G. Venkatesan and Another vs P. Rajamanickam

V. Periya Karuppiah, J.—This appeal is directed against the judgment and decree passed by the First Appellate Court in A.S. No. 51 of

2003 dated 23.9.2009 in confirming the judgment and decree passed by the trial Court in O.S. No. 200 of 1992 dated 23.1.2003 in decreeing

the suit. The appellants herein were the defendants and the respondent was the plaintiff before the trial Court.

The case of the plaintiff in the amended plaint in brief before the trial Court would be thus:

Initially, the suit was filed for permanent injunction. After the filing of written statement, the suit was amended and a prayer for declaration has been

included. The case of the plaintiff as per the amended plaint is that the suit property absolutely belonged to him. It is his self-acquired property. He

purchased a vacant site for a valuable consideration as per the registered Sale Deed dated 29.12.1963. He has constructed a house in the suit

property and is residing there. He is paying house tax for the suit property to the Jolarpet Panchayat. He is in possession and enjoyment of the

same ever since the date of his purchase. The defendants who have no right or interest over the suit property, are trying to trespass into the suit

property, taking advantage of the fact that it is a vacant site. The plaintiff had prevented the attempt of trespass by the defendants on 24.2.1992.

Hence, he has filed the present suit for the above said relief.

The objections of the defendants in the form of written statement before the trial Court would be thus:

They have denied all the allegations. According to them the suit property is not the self-acquired property of the plaintiff. It is ancestral property of

the plaintiff and the 2nd defendant. The plaintiff is having two brothers by name Murugesan and the second defendant and also is having six sisters.

Since the suit property is the ancestral property, the plaintiff and his sisters and brothers are having right over the same. The plaintiff and his brother

Murugesan and the 2nd defendant had partitioned the suit property through a ""Koorchit"" on 31.3.1978. The plaintiff is a party to the ""Koorchit"". In

the said partition, the plaintiff was given ""A"" schedule property, Murugesan was given ""B"" schedule property and the ""C"" schedule property was

allotted to the 2nd defendant. Hence, the plaintiff is estopped from raising the plea that the suit property is the self-acquired property. The

defendants have denied the purchase made by the plaintiff on 29.12.1963. According to them, the said Sale Deed is bogus and not acted upon.

On the date of the execution of the Sale Deed, the plaintiff was only a minor and he had no sufficient funds to purchase the suit property. After the

Koorchit"", the respective parties had taken possession of their respective shares. The house in the suit property was constructed 70 years ago.

The 1st defendant had purchased the share of Murugesan, i.e., the ""B"" Schedule property on 1.9.1978 for a valuable consideration. From the date

of his purchase, he has been in possession and enjoyment of the same. After purchase, the 1st defendant applied to the Jolarpet Panchayat on

17.10.1986 to grant permission to construct house in the suit property. The plaintiff raised an objection on 22.10.1986 and the Panchayat

Executive Officer conducted an enquiry and overruled the objection of the plaintiff. The plan was approved by the Panchayat on 7.6.1988. The

suit property was absolutely belonged to the defendants only and they did not commit any trespass. The suit is barred by limitation. The other

sisters of the plaintiff are also having right over the suit property and the legal representative of Murugesan have to be impleaded. Hence, the suit is

bad for non-joinder of necessary parties. The 1st defendant is the brother-in-law of the plaintiff. The plaintiff has no right, title or interest over the

suit property and he prays for the dismissal of the suit with costs.

The trial Court had framed necessary issues and entered trial. After appraising the evidence adduced on either side, the suit filed by the plaintiff

was decreed without costs.

Aggrieved upon the judgment and decree passed by the trial Court, the defendants preferred the appeal before the First Appellate Court in A.S.

No. 51 of 2003. After hearing the arguments on both sides, the First Appellate Court had come to the conclusion of dismissing the appeal and

thereby, the judgment and decree of the trial Court were confirmed.

The defendants aggrieved by the judgment and decree passed by the Appellate Court, have preferred the second appeal before this Court.

On admission of the second appeal, this Court had formulated the following substantial questions of law:

Whether the findings of the Courts below are not perverse inasmuch as they are against the documentary proof, namely the ""Koorchit"" under

Exhibit B-5?

Whether the order of the Courts below are not contrary to Exhibit B-5, the ""Koorchit"" wherein the plea of partition has been evidenced?

