Ayyakkannu Padayachi (Deceased) and 3 others vs Boorasamy and another

K.P. Sivasubramaniam , J.—This Second Appeal is directed against the judgment of the learned Subordinate Judge, Ariyalur in A.S.No.2

of 1983 dated 6.2.1984, confirming the judgment of the learned District Munsif, Ariyalur in O.S.No. 1549 of 1980 dated 26.8.1982. The plaintiff

is the appellant in the above Second Appeal. The suit was filed for declaration and injunction on the ground"" that the suit properties are his self

acquired properties having been purchased by him out of his own earnings and the defendants being the sons had no right in the suit properties, that

the defendants have purchased properties separately from their own earnings and they are in enjoyment of those properties and that they are trying

to interfere with his possession and enjoyment of his properties and therefore he has filed this suit.

The first defendant remained ex parte and in the written statement filed by the second defendant, the second defendant contends that the suit

properties were purchased by the plaintiff out of the earnings of the ancestral properties and also with the joint efforts of the plaintiff and the

defendants. It is the joint family property and they have been treated as members of joint family consisting of the plaintiff and the 2nd defendant and

in the year 1980 as the plaintiff was ailing, he divided the properties between defendants 1 and 2 and a list was also prepared evidencing this

partition from that date. The second defendant further contended that both himself and the first defendant are in possession of the properties

obtained by them in the partition Subsequently also the plaintiff has purchased some properties and he is entitled to be in possession of those

properties alone and the plaintiff is not entitled to a declaration and injunction in respect of the suit properties. It is also pleaded that the second

defendant has subsequently purchased properties in his own name and in the name of his wife, being his self acquired properties.

The trial Court after framing issues and considering the oral evidence, came to the conclusion that the properties purchased by the plaintiff

belonged to the joint family and that they were being enjoyed in common by all the parties. With reference to Ex.B-1. which is a memo of

agreement between the parties, the trial Judge has held that Ex.B-1 was a list of items allotted on the basis of a prior partition, and on the basis of

the said findings, the suit was dismissed.

3A. However, on appeal, the learned Appellate Judge found that the properties purchased by the plaintiff were treated as joint family properties,

and blended with the assets of the joint family and therefore, the appeal was dismissed. As against the said Judgment, the above Second Appeal

has been filed.

The learned counsel for the appellant mainly contends that on a reading of Ex.B-1 it will show that it was only under the said document new

rights were created and therefore non registration of the said document would render the same as inadmissible in evidence. He referred to the

provisions u/s 17 and 49 of the Indian Registration Act.

The learned counsel for the appellant also relied on the judgment of this Court reported in Rajamanickam and Others Vs. Elangovan and

Others, That was a case where the document which was unstamped and unregistered was sought to be introduced in order to establish the

allotment of properties. On the facts of that case Ratnam, J. (as he then was) has held that unless partition was made out, the document could not

be received in evidence for proving for collateral purposes.

Reliance has also been placed on the Judgment of Arumughachamy Nadar Vs. Deivanaiammal, In the said decision, the learned Judge

interpreted the expression ""collateral purposes"" with reference to Section 49 of the Registration Act. The proceedings arose out of the Tamil Nadu

Buildings (Lease and Rent Control) Act and by virtue of the document in question, the tenant tried to prove the character of his possession as to

whether his possession was that of a tenant or that of a mortgagee. The learned Judge held that if he wanted to prove his possession as a

mortgagee, the said purpose cannot be treated as a collateral purpose as defined u/s 49 of the Indian Registration Act.

6A. A perusal of Ex.B-1 shows that it was a mere record of understanding reached between the parties earlier, pursuant to a Panchayat. It can

only be stated to be a record of an agreement reached between the parties, after earlier negotiations. Therefore, I am of the opinion that the

document does not require registration.

Mr. Sarvabhauman, learned Senior Counsel appearing for the respondents also refers to the decision of a Division Bench of this Court reported

in AIR 1974 Mad 239-87 L.W.215 (C.S.Kumaraswamy Gounder v. Aragagiri Gounder and another) dealing with the question as to whether a

document of partition would require registration or not and whether a document can be received in evidence for proving collateral purpose or not.

The Division Bench has formulated three stages for an express completed partition which are as follows:-

the stage of effecting a division in status;

the stage of dividing the properties by metes and bounds and

the stage of parties taking possession of the properties allotted to them.

After analysing the various issues that would arises for consideration, the learned Judges concluded that everyone of the three stages can be

effected orally and no document was necessary and that in respect of stages 1 and 3 even if there was a document, it did not require registration as

the said stage cannot be said to declare, assign, limit or extinguish any right, title or interest. The Bench proceeded further and held that it is only

with regard to the second stage, namely, actual division of properties in different shares and allotment thereof to the various members, if the same is

reduced to writing, it required registration u/s 17(1)(b) of the Act. Therefore, having regard, to the nature of Ex.B-1, I am inclined to hold that

Ex.B-1 was only a record of an understanding reached between the parties after the panchayat.

It is significant to note that the plaintiff himself has signed the documents as a witness. It is true that as an attesting witness there can be no

presumption that he had knowledge of the contents of the document. But in the present case it has to be considered along with the fact that he is

the father of both the parties, who are parties to the document and that he cannot be stated to be a stranger. He cannot plead ignorance of the

terms of the document. The defendants have also examined D.W.2, who is the scribe of the document and who has also spoken to the

circumstances under which Ex.B-1 was executed. Therefore, I do not find that there is anything illegal in having admitted the document in evidence

and having taken the document for consideration in deciding the issues.

8A. I have stated earlier that both the courts below have concurrently found that the properties were blended together with the joint family

properties and were always treated as joint family properties, and it is only a question of fact as rightly pointed by Mr. Sarvabhauman, the learned

Senior Counsel appearing for the respondents on the basis of the judgment of the Supreme Court reported in K.V. Narayanan Vs. K.V.

Ranganandhan and Others, ). In the said Judgment, the Supreme Court has held that the question whether the property was separate or self

acquired of a member of a joint Hindu family or whether the property was voluntarily thrown by the owner into the common stock with intention of

abandoning his separate claim therein and whether the question that a coparcener has done so or not is entirely a question of fact.

Therefore both the Courts below, having found that the properties in question were treated as joint family properties and it being a question of

fact, I am unable to interfere with the said findings. Therefore, I am inclined to hold that there are no merits in the above Second Appeal and the

same is liable to be dismissed. Accordingly, the Second Appeal is dismissed. No costs.