1. Suit for partition of mother's property claiming will bequest — Decreed by trial court but reversed in appeal. (Para 2 )
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2024 Supreme(Online)(Mad) 51346
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Hon`ble Mr.Justice S.SOUNTHAR
AVUDAYAMMAL @ KASTHURI – Appellant
Versus
S.SUBRAMANIAN PILLAI(DIED) – Respondent
S.A.NO.1581 OF 2002
Advocates:
For the Appellants/Petitioners: F.X. Eugene
For the Respondents: S. Palanivelayutham, P. Madhan Alexandar, M. Jothi Basu
For the Appellants/Petitioners: F.X. Eugene
For the Respondents: S. Palanivelayutham, P. Madhan Alexandar, M. Jothi Basu
Unregistered partition deeds cannot prove partition under the Registration Act. Mortgage deeds denied by the executant must be proved by examining attestors under the Evidence Act. Possession by one co-owner is legally considered possession on behalf of all co-owners.
Headnote:(A) Registration Act, 1908 - Sections 17 and 49 - Indian Stamp Act, 1899 - Section 35 - Unregistered partition deed - Admissibility - A document that constitutes a regular partition deed and is not a family arrangement recording past transactions requires mandatory registration and proper stamping; such an unregistered and insufficiently stamped document cannot be admitted in evidence to prove the main purpose of the document, namely partition, even for assessing the nature of possession in a suit for partition. (Para 9)
(B) Indian Evidence Act, 1872 - Section 68 - Proof of mortgage deed - A mortgage deed requiring compulsory attestation must be proved by calling upon at least one of the attestors when the execution of the document is denied; failure to examine an attestor renders the document not proved in accordance with law and unreliable for concluding a division of status among parties. (Para 10)
(C) Possession of co-owners - The possession of a co-owner is not for himself alone but is also on behalf of other co-owners; consequently, a statement regarding the cultivation of certain properties by one co-owner is insufficient to conclude that a partition by metes and bounds took place in the absence of admissible evidence. (Para 12)
Facts of the case:
In a suit for partition of a one-third share in properties, the plaintiff claimed that the defendants compelled him to sign an unregistered partition deed. The defendants resisted the suit, asserting that a prior partition had occurred based on a partition deed dated 23.11.1984 and a mortgage deed. While the Trial Court decreed the suit in favor of the plaintiff, the First Appellate Court reversed the decision, relying on the unregistered partition deed and mortgage deed produced as additional evidence to conclude that a partition had already taken place.
Findings of Court:
The First Appellate Court erroneously relied on an unregistered and insufficiently stamped partition deed, overlooking the bar under Sections 17 and 49 of the Registration Act. Furthermore, the mortgage deed was not proved as required under Section 68 of the Indian Evidence Act since no attestors were examined despite the plaintiff's denial of execution. The court found that mere cultivation of property by a co-owner does not establish a partition.
Issues: Whether an unregistered partition deed and an unproved mortgage deed are admissible and sufficient to prove that a partition of properties by metes and bounds had occurred.
Ratio Decidendi: A regular partition deed must be registered to be admissible as evidence of partition. A mortgage deed denied by the executant cannot be relied upon unless proved through attestors. Possession by a co-owner is deemed possession on behalf of all co-owners, and thus cannot independently prove a partition.
Result: Second Appeal allowed; judgment and decree of the First Appellate Court set aside; judgment and decree of the Trial Court restored.
Legal Category Hierarchy
- property law
- evidence law
- practice and procedure
Table of Contents
2. Plaintiff claimed will and no valid partition; defendants asserted a prior oral partition recorded in an unregistered deed of 1984. (Para 3 , 4 )
3. Unregistered partition deed not admissible to prove fact of partition in a suit for partition. (Para 9 )
4. An unregistered partition deed cannot be admitted to prove the fact of partition under Section 17 read with Section 49 of the Registration Act. (Para 9 )
5. Second appeal allowed; judgment and decree of the trial court restored. (Para 14 )
6. Is an unregistered partition deed admissible in evidence to prove the fact of partition in a suit for partition?
No, such a deed is inadmissible to prove the main purpose of the document (the partition) under Section 17 read with Section 49 of the Registration Act. (Para 9 )
