Madras High Court
R.Subramaniyam vs Gaspar Fathinathan on 16 October, 2023
S.A.(MD) No.586 of 2023
`BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16.10.2023
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A.(MD) No.586 of 2023
and
C.M.P.(MD) No.13641 of 2023
R.Subramaniyam ..Appellant
Vs.
1.Gaspar Fathinathan
S/o.Gaspar,
Rep. through his Power agent
S.Arockiasamy
2.Francis Xavier Gaspar
3.Mariadaas Gaspar
4.Gaspar Antony Mary
5.Antony Xavier Soosay
6.Charles Antony Soosay
7.Christina Teresa Soosay
8.Soosay Mary
9.Leo Pelicks Louis ...Respondents
PRAYER: Second Appeal filed under Section 100 of C.P.C., to set aside the
decree and judgement passed by the Additional District Court, Sivagangai, dated
21.10.2019 made in A.S.No.13 of 2017, confirming the decree and judgement
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S.A.(MD) No.586 of 2023
made in O.S.No.66 of 2008 dated 23.08.2016 by the Subordinate Court,
Devakottai, by allowing this Second Appeal.
For Appellants : Mr.M.Karthikeyavenkatachalapathy
for Mr.S.Madhavan
For R1 to R7 : Mr.M.Vallinayagam
Senior Counsel
for Mr.J.Anandhakumar
JUDGMENT
This Second appeal is filed challenging the Judgment and decree passed
in A.S.No.13 of 2017, dated 21.10.2019, on the file of the Additional District
Court, Sivagangai, confirming the judgment and decree in O.S.No.66 of 2008,
dated 23.08.2016, on the file of the Subordinate Court, Devakottai.
2. The first respondent as plaintiff filed the suit in O.S.No.66 of 2008
seeking the relief of partitioning the suit schedule properties and allot 1/6th share
and for costs. The said suit was partly decreed by the trial Court and confirmed by
the first appellate Court in A.S.No.13 of 2017. Not satisfied with the findings of
the Courts below, this second appeal is filed.
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S.A.(MD) No.586 of 2023
3. The case of the plaintiff, in brief is as follows:-
The plaintiff's father was one Gaspar and his mother was Soosai Mary.
Defendants 1 and 2 are the brothers of the plaintiff. Defendants 3 and 7 are his
sisters. He had another sister Annamah. Annamah died leaving behind
defendants 4 to 6. 8th defendant was the son of seventh defendant. 9th defendant
was the third party. Plaintiff's father and mother and defendants 1 to 6 have been
living in Malaysia. Seventh defendant was born in Malaysia and after her
marriage, she came to India and has been living with her husband. The suit 'A'
and 'B' scheduled properties were self-acquired properties of the Mother Soosai
Mary. The said Soosai Mary purchased the 'A' schedule property through a
registered sale deed on 30.01.1962. She purchased 'B' schedule property through
a registered sale deed in 1964. She had constructed line houses in first item of 'B'
schedule properties and had leased to the tenants. She died in or about 1983
leaving behind her husband, sons and daughters. After her death, the legal heirs
inherited 'A' and 'B' schedule properties and they were in joint possession and
enjoyment. The suit 'C' and 'D' schedule properties belonged to the plaintiff's
father Gaspar and those properties are his ancestral properties. Gaspar died in
1985 leaving behind his sons and daughters and the children of pre-deceased
daughter Annamah. They were in joint possession and enjoyment of 'C' and 'D'
schedule properties. The seventh defendant, in collusion with defendants 8 and 9,
created some sham and nominal documents in respect of the suit properties. The
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S.A.(MD) No.586 of 2023
plaintiff asked the defendants 1 to 7 for partition in 2006 and they have not come
forward to effect partition. Therefore, the suit is filed for the aforesaid reliefs.
4. Except the seventh defendant, other defendants, namely, defendants
2, 3 and 4 to 6 filed written statements supporting the claim of partition and they
also paid Court-fee for their shares.
