Madras High Court
S.N.Dharman vs Elumalai on 26 September, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE OF MADRAS
DATED: 26.9.2012
CORAM:
THE HONOURABLE MR. JUSTICE G.RAJASURIA
S.A.No.364 of 2005
1.S.N.Dharman
2.S.R.Arumugam
3.M.Natesan ... Appellants
vs.
1.Elumalai
2.Devaraj
3.Nagavel
4.Dayalan
5.Chandran ... Respondents
Second Appeal against the judgement and decree dated 29.10.2004 passed by the Sub-Court, Kancheepuram, in A.S.No.62 of 2002 confirming the judgement and decree dated 28.6.2002 passed by the Additional District Munsif, Kancheepuram in O.S.No.492 of 1995.
For appellants :: Mr.V.K.Rajagopalan
For respondents :: Mr.S.Parthasarathy
Mr.L.Mohan for R1 to R3
R4 and R5 notice served
JUDGEMENT
This second appeal is focussed by the plaintiffs in the suit as against the judgement and decree dated 29.10.2004 passed by the Sub-Court, Kancheepuram, in A.S.No.62 of 2002 confirming the judgement and decree dated 28.6.2002 passed by the Additional District Munsif, Kancheepuram in O.S.No.492 of 1995, which was one for permanent injunction.
2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
3. The long and short of the germane facts absolutely necessary for the disposal of this second appeal would run thus:
(i) The appellants herein are the plaintiffs, who filed the suit for permanent injunction, so as to retrain the defendants 1 to 3 from interfering with their peaceful possession and enjoyment of the suit property measuring an extent of 53 cents situated in S.No.298/2 in Palayaseevaram Village, Kancheepuram Taluk, on the main ground that in an oral partition among family members, the property was allotted to their share and they have been in possession and enjoyment of the same; however holus-bolus, the defendants 1 to 3 started interfering with their possession. Whereupon the suit was filed.
(ii) It is also the case of the plaintiffs that their co-sharers, namely, Dayalan and Chandiran are not co-operating with them, hence, they have been cited as defendant Nos.4 and 5 in the suit.
(iii) Per contra, the defendants 1 to 3 filed the written statement contending that in the oral partition, as revealed by the 'Koor Cheettu' dated 23.4.1986, the suit property was allotted to their share and they have been in possession and enjoyment of the same. Accordingly, the defendants would pray for the dismissal of the suit.
(iv) Whereupon the trial Court framed the issues.
(v) During enquiry, the first plaintiff examined himself as P.W.1 along with P.Ws.2 and 3 and Exs.A1 to A7 were marked on the plaintiffs' side. On the defendants' side, the first defendant examined himself as D.W.1 along with D.Ws.2 and 3 and they marked Exs.B1 to B3.
(vi) Ultimately, the trial Court dismissed the suit, as against which, the appeal was filed by the plaintiffs for nothing but to be dismissed by the first appellate Court confirming the judgement and decree of the trial Court.
4. Being aggrieved by and dissatisfied with the judgements and decrees of both the Courts below, this second appeal has been filed by the plaintiffs on various grounds.
5. My learned predecessor framed the following substantial questions of law:
"(1) Whether the trial Court can act upon as per Exhibit B1 (Sale Deed) is legally valid one when the recital of Exhibit B1 did not contain how the vendors to the sale deed got the title of the property?
(2) Whether the non-consideration of Patta Exhibits A1 and A2 stand in the name of the appellants by both the Courts below is legally valid one?
(3) Whether the mere pleadings raised by the respondents 1 to 3 that the suit property allotted to them in the village Panchayat on 23.4.1986 by way of Koorai Cheettu is acceptable in evidence(Court)?
(extracted as such)
6. Heard both sides.
7. The indubitable and indisputable facts could succinctly and precisely be set out thus:
(i) The suit property along with other properties happened to be the ancestral property of a large joint family. One Vellappa Naicker, Chinnappa Naicker, Kolappa Naicker, Arumugam Naicker and Raju Naicker happened to be the five brothers.
(ii) Arumugham Naicker had three sons, namely, 1.Nagappan, 2.Ramasamy and 3.Muusamy.
