Madras High Court
C.Kulasekaran vs R.G.Thirugnanasambandan on 29 October, 2021
Author: N.Seshasayee
Bench: N.Seshasayee
C.S.No.291 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on : 06.09.2021
Judgment Pronounced on : 29.10.2021
CORAM : JUSTICE N.SESHASAYEE
C.S.No.291 of 2013
1.C.Kulasekaran
2.Revathi
3.K.Sundar Kumar
4.R.G.Bagavathi ... Plaintiffs
Vs.
1.R.G.Thirugnanasambandan
2.R.G.Buvanesh
3.R.G.Panchatchari ... Defendants
Prayer : Civil Suit filed under Order XXIV of the Original Side Rules read
with Order 34 Rule 1 of CPC., praying for a judgment and decree :
(a) directing the defendants 1 and 2 to partition the schedule
mentioned property by metes and bounds into 5 equal shares
and allotting 2/5th share to the plaintiffs;
(b) directing the defendants 1 and 2 to pay the mense profits ac-
crued from the rents received from the schedule mentioned
property;
(c) pay the costs of the suit and
(d) pass such further orders as this Court may deem fit.
https://www.mhc.tn.gov.in/judis/
1/17
C.S.No.291 of 2013
For Plaintiffs : Mr.P.Sankaranarayanan
For Defendants : Mr.C.Hanumantha Rao for D1
Mr.A.Ganesan for D2
Mr.K.V.Prakash for D3
JUDGMENT
1. The suit is laid for partitioning the estate of certain Nageswari Ammal. The suit property is described as a plot measuring 4,662 sq.ft., with a building thereon in S.No.406 of Nungambakkam Village. Nageswari Ammal died intestate on 20.4.1986. Her husband Gangadharan pre-deceased her on 06.10.1955. She had three daughters and two sons, of who, one of her daughter named Ullasaramani had passed away at that time when the suit was laid. The first plaintiff is the husband of Ullasara- mani, and the plaintiffs 2 and 3 are the children of Ullasaramani. The an- other daughter of Nageswari Ammal is the fourth plaintiff, and yet another daughter of Nageswari Ammal is the third defendant. Her two sons are arrayed as defendants 1 and 2.
2. The case of the plaintiffs is straight-forward : Nageswari Ammal died in- https://www.mhc.tn.gov.in/judis/ 2/17 C.S.No.291 of 2013 testate and her property devolved equally on her five children, which in- cludes the deceased daughter of Nageswari Ammal, and that the plaintiffs are jointly entitled to 2/5 share in the suit property.
3. The defendants 1 & 2 filed separate written statements, but the right of defense is substantially the same. According to them, that there was an earlier family arrangement between all the children of Nageswari Ammal, and that the same was reduced to writing on 23.01.1998. Under the fam- ily arrangement, the entire property was divided, and as per that the prop- erty was divided into three parts. The first portion was described as 'A' schedule in the family arrangement and it was allotted to the first defend- ant. The property described in the 'B' schedule was allotted to the second defendant, whereas that which is detailed in the 'C' schedule was allotted to all the daughters of Nageswari Ammal. To make it specific, ‘C’ schedule was allotted jointly to the fourth plaintiff, the third defendant and plaintiffs 1 to 3, who as stated earlier are the heirs of Ullasaramani, the predeceased daughter of Nageswari Ammal. It is the further contention that pursuant to the same, mutation in the revenue records and also in records of the Cor- poration have taken place, and the defendants 1 and 2 have begun to assert https://www.mhc.tn.gov.in/judis/ 3/17 C.S.No.291 of 2013 title over the same, and that they have also engaged in acts of ownership by mortgaging the property etc., The suit is barred by limitation. 4.1 The following issues are framed for trial and adjudication :
(1) Whether the plaintiffs are entitled to 2/5 undivided share in the schedule mentioned property?
(2) Whether the family arrangement dated 23.01.1998 is true and bind-
ing on all the legal heirs?
(3) Whether the family arrangement dated 23.01.1998 is admissible in evidence?
