R.Pandiyan v. Pappammal

Order 8 Rule 6 (A) CPC.

13.In the present case, as already pointed out, the first and third defendant have taken a specific stand that the property sought to be included is the joint family property and whereas according to the plaintiff and the second defendant, it is the separate and self acquired property of the second defendant. No doubt, the second defendant in an attempt to prove that it is the separate property, has produced the documents under Ex.R.1 to Ex.R19.

14.The learned trial Judge, by observing that whether the property sought to be included is the joint family property or the separate property of the second defendant can only be gone into and decided at the trial, allowed the amendments.

15.Considering the settled position of law, above referred, allowing the amendment so as to include some properties at the instance of the defendant, is legally impermissible."

¶25In the present case, as already pointed out, the plaintiff has disputed the nature of the properties and taken a stand that the properties d are not liable for partition. As per the legal position referred above, the amendment / inclusion of the properties cannot be ordered at all. Hence, this Court has no hesitation to hold that the above petitions are devoid of merits and the same are liable to be dismissed. Points in Cross Objection:

¶26As already pointed out, the defendants 1, 3 to 5 have taken a stand that as per the provisions of Hindu Succession Act, after the death of Rajagopal as intestate, the suit properties devolved on the plaintiff and the defendants and as such, all are entitled to get 1/7th share in the suit properties. According to them, the cross objection came to be filed in order to give quietus to the issues among their family members.

¶27It is pertinent to note that when originally the second defendant has filed the written statement mainly contending that there was a family arrangement on 24.08.2003 and the properties were allotted to the sons of Rajagopal and the provisions were made to clear the debts due by Rajagopal and for daughters, the defendants 1, 3 to 5 now the cross-objectors have adopted the written statement filed by the second defendant. No doubt, the plaintiff has disputed the family arrangement d dated 24.08.2003 alleged by the defendants. After trial, the learned trial Judge has come to a decision that the family arrangement on 24.08.2003 is true, valid and is binding on the plaintiff and on that decision, dismissed the suit. To put it in other way, the trial Court has accepted the defence taken by the defendants 1 to 5 including the cross-objectors, that there was a family arrangement and as such, the plaintiff is not entitled to claim partition any more. But when the defeated plaintiff has preferred the above appeal, challenging the dismissal of the suit, the defendants 1, 3 to 5 have filed the cross objection by raising a case / stand contrary to the defence taken before the trial Court along with the second defendant, which was accepted by the trial Court.

¶28The learned Counsel for the cross-objectors would submit that mere filing of the written statement before the trial Court will not curtail the cross-objectors from raising their legal rights as they are entitled to get share as per the Hindu Succession Act and that there is no estoppel against the statute. No doubt, the Full Bench of the Hon'ble Supreme Court in Vineeta Sharma Vs. Rakesh Sharma and others reported in

(2020)9 SCC 1 has settled the legal position that a daughter born before the date of enforcement of 2005 amendment Act, has same rights as d daughter born on or after the amendment and that a daughter who is alive on the date of enforcement of amendment Act, ie., on 09.09.2005 becomes a coparcener irrespective of whether she was born before the said amendment and that the provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

¶29In the case on hand, as already pointed out, "A" schedule suit properties are the ancestral and joint family properties of the deceased Rajagopal and as such, the daughters, in the absence of any testamentary instrument or partition or family arrangement in their family, are entitled to invoke the provisions of Hindu Succession Amendment Act, 2005 and claim share as that of a male member. But in our case, the defendants have taken a specific stand that there was a family arrangement in the family on 24.08.2003 and the properties were allotted to the sons of Rajagopal and the provisions were made for daughters.