Heard Ms. V. Srimathi learned counsel for the appellants/defendants and Mr. P. Anand, learned counsel appearing on behalf of Mr. P.

Muthukrishnan, learned counsel for the respondents/plaintiffs.

The learned counsel for the appellants/defendants would submit in her argument that the judgment and decree passed by the First Appellate

Court in concurrent with the judgment and decree of the trial Court, are erroneous in law. She would further submit that the property in question

was originally belonged to joint family but purchased in the name of the plaintiff and it cannot be a self-acquired property, in the wake of proof of

Exhibit B-5 a koorchit entered between the plaintiff and his brothers. She would further submit in his argument that the plaintiff did not adduce any

evidence to show that the property was purchased as a self-acquired property. She would further submit that while the property was purchased in

the name of the plaintiff, the mother had signed as an attestor, in order to show that the property was purchased in the name of the plaintiff as

eldest male member of the family when the defendants were minors under the care of the mother. She also submit that the execution of Exhibit B-5

would go to show that the property was put in the hotch-pot of the joint family so as to give a character of the joint family property and therefore,

the plaintiff is estopped from claiming that the property was his self-acquired property. She would further submit in her argument that the plaintiff

had not established that he had got enough funds to purchase the property in the year 1963 and therefore, the production of Exhibit B-5 would go

to show that it was a joint family property and it was divided through an oral partition, which was evidenced by Exhibit B-5. She would further

submit that the importance of Exhibit B-5 was not considered by both the Courts below and the proof of Exhibit B-5 would establish that the

plaintiff cannot claim exclusive title over the suit property as he was also estopped from claiming them as a self-acquired property and he himself

has admitted as joint family property and had put it for partition. She would further submit that the concurrent judgment of the First Appellate

Court even though concurrent, it is liable to be interfered since there was no proper partition of evidence and the correct conclusion of the case in

the wake of Exhibit B-5. She would also rely upon the judgment of Hon''ble Apex Court in Bondar Singh and Others Vs. Nihal Singh and Others,

in support of her argument. She would also draw the attention of the Court the judgment of Division Bench of this Court in A.C. Lakshmipathy and

another Vs. A.M. Chakrapani Reddiar and five others, in respect of the admissibility of unregistered and unstamped family arrangement. She

would also request the Court to interfere with the judgment and decree passed by the First Appellate Court which failed to interfere in the

judgment of the trial Court as it was against the evidence and legal proceedings. Therefore, she would request the Court that the second appeal

may be allowed and thus, the judgment and decree passed by the Court below may be set aside and consequently, the suit filed by the plaintiff

before the trial Court may be dismissed.

The learned counsel for the respondent would submit in his argument that the evidence of P.W.1 was promptly appreciated by the Courts

below and on the basis his evidence, it was considered that the property was purchased by the plaintiff himself as his self-acquired property. He

would further submit that the onus shifted on the defendant to prove that the property belonged to joint family was not discharged by the defendant

and therefore, the evidence adduced regarding Exhibit B-5 would not germane for consideration. He would also submit that if it is proved to be a

joint family property, then only the division of property through Exhibit B-5 would come into play. He would also submit that the plaintiff denied the

execution of Exhibit B-5, the ''Koorchit'' and the same was not proved by the defendants through cogent evidence adduced. He would further

submit in his argument that the mere production of Exhibit B-5 would not prove that the property is a joint family property. He would also submit

that no witness has been examined to prove Exhibit B-5. It is further submitted by the learned counsel for the respondent that the ''koorchit

''produced in Exhibit B-5 was an unregistered and unstamped document, which is not admissible in law to prove the oral partition. He would also

draw the attention of the Court to a judgment of this Court in Rengasami Reddiar (died), Mummachi Reddiar, Kunnammal, Rajalakshmi @

Rajammal, Leela and Malarkodi Vs. M.K. Mummachi Reddiar (died), Gunnammal, Errayee Ammal, Nallammal, Bolammal Thatha Reddiar,

Chellammal, Anandhakumar and Sudhakar, in support of his argument. Therefore, he would submit that the concurrent judgment reached by both

the Courts below regarding the finding of fact that the suit property was not a joint family property, need not be interfered and thus, the second

appeal may be dismissed.

