Madras High Court
Unknown vs Mangamma
Author: J.Nisha Banu
Bench: J.Nisha Banu
A.S.No.493 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Order reserved on 29.10.2024
Order delivered on 03.01.2025
CORAM
THE HONOURABLE Mrs. JUSTICE J.NISHA BANU
and
THE HONOURABLE Mr.JUSTICE.R.KALAIMATHI
A.S.No.493 of 2011
1. K.Srinivasaiah (deceased)
2. K.Ramachandraiah
K.Narayanaswamy (deceased)
3. K.Venkatesaiah
4. K.Vijayakumar (died)
5. K.Govindaraju
6. Saradamma (died)
7. Sarojamma
8. K.Varalakshmi
9. Alumeluammal
10. S.Shilpa,
D/o Late K.Srinivasaiah
https://www.mhc.tn.gov.in/judis
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A.S.No.493 of 2011
11. S.Nandhini (Died)
D/o Late.K.Srinivasaiah
12. S.Manjunatha,
D/o Late K.Srinivasaiah
Appellants 10 to 12 are brought on
record as legal representatives of
deceased 1st appellant vide order of
Court dt. 16.09.2019 made in
CMP.No.13265/18 in A.S.No.493/2011 RPSJ & TKJ) ....Appellants
Vs
1. Mangamma
2. Jayalakshmamma(died)
3. S.M.Chandraiah(died)
4. N.Krishnappa
5. P.Anuradha
6. P.V.Aruna
7. D.P.Vijayalakshmi
8. B.Muralikrishna
9. V.G.Panneerdas and Company
rep. by its Managing Partner,
Chennai.
10. Sadiq Basha
11. R.V.Achari
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A.S.No.493 of 2011
12. Gowrammal
13. Yamuna Bharathi
14. Ashish
15. Akshatha
16. K.Gopalsamy
17. H.Shailaja
18. H.Jyothi
19. H.Bharathi
20. H.Shalini
(R17 to R20 brought on record as
Legal Representatives of the deceased R2
vide court order dt.16.09.2019
made in CmP.922/2019 in AS.493/2011
by RPSJ & TKJ)
21. Sarjapura Badra Reddy Shoba
22. Sarjapura Chandraiah Shruthi
23. Sarjapura Chandraiah Aheeth
(R21 to R23 brought on record as LRs
of the deceased R3 vide Court order dt.28.9.22 made in
CMP.No.16780/2022 in A.S.No.493.2011
by SSSRJ & NMJ)
24.T.Gopal
25. Lakshmi
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A.S.No.493 of 2011
26. Suma
(A6 died, R25 & R26 are brought on record
as LRs of deceased A6 vide order of Court
dt.18.12.2023 made in CMP.No.28497, 28500,
28503, 28552, 28554, 28555, 28558 & 28560/2023
in A.S.No.493 of 2011 by RSMJ & NSJ)
27. Om Prakash
(A11 died, R27 is brought on record
as LR of deceased A11 vide order of Court
dt.18.12.2023 made in CMP.No.28497, 28500,
28503, 28552, 28554, 28555, 28558 & 28560/2023
in A.S.No.493 of 2011 by RSMJ & NSJ)
28. L.Bhagyamma
29. V.Dheeraj
30.V.Tejashree Minor
(A4 died, R28 to R30 are brought on record
as LRs of deceased A4 vide order of Court
dt.18.12.2023 made in CMP.No.28497, 28500,
28503, 28552, 28554, 28555, 28558 & 28560/2023
in A.S.No.493 of 2011 by RSMJ & NSJ) ...Respondents
Prayer: Appeal filed under Section 96 of C.P.C. against the judgment and
decree dated 31.03.2011 passed in O.S.No.15 of 2005 on the file of the
Additional District Court, Krishnagiri.
For Appellants : Mr.Murali Kumaran
for Mr.S.Sundaresan
For Respondents : Mrs.Chitra Sampath,
Senior Counsel
for Mr.R.Bharath Kumar
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A.S.No.493 of 2011
JUDGMENT
(The judgment of this Court was delivered by J.Nisha Banu,J.) This Appeal has been filed by the plaintiffs/appellants challenging the judgment and decree dated 31.03.2011 passed in O.S.No.15 of 2005 on the file of the Additional District Court, Krishnagiri, dismissing the suit.