¶30Admittedly, the cross objectors have not raised any pleadings for the stand now taken in the cross objection. As rightly contended by d the learned Counsel for the second defendant, the cross objectors even in their grounds have not even challenged the finding recorded by the trial Court, that there was a family arrangement and the same was acted upon. As rightly contended by the learned Counsel for the plaintiff as well as the second defendant, since the cross objectors have taken a specific stand before the trial Court and after getting the decision in their favour, they are certainly not entitled to canvass a new case or stand which is contrary to the earlier stand taken and was accepted by the trial Court. To put it in other way, the cross objectors are clearly estopped from raising the present plea that they are entitled to get share invoking the provisions of Hindu Succession Amendment Act, 2005. Without challenging the impugned judgment and decree in the manner known to law, their attempt by way of cross objection to upset the judgment by raising a stand which is totally contrary to the earlier stand, cannot be entertained at all.

¶31Considering the above, this Court has no other option, but to hold that the cross objection is legally unsustainable and is liable to be dismissed. d Points in the Appeal Suit:

¶32The plaintiff in the present appeal has mainly challenged the judgment and decree of the trial Court on the ground that the trial Court by relying only on Ex.B.1 the alleged partition document which is unstamped and unregistered document is legally inadmissible and more importantly the said document was not at all exhibited, but the plaintiff's signature alone was marked. No doubt, as rightly pointed out by the learned Counsel for the plaintiff, the family arrangement or partition document dated 24.08.2003 was not at all exhibited as a document, but on the other hand, the plaintiff's signature found in that document alone was marked as Ex.B.1. It is pertinent to note that the plaintiff has specifically admitted that the panchayat was convened on 24.08.2003. The defendants in their reply notice dated 24.01.2006 under Ex.A.33 issued in response to the plaintiff's legal notice and in the written statement, they have specifically named the panchayathars who had taken part in the mediation and according to them, Ex.M.L.A. Pappa Subramanian, Thambi Dhanabalan, Mannarkudi Manickavasagam, d Inchikollai Kovindarajan, Narayanamangalam Swaminathan and others were present. The plaintiff as P.W.1 in his cross-examination would specifically admit that Ex.M.L.A. Pappa Subramanian, Thambi Dhanabalan, Mannarkudi Manickavasagam, Inchikollai Kovindarajan, Narayanamangalam Swaminathan and some others had participated in the panchayat. P.W.1 would also say that the panchayathars are the persons known to his father and are respectable persons and the relevant portion is extracted hereunder: "24.8.2003 md;W gq;rhaj;J ele;jJ vd;why; cz;ikjhd;. ne;j gq;rhaj;jpy; Kd;dhs; vk;.vy;.V.ghg;gh Rg;gpukzpad;, jk;gp jdghyd;, Fle;ij fUzhepjp, kd;dhh;Fo khzpf;fthrfk;, nq;rpbfhy;iy Bfhtpe;juh$d;, ehuhazkA;fyk; Rthkpehjd; kw;Wk; rpyUk; gq;rhaj;J Bgrpdhh;fs;. Bkw;brhd;d midtUk; vdJ je;ijf;F mwpKfkhdth;fs;. mth;fs; khpahijf;Fhpath;fs;. ne;j gq;rhaj;ij ehd;jhd; Vw;ghL bra;Bjd;. ve;j ve;j brhj;ij ahh; mDgtpg;gJ, fld; tptuk; gw;wpa[k; Bgrg;gl;lJ vd;why; rhpjhd;." d

