Madras High Court
Valliammal vs Thiruvenkidam (Died) on 2 August, 2018
Author: T.Ravindran
Bench: T.Ravindran
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 13.07.2018 PRONOUNCED ON : 02.08.2018 CORAM THE HONOURABLE MR.JUSTICE T.RAVINDRAN S.A.No.2207 of 2004 1. Valliammal 2. Anandapadmanapan 3. Vishnudass 4. Purandiradass 5. Gokuladass 6. Ramadass 7. Kasthuriammal 8. Vasanthammal 9. Babiammal 10.Sundariammal 11.Gomathiammal ... Appellants Vs. 1.Thiruvenkidam (died) 2.Durai @ Rajasekaran 3.Samuthiram 4.Samikannu 5.Saradha Ammal 6.Suseela ... Respondents (RR2, 3 & 6 are recorded as LR's of the deceased R1 vide order of Court dated 21.06.2018 made in C.M.P.Nos.11021 & 11022 of 2016 in S.A.No.2207 of 2004) Prayer :- Second Appeal has been filed under Section 100 of CPC against the Judgement and Decree dated 15.03.2004 passed in A.S.No.181 of 1999 on the file of the I Additional Subordinate Court, Villupuram, reversing the Judgment and Decree dated 24.03.1999 passed in O.S.No.909 of 1991 on the file of the Principal District Munsif (Judge incharge of Additional District Munsif's Court) Thirukoilur. For Appellants : Mr. A. Nilapher for Mr.R.Subramanian For Respondents : Mr.P.Dinesh Kumar for M/s.Sarvabhauman Associates JUDGMENT
Challenge, in this second appeal, is made to the Judgement and Decree dated 15.03.2004 passed in A.S.No.181 of 1999 on the file of the I Additional Subordinate Court, Villupuram, reversing the Judgment and Decree dated 24.03.1999 passed in O.S.No.909 of 1991 on the file of the Additional District Munsif Court, Thirukoilur.
2. The second appeal has been admitted on the following substantial questions of law:
(i). Whether in law the Lower Appellate Court was right in holding that Ex.A.19 partition list was inadmissible in evidence when it is only a memorandum of eviction already made, and did not require registration under Section 17(1)(b) of the Registration Act?
(ii) Whether in law the Lower Appellate Court was not wrong in overlooking that the respondent's claim for the property was based on oral relinguishment by the sisters of Najnammal unsupported by a registered document?
3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail.
4. Suffice to state that the plaintiffs claim title to the first item of the suit properties based upon the sale deed dated 09.05.1977 marked as Ex.A1 and the plaintiffs' claim of title to the first item of the suit properties based upon Ex.A1 has been stoutly resisted by the defendants. According to the defendants, they have set up title on themselves and they had contended that the vendors of Ex.A1 had no title to convey the first item of the suit properties in favour of the deceased first plaintiff and accordingly, it is their case that the plaintiffs cannot claim any title to the first item of the suit properties.
5. The parties are not in dispute that the items 2 & 3 of the suit properties belonged to Ponnusamy Udaiyar and in this connection, Exs.A2 & 3 are pressed into service. The plaintiffs claim title to the items 2 & 3 of the suit properties based upon the premise that he had been adopted by Ponnusamy Udaiyar and the said factum of adoption as projected by the plaintiffs, is seriously contested by the defendants.
6. In the light of the above defence version, it is found that for claiming title to the first item of the suit properties, the plaintiffs have to establish, at the foremost, that the vendors of Ex.A1 had the legal competency to convey the first item of the suit properties in favour of the deceased first plaintiff and for claiming title to the items 2 & 3 of the plaint schedule properties, the plaintiffs have to establish the plea of adoption put forth by them.
7. As regards the claim of title of the vendors to the first item of the suit properties, it is found that the plaintiffs had relied upon the partition list marked as Ex.A19. However, it is found that Ex.A19 partition list is not a registered document. As rightly determined by the first appellate Court, on a perusal of the recitals contained in Ex.A19, it is evident that the parties thereto had endeavoured only to divide the properties detailed therein under the said document and in such view of the matter, it is found that when the parties thereto had chosen to divide the properties detailed therein by way of the said document, the said document partakes the character of a partition deed and in such view of the matter, the document without registration as per law cannot be relied upon for claiming title to the properties mentioned therein. Accordingly, it is found that even in Ex.A1, the vendors had not endeavoured to detail as to how they had acquired title to the first item of the suit properties conveyed thereunder and there is no reference in the same about any partition list marked as Ex.A19 in the present proceedings. Thus, it is found that the first appellate Court, accordingly, on a consideration of the recitals found in Ex.A19 partition list, noting that when by way of the said document alone, the parties thereto had decided to divide the properties as recited in the said document and to enjoy the same thencefrom, the contention of the plaintiffs' counsel that the said document is only a record of an earlier oral partition as such cannot be countenanced and further, as rightly putforth, there is no reference about as to when the alleged oral partition had taken place and even in Ex.A1, there is neither reference about the oral partition nor the partition chit list marked as Ex.A19 and all the facts cumulatively seen would only go to show that the plaintiffs have miserably failed to establish the title of their vendors in respect of the first item of the plaint schedule properties and in such view of the matter, the plaintiffs having failed to establish their vendors title, cannot be allowed to seek title to the first item of the suit properties based on Ex.A1. In such view of the matter, the first appellate Court is right in declining the relief to the plaintiffs as regards the first item of the plaint schedule properties.