2. The appellants filed the suit in O.S.No.3 of 1996 on the file of Sub- Court, Hosur and the suit was later transferred to the Additional District Court, Krishnagiri and numbered as O.S.No.15 of 2005. The suit was filed by the plaintiffs seeking for a direction, directing the defendants to divide the suit properties into 64 equal shares and allot 63 shares to the plaintiffs, in default, permit the plaintiffs to seek final decree proceedings and grant permanent injunction restraining the defendants 1 and 2 from alienating the suit properties and cost.
3. The 1st appellant died during the pendency of this appeal and appellants 10 to 12 were impleaded as legal heirs of the deceased 1st appellant. The 4th appellant, 6th appellant and 11th appellant died during the pendency of this appeal and respondents 28 to 30, respondents 25 & 26 and 27th respondent were brought on record as the legal representatives of the deceased 4th appellant, 6th appellant and 11th appellant respectively. The respondents 2 and 3 also died during the pendency of the above appeal and https://www.mhc.tn.gov.in/judis Page 5/27 A.S.No.493 of 2011 respondents 17 to 20 and respondents 21 to 23 were brought on record as legal representatives of the deceased 2nd and 3rd respondents respectively. The respondents 13 to 15 were brought on record as legal representative of the deceased 3rd plaintiff and 16th respondent was brought on record as the legal representative of the deceased 6th plaintiff.
4. The 1st respondent/ 1st defendant and the 11th plaintiff(died) are the legally wedded wife of one T.V.Krishnappa who died in the year 1974 at Chokkanthapuram Village. The 1st respondent/1st defendant is the 1st wife of T.V.Krishnappa and 11th plaintiff is the legally wedded 2nd wife of T.V.Krishnappa and their relationship is not disputed. The 11th plaintiff is a close relative of T.V.Krishnappa and so the 2nd marriage was celebrated because the 1st defendant was not having any male children. The 2nd respondent/2nd defendant is the daughter of the 1st respondent/1st defendant through Krishnappa. Similarly, the plaintiffs 1 to 10 are the children of the deceased through the 11th plaintiff. The plaintiffs 1 to 11 and defendants 1 and 2 are the legal heirs of the deceased Krishnappa for inheriting his share in the joint family properties.
5. The suit was contested by the defendants 1 and 2 mainly on the ground that a Will was executed by Krishnappa in favour of defendants 1 and https://www.mhc.tn.gov.in/judis Page 6/27 A.S.No.493 of 2011 2 during his lifetime in respect of an extent of one Acre in S.No.108, ¾ Acre in S.No.86, one Acre in S.No.66, 3.5 Acres in S.No.44/1 in Chokkanathapuram Village and a tiled house. It is further stated that there was a partition in the family by a Partition Muchalika and it is the specific case of the defendants 1 and 2 that few items in the suit properties, namely, Sl.Nos.3 and 4 in Item No.2 of the suit properties, viz., an extent of 0.01.5 Hectare in S.No.44/1B1 in Chokkanathapuram Village and another extent of 2.07.0 Hectares in S.No.44/1B2 in the same village, were allotted to defendants 1 and 2 and that, by virtue of the said Partition Muchalika, they became absolute owners of the properties. In the written statement, it is further stated that patta was granted on the basis of the said Partition Muchalika in favour of the respective parties and that defendants 1 and 2 have sold the properties in favour of defendants 3 to 8 under a registered sale deed dated 26.07.1995, which is marked as Ex.B4. On the basis of the sale deed, the defendants 3 to 8 also obtained patta. The Revenue documents produced before the Court also establish the same. In the written statement, it is also alleged that the plaintiffs have also dealt with the properties that were allotted to them in the unregistered Partition Muchalika and therefore, it is contended that the plaintiffs are estopped from claiming right, ignoring the document, https://www.mhc.tn.gov.in/judis Page 7/27 A.S.No.493 of 2011 namely the Partition Muchalika, which is also marked as Ex.B6.
