Madras High Court
C.K.Mohanan vs Prabhakaran on 1 December, 2021
S.A.No.989 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 01.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A.No.989 of 2021
and
C.M.P.No.18542 of 2021
1.C.K.Mohanan,
S/o.Late Kuttappan Aasari,
Odakadavu, M.T.Nagar Post,
Gudalur, The Nilgiris.
2.C.K.Vijayan,
S/o.Late Kuttappan Aasari,
Odakadavu, M.T.Nagar Post,
Gudalur, The Nilgiris. ... Appellants
.Vs.
1.Prabhakaran,
S/o.Late Kuttappan Aasari,
Vimalagiri, M.T.Nagar Post,
Gudalur, The Nilgiris.
2.C.K.Sarojini,
W/o.Late Narayanan,
Devasam Vayal, Puthoor Vayal,
M.T.Nagar Post,
Gudalur, The Nilgiris.
3.C.K.Padmavathi,
W/o.Chandran, Makkamoola,
M.T.Nagar Post,
Gudalur, The Nilgiris.
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S.A.No.989 of 2021
4.C.K.Rajamma,
S/o.Sivan Aasari,
13/523, Kasim Vayal,
Gudalur, The Nilgiris. ... Respondents
PRAYER: Second Appeal is filed under Section 100 of CPC against the
Judgment and Decree dated 23.04.2021 made in A.S.No.28 of 2017 on
the file of Sub Court, Gudalur, The Nilgiris, modifying the Judgment and
Decree dated 02.03.2016 made in O.S.No.431 of 2011 on the file of
District Munsif Court, Gudalur.
For Appellant : Mr.Silambannan
Senior Advocate
for Mr.K.Sathish
JUDGMENT
This Second Appeal is directed against the judgment and decree in
AS.No. 28 of 2017 of learned subordinate Judge, Gudalur, modifying the
judgment of the learned District Munsif, Gudalur in O.S.No.431 of 2011.
2.Respondents filed Suit in O.S.No.431 of 2011, seeking a
preliminary decree for partition of 1/7th share in the suit properties and
for costs. The Respondents/Plaintiffs case is that the 1 st Defendant is the
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S.A.No.989 of 2021
Mother and Defendants 2 and 3 are the brothers. The 1st Defendant's
husband, Plaintiffs' and 2nd & 3rd Defendants' father is Mr.Kuttappan
Aasari died during first week of August 1986, leaving Plaintiffs and
Defendants as his legalheirs to succeed to his properties. Mr.Kuttappan
Aasari was an absolute owner of an extent of 1.40 acres of land in Survey
No.593/2 of Gudalur Village, which is the suit property in this case.
After the demise of Father viz., Mr.Kuttappan Aasari, suit property was
in the joint possession and enjoyment of Plaintiffs and Defendants. The
Plaintiffs demanded partition by metes and bounds and requested the
Defendants to effect partition. But the Defendants refused to concede to
their request. Therefore, a legal notice dated 24.04.2010 was issued to
the Defendants, seeking partition and expressing their definite and
unequivocal intention of partition of suit property. Even thereafter, the
Defendants have not come forward to effect partition and it necessitated
the filing of this Suit.
3.Third Defendant filed written statement and that was adopted by
Defendants 1 and 2. The case of the Defendants/Appellants 1 and 2 is
that they admitted the relationship between the parties. It is also admitted
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S.A.No.989 of 2021
that their Father viz., Mr.Kuttappan Aasari was the absolute owner of the
suit property and the property devolved on his legalheirs after his demise.
