IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.08.2010 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE G.M.AKBAR ALI A.S. (B) No.107 of 2001 R.Venugopal ... Appellant/Plaintiff vs. 1.Tmt.Anusuya 2.R.P.Thania 3.T.Kanakammal 4.Murugan ... Respondents/Defendants (RR2 to 4 exparte in trial court) Prayer: Appeal filed under Section 96 of Civil Procedure code against the Judgment made in O.S.No.338 of 1996 dated 24.1.2000 on the file of Additional Sub Judge, Erode. For Appellant : Mr.V.Bharathidasan For Respondent : Mr.S.V.Jayaraman,Sr.Counsel for Mr.S.Raghu for R.1 RR2 to 4 : Exparte JUDGMENT R.BANUMATHI,J Being aggrieved with the dismissal of suit for partition in O.S.No.338 of 1996 on the file of Additional Sub-Court, Erode, the unsuccessful Plaintiff has come forward with this Appeal. 2. Plaintiff, one R.Vaithiyalingam and Perumal are the sons of Rangasami Naicker. The 1st Defendant is the wife of Perumal, who is the elder brother of Plaintiff . The 2nd Defendant is the daughter of 1st Defendant and Defendants 3 and 4 are purchasers of items 7 and 10 respectively from Defendants 1 and 2. https://hcservices.ecourts.gov.in/hcservices/ 3. The Plaint averments in brief are as follows:- The husband of 1st Defendant and Plaintiff are members of coparceners of Hindu Undivided joint family. Originally, the family was in a poor condition and the Plaintiff worked as a lorry driver and gave full support to his brother for education and maintenance and his brother Perumal owed his possession to the Plaintiff. From out of the funds received from elder brother of the Plaintiff, Mr.R.Vaithiyalingam and a sum of Rs.10,000/- contributed by the Plaintiff, the Plaintiff and his elder brother - Perumal started a joint family business under the name and style of "Yenpe International Tours & Travels" and late Perumal was managing the business as joint family manager. Out of joint venture, the plaint schedule properties were acquired in the name of 1st Defendant and her husband for the benefit of joint family consisting of the Plaintiff and his brother. Case of Plaintiff is that the plaint schedule properties belonged to joint family in which the Plaintiff is a coparcener. There was no division among the Plaintiff and his brother – Perumal. Plaintiff 's brother - Perumal died intestate on 21.11.1994. According to Plaintiff , but for Perumal's sudden and untimely death, he would have given his legitimate share to the Plaintiff and in fact said Perumal gave Varthamana letter dated 15.3.1988 (Ex.A.7) agreeing to give half share due to the Plaintiff when ever he wants it. The Plaintiff has averred that the 1st Defendant is picking up quarrel with the Plaintiff and adopting all sorts of activities to deprive the Plaintiff of his due share. After the death of Plaintiff, defendants 1 and 2 sold items 7 and 10 to defendants 3 and 4 in utter disregard to the share of the Plaintiff. The Plaintiff demanded partition of his half share by issuing legal notice – Ex.A.19 (2.5.1995). Stating that he is entitled to half share in the suit property, the Plaintiff has filed the suit for partition of half share in the suit property. 4. Denying the plaint averments, 1st Defendant filed written statement contending that the Plaintiff was already separated from the family. According to the defendants, Yenpe International Tours & Travels business was started by Perumal as his own business and that the Plaintiff has got no manner of right in the same. The 1st Defendant was working as a staff nurse in Nazar Nursing Home, Gandhiji Road, Erode and she was also having income of her own and Perumal married the 1st Defendant in or about 1975 and 2nd Defendant was born out of the said lawful wedlock. Items 2, 6 and 7 and the car and two wheeler in item No.9 were purchased by the 1st Defendant's husband out of his own earnings in his own name and other items of suit properties were purchased by the 1st Defendant in her own name out of her own funds. Defendants 1 and 2 have sold item No.7 in favour of 3rd Defendant and 1st Defendant has sold item No.10 in favour of the 4th Defendant and the Plaintiff has no locus standi to question the said alienations. The Plaintiff is neither a coparcener https://hcservices.ecourts.gov.in/hcservices/ nor having any share in the suit properties purchased by Perumal and the 1st Defendant from out of their own income. 