(4) Whether the property is a joint family property? (5) Whether the family arrangement dated 23.01.1998 was acted upon? (6) Whether the plaintiffs are entitled to mesne profits? (7) To what other reliefs, the plaintiffs are entitled to? 4.2. For the plaintiffs, the fourth plaintiff has entered the box and through her Exts.P1 to P6 were marked. For the defendants, the first and second defendants were examined respectively as D.W.1 and D.W.2. They have produced Exts.D1 to D31. Of the documents produced on either side, the https://www.mhc.tn.gov.in/judis/ 4/17 C.S.No.291 of 2013 critical document was Ext.D4, dated 23.1.1998, which according to the de- fendants, was the record evidencing the family arrangement that they plead. This document was introduced in evidence during the cross-examination of P.W1. Issues 2 to 5 pertain to or revolve around this family arrangement.
5. The learned counsel for the plaintiffs would submit that Ext.D-4 is not a document recording the family arrangement, but, it is a partition deed. He took the Court through the recital and various clauses of the document and informed the Court that every term therein indicates that the division of the property was intended to take place only under the said document and it cannot be construed as a document recording the family arrangement. He also added that because this document came to be marked in the cross-ex- amination, the learned Master omitted to note the fact that this document was neither stamped nor registered. He relied on the authority reported in A.C.Lakshmipathy and Ors. Vs. A.M.Chakrapani Reddiar and Ors. [(2001) 1 MLJ 1] He also took this Court to the certain passages from the cross-examination of defendants 1 and 2.
6.1 Per contra, the learned counsel appearing for the defendants 1 and 2 https://www.mhc.tn.gov.in/judis/ 5/17 C.S.No.291 of 2013 made the following statements :
(a) When Ext.D-4 was confronted to P.W1 during her cross examina-
tion, she had deposed that the first defendant had visited her and ob- tained some signatures. This implies that her signatures must have been obtained at any time before 23.01.1998, or atleast on 23.01.1998. This implies the execution of the document goes as an admitted fact, and this document was neither denied, nor challenged in the manner known to law.
(b) This apart, besides Ext.D-4, but following the same, there is another document which was signed by all the children of Nageswari Ammal and this is Ext.D11. It is a communication addressed to the Corpora- tion. It is date-less, but it bears the jotting of the Corporation author- ity who received it, and this authority has noted the date as 25.04.2003. In this document, all the parties in unison make a joint statement about the family arrangement, and also the subsequent re- cording of the same under Ext.D4.
(c) These defendants have exercised their right of ownership as could be https://www.mhc.tn.gov.in/judis/ 6/17 C.S.No.291 of 2013 seen from Exts. D7, D9,D10, D12 to D22.
6.2 The learned counsel for the defendants would further argue that a suit for partition is not maintainable since Ext.D-4 is now available on record as an admitted document. Unless this document is impeached in the man- ner known to law, a fresh cause of action for partition cannot arise. Secondly, a suit for cancellation of the document cannot now be filed, even if there was a cause of action for the plaintiffs to challenge it, then it ought to have been instituted latest by 21.01.2001, since under Article 59 of the Limitation Act, it should have been instituted within three years. When Ext.D4 read with Ext.D11 remains on record as unimpeachable documents, then the question of re-partitioning the properties do not arise, He relied on the authorities in P.N.Wankudre Vs. C.S.Wankudre [AIR 2002 Bom- bay 129]; Chandrama Singh Vs. Phagu Ram Verma [2017 AIR VV 2455 (ALL)] and Raghunath Vs. Phulbasia [ 2020 AIR CC 644 (Chhattisgarh)].
7. The counsel for the plaintiffs took this Court through the cross-examina- tion of D.W.2 dated 12.03.2019 to highlight that pursuant to the family ar- rangement, neither revenue mutation nor mutation of property tax register https://www.mhc.tn.gov.in/judis/ 7/17 C.S.No.291 of 2013 had taken place. Even electricity connection, stands only in the name of the first defendant, who again concedes that it is thus standing in the name of the first defendant as he is the head of the family. ISSUES 2 to 5 8.1 While issue 3 requires this court to enter a finding on the genuineness of alleged family arrangement, and on the admissibility of Ext.D-4, issue 5 Pre-supposes the existence of the family arrangement as alleged by defend- ants 1 and 2.