6.Before the trial Court, the plaintiffs filed Exs.A1 to A21 and the 5th plaintiff was examined as P.W.1 and apart from that, 3 other witnesses were also examined as P.W.2 to P.W.4. The 2nd defendant was examined as D.W.1 and other witnesses were also examined as D.W.2 to D.W.4 to support the case of the defendants. The defendants marked Exs.B1 to B16.
7.The trial Court found that the document Ex.B6, though was not registered originally, was later impounded and deficit stamp duty was paid along with penalty under Section 35 of the Indian Stamp Act, 1899. Therefore, the trial Court considered the document Ex.B6 to hold that the parties have divided in status by virtue of partition. The trial Court found further that the defendants are in possession and enjoyment of the properties allotted to them under Ex.B6 and that they have also enjoyed the property by cutting and selling eucalyptus trees grown in S.No.44/1B. The defendants 1 and 2 also pleaded that the plaintiffs are dealing with several other properties not covered under the Partition Deed (Ex.B6) and that they have sold their properties under document Ex.B2 proving in evidence that several properties were dealt with by plaintiffs. Under Exs.B1 and B2, the plaintiffs 1 to 7 have sold several other properties describing the properties as one originally https://www.mhc.tn.gov.in/judis Page 8/27 A.S.No.493 of 2011 belonging to Mr.T.V.Krishnappa and declaring that they are the absolute owners of the properties. On the basis of several documents and oral evidence, the trial Court disbelieved the case of the plaintiffs. The defendants 1 and 2 or the purchasers, namely defendants 3 to 8, do not claim any right in respect of other properties except the two properties mentioned in Sl.Nos.3 and 4 of Item No.2 of the suit properties. Therefore, the trial Court did not grant any relief in favour of the plaintiffs on the ground that the purpose of the suit is to deprive the true owners their right to deal with the properties allotted to them under document Ex.B6 and that there is no cause of action for the suit.
8.Aggrieved by the judgment and decree of the trial Court, dismissing the suit in toto, the above appeal is preferred by the plaintiffs.
9. (i) Learned counsel for the appellants would state that the trial Court ought not to have relied upon Ex.B6 Muchalika which is unstamped and unregistered and inadmissible in evidence according to Section 49(c) of the Registration Act and under Section 35 of The Indian Stamp Act. Learned counsel would further state that the trial Court ought to have considered the fact that Ex.B6 Muchalika was allegedly executed in the panchayat as per the alleged decision arrived at in the panchayat and as such Ex.B6 should have https://www.mhc.tn.gov.in/judis Page 9/27 A.S.No.493 of 2011 been registered and duly stamped and in the absence of registration and payment of stamp duty, it should not have been received in evidence. Learned counsel would further state that the trial Court ought not to have given much importance to Ex.B6 Muchalika when all the co-owners/ co-parceners were not made parties to the same as 5th plaintiff, who is one of the co-owners/co- parceners did not join the alleged execution of Ex.B6 Muchalika, even though he was a major on the date of execution of Ex.B6 Muchalika as evidenced by Ex.A20 school certificate and the Court below ought not to have rejected Ex.A20- school certificate when it is an authenticated record that can be safely relied on to prove the age of a person.
(ii) Learned counsel for the appellant would state that Ex.B6 Muchalika is not binding on the 5th defendant who was a major and the plaintiffs 8 to 11 who are the daughters and wife of the deceased T.V.Krishnappa did not executed Ex.B6 Muchalika particularly, when they are the co-owners entitled to have proportionate shares in the suit property. He would further state that in Ex.B4 sale deed executed by the defendants 1 and 2 with respect to disputed properties, there is no whisper about Ex.B6 Muchalika and hence, the said document is a fabricated one and not genuine. Learned counsel would further state that the trial Court ought not to have held that the plaintiffs 1 to https://www.mhc.tn.gov.in/judis Page 10/27 A.S.No.493 of 2011 7 have impliedly admitted Ex.B6 Muchalika merely because they sold some of the joint family properties without the defendants 1 & 2 and that the Court below having held that Ex.B6 Muchalika could be considered for collateral purpose on payment of stamp duty ought not to have relied upon the same for the purpose of conferring title to the defendants 1 & 2 which is not a collateral purpose.
