IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 23.10.2008 CORAM: THE HONOURABLE MR. JUSTICE K.KANNAN A.S.No.1087 of 1993 & C.M.P.No.1602 of 2008 Manoharan ... Appellant/Plaintiff Vs. 1. Rangabashyam 2. Ramamurthy 3. Soundararajan 4. Thirupurasundari 5. Govindarajulu Naidu ... Respondents/Defendants 1 to 5 Appeal filed under against the judgment and decree dated 25.2.1993 passed in O.S.No.56 of 1990 on the file of the Sub ordinate Judge, Mayiladuthurai. This suit has been filed by the Plaintiff/as an indigent person in the Sub-Court and subsequently taken on file of the Subordinate Judge, Mayiladuthurai in O.S.No.56/1990. For appellant :: Mr.S.Sadhashram For Respondents:: Mr.K.V.Sridharan(R1 to R3) No appearance (R4) (R5) died JUDGMENT I. Disposition before lower court:- The plaintiff, who filed a suit for partition of 1/6th share, was non-suited on the ground that he had not established that the first defendant was his father and further that the properties were available for partition. II. Contentions of the plaintiff:- 2. The plaintiff's contention was that the first defendant had married a person by name Vedavalli and out of the said marriage, the https://hcservices.ecourts.gov.in/hcservices/ plaintiff was born on 4.1.1958. The first defendant had not taken care of his wife and even at the time when the plaintiff was in the womb, his mother left the matrimonial home and he was born only subsequent to the separation of the plaintiff's mother from the first defendant. 3. The basis of the claim for partition is that the first defendant and his two brothers, namely defendants 2 and 3, who are the sons of the Lakshmaiya Naidu constituted the members of the joint family and after their father's death, the property is being enjoyed by the three sons and out of undivided 1/3 share of the first defendant, the plaintiff is entitled to, as a member of the co- parcenary an equal share, namely 1/6 share and seeks for a decree. III. Contentions of the 1st defendant:- 4. The contest by the first defendant was on the ground that he had declined his right of the property by means of unregistered release through an instrument styled as family arrangement on 10.7.1955 under Ex.B.8 and therefore he has not possessed any right in the property in which he claimed his share. His further contention is that the plaintiff's mother Vedavalli left the matrimonial house and was living with her sister's husband by name Mamoondi and the plaintiff had been born only to the said person. He was consequently not entitled to seek a claim in the said properties as a son of the first defendant. IV. The reasoning of the trial court:- 5. The trial Court found that the release deed Ex.B.8 was true and the first defendant had not been possessed of any right in the property. As regards the issue whether the plaintiff is the legitimate son of the first defendant, the Court found that there was no necessity to enter into the said finding, having regard to the fact that there was no partible properties in which the plaintiff could claim a share. V. The validity of alleged release, the critical issue:- 6. The crucial issue that has to be seen immediately is whether there are properties available for partition. Having regard to the contention that the first defendant had relinquished his share in the property on 10.7.1955, the learned counsel for the appellant pointed out that Ex.B.8, which was found to be true, was an unregistered and unstamped document and purporting to be an instrument relinquishing the right in the immovable property, whose value was more than Rs.100/-, which was required to be registered under the provisions of Section 17 of the Registration Act the document was not valid. It is further contended that the family arrangement contains recital of release and it is required to be written on stamped papers, as such, https://hcservices.ecourts.gov.in/hcservices/ under the Indian Stamp Act. 7. The admissibility of Ex.B.8 has not been opposed at the time when the document was tendered for evidence. The recitals in Ex.B.8 read as follows: ",e;j FLk;g Vw;ghl;od;go jfg;gdhh; fhykhd gpwF vy;yh gphpglhj FLk;g brhj;Jf;fspy; ek;kpy; K:j;jtuhd bu';fghc&;aj;jpw;F vt;tpjkhd chpika[k; ghj;jpaija[k; fpilahJ vd;Wk; ,Ue;jJ ,y;iy vd;Wk;////@ 8. The above recital clearly evidences a transaction of relinquishment in respect of immovable properties. It is noticed that the stamp duty has been collected on the instrument treating it as a receipt. Even otherwise if a document has been received without any objection as to the sufficiency of stamps, Section 36 of the Stamp Act prohibits any objection from being taken at any subsequent stage. The inadmissibility or otherwise of the transaction under the bar of Section 35 need not, in my view, deter from considering the admissibility of the document under the Registration Act. 9. Under section 17 read with Section 49 of the Registration Act, the document is seen to be a release and Section 17 Clause (1) Sub Clause (c) requires the instrument to be registered and the consequence of non-registration is to bar a person from receiving the document as evidence of any transaction relating to immovable property, except the three exceptions carved out under section 49 of the Registration Act. 10. Section 49 of the Registration Act reads as follows: "49. Effect of non-registration of documents required to be registered:- No document required by section 17 (or by any provision of the Transfer of Property Act, 1882 (IV of 1882), to be registered shall a) affect any immovable property comprised therein, or b) confer any power to adopt, or c) be received as evidence of any transaction affecting such property or conferring such power. Unless it has been registered. Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (IV of 1882) to be registered may be received as evidence of a contract in a suit for specific https://hcservices.ecourts.gov.in/hcservices/ performance under Chapter II of the Specific Relief Act, 1877 (I of 1877), or as evidence of part-performance of a contract for the purposes of section 53-A of the Transfer of Property Act, 1882 (IV of 1882), or as evidence of any collateral transaction not required to be effected by registered instrument." 11. None of these circumstances brought within the proviso is attracted to the facts of the case. On the other hand, it is the very term of the document, which is being relied on by the defendant to non-suit the plaintiff. The trial Court was clearly in error in refusing the relief only on the ground that the release was true and therefore the partibility of the properties does not arise. The Court has been swayed also by the fact that Ex.B.9 to B.11 contain the entries in annual list of establishment of Revenue Department in Thanjavur District where the property is situate that the first defendant has been shown to be a person without any properties. If the existence of the properties is also not denied, I do not approve of a finding that in the revenue entry, there are no properties in the name of the first defendant and that it shall conclude the issue about the availability of the property. 