(iii) Nagappan's son is Dharman-the first plaintiff. Ramasamy's son is the second plaintiff-Arumugam. The said Munusamy had three sons, namely, (i) Venkatesan-the third plaintiff, (ii) Dayalan the fourth defendant and (iii) Chandran the fifth defendant.
(iv) The said Chinnappa Naicker, referred to supra, died leaving behind his two sons, namely, (i) Ekambaram and (ii) Kishtappa Naicker.
(v) Ekambaram died leaving behind his son Elumalai-D1 herein.
(vi) Kishtappa Naicker died leaving behind his son Devaraj-the second defendant herein.
(vii) The said Kolappa Naicker died leaving behind his son Kanniappan Naicker, who died leaving behind his wife Mariammal and his daughter-Valliammal. D3 herein is the husband of said Valliammal. However, Mariammal and Valliammal are not parties to the lis.
8. Both sides in unison would place reliance on the oral partition; however, the plaintiffs would contend that in the oral partition the suit property was allotted to their share; whereas, the contesting defendants 1 to 3 would contend that it was allotted to their share. As such, there is a serious title dispute between the two groups in respect of the suit property. In such a case, there should have been a prayer in the plaint for declaration of title to the suit property.
9. The defendants relied upon a 'Koorai Cheettu' dated 23.4.1986 purported to have emerged in a Panchayat. In the judgement of the trial Court there is a reference to the fact that during the trial, D1 attempted to mark the said 'Koorai Cheettu', but that was rejected on the ground that it was not a registered one. But no order could be seen in that regard and for that matter, in the judgement also the lower Court has not incorporated the order, which was alleged to have been already passed.
10. The proper procedure which ought to have been followed is contemplated in the following judgement of the Honourable Apex Court's judgement:
(2010) 8 SCC 423 [ Shalimar Chemical Works Limited vs. Surendra Oil and Dal Mills (Refineries and others) ]. Certain excerpts from it would run thus:
10. ....................."An objection to the admissibility of the document can be raised before such endorsement is made and the court is obliged to form its opinion would depend, the document being endorsed, admitted or not admitted in evidence. In support of the submission he relied upon a decision of this Court in R.V.E.Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P.Temple where it was observed as follows: (SCC p.764, para 20) "20. .....The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself is inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court." (emphasis in original).
15. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial court should not have "marked" as exhibits the xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. The appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded."
11. A bare running of the eye over the above precedent would also exemplify and demonstrate that marking is different from proving a document or report.
12. The trial Court should have heard both sides and decided on the admissibility or otherwise of the 'Koorai Cheettu' and accordingly order should have been passed.
13. The learned counsel for the respondents herein/defendants would invite the attention of this Court that in fact the document 'koor chit' was not even marked subject to objection.
14. In my considered opinion the procedure adopted by the trial Court was totally erroneous, as it amounts to depriving the appellate Court the chance of scrutinising the admissibility or otherwise of the 'Koor Cheettu'. It is not as though simply because the 'Koorai Cheettu' or the minutes of the panchayat is not registered, it should be discarded as one falling foul of Section 17 of the Registration Act.
15. I would like to extract hereunder various excerpts of the Honourable Apex Court judgments, as found set out in the Division Bench judgment of this Court reported in (2001)1 M.L.J.1 A.C.Lakshmipathy and another v. A.M.Chakrapani Reddiar and others.
"13. In Ram Charam Das v. Girija Nandini Devi and others, (1966)1 S.C.J.61: (1961)3 S.C.R.841: A.I.R.1966 S.C.323, the Supreme Court held that the word family has not to be understood in a narrow sense of being group of persons whom the law recognises as having a right of succession or having a claim to a share in the disputed property. In fact, in a subsequent ruling reported in M/s.D.N.Roy v. State of Bihar, (1971)1 S.C.J.30: A.I.R. 1971 S.C.1041, the Supreme Court held that if the dispute is settled between near relations, then the settlement of dispute can be considered as a family arrangement.
15. It is now settled law that to effect a family arrangement, "all that is necessary is that the parties must be related to one another in some way and have a possible claim to the property or a claim or even a semblance of a claim on some ground as, say affection It was so held by the Apex Court in Ram Charan Das's case, A.I.R.1966 S.C.323.
