Madras High Court
N.Stalin vs C.Ponnaiyan on 18 April, 2022
S.A.No. 342 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.04.2022
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
S.A.No.342 of 2015
and
M.P.No.1 of 2015
C.Nesappan (Died)
N.Stalin
S/o.Late Nesappan .... Appellant
Vs
C.Ponnaiyan .... Respondent
PRAYER: Second Appeal filed under Section 100 of C.P.C., to set aside
the Judgment and Decree dated 28.08.2014 in A.S.No.64 of 2011 on the
file of the Second Additional District cum Sessions Judge at Tirupur,
confirming the Judgment and Decree in O.S.No.383 of 1999 dated
28.02.2011 on the file of the Principal subordinate Judge at Tirupur.
For Appellant : Mr.R.Jayaprakash
For Respondent : Mr.K.Myilsamy
JUDGMENT
The son of the original defendant is the appellant in this second
appeal.
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S.A.No. 342 of 2015
2. The respondent/plaintiff filed the suit seeking for the relief of
partition and for allotment of half share in the suit property.
3. The case of the plaintiff is that the suit property originally
belonged to his father Chinnappan. The father died intestate in the year
1969 leaving behind the plaintiff, the defendant and their mother
Tmt.Pushpa. The further case of the plaintiff is that the mother viz.,
Tmt.Pushpa, executed a registered release deed dated 28.12.1998,
marked as Ex.A4, infavour of the plaintiff and she released her 1/3 rd share
in the suit property. As a consequence, the plaintiff became the owner of
2/3rd share in the suit property and the defendant was entitled for 1/3rd
share in the suit property.
4. It is stated that there was some misunderstanding between the
brothers and it resulted in exchange of legal notices between the parties.
It is alleged that the defendant was also attempting to interfere with the
peaceful possession and enjoyment of the suit property. Left with no
other alternative, the suit came to be filed seeking for the relief of
partition and for division of properties by metes and bounds.
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S.A.No. 342 of 2015
5. The defendant filed a written statement and took a stand that
their father Chinnappan, apart from the two sons, also had three
daughters. It was further stated that they were married and were living
in their matrimonial home. The defendant took a stand that in order to
peacefully enjoy the property, oral partition was made between the
brothers and thereby, the eastern portion of the property was alloted to
the plaintiff and the western portion of the property was allotted to the
defendant. This oral partition was also agreed and entered into in the
presence of the three sisters. To avoid any future complications, it was
also reduced into writing on 19.02.1986, which was marked as Ex.B13.
6. In view of the above, the defendant claimed that the parties
acted upon Ex.B13 and the plaintiff started enjoying the eastern portion
of the property and the defendant started enjoying the western portion of
the property and even had put up construction in the suit property, which
was assessed to property tax and electricity service connection had also
been obtained. Accordingly, the defendant took a stand that the relief
sought for by the plaintiff is unsustainable and pleaded for the dismissal
of the suit.
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S.A.No. 342 of 2015
7. Both the Courts below, after considering the facts and
circumstances of the case and on appreciation of oral and documentary
evidence, concurrently held in favour of the plaintiff and passed a
preliminary decree in favour of the plaintiff for allotment of 2/3rd share in
favour of the plaintiff. Aggrieved by the same, the defendant has filed
this second appeal.
8. When the second appeal was admitted, the following
substantial questions of law were framed by this Court :-
"a) Whether the Courts below were right in
disregarding Ex.B13 family arrangement while decreeing
the suit for partition filed by the plaintiff?
b) If the sisters who were parties in the family
arrangement Ex.B13 had relinquished their share even at
that point of time and this document is not being acted
upon, whether the present suit for partition can be
maintained without adding the sisters as parties since they
will also be entitled for a a share in the property belonging
to the father ?
c) Whether the findings rendered by the Courts
below are perverse due to improper appreciation of the
oral and documentary evidence available on record ?"
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S.A.No. 342 of 2015
9. Heard, Mr.R. Jayaprakash, learned counsel for the appellant
and Mr.K.Myilsamy, learned counsel for the respondent. This Court
also carefully considered the materials available on record and the
findings of both the Courts below.
10. There is no dispute with regard to the fact that the suit
property originally belonged to the father of the plaintiff and the
defendant viz., Chinnappan. He died intestate leaving behind his wife
Tmt.Pushpa, the plaintiff, the defendant and three daugh4ters viz.,
Sakunthala, Pappathi and Kolandaupullai @ Thangamani. Under
normal circumstances, each one of the legal heirs would have been
entitled for 1/6th share in the suit property.
11. The plaintiff projected a case as if his father left behind only
three legal heirs viz., the plaintiff, the defendant and their mother
Tmt.Pushpa. The plaintiff also relied upon Ex.A4 document to show
that the mother Tmt.Pushpa released her 1/3rd share in favour of the
plaintiff. Thereby, the plaintiff was claiming for 2/3rd share in the suit
property.
