Madras High Court
Kandasami vs Pappathi on 4 April, 2025
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
S.A. No.1470 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.04.2025
CORAM
THE HON'BLE MRS. JUSTICE T.V.THAMILSELVI
S.A.No.1470 of 2010
and
M.P.No.1 of 2010
1.Kandasami
2.Mariappan (Died)
3.Sengottaiyan
4.Selvarasu
5.Sambunathi
6.Kanthayi ... Appellants
(Appellant 3 to 6 brought on record as LRs of the deceased 2nd appellant
viz. Mariappan vide Court order dated 30.07.2021 made in CMP.No.11761
of 2021 in S.A.No.1470 of 2010)
Vs
1. Pappathi
2.Mathammal
3.Paramasivam
4.Ammasi (Died)
5.Thangamani
6.Kandasami
7.Govindammal
8.Srirangan
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S.A. No.1470 of 2010
9.Pazhaniyammal
10.Palanisamy
11.Pappathi
12.Rasiponnu ... Respondents
(R4 died, RR5 to 12 are brought on record as LR's of the deceased R4 vide
Court order dt.12.06.2023 made in CMP.No.11757/2021 in S.A.NO.1470
of 2010.)
PRAYER: Second Appeal filed Under Section 100 of the Civil Procedure
Code, against the Judgment and decree dated 30.11.2006 in A.S.No.53 of
2006 on the file of Principal District Judge, Salem, confirmed the judgment
and decree dated 30.01.2006 in O.S.NO.401 of 1999 on the file of
Subordinate Judge, Mettur.
For Appellants : M/s.P.Jagadeesan
For Respondents : Mr.V.Sekar for R1 & R2
R4- Died
R3, R5 to R12 - No appearance
JUDGMENT
The appellants have filed this Second Appeal against the judgment
and decree dated 30.11.2006 in A.S.No.53 of 2006 on the file of Principal
District Judge, Salem, confirmed the judgment and decree dated 30.01.2006
in O.S.NO.401 of 1999 on the file of Subordinate Judge, Mettur.
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2. Heard M/s.P.Jagadeesan, learned counsel for the appellants,
Mr.V.Sekar, learned counsel appearing for the respondents 1 & 2, and
perused the material available on record.
3. For the sake of convenience, the parties herein are referred to as
they were ranked in the suit.
4. The appellants herein are the unsuccessful defendants 2 and 3 in
the suit O.S. No. 401 of 1999. The original plaintiff, Arumugam, filed a
suit for partition against his brother, Paramasivam (D1), and another
brother, Kandha Goundar, who passed away, leaving behind his legal heirs
(D2 to D4). The plaintiffs sought the allotment of a one-third share in the
suit property, asserting that it was ancestral joint family property. He
claimed that the three brothers constituted a Hindu Undivided Joint Family
and that no partition had been effected by metes and bounds. After issuing a
notice demanding an amicable partition, he alleged that his brother and the
legal heirs of the deceased brother evaded the demand, compelling him to
file the suit for partition.
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5. The first defendant remained ex-parte. Defendants 2 to 4 contested
the suit by filing a written statement, denying the existence of joint family
property as alleged in the plaint. They contended that the 1st plaintiff had
already parted with his share of the property in favour of his two brothers,
namely D1 and Kandha Goundar (father of D2 to D4), for valuable
consideration through two registered documents dated 28.01.1957 and
23.01.1971. They also asserted that the plaintiffs had handed over
possession and relinquished his share 30 years earlier for valid
consideration. Therefore, they argued that the plaintiffs had no right to
claim a share in the suit property and prayed for the dismissal of the suit.
6. Before the trial court, both the parties adduced oral and
documentary evidence. On the side of the plaintiffs P.W.1 & P.W.2 were
examined and Ex.P1 to Ex.P5 were marked. On the side of the defendants,
D.W.1 & D.W.2 were examined and Ex.B1 to Ex.B3 were marked.
7. The original plaintiff, Arumugam, passed away, his two daughters
(plaintiffs 2 and 3) contested the case and provided evidence. The learned
trial judge framed four issues, the foremost of which were: (i) Whether the
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suit property was ancestral joint family property. (ii) Whether the plaintiff
had already relinquished his right over the property through two registered
documents, as alleged by the defendants.
