment of the suit properties as a tenant and he was paying Pattam to Thiruvenkadam Pillai during his life time. Thiruvenkadam Pillai had died, on 28.9.1959. Thereafter, Arumuga Thevar, was paying Pattam to Paramasivam Pillai, son of Thiruvenkadam Pillai. Patta in respect of the suit properties was exclusively in the name of Paramasivam Pillai. Paramasivam Pillai had sold the suit properties to Arumuga Thevar under a registered sale deed, dated 7.7.1961. A registered copy of the sale deed has been marked by the defendants as Exhibit B.13. Therefore, from 7.7.1961, Arumuga Thevar became the absolute owner of the suit properties. He had sold 17 cents out of the land purchased under Exhibit A.1 to one Madasamy by a registered sale deed, dated 23.7.1964.

70. It has been further contended on behalf of the plaintiffs that there was a family arrangement amongst the family members of Arumuga Thevar. In the said family arrangement, Arumugha Thevar was shown as the first party and his wife and children were shown as the second party. The suit properties were allotted to the second party i.e., the two wives and children of Arumuga Thevar. The other properties of the family were allotted to the share of the first party i.e., Arumuga Thevar. The said family arrangement was subsequently reduced into writing for the purpose of evidencing the past event of the division of the properties and with regard to their status amongst the family members of Arumuga Thevar by a deed, dated 14.3.1966, marked as Exhibit A.2. Since the said document, Exhibit A.2, is only the recording of the divisions of the properties made prior to the deed, it need not be stamped or registered, as held by a Division Bench of this Court, in A.C. Lakshmipathy and Anr. v. A.M. Chakrapani Reddiar and Five Ors. 2001 (1) CTC 112. After the family arrangement, the wives and children of Arumuga Thevar are in possession and enjoyment of the suit properties as joint owners. The parties are not deriving title for the first time under the deed marked as Exhibit A. 2. Since Arumuga Thevar had died, his legal heirs are jointly entitled to the suit properties by inheritance Page 1349 and thus, they have become joint owners, de hors Exhibit A.2. Arumuga Thevar had died in the year 1970, prior to the filing of the suit. Therefore, the plaintiffs are entitled to prefer the suit for declaration and permanent and injunction, even if Exhibit A.2 is held to be invalid in the eye of law.

71. It has also been contended on behalf of the plaintiffs that the suit properties were originally Inam lands and therefore, the proceedings were taken by the Settlement Tahsildar, Kovilpatti, under the provisions of The Act 26 of 1963. No notice had been issued to the plaintiffs before issuing of Patta to the first and second defendants in the suit. When objections were called for, with regard to the issuing of Patta in the year 1972, the plaintiffs had participated in the enquiry. The Village Karnam had been examined during the enquiry.

72. After a detailed enquiry was conducted, the Settlement Tahsildar issued patta in respect of the suit properties in favour of the plaintiffs by his order, dated 8.1.1973, marked as Exhibit A.4. Thereafter, the plaintiffs names were entered in the 'A' Register. There has been no appeal against the order of the Settlement Tahsildar, Kovilpatti, dated 8.1.1973. Therefore, the Patta issued in favour of the plaintiffs in respect of the suit properties had become final. Thereafter, the defendants had tried to get patta by effecting sub- division of the suit properties. The sub-division proceedings and issuing of patta in favour of the defendants by the concerned authorities were done without any notice to the plaintiffs and without giving them any opportunity of raising objections. Therefore, the plaintiffs had preferred an appeal before the Revenue Divisional Officer, Tirunelveli. Initially, an order of Stay of the proceedings was granted and finally the appeal was allowed. The sub-divisions made in the Patta in favour of the defendants were cancelled.

73. The relevant documents were marked as Exhibits A.6, A.7, A.11 and A.18 to A.20. The plaintiffs had marked Exhibits A.8, A.9 and A.12, which were kist receipts in relation to the suit properties. Thus, the plaintiffs had sufficiently proved their title and possession.

74. It has been further stated that after framing the issues, the trial Court had come to the conclusion that the suit was not bad in law for non-joinder of necessary parties. However, the trial Court had decided the issues Nos. 3 and 4 against the plaintiffs. While doing so, the trial Court had upheld the validity of Exhibit B.14, which is the Release Deed executed in favour of Ayya Subramania Mudaliar, by accepting the contentions of the first and second defendants. However, the trial Court had not held Exhibit A.2 to be invalid. With regard to the issue relating to Exhibit B.17, the trial Court had held that the schedule in the said Exhibit has been explained under Exhibits B.1 to B.3 and the trial Court had also held that the cancellation of sub-divisions and the issuing of Patta had not been given due weightage on the ground that the same had not been effected in the village accounts.