It is denied that the suit property was enjoyed in common by the Plaintiffs
and the Defendants. It is the specific case of the Defendants that
Plaintiffs 2 and 3 are not in possession and enjoyment of the suit
property. After the death of Father viz., Mr.Kuttappan Aasari, Plaintiffs
and Defendants entered into an oral partition. As per the oral partition, a
family settlement was reached. The value of the property was assessed at
Rs.1,75,000/-. On 02.05.1996, the 3rd Plaintiff/Mrs.Padmavathi had
received a sum of Rs.25,000/- towards her share in the suit property. She
executed a letter of acknowledgment, relinquishing her right in the suit
property. The 2nd Plaintiff/Mrs.Sarojini had also received a sum of
Rs.34,225/- and relinquished her share in the suit property. She also
executed an acknowledgment deed dated 25.02.1997 in this regard.
Therefore, Plaintiffs 2 and 3 are precluded and estopped from claiming
their shares from the suit property. The claim of the Plaintiffs is that they
are in joint possession and enjoyment of the suit property and their
demand of partition are false and they are made out for this case.
Plaintiffs 2 and 3 are not entitled for any share in the suit property.
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S.A.No.989 of 2021
4.On the basis of the above pleadings, the trial Court framed the
following issues:
“(i)Whether Plaintiffs 2 and 3 are entitled for share or
not?
(ii)Whether a preliminary decree can be passed as prayed
by the Plaintiffs?
(iii)To what other relief?”
5.During the trial before the trial Court, PWs1 & 2 were examined
and Exs.A1 to A5 were marked. DWs1 & 2 were examined and Exs.B1
to B5 were marked.
6.On considering the oral and documentary evidence, the trial
Judge found that the relinquishment deeds Exs.B1 and B.2 executed by
Plaintiffs 2 and 3 would bind them and having obtained cash in lieu of
share in the suit property, they are not entitled to claim partition in the
suit property. In this view of the matter, the learned trial Judge dismissed
the suit for partition insofar as Plaintiffs 2 and 3 are concerned and
granted partition for 1st Plaintiff and other Defendants, declaring that they
are entitled to 1/5th share each in the suit property.
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S.A.No.989 of 2021
7.Plaintiffs 2 & 3 challenged this judgment by way of filing an
Appeal in A.S.No.28 of 2017. On re-appreciation and re-consideration of
the oral and documentary evidence produced in this case, hearing the
submissions of the counsel appearing for the parties and going through
the judgment of the trial Court, the learned first Appellate Judge found
that Exs.B1 and B2 relinquishment deed created a right in itself and
therefore, it requires registration. Since Exs.B1 and B2 are not registered,
they are inadmissible evidence and do not bind Plaintiffs 2 and 3. In this
view of the matter, the learned first Appellate Judge found that the
Plaintiffs 2 and 3 are also entitled to claim their share in the suit property.
Thus the judgment of the trial Court was set aside, insofar as negativing
the claim of partition by Plaintiffs 2 and 3 is concerned and the suit was
decreed. Challenging and questioning the judgment of the first Appellate
Court, Defendants 2 and 3 have filed this Second Appeal.
8.Learned counsel for the Appellant submitted that in a family
arrangement both Plaintiffs 2 and 3, voluntarily relinquished their right
and in view of the relinquishment of their right in the suit property, they
received cash consideration. Exs.B1 and B2 have been executed only
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S.A.No.989 of 2021
after the family settlement and to evidence that there was a family
settlement. Exs.B1 and B2 cannot be considered as a document creating
right in itself and therefore, these documents do not require registration.
Only a past transaction was recorded in these relinquishment deeds. This
was rightly considered by the trial Court. However, the first Appellate
Court on the wrong reading and understanding of Exs.B1 and B2
documents and wrong application of law found that Exs.B1 & B2 require
registration and therefore, these documents are inadmissible evidence.
Consequently, found that Plaintiffs 2 and 3 also entitled for partition.
This finding of the first Appellate Court is contrary to the recitals of the
documents and position of law. Therefore, learned counsel for the
Appellant prayed for setting aside the judgment of the first Appellate
Court and restoring the judgment of the trial Court.
9.Considered the submissions of the learned counsel for the
Appellant and perused the records.
