IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 28..08..2008 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA A.S.No.747 of 1990 and C.M.P.No.12999 of 2001 1. Venkatachalam (died) ...Appellant/I Defendant 2. V.Sampathkumar 3. V.Sukumar 4. V.Sekar 5. V.Ravikumar ... Appellants 2 to 5 Appellants 2 to 5 brought on record as L.Rs of the deceased sole appellant vide order of Court dated 10.07.2008 made in C.M.P.No. 1127 of 2008. Vs. 1. Rajammal 2. Kanakammal ... Respondents 1 & 2/Plaintiff 1 & 2 3. Manickam ... 3rd Respondent/2nd Respondent 4. Kathayee alias Ponnu Ammal (died) ... 4th Respondent/3rd Respondent 5. Kanthamani ... 5th Respondent 5th respondent name have been impleaded as proposed respondent in the place of deceased fourth respondent vide as per order of Court dated 31.01.2002 made in C.M.P.No.13000/2001 by VKJ Appeal filed under section 96 of CPC against the judgment and decree of the learned Subordinate Judge, Dharmapuri and passed in O.S.No.27 of 1989 dated 19.07.1989. For appellants :: Mr.T.R.Rajagopalan, Senior Counsel for Mrs.Chitra Sampath For respondents :: Mr.S.V.Jayaraman,Senior Counsel for Mr.P.Thirunavukkarasu https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT This appeal is focussed as against the judgment and decree dated 19.07.1989 passed in O.S.No.27 of 1989 on the file of the learned Subordinate Judge, Dharmapuri in decreeing the suit for partition and separate possession of 1/5 th share each, in favour of the plaintiffs. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. 2. Niggard and bereft of details, the case of the plaintiff as stood exposited from the plaint could be portrayed thus: The properties described in the schedule of the plaint belonged to one Thandaiammal as her exclusive properties. The first and second plaintiffs and the third defendant are the daughters and the defendants 1 and 2 are the sons of Thandaiammal. Consequent upon her death, her aforesaid children became entitled to equal shares in the suit properties. However, defendants 1 and 2 by way of defeating the interest of the daughters of Thandaiammal clandestinely and surreptitiously effected a partition between D1 and D2 themselves on 05.06.1965. The plaintiffs were not aware of such partition immediately. However, three years later, they demanded partition for dividing the property into five shares and for allotment of one share to each of the legal heirs of the deceased Thandaiammal; whereupon, by the intervention of the relatives, there emerged a consensus among the sharers that all the legal heirs should continue to enjoy the suit property as before and share the income arising there from. Subsequently, the plaintiffs felt that it was no more feasible to continue the joint status of sharing of the income and hence, after exchange of pre suit notices, the suit came to be filed for partition. 3. Remonstrating and impugning, the allegations/averments in the plaint, the first defendant filed the written statement, which was adopted by D3, the pith and marrow of it would run thus: The daughters of Thandaiammal,viz., the plaintiffs 1, 2 and D3 got utmost benefit by way of Seervarisai from Thandaiammal. Consequently, understanding that the sons of Thandaiammal are not financially sound, the daughters of Thandaiammal have relinquished orally their right over the suit property, which belonged to Thandaiammal. Thereafter, in the presence of relatives and elders, D1 and D2 got partitioned the suit properties. D3's husband and P1's husband were also present at the time of effecting such partition between D1 and D2 and they also attested the partition deed dated 05.06.1965. The plaintiffs were aware of all these details. Following the said partition, for about 19 years, the respective sharers have been enjoying the suit property and also effected amelioration. While so, D2 developed hostility as against D1 in view of the latter having not granted permission for https://hcservices.ecourts.gov.in/hcservices/ burying the dead body of his son Panneerselvam in the property of D1; whereupon only D1 engineered this vexatious suit by instigating the plaintiffs to file the suit and the suit is barred by limitation. Accordingly, he prayed for the dismissal of the suit. 4. D2 was set ex parte before the trial Court and he had also not filed any written statement. 5. The trial court framed the relevant issues. During trial, the plaintiffs examined themselves as PW1 and PW2 and Exs.A1 to A5 were marked. The first defendant examined himself as DW1 along with D.Ws.2 to 4 and Exs.B1 to B89 were marked. The trial Court ultimately decreed the suit for partition and separate possession, allotting 1/5 th share each in favour of the two plaintiffs and 1/5 th share each in favour of the defendants 1 to 3. Accordingly, the preliminary decree was passed. 