5. On the above pleadings, the trial Court framed 4 issues. To substantiate the Plaintiff's case, Plaintiff examined himself as P.W.1. The attestors to Ex.A.7 – Rajamanickam and Mohanasundaram were examined as P.Ws.2 and 3 and one Chandran was examined as P.W.4. Exs.A.1 to A.26 were marked. On behalf of the Defendants, the 1st Defendant examined himself as D.W.1 and Exs.B.1 to B.13 were marked. 6. Upon consideration of oral and documentary evidence, referring to Ex.A.1, the trial Court held that the family no more remained joint and the brothers were already separated and joint family was no longer in existence. Referring to Ex.A.17, the trial Court further held that the Plaintiff's status in Yenpe International Tours & Travels was only a driver and the Plaintiff was not a co- sharer in the business. Referring to Ex.A.13- paper advertisement regarding death of mother Angammal and other evidence, the trial Court held that only Perumal has been managing Yenpe International Tours & Travels and that Plaintiff has not adduced evidence to show that he is the member of the said joint family that he is the sharer in the said joint family business. In so far as Ex.A.7 - Varthamana letter, the trial Court held that Ex.A.7, being unregistered and unstamped document, is not admissible in evidence and no weight could be attached to Ex.A.7 and on those findings the trial Court dismissed the Plaintiff's suit for partition. 7. Drawing our attention to Ex.A.7, learned counsel for Appellant submitted that the contents in Ex.A.7 would clearly show that the Plaintiff was extremely helpful to the Defendant for his education and business and based on Ex.A.7, trial Court ought to have held that the suit properties were acquired from out of the joint family business income or joint family properties. It was further submitted that evidence of P.W.1 coupled with Ex.A.1 would clearly show that money paid by elder brother - R.Vaithiyalingam and also obtained from other businesses was taken as capital and from out of joint exertion of both Perumal and the Plaintiff suit properties were purchased both in the name of Perumal and the 1st Defendant and while so the trial Court erred in brushing aside Ex.A.7 - Varthamana letter and prayed for reversal of the judgment of the trial Court. 8. Taking us through the recitals in Ex.A.1 and other documents, learned Senior Counsel Mr.S.V.Jayaraman appearing on behalf of the 1st Respondent submitted that the evidence on record would clearly show that there was already severance in status and joint family was no longer in existence. So far as Ex.A.7, placing reliance upon A.C.LAKSHMIPATHY VS. A.M.CHAKRAPANI REDDIAR, 2001(1) CTC 112, learned Senior Counsel submitted that Ex.A.7, being an unstamped document, cannot be looked into for any purpose including collateral purpose and upon analysis of evidence, trial Court rightly dismissed the https://hcservices.ecourts.gov.in/hcservices/ Plaintiff's suit for partition and the judgment of the trial Court warrants no interference. 9. Upon consideration of the rival contentions, evidence and materials on record and the judgment of the trial Court, following points arise for determination in this appeal: "1. Whether the suit properties are purchased from out of the joint family properties as alleged by the Plaintiff? 2. Whether Ex.A.7 has been proved in accordance with law, whether Ex.A.7 is admissible and based upon Ex.A.7, whether Plaintiff is entitled to claim partition in the suit properties?" 10. Points 1 and 2: Plaintiff's case is that out of the funds received from their elder brother - R.Vaithiyalingam and a sum of Rs.10,000/- contributed by the Plaintiff, joint family business - Yenpe International Tours & Travels was started and Perumal was managing the business as joint family manager and the Plaintiff has been helping his brother both physically and monetarily in the family business and from out of the joint exertion and joint venture, the plaint schedule properties were acquired in the name of 1st Defendant and Perumal for the benefit of joint family members viz., Plaintiff and Perumal. There is no dispute that elder brother – R.Vaithiyalingam was already separated from the family and Perumal and Plaintiff and their mother – Angammal have executed a release deed – Ex.A.1 in favour of R.Vaithiyalingam, which we would refer to shortly. Of course, there is no legal bar for the remaining members of the joint family to carry on the business of the joint family. Equally, there is no bar for some of the members of the joint family to trade business as the joint family business. When the Plaintiff has averred that the Yenpe International Tours & Travels business is a joint family business, it is for the Plaintiff to prove the same by satisfactory evidence. 