5. The seventh defendant filed the written statement denying the plaint
allegations. It is stated that 'A' schedule property absolutely belonged to the
mother Soosai Mary. Mother Soosai Mary handed over the suit 'A' schedule
property to the seventh defendant by way of a family settlement deed. This family
settlement deed was known to the plaintiff and other defendants, even during the
lifetime of Soosai Mary. Thereafter, the seventh defendant executed a gift
settlement deed in favour of eight defendant, her son, as regards, 'A' schedule
property. The eight defendant was enjoying the property and he alienated the
property to the ninth defendant. Therefore, it is not open to the plaintiff and other
defendants to question the alienation made in respect of 'A' schedule property.
Other properties are all in the hands of the plaintiff and defendants 1 to 6. They
did not give any share to the seventh defendant in respect of other properties.
Therefore, the seventh defendant is also entitled for 1/6th share in the suit 'B', 'C'
and 'D' schedule properties. The suit, filed without adding the properties at
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S.A.(MD) No.586 of 2023
Malaysia, is not maintainable.
6. On the aforesaid pleadings, the trial Court framed the following
issues:-
“(i) Whether the plaintiff is entitled for the relief of
preliminary decree for partition as claimed in the plaint?
(ii) To what other relief, the plaintiff is entitled?”
7. During the course of trial, PW1 was examined. No documents was
produced on the side of the plaintiff. On the side of the defendants, DW1 to
DW3 were examined and Ex.B.1 to B.13 documents were produced.
8. On considering the oral and documentary evidence produced before
the trial Court, the trial Court partly decreed the suit and that was confirmed by
the first appellate Court. Therefore, this second appeal.
9. It is the submission of the learned counsel for the appellant that
Ex.B.2, family settlement deed executed by mother Soosai Mary in favour of the
seventh defendant on 06.04.1980, is legally binding on the plaintiff and other
defendants, for the reason that it is more than 30 years old document and that it
does not require for registration for the reason that it only recorded the past
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S.A.(MD) No.586 of 2023
transaction. Based on Ex.B.2, proceedings were issued by the Deputy Tahsildar
granting patta in favour of the seventh defendant vide Ex.B3. The seventh
defendant executed the settlement deed through Ex.B5 on 12.07.2004 in favour
of eighth defendant. Ex.B8 shows that patta was transferred to the name of the
eighth defendant. Then, on 30.11.2005, the eighth defendant sold the property to
ninth defendant through Ex.B9. Patta was also ordered to be transferred to the
name of the ninth defendant. Ninth defendant has also produced 10(1) extract and
kist receipts to show his possession. In the said circumstances, it is not open to
the plaintiff and other defendants to challenge the aforesaid documents and
question the title and possession of the ninth defendant and seek partition.
10. In response to the submissions, the learned senior counsel appearing
for the respondents would submit that Ex.B2 is not a family arrangement or family
settlement deed as the nomenclature suggests. In fact, it is the gift deed alleged to
have been executed by mother Soosai Mary in favour of seventh defendant.
Through this document, transfer of right on an immovable property has been
effected in praesenti. This document requires registration under Section 17 of
Indian Registration Act. However, this document was not registered. The trial
Court, finding that this document is not registered and that right is created on the
basis of this document, found that this document is not admissible in evidence.
When this document has become inadmissible in evidence, the other documents
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S.A.(MD) No.586 of 2023
executed on the basis this document, namely, Ex.B.5, Ex.B.9 documents and
revenue records given on the basis of these documents, have become irrelevant
and not admissible in law. Thus, the Courts below have concurrently found that
Ex.B2 is inadmissible in evidence and the other documents executed on the basis
of Ex.B2 are also inadmissible in evidence and then decreed the suit. Therefore,
the learned counsel for the respondents submitted that there is no substantial
question of law arises for consideration in the second appeal.
11. Considered the rival submissions and perused the records.
12. It is not in dispute with regard to the relationship between the
parties, namely, plaintiff and defendants 1 to 8. The ninth defendant is the third
party to the plaintiff and the defendants. He is the purchaser of 'A' schedule
property from the eighth defendant. This Court finds from the records that
though the suit was filed for 'A', 'B', 'C' and 'D' schedule properties, there is no
document produced with regard to 'B', 'C' and 'D' schedule properties to show that
these properties are available for partition and therefore, both the Courts below,
have rejected the prayer for partition in respect of 'B', 'C' and 'D' schedule
properties. Against the dismissal of the suit in respect of 'B', 'C' and 'D' schedule
properties, no appeal was filed by the plaintiff or the other defendants. Even the
seventh defendant, who claims 1/5th shares in the 'B', 'C' and 'D' schedule
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S.A.(MD) No.586 of 2023
properties in the written statement, has not chosen to file appeal against the
dismissal of the prayer for partition in respect of 'B', 'C' and 'D' schedule
properties. However, in this appeal before this Court, we are concerned with the
partition of 'A' schedule property alone.
