Madras High Court

Y.S.Masi vs The Tamil Nadu Housing Board on 10 March, 2021

                                                                                      C.M.S.A.No.27 of 2008

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                             RESERVED ON : 15.12.2020

                                            DATE OF DECISION         : 10.03.2021

                                                          CORAM:

                                           THE HON'BLE MR. JUSTICE T.RAJA

                                                    C.M.S.A.No.27 of 2008

                     1.Y.S.Masi
                     2.Y.S.Lakshmi
                     3.Parvathi                                       .. Appellants/claimants

                                                                Vs

                     1.The Tamil Nadu Housing Board,
                       Coimbatore.
                       Rep. By its Executive Engineer,
                       Administrative Officer,
                       Coimbatore.                             .. 1st Respondent/Decree Holder

                     2.Y.B.Ramakrishnan                        .. 2nd Respondent/Judgment Debtor



                     Prayer : Civil Miscellaneous Second Appeal is filed under Order 41 Rule 27 read

                     with Section 100 of Civil Procedure Code against the judgment and decree dated

                     01.04.2008 made in C.M.A.No.2 of 2008 on the file of the District Judge, Nilgiris at

                     Udhagamandalam, confirming the fair and decreetal order dated 16.10.2006

                     made in E.A.No.279 of 1999 in E.P.No.87 of 1998 in O.S.No.25 of 1989 on the file

                     of the Sub-Court, Nilgiris at Udhagamandalam.

                                   For Appellants              : Mr.Krishnaprasad

                     1/16



https://www.mhc.tn.gov.in/judis/
                                                                                       C.M.S.A.No.27 of 2008

                                                                 for M/s.Sarvabhauman Associates

                                      For R1                     : Mr.R.Jayaseelan
                                      For R2                     : No Appearance

                                                          JUDGMENT

The appellants are the claimants, but, they were not arrayed as parties in

O.S.No.25 of 1989. The suit property originally belonged to one Morcha Gowder,

who died leaving behind his sons, namely, Y.M.Boja Gowder and

Y.M.Subramaniam. The second respondent/Y.B.Ramakrishnan is one of the legal

heirs of Y.M.Boja Gowder. Whileso, the Tamil Nadu Housing Board/first

respondent herein filed a suit in O.S.No.25 of 1989 seeking for recovery of

Rs.5,85,552/- and obtained an decree with interest at 18% per annum from the

date of suit till the date of realisation. Thereafter, the decree holder/Tamil Nadu

Housing Board filed E.P.No.25 of 1989 for attachment and sale of the following

properties:-

                            R.S.No.                          Total extent and extent owned
                            157/2                            1.98 acres
                            157/6                            2.48 acres
                            157/5                            2.55 acres
                            207/9                            2.60 acres
                            of Yadapalli Village
                                  Total                      9.61 acres

Since the properties were attached on 13.12.1999, E.A.No.279 of 1999 was filed by

the appellants on 21.12.1999 under Order 21 Rule 58 read with Section 151 of the

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Civil Procedure Code (CPC) to release one of the items of the attached properties

viz. 2.60 acres in S.No.207/9 of Edappally Village.

2. It is further averred by the appellants in the Execution Application (EA)

that the petition mentioned property was originally allotted to their share under

the family arrangement in the year 1952, subsequently, that was partitioned in

the year 1988. Even on earlier occasion, oral partition effected was reduced into

writing in the form of Memorandum dated 08.08.1988 confirming the allotment

of petition mentioned property in their favour. Thereafter, the

claimants/appellants have filed a suit in O.S.No.130 of 1995 seeking for

declaration of their title and for consequential injunction in respect of the petition

mentioned property. The said suit was subsequently transferred to the file of

District Munsif Court, Coonoor, and renumbered as O.S.No.340 of 1995 and in

the said suit, interim injunction was granted in favour of the appellants herein

and the judgment debtor/second respondent herein was a party in the said suit.

Since the second respondent has no share or interest, the land in S.No.207/9

absolutely belongs to the appellants, hence, the petition mentioned property

cannot be sold in execution of the decree obtained against the second respondent

by the first respondent/Tamil Nadu Housing Board.