For the purpose of completeness, reference can be made to:
(a)Pullaiah v. Narasimhan, (1967)2 M.L.J.(S.C.) 14:(1967)1 S.C.J.848: (1967)2 An.W.R.(S.C.) 14:A.I.R.1966 S.C.1836; (b) Shambhu Prasad v. Phool Kumari, (1971)2 S.C.J.650: A.I.R. 1971 S.C.1337.
16. In the ruling reported in Kale v. Deputy Director of Consolidation, A.I.R.1976 S.C.807, the court after referring to various earlier rulings, observed thus:
"Conflict of legal claims in praesenti or in futuro is generally a condition for the validity of the family arrangement, it is not necessarily so. Even bona fide disputes, present or possible, which may not involve legal claims will suffice. Members of a joint family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such a family arrangement is entered into bona fide and the terms thereof are fair in a circumstance of a particular case, courts will more readily give recent to such an agreement than to avoid it.
Family arrangements are bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all will be favoured."
17.Even disputes based upon ignorance of the parties as to their rights were sufficient to sustain the family arrangement (1967)2 M.L.J.(S.C.)14: (1967)1 S.C.J.848: (1967)2 An.W.R.(S.C.) 14 : A.I.R.1966 S.C.1836.
To sum up: To effect a family arrangement all that is necessary is that the parties must be related to one another in some way and have a claim or a possible claim to the property or even a semblance of a claim or spes successionis or even on some other ground as, say, affection or ignorance of the parties of their rights and when the purpose of object of maintaining peace and harmony in the family.
23. It is now fairly well settled that the co-owners can partition the immovable properties orally. But, however where a document is employed to effectuate a partition or any of the transactions specified in Sec.17 of the Registration Act such document must be registered, notwithstanding that the transaction is one which the law does not require to be put into writing. Such unregistered document cannot be looked into to prove the terms of the partition. But, however the same is inadmissible in evidence for the purpose of creating, declaring, assigning, limiting or extinguishing a right to immovable property. The expression "collateral purposes" is no doubt a very vague one and the court must decide in each case whether the parties who seek to use the unregistered document for a purpose which is really a collateral one or as is to establish the title to the immovable property conveyed by the document. But by the simple devise of calling it "collateral purpose", a party cannot use the unregistered document in any legal proceedings to bring about indirectly the effect which it would have had if it registered.
(a) Siromani v. Hemkumar, A.I.R.1968 S.C.1299:
"Of course, the document is admissible to prove an intention on the part of the coparceners to become divided in status; in other words, to prove that the parties ceased to be joint from the dsate of the instrument . . . . "
(b) Roshan Singh v. Zile Singh, A.I.R.1988 S.C.881:
"It is well-settled that the document though unregistered can however be looked into for the limited purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family co-tenants. . . . ."
30. . . . . . in Kale v. Deputy Director of Consolidation, A.I.R.1976 S.C.807, the Apex Court has observed as under:
"In Tek Bahadur Bhujil v. Debi Singh Bhujil, A.I.R.1966 S.C.292, it was pointed out by this Court that a family arrangement could be arrived at even orally and registration would be required only if it was reduced into writing. It was also held that a document which was no more than a memorandum of what had been agreed to did not require registration. This Court had observed thus:
"Family arrangement as such can be arrived at orally, its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in futuro. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess."
16. I would also recollect the following decisions of the Division Bench of this Court:
2008(1) CTC 308 VINCENT LOURDHENATHAN DOMINIQUE AND ANOTHER VS. JOSEPHINE SYLA DOMINIQUE, (judgment of the High Court of Madras) certain excerpts from it would run thus:
"12. In the judgment rendered in A.C.Lakshmipathy v. A.M.Chakrapani Reddiar & others, 2001(1) CTC 112 : 2001(1) LW 257, the Division Bench of this Court, while construing a memorandum recording partial partition in the family which was sought to be marked, after elaborately discussing the entire issues relating to the Indian Registration Act and the Indian Stamp Act and also the concept of estoppel, held that the document in question being unstamped and unregistered cannot be looked into for any purpose. In this regard the Division Bench has summed up the legal position as under:-
"41. We hold that the document in question being an unstamped and unregistered, cannot be looked into for any purpose. Similarly, oral evidence cannot be let it about the contents of the said document.
