Madras High Court
U.P.Paluchamy Konar(Died) vs Pappammal on 30 April, 2021
S.A.(MD).No.302 of 2005
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30 .04.2021
CORAM
THE HONOURABLE MRS.JUSTICE S.KANNAMMAL
SECOND APPEAL (MD) No.302 of 2005
1.U.P.Paluchamy Konar(Died)
2.P.Janaki Raman .. Appellants
(Appallant 2 brought on record as LR'S of the deceased sole appellant
vide order dated 03.02.2010 made in MP(MD).No.1/09 in SA.(MD).No.
302/05)
Vs.
1.Pappammal
2.Karunamoorthy(Died)
3.Krishnamoorthy(Died)
4.Ramamoorthy
5.J.Mayilthayee
6.Ramani
7.Dhatchinamoorthy
8.Balaji
9.Ramya
10.Purusothaman
11.Divya
12.Shanthi
13.Sangeetha Yadhav
14.Chandru Kanna Yadhav .. Respondents
(RR6 to 11 are brought on record as LR's of deceased 2nd respondent vide
order dated 22.03.2019 made in CMP.7555 to 7557/18 in SA.No.302/05
by RHJ)
1/18
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S.A.(MD).No.302 of 2005
(RR12to 14 are brought on record as LR's of deceased 3rd respondent
vide order dated 22.03.19 made in CMP.7558 to 7560/18 in SA.302/2005
by RHJ)
Prayer:- Second Appeal is filed under Section 100 of the Code of Civil
Procedure, 1908 against the Judgment and decree in O.S.No.990/1993
dated 21.6.2002 on the file of the Principal Sub Judge, Madurai as
confirmed in A.S.No.211/2002 on the file of the Principal District Judge
dated 27.9.2004.
For Appellant : Mr.M.V.Venkateseshan
For R 6-14 : Mr.PT.S.Narendravasan
JUDGMENT
Challenge in this second appeal is to the judgement and decree
dated 27.09.2004 passed in Appeal Suit No.211 of 2002 by the Principal
District judge, Madurai wherein the judgement and decree passed in
O.S.No.990 of 1993 dated 21.06.2002 by the Principal Sub Judge
Madurai are confirmed.
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S.A.(MD).No.302 of 2005
2. The Appellant have instituted the O.S.No. 990 of 1993 on
the file of the trial court for the relief of partition of half share in the
plaint schedule property.
3. Originally the O.S.No. 990 of 1993 was filed by one U.P.
Palusami Konar, since he was dead, his son Janakiraman was impleaded
as legal heir.
4. In the plaint, it is averred that the suit property is the
ancestral property of the plaintiff and defendant. The father of the
plaintiff, out of the income of the ancestral property purchased the suit
property on 1.06.1947 under the registered sale deed. Apart from this
property there were several other properties left behind by the father of
the plaintiff to be inherited by the plaintiff and his brother Muthuirula
Konar. After death of the father of the plaintiff, the plaintiff and his
brother Muthuirula Konar got the properties jointly and the said
Muthuirula Konar being the elder brother managed all the properties.
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S.A.(MD).No.302 of 2005
Subsequently, some of the properties are partitioned orally by the
plaintiff and his elder brother and they obtained separate pattas for those
properties and paying kist. In the suit property, the plaintiff and his elder
brother Muthuirula Konar have equal shares which are not partitioned
yet. The said Muthuirula Konar died during the year 1980 and after his
death, the plaintiff came into join possession along with the defendants
who are the widow and the daughters of deceased Muthuirula konar. The
second defendant's daughter Mayilthai was given in marriage to the
second son of the plaintiff namely Janakiraman. The plaintiff approached
the defendants for amicable partition of the suit property. The defendants
are lethargic in their attitude and are delaying the partition. Under the
said circumstances the preset suit has been instituted by the plaintiff.
5. In the written statement filed on the side of the first
defendant, the first defendant admitted about the relationship of the
parties about the oral partition of some properties and about the join
possession of suit property by the plaintiff and defendants. It is averred
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S.A.(MD).No.302 of 2005
that the plaintiff never approached the defendants for partition. The first
defendant’s husband had executed a will on 24.03.1975 in respect of D.