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3. The first respondent/Tamil Nadu Housing Board filed a counter

affidavit taking a stand that the claimants/appellants herein do not derive any

right over the alleged oral partition or family arrangement in respect of the

petition mentioned property, because, the land in question is absolute property

of the second respondent. Whileso, EA has been filed by the appellants with an

attempt to defeat the decree obtained by the first respondent/Tamil Nadu

Housing Board against the second respondent, hence, the same is liable to be

dismissed.

4. The second respondent/judgment debtor has filed a counter affidavit

contending that the subject property in S.No.207/9 of Edappally Village,

originally belonged to Morcha Gowder, grandfather of the second respondent,

who died intestate leaving behind his two sons, namely, Y.M.Boja Gowder and

Y.M.Subramaniam. Y.M.Bhoja Gowder is the father of the second respondent

who died intestate leaving behind Y.B.Bheeman, Y.B.Krishnamurthy and

Y.B.Nanjammal @ Nancy. Pending this appeal, Y.M.Subramanian, first claimant,

died leaving behind the claimants 2 to 4/appellants herein. Therefore, since the

said Morcha Gowder is none other than the grandfather of the appellants herein,

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they are entitled to have 1/7th share in the half share of Late Y.M.Boja Gowder,

which has been in joint possession and enjoyment of the second respondent and

other legal heirs of Late Y.M.Boja Gowder till date. It is further averred that

neither the property in question was allotted to the claimants in the year 1952 nor

the partition took place and reduced into writing in the form of Memorandum

dated 08.08.1988 as alleged by them.

5. It is further submitted that the alleged allotment as well as the

subsequent partition were all created to defraud the second respondent and

other legal heirs of Y.M.Bhoja Gowder as they are all void document, hence, the

documents, namely, Exs.A1 to A4 relied on by the claimants are not enforceable

in law as it is hit by Section 17 of the Registration Act. In the absence of the

second respondent and other legal heirs, the claimants have filed a suit in

O.S.No.130 of 1995 and obtained an order of injunction and therefore, they are

not entitled to any relief in the present suit and on this basis, the second

respondent sought for dismissal of EA filed by the claimants/appellants herein.

6. Pending appeal before the learned first appellate Court, the claimants

have filed I.A.No.24 of 2008 in C.M.A.No.2 of 2008 praying to receive the

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certified copy of the sale deed dated 26.12.2007 executed by the judgment

debtor/second respondent along with his brothers and sisters showing that there

was an oral partition between the heirs of Y.M.Bhoja Gowder and

Y.M.Subramani, and also to receive the disclaimer statement executed between

the second respondent, his brothers and the sister on the one side, and the

claimants/appellants on the other side.

7. Learned trial Court/execution Court framing the following issues;

(i) whether the petition is maintainable or not?

(ii) to what relief the petitioners are entitled for?

and after perusing Exs.A1 to A3, namely, certified copies of sale deed dated

20.02.1989 and 11.01.1993 relating to some other property; and certified copy of

disclaimer statement filed in O.S.No.340/95 on the file of District Munsif,

Coonoor, dismissed EA filed by the appellants herein holding that EA was filed

without any merit whatsoever. As against which, an appeal in C.M.A.No.2 of

2008 was filed before the learned District Court, Nilgiris at Udhagamandalam.

Learned first appellate Court also dismissed the appeal holding that the

claimants failed to prove with sufficient material evidence that the property in

question is not liable for attachment, therefore, the property cannot be released

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from attachment. As against which, the present appeal has been filed raising the

following substantial questions of law:-

a) Whether the learned District Judge is correct in law in

dismissing the appeal on the ground that the appellants have failed

to prove that the subject property belongs to him especially when

Exs.A1 to A4 have been marked to prove the same?

b) Whether the Courts below are correct in law in rejecting

Ex.A3 on the ground that it is an unregistered document totally

overlooking the fact that a document which merely evidences an

earlier oral partition need not be registered as per the provisions of

Section 17 of the Registration Act?

c) Is not the order of the Courts below vitiated by reason of

the fact that they have not framed proper points for consideration?