10.From the facts narrated above, it is clear that there is no dispute
with regard to the relationship between the parties. Mrs.Karthiyaini/1st
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S.A.No.989 of 2021
Defendant is the mother of the Plaintiffs and Defendants 2 and 3. Her
husband, Plaintiffs and Defendants 2 and 3's father was late
Mr.Kuttappan Aasari. It is also not in dispute that the suit property
originally belonged to him and after his death, as legalheirs of late
Mr.Kuttappan Aasari, Plaintiffs and Defendants are entitled to claim their
share in the suit property. Only hurdle as claimed by the Defendants is
that Plaintiffs 2 and 3, after receiving cash consideration, relinquished
their share in the suit property and executed documents in this regard.
Therefore, they are not entitled for share in the suit property. As stated
above, the trial Court accepted the case of the Defendants and found that
Plaintiffs 2 and 3 are not entitled for share and that finding was reversed
by the first Appellate Court. Therefore, what we have to consider is the
nature and scope of Exs.B1 and B2 documents. It is seen from the
judgment of the trial Court that relevant portion of Exs.B1 and B2
documents are extracted in para 14 of the judgments as below.
“14/gpur;ridf;Fhpa gp/1. gp/2 Mtzk; ghprPyiz
bra;ag;gl;lJ/ gp/1 Mtzj;ijg; bghUj;j tiuapy; 3?k;
thjp gj;khtjp jdJ jhahh; fhh;j;jpahapzpf;F vGjpf;
bfhLj;j gj;jpuk; vd;W fhzg;gLfpwJ/ mJ Kjy;
gj;jpapy; fhz;g;gLfpwJ/ 2tJ gj;jpiag; bghUj;j
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S.A.No.989 of 2021
tiuapy;
“vdJ jfg;gdhh; fhyk; brd;w Fl;lg;gd; Mrhhp
vd;gth; c';fSf;Fk; vdf;Fk; vdJ rnfhjuh;fs;
ehd; cl;gl;l VG bgah;fSf;Fk; nrh;e;J ekJ
jfg;gdhUk; c';fsJ fztUkhfpa Fl;lg;gd;
Mrhhp itj;j brhj;Jf;fspd; tpiykjpg;g[
ekf;Fs; jPh;khdpj;Jf;bfhz;l U:/1.75.000-?
(U:gha; xU ,yl;rj;J vGgj;ije;jhapuk; kl;Lk;)
epl;rapj;J mjpy; ,Ue;J vdf;F nru ntz;oa
xU g';fhf bjhifahd U:/25.000-? (U:gha;
,Ugj;ije;jhapuk; kl;Lk;) ehd; ,d;iwa jpdk;
c';fs; trk; ,Ue;J bgw;Wf; bfhz;Ls;nsd;/
,dpnky; ekJ je;ijahh; tpl;L brd;w brhj;ij
bghUj;njh kw;w rnhfjuh;fSf;fhf ePf;fp
itj;Js;s bjhifia bghUj;njh vdf;F
ve;jtpjkhd Ml;nrgidfnsh ghj;jpaijfnsh
chpikfnsh vdf;F fpilahJ vd;Wk;. Ehd;
cl;gl;l vdJ thhpRfSf;nfh vdJ
Ml;nrgidfs; Vjk; ,y;iy vd;Wk; ,jdhy;
cWjp bfhz;L ehd; KgkdJld; ,e;j
gj;jpuj;jpy; ifbahg;gk; bra;J bfhz;Ls;nsd;/”
vd;W fhzg;gLfpwJ/ gp/2 Mtzj;ijg; bghUj;j
tiuapy; 2tJ thjp jdJ jhahh; fhh;j;jpahapzp
vd;gtUf;F vGjp bfhLj;j gj;jpuk; vd;W Kjy;
gj;jpapYk;. 2tJ gj;jpapy; fPH;f;fz;lthW
vGjg;gl;oUf;fpwJ/
“vdJ jfg;gdhh; fhyk; brd;w Fl;lg;gd; Mrhhp
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S.A.No.989 of 2021
vd;gth; c';fSf;Fk; vdf;Fk; vdJ
rnfhjuh;fs; cl;gl;l VG bgah;fSf;Fk; nrh;e;J
ekJ jfg;gdhUk; ekf;Fs; jPh;khdpj;Jf; bfhz;l
U:/1.75.000-? (U:gha; xU yl;rj;J vGgj;jp
Ie;jhapuk; kl;Lk;) epl;rapj;J mjpy; ,Ue;J
