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2018 Supreme(Mad) 2305
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
P.K. Rangayyan - Appellant
Versus
P.K. Chinnasami & Ors. - Respondents
S.A.No.1558 of 2003 & C.M.P.No.4623 of 2018
Decided On : 27-07-2018
For the Appellant : Mr. N. Manokaran for Mr. R. Prabakaran.
Headnote:
Constitution of India, 1950 - Article 17 - Court Fees Act - Section 25 - Tamil Nadu Court Fees Act - Sections 40, 7 and 25 - Whether lower appellate court is right in holding that Ex -A3 partition deed between parties is sham and nominal overlooking that admittedly Ex -A3 was entered into by parties voluntarily executed got registered and acted upon by paying separate kists transferring pattas and transferring electricity service connections in their respective names whether present suit for partition is maintainable without a prayer for setting aside earlier partition under Ex -A3 entered into by parties - Considering scope of issues involved in matter between parties as regards subject matter lying in a narrow compass it is found unnecessary to dwell into facts of case in detail - suit has been laid by plaintiff for partition and also for relief of declaration - relief of declaration is sought for by plaintiff as regards partition deed marked as Ex -A3 and plaintiff by way of suit seeks relief of declaration that above said partition deed is invalid and unenforceable and not binding upon plaintiff for grounds enumerated in plaint – Held, Substantial questions of law formulated in second appeal are accordingly answered against plaintiff and in favour of first defendant - This petition has been laid for reception of additional evidence by first defendant/appellant documents sought to be projected as additional evidence are copy of plaint in filed on file of subordinate court and certified copy of evidence given by plaintiff in abovesaid suit and contending that in abovesaid suit plaintiff had accepted terms of Ex -A3 partition deed which had been filed in present suit and same having been acted upon accordingly seeking to project same as additional evidence in support of his case first defendant has come forward with application - However when it is found that abovesiad documents have emanated after institution of present suit and particularly when it is found that parties to present litigation are all not parties to suit as such in my considered opinion projected additional evidence cannot be received for determination of issues involved in matter - Further it is also found that when materials available on record are themselves sufficient to hold that Ex -A3 partition deed had been acted upon and given effect to and additional evidence are not required for adjudication of issues involved in matter as such and when additional evidence are post litem documents accordingly petition for reception of additional evidence is not entertained - Accordingly dismissed.
1. Challenge, in this second appeal, is made to the Judgment and Decree dated 28.06.2002 passed in A.S.No.31 of 2002 on the file of the Additional District Judge, Fast Track Court No.IV, Erode, at Bhavani, reversing the Judgment and Decree dated 13.11.2000 passed in O.S.No.165 of 1997 on the file of the Subordinate Court, Bhavani.
2. The second appeal has been admitted on the following substantial questions of law:
“(a). Whether the lower Appellate Court is right in holding that Ex.A3 partition deed between the parties is sham and nominal, overlooking that admittedly Ex.A3 was entered into by the parties voluntarily, executed, got registered and acted upon by paying separate kists, transferring pattas and transferring the electricity service connections in their respective names?
(b). Whether the present suit for partition is maintainable without a prayer for setting aside the earlier partition under Ex.A3 entered into by the parties?”
3. Considering the scope of the issues involved in the matter between the parties as regards the subject matter lying in a narrow compass, it is found unnecessary to dwell into the facts of the case in detail.
4. The suit has been laid by the plaintiff for partition and also for the relief of declaration.
5. The relief of declaration is sought for by the plaintiff as regards the partition deed dated 10.10.1988 marked as Ex.A3 and the plaintiff by way of the suit seeks the relief of declaration that the above said partition deed is invalid and unenforceable and not binding upon the plaintiff for the grounds enumerated in the plaint. In this connection, it is to be noted that the plaintiff, as regards the relief of declaration sought for by him with reference to Ex.A3 partition deed, has valued the said relief at Rs.400/- and accordingly, paid a Court fee of Rs.30.50 under Section 25(d) of the Court Fees Act, XIV of 55.
6. The plaintiff and the defendants 1 & 2 are the brothers and the sons of P.R.Komarasami.
7. Shorn of unnecessary details, it is found that even as per the case of the plaintiff, the above said brothers had already effected division of the joint family properties belonging to them under Ex.A3 partition deed and however, according to the plaintiff, inasmuch as the terms of the above said partition deed had not been acted upon, it is his case that the above said partition deed was only a sham and nominal document and no right accrues to any one the said document and according to the plaintiff, inasmuch as a sum of Rs.10,000/- has not been paid to the mother of the parties viz., Sellammal till her demise and as the first defendant had not withdrawn the suit laid by him in O.S.No.396 of 1988 on the file of the District Munsif Court, Bhavani and on the other hand, he had proceeded to obtain an ex-parte decree in the said suit against the plaintiff and the second defendant on 30.11.1990 and thereafter, as the plaintiff had levied another suit for partition on 15.05.1991 in O.S.No.51 of 1991 on the file of the Vacation Court, Periyar District, inter alia, also by way of ignoring the partition deed dated 10.10.1988 (Ex.A3) and further, according to the plaintiff, inasmuch as the above said suit preferred by him could not be prosecuted on account of certain formal defects and after seeking permission to lay a fresh suit on the same cause of action, it is stated that the plaintiff has been necessitated to lay the present suit for the appropriate reliefs and also contended that the partition purported to be made had not been acted upon pursuant to Ex.A3 partition deed and the parties had not enjoyed the properties as allotted to them under the said partition deed and accordingly, prayed for the reliefs in the present suit.
8. The first defendant, who is the chief contestant of the plaintiff's suit, as the other defendants had remained ex-parte, resisted the plaintiff's suit by contending that the partition deed dated 10.10.1988 marked as Ex.A3 had been acted upon and thereupon, the parties