42. To sum up the legal position:
I. A family arrangement can be made orally.
II.If made orally, there being no document, no question of registration arises.
III.If the family arrangement is reduced to writing and it purports to create, declare, assign, limit or extinguish any right, title or interest of any immovable property, it must be properly stamped and duly registered as per the Indian Stamp Act and Indian Registration Act.
(IV) Whether the terms have been reduced to the form of a document is a question of fact in each case to be determined upon a consideration of the nature of phraseology of the writing and the circumstances in which and the purpose with which it was written (V) However, a document in the nature of a memorandum, evidencing a family arrangement already entered into and had been prepared as a record of what had been agreed upon, in order that there are no hazy notions in future, it need not be stamped or registered.
(VI) Only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess.
(VII) If the family arrangement is stamped but not registered, it can be looked into for collateral purposes.
(VIII) Whether the purpose is a collateral purpose, is a question of fact depending upon facts and circumstances of each case. A person cannot claim a right or title, to a property under the said document, which is being looked into only for collateral purposes.
(IX) A family arrangement which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar in Sec.35 of the Indian Stamp Act."
17. As such, the gist and kernal, the pith and marrow of the law relating to the recording of family arrangement in a document without the necessity of registration, would depend upon the fact as to whether there is any transfer of interest involved under that document or not.
18. Minutes recorded during the Panchayat is on a different footing from an unregistered partition deed and for that matter any other document which creates interest in immovable property.
19. The learned counsel for the contesting defendants would submit that the 'Koorai Cheettu' emerged during a panchayat and that was spoken to by DW.3. To the risk of repetition and pleonasm, I would like to stress upon the fact that oral partition is an admitted fact by both sides and in such a case to find out as to whether the suit property was allotted to the plaintiffs or not. Such minutes recorded during panchayat can be looked.
20. The evidence of D.W.3 would unambiguously and unequivocally highlight that there were about 15 persons in the Panchayat and at that time, discussions were held and a 'Koorai Cheettu' emerged and obviously as per the evidence of D.W.3 coupled with the evidence of D.W.1 it could rightly be understood that the document attempted to be marked was the minutes of the Panchayat and normally minutes of the meeting of a panchayat can never be discarded as one bad for want of registration as per Section 17 of the Act.
21. Then the question might arise as to what credence can be attached to it. Whether such minutes of the Panchayat itself could be treated as a partition deed.
22. The answer is at once clear. A partition deed is entirely different from the minutes of a Panchayat; however the evidentiary value to be attached to such minutes of the meeting is entirely different and it differ from case to case. It is for the Court to analyse after giving permission to the parties concerned to get it marked and to adduce evidence thereon. Thereafter it should be seen whether such minutes of the Panchayat was acted upon or not and both the parties should be heard on that and a reasoned judgement should follow. But in this case, such a course was not adopted at all.
23. A plain reading of the averments in the plaint would display and demonstrate that in the plaint itself the plaintiffs highlighted that the defendants disputed the title of the plaintiffs. In such a case, the trial Court should have directed the plaintiffs to get the plaint amended and to that effect the trial Court has got powers and despite that, if there is default on the part of the plaintiffs, the suit itself can be dismissed.
24. At this juncture, I would like to refer to the judgment of the Madurai Bench of this Court reported in 2007(4) CTC 70 [Chinna Nachiappan and another v. PL.Lakshmanan],an excerpt from it would run thus:
"14. Not to put too fine a point on it, right at the outset, I may proceed to refer to the averments in the plaint at paragraph Nos.4,5,6,7 and 8 which unambiguously and unequivocally referred to a serious title disputes between the plaintiff and the defendants. Paragraph No.8 is extracted hereunder for ready reference:
"Though joint patta had been issued to the plaintiff and his pangalis have been and are in possession as per the partition among themselves. Thus the suit property continues to be in the possession and enjoyment of the plaintiff."
15. The above extract from the plaint itself, is sufficient to non-suit the plaintiff in view of having not prayed for declaration of title. It is trait proposition of law that if the plaint itself contains the averments relating to title disputes between the plaintiff and the defendants, the former cannot simply pray for protecting his alleged possession by filing a Suit for injunction. He should necessarily pray for declaration of his title. In this connection, Order 2, Rule 2 of Code of Civil Procedure, could fruitfully be referred to and it is extracted hereunder for ready reference:
"2. Suit to include the whole claim Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the Suit within the jurisdiction of any Court."