12. A further reference has also been made to Ex.B.12 where the first defendant has sent a letter of communication to the Secretary, Board of Revenue saying that the properties standing in his name have been already released by him in favour of his brother and therefore the communication must be taken as a proof that he was not possessed of any properties. 13. A similar communication from the first defendant to the Collector is also relied on to show that in the return of assets submitted by the first defendant to the Government, he has stated that "though the patta stands in my name as the head of the family, I have no share, enjoyment, right, possession or any interest in the property. They are under enjoyment and possession of two brothers, according to family agreement and I do not derive any income from the properties." This entry also cannot take away his right in the properties and the mere statement that his brothers are in enjoyment of the properties cannot operate to relinquish his right over the properties, which ultimately belonged to the family. The reliance of these documents by the trial Court to come to the conclusion that the first defendant was not possessed of any properties, in my view, is clearly untenable and liable to be set aside. VI. Legitimacy of plaintiff as son of 1st defendant:- 14. If the properties are available, the only remaining question that has to be seen is whether the plaintiff has proved the fact whether he is the legitimate son of Vedavalli born through the first defendant. The fact Vedavalli was married to the first defendant was https://hcservices.ecourts.gov.in/hcservices/ itself not in dispute. The only contention is that Vedavalli had left the matrimonial house and the child had been born on 4.1.1958 through the illicit conduct of the said Vedavalli through a person other than the first defendant. It is an admitted case that they had no form of dissolution of marriage between the first defendant and Vedavalli. 15. The plaintiff has filed Ex.A.7, which is the birth extract and it shows the name of the first defendant as the father. Ex.A.8 is the SSLC book and Ex.A.9 and A.10 are the school certificates showing the plaintiff's father's name, as the first defendant. Ex.A.11 and A.12 are the voters list showing the plaintiff's name and the name of the first defendant as his father. 16. The learned counsel for the respondents contended that the birth certificate cannot prove the legitimacy of the plaintiff, since the informant name is entered in Ex.A.7 as Mamoondi. The SSLC book also does not contain, according to the learned counsel for the respondents, the signature of the first defendant as father. 17. It is an admitted case that at the time when the plaintiff was born, the plaintiff's mother had come away from her husband and the legitimacy of the plaintiff is one of conclusive legal presumption, which is available under section 112 of the Indian Evidence Act. The section follows the maxim 'pater est quem nuptial demonstrant (father is he whom the nuptials indicate). The said provision under Section 112 is available as a piece of public policy not to bastardise a child, if it is born during the continuance of a wedlock between the mother of the person and any man. If the first defendant does not plead a case of divorce and if it is seen as an admitted fact that the plaintiff was born to his mother, when she was still the wife of the first defendant, the burden of proof shall be on the first defendant to establish that there had been no sexual access for him to his wife and therefore the child could not have been his child. The first defendant has given no such evidence and the trial Court itself has erroneously not adverted to the issue. Under normal circumstances, I would have remitted the matter to the lower court for recording a finding regarding the legitimacy of the plaintiff as son of the first defendant. But, having regard to the fact that the Suit is of the year 1990 and the case has been pending for over 18 years, I find that there are also materials, on the basis of which, a definite finding could be undertaken. The parties went to trial to adduce evidence on all issues and it is not as if the first defendant has been put to any handicap to adduce sufficient evidence to refute the conclusive presumption available under section 113 of the Indian Evidence Act. Indeed O 41 R 24 CPC enjoins the final determination of suit, where evidence on record is sufficient. 18. I have examined the issue of legitimacy with reference to the birth certificate and other relevant records exhibited through A.7 to https://hcservices.ecourts.gov.in/hcservices/ Ex.A.13 and the fact that the first defendant has not given any positive evidence of impossibility of access to his wife to rebut the statutory presumption. I therefore find that the plaintiff is the legitimate son of the first defendant and he is entitled to a share in the property as such. 19. Having regard to my finding that Ex.B.8 is not valid and the properties were all admittedly joint family properties, the plaintiff is entitled to 1/6 share being ½ share of 1/3 share, which the first defendant was entitled in all the joint family properties. 20. The learned counsel for the appellant also brings to my attention that the respondents 2 and 3 have indiscriminately sold several items of properties, but conscious as they are, of the entitlement of the plaintiff to 1/6th share, i.e.all the sales have been made only with reference to 5/6 share. I do not think any inference could be drawn only by such recital. But it only shows that there has been no specific exclusion of the plaintiff's share by virtue of the sales which are taking place. The plaintiff is therefore entitled to a decree for 1/6 share. VII. Conclusion :- 21. In the result, the judgment of the Sub Court, Mayiladuthurai in O.S.No.56 of 1990 is set aside and the appeal is allowed as prayed for. Having regard to the fact that the parties are closely related as son and father, there shall be no order as to costs. Consequently, the Miscellaneous Petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ajr To 1.The Subordinate Judge, Mayiladuthurai. 2.The Assistant Collector, Mayiladuthurai. Copy to :The Section Officer, V.R. Section, High Court, Chennai-104 . 1 CC To Mr.S.Sadhashram, Advocate, SR NO.59187 A.S.No.1087 of 1993 vm(co) pmk/11.2.2009. https://hcservices.ecourts.gov.in/hcservices/