11. As pointed out earlier, Ex.A.1 is a release deed dated 22.3.1978 executed by Perumal, Plaintiff and their mother Angammal in favour of their elder brother R.Vaithiyalingam and they received amount of Rs.6,000/- from R.Vaithiyalingam. We may usefully refer to the recitals in Ex.A.1, which reads a under: @ /// v';fspy; 3.4yf;fkpl;lth;fSf;F jkadhh;/ ek; FLk;gj;jpw;F ghj;jpag;gl;l bghJ brhj;Jf;fs; ahbjhd;Wk; fpilahJ jh';fs; Rkhh; 30 tUl fhykhf jdpahf bjhHpy; bra;Jf; bfhz;Lk; jdpahf FoapUe;Jf; bfhz;Lk; ,Uf;fpwPh;fs;/ eh';fSk; jdpj;jdpahf bjhHpy; tpahghu';fs; bra;Jf;bfhz;Lk; jdpj;jdpahf FoapUe;J bfhz;Lk; tUfpnwhk;/ mg;go xUtUf;bfhUth; jdpj;jdpahf bra;JtUk; bjhHpy; tpahghuKk; mtuth; rk;ghjpj;jpUf;Fk; brhj;Jf;fSk; mtuth; jdpj;jdpnagl;oUf;Fk; fld;fSk; mtuth;fisna nrh;e;jJ/ ///// rhl;rpfs; Kd;dpiyahYk; nkw;go kj;jpa!;jh;fs; Kd;dpiyahYk; eh';fs; U:/6000?00 U:gha; MW Mapuk; v';fs; FLk;g cgnahfkhd rpyt[fSf;fhft[k; rpy;yiuf; fld;fis jPh;f;ft[k; (tpahghuj;jpw;fhft[k;) https://hcservices.ecourts.gov.in/hcservices/ v';fspy; 1.2yf;fkpl;lth;fSila $Ptd rpyt[fSf;fhft[k; j';fsplk; buhf;fkha; bgw;Wf;bfhz;nlhk;/@ Two aspects are made clear in the above recitals in Ex.A.1. "i) Brothers had no joint family property; (ii) elder brother was living separately for 30 years and Plaintiff and Perumal were also living separate and doing separate business and all three brothers have acquired separate properties and separately incurred debts. 12. The above aspects make it clear that there was severance in status between the brothers and joint family was no longer in existence. It is fairly well settled that when a member of a Hindu family alleges that the business carried on is the joint family business, and that the properties were acquired jointly during the subsistence of the joint status, the burden lies upon him to prove that they continued to be joint and running joint family business. When it is contended by the 1st Defendant that joint family was no longer in existence and that there was severance in status heavy burden lies upon the Plaintiff to prove that the business was a joint family business and that he was sharing the income from the joint family business. Even though Plaintiff has stated that from out of the funds received from their elder brother and out of his contribution, they started the joint family business, absolutely there is no document to show that business - Yenpe International Tours & Travels was the joint family business of the Plaintiff and Perumal. Even though Plaintiff has stated that he has contributed the amount of Rs.10,000/-, there is no evidence to prove the same. Of course, in Ex.A.7, it is stated that the plaintiff gave Rs.10,000/- for business. In his evidence, P.W.1 himself admitted that he has been living separate and doing separate business, which is as follows: @ /// vd; FLk;gk; jdpj;jdpahf ntW ntW ,lj;jpy; bjhHpy; bra;J te;jJ/@ 13. Ex.A.9 is the visiting card of R.Perumal, wherein he is shown to be the administrator of Yenpe International Tours & Travels. Ex.A.17 is the certificate issued by Yenpe International Tours & Travels certifying that the Plaintiff-Venugopal has been working in that Company as a full time paid employee/driver. Ex.A.17 makes it clear that the status of Plaintiff in Yenpe International Tours and Travels was only that of a driver. 14. Mother – Angammal died on 25.2.1991. Ex.A.13 is a paper advertisement regarding the death of mother – Angammal. In Ex.A.13, Yenpe International Tours & Travels is shown as business of R.Perumal, whereas as against Plaintiff - Venugopal, it is stated as Lorry Transport, Erode. 