75. The trial Court after coming to the findings as stated above, had dismissed the suit. In the appeal filed by the plaintiffs, the Lower Appellate Page 1350 Court had held that Exhibit A.2, which is the family arrangement, need not be registered as it relates to the recording of a past event. The Lower Appellate Court had also held that Exhibits B.4 to B.12 are not binding upon the plaintiffs. With regard to Exhibit B.17, the lower Appellate Court had reversed the findings of the trial Court by giving valid reasons.

76. Based on the rival contentions put forth by the learned Counsels appearing on behalf of the parties concerned, the points arising for consideration in the present second appeals are as follows:

(i) Whether Paramasivam Pillai had only 1/7th share of the suit properties

(ii) whether the sale deed Exhibit B.17, executed by Arumuga Thevar and his children is valid in law?

(iii) Whether Exhibit A.2, the family arrangement, is admissible in evidence, even though it is unstamped and unregistered.

(iv) Whether Arunachalathammal and her children were entitled to 6/7th share of the properties of Arumuga Thevar.

77. The learned counsel appearing on behalf of the plaintiffs has contended that it is an admitted fact that Paramasivam Pillai is the son of Thiruvenkadam Pillai. Inamdhar patta, Exhibit A.5 stood in the name of Paramasivam Pillai. Paramasivam Pillai had executed the sale deed under Exhibit A.1 to Arumugha Thevar, the father of the plaintiffs 1 to 7. Paramasivam Pillai was the only legal heir of Thiruvenkadam Pillai and therefore, he was entitled to alienate the property in its entirety. The existence of Exhibit A.1, which is the sale deed, executed by Paramasivam Pillai in favour of Arumugha Thevar, has not been denied by the defendants. Hence, Exhibit A.1 stands admitted and proved.

78. In respect of the share in the suit property, the defendants had pleaded that Arunachalathammal is the second wife of Thiruvenkadam Pillai and the children born to her were entitled to 6/7th share of the suit property. In such a case it is for the defendants to prove that Arunachalathammal was the second wife of Thiruvenkadam Pillai by examining witnesses from amongst the members of the family of Thiruvenkadam Pillai. Whereas, the defendants have examined four witnesses on their behalf and none of them belonged to the family of Thiruvenkadam Pillai or of Arunachalathammal. All the four witnesses examined on behalf of the defendants are not competent to depose with regard to the said issue. Even if it is assumed, without admitting, that Arunachalathammal was the second wife of Thiruvenkadam Pillai, since the properties in question are the properties of a Hindu Undivided Family, Paramasivam Pillai, being the elder member of the family and the Kartha of the Hindu Undivided family, was entitled to alienate the suit properties in its entirety. Therefore, Exhibit A.1 ought to be held to be valid in the eye of law.

79. It has been further contended on behalf of the plaintiffs that they are not claiming the title under Exhibit A.2, since Exhibit A.2 is the deed showing the past transaction of separate enjoyment of the suit properties. It need Page 1351 not be registered, as held by this Court in its earlier decisions reported in 1999 (2) L.W. 98 and 2001 (1) CTC 112. Further, the necessity of producing Exhibit A.2 before the Settlement Officer did not arise, since the plaintiffs had claimed the title through Exhibit A.1 and not under Exhibit A.2. The recitals in Exhibit A.2 will clearly establish that the document was executed only as an evidence of a past transaction.

80. It has been further stated that a document has to be read as a whole together with the intention of the executant, as held in Lalji Rao and Ors. v. Jayarama Rao Alias Jawaharlal Rao and Anr. and in F.M. Devaru Ganapati Bhat v. Prabhakar Ganapathi Bhat 2004(1) M.L.J. 180 (SC). With regard to Exhibits A.4 and A.5, which are pattas, it has been stated that the plaintiffs are not claiming title through them. It is only to show that the plaintiffs are in possession and enjoyment of the suit properties. They have been marked as Exhibits. Exhibit A.5 is the Inamdhar patta, which is normally considered to be a title deed and it is different from the patta granted by the Revenue Authorities, as held in State of Madras v. B. Reddiar . Exhibit A.5, which is the Inamdhar patta, stood in the name of Paramasivam Pillai with regard to the entire property. It shows that Paramasivam Pillai was the absolute owner of the property and therefore, it has been taken to have evidentiary value to prove the title as held in Kaliyuga Kannan v. The Tahsildar, Land Survey & Settlement and Ors. 2000 (1) T.L.N.J. 102 and with regard to the possession of the property, as held in Lakshmana Gounder v. The Special Deputy Collector (LA), Salem Steel Plant, Salem and Ors. . It has also been held by this Court in Gopala Chettiar v. Arasappa Pillai A.I.R. 1940 Madras 523 that patta is a strong prima facie evidence of title.