8. Learned counsel for the claimants/appellants submitted that when the

first respondent/Tamil Nadu Housing Board has filed a suit in O.S.No.25 of 1989

on the file of learned Sub-Court, Nilgiris, Udhagamandalam, seeking for

recovery of Rs.5,85,552/- against the second respondent/judgment debtor and

also sought for order of attachment of the suit property in S.No.207/9 measuring

an extent of 2.60 acres of land, Yedapalli Village, admittedly, the appellants

herein were not the parties. It is their case that the property in question

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absolutely belongs to them as the subject property was allotted under a family

arrangement in the year 1952 and subsequently, it was partitioned orally in the

year 1988, that has been reduced into writing in the form of Memorandum on

08.08.1988, confirming the same. They have also filed a suit in O.S.No.130 of 1995

seeking for declaration of their title and for consequential injunction in respect of

the subject property. However, this was subsequently transferred to the file of

District Munsif's Court, Coonoor, and renumbered as O.S.No.340 of 1995,

whereby, an order of interim injunction was also granted in favour of the

appellants herein. In the said suit proceedings, the second respondent/judgment

debtor was also a party.

9. Adding further, he submitted that subsequent to the order dated

01.04.2008 passed in C.M.A.No.2 of 2008 by the learned first appellate Court

dismissing their prayer to release the property in question from attachment,

learned District Munsif Court, Coonoor, in O.S.No.340 of 1995, dated 07.09.2016,

passed the final order decreeing the subject property in favour of the appellants.

Therefore, the property in question cannot be attached as it is an absolute

property of the claimants/appellants. On this basis, he has prayed for quashing

the concurrent findings of the Courts below refusing to order for releasing the

property in question from attachment.

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10. Learned counsel for the first respondent/Tamil Nadu Housing Board

submitted that the documents, namely, Ex.A1 and A2 relied on by the claimants

are not at all relevant to the property in question and they are pertaining to some

other properties. He further submitted that Ex.A3-disclaimer statement relied on

by the claimants is an unregistered and unstamped document, hence, it cannot be

used for any purpose to support their case as it is hit by Section 17 of the

Registration Act, for, if any family arrangement reduced into writing and it

purports to create, declare, assign, limit or extinguish any right, title or interest of

any immovable property, it must be properly stamped and duly registered as per

the India Stamp Act and Indian Registration Act. Therefore, learned Courts have

rightly held that the said unregistered and unstamped document relied on by

claimants cannot be taken on record, hence, such a well reasoned concurrent

findings rendered by the Courts below need not be interfered with, he pleaded.

11. Despite serving fresh notice, no one represented on behalf of the

second respondent/judgment debtor.

12. Heard the learned counsel appearing on either side and perused the

materials available before this Court.

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13. It is not in dispute that the property comprised in S.No.207/9

measuring an extent of 2.60 acres situated at Edappalli Village is the subject

matter of the property. It is the claim of the claimants/appellants that the

property in question was allotted to them in the year 1952 and the same was

partitioned in the year 1988. In support of their claim, they have relied on Ex.A1-

certified copy of sale deed dated 20.02.1989; Ex.A2-certified copy of sale deed

dated 11.01.1993; Ex.A3-certified copy of disclaimer statement filed in

O.S.No.340/95 on the file of learned District Munsif Court, Coonoor; and Ex.A4-

certified copy of petition and orders in I.A.No.339/95 in O.S.No.130/95 on the file

of learned District Court, Ooty. But, both the learned Courts below, after

perusing the materials placed before it, have concurrently held that the

claimants/appellants herein have not produced any material evidence to show

that they are in absolute possession of the property in question.