8. After analyzing the evidence, the learned trial judge held that the
suit property was indeed ancestral property. The plaintiff's father,
Mariappan, had three sons—Arumugam (plaintiff), Paramasivam (D1), and
Kandha Goundar (father of D2 to D4). As legal heirs, each of them was
entitled to one-third share. Since the first defendant, Paramasivam,
remained ex-parte, the court drew an adverse inference against him.
9. The contesting defendants (D2 to D4) argued that the 1st plaintiff
had already released his share through a release deed dated 23-01-1971.
However, they failed to produce the said document before the court.
Though D.W.1 gave evidence supporting this claim, they instead produced
another sale deed dated 25.01.1957, marked as Ex. B-1. Upon perusal of
this document, it was found that the 2nd and 3rd plaintiffs and their mother
had jointly sold certain property to Paramasivam (D1) and KandhaGoundar.
However, the document did not contain any survey number or property
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description that matched the suit property. Therefore, the document did not
bind the plaintiffs.
10. Given the ex-parte status of Paramasivam and the failure of the
contesting defendants to substantiate their claims, the trial court ruled in
favour of the plaintiffs. The court decreed the suit, allotting one-sixth share
to each of the plaintiffs.
11. Challenging this judgment, defendants 2 and 3 preferred an
appeal (A.S. No. 53 of 2006) before the Principal District Judge, Salem.
Both parties contested the appeal. During the appellate proceedings, the
appellants filed I.A. No. 169 of 2006 under Order XLI, Rule 27, seeking to
introduce the original sale agreement executed by the first plaintiff in
favour of their father, Kandha Goundar, as additional evidence. The
plaintiffs objected to this, and the matter was tried along with the appeal.
12. The learned first appellate judge framed two issues for
consideration:
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(i) Whether the unregistered sale deed dated 23-01-97 could be
received as additional evidence.
(ii) Whether the judgment passed by the trial court was sustainable.
13. The learned first appellate judge, with regard to additional
documents, held that the document in question is unregistered. However,
since the value of the property mentioned in the document is Rs. 1,500/-, it
requires valid registration as per Section 17 of the Registration Act.
14. The counsel appearing for the contesting defendants argued that
even unregistered documents could be admissible for collateral purposes,
such as proving possession of the property. However, the learned first
appellate judge observed that if a document is not properly stamped, the
required stamp duty could be paid with a penalty for any purpose. However,
the contesting defendants claim that through the said unregistered alleged
release deed, they have acquired extinguishment of rights or ownership,
which cannot be legally claimed. Furthermore, regarding the possession of
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the property, even a bare perusal of the alleged unregistered document
shows that no survey number is mentioned. The extent of the property
mentioned is only 47 cents in Karkalvadi village and in Natchukadu,
whereas the suit property measure 13 acres and 18 cents. Therefore, the
unregistered and insufficiently stamped document is inadmissible as
evidence. Consequently, it was not included as additional evidence.
15. While deciding the right of the plaintiff, the learned first appellate
judge held that as per Exhibit B1 (a sale deed), the plaintiff, Arumugam,
and his mother sold the property under Exhibit B1 on 25.01.1957 to
Kandha Gounder and Paramasivam. However, no survey number was
mentioned, and the total extent of the property in Exhibit B1 is 3 acres and
0.5 cents. The property mentioned in Exhibit B1 belonged separately to the
plaintiffs' mother, Vairakkal, and was situated in Bomminayakam Patti of
Karkalvadi village. Thus, it is entirely different from the suit property.
Therefore, the contesting defendants failed to establish that the original
plaintiff, Arumugam, relinquished his share through a release deed or
conveyed his share in the joint family property to his two brothers. Since
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this claim was not proved, and the plaintiffs, on the other hand,
substantiated their claim for one-third share in the suit property, the
appellate court confirmed the findings of the trial court and dismissed the
appeal.
16. Challenging the concurrent findings of the courts below, the 2nd
and 3rd defendants preferred this appeal and raised following grounds.
i) The lower courts ought to have held that the plaintiffs are not in
possession and enjoyment of the suit property. There is no joint possession
in respect of the suit property and the plaintiffs are not entitled for partition
and separate possession.
ii) The lower Courts failed to hold that burden of proof that the suit
property is the joint family property and the plaintiffs are in possession of
the suit property are heavily on the plaintiffs, which they failed to discharge
their burden.