15. In his evidence, Plaintiff has stated that out of the joint venture and joint exertion, the plaint schedule properties were https://hcservices.ecourts.gov.in/hcservices/ acquired in trust in the name of 1st Defendant and her husband for the benefit of joint family. But the Plaintiff could not say as to when they purchased the properties and from whom they purchased the properties. As pointed out earlier, items 2, 6 and 7 and car and two wheeler in item No.9 were purchased in the name of Perumal and other items were purchased in the name of 1st Defendant. Defendants 1 and 2 have sold item No.7 in favour of 3rd Defendant and 1st Defendant has sold item No.10 in favour of 4th Defendant. The 1st Defendant has been working as staff nurse and she was having her independent income. Perumal studied upto B.A., and he started his independent business and was also running Yenpe International Tours & Travels, which was recognised under Ministry of Labour, Yenpe International Tours & Travels, Overseas Employment consultants, which was recognised under Ministry of Labour, Government of India. He was also the Executive Director of Veena Benefit Funds Limited. In her evidence, D.W.1 has stated that items 2, 6 and 7 and car and two wheeler in item No.9 were purchased in the name of Perumal and other items were purchased in the name of 1st Defendant. As seen from Ex.B.2, car was purchased by taking loan. Veena Benefit Funds Limited had sent the notice – Ex.B.4 (5.12.1998) to 1st Defendant calling upon her to pay the loan amount. Towards purchase of house, Housing Board has also sent a notice. 16. Under Ex.A.6 (14.3.1988), Plaintiff has sold his share of 684 Sq.ft, in Survey No.72/1 of Ayodhyapattinam, Salem District in favour of 1st Defendant for a sum of Rs.6,850/-. The fact that Plaintiff has sold 684 sq.ft. in favour of 1st Defendant would clearly show that there was already severance in status between the brothers. Had they been joint as alleged by the Plaintiff, there would not have been any necessity for execution of Ex.A.6 sale deed. Mention of Ex.A.6 sale deed in Ex.A.7 – Varthamana letter has no relevance for the reasons stated infra. 17. To claim his half share in the suit properties, Plaintiff mainly relies upon Ex.A.7 (15.3.1988) – Varthamana letter, contents of which read as under: @eP vdJ jk;gp. ehk; ,UtUk; ghrj;Jld; xw;Wikahf tpj;jpahrnkJkpy;yhky; thH;e;J tUfpnwhk;/ eP gof;fhky; cd; ciHg;ghy; vd;id gof;fitj;jha;/ ekJ FLk;gj;jpw;F kpft[k; ghLgl;Ls;sha;/ ePa[k; ehDk; xU gps;isahf FLk;gj;ij nrh;e;jth;fs;/ ehk; ekJ mz;zhhplkpUe;J tpLjiyg;gj;jpuk; vGjpf;bfhLj;J th';fpa Jif U:/6000-?k; (U:gha; Mwhapuk; kl;Lk;) kw;Wk; ck;kplkpUe;J U:/10.000-?Kk; (U:gha; gj;jhapuKk; kl;Lk;) bgw;W vd; bgahpy; ouhty;!; fk;gdp Muk;gpj;J epiwa rk;ghjpj;Js;nsd;/ cdf;F uhrpapy;yhjjhy; yhhpia tpw;Wtpl;nlhk;/ yhhp th';Ftjw;fhf mk;kh vGjpitj;j tPl;ila[k; vd; kidtp nghpy; bgah; khw;wk; bra;J itj;Js;nshk;/ nkw;go tpahghuj;jpy; ePa[k; ehDk; epiwa rk;ghjpj;J vd; bgahpYk; vd; rk;rhuk; mDRah nghpYk; <l;oa[s;s mira[k; kw;Wk; mirahr; brhj;Jf;fspYk; ckf;F rhpgFjp https://hcservices.ecourts.gov.in/hcservices/ ghj;jpaKz;L vd;gij ,jd;K:yk; cWjp bra;J bfhLf;fpnwd;/ ePh; ntz;Lk;nghJ ghfk; gphpj;J bfhLg;ngd; vd;W cWjp TWfpnwd;/ vd; kidtp bgaUf;F tPl;il khw;wp itj;jijg;gw;wp ftiyg;gl ntz;lhk;/@ Agreeing to give half share in the properties, Perumal is said to have executed Ex.A.7 Varthamana letter in a sheet of paper. To prove the execution of Ex.A.7, Plaintiff had examined P.W.2 – his neighbour – Rajamanickam and P.W.3 – Mohanasundaram - driver. P.Ws.2 and 3 have stated that the contents in Ex.A.7 were already typed and kept and they have signed as witnesses in Ex.A.7. P.Ws.2 and 3 have stated that Perumal had agreed to allot half share to the Plaintiff in the suit properties. 18. As pointed out earlier, Perumal was an educated person and he was running Yenpe International Tours & Travels (Overseas Employment Consultant), recognised by the Government of India. As seen from Ex.A.9, he was also Executive Director of Veena Benefit Funds Limited and he was also a member of Lions Club of Erode Mid Town and was also a Director of the Erode Junior Chamber of Charitable Trust. When Perumal was educated person, and was also widely involved in various activities it is quite unbelievable that while agreeing to allot half share to his brother he would have simply executed a Varthamana letter in a sheet of paper like Ex.A.7. Ex.A.7 is shrouded with suspicious circumstances. If at all Perumal intended to so allot half share to his brother, he would have certainly executed a regular document and while doing so, he would have called his family members or elders to be the witnesses. Whereas P.W.2 is a neighbour of the Plaintiff and P.Ws.3 and 4 are drivers by