16. Hence, in this view of the matter, the substantial question of law could rightly be decided to the effect that the original Suit is bad for absence of a prayer for declaration of title."
25. A mere perusal of the above extract, including the whole judgment, would disclose and expatiate that this suit was bad for want of prayer for declaration of title. The plaint averments itself would exemplify the same.
26. But such a procedure also has not been adopted in this case. The lower Court's judgement would reveal that the suit was bad for want of adding the said Mariammal and Valliammal-the legal heirs of the deceased Kolappa Naicker. In a suit for declaration of title, naturally, they should also be the necessary parties.
27. The learned counsel for the appellants/plaintiffs would vehemently argue that this is a bare suit for injunction and that was why the other relatives of the plaintiffs were not added and that patta itself, as stood evinced and evidenced in Ex.A1 and Ex.A2, would amply prove that the plaintiffs have been in possession and enjoyment of the suit property and based on that, the Courts below could have decided the case in favour of the plaintiffs.
28. Whereas the learned counsel for the defendants would argue that patta itself cannot be construed as a title deed and simply because the Revenue authorities, behind the back of the defendants, issued patta in favour of the plaintiffs that would not operate as against the real owners of the suit property, because as revealed by the said Koor chit, the suit property was allotted only to the share of D1 to D3. The learned counsel for the defendants would submit that the plaintiffs did not prove the case and the frame of the suit itself was bad in law.
29. The defendants relied upon Ex.B1-the sale deed executed by Valliammal-the wife of D3 in favour of a third party, but that was not even referred to in the plaint. However, the learned counsel for the plaintiffs would argue that, that is an unilateral self-serving document executed by Valliammal which would have no adverse effect on the title of the plaintiffs. But these are all matters which could be considered only when there is a prayer for declaration of title.
30. Scarcely could it be stated that this is not a singularly singular case, which emerged among the relatives. Both sides would plead about the admitted oral partition. But precisely there is no evidence clinchingly relating to the partition and what were all the properties which were allotted to the respective sharers. In fact D1 to D3 relied upon the 'Koorai Cheettu' referred to supra. Even that was not allowed to be marked by the lower Court. In such a case, there is no other go but to remit the matter back to the trial Court with the following directions.
31. The trial Court shall do well to see that the plaintiffs are given opportunity to amend the plaint incorporating the prayer for declaration and also for adding the necessary parties; whereupon opportunity should be given to file written statement as well as additional written statement as the case may be to the respective parties. Additional issues also shall be framed relating to title. Due opportunity shall be given to the defendants to get marked the said 'Koorai Cheettu', subject to whatever objection that might emerge from the other side. Whereupon the Court has to analyse the importance that could be attached to the 'Koorai Cheettu' and also it has to be seen as to whether it was acted upon or not and ultimately, a reasoned judgement should be rendered by the trial Court.
32. Accordingly, the substantial questions of law are answered as under:
Substantial question of law No.(1) is answered to the effect that the recitals in Ex.B1-the sale deed are only unilatoral statement meant by the executant Valliammal and it should be supported by concrete evidence as discussed supra.
Substantial Question of law (2) is decided to the effect that patta alone will not conclude the title is the trite proposition of law, however, it could be relied on to prove possession, if it is not otherwise contradicted by the rival party by adducing evidence.
Substantial Question of law No.(3) is decided to the effect that the 'koor chit' dated 23.4.1986 could be marked, subject to objection, on being produced by the party concerned and its evidentiary value is only to the extent of understanding as to what transpired in the panchayat and in other words, it could only be treated as the minutes of the panchayat proceedings.
33. Accordingly, the judgements and decrees of both the Courts below are set aside and the matter is remanded to the trial Court. The parties shall appear before the trial Court on 1.11.2012. The trial Court shall do well to see that the matter is disposed of within four months from the date of receipt of a copy of this order. However, there is no order as to costs.
Msk To
1. The Sub-Court, Kancheepuram.
2. The Additional District Munsif, Kancheepuram