6. Animadverting upon the judgment and decree of the trial Court in ordering partition and in awarding the incidental reliefs, the appellant/first defendant has filed this appeal on various grounds, the warp and woof of them could be portrayed thus: (1) The judgment and decree of the trial Court are against law, weight of evidence and all probabilities of the case. (2) The trial Court ignoring the fact that the suit itself was instituted belatedly and consequently barred by limitation simply decreed the suit. (3) The trial Court ignored the fact of the partition deed dated 05.06.1965 having been attested by the respective husbands of the first plaintiff and the third defendant and also the factum of P1, P2 and D3 having had knowledge of the said partition effected under Ex.B1 and the subsequent conduct of D1 and D2 in enjoying the partitioned properties as their own and exclusive properties. (4) In view of D1 having not permitted D2 to bury the latter's son's body in the former's land, instigated the plaintiffs to file the suit and this aspect was not considered by the lower court. (5) The trial Court failed to take note of the fact that the suit was deliberately under valued. https://hcservices.ecourts.gov.in/hcservices/ (6) The trial court ignored the factum of the plaintiffs having filed the earlier suit in O.S.No.171 of 78 undervaluing the suit and as a sequela hence Section 14 of the Limitation Act having been not available for their rescue. (7) The defendant No.1 acquired title by adverse possession relating to the area allotted to him under the partition deed, but that fact was ignored by the trial Court without any valid reason. Accordingly, he prayed for setting aside the judgement and decree of the trial Court and for the dismissal of the original suit. 7. Heard the learned senior counsel appearing on either side. 8. The points for consideration are as to :- (i) Whether D1 and D3 proved that the plaintiffs 1 and 2 relinquished orally their right over the suit properties and also the alleged fact that Ex.B1 the partition deed emerged between D1 and D2 with the consent of the plaintiffs? (ii) Whether D1 acquired prescriptive title over the property alleged to have been allotted to the share of D1? (iii) Whether there is any infirmity in the judgment and decree of the trial Court? C.M.P.No.12999 of 2001: 9. The deceased appellant during his life time, filed the petition under Order 41 Rule 27 of Code of Civil Procedure for reception of the following documents. (i) Proceedings of Tahsildar, Pappireddipatti dated 14.12.2000 (ii) Chitta extract for pattas 917, 386, 366, 162, 759 and 645 (6 documents) (iii) Adangal extracts for fasli 1382 to 1384, 1386 to 1389, 1391 to 1402, 1405 to 1410. The reasons found set out in the affidavit of the deceased petitioner/appellant are to the effect that the documents referred to supra are absolutely necessary to canvass his case, of he being in possession and enjoyment of his share of the suit properties, under https://hcservices.ecourts.gov.in/hcservices/ Ex.B1. However, the said petition was resisted by the respondents/plaintiffs on the main ground that such sort of revenue records cannot be put in evidence during the appellate stage, even though the first defendant had due opportunity of filing those dossiers at the earliest point of time before the trial Court itself. However, no counter has been filed by the plaintiffs. 10. The perusal of the additional documents would demonstrate that they are the proceeding of the Tahsildar ordering issuance of adangal extracts, chitta extracts for the fasli years viz.1382 to 1384, 1386 to 1389, 1391 to 1402, 1405 to 1410 and the Chittas and Adangals themselves also. The Tahsildar also set out in his order that other Adangals and Chitta Extracts relating to earlier periods were not available. Be that as it may, now the Adangal extracts and the chitta extracts for the various years have been filed purely for the purpose of buttressing the plea of the appellant that in pursuance of Ex.B1, the Partition Deed, the defendants 1 and 2 took possession of their respective shares and started enjoying them exclusively. The additional documents sought to be filed bear the signature and seal of the public official. In such a case, I am of the opinion that the same could be permitted to be filed as additional documents and that would not cause any prejudice to the respondents/plaintiffs. 11. It is the contention of the plaintiffs that it is not as though the defendants came into possession of the suit properties only after effecting such partition, but they had been in possession and enjoyment of the suit properties ever since the period of Thandaiammal, as Thandaiammal happened to be a lady, the defendants 1 and 2 being her sons, cultivating the land. In view of such plea taken by the plaintiffs, I am of the considered opinion that these revenue records, which the appellant relied on to prove his possession would in no way prejudice the rights of the respondents/plaintiffs in resisting the appeal canvassing their own grounds. 12. Accordingly, those documents are allowed to be filed and exhibited as Exs.Nos.B-90, B-91 and B-92 respectively in continuation of the exhibits already marked on the defendants' side. Point Nos.1 and 2: 13. These two points are taken together for discussion as they are inter-linked and inter-woven with each other. 14. Indubitably and incontrovertibly, in Ex.B1, the partition deed dated 05.06.1965, which emerged between D1 and D2, the daughters of Thandaiammal, viz., plaintiffs 1, 2 and D3 did not sign whereas the husband of the first plaintiff and the husband of the third defendant signed it as attestors. The edifice of the first defendant's case is that the daughters of Thandaiammal orally relinquished their right over https://hcservices.ecourts.gov.in/hcservices/ the suit properties, in view of the fact that the sons of Thandaiammal, viz., D1 and D2 were not financially sound; but, on the other hand, the daughters of Thandaiammal were given in marriage happily with adequate Seervarisai and they were well placed and they got settled in their respective matrimonial homes; the plaintiffs 1, 2 and D3 being female members had not chosen to figure as parties in the partition deed or as attestors and virtually on their behalf only the