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S.A.No. 342 of 2015
12. Per contra, the defendant came up with a defence that there
was an oral partition between the parties and it was reduced into writing
under Ex.B13 and thereby, the plaintiff was allotted the eastern portion of
the property and the defendant was allotted the western portion of the
property. It was further contended that this arrangement was accepted
by all their sisters and in view of the same, the defendant took a stand
that there is no requirement for any further partition of the suit property.
13. The Trial Court took into consideration the evidence adduced
by two of the sisters who stated that they do not want any share in the
suit property. The Trial Court also took into consideration the
admissibility of the document, marked as Ex.B13, which was relied upon
by the defendant and it came to a conclusion that this document is
inadmissible evidence and it cannot be acted upon. The Trial Court had
assigned various reasons as to why Ex.B13 cannot be acted upon.
Having rejected Ex.B13 and after taking into consideration the stand
taken by two of the sisters who said that they do not want any share in
the suit property and also taking into consideration the release deed
executed by the mother, marked as Ex.A4, the Trial Court came to a
conclusion that the plaintiff is entitled for 2/3rd share in the suit property
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S.A.No. 342 of 2015
and accordingly, a preliminary decree was passed in favour of the
plaintiff.
14. The lower Appellate Court, on re-appreciation of the oral and
documentary evidence, concurred with the findings of the Trial Court and
for the very same reasonings, confirmed the Judgment and Decree of the
Trial Court and dismissed the appeal.
15. When the matter came up for hearing on 31.03.2022, this
Court after hearing both the sides, passed the following order :-
“This Court heard the learned counsel appearing on
either side in-extenso. The crux of the issue revolves
around Ex.B13. From the evidence of the witnesses, who
were the sisters of the plaintiff and the defendant, it is seen
that they have also spoken about Ex.B13 and that they do
not want any share in the property. While making such
statement, they specifically speak about Ex.B13. If Ex.B13
is held to be in admissible and the plaintiff is disputing the
same, this Court has to necessarily remand the matter back
to the Trial Court with a direction to implead the sisters as
parties and prosecute the suit for partition.
2. In view of the above, this Court suggested to the
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S.A.No. 342 of 2015
learned counsel appearing on either side to compromise
the dispute considering the fact that the case has already
taken away 23 years of their life time. The learned counsel
appearing on either side sought for some time to take
instructions, in this regard.
3. Post this case under the caption for “reporting
settlement” on 11.04.2022.”
16. When the matter was taken up for hearing today, the counsel
appearing on either side submitted that they have tried their best to
persuade the parties to arrive at a compromise and their attempts were
not successful. Hence both the counsel made their submissions on the
merits of the case.
17. There are two issues that requires consideration of this Court
in this second appeal. The first one is with regard to the admissibility or
otherwise of Ex.B13. The second issue is with regard to the non-joinder
of all the daughters of late Chinnappan as defendants in the suit.
18. Insofar as the first issue is concerned, this Court concurs with
the findings of both the Courts below. According to the defendant,
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S.A.No. 342 of 2015
Ex.B13 was a result of the oral partition between the plaintiff and the
defendant. A careful reading of Ex.B13 shows that a new right has been
created in favour of the plaintiff and the defendant. For proper
appreciation, the relevant portions in the document are extracted
hereunder :
“eh';fs; ,UtUk; fPHf
; z;lgo tPl;od;
,l';fis gfph;e;J bfhz;nlhk;/ gjpa tPl;od;
nkw;F Rtw;wpypUe;J nkw;nf eil ghij tiu
tlf;nf (milahsf;fy;) tiua[k; eLnt eh';fs;
fl;oa milahsf;fy; tiuapYk; ViraDf;Fr;
brhe;jk;/
gjpa tPl;od; nkw;Fr; Rth; eP'f
; shf
nkw;fpypUe;J fpHf;nf fy; milahsf; fy;
tiuapYk; tlf;nf fy; el;lg;gl;l ,lj;jpypUe;J
fpHf;F fy; tiuapYk; bghd;idaDf;Fr;
brhe;jk;/
gphpj;Jf; bfhz;l xg;ge;jk;
giHa tPli
; l gphpj;Jf; bfhz;L ,lj;ij
mz;zDf;F tpl;L tpl ntz;Lk;/ giHa
tPlL
; r; rhkhd;fs; midj;Jk; bghd;idaDf;F
brhe;jkhdJ/”””
19. It is clear from the above recital found in the document that
the plaintiff and the defendant have been given exclusive right over two
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S.A.No. 342 of 2015
portions of the suit property and that right has been created by virtue of
this document. This document is unstamped and unregistered. Since
this document created a right in favour of the party, it has to be
compulsorily registered. Since, it is also unstamped, there is no scope to
look into this document due to complete bar imposed under Section 35 of
the Indian Stamp Act. The law on this issue is too well settled and the
Judgments of the Apex Court, in no uncertain terms, makes it very clear
that such documents cannot be looked into for any purpose. In view of
the same, Ex.B13 is inadmissible in evidence and it cannot be looked
into. The first substantial question of law is answered accordingly.
