Chinniah Ambalagarar vs Govindan Ambalagarar

Shanmukham, J.—Defendants 1 and 2 in O.S. 128 of 1975, on the file of the District Munsif Court, Aranthangi are the appellants herein.

The first respondent in the appeal is the plaintiff, while the third defendant in the suit is the second respondent. The first respondent brought O.S.

128 of 1975 for declaration of his title to the suit property and for recovery of possession. The suit property measures 63 cents comprised in S.

No. 14/3 in Kodivayal village, Aranthangi taluk, Pudukottai Dt. The first respondent traced his title through Chidambaram Chettiar, Janaki and

Rajamani Achi, who according to him obtained the suit property in an oral partition between Vaithilingam Chettiar''s family and 3rd defendant. He

claims to have purchased the suit property under Ex.A1 dated 25th June, 1970. Besides the oral partition referred to, according to the plaintiff,

there were two earlier partitions borne out by Ex.A1 dated 17th June, 1983 and A9 dated 31st March, 1957. Both these documents are

unregistered ones.

Appellants 1 and 2 are father and son. Their defences were two fold. The appellants had perfected title by adverse possession in respect of the

suit property. The title in Chidambaram Chettiar, Sockayi and third defendant in respect of the suit property is denied. In respect of 4 cents in the

suit property, the appellants were granted Kudiyiruppu patta.

The third defendant remained ex parte.

Both the Courts below negatived the appellants claim of adverse possession. They relied upon Ex.A5 in which these partitions are admitted by

the first appellant; besides they accepted the oral partition between Vaidhilingam Chettiar''s branch and consequently upheld the first respondent''s

title to the suit property. It is needless to state that the decree passed by the trial court for declaration and possession excluding 4 cents in respect

of which Kudiyiruppu patta was granted to the appellants was affirmed by the learned Subordinate Judge, Pudukottai, in A.S. 24 of 1979

preferred by the appellants herein.

The substantial question formulated at the time of admission of the appeal is-

When the plaintiff sues for recovery of possession of a specific item of property claiming that he obtained it under a partition and the alleged

partition lists are unstamped and unregistered, can they be relied upon to show the allotment of the particular item to the plaintiff?

Mr. Yamunan, learned counsel for the appellants did not argue the point relating to adverse possession obviously aware of the legal impediments

in his way that there is a concurrent finding by both the courts below on this matter. Even otherwise, I find, the documentary evidence admittedly

relied on by the appellants start from the year 1968. The oral testimony of the defence witnesses were disbelieved by both the Courts below.

When there is no documentary evidence, the courts below were justified in negativing the appellant''s claim in this behalf. Thus, the defence on the

strength of adverse possession falls to the ground.

Learned counsel for the appellants was emphatic in his submission when he pointed out that both the Courts below erred in relying upon Ex.A9,

dated 31st March, 1957, an unregistered partition deed. According to the learned counsel, both the Courts below found that under Ex. A9, the

partition is created for the first time and that therefore, it is inadmissible evidence, but nonetheless relied upon the said partition and consequently,

they fell into a grave error on a paint of law. Incidentally, the learned counsel relied upon the description of the properties in Ex. A1, dated 25th

June, 1970 and laid stress particularly on the Tamil expression Ex.A11 was also pressed into service to point out that what was settled by Sokayi

Achi in favour of her daughter is the entire extent of 63 cents and that would negative the case of partition relied on by the first respondent. In

support of his argument, the learned counsel brought to my notice Nalam Ramayya and Others Vs. Nalam Achamma, , Nanni Bai and Others Vs.

Gita Bai, and Subbu Naidu and Others Vs. Varadarajulu Naidu and Others,

In Nanni Bai and Others Vs. Gita Bai, the ratio laid down is-

If the document does not evidence any partition by metes and bounds that is to say, the partition in the latter sense, it does not come within the

purview of S. 17(1)(b), because so long as there has been no partition in that sense, the interest of the separated member continues to extend over

the whole joint property as before. Such a transaction does not purport or operate to do any of the things referred to in that section.

A Full Bench of this Court in Nalam Ramayya and Others Vs. Nalam Achamma, ruled that-

Where a deed of partition is inadmissible by reason of the fact that it has not been registered, a co-sharer who happened to be in sole enjoyment of

a particular property cannot sue to eject another co-sharer who had disturbed his possession when he based his title on the partition deed, Where

the property belonged to the joint family and the agreement for partition cannot be proved for want of registration the court can only regard the

property as still belonging to the joint family.

In the last decision Subbu Naidu and Others Vs. Varadarajulu Naidu and Others, a Division Bench of this Court held:-

Though a valid partition arrangement can be effected orally yet where the terms of the arrangement have been reduced to the form of a document,

S. 91 of the Indian Evidence Act (I of 1872) prohibits the admission of any evidence of the term except the document itself or secondary evidence

of its contents where such evidence is admissible. Where, therefore, the instrument of partition, being unregistered, cannot be admitted as evidence

of the transaction, oral evidence to prove the terms of the agreement is barred.

The prohibition under S. 91 is only a rule of evidence. As pointed out by the Division Bench of this court, it forbids the court from receiving any

evidence in proof of a partition which is sought to be proved by an unregistered partition deed. It must immediately be remembered that such a

partition itself evidences the transaction but has not recorded a past transaction. I am therefore to reiterate that only such a document cannot be

received in evidence, nor can oral testimony be adduced to prove the terms of such a document. But in this case in Ex.A5, dated 27th July, 1974,

a registration copy of the sale deed executed by the first appellant and his another son Muthiah Ambalam, there is a specific reference to the three

partition deeds, viz., Ex. A8, dated 17th June, 1953, Ex.A9 dated 31st March, 1957 and Ex. A10 dated 3rd April, 1957. It is further recited

therein that though the first respondent had purchased 2-1/2 cents, the undivided pangu in the suit property, in view of the partition among the

pangudhars in Exs. A8 to A10, he was given some other property and that the said property was being conveyed by him under the original of

Ex.A5. Therefore, there is the admission of the first appellant himself in proof of the partition relied on by the first respondent. Besides, on the

strength of several partitions referred to therein, the first appellant obtained title to another property which he conveyed under Ex. A5. After all, the

second appellant claims under the first appellant. As rightly pointed out by the learned Subordinate Judge, the appellants are estopped from

contending that there were no partitions as claimed by the first respondent. The principle of estoppel is also a rule of evidence and forms part of the

Evidence Act. As regards the prohibition envisaged under S. 91 and estoppel enshrined in S. 115 of the Evidence Act, the latter projects a

positive state of affairs Above all, the courts of law are to render justice but not to encourage multiplicity of proceedings. Even if the contention of

the appellants were to be upheld, the first respondent would not lose his title to the property, but will only be driven to seek his remedy in a suit for

partition, so long as the unworthy claim of adverse possession was turned down by the Courts below and when it has no legal basis. Thus, the

disposal made by both the courts below has rendered fair justice.

As regards the description the contentions based on Exs.A1 and A11, I must point out, they do not positively suggest that there would not

have been any partition, particularly in the teeth of admissions found in Ex.A5. In the result, the second appeal I ails and is dismissed but without

costs.