(iii) Learned counsel for the appellants would further state that the defendants are not entitled to the 2nd item of the suit properties in S.Nos.44/1B1 & 44/1B2 by ouster when the defendants 1 & 2 failed to prove exclusive possession and enjoyment of the said properties excluding other co- owners for more than the statutory period. The trial Court erred in holding that the defendants 1 and 2 prescribed title over the 2nd item of suit properties in S.Nos.44/1B1 & 44/1B2 by adverse possession on mere surmises and conjectures without there being sufficient evidence to prove the continuous possession for the statutory period and moreover possession of one co-owner should be treated as possession on behalf of other co-owners also and one co- owner cannot claim adverse possession against the other co-owners. The defendants 1 and 2 are entitled to 2nd item of the suit properties in S.Nos.44/1B1 and 44/1B2 by ouster when the defendants 1 and 2 failed to https://www.mhc.tn.gov.in/judis Page 11/27 A.S.No.493 of 2011 prove exclusive possession and enjoyment of the said properties excluding the other co-owners for more than the statutory period.
(iv) Learned counsel would further state that the trial Court erred in considering Ex.B15, order of interim injunction obtained by the power agent of defendants 3 to 8 against the plaintiffs 5 to 7 to come to a conclusion that the defendants 1 and 2 and their vendees were in continuous and interrupted possession of the disputed property when the said suit has been filed and the order has been obtained in the year 2005 long after the filing of the present suit in the year 1996. He would further state that the trial court has not considered Exs.A17 to A19 and the evidence of P.W.2 and P.W.3 and held that the plaintiffs have been in possession and enjoyment of the disputed property by growing, cutting and selling eucalyptus trees and decreed the suit for partition and separate possession of all the suit properties including the properties claimed by the defendants 1 and 2.
10. (i) Per contra, the learned senior counsel for the respondents 1 to 8 and 21 to 24 would state that the suit was filed by 11 plaintiffs. Out of which, plaintiffs 1 to 5 , 7 to 11 alone filed the appeal against the judgment and decree of dismissal of suit for partition. The 6th plaintiff was added as the 16th respondent in the present appeal. Pending appeal, the 3rd plaintiff https://www.mhc.tn.gov.in/judis Page 12/27 A.S.No.493 of 2011 K.Narayanasamy died and respondents 13 to 15 were added as legal heirs in this appeal. The plaintiffs 1 to 10 are the children of the 11th plaintiff. The 11th plaintiff is the 2nd wife of T.V.Krishnappa. The 1st defendant is the first wife of Mr.T.V.Krishnappa and the 2nd defendant is the daughter born to her through Mr.T.V.Krishanappa. Thus all the co-sharers equally entitled in the estate of late Mr.T.V.Krishnappa.
(ii) Learned senior counsel would further state that though all the sharers were made party to the suit in this appeal, the plaintiffs/appellants filed a memo SR.No.102976/2011 giving up the respondents 9 to 16 in the appeal which was ordered by this Court on 06.07.2023 thereby, the dismissal of the suit suffered by the 3rd and 6th plaintiff has become final as they are no longer parties to this appeal and further, the judgment of the trial court rejecting their claim for partition has become final. He would further state that as the present appellants have given up the respondents 9 to 10, they are not entitled to prosecute the appeal and this court cannot re-write the judgement between the parties thereby contradicting or varying the judgment suffered by the respondents 9 to 16. As the co-sharers are no longer the party, no decree for partition can be granted in the absence of all the shares.
