IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 30.10.2007 CORAM: THE HON'BLE MR. JUSTICE K.MOHAN RAM A.S.No.943 of 1993 1.Poongavanam Ammal 2.Chinnapillai Ammal 3.Bagyammal 4.Kandan .. Appellants -Vs- 1.Karuppayi Ammal 2.Karuppayi Ammal 3.Desi Ammal 4.Valliammal 5.Chandra .. Respondents Appeal against the judgment and decree dated 15.06.1993 made in O.S.No.34 of 1987 on the file of the Sub-Court, Vriddhachalam. For Appellants : Mr.V.Raghavachari For Respondent 1 : Mr.V.Ayyadurai For Respondents 2 to 5: No appearance - - - J U D G M E N T The unsuccessful defendants 1 to 4 in O.S.No.34 of 1987 on the file of the Sub-Court, Vriddhachalam are the appellants in the above appeal. 2. For the sake of convenience the parties are referred to as per their ranking in the suit. 3. The case of the plaintiff is as follows: The plaint 'C' schedule properties belonged to one Muthukaruppa Servai; Muthukaruppa Servai's only son was Subburaya Servai and Subburaya Servai's only son was Ayyakannu Servai; Ayyakannu Servai's wife was Angammal; Ayyakannu Servai and Angammal had two sons namely Murugan and Duraisamy and two daughters namely the defendants 1 and 2; the plaintiff is the wife of Duraisamy; the third defendant is the daughter of the first defendant; Muthukaruppa Servai, Subburaya Servai and Ayyakannu Servai died intestate prior to 1937; Murugan died unmarried and intestate in the year 1954; Duraisamy husband of https://hcservices.ecourts.gov.in/hcservices/ the plaintiff also died intestate in the year 1952; Since the plaint 'C' schedule properties are the ancestral properties of Ayyakannu Servai, after his death the same devolved upon his sons Murugan and Duraisamy and both of them were entitled to ½ share each; On the death of Duraisamy his wife as sole heir succeeded to his ½ share as per Hindu Law; since Murugan died intestate and issueless in 1954 his mother Angammal succeeded to his ½ share as per Hindu Law; thus the plaintiff and Angammal became entitled to ½ share in the plaint 'C' schedule properties. 4. It is the further case of the plaintiff that on the death of Duraisamy, the plaintiff and Angammal were in joint possession and enjoyment of the 'C' schedule properties; in 1959 due to difference of opinion both of them as per the advice of the panchayatdars divided the properties and as per the decision of the panchayatdars 'A' schedule properties were allotted to the plaintiff and 'B' schedule properties were allotted to Angammal; from then on both of them were enjoying the said properties by paying kist separately; the plaintiff was paying kist for the properties allotted to her and she continued to be in possession; after the said arrangement in 1959 the plaintiff and Angammal are entitled to their respective shares. Angammal has no independent right over the 'C' schedule properties and even if she claims any such right it is untenable; Angammal died in 1982; after her death her daughter namely the defendants 1 & 2 are entitled to her ½ share; thus the plaintiff is entitled to ½ share and defendants 1 & 2 together are entitled to ½ share in the 'C' schedule properties. While so, in July 1985, since the defendants 1 & 2 attempted to alienate Item No.3 of the 'A' schedule property which was allotted to the plaintiff, the plaintiff caused a legal notice dated 05.07.1985 to the defendants 1 to 3. On receipt of the legal notice, the defendants 1 to 3 sent a reply notice dated 23.07.1985 contending the averments as false. In the said reply notice the defendants 1 to 3 contended that items 4,5 & 6 of 'A' schedule properties and items 4 to 7 of 'B' schedule properties belonged absolutely to Periyasamy Servai husband of the 1st defendant. The rest of the properties are the separate properties of Angammal. Neither Ayyakannu Servai nor Muthukaruppa Servai had any right in the properties. Angammal executed a settlement deed on 02.05.1960 in favour of the defendants 1,4 and the 2nd defendant. Angammal and defendants 1 & 2 have jointly executed a settlement deed dated 18.08.1979 in favour of the third defendant. The settlement deeds mentioned in the reply notice have not come into force and were not acted upon and the settlees under the settlement deeds were not in possession of the properties. Since the suit properties are ancestral properties of Ayyakannu Servai and as the plaintiff is entitled to ½ share in it and Angammal has no right to execute the settlement deed in respect of the plaintiff share and as such the settlement deeds in so far as the share of the plaintiff is concerned are void and not binding on the plaintiff. https://hcservices.ecourts.gov.in/hcservices/ 5. Pursuant to the oral partition in 1959, the plaintiff and