20. In the present case, the daughters of Chinnappan were
necessary parties. Admittedly, the said Chinnappan died intestate and
the plaintiff was claiming for the relief of partition and therefore, it was
the duty of the plaintiff to have added all the sharers as a party to the
suit. Unfortunately, the plaintiff pleaded as if there were only three legal
heirs of Chinnappan and he never brought his sisters into the scene. The
plaint is completely silent about the daughters of Chinnappan.
21. Both the Courts below took into consideration the three
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S.A.No. 342 of 2015
daughters of Chinnappan and their right to claim for a share in the
property. However, both the Courts below were swayed by the fact that
two of the daughters entered into the witness box and said that they do
not want any share in the suit property. Admittedly, there is yet another
daughter, who was not added as a party nor did she come before the
Court and gave up her share in the property. Therefore, both the Courts
below misdirected themselves in completely disregarding the daughters,
who were entitled for a share in the suit property and were deprived of
their share by not even bringing them into the scene.
22. Insofar as the execution of the release deed by the mother
viz., Tmt.Pushpa in favour of the plaintiff is concerned, she did not have
1/3rd share as claimed by her on the date of execution of the document.
At the best, she could have executed a release deed only for 1/6th share in
the suit property. Hence, the release deed marked as Ex.A4 cannot take
away the right of the other sharers and it has to be confined only to 1/6 th
share to which the mother Tmt.Pushpa was entitled to.
23. The suit Per Se ought not to have been proceeded further
without adding the daughters of Chinnappan as defendants. The stand
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S.A.No. 342 of 2015
that is going to be taken by the daughters can be considered only after
they are added as a party in the suit. Hence, the suit filed by one of the
sons of Chinnappan, without adding his sisters, is hit by non-joinder of
necessary parties. This vital fact has not been considered by both the
Courts below. The second substantial question of law is answered
accordingly.
24. Both the Courts below have rendered findings as if only the
plaintiff, defendant and their mother Tmt.Pushpa are entitled for 1/3rd
share each in the suit property. This finding, on the face of it, is
erroneous since there are three other sharers who were not made parties
in the suit. Admittedly, one of the daughter of Chinnappan never gave
up her share and both the Courts presumed that she also gave up her
share since two other daughters claimed that they do not want any share
in the suit property. Both the Courts below also went wrong in acting
upon Ex.A4 as if the mother of the plaintiff was entitled for 1/3rd share in
the suit property. In view of the same, the findings of both the Courts
below suffers from perversity due to improper appreciation of oral and
documentary evidence. The findings of both the Courts below is also
unsustainable since such findings have been rendered even without
necessary parties being impleaded as defendants in the suit. The third
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S.A.No. 342 of 2015
substantial question of law is answered accordingly.
25. The upshot of the above discussion leads to the only
conclusion that the Judgment and Decree of both the Courts below
requires the interference of this Court. The matter has to be necessarily
remanded back to the file of the Trial Court with a direction to the
plaintiff to implead all the sisters as defendants in the suit. The Trial
Court has to necessarily disregard Ex.B13 and also confine Ex.A4 only to
an extent of 1/6th share of the mother Tmt.Pushpa. Keeping this in mind,
the Trial Court has to proceed further to deal with the case by permitting
the parties to let in further oral evidence. Based on the evidence recorded
during further trial, it will be left open to the Trial Court to pass a
preliminary decree. Considering the facts and circumstances of the case
and also considering the fact that this litigation is going on for more than
23 years, this Court is inclined to fix a time limit for the completion of the
proceedings before the Trial Court.
26. In the result, the Judgment and Decree of both the Courts
below are set aside. The matter is remanded back to the file of the Trial
Court to the extent indicated herein above. The Trial Court shall
complete the proceedings on or before 16.09.2022 and report compliance
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S.A.No. 342 of 2015
to this Court. The original documents are directed to be sent back to the
Trial Court immediately. Considering the facts and circumstances of the
case and also considering the relationship between the parties, there shall
be no order as to costs. Consequently, connected Miscellaneous Petition
is closed.
18.04.2022
Index :Yes/No
Internet :Yes/No
Lpp
To
1.The II Additional District cum Sessions Judge, Tirupur
2.The Principal subordinate Judge, Tirupur.
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S.A.No. 342 of 2015
N. ANAND VENKATESH, J.
Lpp
S.A.No.342 of 2015
and
M.P.No.1 of 2015
18.04.2022
https://www.mhc.tn.gov.in/judis