first plaintiff's husband and the third defendant's husband signed as attestors and that too after the matter having been well discussed and agreed upon among them. 15. On the contrary, the learned Senior counsel for the appellant/D1, by drawing the attention of this Court to the various portions of the evidence would develop his argument that the theory of oral relinquishment in the presence of panchayatars, is nothing but an after thought dished out by the first defendant purely for the purpose of depriving the plaintiffs of their respective shares as the class-I heirs of their mother Thandaiammal; the written statement is as silent as silence could be relating to the date or dates on which the alleged discussions were held relating to release and partition and the name of the well wishers or relatives, who were allegedly present at the time of relinquishment by P1 and P2 in favour of D1 and D2, their rights in the suit property; for the first time, the names of the Panchayatars were sought to be specified during the trial and that too, none of them were examined before the trial Court; the theory of family arrangement has not even been found set out in the pleadings; the mere depositions of D1 and D2, which are their ipse dixit would not enure to the benefit of D1 to attract the concept of prescriptive title in view of the fact that even during the life time of Thandaiammal D1 and D2, being her sons were cultivating the land and quite similarly even after the death of Thandaiammal they continued to cultivate the land and share the income with defendants 1 and 2. 16. At this juncture, it is worthwhile to extract an excerpt from the deposition of DW1. @ehDk;. 2K; vjph;thjpa[k; vd; jhahUf;F cjtpahf ,Ue;J mDgtpj;J te;njhk;/ vd; jhahh; ,we;j gpwF 1965y; tUlk; vdf;Fk; 2k; vjph;thjpf;Fk; jhth brhj;Jf;fis bghWj;J ghfk; Vw;gl;lJ/@ 17. The learned Senior counsel for the appellant would cite various decisions to canvass the point that relinquishment of one's right in the joint family property could be oral. Hence, it is therefore, just and necessary to consider those decisions in seriatim. (i) AIR 1966 SC 292 (Tek Bahadur Bhujil vs. Debi Singh Bhujil). An excerpt from it would run thus: https://hcservices.ecourts.gov.in/hcservices/ "10. There is nothing in the agreement, Exhibit 3, with respect to the property the mother was to keep with herself. It is however alleged in the plaint and deposed to by respondent No.1 that the agreement was arrived at with the consent of the mother and that she alone was to own and enjoy the house property in Shillong Cantonment bearing No.5 Jalupara Bazaar. The mother was therefore a party to the family arrangement. The fact that her statement was not invalidate the family arrangement which can be arrived at orally. We are therefore of opinion that the Courts below rightly held that there had been a family arrangement between the appellant and respondents Nos.1 and 2 on December 31,1942 and that the agreement Exhibit 3 is a record of that family arrangement." (ii) AIR 1965 Bombay 74 (Ramdas Chimna vs. Pralhad Deorao and others ). An excerpt from it would run thus: "6. the question then arises whether it is open to the mother to relinquish her interest in the joint family properties orally when the joint family properties consist of immoveable properties like the suit fields and the value of her share therein is more than Rs.100/-. Mr.Deshpande drew my attention to the case reported in Dattatraya govind v. Narayan Gangaram, AIR 1936 Nagpur 186. It was held by Vivian Bose J., in that case that "except in the case of partition among the members of a joint Hindu family, where the unities of possession, interest, title and time are complete and except in the case of entrance to a religious order involving complete renunciation of the world, no person can divest himself of interests which have once vested in him by a mere disclaimer. A title once vested can be divested only by a recognized conveyance or one of the other means allowed by law. It cannot pass by admission, relinquishment, or disclaimer when the law requires a deed". This case does not lay down that relinquishment cannot be made orally. All that it says is that the title once vested can be divested only by a recongized conveyance or by one of the other means allowed by law. It further says that the title once vested cannot pass by relinquishment when the law requires a deed. What has to be seen is whether the law requires that relinquishment can only be made by a deed or by an instrument. Transfer of Property Act clearly recognizes oral transfers. Section 9 of the Act provides that "a transfer of property may be made without writing in every case in which a writing is not expressly required by law". It follows, therefore, that an oral transfer of property is rule unless there is law which expressly requries that it should be made in writing. Transfer of https://hcservices.ecourts.gov.in/hcservices/ Property Act contains various transfers where writing is necessary. Under S.54, a sale of tangible immovable property of the value of Rs.100/- or upwards, or of a reversion or other intangible thing is required to be nade only by a registered instrument. Under Sec.59, a writing is necessary in the case of a simple mortgage or in the case of all other mortgages except a mortgage by deposit of title-deeds where the principal sum secured is Rs.100/- or upwards. Under Sec.107, a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, is required to be made in writing. Under Sec.123, a gift of immovable property can only be made by a writing. Under Sec.130, all transfers of actionable claims have to be made by writing and, under Sec.118, all exchanges are subject to the same rules as are applicable to sales. Thus, when the law requires that there should be an instrument in writing and that instrument must be registered, the transfer can only be effected in that manner. But where no writing is required by the Transfer of Property Act or any other law, the transfer may be made orally. Mr.Deshpande is unable to point out any statute which requires that the relinquishment by the mother of her interest in the joint family property, when the property consists of immoveable property and the value of the share therein exceeds Rs.100/-, can only be made in writing or by an instrument registered." 