Angammal were enjoying the 'A' and 'B' schedule properties respectively, while so, Angammal alienated the 3rd item of 'B' schedule property in favour of the defendants 5 to 7. Since Angammal was dealing with the properties allotted under oral partition, the plaintiff did not object the same. To get a binding adjudication, the alienees have also been impleaded as parties. Since the plaintiff and defendants 1 & 2 are co-sharers they are in joint possession of the suit properties in consonance with the oral partition in 1959. The plaintiff has sought for a declaration of title in respect of 'A' schedule properties. Since the defendants 1 to 4 have trespassed into 'A' schedule properties after filing of the suit, recovery of possession was also prayed for and mesne profit was also claimed. Since the 8th defendant has purchased the 1st item of the 'A' schedule properties on 13.02.1987 she has also been impleaded as a party. 6. It is further pleaded in the plaint that in case if the Court comes to a conclusion that oral partition made in 1959 is not proved, the plaintiff is praying for an alternative relief of partition and separate possession of her ½ share in the 'C' schedule properties and for mesne profit. 7. The defendants 1 to 4 contested the suit, the written statement filed by the 4th defendant has been adopted by the defendants 1 to 3. They contested the suit inter alia contending as follows: The allegations in paragraphs 3 to 10 are false; Muthukaruppa Servai has no property at all; Ayyakannu Servai was mentally retarded; the date of death of parties as given in the plaint are denied; the plaint 'C' schedule properties did not belong to Ayyakannu Servai; the oral partition of 1959 claimed by the plaintiff is not true; plaintiff was never been in possession of any properties; the properties described as item Nos. 4 to 6 in 'A' schedule and item Nos.4 to 7 in 'B' schedule properties belonged to Periyasami Servai father of the defendants 1 & 2 as the same was acquired by him under assignment from the Government. Items 1,2,3,7 and 8 of 'A' schedule and items 1,2,3,8 and 9 in 'B' schedule properties belonged absolutely to Angammal wife of Ayyakannu Servai, as such the plaintiff cannot claim any right in the properties; as absolute owners Periyasami Servai and Angammal were in possession and enjoyment of the properties on their own right. The settlement deed executed by Angammal have been properly accepted by the settlees and they have come into force and the settlees continue to be in open and peaceful possession of the properties; the defendants 1,2 and 4 in their own right are in possession and enjoyment for over the statutory period and their title has been perfected by adverse possession. The gift deed dated 18.08.1979 executed by Angammal in respect of items 1 and a portion of item 3 in favour of the 3rd defendant is legally valid; the 3rd defendant also perfected the title by adverse possession. https://hcservices.ecourts.gov.in/hcservices/ 8. The suit is in the nature of champerty, the plaintiff has purportedly executed in favour of her counsel in respect of item 1 of 'A' schedule property knowing fully well that she had no right over the property and as an agreement for the conduct of the suit on behalf of the plaintiff. Hence the suit is liable to be dismissed in limine; the suit properties have not been properly valued; the plaintiff is not in joint possession of the properties, therefore valuation adopted under Section 37(2) is untenable; inspite of the assertion of title, the plaintiff has not chosen to mention how Muthukaruppa Servai was entitled to the suit properties; the claim of the plaintiff is vexatious and on the above said pleadings the defendants 1 to 4 sought for the dismissal of the suit. 9. The 6th defendant filed a separate written statement inter alia contending as follows: The allegations in paragraphs 3 to 10 are false; even assuming the oral partition pleaded by the plaintiff to be true, since on the death of Angammal, the defendants 1 and 2 are entitled to the 'B' schedule property; the registered sale deed dated 26.04.1971 executed by them in favour of the defendants 6 & 7 in respect of an extent of 2.64 acres out of 3.95 acres in R.S.No.216/1 is valid; ever since the date of purchase, defendants 6 & 7 are in possession and enjoyment of the same; apart from possession and title, defendants 6 & 7 prescribed title by adverse possession also. 10. In the additional written statement filed by the 4th defendant it is contended as follows: The relationship mentioned in para 4 of the plaint is not correct; the year of death of the predecessors-in-title as shown in the plaint is not correct; the allegation that the defendants 1 to 4 trespassed into 'A' schedule property after filing of the suit is not correct; the plaintiff never enjoyed 'A' schedule properties and in particular she was not in possession of the properties from 1959 as claimed by her; the suit is barred by limitation; the plaintiff has executed the sale deed dated 19.11.1985 in favour of the 8th defendant in respect of item 1 of 'A' schedule property on the same date when the suit was filed; thereafter intentionally has got the plaint returned and re- presented the same only after a delay of two years and with an intention to cause hardship and loss to the defendants. 