I have given anxious thoughts to the arguments advanced on either side.

The case of the plaintiff would be that the suit property belonged to him by virtue of purchase made by him on 29.12.1963. The said document

showing the purchase made by the plaintiff was produced in Exhibit A-1. Admittedly in the said property, the plaintiff is stated to have raised

construction in some part and the remaining parts are still vacant. The case put-forth by the plaintiff was that the defendants have seriously indulged

in interfering with the possession of the plaintiff in respect of the vacant site. Both the Courts below have found that the plaintiff is entitled to the suit

property by virtue of his purchase evidenced by Exhibit A-1 and through his possession of the said property through the property tax receipts

produced by him in Exhibits A-22 to A-25. The plaintiff has also produced the approval of the house building in Exhibits A-39 and A-40 and the

voters ID card was produced as Exhibit A-43. The other documents produced by him were after the suit. However, the defendants have

produced Exhibit B-1 sale deed executed by one Murugesan in favour of the 1st defendant in respect of a part of the suit property in the year

1978. The case of the defendant would be that the plaintiff was one of the brothers of the 2nd defendant and one Murugesan. The mother of all the

three brothers was one Gangammal, who attested the sale deed. No doubt, the sale deed was standing in the name of the plaintiff to show a prima

facie case in favour of the plaintiff. However, the said case was denied by the defendants in their written statement by putting forth the oral

partition, evidenced by a ''koorchit'' entered in to between parties on 31.3.1978 which included the plaintiff also as one of the parties. The said

plea of the defendant that the koorchit was executed in between parties would include the plaintiff on 31.3.1978, was not denied by the plaintiff by

way of filing any reply statement. However, he has amended the plaint seeking for a declaratory relief along with the already prayed relief of

permanent injunction in the suit. No further pleadings have been introduced by way of amendment in respect of ''koorchit'' dated 31.3.1978 as his

denial. However, the said document has been produced as Exhibit B-5 to evidence the oral partition. The plaintiff did not object the admissibility of

the said document, at the time of its production in the evidence. The said ''koorchit'' produced in Exhibit B-5 would go to show that it contained

the signature of the plaintiff as one of the executants. The said division of properties had in between parties including the plaintiff was spoken to in

the sale deed produced by the 1st defendant in Exhibit B-1, by mentioning the sale executed by one Murugesan based upon his right in the suit

property accrued through Exhibit B-5. The partition had in between the son Ponnusamy and Gangammal was mentioned in the said sale deed

Exhibit B-1. No doubt, the said sale deed was of the year 1978 but, the plaintiff had filed the suit in the year 1992 claiming to be in possession of

the vacant site lying adjacent to his house. In Exhibit B-1, I could see that the western boundary is given as plaintiffs house.

At this stage, the only point to be seen is whether Exhibit B-5 would be sufficient to prove that the property was purchased in the name of the

plaintiff for the benefit of all the members of the joint family. No doubt, it is true that the plaintiff is shown as one of the executants in Exhibit B-5,

the ""koorchit"" said to have been executed in between the plaintiff and the brothers of the plaintiff namely Murugesan and the 2nd defendant. The

finding of the trial Court was that there was no person connected with Exhibit B-5 was examined to prove the said document. Of course, D.W.2 is

also a party to the said document and he is one of the brothers of the plaintiff who deposed that the family arrangement or the oral partition was

held in between parties with the help of panchayatars and those panchayatars had divided the said property. On the decision of the panchayatars,

the said properties were divided and they have accepted the same and therefore, the ''koorchit'' has been executed for the said purpose. The

judgment of this Court in Rengasami Reddiar (died) and Others v. M.K. Mummachi Reddiar (died) and Others (supra) was drawn to the attention

of this Court that an un-stamped and un-registered document showing the division of properties in between parties cannot be an admissible

document. The relevant passage would be as follows:

...There is no averment regarding the existence of joint family properties nor is there anything to show that there was a dispute which was

resolved by the Panchayat. But what is evident is, it is this document which is the source of title ...

...But a reading of this document, the properties were divided. So, this document was intended to create the separate rights in the immovable

property an therefore, it is not admissible in evidence and Courts cannot also let in any oral evidence with regard to such a document. Exhibit A4 is

not admissible in evidence, and cannot be relied on.

