Registered settlement deed proved under Evidence Act Section 68 proviso absent specific denial of execution; certified copy admissible if original lost; partition suit barred without cancelling deed.

JUDGMENT :

P. VADAMALAI, J.

1.This Appeal is directed against the judgment and decree, dated 08.10.2021 passed in O.S.No.37 of 2017 on the file of the learned II Additional District and Sessions Judge, Thanjavur.

2. The appellants are the defendants 5 to 7 in O.S.No.37 of 2017 on the file of the II Additional District and Sessions Court, Thanjavur. The first respondent is the plaintiff and the respondents 2 to 8 are the defendants 1 to 4 and 8 to 10 in that suit. The 1st respondent/plaintiff filed the suit for partition seeking 1/7 share in the suit property.

3. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

4. The brief facts are as below:

(a) The case of the plaintiff (1 respondent herein ) :-

The plaintiff and the defendants 1 to 4 are sons and daughters of Kulandhaisamy and Philominal Mary. They have five sons, namely Rajkumar, Edison, Thetharnathan, Jesukumar and Nirmal Raj and two daughters, Shanthi and Anandhi. Out of five sons, 1^st son Rajkumar, died on 19.07.2016, leaving his wife, son and daughter (defendants 5 to 7 herein) and the third son Thetharnathan died on 15.07.2015 leaving his wife and minor son and minor daughter (defendants 8 to 10 herein). The plaintiff’s father Kulandhaisamy, was doing vegetable business and his sons were helping their father in the business. From out of the income derived from the business, the suit property was purchased in the name of Kulandhaisamy through registered sale deed, dated 13.05.1984 for the benefit of the joint family. They constructed RCC building which consists of three shops and there are also 9 tiled houses in a row. The plaintiff and other sons contributed their income for the construction of houses. Except the defendants 5 to 7, the plaintiff and other defendants are residing in the houses. Their father Kulandhaisamy, died intestate on 28.09.2015, leaving the plaintiff and defendants as heirs. The plaintiff and the defendants are Christians and they are governed by the Indian Succession Act. The first son Rajkumar, converted as Hindu and deserted the family in 2001 and he was living with his family. Later, he died on 19.07.2016. The 5^th defendant, the wife of deceased Rajkumar, issued a notice, dated 15.03.2017, claiming absolute right and title over the suit property. The plaintiff told her that her husband was entitled to 1/7 share, but she did not heed the words. Hence, the plaintiff filed the suit for partition claiming his 1/7 share in the suit properties.

(b) The case of the defendants 5 to 7:-

The 5^th defendant’s husband Rajkumar, who is the son Kulandhaisamy, was hard worker at his age of 20 and earned more as he was a graduate. The suit property was purchased out of the income of her husband, hence, the father Kulandaisamy settled the suit property in favour of his son Rajkumar by registered settlement deed, dated 10.09.2012. Therefore, no question of intestacy arises on the death of Kulandhaisamy. The physical possession of property was lawful with the settlee. The plaintiff and other defendants indulged in unlawful activities and caused much inconvenience to these defendants, so the 5^th defendant sent a complaint before the District Collector and higher police officials. The plaintiff and other defendants have no right over the suit property. Hence, the suit may be dismissed.