81. It was contended on behalf of the plaintiffs that Exhibit B.17 did not contain the words to show that, Arunachalathammal had executed the sale deed with regard to her 6/7th share in the suit properties. There is no reference to Paramasivam Pillai, the elder son of Thiruvenkadam Pillai. The vendor of the documents, namely, Exhibits B.17 and B.1 have not been examined to prove the title of the documents. When the vendor of the document is not examined, it becomes inadmissible in evidence as held in Mangathayammal v. Ruthirasami Naicker Vol. 89 L.W. 405. Further, there is nothing shown on behalf of the defendants to prove that Arunachalathammal was the second wife of Thiruvenkadam Pillai. Neither the vendors nor the attestors of the sale deeds, marked as Exhibits B.17 and B.1, have been examined. Hence, they cannot be held to have been proved by the defendants, as held in K. Ramanathan (Died) and Ors. v. B.K. Nalini Jayanthi 1996 (2) L.W 658. The witnesses examined on behalf of the defendants are all the subsequent purchasers and they cannot be held to be competent witnesses to speak about the marriage of Arunachalathammmal to Thiruvenkadam Pillai.

Page 1352

82. It was further contended on behalf of the plaintiffs that the presumption under Section 90 of the Indian Evidence Act, 1872, cannot be made applicable to the documents, namely, Exhibits B.17 and B.1, as they are not original documents as held in Patel Manilal Chhanganlal v. The Municipal Corporation, Surat and Ors. , Shiolalsing Gannusing Rajput v. Shankar Motiram Nale , Subudhi Padhan v. Raghu Bhuvan , Dhirendra Singh and Ors. v. Dhanai and Ors. AIR 1983 ALL 216 and Gadey Venkata Ratnam (Deceased) and Ors. v. Gadey Sitaramayya and Ors. AIR 1950 (1) MLJ 720. With regard to the missing of the last page of the document, namely, Exhibit B.17, containing the schedule of the property, it has been contended on behalf of the plaintiffs that the said document cannot be held to be relating to the suit properties. It is the case of the defendants that the Office of the Sub-Registrar, which had given the certified copy of the said documents, had stated that the last page of the document could not be given, as it was torn.

83. The learned Counsel appearing for the plaintiffs has stated that Exhibit B.17 had been produced before the District Munsif Court, Tirunelveli, in O.S. No. 155 of 1974 and the same had been marked by the first defendant as Exhibit A.2. The judgment in the said suit has also been marked in the suit O.S. No. 572 of 1996 as Exhibit B.4. When the defendants had produced Exhibit B.17 in the earlier litigation, it was open to them to call for the said document to be marked in the present suit or a certified copy could have been obtained from the Court Registry. There is no explanation as to why the document had not been called for or the certified copy marked before the trial Court in O.S. No. 572 of 1996. The explanation given on behalf of the defendants that the document in the earlier litigation would have been destroyed is not acceptable, since the second appeal filed against the earlier litigation had ended only in the year 2002 and hence, the claims made by the defendants cannot be held to be valid.

84. Further, in Exhibit B.18 there is a specific recital stating that the registration copy of Exhibit B.17 had been given to the vendee, namely, Sethuramachandra Thevar, the 21st defendant in the suit. In such circumstances, adverse inference has to be drawn against the defendants, under Section 114 of the Indian Evidence Act, 1872, since Exhibit B.17 has not been sufficiently proved and therefore, the case of the defendants cannot be sustained.