7. Can a mortgage deed be relied upon to prove a fact when its execution is denied and no attesting witness is examined?
No, under Section 68 of the Evidence Act, an attesting witness must be called to prove the mortgage deed where the executant denies execution. (Para 10 )
8. What is the legal effect of a co-owner's possession of a property?
The possession of a co-owner is not for himself alone; it is also on behalf of the other co-owners. (Para 12 )
(Respondents 3 to 12 are brought on record as legal representatives of the deceased first respondent as per order of this Court made in C.M.P(MD)Nos.12,14 and 19 of 2020 in S.A.No. 1581 of 2002, dated 31.1.2023)
(Respondents 13 to 21 are brought on record as legal representatives of the deceased second respondent as per order of this Court made in C.M.P(MD)Nos.16,18 and 20 of 2020 in S.A.No. 1581 of 2002, dated 31.1.2023)
(Respondents 22 and 23 are impleaded as per order of this Court made in C.M.P(MD)No.e6813 of 2023in S.A.No.1581 of 2002, dated 4.1.2024)
PRAYER: Second Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree made in A.S.No.8 of 2000, dated 25.09.2001, on the file of I Additional District Judge cum Chief Judicial Magistrate, Tirunelveli, reversing the judgment and decree made in O.S.No.169 of 1996, dated 16..8.1999, on the file of Additional Sub-Court,Tenkasi.
For Appellants :Mr.F.X.Eugene
For Respondents 1,2 and 21 :Died
For Respondents 3,4,6 to 8, 10,11, 13 to 17, 19 and 20 :Mr.S.Palanivelayutham
For Respondent-22 :Mr.P.Madhan Alexandar
For Respondent-23 :Mr.M.Jothi Basu
For Respondents 5,9,12 and 18 : No appearance
JUDGMENT
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The legal representatives of the original plaintiff in a suit for partition are the appellants. The suit filed by Piramanayagam, predecessor of the appellants, was decreed by the trial Court.The first appeal filed by the respondents/defendants was allowed. Aggrieved by the same, heirs of the original plaintiff are before this Court.
2.According to the Plaintiff, the suit properties originally belong to the mother of the parties Essakkiammal and she executed a Will, dated 9.7.1976 bequeathing the suit properties to her three sons namely, the plaintiff Piramanayagam, defendants Subramania Pillai and Lakshmana Pillai. The mother of the parties died on 27.09.1978.Thereafter, the suit properties have been in possession and enjoyment of the parties. It was claimed by the plaintiff that the defendants obtained signature of the plaintiff in a partition deed, dated 23.11.1984, by compulsion and after receiving the copy of the same, the plaintiff expressed his unwillingness to act in accordance with the said document. Therefore the said document was not registered in the manner known to law. Thus claiming joint possession of the suit properties, the plaintiff sought for partition of his one third share in the suit properties.
3.The brothers of the plaintiff, who were arrayed as defendants filed a written statement and resisted the suit on the ground that there was already a partition in the family regarding the suit properties on 23.11.1984. It was claimed by the defendants as per the partition, the plaintiff was allotted with Item Nos. 6 to 10 in the partition arrangement. It was also claimed that the second defendant was allotted with item Nos.1 and 2 and undivided share of 1.23 shares in Item No.5. It was also averred by the defendants that the first defendant was allotted with Item Nos. 3,4 and 1.23 undivided share in item No.5. Therefore, it is the specific case of the defendants that there was a partition on 23.11.1984 and the parties have been enjoying the properties allotted to them separately. On these grounds, the defendants sought for dismissal of the suit.
4.Before the trial Court, the plaintiff was examined as PW1 and one document was marked as Ex.A1. On behalf of the defendants, the defendants 1 and 2 were examined as D.W.1 and D.W.2 and ten documents were marked as ExB1 to Ex.B10.
5.The trial Court, on appreciation of evidence available on record, came to the conclusion that the defendants failed to prove the plea of partition and hence, the plaintiff was entitled to a decree for partition. Aggrieved by the same, the defendants preferred an appeal in A.S.No.8 of 2000, on the file of I Additional District Court-cum Chief Judicial Magistrate, Tirunelveli.Before the First Appellate Court, the defendants filed an application for reception of addit