Iii). The lower courts ought to have held that the 1st plaintiff along
with his mother, has sold his entire share in the suit property infavour of the
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1st defendant and the father of the defendants' 2 to 4 under the sale deed
dt.25.1.1957 which is marked as Ex.A-1. Thus the plaintiffs have no share
in the suit property.
iv. The lower courts failed to see that the I st plaintiff has executed a
release deed dt.23.01.1971 (Ex.A-2) and thereby relinquished his share in
the joint family property, infavour of 1 st defendant and the father of the
defendants 2 to 4 Kanda Gounder and hence the plaintiffs are not entitled to
claim any share in the suit property.
v. The lower Appellate court erred in dismissing I.A. No.169 of
2006, the petition to receive the release deed dt.23.01.1971 as additional
evidence in the appeal, without properly considering the facts and
circumstances of the case.
vi. The lower appellate Court failed to see that the release deed
dt.23.1.1971 is a very vital document which will throw more light on the
dispute between the parties.
Vii. In any event, the release deed dt.23.1.1971 could atleast be
received in evidence for the collateral purpose of proving the nature of
possession of the suit property by the defendants.
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viii. The lower courts ought to have seen that the 1st plaintiff has not
even chosen to give any rejoinder to the reply notice issued by the
defendants 2 to 4 stating that the 1st plaintiff has relinquished his rights over
the suit property.
ix. The lower courts erred in commenting upon the defendants for
non examination of the 1st defendant and drawn an adverse inference
against the defendants. In this case, the defendants have examined other
defendants to prove their case. Hence, the non examination of the defendant
would not be fatal to the defendants' case.
17. This Court admits the second appeal on 03.12.2010 on the
following substantial questions of law:
“ A. Whether or not the Lower Appellate Court right in dismissing
the application to receive the release deed dated 23.01.1971, ignoring that
the said document is a vital document to decide the real dispute between
the parties?
B. Whether the plaintiffs are entitled to partition of any share in the
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suit property even after the first plaintiff had sold his share in the suit
property in favour of the first defendant and the father of defendants 2 to 4
and subsequently relinquished the balance of his share in the suit property
under the release deed dated 23.01.1971?
C. Whether or not the release deed dated 23.01.1971 could be
received in evidence for collateral purposes of proving the exclusive
possession of the defendants over the suit property?”
18. The learned counsel for the appellants argues that the alleged
unregistered release deed dated 23-01-1971 is a vital document to prove the
real dispute between the parties and should have been admitted for
collateral purposes, specifically to prove the exclusive possession of the
properties by the defendants. However, the learned first appellate judge,
without proper consideration, erroneously dismissed the application,
holding it inadmissible. The appellants contend that this ruling is illegal and
should be set aside. Furthermore, the counsel submits that since the 1st
plaintiff had already released his share, he is not entitled to claim one-third
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share. However, the courts below erroneously granted him such a share
without properly appreciating the records. Therefore, he prays to set aside
findings of the courts below.
19. Additionally, the appellants argue that the plaintiffs have failed to
establish that, at the time of filing the suit, the suit property was part of the
joint family estate. The plaintiffs have also not proved that they were in
joint possession of the property, a necessary requirement for partition.
Despite this, the courts below granted them one-third share, which the
appellants contend is a misinterpretation of facts and law. They argue that
the judgment is perverse and should be set aside.
20. In response, the learned counsel for respondents 1 and 2
(plaintiffs 2 and 3) argues that the contesting defendants have not denied
the nature of the property nor established that the original plaintiff,
Arumugam, relinquished his share in favour of the contesting defendants.
Furthermore, Exhibit B1 does not pertain to the suit property. The plaintiffs
have successfully proved that the suit property is joint family property and
that their father, the original plaintiff, did not release his share in favour of
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the other sharers or sell the suit property.
21. Moreover, the alleged release deed relied upon by defendants 2
and 3 is unregistered, and the property mentioned therein do not match the
suit property. Therefore, the courts below rightly disregarded the alleged
release deed and granted the plaintiffs their rightful share in the suit
property. As a result, the respondents contend that the appeal has no merit
and should be dismissed.
