JUDGMENT

(The case has been heard through video conference)

The defendants in the suit in O.S.No.239 of 1991 are the appellants herein.

2.Brief facts of the case are as follows:

The deceased/first appellant is the father-in-law of the first respondent/plaintiff. The first respondent/plaintiff/son-in-law has filed a suit in O.S.No.239 of 1991, before the learned District Munsif, Madurantakam, to declare his title over the suit property and also to direct the appellants herein to deliver the possession of the suit property to him. The plaint proceeds on the basis that there was an alleged partition between the father-in-law and the son-in- law and in the partition, the said portion was allotted to him. As, the suit was dismissed by the Trial Court on 28.02.1997, the first respondent/son-in-law has preferred an appeal in A.S.No.25 of 1998, before the learned Sub-Judge, Madurantagam and the same was allowed on 23.12.1998. Hence, the second appeal.

3.The above second appeal is admitted on the following substantial questions of law:

(i)Whether the lower appellate court was right in looking into and relying on Ex.A.3 when, admittedly, the same is not a registered document?

(ii)Whether the lower appellate court was correct in looking beyond the contents of Ex.A.3 and hold that the suit property was purchased jointly when admittedly Ex.B.3 recites that the first defendant was the sole purchaser?

(iii)Was not the lower appellate court is error in contravening the provisions of Section 92 of the evidence Act by allowing the plaintiff to let in evidence for contravening the terms of Ex.B.1? 4.Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent 1 & 2.

5.The main contention of the learned counsel for the appellants is that the Trial Court has committed an error in relying upon Ex.A3/Partition Deed, based on the alleged document had rendered an erroneous finding that there was a partition between the father in law and the son in law. He further contended that in the absence of any recital regarding how the property was purchased by the defendants under Ex.B1/sale deed, the Trial Court has believed the evidence of PW1/Elumalai, which is in contravention of Section 92 of the Evidence Act.

6.Per contra, the learned counsel for the respondents/plaintiff would contend that Ex.A3 is not partition deed, however, it is in the form of Muchilica viz., Memorandum of partition or family arrangement entered between the parties in the past and hence, the same does not require any registration under the Registration Act. He would also contend that the oral evidence of PW2/Thiruvenkadam, support the case of the first respondent/plaintiff and hence, made submission in support of the judgment of the Lower Appellate Court.

7(a).During the course of trial before the Trial Court, on the side of the plaintiff, one Elumalai was examined as PW1 and Thiruvenkadam was examined as PW2 and marked Exs.A1 to A3. Ex.A3 is the partition deed between the plaintiff/son-in-law and the first defendant/father-in-law, dated 29.07.1980. On the side of the defendants first defendant was examined as DW1 and marked Exs.B1 & B2. Ex.B1 is the sale deed executed in favour of the first defendant and Ex.B2 is the settlement deed executed by the first defendant in favour of his sons viz., defendants 2 & 3/appellants 2 &

3 herein.

7(b).Admittedly, Ex.B2/settlement deed is subsequent to the legal notice issued by the plaintiff/first respondent herein under Ex.A1, which was cancelled under Ex.A2. No reply notice has been issued by the defendants.

8.It is a specific plea of the learned counsel for the respondents 1 & 2 that the first respondent/plaintiff had contributed to the sale consideration for the sale of the suit property to an extent of 2/3 share and accordingly the sale deed was executed in favour of the appellants/defendants under Ex.B1.

9.On a perusal of Ex.B1, there is no such recital found in the registered sale deed. After perusing Ex.A