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S. Saroja v/s Baby Ammal & Others

    S.A. No. 1212 of 1999

    Decided On, 26 June 2018

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE P. RAJAMANICKAM

    For the Appellant: A. Ilango, Advocate. For the Respondents: R1, R4 to R6, M/s. Krishna Ravindran, V. Ashok Kumar, Advocate, R2 & R3, No appearance.



Judgment Text

(Prayer: Criminal Appeal is filed under Section 378 of Code of Criminal Procedure to set aside the Judgment and Decree passed in A.S.No.31 of 1998 dated 18.09.1998 on the file of Additional Sub Court, Nagapattinam, reversing the Judgment and decree passed in O.S.No.214 of 1991 dated 30.09.1997 on the file of the District Munsif Court, Tiruthuraipoondi.)

1. This second appeal has been filed by the defendant against the Judgment and decree passed by the Additional Sub-Judge, Nagapattinam in A.S.No.31 of 1998 dated 18.09.1998 reversing the Judgment and Decree passed by the District Munsif, Tiruthuraipoondi in O.S.No.214 of 1991 dated 30.09.1997.

2. The respondents herein have filed a suit in O.S.No.214 of 1991 on the file of the District Munsif, Tiruthuraipoondi to declare that the suit property belongs to the first plaintiff or plaintiffs; for delivery of possession and for mesne profits. The learned District Munsif, Tiruthuraipoondi, by his Judgment dated 30.09.1997 has dismissed the said suit with cost. Feeling aggrieved, the plaintiffs have filed an appeal in A.S.No.31 of 1998 on the file of the Additional Sub-Judge Nagapattinam. The learned Additional Sub-Judge, Nagapattinam by his Judgment dated 18.09.1998 has allowed the said appeal and set-aside the Judgment and decree passed by the trial court and decreed the suit as prayed for without cost. He also directed the defendant to deliver vacant possession of the suit property within two months. As against the same, the defendant has filed the present second appeal. For the sake of convenience, the parties are referred to as described before the trial court.

3. The averments made in the plaint are, in brief, as follows:

The plaintiffs 2 to 6 are the daughters and son of the first plaintiff; the defendant is the sister of the

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first plaintiff's husband. The first plaintiff constructed a terraced house in S.R.No.179/6 of Madapuram village. The extent of the said Survey Number is 5 cents. On the north of the terraced house, she put up a thatched house. Likewise on the southern side also, she has put up a thatched house. First plaintiff leased out the terraced house to some third parties and she is residing in the thatched house which is situated on the southern side. She permitted her father-in-law Dharmaiah Devar and mother-in-law Seethaiammal to reside in the thatched house which is situated on the northern side. After the death of the first plaintiff's husband, a dispute arose among the first plaintiff, defendant, Dharmaiah Devar and his elder son Natarajan. Hence in the first week of February, 1982, a panchayat was convened and in the said panchayat, a compromise was arrived at among the parties. Certain nanja lands were allotted to the said Natarajan. The five cents land and three houses situated in old S.R.No.179/6 of Madapuram village were allotted to the first plaintiff and the land measuring about 36 kuzhis situated in Mootan kovil street was allotted to the defendant. Further, the first plaintiff's father-in-law Dharmaiah Devar and mother-in-law Seethaiammal were allotted the thatched house which is situated on the northern side of the terraced house in Old S.R.No.179/6 and they should reside there till their life time and after their life time, the said house should go to the first plaintiff and she can enjoy the same as absolute owner. The said family arrangement was reduced into writing on 05.02.1982, wherein all the parties, panchayatars and witnesses have signed. Three copies were taken from the said family arrangement. One copy was given to the first plaintiff, another copy was given to the defendant and third copy was given to the said Natarajan. In pursuance of the said family arrangement, the said Dharmaiah Devar and his wife were residing in the thatched house which is situated on the northern side. Subsequently, Dharmaiah Devar died and thereafter, Seethaiammal alone was residing in the said house. The defendant also residing with her mother Seethaimmal for helping her. The said Seethaiammal died in the month of December, 1990 as intestate. On 10.01.1991, the plaintiffs issued a lawyer's notice calling upon the defendant to hand over the possession of the thatched house which is situated on the northern side. After receipt of the said notice, the defendant, through her advocate, has sent a reply notice dated 27.01.1991 with false averments. She has stated in the reply notice that her mother Seethaimmal had executed a registered Will in favour of her in respect of the house wherein she was residing. The alleged Will is a forged one. Further the said Seethaiammal is not entitled to execute any Will in respect of the suit property. Hence the suit.