85. It has also been contended on behalf of the plaintiffs that when the defendants had taken a specific plea that Arunachalathammal, as the second wife of Thiruvenkadam Pillai, had sold the suit properties to J.E.S. Thomas, under Exhibit B.17 as she had 6/7th share in the suit properties, it is for the defendants to prove their claim by letting in the necessary evidence. Since the defendants had failed to prove their positive claims, it cannot be held in their favour as held in Edara Venkata Rao v. Edara Venkayya A.I.R. (30) 1943 Mad 38(2). The trial Court had held that the schedule in Exhibit B.17 had been explained under Exhibit B.1. However, the Lower Appellate Court had reversed the said finding, after a detailed discussion.

Page 1353

86. With regard to the declaration made in the earlier suit in O.S. No. 155 of 1974, it has been stated that it is not binding on the plaintiffs, since the plaintiffs and the vendor of the plaintiffs were not parties to the earlier litigations. Further, the title of the first and second defendants had not been decided on merits. Ayya Subramania Mudaliar, the first defendant in O.S. No. 155 of 1974, had filed an appeal against the judgment passed in O.S. No. 155 of 1974 in A.S. No. 29 of 1980, before the Sub-Court, Tirunelveli. The appeal had been partly allowed with regard to the title of Thiruvenkadam Pillai. While the title of Thiruvenkadam Pillai had been confirmed, the title of J.E.S. Thomas and the first defendant had been set aside and the appeal was remanded to the trial Court.

87. The said judgment in A.S. No. 29 of 1980 had been marked as Exhibit B.6. After the matter was remanded, Ayya Subramania Mudaliar had not appeared in the suit and therefore, an ex-parte preliminary decree had been passed. On the basis of the ex-parte preliminary decree, a final decree had been passed in the said suit. Thus, the title of the first and second defendants have not been decided on merits. Therefore, the judgment and decree passed in O.S. No. 155 of 1974 is not binding on the plaintiffs.

88. With regard to Exhibits B.4 to B.12 in respect of the marriage between Arunachalathammal and Thiruvenkadam Pillai, it cannot be said to have been proved. Further, it cannot be held to be binding on the plaintiffs, since the plaintiffs are not parties in those litigations. Therefore, the defendants have to independently prove the marriage of Arunachalathammal to Thiruvenkadam Pillai. Since Exhibits B.4 to B.12 are not admissible in evidence except for the limited purpose of proving certain aspects to show as to who the parties were and with regard to the subject matter of the suit relating to which the decree had been passed as reported in State of Bihar v. Sri Radha Krishna Singh and Ors. Vol. 96 L.W. Page 93 and Tripurana Seethapathi Rao Dora v. Rokkam Venkanna Dora and Ors. AIR 1922 Mad 71. Since the defendants had not examined any of the family members as a witness to prove the marriage of Arunachalathammal and Thiruvenkadam Pillai and since the witnesses examined on behalf of the defendants were not competent to speak about the marriage, the defendants have failed to prove their title.

89. Exhibit B.14, which is the Release Deed, had been marked as Exhibit B.3 in the earlier litigation in the appeal in A.S. No. 29 of 1980, on the file of the Sub-Court, Tirunelveli, wherein K. Ayya Subramania Mudaliar had claimed the title against the first and second defendants on the basis of the release deed. The defendants had taken a plea that the release deed was invalid and had succeeded on the said plea and had obtained an order. However, in O.S. No. 572 of 1996, the defendants had relied upon the same release deed to state that the plaintiffs had no right since their father Arumugha Thevar had executed the release deed in favour of K. Ayya Subramania Mudaliar. In such circumstances, the defendants are estopped as they cannot be permitted to approbate and reprobate, by taking contrary stand in different proceedings, as held in R. Murali and Ors. v. Kanyaka P. Page 1354 Devasthanam and Charities and Ors. (2005) 4 M.L.J. 52 (S.C) and P. Saraswathi Ammal v. Lakshmi Ammal alias Lakshmi Kantam .

90. It has also been contended on behalf of the plaintiffs that if the defendants are relying on the Release Deed then it could be taken that they are accepting the title of Arumugha Thevar in respect of the entire suit property. Mere attestation by the first plaintiff, without knowing the contents of the deed, will not amount to estoppel, as held in Kannappan v. Pargunan and 9 Ors. attestation would not imply that the attestor had knowledge of the contents of the document or that the attestor had accepted the contents of such documents, unless it is pleaded and proved, as held in K.A. Selvanachi and Anr. v. Dr. S.R. Sekar and Anr. 2003 (1) CTC 745. Even if it could be assumed that the plaintiff's father had executed a Release Deed, it cannot be held to be valid as the properties were being enjoyed by the plaintiffs. Since the properties were already in the enjoyment of the plaintiffs and their father, separately, as an evidence of the same, the family arrangement, as found in Exhibit A.2, had been made, on 14.3.1966.