13. With regard to 'A' schedule property, it is not in dispute that this
property was purchased by mother Soosai Mary through a registered sale deed on
30.01.1962. As a self-acquired property, there is no doubt that she is entitled to
gift or settle the property to anyone of her choice. Preciously, on this ground, it is
claimed by the appellant, who is a third party purchaser from the eighth defendant,
that Ex.B2 binds the plaintiff and other defendants. Therefore, it is necessary to
find out the validity and admissibility of Ex.B.2 document.
13.Ex.B.2 document, admittedly, is an unregistered document. It is
titled as family arrangement cum family settlement deed. In this document, the
mother Soosai Mary states about her husband, children, her properties in India and
Malaysia. She claims that her daughter, namely, seventh defendant, resides in
India and whenever she comes to India, she stays with her. It is also stated that
the seventh defendant was not provided with any property in Malaysia and
therefore, she executes a document settling the property, namely, 'A' schedule
property, in her favour. From this document, it is apparent that only through this
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S.A.(MD) No.586 of 2023
document, mother Soosai Mary, transferred the right/title in respect of 'A' schedule
property in favour of her daughter, seventh defendant. It is not in respect of the
past transaction, which is reduced into writing through this document. A right in
respect of an immovable property is transferred through this document. Thus, it is
no doubt that though this document is titled as family arrangement cum family
settlement deed, it is in effect and reality, only a gift deed. As per Section 17 of
the Indian Registration Act, registration is made compulsory in respect of certain
documents, and one among them, is the gift of immovable property. This is dealt
with under Section 17(a) of the Indian Registration Act. The trial Court, on a
reading of Ex.B2, found that transfer of right is conveyed through Ex.B.2 to the
seventh defendant. It requires registration under Section 17(a) of the Indian
Registration Act. Since Ex.B.2 is not registered, it is not admissible in evidence
and therefore, the documents which had come into existence on the basis Ex.B2
are also not admissible in evidence. This finding was accepted and approved by
the first appellate Court.
14. The submission of the learned counsel for the appellant that Ex.B2
is a document which came into existence 30 years back and it recorded only a past
transaction, cannot be accepted for the reason that Ex.B2 creates a right in
praesenti in respect of immovable property. When its admissibility is challenged
on the ground that it is not a registered document, it is not open to the appellant to
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S.A.(MD) No.586 of 2023
contend that it has to be received as such without any scrutiny, mainly for the
reason that it is more than 30 years.
15. This Court finds from the oral and documentary evidences produced
in this case, that the Courts below have properly appreciated the oral and
documentary evidence produced and rightly negatived the defence taken by the
appellant and decreed the suit. This Court finds no reason to interfere with the
Judgements of the Courts below.
16. In Sir Chunilal V. Mehta and Sons v. The Century Spinning Co.
Ltd., 1962 reported in AIR 1962 SC 1314, the Hon'ble Supreme Court formulated
what amounts to a substantial question of law, as follows:
1.Whether it is of general public importance (or)
2.Whether it directly and substantially affects the rights of parties and if so,
3.Whether it is either an open question (in the sense not finally settled by
this Court or Privy Council or Federal Court) (or)
4.The question is not free from difficulty and calls for discussion of
alternative views.
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S.A.(MD) No.586 of 2023
17. In the case before hand, the appellant has not made out any of the
aforesaid grounds to formulate substantial question of law. There is no substantial
question of law arises for consideration in this second appeal.
18. In fine, this Second appeal is dismissed confirming the judgments of
the Courts below. No costs. Consequently, connected miscellaneous petition is
closed.
Speaking : Yes / No 16.10.2023
NCC : Yes / No
Internet : Yes / No
Index : Yes / No
cp
To
1.The Additional District Judge,
Sivagangai.
2. The Subordinate Judge, Devakottai.
3.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD) No.586 of 2023
G.CHANDRASEKHARAN, J.
cp
S.A.(MD) No.586 of 2023
16.10.2023
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