8.2 A critical to resolving the issue is Ext.D4. This document is styled as a deed of family arrangement and was executed by all the five children of Nageswari Ammal on 23.01.1998. In the context of the issue now before the Court, the following recital and operative portion of the document are relevant:
“And whereas the parties of First and Second Parts have been solely maintaining the property, paying the taxes and meeting the in- terest liabilities.
And whereas the parties of 3rd, 4th and 5th part being sisters of the parties of 1st and 2nd part have been claiming rights and a share in the schedule mentioned property.
https://www.mhc.tn.gov.in/judis/ 8/17 C.S.No.291 of 2013 .... ..... ..... ..... .... ..... ..... ..... ..... .... ..... ..... ..... .... ..... ..... ..... ..... And whereas the said agreed decision has been implemented and respective portions of property taken over by the respective parties and it is thought fit that the same should be reduced to writ- ing.
NOW THIS DEED WITNESSETH
1. That the party of 1st part was allotted portion marked ABCD in the sketch annexed hereto and described in the schedule A hereunder and taken over by him.
2. That the party of 2nd part was allotted portion marked CDEF in the sketch annexed hereto and described in the Schedule B hereunder.
3. That the parties of 3rd part 4th and 5th parts were allotted col-
lectively portion marked EFGH in the sketch annexed hereto and described in the Schedule CEFGH hereunder.
4. That the respective parties 1 to 5 mentioned above had already taken possession of the respective portion of the property allotted to each of them and each is at liberty to ap- ply for mutation of name in the public records, without any let or hindrance of other parties.” Each of the highlighted portion in the recital or in the terms of Ext.D-4, in- dicates that it is a recording of what has already taken place. The tense https://www.mhc.tn.gov.in/judis/ 9/17 C.S.No.291 of 2013 used was either simple past, or past participle, and there is no indication that there is an in presenti division of the property under Ext.D-4. In other words, Ext.D-4 is only a memorandum of an oral partition which had already taken place, the style adopted in recording the same notwithstand- ing. Needless to mention that it neither requires to be written in a stamp pa- per, nor does it require any registration and is admissible in evidence. Issue 3 is decided in favour of the defendants.
8.3 The list of corroborative circumstances in aid of legal validity of Ext.D-4 may now be provided:
➢ Ext.P-2 is the pre-suit notice demanding partition. The first defend-
ant had replied it Vide Ext.P-3. In his reply, the first defendant had disclosed Ext.D-4. And, in the plaint it is alleged that the signatures of the 4th plaintiff, Ullasaramani (whose legal representatives are de- fendants 1 to 3), and 3rd defendants’ signatures were obtained without they lending consensus to the same. Having admitted the execution of the document, the plaintiffs cannot avoid Ext.D-4 with only a sentence in the pleading, and this strategy of the plaintiffs fail in this forensic scrutiny.
https://www.mhc.tn.gov.in/judis/ 10/17 C.S.No.291 of 2013 ➢ Secondly, only the 4th plaintiff has examined herself, but not the first plaintiff, who is the most competent witnesses among the heirs of Ullasaramani. And, the third defendant, who joined the plaintiffs in issuing notice, not only chose not to join them in laying the suit, but also chose not to file a written statement explaining the circum- stances under which she signed Ext.D-4. P.W.1 is incompetent to speak for the third defendant, and hers is a hearsay evidence at the best.
➢ It is in this back drop Ext.D-11 needs to be appreciated. It is a letter dated 25-04-2003, signed by all the heirs of Nageswari Ammal to the Corporation Authority, in which both the family arrangement and Ext.D-4 were mentioned. The plaintiffs have no tenable explanation for signing this letter. Even if P.W.1’s version pertaining to Ext.D-4 were presumed to be true, it amazes the Court that a person should commit the mistake of signing one more document against her in- terest five years after Ext.D-4.