(iii) Learned senior counsel would further state that the suit consists of https://www.mhc.tn.gov.in/judis Page 13/27 A.S.No.493 of 2011 two items. The first item contains 9 survey numbers. The second item contains 4 survey numbers and third item is the house property. As regards Item No.3, a Mangalore tiled house, measuring 36 ankanams now bearing Door No.2/17 in Gramanatham Village site is concerned, the defendants 1 to 3 claimed that in an oral partition in 1983 in the presence of Panchayatars, after the demise of their husband and father, respectively, Mr.T.V.Krishnapapa, the Survey Nos.44/1B1, & 44/1B2 measuring Acre 5.14 and 5 anganan houses were allotted to the share of the defendants 1 and 2. To prove the same, they produced Ex.B6 dated 23.05.1983 named as a Partition Muchalika, duly signed by the plaintiffs 1 to 4 and the 1st plaintiff, signed on behalf of the then minor plaintiffs 5 to 7. It is an unregistered document on stamp papers. It was not signed by the defendants. It is a declaration by the plaintiffs 1 to 4 about what transpired in the Panchayat and they had agreed to the decision of the panchayatdars allotting Survey Nos.44/1B1 and 44/1B2 and 5 Angannan House to 1st and 2nd defendants and that the properties will be enjoyed by the 1st defendant for her life and thereafter, absolutely by the 2nd defendant. The 1st and 2n defendants accepted the Pachayat decision.
(iv) Learned senior counsel would further state that based on the Mucalika, the parties obtained transfer of revenue records in their respective https://www.mhc.tn.gov.in/judis Page 14/27 A.S.No.493 of 2011 names and started enjoying their shares since 1983. Defendants had filed Ex.B3- patta dated 06.06.1985 to prove the transfer of patta and separate enjoyment. DW3 witness to Ex.B6 was also examined to prove the panchayat. P.W.1 the 5th plaintiff in the suit who was a minor at the time of Ex.B6 alone came to the witness box. The plaintiffs 1 to 4 who had signed in Ex.B6 did not chose to give evidence denying their signatures. P.W.1 has no capacity to give evidence on behalf of plaintiffs 1 to 4 regarding the execution of Ex.B6. Failure on the part of the plaintiffs 1 to 4 to tender oral evidence denying Ex.B6 is sufficient to reject their plea and that Ex.B6 is not a genuine document. Ex.B6 is only a declaration by Plaintiffs 1 to 4 and on behalf of plaintiffs 5 to 7 that they are abiding by the Panchayat decision which terms are incorporated in Ex.B-6 and it does not bring about the division or releases any right. Admittedly, the parties are co-sharers and all have equal rights. The mode of division and allotment agreed by the plaintiffs is alone recorded in Ex.B6. Hence, no registration is required. Even if the document Ex.b6 had to be registered, it can still be treated as a family arrangement and looked into for a collateral purpose. In fact, during the course of trial, the document Ex.B6 was impounded to pay additional stamp duty penalty and the same was paid by the defendants.
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(v) Learned senior counsel would further state that the defendants had filed Ex.B-3, B5, B7 to B15 to prove their separate patta and enjoyment The plaintiffs had not produced a single revenue record. Since the defendants 1 and 2 are restricting their claim to Survey Nos.44/1B1 and 44/1B2, they did not chose to produce the revenue records in the name of plaintiffs for other items. The plaintiffs had entered into agreement of sale with 9th defendant in respect of Survey No.45/1, the first Survey number in Item II of the plaint schedule. Ex.B1, the Power of Attorney dated 10.02.1988 given by the plaintiffs 1 to 11 to 9th defendant for sale was witnessed by the 1st defendant as it was pursuant to the panchayat decision. The plaintiff had sold the second Survey No.65/1D in Item II of the plaint schedule to 12th defendant. The plaintiffs, without reference to defendants 1 and 2 had sold these items though it belonged to their father T.V.Krishnappa.