The principle laid down by this Court was that if the right is created under the document in the nomenclature of family arrangement dividing the

joint family property, it requires proper stamp and registration. However, an exemption to that principle is that the dispute could be shown to have

resolved by panchayat, so as to evidence the divisions of property earlier. The said document was stated to have divided the properties only

''presenti''. As far as this case is concerned, the reading of Exhibit B-5 would go to show that there was a panchayat and according to the

resolution of the panchayat, the division was made in between them and they all agreed to have the said property with them. Therefore, we could

see that the partition has taken place on the decision of the panchayat which had already taken place in between parties and this ''koorchit'' in

Exhibit B-5 was executed only to evidence the resolution of panchayat. In the judgment of Hon''ble Division Bench of this Court in A.C.

Lakshmipathy and another Vs. A.M. Chakrapani Reddiar and five others, it has been categorically laid down the same principle, which are as

follows:

41(v) However, a document in the nature of a Memorandum, evidencing a family arrangement already entered into and prepared as a record of

what had been agreed upon, in order that there are no hazy notions in future, need not be stamped or registered.

As far as this case is concerned, the panchayat has resolved to divide the properties into three schedules to those three persons and

accordingly, it was accepted and to evidence the same ''koorchit'' Exhibit B-5 has been written. Therefore, I could see that such a document

Exhibit B-5 which was not disputed by the plaintiff in his pleadings nor at the time of producing evidence cannot now be questioned by the plaintiff

as not executed by him. The trial Court as well as the First Appellate Court have not considered the evidence properly towards the proof of

Exhibit B-5 since D.W.2, who was a party to the document, was examined to prove the same, but the Courts below have come to the conclusion

that no one connected with the document Exhibit B-5 was examined. Therefore, the proof of Exhibit B-5 through D.W.2 would go to show that

the plaintiff had also participated in Exhibit B-5 and it cannot be said that he did not execute Exhibit B-5. Therefore, the question of law framed to

the effect that proof of Exhibit B-5 was not considered by both the Courts below despite it was not objected to by the plaintiff in his pleadings and

was proved through the evidence of D.W.2 would go to show that the judgments of both the Courts below are perverse.

In the judgment of Hon''ble Apex Court in Bondar Singh and Others v. Nihal Singh and Others (supra), it has been held the High Court is u/s

100 CPC interfered with the judgment and decree passed by the First Appellate Court even though concurrent with the judgment of the trial

Court. The relevant passage would be as follows:

...We do not consider it necessary to discuss these decisions because so far as the question of powers of High Courts u/s 100 CPC is

concerned, it needs no discussion. If the findings of the subordinate Courts on facts are contrary to evidence on record and are perverse, such

finding can be at set aside by the High Court in appeal u/s 100 C.P.C. A High Court cannot shut its eyes to perverse findings of the Courts below.

In the present case, the findings of fact arrived at by the lower appellate Court were contrary to evidence on record and, therefore, perverse and

the High Court was fully justified in setting aside the same resulting in the appeal being allowed and suit being decreed.

Apart from the said judgment, in the judgment of this Court in Ponnaiyan @ Ponnusami Gounder, Easwaramurthy, Muthusami and Subbayal

Vs. Karuppakkal @ Ponnayal, Thangammal @ Pappathi, Chinnakkal @ Angammal and Ammani @ Muthulakshmi, is applicable to the present

case and the relevant passage would run thus:

No doubt, interference with the concurrent findings of the Courts below by the High Court u/s 100, C.P.C. must be avoided unless warranted

by compelling reasons. In a case where the finding is recorded without any legal evidence on record or misreading of evidence or suffers from any

legal infirmity, which materially prejudices the case of one of the parties or the finding is perverse the High Court can set aside the findings and take

a different view.

According to the principle laid down by the aforesaid judgments, this Court could see that the judgment of both the Courts below are perverse and

they are not in accordance to the evidence adduced before the trial Court and therefore, I am of the considered opinion that they are liable to be

interfered. Further, the substantial questions of law framed have already been decided in favour of the appellant and in favour of setting aside the

judgment of both the Courts below. Therefore, the second appeal filed by the appellant is allowed. The judgment and decree passed the first

appellate Court are set aside and consequently, the suit filed before the trial Court is dismissed, No costs throughout.

Appeal allowed.