¶33But according to the plaintiff, the suggestions made by the panchayathars were not accepted by the defendants and that is why, the panchayat ended in failure. The plaintiff has raised a complaint that before the panchayat, the defendants had taken his signatures in 4, 5 papers and assigned reasons for taking his signatures, which are extracted hereunder: "gq;rhaj;J Muk;gpg;gjw;F Kd;g[ btw;W Bgg;ghpy; ifbaGj;J Bghl;lhy;jhd; gq;rhaj;J elf;Fk; vd;gjhy; ehd;ife;J Bgg;ghpy; ehd; ifbaGj;J Bghl;Ls;Bsd;. gpujpthjpfs;jhd; vd;dplk; ifbaGj;J thA;fpdhh;fs;. gq;rhaj;jhh;fs; tUtjw;F Kd;Bg gpujpthjpfs; vd;dplk; ifbaGj;J thA;fpdhh;fs;." But in the chief examination, he would add "brhy;yg;Bghdhy; 24.8.2003 md;W ghfg;gphptpidf;F gq;rhaj;jhh;fs; itj;J eltof;if vLj;j BghJ 1 Kjy; 6 gpujpthjpfs; gq;rhaj;jhh;fs; Bgr;irf; Bfl;f kWj;Jtpl;lhh;fs;. mt;thW gq;rhaj;J elj;j Kw;gl;lBghJ 1 Kjy; 6 gpujpthjpfs; btw;Wj; jhs;fspy; vd;Dila ifbaGj;Jf;fis gq;rhaj;J Tl;l Bjitahdbjd;W brhy;yp bgw;whh;fs;. gq;rhaj;J Bgrp Koj;J gjpthd ghfg; gj;jpuk; vGjt[k; ifbaGj;Jf;fs; Bjit vd;W 1 Kjy; 6 gpujpthjpfs; mth;fSila ez;gh;fisa[k; murpay; bry;thf;Fs;sth;fisa[k; itj;J bfhz;L bgw;Ws;shh;fs;." d

¶34It is pertinent to note that P.W.1, in his cross-examination, would categorically admit that he alone had arranged the panchayat. If that be so, this Court is at loss to understand as to why he had put his signatures in four or five blank papers at the instance of the defendants and that too before the arrival of the panchayathars. More importantly, the plaintiff had admitted his signature found in the alleged family arrangement document and the same alone was exhibited as Ex.B.1.

¶35As rightly observed by the learned trial Judge, Ex.B.1 signature finds place in the middle of the first page of the document and when the plaintiff was alleging that he had put his signatures in four or five blank papers, he has not offered any reason or explanation for putting his signatures in the middle of the page. As already pointed out, before the trial Court, except the plaintiff and the sixth defendant who remained exparte, all other legal heirs of the deceased Rajagopal have specifically admitted the panchayat convened on 24.08.2003 and the family arrangement arrived at that time. The defendants have examined two panchayathars as D.W.2 and D.W.3 and both of them have deposed about the panchayat held on 24.08.2003 and the family arrangement arrived d between the parties. Though D.W.1 to D.W.3 were subjected to cross-examine by the plaintiff's side, their evidence with regard to the family arrangement on 24.08.2003 was not at all shaken and nothing was elicited by the plaintiff's side in their favour.

¶36As rightly pointed out by the learned Counsel for the second defendant, when P.W.1 was cross-examined with respect to the alleged family arrangement document, the trial Court has recorded that the plaintiff was admitting his signature found in Ex.B.1 document. (fhl;lg;gLk; Mtzk; gp.j.M.1 y; cs;sJ vd;Dila ifbaGj;Jjhd; – ). According to the learned Counsel for the second defendant, since the plaintiff has raised objection that the document requires registration, the trial Court has refused to admit the same. But a cursory perusal of document dated 24.08.2008 would reveal that the same is not in a document format and it is written as a chit or list of the properties given to the sharers. Admittedly, there are no wordings in the said document allotting the properties to the sharers through that document itself. It is settled law that the family arrangement can be made orally. But if a family arrangement is reduced into writing, then it d must be properly stamped and duly registered and that the family arrangement which is not stamped and unregistered cannot be looked into for any purpose. In the present case, according to the plaintiff, since the defendants are alleging that the family arrangement was reduced into writing, the same being unregistered and unstamped, cannot be looked into and that the finding of the trial Court relying mainly on that document is legally unsustainable.

