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2007 Supreme(Mad) 1526
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE V. DHANAPALAN
Kasim Beevi & Others
Versus
Sowr Beevi & Others
S.A.No.121 of 1995
Decided On : 16-05-2007
For the Petitioners:M V. Krishnan, Advocate. For the Respondents:
S. Natesh Raja, for B.S. Gnanadesikan, Advocate.
Headnote:
Family Arrangement - Property Dispute - [Section 17(1)(b) of the Registration Act, 1908, Section 49 of the Evidence Act, 1872, Hari Shankar Singhania and Others v. Gaur Hari Singhania and Others, Roshan Singh v. Zile Singh and Others, Thayyullathil Kunhikannan and Others v. Thayyullathil Kalliani and Others, Janaki Pandyani v. Ganeshwar Panda, P. Shanmugasamy v. Kausalya alias Krishnaveni, Lingappa Gounder v. Palanisamy Gounder and Others, Hi. Sheet Industries, Ambur Town, Vellore District v. Litelon Limited, Hosur] - The court discussed the concept of family arrangement and its validity, the requirement of registration for documents effecting division, and the admissibility of unregistered documents to prove possession. The judgment highlighted the principles governing family arrangements and the special equity principle applied by the courts to uphold such settlements for the benefit of the family.
Fact of the Case:
The suit involved a property dispute among the heirs of Sheik Ismail Rowther, focusing on the validity of a family arrangement and the possession of the suit properties.
Finding of the Court:
The Trial Court found in favor of the defendants, holding that the suit properties were released in favor of the defendant towards his marriage and the plaintiff had no right to claim adverse possession. The Lower Appellate Court reversed the decision, ruling in favor of the plaintiff. The High Court set aside the Lower Appellate Court's judgment and restored the Trial Court's decision.
Issues: The key issues revolved around the validity of the family arrangement, the admissibility of unregistered documents to prove possession, and the claim of adverse possession by the plaintiff.
Ratio Decidendi: The judgment emphasized the validity of family arrangements, the requirement of registration for documents effecting division, and the admissibility of unregistered documents to prove possession. It also highlighted the special equity principle applied by the courts to uphold family settlements for the benefit of the family.
Final Decision: The Second Appeal was allowed, setting aside the judgment of the Lower Appellate Court and restoring the Trial Court's decision.
V. Dhanapalan, J.
Aggrieved by the order and decretal order, dated 30.9.1994 made in A.S. No. 197 of 1993 on the file of the Court of the Additional Sub-ordinate Judge, Dindigul, preferred against the judgment and decreetal order, dated 30.8.1991 in O.S. No. 734 of 1983 on the file of the Additional District Munisif, Dindigul, defendants 1 to 6 and 9 have preferred this appeal.
2. The case of the plaintiff as put of the before the Trial Court is as follows:
The suit property and other properties originally belonged to Sheik Ismail Rowther. He died intestate leaving behind six sons, namely Madharsha, Mohammed Meera, Mohammed Aliyar, Peer Mohammed, Sikandar Basha and Khadersha. After the demise of Sheik Ismail Rowther, all his six sons inherited his properties and were in possession and enjoyment of the same. Subsequently, the eldest son Madharsha died and his legal heirs executed the Release Deed, Exhibit A-3, dated 2. 1974 in favour of remaining five sons. The legal heirs of the deceased Mohammed Aliyar, Peer Mohammed and Sikkander Batcha released their share in favour of Khader Sha, the sixth defendant. Since the sixth defendant obtained more share he has been in possession and enjoyment of the suit properties. Sowr Beevi, daughter of the deceased Peer Mohammed, who is the son of the deceased Sheik Ismail Rowther purchased the 1/6th share from her mother and three brothers under Exhibit A-2-Sale Deed, dated, 112. 1982. She filed a suit for partition of her 1/6th share in O.S. No. 734 of 1983.
3. The defendants case is that the suit property pursuant to the oral family partition in 1954, under a family arrangement. Was given to Sikandar Basha and Khader the 6th defendant under Exhibit B-3, dated 13. 1979, an unregistered document. Though, the document is called Partition Release Deed", it is infact a family arrangement under which the other members of Shiek Ismail Rowther family gave the suit property towards the marriage of Sikandar Basha and Kadher Shah, the 6th defendant.
4. The defendants have examined the 6th defendant Khader Shah, Ayeeshah Beevi as P.W.2 and one of the executants of Exhibit B-3, Khader Pichai. Ayeeshah Beevi is the widow of Mohammed Aliyar, one of the sons of Shiek Ismail Rowther. In her pleading, she has admitted that the 6th defendant Khader Shah was giving income to the co-sharers out of the possession and enjoyment of the suit properties. The plaintiff has admitted that the 6th defendant is in possession of the suit properties. The defendants pleaded an oral partition in 1954 and on 13. 1979, the other sharers pursuant to the oral partition gave a release deed in favour of the 6th defendant and Sikandar Basha. According to the defendants, the said document is called a Release deed, it is a memorandum of family arrangement to the oral partition in 1954.
5. According to the defendants, the plaintiff cannot dispute the oral partition since their sale deed Exhibit A-2 itself admits oral partition and the plaintiffs reliance on Exhibit A-3,Release Deed is misplaced. Since the original of the document is not filed, the plaintiffs sale deed, Exhibit A-2 itself recites an oral in the family. It is the case of the defendants that Exhibit B3, an unregistered document can be used for a collateral purpose to prove possession and that a family arrangement does not require registration.
6. The Trial Court on evaluation of the evidence on record and considering the facts and circumstances of the case found that the suit properties were released in favour of the defendant towards his marriage and that the plaintiff has no right to claim adverse possession of the properties and accordingly dismissed the suit.
7. The Lower Appellate Court on perusal of the facts of the case and the evidence on record that the defendants, though claim to be in possession of the properties by way of a family arrangement in the year 1954, has not proved the same properly. The document produced on their behalf is an unregis