9. The next aspect is if the family arrangement has taken effect. This per- https://www.mhc.tn.gov.in/judis/ 11/17 C.S.No.291 of 2013 tains to acts of ownership pursuant to Ext.D-4. The defendants 1 and 2 have produced a list of documents to support this, but critical among them are Exts. D-12, and D-13, both of which are mortgage deeds executed by these defendants as regards the portion allotted to them as evidenced by Ext.D-4. These documents were executed in 2010 and they recite the fam- ily arrangement. This is followed by Ext.D-19 to D-22 lease deeds. Of them two documents (Exts. D-21 and D-22 are after suit), but given the back ground in which these documents are positioned, they merit consider- ation. This apart, the first defendant had also laid RCOP 1115/2006 against one of the tenants of the portion allotted to him which is evidenced by Ext.D-26. This is some seven years before the institution of the present suit. These documents definitely constitute a body of evidence to substan- tiate that the defendants 1 and 2 have acted on the family arrangement. And, there is no rebuttal evidence to nullify their evidentiary value. The plaintiffs only contend that revenue record/corporation records were mutated only during the pendency of the suit, but this has little efficacy in negating the validity of Ext.D-4 or the family arrangement that it has recor- ded.
https://www.mhc.tn.gov.in/judis/ 12/17 C.S.No.291 of 2013
10. In conclusion, both issues 2 and 5 are decided in favour of the defend- ants 1 and 2, and Issue 4 is decided against the plaintiffs.
11.The answer to the Issues 1, 6 and 7 are to state the obvious. The plaintiffs are not entitled to any share in the properties, as the suit property has been already partitioned orally as evidenced by Ext.D-4. The suit has to fail.
12. Now to the conduct of the plaintiffs. They knew that there is Ext.D-4 and D-11, which all the heirs of Nageswari Ammal had executed Still they pretend innocence in trying rather weakly in avoiding Ext.D-4. Courts exist not for someone to wager on litigation and utilise the institution of Courts as Casinos. But that precisely the plaintiffs herein have done. Nor- mally in a suit for partition the Court may not Order costs, but not in this case.
13. Accordingly, the suit is dismissed with costs.
.10.2021 Index : Yes / No Internet : Yes / No ds https://www.mhc.tn.gov.in/judis/ 13/17 C.S.No.291 of 2013 APPENDIX I. Witnesses :
Plaintiff :
PW1 R.G.Bagavathi (4th plaintiff)
Defendant :
DW1 R.G.Thirugnanasambantham (1st defendant)
II. Exhibits :
Plaintiffs :
Ex.P1 05.11.1956 Certified copy of sale deed executed by the vendor of
Nageswariammal, mother of the 4th plaintiff and de- fendants 1 to 3 in her favour Ex.P2 28.07.2011 Original legal notice issued to the defendants 1 and 2 Ex.P3 10.08.2011 Original reply notice sent by 1st defendant's counsel to the plaintiff's counsel Ex.P4 08.09.2006 Original death certificate of Ullasaramani Ex.P5 31.08.2012 Original legal heirship certificate – declaring plain-
tifss 1 to 3 are the heirs of Ullasaramani Ex.P6 03.10.2012 Original Encumbrance certificate for the period 1956 to 2013 Defendants :
Ex.D1 12.01.1971 Certificate issued by the Society for the loan dis-
charged on 03.09.1958
Ex.D2 06.03.1957 Original sale deed
Ex.D3 23.01.2017 Schedule of Property
Ex.D4 23.01.1998 Original Family Arrangement Deed
Ex-D5 Original E.B.Card in the name of 1st defendant
Ex-D6 09.11.1984 Original deed of simple mortgage executed by
Nageswariammal in favour of mortgagee Mrs.Noor- jahan, registered as Doc.No.529 of 1984 Ex.D7 24.04.1989 Original deed of simple mortgage executed by de-
fendants 1 & 2 in favour of mortgagee Mr.K.C.Ab- dul Jabbar, for Rs.1,00,000/-, registered as Doc.No.294 of 1989 https://www.mhc.tn.gov.in/judis/ 14/17 C.S.No.291 of 2013 Defendants :
