Admissibility of an unregistered Partition Deed to prove the intention of the parties to become divided in status and the disruption of joint family status.

ORDER

1. Leave granted.

2. Heard Mr. S. Nagamuthu, learned counsel appearing for the appellants and Mr. V.N. Subramaniam, learned counsel appearing for the respondent.

3. This appeal is by the defendant against the judgment dated 7.11.2016 passed by the Madras High Court, Madurai Bench in Appeal Suit (MD) No.55 of 2002 wherein the High Court had reversed the judgment of the Trial Court dismissing the suit for partition.

4. The first item of the property is in possession of the plaintiff and the second item of the property is in the possession of the defendant. The suit for partition came to be filed by the respondent herein claiming half share in both the suit properties on the ground that no partition has taken place in between the brothers at an earlier point of time and therefore, he is entitled to half of the share, inasmuch as both the suit properties are purchased by the funds earned by both the parties.

5. The Trial Court dismissed the suit, relying upon the Partition Deed Ext.B7 dated 07.04.1983 wherein the parties have mutually divided the properties between them. The High Court in the First Appeal reversed the judgment of the Trial Court and decreed the suit mainly on the ground that the Deed of Partition dated 07.04.1983 was not a registered deed.

6. Learned counsel appearing on behalf of the appellant/defendant taking us to the material on record including the Deed of Partition contends that the Deed of Partition dated 07.04.1983 is undisputed, inasmuch as the said document is produced by the plaintiff herein in OS. No.431/1976; and in the said suit the plaintiff has deposed that the properties are divided among the two brothers.

7. Per contra, learned counsel for the plaintiff argued in support of the judgment of the High Court contending that the Partition Deed dated 07.04.1983 cannot be relied upon by the defendant, inasmuch as the same is unregistered and that the plaintiff is put to injustice in case the said Partition Deed is believed.

8. We do not find any reason to disbelieve the Deed of Partition dated 07.04.1983 which is at Ext. B7 before the Trial Court. It is not in dispute that the very Deed of Partition, though was unregistered, was initially produced and relied upon by the present plaintiff himself in O.S. No.431/1976 on the file of District Munsif Court, Thanjavur and the same was marked at Exhibit B1. The said suit was filed by one Katappa against the respondent herein (i.e. present plaintiff). Exhibit B7 is a certified copy of Exhibit B1 in O.S. No.431/1976.

9. In the normal course, we would have remitted the matter to the Trial Court for getting the original deed from bank wherein the said document is stated to be deposited and for being marked. However, since the Deed of Partition has remained undisputed by the plaintiff, we do not propose to do so. It is not in dispute that the Deed of Partition dated 07.04.1983 which is now being disputed by the plaintiff, was produced by the plaintiff himself in O.S. No.431/1976 in support of his case against Mr. Katappa. In the said suit, the respondent herein i.e. the original plaintiff has deposed as under:-

"The suit property, which stood in the name of my younger brother Govindraj was partitioned among ourselves in the year 1983 in the said partition the suit property was allotted to my brother. Ex.B1 is the partition chit, the property was purchased jointly in my name and in the name of my brother. From the year 1983 onwards my brother has been cultivating on the suit property. I do not have any rights whatsoever over the suit property."

10. From the aforementioned, it is amply clear that the plaintiff candidly admitted in O.S. No.431/1976 about the partition of the year 1983. Since, it is specifically admitted by the plaintiff in his deposition it is not open for the plaintiff to deny for the present as the deposition in earlier suit was obviously on oath.

11. To satisfy our conscience,we have perused ExhibitB7. Though, the document is titled as Deed o