Schedule property in favour of the first defendant with the right of
enjoyment till her death and after that defendants 2 and 3 are entitled for
the same. Item No.4 and 7 of the D schedule property are undivided
properties of the plaintiff and the first defendant. Those two properties
were mistakenly included in the will dated 24.03.1975. There is a clear
recital that D2 and D3 are entitled to get possession of the property only
after the death of the first defendant. Both the defendants 2 and 3 failed
to look after the first defendant. Hence their relationship is not very
cordial. Without the consent of the first defendant, the second and third
defendants and daughters of second defendant have executed several sale
deeds in respect of the properties mentioned in the will. When the
relationship between the defendants were cordial and smooth the
defendant’s son obtained the signature of the first defendant for transfer
of patta. This defendant has not given any consent for the written
statement filed by D2 and D3. The averments in the written statement
filed by D2 and D3 that the first defendant has no right to the suit
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S.A.(MD).No.302 of 2005
property is denied as false. This defendant came to know the
encumbrances created by D2 and D3. This fact was known to the first
defendant only during 1998. The defendants have no right to execute any
sale deed while the first defendant is alive. Hence the first defendant also
pressed for her 1/3 share in the suit property.
6. In the Written statement filed on the side of D2 and D3 it is
averred that the plaintiff is not entitled` to the relief since he is no more a
co-sharer and co-parcener. All the properties belonging to the joint family
of late Ponnusamy Konar, the plaintiff and his brother late Muthuirula
Konar were orally partitioned on 20.06.1948. In that partition, the suit
property has been allotted to Late Muthuirula Konar and after his death
his legal heirs the defendants herein are entitled to the suit property
exclusively. The late Muthuirula Konar was in enjoyment of the property
absolutely and while he was in a sound disposing state of mind executed
a registered will dated 24.03.1975 in favour of the defendants 2 and 3 by
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S.A.(MD).No.302 of 2005
which also the defendants 2 and 3 have succeeded the estate of late
Muthuirula Konar. As there was no registered document of partition, it
was a problem for both the plaintiff and his brother late Muthuirula
Konar even for effecting transfer of pattas or for any dealings with third
party. Hence an acknowledgement of an earlier partition was recorded on
03.01.1963 which was reduced to writing in the name of “released
receipt”. The above released receipt was executed by the plaintiff and his
father Ponnusamy Konar in favour of late Muthuirula Konar
acknowledging the exclusive right of late Muthurirula Konar over the
suit property along with some other properties. Hence the plaintiff is
esstopped contenting contra. Even in the year 1982 necessary alteration
was made in the corporation registry and in the revenue mutation patta
No.712 is registered in the name of defendants 2 and 3 for the Schedule
property and Kist is also being paid since 1983. Since the suit property is
the sperate property of the defendants, the plaintiff cannot seek for
partition and the same is liable to be dismissed.
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S.A.(MD).No.302 of 2005
7. On the basis of the divergent pleadings raised on either side,
the trial court has dismissed the suit. Against the judgement and decree
passed by the trial court the plaintiffs have preferred Appeal Suit No.211
of 2002 on the file of the First Appellate Court.
8. The First Appellate Court after hearing both sides and upon
re-appraising the evidence available on record, confirmed the judgement
and decree passed by the trial court. The present second appeal has been
preferred at the instance of the plaintiffs as appellants.
9. At the time of admitting the present second appeal, the
following substantial questions of law have been framed for
consideration:
1) Whether the courts below are right in relying upon Ex.B-15
unregistered release letter as extinguishing the right of the
plaintiff/appellant to claim partition in the suit property?
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S.A.(MD).No.302 of 2005
2) Whether the courts below are right in relying upon Ex.B-15 which
was an unstamped and unregistered was not proved by any
independent witnesses and its execution and is liable to reject the
claim and relief of the appellant/plaintiff for partition?
10. There is no dispute about the relationship between parties.
Further there is no dispute that the suit property was purchased by one
Ponnusamy Konar (deceased) who is the father of the deceased first
appellant Palusamy Konar and the first respondent’s husband, the
deceased Muthirulappa Konar. According to the deceased first appellant,
the suit property and some other properties were purchased by late
Ponnusamy Konar and after the death of Ponnusamy Konar, the deceased
first appellant and his brother late Muthirulappa Konar partitioned the
properties orally except the suit property. The first appellant is entitled
for half share in the suit property and even after the death of
Muthirulappa Konar both the appellants and the respondents were in
joint possession of the property. When the first appellant claimed his half
share, the respondents evaded and hence the suit was filed. The first
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S.A.(MD).No.302 of 2005
respondent also claimed one-third share in the suit property by stating
that though her husband late Muthirulappa Konar executed a will in
favour his daughters, the second and third respondent giving life estate
to her, the 2 and 3 respondent sold some of the properties and since they
didn’t take care of her which forced her to claim her 1/3 share of the
property.