91. The learned Counsel appearing on behalf of the plaintiffs had submitted that there is no necessity on the part of the plaintiffs to file a reply statement to the written statement filed by the defendants. The law does not compel or require the plaintiffs to file a reply statement as held in Gita alias Gita Ravi v. Mary Janet James alias M.J. James and Ors. 1995 (2) L.W. 831 and Veerasekara Varmarayar v. Amirthavalliammal and Ors. Vol 87 L.W. 397. In the evidence let in on behalf of the plaintiffs, the second marriage of Thiruvenkadam Pillai with Arunachalathammal has been categorically denied in so many places in the cross examination. It cannot be stated that the plaintiffs have admitted the factum of marriage by a single sentence recorded by way of evidence from the statement of P.W.1. The entire evidence has to be read as a whole and the right inference drawn. Therefore, a single sentence cannot be taken in isolation to draw any valid inference, as held in E.I. Velayutham v. Hajeera (2003) 2 M.L.J. 490 and Boramma v. Krishna Gowda and Ors. (2000) 3 M.L.J. 199 (S.C.). It is a settled principle of law that the Court must see as to how consistent the testimony of the witness is and as to how and what answers fit in with the rest of the evidence and the probabilities of the case.

92. It has been contended on behalf of the plaintiffs that it is clear that the defendants had not produced any document to show that Arunachalathammal is the second wife of Thiruvenkadam Pillai. It has also been stated on behalf of the plaintiffs that the plaintiffs' title through Exhibit A.1 is not denied by the defendants. The pleadings in respect of the title are also not denied. Hence, there is a presumption in law that Exhibit A.1 and the pleadings of the plaintiffs have been admitted by the defendants. Exhibits A.3 to A.20 had been marked on behalf of the plaintiffs to prove their possession of the suit properties. In such circumstances, the claims of the petitions stand proved. Hence, the second appeals ought to be dismissed.

Page 1355

93. From the above submissions, it is seen that one of the main contentions raised in the above Second Appeals is with regard to the question as to whether Paramasivam Pillai, who is the Executor of Exhibit A-1, had the absolute right over the entirety of the properties in question or that he had only 1/7th share in the said property, as it is contended on behalf of the defendants that Thiruvenkadam Pillai, the father of Paramasivam Pillai, had a second wife by name Arunachalathammal, through whom he had five children.

94. With regard to the issue as to whether Exhibit A-2, which is said to be a family arrangement, ought to have been registered for being admitted as evidence, the lower appellate Court had come to the conclusion that it is admissible in evidence, since it is a document recording an earlier event of separate possession and enjoyment of the separate shares of the members of the family. Only if the said document was creating an interest in the property in question for the first time, it has to be stamped and registered to be admissible in evidence.

95. On a reading of Exhibit A-2, it is clear from its recitals that the said document had been made only as an evidence of the past transaction. Exhibit A-2 reads as follows:

Page 1356

96. While reading Exhibit A.2 as a whole, it is clear that it is a deed of family Page 1357 arrangement showing the past transaction of separate enjoyment of the properties amongst the parties shown therein. When the document is not creating any new right in the properties involved and in the transaction dealt with by the document it need not be registered, as held by this Court in A.C. Lakshmipathy and Anr. v. A.M. Chakrapani Reddiar and Five Ors. 2001 (1) CTC 112. It is clear that a document in the nature of a memorandum evidencing a family arrangement already entered into and which had been prepared as a record of what had been agreed upon in order that there are no hazy notions in future need not be stamped or registered. The non-production of the document marked as Exhibit A-2 before the Settlement Officer cannot give rise to any serious doubt with regard to its validity or with regard to its evidential value. Thus, the Lower Appellate Court had come to the right conclusion with regard to Exhibit A-2.

97. Admittedly, Exhibit A-1 is the registered Sale Deed, dated 07.07.1961, by which Paramasivam Pillai, son of Thiruvenkadam Pillai, had sold the suit properties to Arumuga Thevar. The existence of the said document is not disputed by the defendants. The only question that would arise with regard to the said document is as to whether Paramasivam Pillai had sold the entire suit properties to Arumuga Thevar through the said document. The defendants had contended that Paramasivam Pillai could have sold only 1/7th share in the properties of Thiruvenkadam Pillai, since 6/7th share in the suit properties were with Arunachalathammal, being the second wife of Thiruvenkadam Pillai, and her three sons and two daughters.