22. Considering both parties’ submissions, the contesting defendants
challenge the plaintiffs’ claim on two grounds. It is an undisputed fact that
the original plaintiff, Arumugam, the first defendant, Paramasivam, and
their deceased brother, Kandha Gounder (whose legal heirs are defendants
2 to 4), were brothers. The plaintiffs argue that the suit property is
ancestral joint family property. After their father’s demise, the plaintiff and
his two brothers jointly constituted a Hindu Joint Family property. When
the plaintiff demanded an amicable partition, his brothers refused.
Consequently, after issuing a legal notice, he filed the present suit.
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23. In response, the contesting defendants claim that the plaintiff,
Arumugam, had already released his share in favour of his two brothers and
had sold a portion of the property through a sale deed about 30 years ago.
Therefore, they argue that his right has already been extinguished, and the
partition suit is not maintainable.
24. To prove the alleged release, the contesting defendants did not
produce any release deed before the trial court. The trial court made an
observation to this effect. However, during the first appeal, they produced
an alleged unregistered release deed as an additional document and
requested the first appellate court to admit it. The learned appellate judge,
upon examination, found that the property mentioned in the document was
valued at Rs.1,500/-, which required valid registration. Since it was not
registered, the document was held inadmissible.
25. The contesting defendants insisted that the document could still
be received for collateral purposes. However, the learned first appellate
judge rejected this argument as well, noting that the suit property does not
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match the property described in the alleged unregistered release deed.
Further, in the alleged unregistered documents, admittedly, no survey
number was mentioned, nor was any proof provided that it related to the
suit property. An extent of 13 acres was shown as the suit property in
Survey No. 242/1A1 and 241/1A of Karkalvadi, Village Omalur. However,
no survey number was mentioned, and the description of the property did
not tally with the suit property. At most, it contained only 47 cents, whereas
the suit property measured 13 acres and 18 cents.
26. Therefore, the first appellate judge rightly dismissed the
application to receive the alleged release deed, which requires no
interference by this court. Apart from this, the said document is also
unregistered, in admissible in evidence want of registration under Section
17 of Registration Act, thus question of law "A"is answered.
27. Another defense raised by the defendants is that, through a sale
deed (Exhibit B1), the plaintiffs, along with their mother, sold the property
in favour of D1 and the father of the 2nd defendant, namely, Kandha
Kounder. However, as per the description found in Exhibit B1, the
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document was executed for an extent of 3 acres, but the suit property was
not mentioned. The property described in Exhibit B1 are entirely different
from the suit property, and it is a self-acquired property of the plaintiffs'
mother, Vairakal, which has no connection with the suit properties.
28. Accordingly, the courts below rightly held that through Exhibit
B1, the defendants failed to establish that the plaintiffs had already sold
their share in favour of their other brothers. Therefore, the defendants could
not prove that the plaintiffs had parted with their share by receiving valid
consideration through a sale deed or that they had already relinquished their
remaining share. Consequently, the contentions of the defendants were
rightly disbelieved by the courts below, and no interference is required.
Accordingly, Question of Law B is answered.
29. The suit property was claimed as joint family property by the
plaintiffs. In the written statement, the defendants did not specifically rely
on this contention. Instead, they pleaded that the plaintiffs had already
released their share for valid consideration, which itself indicates that the
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suit property is joint family property in nature. There is no proof by the
defendant that he is excessive possession of suit property. Hence, the
alleged unregistered release deed not to be consider even for collateral
purpose. Thus, question of law "C"is answered. As discussed above, the
first plaintiff proved his claim. Since he has now passed away, his
daughters, plaintiffs 2 and 3, are entitled to a total of one-third (1/3) share
in the suit property (one-sixth (1/6) each).
30. Accordingly, the appeal is dismissed as devoid of merit. The
findings of the trial court are confirmed. Since the suit has been pending
since 1999, more than 25 years, the trial court is directed to dispose of any
final decree application, if filed, without unnecessary adjournments and to
conclude the case within a period of three months. Consequently, the
connected miscellaneous petition is closed. There shall be no order as to
costs.
04.04.2025
Index : Yes/No
Neutral Citation : Yes/No
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Speaking/Non Speaking order
rri
To
1. The Principal District Judge, Salem.
2. The Subordinate Judge, Mettur.
3.The Section Officer, VR Section, High Court of Madras.
T.V.THAMILSELVI, J.
rri
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and
04.04.2025
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