11. The plaintiff filed a reply statement contending as follows: The allegation contained in the written statement of the defendants are false; having admitted the relationship of the parties in the reply notice sent by them, the defendants have denied the relationship in their written statement; after the summons in the suit was served, the 4th defendant using his manpower harvested the crops raised by the plaintiff in her properties and from then on the defendants 1 to 4 are in possession of the 'A' schedule properties and therefore they are liable for mesne profit till they deliver possession of the properties; since the 4th defendant is an https://hcservices.ecourts.gov.in/hcservices/ influential person, by using his influence he has obtained patta under U.D.R. Scheme in respect of the 'A' schedule properties; he has prevented the Village Administrative Officer from collecting kist from the plaintiff; the plaintiff paid kist in respect of her share of land till 1985; though the defendants 1 to 4 have stated in their written statement that the suit properties belonged to Angammal, they have not stated as to how they are entitled to the same; since the defendants 1 to 4 have claimed properties belonging to Angammal they are not entitled to claim title by adverse possession; in respect of item 1 of 'A' schedule property the plaintiff has executed a sale deed in favour of the 8th defendant after receiving the sale consideration of Rs.6,600/-; the defendants 1 to 4 are not entitled to question the said sale; the suit was filed on 19.11.1985 but the sale deed was executed only on 14.02.1987 and as such the allegations of the defendants to the contrary are not correct. 12. The 8th defendant has contested the suit by filing a separate written statement inter alia contending as follows: The 8th defendant has purchased an extent of 0.33 cents in Survey No.84/5 which is shown as item No.1 in 'A' schedule under a sale deed dated 13.02.1987 for valid consideration of Rs.6,600/-. Since the plaintiff was in possession and enjoyment of the property, the 8th defendant has purchased the property from her; but as per the recitals in the sale deed, the 8th defendant could not take possession since the defendants 1 to 4 prevented her from taking possession and the defendants 1 to 4 are in possession of the property and therefore they are liable to pay mesne profit to her; the property purchased by the 8th defendant should be allotted to the share of the plaintiff. 13. On the above said pleadings the following issues have been farmed by the trial court:- (i)Whether the plaintiff is entitled for declaration as prayed for? (ii)To what relief the plaintiff is entitled to? The following additional issues have also been framed: (a) Whether the defendants 1 to 3 are liable to pay mesne profit? (b) Whether the 8th defendant is entitled to get any relief on equity? 14. During trial, on the side of the plaintiff her brother Periyasamy Servai was examined as P.W.1 and Exs.A-1 to A-15 have been marked. On the side of the defendants, the fourth defendant was examined as D.W.1 and three other witnesses have been examined as D.Ws.2 to 4 and Exs.B-1 to B-46 have been marked. The trial court on a consideration of the oral and documentary evidence adduced in the case, held that items 2 to 8 of the plaint 'C' schedule properties https://hcservices.ecourts.gov.in/hcservices/ belonged to Periyasamy Servai as the same had been assigned to him by the Government and as such the plaintiff is not entitled to seek partition in respect of the suit properties. The trial court further held that the plaintiff is entitled to seek partition of her ½ share in respect of items 1, 9 to 13 and 14 in the plaint 'C' schedule properties and granted a preliminary decree, but rejected the relief of mesne profit claimed by the plaintiff as well as the 8th defendant. The trial court further held that since the 8th defendant is not a bonafide purchaser, he is not entitled to get any equitable remedy. Being aggrieved by the judgment and decree of the trial court, the defendants 1 to 4 have filed the above appeal. 