(v) Learned senior counsel would further state that after the dismissal of the suit on 31.03.2011, the 1st plaintiff, children of 2nd plaintiff and children of plaintiffs 4, 7, 9, 10 & 11 had executed the registered sale deed dated 24.12.2012 in favour of one Mr.Ashok Kumar with regard to survey No.45/1 ) (first Survey no. in Item II of the Plaint schedule). The 5th plaintiff and his children executed Sale Deed dated 02.03.2016 in respect of their share in https://www.mhc.tn.gov.in/judis Page 16/27 A.S.No.493 of 2011 Survey No.45/1. On 04.05.2023, the daughter of the 8th plaintiff had executed a registered sale deed in her share in S.No.45/1. The recitals of these registered sale deeds clearly admit the oral partition in their family and that UDR patta had been given to them. P.W.1 had in the cross examination admitted that he was aware of grant of UDR patta to the defendants in 1985 and had not raised any objections till the suit notice on 29.10.1995 Ex.A2. The fact that UDR patta was given to the plaintiffs/appellants share of lands is recorded in the additional documents filed in this appeal. Thus, the respondents had filed the subsequent sale deeds as additional documents in this appeal in C.M.P.No.26685 of 2023 in A.S.No.493 of 2011, since those documents came into existence, pending this appeal.
(vi) Learned senior counsel would further state that by the above conduct of the plaintiffs/appellants who had chosen to deal with the shares allotted to them in the oral partition and recorded in UDR survey with their consent, the appellants have clearly admitted the oral partition, separate enjoyment of their shares as evidenced by revenue records and registered documents. Hence, the suit for partition is not maintainable and the trial court has rightly dismissed the same. Therefore, the learned counsel for the respondents prays to dismiss the appeal.
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11. Heard the learned senior counsel appearing on either side and perused the materials available on record.
12. The suit was filed in the year 1996 before the Subordinate Judge of Hosur for the relief of partition. The suit was numbered as O.S.No.3 of 1996. Originally, there were 11 plaintiffs and 12 defendants in the suit. The 11th Plaintiff is the second wife of one Mr.T.V.Krishnappa. The plaintiffs 1 to 10 were born to 11th Plaintiff through Mr.T.V.Krishnappa. The 1st defendant is the first wife of Mr.T.V.Krishnappa. The 2nd defendant is the daughter of 1st defendant and Mr.T.B.Krishnappa. The 3rd to 8th defendants are purchasers of the suit properties from the 1st and 2nd defendants. The 9th to 12th defendants are purchasers of one property from the Plaintiffs.
13. The suit O.S.No.3 of 1996 was transferred to Additional District Judge, Krishnagiri and the same was renumbered as O.S.No.15 of 2005. The said suit was tried by the Additional District Judge, Krishnagiri, who passed the judgment and decree on 31.03.2011, dismissing the suit. The First Appeal was filed in time on 16.08.2011. However, after passing of the decree and before obtaining the certified copies of the decree, the 3rd plaintiff Mr.K.Narayanaswamy died on 21.04.2011. So his legal heirs have been impleaded as respondents 13 to 15 in the present appeal in C.M.P.No.2 of https://www.mhc.tn.gov.in/judis Page 18/27 A.S.No.493 of 2011 2011 in SR stage of the appeal (A.S.SR.No.70343 of 2011) as ordered by this Court. The 6th plaintiff did not join with the other plaintiffs while filing the appeal. Hence, he was impleaded as the 16th respondent in the first appeal. Thus, 13th to 16th respondents were added as party respondents vide CMP.No.2/2011.
14. The Appeal was numbered as A.S.No.493 of 2011 with 9 appellants, viz., Plaintiffs, 1,2,4,5,7,8,9,10 & 11. During the pendency of this appeal, some of the parties to the appeal passed away. Since the 1st plaintiff/1st appellant Mr.Srinivasaiah died on 27.11.2016, his legal heirs were impleaded as appellants 10 to 12 in the present appeal vide CMP.No.13265 of 2018. Since the 2nd respondent died, the 17th to 20th respondents were brought on record as his legal heirs vide order dated 16.09.2019 in CMP.No.922/2019. The 3rd respondent died on 05.02.2022 and his legal heirs were impleaded as 21st to 23rd respondents vide order in CMP.No.16780/2022 dated 28.09.2022. The notices sent to 17, 18 and 20 respondents were returned as refused. Notice sent to Respondents 10 and 19 were returned as unclaimed and the services deemed to be completed vide court order dated 06.07.2023. When the appeal was called on 06.12.2022, there was no representation for the appellants and this Court directed the https://www.mhc.tn.gov.in/judis Page 19/27 A.S.No.493 of 2011 Registry to post the appeal under the caption 'for dismissal' on 07.12.2022. Even on 07.12.2022, when the matter was called, there was no representation for the appellant. Hence, the Appeal was dismissed for non-prosecution on 08.12.2022. Thereafter, restoration petition was filed and the same was ordered on 01.06.2023 vide order in CMP.No.2789 of 2023.