4. The averments made in the written statement are, in brief, as follows:

It is false to state that the first plaintiff has constructed a terraced house in the land situated in SR.No.179/6. The terraced house was constructed by Dharmaiah Devar. The thatched house situated on the southern side was also constructed by the said Dharmaiah Devar in the year, 1947. On the northern side of the terraced house also, the first plaintiff has not constructed any thatched house. On the north of the terraced house, the defendant's residential house is there. The said house is situated in SR.No.179/6A measuring about three cents. Originally, the said land was occupied by Dharmaiah Devar and subsequently, his wife Seethaiammal constructed a thatched house and for which Door.No.6/199 has been allotted. The plaintiffs are claiming the said house as the suit property. It is true that in the year 1982, a panchayat was convened in respect of the terraced house and a thatched house situated in SR.No.176/6 and it was decided in the said panchayat that the said Dharmaiah Devar has to enjoy the thatched house and coconut trees situated in SR.No.176/6. But neither Dharmaiah Devar nor Seethaiammal were permitted to enjoy the aforesaid property as per the decision of the panchayat. In the family arrangement, door number is not mentioned. But only Survey number has been mentioned as 176/6, whereas the defendant is residing in Door.No.6/199 and the same is situated in S.R.No.179/6A. So, the house mentioned in the family arrangement and the house mentioned in the suit property are different houses. Hence, the plaintiffs cannot claim any right over the suit property. Further, the defendant's mother Seethaiammal had voluntarily executed a registered Will on 22.02.1989 in respect of the house bearing Door.No.6/199 and also certain nanja lands and thereafter she died on 22.12.1990. After her death, the said Will came into force and in pursuance of the said Will, the defendant acquired the suit property and she is in possession of the same as an absolute owner and therefore she prayed to dismiss the above suit.

5. Based on the aforesaid pleadings, the learned District Munsif has framed necessary issues and tried the suit. During trial, on the side of the plaintiffs, the second plaintiff was examined as PW1 and one Chinnayan was examined as PW2. They have marked Ex.A1 to Ex.A22 as exhibits. On the side of the defendant, the defendant examined herself as DW1 and she also examined two more witnesses as DW2 and DW3. She also marked Exs.B1 to B18 as exhibits.

6. The learned District Munsif, after considering the materials placed before him, dismissed the suit with cost. Aggrieved by the same, the plaintiffs have filed an appeal in A.S.No.31 of 1998 on the file of the Additional Sub-Judge, Nagapattinam. The learned Additional Sub-Judge, Nagapattinam, has allowed the said appeal and set aside the Judgment and decree passed by the trial court and decreed the suit as prayed for and also directed the defendant to deliver vacant possession of the suit property within two months. Feeling aggrieved, the defendant has filed the present second appeal.

7. At the time of admitting this second appeal, this court has formulated the following substantial questions of law:

1. Whether the Ex.A1, Muchelika, is admissible in evidence when the same is not duly stamped and registered in accordance with law?

2. Whether the respondents/plaintiffs have derived title to the suit property as per Ex.A1 which creates right over the suit property?

3. Whether the respondents/plaintiffs can make claim for declaration of title to the property on the basis of Ex.A1, Muchelika which is unregistered one?

8. Heard Mr.A.Ilango, learned counsel for the appellant and M/s.Krishna Ravindran & V. Ashok Kumar for respondents 1 and 4 to 6. No representation for the respondents 2 and 3.

9. Question Nos. 1 to 3:

Learned counsel for the appellant/defendant has submitted that the respondents/plaintiffs claiming right through Ex.A1 Muchelika which is inadmissible in evidence, because it was not duly stamped and registered in accordance with law. He further submitted that the learned District Munsif has rightly rejected Ex.A1 as it was not properly stamped and registered, however, the first appellate court erred in relying upon the said document and granted decree in favour of the respondents/plaintiffs and hence, he requests to allow this second appeal and set aside the Judgment and Decree passed by the first appellate court and dismiss the suit which was filed by the respondents/plaintiffs.

10. In support of his contention, learned counsel for the appellant/defendant has relied upon the Division Bench decision of this court in A.C.Lakshmipathy and another Vs. A.M. Chakrapani Reddiar and five others, 2001 (1) CTC 112.

11. Learned counsel for the respondents/plaintiffs, on the contrary, contended that the defendant has admitted in her reply notice, written statement and evidence about the panchayat said to have been held in respect of the suit property and other properties. He further submitted that as per the panchayat, the properties were alloted to the parties and only thereafter, the said panchayat Muchelika was executed to evident the past transaction and as such, the said document does not require any registration. He further submitted that when the said Muchelika was marked as Ex.A1, the defendant has not raised any objection. He further submitted that as per Section 36 of the Indian Stamp Act, 1899, once the document has been admitted in evidence, it cannot be questioned subsequently, as it was not properly stamped. He further submitted that the recitals in Ex.A1 would clearly show that the said document is a family arrangement. He further submitted that as per the said family arrangement only, the suit property was allotted to the said Dharmaiah Devar and as per the said family arrangement, the said Dharmaiah Devar and his wife Seethaiammal can enjoy the suit property till their life time and thereafter it should go to the first plaintiff and she can enjoy the same as absolute owner. He further submitted that through the said family arrangement, a land measuring about 36 kuzhis situated in Mootan kovil street was allotted to the appellant/defendant and the said fact has not been disputed and therefore, the appellant/defendant is estopped from questioning the said family arrangement. In support of the aforesaid contentions, he relied upon the decision in Angathal (Deceased) & Another Vs. Poomalai Gounder & Others, CDJ 2010 MHC 7778.