¶37It is pertinent to mention that after the family arrangement, a mere memorandum is prepared for the purpose of record or for information of the Court, such memorandum itself does not create or extinguish any rights in immovable properties and that therefore, the same is not compulsorily registrable. It is necessary to refer the judgment of the Hon'ble Apex Court in Kale and Ors.v.Deputy Director of Consolidation and Ors. Reported in [1976] 3 SCR 202 and the relevant passage is extracted hereunder: "In Tek Bahadur Bhujil v. Debi Singh Bhujil, , it was pointed out by this Court that a family arrangement could be arrived at even orally and registration would be required only if it was reduced into writing. It was also held that a document which was no more than a memorandum of what had been d agreed to did not require registration. This Court had observed thus:- "Family arrangement as such can be arrived at orally, its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is 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. ............ A Full Bench of the Allahabad High Court in Ramgopal v. Tulshi Ram, AIR 1928 All. 641, 649 has also taken the view that a family arrangement could be oral and if it is followed by a petition in Court containing a reference to the arrangement and if the purpose was merely to inform the Court regarding the arrangement, no registration was necessary. In this connection the full bench adumbrated the following propositions in answering the reference: d We would, therefore return the reference with a statement of the following general propositions: With reference to the first question:

(1) A family arrangement can be made orally.

(2) If made orally, there being no document, no question of registration arises. With reference to the second question:

(3) If though it could have been made orally, it was in fact reduced to the form of a 'document' registration when the value is Rs.100 and upwards is necessary.

(4) 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 and phraseology of the writing and the circumstances in which and the purpose with which it was written.

(5) If the terms were not "reduced to the form of a document" registration was not necessary (even though the value is Rs. 100 or upwards); and, while the writing cannot be used as a piece of evidence for what it may be worth, e,g. as corroborative of other evidence or as an admission of the transaction or as showing or explaining conduct. d

(6) If the terms were "reduced to the form of a document" and, though the value was Rs.100 or upwards, it was not registered, the absence of registration makes the document inadmissible in evidence and is fatal to proof of the arrangement embodied in the document............ Similarly, the Patna High Court in Awadh Narain Singh v. Narain Mishra, pointed out that a compromise petition not embodying any terms of agreement but merely conveying information to the Court that family arrangement had already been arrived at between the parties did not require registration and can be looked into for ascertaining the terms of family arrangement. This is what actually seems to have happened in the present case when the mutation petition was made before the Assistant Commissioner."

¶38In the case on hand, the document in question cannot even be considered as a memorandum and it is only a list. In the said document, there are no recitals or clauses nor terms and conditions. Considering the above, the above document is not a document which requires compulsory registration and as such, absolutely there is no bar or prohibition for admitting the said document. But however, the said document was not admitted in evidence and as such, relying the contents of that document d does not arise at all. But the fact remains that there was a family arrangement on 24.08.2003 and as per that arrangement, the properties were allotted to the sons of Rajagopal.

¶39Considering the admission of the plaintiff in his cross examination and the evidence of Panchayathars along with the evidence of the second defendant and the other evidence available on record, the finding of the learned trial Judge that the family arrangement dated

24.08.2003 is true, valid and binding on the plaintiff, cannot be found fault with and this Court is in entire agreement with the findings recorded by the trial Court.

¶40As rightly contended by the learned Counsel for the second defendant, the plaintiff by suppressing the family arrangement and by raising false allegations, has filed the present suit and that since the family arrangement dated 24.01.2006 is proved to be true, the claim for partition laid by the plaintiff is legally not maintainable and on that basis, the trial Court has rightly dismissed the suit. Consequently, this Court concludes that the Appeal Suit is devoid of merits and the same is liable d to be dismissed. Considering the other facts and circumstances and the relationship between the parties, the parties are to be directed to bear their own costs and the above points are answered accordingly.

¶41In the result, both the Appeal Suit and the Cross Objection are dismissed and C.M.P.(MD)Nos.5285 and 5287 of 2023 are also dismissed and consequently, the connected Miscellaneous Petition is also dismissed. The parties are directed to bear their own costs.

10.11.2023 NCC : Yes : No Index : Yes : No Internet : Yes : No SSL To

¶1The Additional District Court (Fast Track Court)), Kumbakonam.