98. According to the plaintiffs, Thiruvenkadam Pillai had only one wife and Paramasivam Pillai, being the only legal heir of Thiruvenkadam Pillai at the time of his death, was entitled to the entire suit properties. Therefore, Arumuga Thevar became the absolute owner of the suit properties on and from 07.07.1961, which is the date of the Sale Deed marked as Exhibit A-1.

99. In such circumstances, it has been contended that the defendants cannot claim any share in the suit properties which had belonged to Thiruvenkadam Pillai. The claim of the defendants that Thiruvenkadam Pillai had a second wife by name Arunachalathammal through whom he had three sons and two daughters and that they had together sold the properties to J.E.S. Thomas, from whom the defendants had bought the properties, cannot be sustained. The claim of the defendants that Arunachalathammal and her children had 6/7th share of the properties that had belonged to Thiruvenkadam Pillai is not correct, since the defendants could not prove by sufficient evidence that Thiruvenkadam Pillai had a second wife by name Arunachalathammal.

100. On the other hand, the contentions of the plaintiffs can be held to be valid, since no sufficient proof has been shown to sustain the claims of the defendants to prove that Arunachalathammal was the second wife of Thiruvenkadam Pillai and no member of the family of Thiruvenkadam Pillai or of Arunachalathammal was examined as a witness in this regard.

101. It has also been found by the Lower Appellate Court that Exhibits B-4 to Page 1358 B-12 are not binding upon the plaintiffs, since the plaintiffs had not been parties to the earlier proceedings. Therefore, Exhibit B-4 relating to the earlier proceedings is not admissible in evidence except for certain limited purposes as held in 1996 L.W.93, wherein, it was held that the cumulative effect of the various decisions of the Courts of Law is to the effect that under The Indian Evidence Act, 1872, a Judgment which is not inter parties is inadmissible in evidence except for the limited purpose of proving as to who the parties were and as to what was the decree passed and the properties which were the subject matter of the suit. Thus, the Lower Appellate Court had come to the right conclusion holding that the documents relating to certain earlier proceedings were not binding on the plaintiffs. With regard to Exhibit B-14, filed on behalf of the defendants, it has been stated that the plaintiff's, father Arumuga Thevar, had executed the Release Deed in favour of Ayya Subramania Mudaliar and therefore, the plaintiffs would have no right over the suit property, especially, in view of the fact that the first plaintiff was one of the attesting witnesses to the document and therefore, the plaintiffs are estopped from claiming title over the suit properties. However, it is seen that the defendants had taken a plea in the earlier proceedings, in A.S. No. 29 of 1980, on the file of the Sub-Court, Tirunelveli, that the Release Deed was invalid. It is not open to the defendants to rely on the said document to deny the lawful title of the plaintiffs in the present suit. The defendants cannot approbate and reprobate before the Court of Law, as held in R. Murali and Ors. v. Kanyaka P. Devasthanam and Charities and Ors. 2005 4 MLJ 52 S.C. Though pattas cannot be taken as proof of title, the Inamdar Patta issued in favour of the plaintiffs, marked as Exhibit A-5 and the patta in Exhibit A-4 can be taken as evidence to prove possession. Exhibit A-5, Inamdar Patta, stood in the name of Paramasivam Pillai in respect of the entire suit properties. It shows that Paramasivam Pillai was the absolute owner of the suit properties.

102. A contention had been raised on behalf of the defendants that Exhibit B-17 is a document which is more than 30 years old and hence, presumption can be drawn with regard to its validity, under Section 90 of The Indian Evidence Act, 1872, and therefore, it need not be proved. However, it has been found that Exhibit B-17 did not state that Arunachalathammal had executed 6/7th share in the suit properties. Further, there is no averment in the said Sale Deed that Thiruvenkadam Pillai had a son by name Paramasivam Pillai. There is no reference to the fact that Arunachalathammal was the second wife of Thiruvenkadam Pillai. Further, the vendor of the Sale Deeds, marked as Exhibits B-17 and Exhibit B-1, have not been examined to prove the title of the documents and therefore, they became inadmissible in evidence.