15. The respondents have filed C.M.P.No.26685 of 2023 in A.S.No.493 of 2011 to receive the additional documents viz., the subsequent Sale Deeds and UDR patta given to the plaintiffs/appellants share of lands.
16. The plaintiffs, 1st and 2nd defendants are all co-sharers and they are equally entitled in the estate of late Mr.T.V.Krishnappa. There are three items shown in the schedule of properties to the suit. Item-I consists of 9 survey numbers. Item-II consists of four survey numbers. Item-III is a house property.
17. The following are the extent and survey numbers of the suit schedule properties:-
Item - I Sl.No. Survey No. Extent(Hec.)
1. 65/1C 0.11.0
2. 108 2.52.5
3. 82/3 0.01.0
4. 82/4B 0.09.0 https://www.mhc.tn.gov.in/judis Page 20/27 A.S.No.493 of 2011 Sl.No. Survey No. Extent(Hec.)
5. 82/6 0.02.0
6. 84/1B 0.05.0
7. 120/3B 0.08.0
8. 86 0.32.0
9. 66 2.25.0 Item - II Sl.No. Survey No. Extent(Hec.)
1. 45/1 3.34.0
2. 65/1D 0.91.5
3. 44/1B1 0.01.5
4. 44/1B2 2.07.0 Item – III A Mangalore tiled house, measuring 36 ankanams now bearing Door Nos.2/17 in Gramanatham Village site, measuring East to West 41 feet, North to South 52 feet.
18. The 1st and 2nd defendants claimed that after the demise of their husband and father respectively, Mr.T.V.Krishnappa, in an oral partition in 1983, in the presence of Panchayatars, the Survey Nos.44/1B1 & 44/1B2 measuring Acre 5.14 and 5 anganan houses were allotted to the share of 1st https://www.mhc.tn.gov.in/judis Page 21/27 A.S.No.493 of 2011 and 2nd defendants. In order to prove the same, they have produced Ex.B6 Partition Muchalika dated 23.05.1983, an unregistered document on stamp papers, signed by 1st to 4th plaintiffs and 1st plaintiff had signed on behalf of the then minor plaintiffs 5 to 7. The said document was not signed by the defendants. A decision was taken before the Panchayatars, in which, a declaration was made by the plaintiffs 1 to 4 that they have agreed for allotting Survey Nos.44/1B1 and 44/1B2 and 5 Angannan House to 1st and 2nd defendants. It was also proclaimed by the 1st to 4thh plaintiffs in the said Muchalika that the properties will be enjoyed by the 1st defendant for her life and thereafter, absolutely by the 2nd defendant and the 1st and 2nd defendants had accepted the Panchayat decision. Based on the Muchalika-Ex.B6, the parties obtained transfer of revenue records in their respective names and started enjoying their shares since 1983.
19. The 1st and 2nd defendants have also marked Ex.B3 patta dated 06.06.1985 to prove the transfer of patta and separate enjoyment by them. They have also examined DW3, witness to prove Ex.B6. P.W.1, the 5th plaintiff in the suit alone was examined who was minor at the time of Ex.B6. Plaintiffs 1 to 4 who had signed in Ex.B6 did not chose to give evidence denying their signatures. The plaintiffs 1 to 4 had not tendered any oral https://www.mhc.tn.gov.in/judis Page 22/27 A.S.No.493 of 2011 evidence denying Ex.B6 and not subjected themselves to cross examination to disprove Ex.B6.