14. This Court is also able to see that Exs.A1 and A2 relied on by the

appellants are not at all relevant to the property in question and they are relating

to some other property. Besides, Ex.A3-disclaimer statement said to have been

executed between the claimants/appellants and the second respondent/judgment

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debtor, in which, the second respondent said to have relinquished his right over

the property in question, is an unregistered and unstamped document, hence, the

same cannot be looked into for any purpose, for, the said document-Ex.A3 is in

the nature of creating and extinguishing right in the property in question. Thus,

it requires compulsory registration as per Section 17 of the Registration Act,

which is extracted hereunder:-

                                          “17.    Documents      of   which     registration     is

                                   compulsory.—(l)      The    following   documents     shall   be

registered, if the property to which they relate is situate in a

district in which, and if they have been executed on or after

the date on which, Act XVI of 1864, or the Indian

Registration Act, 1866, or the Indian Registration Act, 1871,

or the Indian Registration Act, 1877, or this Act came or

comes into force, namely:—

(a) instruments of gift of immovable property;

(b) other non-testamentary instruments which purport

or operate to create, declare, assign, limit or extinguish,

whether in present or in future, any right, title or interest,

whether vested or contingent, of the value of one hundred

rupees and upwards, to or in immovable property;

the receipt or payment of any consideration on account of the

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creation, declaration, assignment, limitation or extinction of

any such right, title or interest; and

(d) leases of immovable property from year to year, or

for any term exceeding one year, or reserving a yearly rent;

(e) non-testamentary instruments transferring or

assigning any decree or order of a Court or any award when

such decree or order or award purports or operates to create,

declare, assign, limit or extinguish, whether in present or in

future, any right, title or interest, whether vested or

contingent, of the value of one hundred rupees and upwards,

to or in immovable property.” A perusal of the above said provision shows that any instrument of gift of

immovable property shall be registered. Similarly, other non-testamentary

instruments which purport or operate to create, declare, assign, limit or

extinguish, whether in present or in future, any right, title or interest, in the

immovable property, shall be registered. Therefore, in the case on hand, as

highlighted above, as per Ex.A3-disclaimer statement dated 08.08.1988, the

second respondent, his brothers and sister disclaimed their right over the

property in question and some other properties. Thus, disclaimer statement-

Ex.A3 reduced into writing purports to create and extinguish right over the

property in question, therefore, it requires compulsory registration as

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adumbrated under Section 17(1)(b) of the Registration Act, failing which, the

claimants/appellants have to face mischief consequences of Section 49 of the

Registration Act. Hence, as rightly held by the learned Courts below, the

document relied on by the claimants, namely, Ex.A3, which is neither stamped

nor registered, cannot be looked into for the purpose of proving the title in

favour of the appellants.

15. Moreover, as stated above, in view of non-registration of the said

document-Ex.A3, as per Section 49 of the Registration Act, neither the said

document confers any power to the claimants/appellants nor it can be taken as

evidence for establishing their right over the property in question. For better

understanding, Section 49 of the Registration Act is extracted below:-

“49. Effect of non-registration of documents required

to be registered.—No document required by section 17 or by

any provision of the Transfer of Property Act, 1882 , to be

registered shall—

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such

property or conferring such power, unless it has been

registered.”

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16. One of the arguments of the learned counsel for the appellants is that

in view of the final decree passed by the learned District Munsif Court, Coonoor,

in O.S.No.340 of 1995, dated 07.09.2016, decreeing the property in question in

favour of the claimants/appellants, the order of attachment passed by the learned

Courts cannot be sustained. The said argument of the learned counsel for the

appellants is bereft of any merit, for, the very same property in question has

already been decreed in favour of the Tamil Nadu Housing Board/first

respondent herein in O.S.No.25 of 1989, dated 15.11.1996, therefore, the

judgment and decree passed in O.S.No.340/1995, dated 07.09.2016, relied on by

the claimants/appellants, that too, after a period of 8 years from the date of order

passed by the learned first appellate Court in C.M.A.No.2 of 2008, dated

01.04.2008, cannot be taken on record. Besides, in the said judgment, it is to be

noted that neither in the pleadings of the parties nor in the observation made by

the Court mentioned/discussed anything about the earlier judgment passed in

O.S.No.25 of 1989 decreeing the property in question in favour of the Tamil

Nadu Housing Board/first respondent herein.