103. The findings of the Lower Appellate Court relating to Exhibit A-2, dated 14.03.1966, filed on behalf of the plaintiffs, said to be a Deed of Family Arrangement, relating to the suit properties, is found to be correct. From the recitals of the said document, it is seen that it is a recording of a past transaction of separate enjoyment by which the suit properties of Thiruvengadam Pillai was under separate enjoyment amongst the persons who were parties to the Page 1359 said family arrangement. In such a case, it is settled law that the document need not be registered to be of evidential value. The plaintiffs had sufficiently shown proof of possession, as held by the lower appellate Court, by way of the kist receipts in Exhibits A-8, A-9, A-12, A-13, A-14 and A-17. The Lower Appellate Court has found that by Exhibit A-4, the plaintiffs have been granted Ryotwari Patta, under the Tamil Nadu Inam Estates (Abolition and Conversion into Ryotwari) Act, 1963. The said document has also been taken into consideration to establish the title and possession of the plaintiffs in the suit properties. The Lower Appellate Court had also come to the conclusion that the plaintiffs were not parties to the suit in O.S. No. 155 of 1974 and A.S. No. 29 of 1980 and Second Appeal 1572 of 1988 and also to the suit in O.S. No. 12 of 1989 and A.S. No. 41 of 1996, filed by Pency Grace and Mercy Dharmaraj. Therefore, it has been held that the judgments passed by the concerned Courts in those proceedings are not binding on the plaintiffs.

104. The Lower Appellate Court had also come to the conclusion that the Release Deed in Exhibit A-14, dated 07.07.1968, cannot be accepted due to the existence of the Deed of Family Arrangement, in Exhibit A-2, dated 14.03.1966. It has also been held that the defendants had not shown sufficient proof to substantiate their claims with regard to possession. On the other hand, the plaintiffs have shown that they have been in possession of the suit properties by way of kist receipts and the patta proceedings.

105. The contentions raised on behalf of the defendants that Exhibit A-1 cannot be taken to convey the entire suit properties cannot be accepted, especially, in view of the fact that the defendants have not shown by way of sufficient evidence that Thiruvenkadam Pillai had a second wife by name Arunachalathammal and that he had three sons and two daughters through her.

106. On the other hand, the claim made by the defendants that Arunachalathammal and her children had sold the entire suit properties to J.E.S. Thomas does not stand proved as neither the vendors nor the attestors of the Sale Deed concerned have been examined as witnesses in support of the said documents. Further, there has been no recitals in those sale deeds referring to Paramasivam Pillai son of Thiruvenkadam Pillai, even though the said fact has not been disputed by the defendants. Even according to the defendants, Paramasivam Pillai was entitled to 1/7th share of the properties belonging to Thiruvenkadam Pillai. Further, no acceptable explanation has been given by the defendants as to why the last page of Exhibit B-17 was missing and as to why copies of the said document could not be called for from the Court in which it had been filed earlier. There is also no explanation from the defendants as to why the defendants who were said to be in possession of the copies of the documents could not file the same during the trial of the present case. Further, the defendants have taken inconsistent stand with regard to Exhibit B-14, which is the Release Deed, marked as Exhibit B-3 in the earlier litigation. Having taken a stand in the earlier litigations that the Release Deed was invalid, they cannot rely upon the same in their favour in the present litigation.

Page 1360

107. Therefore, this Court is of the considered view that every document has to be read as a whole to get at the right meaning which it attempts to convey and the oral evidence let in by the witnesses have to be given a meaning in the context in which the statements are made. In such view of the matter, the allegations made by the defendants, with regard to inconsistency in the written document Exhibit A-2 and in the oral evidence of P.W.1, cannot weaken the case of the plaintiffs. Exhibit A-4, which is a patta issued in favour of plaintiffs and Exhibit A-5 which is the Inamdar Patta can be sufficient evidence to show the possession of the plaintiffs in the suit properties, as held by the lower appellate Court. The claim of the defendants that Exhibit B-17 is a document more than 30 years old and hence, presumption is to be drawn in its favour, under Section 19 of The Indian Evidence Act, 1872, would be applicable only to original documents. Therefore, such a presumption cannot be claimed by the defendants with regard to the copies of the said document filed in their favour.

108. For the reasons stated above, this Court finds that the contentions raised on behalf of the appellants in the present second appeals cannot be accepted and therefore, the second appeals S.A. (MD) Nos. 286 of 2005 and 1145 of 2006 are dismissed. No costs. Consequently, connected C.M.P. and M.Ps are closed.

Unlock Advanced Research with PRISMAI

Madras High Court