11. Per contra respondents 2 and 3 denied the allegations of the
appellant and contended that the suit for partition and separate
possession is absolutely misconceived. According to respondents 2 and
3, all the properties belonged to the joint family of late Ponnusamy
Konar, appellant and R2 and R3’s father Muthirulappa Konar were
partioned orally on 20.06.1948 and in that oral partition, the suit property
was allotted to Muthirulappa Konar and as per the will dated 24.03.1975
the respondents R2 and R3 have succeeded the estate of late
Muthirulappa Konar. It is contended on the side of R2 and R3 that as
there was no registered document of partition, it was a problem for both
the appellant and Muthirulappa Konar for effecting transfer of patta or
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S.A.(MD).No.302 of 2005
for any dealings with third party, a “Released receipt” was executed by
the appellant Paluchamy Konar and his father Ponnusamy Konar in
favour of Muthirulappa Konar acknowledging the exclusive right of
Muthirulappa Konar. That Release deed has been marked as Ex.B15. The
relevant recitals in Ex.B15 dated 03.01.1963 runs as follows:
“Vw;fdnt 1948 $^d; 20 jpy; tha;f;fUy; ghj;jpakha;
tplg;gl;l brhj;ij bghUj;J vGjpf; bfhLj;j tpLjiy ghj;jpa
urPJ/
nkYk;
12/6/1947 kJiu lt[d; ngr;rpak;kd; bjU 40 ePh;
tPl;oypUf;Fk; M. K. fpUc&;zrhkp ma;auth;fs; Fkhuh; tf;fPy;
K.uhkehja;ah; mth;fsplk; U/1600/00 f;F fpiuak; th';fpa
brhj;Jf;fisa[k; nkw;goahnu(Kj;jpUsf; nfhdhh;) ghf];juhapUe;J
Vw;fdnt 20/6/48 y; v';fsplk; tha;fU ghfg; gphptpid bra;J
th';fp nkw;goahnu(Kj;jpUsf; nfhdhh;) mDgtpj;J tUfpw
brhj;Jf;fis nkw;goahnu(Kj;jpUsf; nfhdhh;) rh;tRje;jpu
ghj;jpakha; Mz;L mDgtpj;Jf; bfhs;s ntz;oaJ vd;W v';fs;
rk;kjpapy; vGjpf; bfhLj;j ghftpLjiy urPJ/
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S.A.(MD).No.302 of 2005
brhj;J tpguk;
kJiu o/nkw;go.rg;o. kJiu jhYfh mad; 50 ePh; jy;yhFsk;
fpUkj;jpy;. br';Fsk; fz;kha; g[utpy; 156 ePh; gl;lhtpy; fz;l
giHa rh;nt 431 k; byl;lUf;F hPrh;nt 145-1 byl;lhpy; 3tJ
gpshl; eQ;ir epyj;jpw;F khy;. nkw;nf bjd;tly; nkYhh; u];jh.
tlf;nf hPrh;nt ek;gh; 145-1 byl;lhpy; bjd;g[uk; thj;jpahh; epyk;
fpHf;nf khrpyhkzp thj;jpahh; epyk; bjw;nf 145-1 tJ byl;lhpy;
S.$hh;]; b$aU];. ghhpapd; g;shud;]; yPyhtjp mk;khs;
epyk; ,jw;Fs;gl;l fpHnky; $hjpao bjd;g[uk;(128 3-4) tlg[uk;
$hjpao (118 3-4) bjd;tly; nky;g[uk; $hjpao 40k; m';Fyk; 7k;.
fPH;g[uk; $hjpao 34 k; m';Fyk; 3k; cs;s 3tJ gpshl; epyk;
mjDila ghj;jpa';fSk; nkw;go brhj;jpd;
fpiuag;gj;jpuKk; ,j;Jld; bfhLj;J ,Uf;fpnwhk;”/
12. Both the courts below had framed specific issue with
regard to the validity and genuineness of Ex.B15, the Release deed dated
03.01.1963 executed by Ponnusamy Konar and the first appellant
deceased Paluchamy Konar in favour of Muthirulappa Konar. The trial
court after an elaborate discussion based on the oral evidence of
deceased first appellant and Ex.B15 held that Ex.B15 Release deed as
valid and true document. The first appellate court has also reappraised
the oral and documentary evidence had confirmed the trial court’s
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finding.