2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai. d A.S.(MD)No.1oofo2020oandoCros.Obj.(MD)No.16oofo2022 and K.MURALIoSHANKAR,J. SSL PRE-DELIVERYoJUDGMENToMADEoIN A.S.(MD)No.1oofo2020 and CrossoObj.(MD)No.16oofo2022

10.11.2023

d BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON: 16.08.2023 PRONOUNCED ON:10.11.2023 CORAM THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR A.S.(MD)No.1 of 2020 and Cros.Obj.(MD)No.16 of 2022 and C.M.P.(MD)Nos.5285, 5286 and 5287 of 2023 A.S.(MD)No.1 of 2020 R.Pandiyan : Appellant/Plaintiff Vs. 1.Pappammal 2.Ganesan 3.Ayyappan 4.Chitra 5.Maragathavalli 6.Sasikala : Respondents/Defendants PRAYER:- Appeal Suit filed under Section 96 of the Code of Civil Procedure against the Judgment and Decree, dated 30.11.2016 made in O.S.No.18 of 2006, on the file of the Additional District Court (Fast Track Court)), Kumbakonam. d For Appellant : Mr.K.Govindarajan For Respondents :Mr.S.A.Ajmal Khan for R.1, R.3 to R.6 : Mr.G.Karnan for R.2 Cros.Obj.(MD)No.16 of 2022 1.Pappammal 2.Ayyappan 3.Chitra 4.Maragathavalli 5.Sasikala : Cross Appellants/ Respondents 1, 3 to 6 Vs. 1.R.Pandiyan : 1st Respondent/Appellant 2.Ganesan : 2nd Respondent/2nd Respondent PRAYER:- Cross Objection filed under Order 41 Rule 22 of the Code of Civil Procedure against the Judgment and Decree, dated 30.11.2016 made in O.S.No.18 of 2006, on the file of the Additional District Court (Fast Track Court)), Kumbakonam. For Cross Appellants : Mr.S.A.Ajmal Khan For Respondents : K.Govindarajan for R.1 : Mr.G.Karnan for R.2 d COMMON JUDGMENT The Appeal Suit and the Cross Objection are directed against the judgment and decree passed in O.S.No.18 of 2006, dated 30.11.2016, on the file of the Additional District Court (Fast Track Court), Kumbakonam. 2. The suit is for partition. 3. Admittedly, the plaintiff and the defendants 2 and 3 are the sons and the defendants 4 to 6 are the daughters of the first defendant and her deceased husband Rajagopal. It is not in dispute that the said Rajagopal is the only son of the deceased Kalimuthu and that "A" schedule suit properties are the ancestral and joint family properties of the said Kalimuthu and Rajagopal. It is also not in dispute that the said Kalimuthu and his wife died before 1956 and that the said Rajagopal died intestate on 23.11.2002. d 4. The case of the plaintiff is that his father Rajagopal purchased "B" schedule properties from and out of the joint family income derived from the joint family properties for the benefit of the joint family in his name as well as in the names of his wife, son and daughter, that "B" schedule properties were treated as joint family properties by the said Rajagopal and his heirs, that "C" schedule properties are the movable properties belonging to Rajagopal, his wife and children, that after the death of Rajagopal, since the first defendant mother began to show aversion to the plaintiff obviously at the instance of her other children, the plaintiff did not want to be in joint possession of the properties and hence,he demanded partition, that there was a panchayat on 24.08.2003 and an attempt was made to effect partition, but the defendants had refused to accept the suggestions made by the panchayathars, that thereafter, the plaintiff has sent a legal notice dated 18.01.2006 demanding partition, but the defendants 1 to 5 have sent a reply notice raising false and untenable allegations, that no family arrangement was ever made and no division of properties were made and that therefore, the plaintiff was constrained to file the above suit claiming 7/24th shares in the suit properties. d 5. Admittedly, the sixth defendant – daughter of the first defendant, sister of the plaintiff and the other defendants, had remained exparte. 6. The defence of the defendants 1 to 5 is that after the death of Rajagopal, Ex.M.L.A. Pappa Subramanian, Thambi Dhanabalan, Mannarkudi Manickavasagam, Inchikollai Kovindarajan, Narayanamangalam Swaminathan and others mediated between all the heirs of Rajagopal and effected a family arrangement on 24.08.2003 in which the properties have been allotted to the sons of Rajagopal and provisions were also made for payment of debts due by Rajagopal and provisions for daughters we