20. Further, Ex.B6 is only a declaration by Plaintiffs 1 to 4 and on behalf of plaintiffs 5 to 7 that they are abiding by the Panchayat decision which are incorporated in Ex.B6. The mode of division and allotment agreed to by the plaintiffs alone was recorded in Ex.B6. Therefore, the said document does not require registration. During the course of trial, the document Ex.B6 was impounded to pay additional stamp duty penalty and the same was also paid by the defendants. As per section 35(e) of the Indian Stamp Act, a document which was insufficiently stamped is admissible in evidence in any court when such instrument is impounded. Therefore, an instrument which was not admissible for want of registration or stamp duty can be admitted in evidence on payment of duty and penalty under Section 35 of the Act. The defendants had filed documents to prove their separate patta and enjoyment marked as Exs.B3, B5, B7 to 15.
21. On the other hand, the plaintiffs have not produced a single revenue record. The plaintiffs had entered into an agreement of sale with the 9th defendant in respect of Survey No.45/1, the 1st Survey number in Item-II of the plaint schedule. Ex.B1, the POA dated 10.02.1988 given by plaintiffs 1 to https://www.mhc.tn.gov.in/judis Page 23/27 A.S.No.493 of 2011 11 to the 9th defendant for sale was witnessed by the 1st defendant as it was pursuant to the Panchayat decision. The plaintiff sold the 2nd Survey No.65/1D in Item-II of the plaint schedule to 12th defendant. The Plaintiffs have sold these items without reference to the 1st and 2nd defendants though it belonged to their father T.V.Krishnappa. The 1st plaintiff, children of 2nd plaintiff and children of 4th,7th, 9th to 11th plaintiffs had executed registered sale deed dated 24.12.2012 in favour of one Mr.Ashok Kumar with regard to Survey No.45/1. The 5th plaintiff and his children executed sale deed dated 02.03.2016 in respect of their share in Survey No.45/1. The daughter of the 8th plaintiff had executed a registered sale deed of her share in S.No.45/1 on 04.05.2023. The recitals in these registered Sale deeds clearly admit the oral partition in their family and that UDR patta had been granted to them. It is also admitted by P.W.1(5th plaintiff) in his cross examination that he was aware of grant of UDR patta to the defendants in 1985 but had not raised any objections till the receipt of the suit notice dated 29.10.1995, Ex.A2.
22. Though the document Ex.B6 was not registered originally, the same was later impounded and deficit stamp duty was paid along with penalty under Section 35 of the Indian Stamp Act, 1899. Therefore, we find that the document, Ex.B6 -Partition Deed or Muchalika is admissible in evidence. It https://www.mhc.tn.gov.in/judis Page 24/27 A.S.No.493 of 2011 is also established from the documents filed by the respondents that the plaintiffs/appellants have also dealt with the properties of their father based on the document Ex.B6. The trial Court also found that the defendants are in possession and enjoyment of the properties allotted to them under Ex.B6 and they are enjoying the property by growing trees. The appellants had dealt with their shares allotted to them in oral partition and recorded in UDR survey with their consent. They have clearly admitted the oral partition and separate enjoyment of their shares as evidenced by revenue records and registered documents. Thus, it is clearly established that the parties had dealt with their shares as per Ex.B6, mutated the revenue records and are enjoying their shares absolutely. Therefore, we do not find any illegality or infirmity in the judgment rendered by the trial Court.
23. In the above facts and circumstances, we do not find any merit in this Appeal and the same is dismissed. The judgment and decree dated 31.03.2011 passed in O.S.No.15 of 2005 by the learned Additional District Judge, Krishnagiri, is confirmed. No costs.
(J.N.B.,J.) (R.K.M.,J.)
03.01.2025
vsi
Index : Yes / No
https://www.mhc.tn.gov.in/judis
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A.S.No.493 of 2011
Internet : Yes / No
To
The Additional District Court,
Krishnagiri.
https://www.mhc.tn.gov.in/judis
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A.S.No.493 of 2011
J. NISHA BANU, J.
and
R.KALAIMATHI,J.
vsi
Pre-delivery order in
A.S.No.493 of 2011
03.01. 2025
https://www.mhc.tn.gov.in/judis
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