Ex.D8 28.02.2001 Letter issued by TNEB to the 1st defendant intimat-
ing the payment of retirement benefits Ex.D9 06.04.2001 Receipt for payment of Rs.50,400/- made by 1st de-
fendant towards full settlement against mortgage deed dated 09.11.1984 (Doc.No.529/1984) Ex.D10 06.04.2001 Receipt for payment of Rs.1,35,000/- made by 1st defendant towards full settlement against mortgage deed dated 24.04.1989 (Doc.No.294/1989) Ex.D11 Original letter addressed to the Corporation of Chennai by the 1st defendant requesting sub-division and registration of properties in the names of the legal heirs of Nageswari Ammal, owing to family arrangement Ex.D12 01.07.2010 Xerox copy of mortgage by deposit of title deed ex-
ecuted by the 1st defendant in favour of Mr.K.Kalaimurthy, mortgagee for Rs.4,90,000/- Ex.D13 30.04.2010 Xerox copy of simple mortgage deed executed by the 2nd defendant in favour of Mr.Lalit C.Jain, mort- gagee for RS.10 lakhs Ex.D14 05.02.2018 Original Rent receipt towards rent collected by the 1st respondent from his tenant for the month of Janu- ary 2018, in letting out a portion of his premises for running a shop Ex.D15 05.03.2018 Original Rent receipt towards rent collected by the 1st respondent from his tenant for the month of Feb- ruary 2018, in letting out a portion of his premises for running a shop Ex.D16 05.04.2018 Rent receipt towards rent collected by the 1st re-
spondent from his tenant for the month of March 2018, in letting out a portion of his premises for run- ning a shop Ex.D17 05.05.2018 Original Rent receipt towards rent collected by the 1st respondent from his tenant for the month of April 2018, in letting out a portion of his premises for run- ning a shop Ex.D18 05.06.2018 Original Rent receipt towards rent collected by the 1st respondent from his tenant for the month of May 2018, in letting out a portion of his premises for run- ning a shop https://www.mhc.tn.gov.in/judis/ 15/17 C.S.No.291 of 2013 Defendants :
Ex.D19 21.09.2012 Original Lease deed executed between the 1st de-
fendant and his lessee Mr.K.C.Abdul Jabbar Ex.D20 27.07.2013 Original Lease deed executed between the 1st de-
fendant and his lessee Mr.M.Y.Gowthul Agalam Ex.D21 10.09.2016 Original Lease deed executed between the 1st defen-
ant and his lessee Mr.Sadiq Ali Ex.D22 10.09.2016 Original Lease deed executed between the 1st de-
fendant and his lessee Mr.M.Y.Gowthul Agalam Ex.D23 16.08.2018 Original letter from the plaintiffs' counsel to the 1st defendant's counsel for production of certain docu- ments Ex.D24 06.09.2018 Original letter from the 1st defendant's counsel to the plaintiffs' counsel in reply to his letter dated 16.08.2018 furnishing certain documents Ex.D25 29.08.2002 Original lease deed executed between the 1st defend-
ant and his lessee Mr.K.C.Abdul Jabbar Ex.D26 27.11.2007 Photocopy of order copy in RCOP.No.1115/2006 Ex.D27 Original Electricity consumption charges card that stands in the name of Mr.Abdul Jabbar, the tenant under 1st defendant (Happy Home) Ex.D28 Original Electricity consumption charges card that stands in the name of the 1st defendant (Mobile shop) Ex.D29 Original Electricity consumption charges card that stands in the name of the 1st defendant (Tea shop) Ex.D30 07.01.2018 Original Rent receipt towards rent collected by the 1st respondent from his tenant for the month of December 2017, in letting out a portion of his premises for running a shop Ex.D31 Original Electricity consumption charges card that stands in the name of the 1st defendant (06.2.2018 to 04.6.2018) 29.10.2021 https://www.mhc.tn.gov.in/judis/ 16/17 C.S.No.291 of 2013 N.SESHASAYEE.J., ds Pre-delivery Judgment in C.S.No.291 of 2013 29.10.2021 https://www.mhc.tn.gov.in/judis/ 17/17