8. As abovenoted, the plaintiff, i.e. the deceased first plaintiff claimed title to the items 2 & 3 of the suit properties on the footing that he had been taken in adoption by Ponnusamy Reddiar. However, as rightly determined by the Courts below, there is no proof whatsoever placed that the deceased first plaintiff had been taken in adoption by Ponnusamy Reddiar. In this connection, as rightly determined by the Courts below, no proof has been placed evidencing the factum of adoption of the deceased first plaintiff by Ponnusamy Reddiar and the treatment of the first plaintiff by Ponnusamy Reddiar as his adopted son. Further, the plaintiffs have also not endeavoured to prove the factum of adoption by stating as to when the same took place, in whose presence the same had been effected and who were associated with the alleged factum of adoption projected by them. In this connection, Tmt.Virudambal, the deceased first plaintiff's mother-in-law, inter alia, examined as PW5 though would claim that the deceased first plaintiff was taken in adoption by Ponnusamy Reddiar after complying with necessary formalities, during the course of cross examination, has admitted that she does not know the details as regards the factum of adoption of the first plaintiff by Ponnusamy Reddiar and also admitted that she was also a minor at the relevant point of time. Such being the evidence of PW5, it is found that the Courts below had rightly disbelieved the plea of adoption projected by the plaintiffs and as above seen, no acceptable proof whatsoever has been placed by the plaintiffs to evidence that the deceased first plaintiff was taken in adoption and treated as the adopted son of Ponnusamy Reddiar and in such view of the matter, the contention of the plaintiffs' counsel that the Courts below had erred in disbelieving the plea of adoption putforth by the plaintiffs as such cannot be accepted. Only on the establishment of the abovesaid plea, the plaintiffs as the case, may be entitled to lay a claim of title to the items 2 & 3 of the plaint schedule properties and when the same has not been made out by the plaintiffs in any manner as above discussed and accordingly, the Courts below, on noting that the adoption plea projected by the plaintiffs cannot be accepted sans material pointing to the same, it is found that the first appellate Court had rightly negatived the claim of title to the items 2 & 3 of the suit properties by the plaintiffs. No interference is called for with reference to the same.
9. In support of the plaintiffs' contentions, the decisions reported in (1996) 9 Supreme Court Cases 370 (Bakhtawar Singh Vs. Gurdev Singh and another) and (2003) 8 Supreme Court Cases 740 (Kashi Nath (Dead) Through LRs. Vs. Jaganath) are pressed into service. In support of the defendants' contention, the decision reported in 2000 (4) A.W.C. 3341 (S.C) (Bhagwan Das and others Vs. Girja Shanker and another) is pressed into service. The principles of law outlined in the abovesaid decisions are taken into consideration and followed as applicable to the case at hand.
10. In the light of the above discussions, the first appellate Court is justified in holding that Ex.A9 partition list is inadmissible in evidence as the same is not found to be a memorandum of the oral partition already effected and on the other hand, when it is found that only by way of the said document, the parties thereto had endeavoured to divide the properties detailed therein and to enjoy the same thencefrom, such being the nature of the document, which requires compulsory registration accordingly, it is found that the said document cannot be pressed into service for claiming title to the first item of the suit properties as determined by the first appellate Court. The plea of adoption of the deceased first plaintiff by Ponnusamy Reddiar not having been established, it is found that the first appellate Court is justified in declining the claim of title to the items 2 & 3 of the plaint schedule properties by the plaintiffs. The failure of the defendants in establishing their defence by itself would not automatically entitle the plaintiffs to seek title to the suit properties without establishing their legal claim to the same. In such view of the matter, the plaintiffs cannot be allowed to project the weakness of the defence version and thereby, endeavour to succeed in their lis. The substantial questions of law formulated in the second appeal are accordingly answered against the plaintiffs.
In conclusion, the second appeal fails and is, accordingly, dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.
Index : Yes / No
Internet : Yes / No
sms 02.08.2018
To
1. The I Additional Subordinate Court,
Villupuram.
2.The Principal District Munsif (Judge incharge of Additional District Munsif's Court), Thirukoilur.
3. The Section Officer, V.R.Section, High Court, Madras.
T.RAVINDRAN, J.
sms
Pre-Delivery Judgment made
in S.A.No.2207 of 2004
02.08.2018