15. In the memorandum of grounds of appeal, the judgment and decree of the trial court is challenged as under:- The judgment and decree of the trial court is contrary to law, erroneous and opposed to the probabilities of the case; The court below erred in decreeing the suit for partition on the basis of Ex.A1 which is termed as a holding register when the contents of the document have neither been proved by any other independent evidence or by production of title deeds; Ex.A1 does not have any statutory value as it is not a register which is to be maintained under the Indian Registration Act; the court below should not have based reliance on Ex.A1 and should have dismissed the suit for partition holding that the properties are the properties of Angammal; the litigation is in the nature of champerty should have been dismissed as the wife of the plaintiff's counsel had purchased the items of suit properties and is financing the litigation; even in Ex.A1 reference was made to Angammal in respect of certain properties and as such those properties should have been excluded. 16. Heard Mr.V.Raghavachari, learned counsel appearing for the appellants and Mr.V.Ayyadurai, learned counsel appearing for the 1st respondent. 17. The main contention of Mr.V.Raghavachari, learned counsel appearing for the appellants is that Ex.A1 does not have any statutory value in as much as it is not a register which is to be maintained under Section 51 of the Indian Registration Act and unless it is a document which is liable to be maintained by a statutory authority in the course of discharge of his statutory functions, the lower court ought not to have placed reliance on the same. 18. The learned counsel appearing for the appellants further contended that since the plaintiff had executed the sale deed in favour of the wife of his counsel in respect of item 1 of the 'A' schedule property, the litigation is champertons in nature and the suit should have been dismissed in limine. https://hcservices.ecourts.gov.in/hcservices/ 19. The learned counsel appearing for the appellants wanted to make submissions assailing the findings of the trial court negating the claim for adverse possession put forth by the defendants 1 to 4 but as no grounds have been raised in the memorandum of grounds of appeal questioning such finding of the trial court, this Court is of the view that the appellants are not entitled to advance any arguments on such findings. 20. Countering the said submissions, the learned counsel appearing for the 1st respondent submitted that Ex.A1 has been summoned and produced from the office of the Sub-Registrar and the same is maintained under the Indian Registration Act and a perusal of Ex.A1 will shows that it contains entries relating to various transactions and the name of Ayyakannu Servai in patta No.221. The learned counsel further submitted that Ex.A1 has not been questioned by the defendants 1 to 4 while the same was marked as Exhibit in the trial court and as rightly pointed out by the trial court the contents of Ex.A1 has not been disputed while cross examining P.W.1. The learned counsel further submitted that only based on the entries contained in the registers similar to Ex.A1, encumbrance certificates are being issued by the office of the Sub Registrars. The learned counsel further submitted that the trial court has accepted the case of the plaintiff that the suit properties are the ancestral properties of Ayyakannu Servai not only on the basis of Ex.A1 but also on the corroboration provided by Ex.A15 in which Ayyakannu Servai has mentioned a portion of land comprised in S.No.51/8. The learned counsel further drew the attention of this Court to the suggestion put to P.W.1 in the course of his cross examination by the defendants 1 to 4 suggesting that items 1, 2, 3, 7 & 8 of 'A' schedule properties belonged to Periyasamy Servai, father of the 4th defendant by virtue of TKT patta issued in his favour and items 4 to 6 of plaint 'A' schedule properties and items 4 to 7 of 'B' schedule properties also belonged to Periyasamy Servai and as such the plaintiff is not entitled to claim any right over the same. Similarly items 1,2,3,7 & 8 of the plaint 'A' schedule properties and items 1,2,3,8 & 9 of plaint 'B' schedule properties are the separate properties of Ayyakannu Servai and the plaintiff has no right to seek a share. 21. The learned counsel appearing for the respondent further submitted that since the defendants 1 to 4 though have suggested to P.W.1 that items 1,2,3,7 & 8 of 'A' schedule property and items 1,2,3,8 & 9 of 'B' schedule properties are separate properties of Ayyakannu Servai and they are not entitled to claim that the suit properties are the separate properties of Angammal wife of Ayyakannu Servai. It has been further suggested to P.W1 in his cross examination that Angammal was paying kist in her name and in the name of her husband for patta No.221. 