vdf;F nru ntz;oa xU g';fhf bjhifahd
U:/34.225-? (U:gha; Kg;gj;jp ehd;fhapuj;J
,UEhw;wp ,Ugj;jp Ie;J kl;Lk;) ehd; ,d;iwa
njjpapy; c';fs; trk; ,Ue;J bgw;Wf;bfhz;nld;/
,dpnky; ekJ je;ijahh; tpl;Lbrd;w
brhj;ij bghUj;njh kw;w rnfhjuh;fSf;fhf
ePf;fp itj;Js;s bjhifia bghUj;njh vdf;F
ve;jtpjkhd Ml;nrgidfnsh ghj;jpaijfnsh
chpikfnsh vdf;F fpilahJ vd;Wk;. ehd;
cl;gl;l vdJ thhpRfSf;nfh vdJ
Flk;gj;jhUf;nfh ve;jtpjkhd chpika[k;
ghj;jpaija[k; ,y;iy vd;Wk; Ml;nrgidfs;
vJt[k; ,y;iy vd;Wk; ,jdhy; cWjpf;bfhz;L
ehd; KGkdJld; ,e;j gj;jpuj;jpy; ifbahg;gk;
bra;Jf;bfhz;Ls;nsd;”
11.The plain and simple reading of these documents show that
Plaintiffs 2 and 3 received cash consideration on the date of execution of
these documents and relinquished their right in the property. There is no
doubt from the reading of these documents that they received cash
consideration of Rs.25,000/- and Rs.34,225/- and relinquished their right
from the date of receipt of cash consideration. In these documents, it is
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S.A.No.989 of 2021
not shown as there was already a family partition and in pursuance of the
family partition they received a cash consideration and the parties to the
family settlement are enjoying their respective shares and that has been
reduced in writing. From the recitals in these documents, it can be only
made out that these documents created a right in praesnti and therefore, it
definitely require registration under Section 17 of Registration Act. In the
absence of registration, these documents are not admissible in evidence.
Therefore, Plaintiffs 2 and 3 cannot be excluded from the partition of the
suit properties, on the basis of Exs.B1 and B2 documents. Trial Court
has misconstrued the documents and applied wrong principle of law and
denied the claim of partition by the Plaintiffs 2 and 3. That wrong was
rightly reversed by the first Appellate Court. This Court fully agrees with
the finding of the first Appellate Court that Plaintiffs 2 & 3 cannot be
excluded from claiming partition in the suit property, on the basis of
Exs.B1 and B2 and therefore, they are also entitled to partition of the suit
property.
12.In this view of the matter, this Court confirms the judgment of
the first Appellate Court dated 23.04.2021 made in A.S.No.28 of 2017.
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S.A.No.989 of 2021
There is no substantial question(s) of law involved in this Second Appeal.
Therefore, this Second Appeal is dismissed. Consequently, connected
Miscellaneous Petition is closed. However, no order as to costs.
01.12.2021
Speaking Order/Non Speaking Order
Index : Yes
Internet : Yes
sai
To
The learned Sub Judge,
Sub Court at Gudalur,
The Nilgiris.
https://www.mhc.tn.gov.in/judis
S.A.No.989 of 2021
G.CHANDRASEKHARAN, J.
sai
S.A.No.989 of 2021
and
C.M.P.No.18542 of 2021
Dated: 01.12.2021
https://www.mhc.tn.gov.in/judis