13. The trial court has observed that when the respondents 2
and 3 had specifically mentioned about the Release deed Ex.B15 in their
written statement the deceased first appellant had not denied the same by
filing any reply statement. Though the first appellant who was examined
as PW1 has denied Ex.B15 and his signature in Ex.B15 the courts below
had rightly compared the admitted signature of the first appellant with
that of the signature in Ex.B15 by invoking Section 73 of Evidence Act
held that Ex.B15 is a valid and true document. The first appellant who
was examined as PW1 went to the extent of denying his own signature in
each and every page of the plaint.
14.The deceased first appellant Paluchamy Konar who was examined
as P.W.1 has deposed in his chief examination that between himself and
his brother there was a oral partition during 1954 and 1955. Whereas in
his cross examination he has deposed that his father died during 1973
and after that himself and his brother partitioned the property except the
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S.A.(MD).No.302 of 2005
suit property.
15. Further P.W.1 (the deceased first appellant) in his cross
examination dated 18.11.1998 he has deposed as follows:
“v';fs; jfg;gdhh; v';fs; rnfhjuh; fhykhtjw;F
Kd;dhnyna fhykhfptpl;lhh;/ vdf;F 4 igad;fs;/ v';fs;
jfg;gdhh; bghd;Drhkp nfhdhh; mth; ghfj;jpw;F fpilj;j
brhj;Jf;fis 11/6/69 k; njjp gjpe;j capy; rhrdk; Kyk;
vd;Dila Mz; kf;fs; 4 ngUfSf;Fk; ghj;jpag;gLj;jp
vGjpf;bfhLj;Js;shh; mJ vf;!;gpl; gp/4/ vd;Dila rnfhjuh;
mth; fhyj;jpnyna jd;Dila brhj;Jf;fis jhth
brhj;Jf;fisa[k; ,ju brhj;Jf;fisa[k; nrh;j;J xU capy; rhrdk;
Kyk; jd;Dila kidtpkf;fSf;F gpujpthjpfs;
ghj;jpag;gLj;jptpl;lhh; vd;w tpguk; vdf;F bjhpahJ/”
16.Admittedly Ex.B15 the Release deed is an unregistered
document and subsequently stamp duty penalty has been collected under
the Indian Stamp Act. When it is proved that there was an oral partition
even during the lifetime of Ponnusamy Konar the father of the deceased
first appellant and his brother late Muthirulappa Konar and when PW1
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made admission about Ex.B4 the Will executed by the said late
Ponnusamy Konar dated 11.06.1969 in favour of his four sons pertaining
to the properties allotted to his share, obviously the appellant had not
approached the court with clean hands. Ex.B15 is the only documentary
evidence to prove the oral partition held between Ponnusamy Konar and
his two sons via the first appellant Paluchamy Konar and his brother
Muthirulappa Konar on 20.06.1948 itself.
17. When under Section 49 of Indian Registration Act, even an
unregistered document what is required to be registered under Indian
Registration Act can be relied on as an evidence for a collateral purpose.
The first Appellate Court had rightly discussed elaborately about Ex.B.15
with citations and had held that Ex.B.15 is a true and valid document.
18. When Ex.B15 has been proved to be a valid and true
document beyond any iota of doubt based on the executants i.e the
deceased first appellant’s categorical contradictory evidence, the courts
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below are right in rejecting the claim. The Courts below are right in
relying upon Ex.B.15 unregistered release letter as extinguishing the
right of the plaintiff/appellant to claim partition in the suit property and
rightly reject the claim and relief of the appellant/ plaintiff for partition.
19. The first Appellate Court after considering the rival
submission of both parties rightly confirmed the judgment and decree of
the trial Court after elaborate discussion which called no interference.
20. In the result, this Second Appeal is dismissed. No costs.
30.04.2021
Index : Yes/No
Internet : Yes/No
mpa
Note: In view of the present lock down owing to COVID-19 pandemic, a
web copy of the order may be utilized for official purposes, but, ensuring
that the copy of the order that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
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S.A.(MD).No.302 of 2005
To
1.The Principal District Judge,
Madurai.
2.The Principal Sub Judge,
Madurai.
3. The Section Officer,
V.R Section, Madras High Court,
Chennai.
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S.A.(MD).No.302 of 2005
S.KANNAMMAL,J.
mpa
Pre-delivery Judgement made in
S.A.(MD).No.302 of 2005
30.04.2021
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