22. I have carefully considered the above submissions made by the learned counsel on either side, the materials available on record and perused the judgment of the Court below. https://hcservices.ecourts.gov.in/hcservices/ 23. The contention of the learned counsel for the appellants that Ex.A-1, which is termed as a holding register does not have any statutory value inasmuch as it is not a register which is to be maintained under Section 51 of the Indian Registration Act, in the considered view of this court, is untenable. Documents which are compulsory registrable are enumerated in Section 17 of the Registration Act, 1908 (hereinafter referred to as "the Act"), where a document is employed to effectuate in all the transactions specified in Section 17 of the Act, such document must be registered notwithstanding that the transaction is one which the law does not require to be put into writing. Part XI of the Act deals with the duties and powers of Registering Officers and the Register-books to be kept in the several offices. Section 51 of the Act reads as follows:- "51. Register-books to be kept in the several offices. - (1) The following books shall be kept in the several offices hereinafter named, namely:- A – In all registration offices - Book 1, "Register of non-testamentary documents relating to immovable property"; Book 2, "Record of reasons for refusal to register"; Book 3, "Register of wills and authorities to adopt"; and Book 4, "Miscellaneous Register"; B – In the office of Registrars - Book 5, "Register of deposits of wills". (2) In Book 1 shall be entered or filed all documents or memoranda registered under sections 17, 18 and 89 which relate to immovable property, and are not wills. (3) In Book 4 shall be entered all documents registered under clauses (d) and (f) of section 18 which do not relate to immovable property. (4) Nothing in this section shall be deemed to require more than one set of books where the office of the Registrar has been amalgamated with the office of a Sub-Registrar." A reading of the above provisions shows that all registration offices should maintain Book 1, which is a register of non-testamentary documents relating to immovable property. A reading of Section 51 (2) of the Act shows that details of all documents registered under Section 17 of the Act and which relate to immovable property shall be entered in book 1. Sections 54, 55 (1) and (2) and 57 (1) and (5) of the Act read as follows:- "54. Current indexes and entries therein.- In every office in which any of the books hereinbefore mentioned arekept, there shall be prepared current indexes of the contents of such books; and every entry in such indexes shall be made, so far as practicable, immediately after the registering officer https://hcservices.ecourts.gov.in/hcservices/ has copied, or filed a memorandum of, the document to which it relates. 55. Indexes to be made by registering officers, and their contents.- (1) Four such indexes shall be made in all registration – offices, and shall be named, respectively, Index No.I, Index No.II, Index No.III, and Index No.IV. (2) Index No.I shall contain the names and additions of all persons executing and of all persons claiming under every document entered or memorandum filed in Book No.1. 57. Registering Officers to allow inspection of certain books and indexes and to give certified copies of entries.- (1) Subject to the previous payment of the fees payable in that behalf, the Books Nos.1 and 2 and the Indexes relating to Book No.1 shall be at all times open to inspection by any person applying to inspect the same; and, subject to the provisions of section 62, copies of entries in such books shall be given to all persons applying for such copies. (2) .... (3) .... (4) .... (5) All copies given under this section shall be signed and sealed by the registering officer, and shall be admissible for the purpose of proving the contents of the original documents". A combined reading of the above said provisions of the Act shows that when book 1 is kept in every office indexes of the contents of such book shall be prepared and every entry in such indexes shall be made, so far as practicable, immediately after the registering officer has copied, or filed a memorandum of, the document to which it relates. Index No.I shall contain the names and additions of all persons executing and of all persons claiming under every document entered or memorandum filed