profession. It is pertinent to note that the Plaintiff himself is a driver by profession. Exs.B.11 to B.13 are the income-tax returns submitted by late Perumal, which contain his signature. When we have compared signatures of Perumal in Exs.B.11 to B.13 with that of his disputed signature in Ex.A.7, we have noted that the signature in Ex.A.7 does not tally with the signature of Perumal in Exs.B.11 to B.13. Reasonable doubts arise that Ex.A.7 might have been brought into existence after the death of Perumal. Our finding is fortified by the circumstance that during the life time of Perumal, Plaintiff has not chosen to claim partition, even though Ex.A.7 is stated to have been executed in 1988. Only after death of Perumal, Plaintiff has come out with a plea of joint family business and partition. 19. Plaintiff claims share based upon Ex.A.7. Ex.A.7 is unstamped and unregistered document. Learned Senior Counsel appearing for the Defendants contended that Ex.A.7, being unstamped document, cannot be looked into for any purpose including collateral purpose. In support of his contention, learned Senior Counsel placed reliance upon A.C.LAKSHMIPATHY VS. A.M.CHAKRAPANI REDDIAR, 2001(1) CTC 112. Referring to the various decisions and elaborately considering the issue of admissibility of unstamped and unregistered https://hcservices.ecourts.gov.in/hcservices/ documents, the Division Bench of this Court has summed up the legal position as under: "42. To sum up the legal position (I)A family arrangement can be made orally. (II)If made orally, there being no document, no question of registration arises. (III)If the family arrangement is reduced to writing and it purports to create, declare, assign, limit or extinguish any right, title or interest of any immovable property, it must be properly stamped and duly registered as per the Indian Stamp act and Indian Registration Act. (IV)Whether the terms have been reduced to the form of a document is a question of fact in each case to be determined upon a consideration of the nature of phraseology of the writing and the circumstances in which and the purpose with which it was written. (V)However, a document in the nature of a Memorandum, evidencing a family arrangement already entered into and had been prepared as a record of what had been agreed upon, in order that there are no hazy notions in future, it need not be stamped or registered. (VI)Only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess. (VII)If the family arrangement is stamped but not registered, it can be looked into for collateral purposes. (VIII)Whether the purpose is a collateral purpose, is a question of fact depends upon facts and circumstances of each case. A person cannot claim a right or title to a property under the said document, which is being looked into only for collateral purposes. (IX)A family arrangement which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar in Section-35 of the Indian Stamp Act." In our considered view, Ex.A.7 – document in question, being unstamped and unregistered document, cannot be looked into for any purpose. We fully endorse the views of the trial Court that contents of Ex.A.7 cannot be looked into for any purpose. 20. Upon analysis of evidence, we find that there was severance in status between the brothers long ago and joint family was no longer in existence and the Plaintiff has not proved his case that Yenpe International Tours & Travels was the joint family business https://hcservices.ecourts.gov.in/hcservices/ and the Plaintiff has not substantiated his case that the suit properties were purchased from out of the income of the joint family business and joint exertion. Upon analysis of evidence, trial Court rightly held that the business is not proved to be the joint family business and the Plaintiff is not entitled to any share and we do not find any reason warranting interference. This Appeal is devoid of merits and is bound to fail. 21. In the result, the Appeal is dismissed and the Judgment and decree dated 24.1.2000 made in O.S.No.338 of 1996 on the file of Additional Sub Judge, Erode is confirmed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar usk To The Addl.Subordinate Judge Erode 1 cc To Mr.S.Raghu, Advocate, SR.63620 1 cc To Mr.V.Bharathidasan, Advocate, SR.63308 Judgment in A.S.No.107 of 2001 SJ (CO) RH (17.9.10) https://hcservices.ecourts.gov.in/hcservices/