12. In A.C.Lakshmipathy and another Vs. A.M. Chakrapani Reddiar and five others, (supra) a Hon'ble Division Bench of this court has held in paragraph No.42 of the Judgment as follows:

42. To sum up the legal position

(I) A family arrangement can be made orally.

(II) If made orally, there being no document, no question of registration arises.

(III) If the family arrangement is reduced to 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 Indian Stamp Act and Indian Registration Act.

(IV) Whether the terms have been reduced to the form of a document is a question of fact in each case to be determined upon a consideration of the nature of phraseology of the writing and the circumstances in which and the purpose with which it was written.

(V) However, a document in the nature of a Memorandum, evidencing a family arrangement already entered into and had been prepared as a record of what had been agreed upon, in order that there are no hazy notions in future, it need not be stamped or registered.

(VI) Only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess.

(VII) If the family arrangement is stamped but not registered, it can be looked into for collateral purposes.

(VIII) Whether the purpose is a collateral purpose, is a question of fact depends upon facts and circumstances of each case. A person can not claim a right or title to a property under the said document, which is being looked into only for collateral purposes.

(IX) A family arrangement which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar in Section 35 of the Indian Stamp Act.

13. In the present case, the defendant has not disputed the execution of Ex.A1 Muchalika/family arrangement. On the other hand, she has admitted in the reply notice, written statement and also in her evidence that a panchayat was convened and a Muchelika/family arrangement was executed. But what she has stated in her written statement is that in pursuance of the said panchayat decision, the said Dharmaiah Devar and his wife Seethaiammal were not permitted to occupy the thatched house which was alloted in the said panchayat. Her further case is that they have occupied some other house and now the plaintiffs are seeking for delivery of the said house. According to her, the house which has been mentioned in Ex.A1 and the suit property are totally different properties. But the said contention has been rejected by the first appellate court. The learned counsel who is appearing for the appellant/defendant has not pressed the said point before this court. His only contention is that since Ex.A1 is not properly stamped and unregistered, it cannot be admitted in evidence. A perusal of Ex.A1 would show that a decision was taken by the panchayatars and as per the said decision, the properties were allotted to the parties and only to evident the same, the said Ex.A1 was executed. Even as per Clause V of para 42 of the aforesaid decision, Ex.A1 is admissible in evidence because through the said document, partition was not effected. In the said document, only the past transaction was recorded. Therefore, it need not be stamped or registered.

14. It is also to be pointed out that at the time of marking, the said muchalika/family arrangement, as Ex.A1, the defendant has not raised any objection as the document is not sufficiently stamped. As per Section 36 of the Indian Stamp Act 1989, once the document has been admitted in evidence, it is not open either to the trial court itself or a court of appeal or revision to go behind that order (see Chengappan Vs. Arumbatha veda Vinayagar temple 2000 (1) MLJ 198) Therefore, it is not open to the appellant/defendant to raise a question in the second appeal as Ex.A1 has not been sufficiently stamped.

15. In the decision in Angathal (Deceased) & Another Vs. Poomalai Gounder & Others, (supra) this court, relying upon the decision rendered by the three Judges Bench of the Honble Supreme Court in Kale vs Deputy Director of Consolidation AIR 1976 SC 807, has held that family arrangement reduced into writing and signed by both parties does not require any registration when the factum of the family arrangement is established.

16. In Kale vs Deputy Director of Consolidation (supra), the Hon'ble Supreme Court in paragraph No.38 has held that assuming that the family arrangement was compulsorily registrable, it would operate as an estoppel by preventing the parties after having taken advantage under the said arrangement. The relevant portion of the said Judgment is extracted hereunder.

'..........Assuming, however, that the said document was compulsorily registrable, the Courts have generally held that a family arrangement being binding on the parties to it would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it. This principle has been established by several decisions of this Court as also of the Privy Council.'

17. In this case, in the reply notice and also in the written statement, the appellant/defendant has categorically admitted that a Panchayat was conducted. Further, she has not denied the fact that in the said panchayat, she was allotted 36 kuzhis of land. In her evidence, she has categorically admitted that in the said Panchayat, a property was allotted to her. So, it is clear that the appellant/defendant has taken advantage under the said Panchayat muchalika/family arrangement. Therefore, in view of the aforesaid decision of the Hon'ble Supreme Court, the said Panchayat Muchalika/family arrangement would operate as an estoppel against the appellant/defendant. She cannot question the said family arrangement. This court is of the view that the first appellate court has rightly rejected the contention of the appellant/defendant that Ex.A1 is not admissible in evidence. Since only past transaction was recorded under Ex.A1, the same is admissible in evidence eventhough it is an unregistered document. Further, as already pointed out that in the said family arrangement, some properties were allotted to the defendant. So, the defendant is estopped from denying the said family arrangement. Therefore, the second appeal is liable to be dismissed. Accordingly, the substantial questions of law are answered against the appellant/defendant.

18. In the result, the second appeal is dismissed. No costs.
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