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2012 Supreme(Mad) 1264

High Court of Judicature at Madras
R. BANUMATHI & S. VIMALA
Venkatasubramaniya Chettiar (died) & Others
Versus
Perumal Chettiar & Others
Appeal Suit No.1012 of 2004 & C.M.P.No.159 of 2012
Decided on: 09-03-2012

Advocates appeared:
For the Appellants:Ms. Hema Sampath, Senior Counsel for Venkateswaran, Advocate.
For the Respondents:R1 - P. Valliappan, Advocate.

Ratio
Unregistered partition deed can be looked into for collateral purpose of division in status, subsequent separate enjoyment of the parties and also for considering the nature and character of possession.

Headnote:(A)Registration Act, 1908(16 of 1908)-Sec.17, 49-Registration-Partition-Non registration-Evidence-Admissibility-Plaintiff had sought for partition of the properties by contending that originally, the properties belonged to their father and on his death, they were entitled and when he was in mental distress, the defendant had obtained his signatures in an unregistered partition deed which was not valid-Defendant contended that the partition was effected by mutual consent and thereafter it was acted upon and a part of the property allotted was also sold by the plaintiff and sought for dismissal of the suit-Trial judge held that the partition deed should have been registered and on failure it could not be admitted in evidence and decreed the suit against which the defendant preferred appeal-While the appellant contended that though unregistered, the contents of the partition deed could be looked into for collateral purpose which was resisted by the respondent-Held, the plaintiff had been doing various businesses like, running mill, operating bus service and it could not be expected that he would sign in 12 pages without reading its contents-After the signing, he had also sold a part of the property allotted-An unregistered deed could be looked into by the Courts for collateral purpose-As the partition deed was not marked and additional documents were also filed which were received, the decree and judgment of the trial judge was set aside and the matter was remitted back for fresh decision-Appeal was allowed.
(B)Registration Act, 1908(16 of 1908)-Sec.17, 49-Registration-Partition-Non registration-Evidence-Admissibility-Unregistered partition deed can be looked into for collateral purpose of division in status, subsequent separate enjoyment of the parties and also for considering the nature and character of possession.
In the light of the above principles let us consider the admissibility/evidentiary value to be attached to Ex.B1. Ex.B1-partition deed though not registered can be looked into for collateral purpose of division in status and also for considering the nature and character of possession. While the trial Court erred in declining to look into the contents in Ex.B1-unregistered partition deed, in our considered view, the contents of Ex.B1 could be looked into for “collateral purpose” of proving division in status and the subsequent separate enjoyment of the parties. To that extent, the finding of the trial Court as to the value to be attached to Ex.B1 -unregistered document is liable to be set aside.

Judgment

R.BANUMATHI,J.

1. Challenge in this appeal is the judgment and decree in O.S.No.6 of 2002 [25.02.2003] whereby the Additional District Judge, Fast Track Court, Kallakurichi has decreed the suit for Partition holding that Plaintiff is entitled to half share in the suit properties. Unsuccessful Defendant has preferred the appeal.

2. Appellant-Defendant Venkatasubramaniya Chettiar and Respondent-Plaintiff Perumal Chettiar are the sons of Ramasamy Chettiar. The said Ramasamy Chettiar died intestate in 1956 leaving vast extent of properties in Chinnasalem, Kallakurichi and other surrounding villages. Subbulakshmi Ammal, mother of Appellant-Defendant and Respondent-Plaintiff died in 1998. During 1993, brothers are said to have divided the properties and the factum of partition was reduced to writing by Ex.B1-unregistered partition deed dated 26.5.1993.

3. Case of Respondent-Plaintiff is that during 1993, he was in a depressed state of mind due to breakdown of his son Nagesh's marriage with Meera which eventually ended in a divorce. Taking advantage of the mental condition of Respondent-Plaintiff, Appellant-Defendant manoeuvred to divide the properties by bringing about Ex.B1-unregistered partition deed and obtained Respondent-Plaintiff's signature in Ex.B1. There was no division of properties as stated in Ex.B1-unregistered partition deed and the said partition deed is hit under Section 17 of Indian Registration Act. Stating that Appellant-Defendant has brought about Ex.B1-unregistered partition deed to gain unjust enrichment under which a valuable landed properties in Chinnasalem was given to the Appellant-Defendant, Respondent-Plaintiff has filed the suit for partition and separate possession of his half share in the suit properties.

4. Resisting the suit, Appellant-Defendant filed written statement contending that under Ex.B1-partition deed [26.05.1993] already a comprehensive and concluded partition between the parties was effected and that both Appellant-Defendant as well as Respondent-Plaintiff are in separate possession and enjoyment of their respective shares. Ex.B1-partition deed was executed with full knowledge of its contents and entered into between the brothers by mutual consent and therefore, Respondent-Plaintiff cannot resile from Ex.B1-partition deed and cannot seek to reopen the partition which had been validly concluded between the parties. Since Respondent-Plaintiff started encumbering the properties, after issuing notice, Appellant-Defendant had filed the suit O.S.No.1004 of 1998 on the file of Principal District Munsif Court, Kallakurichi for Permanent Injunction. During the pendency of the partition suit (O.S.No.6 of 2002), the said suit O.S.No.1004 of 1998 was withdrawn by the Appellant-Defendant.

5. On the above pleadings, seven Issues were framed by the trial Court. Respondent-Plaintiff (Perumal Chettiar) examined himself as PW1. Exs.A1 to A3 were marked. On the side of Appellant-Defendant, Appellant-Venkatasubramania Chettiar was examined as DW1. Witness to Ex.B1-unregistered partition deed viz., Venkatavarathan was examined as DW2. Ex.B1 was marked.

6. Upon consideration of oral and documentary evidence, trial Court held that under Section 17 of Indian Registration Act, partition deed is compulsorily registrable and Ex.B1-unregistered document cannot be received in evidence. Trial Court held that there is no positive proof produced to prove the valid partition between the brothers. Insofar as house properties in Chinnasalem which was not included in the suit properties, trial Court held that house properties had fallen to Respondent-Plaintiff's share in the past in 1968 where the family divided the commercial properties. On those findings, trial Court passed preliminary decree for partition of Respondent-Plaintiff's share in the suit properties.

7. Pending appeal, sole Appellant -Venkatasubramania Chettiar died and his legal representatives (two sons) were brought on record as Appellants 2 an

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2012 Supreme(Mad) 1264

High Court of Judicature at Madras R. BANUMATHI & S. VIMALA Venkatasubramaniya Chettiar (died) & Others Versus Perumal Chettiar & Others Appeal Suit No.1012 of 2004 & C.M.P.No.159 of 2012 Decided on: 09-03-2012

Ratio Unregistered partition deed can be looked into for collateral purpose of division in status, subsequent separate enjoyment of the parties and also for considering the nature and character of possession.

High Court of Judicature at Madras
R. BANUMATHI & S. VIMALA
Venkatasubramaniya Chettiar (died) & Others
Versus
Perumal Chettiar & Others
Appeal Suit No.1012 of 2004 & C.M.P.No.159 of 2012
Decided on: 09-03-2012

Ratio
Unregistered partition deed can be looked into for collateral purpose of division in status, subsequent separate enjoyment of the parties and also for considering the nature and character of possession.