18. Learned counsel for the appellant also cited the following decisions: (i) AIR 1967 SC 1395 (Kuppuswami Chettiar vs. A.S.P.A.Arumugam Chettiar and another) (ii) AIR 1965 AP 177 (FB) (Kattagadda China Anjaneyulu and another vs. Kattragadda China Ramayya and others) (iii) 1969 (II) The Madras Law Journal Reports 509 (The Weavers Mills Ltd. Rajapalayam through Managing Agents Jayam and Co.Ltd., rep.by the present Managing Director Aru Chinna Gurusami Moopanar vs. Balkis Ammal and others) 19. The learned Senior counsel for the respondents/plaintiffs would submit that absolutely there is no quarrel over the proposition as found exemplified in the cited precedents. However, he would hasten to add that in this case, there is no miniscule or exiguous of reliable evidence to countenance that such oral relinquishment took place. Mere averring in the plaint or utterances by the interested parties would constitute only their ipse dixit and it would not amount to proof. https://hcservices.ecourts.gov.in/hcservices/ 20. It is therefore, just and necessary to analyse the evidence to find out as to whether the oral relinquishment has been proved. At this context, the learned Senior counsel for the appellant would advance his argument by attempting to drive home the point that in matters of this nature, the conduct of the parties would speak volumes and in this case, the oral release as well as subsequent partition, which emerged between D1 and D2 in the form of Ex.B1, to which the plaintiffs agreed to and allowed partition to be acted upon in letter and spirit are all found demonstrated adequately by the evidence and adduced on the defendant's side. 21. An excerpt from the precedent of the Hon'ble Apex Court reported in AIR 1955 SC 481 (Sahu Madho Das and others vs. Mukand Ram and another), is extracted thus: "28. A family arrangement can, as a matter of law, be implied from a long course of dealings between the parties. 35. The conduct of the various members of the family is relevant to show that their actings, viewed as a whole, suggest the existence of the family arrangement. At a great distance of time gaps in evidence that would otherwise be available have to be filled in from inferences that would normally have little but corroborative value. But inferences from the conduct of the family is all that can reasonably be expected in proof of an arrangement said to have been made in 1875. The statements that the deceased members of the family made as witnesses in prior litigation are therefore as relevant as recitals made by them in deeds and statements made by them in pleadings. They do not in themselves prove the fact in issue, namely, the family arrangement, because, in the absence of Section 32(3), they are not admissible for that purpose, but as their conduct is relevant these statements are admissible as evidence of that conduct. 54. It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her https://hcservices.ecourts.gov.in/hcservices/ so far as the property falling to his or her share is concerned and therefore no conveyance is necessary But, the principle can be carried further and so strongly do the courts lean in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all, that we have no hesitation in taking the next step (fraud apart) and upholding an arrangement under which one set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges that the sole and absolute title to all the properties resides in only one of their number (provided he or she had claimed the whole and made such an assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration is present. 59. Estoppel is rule of evidence which prevents a party from alleging and proving the truth. Here the plaintiff reversioner ( the son of one of the daughters of the widow) is not shut out from asserting anything, assuming that the widow had only a life estate. When the plaintiffs asserts that he did not assent to the family arrangement, the principle applicable is therefore not estoppel. It is a rule underlying many branches of the law which precludes a person who, with full knowledge of his rights, has once elected to assent to a transaction voidable at his instance and has thus elected not to exercise his right to avoid it, from going back on that and avoiding it at a later stage. Having made his election he is bound by it." 22. Pointedly, drawing the attention of this Court to the aforesaid excerpts in the precedent cited supra, the learned Senior counsel for the appellant would canvass his point that if at all the plaintiffs had real interest in claiming their respective shares, then they would not have allowed the defendants 1 and 2 to enjoy their respective shares as per the partition deed for such a long period till the filing of the suit and that there is nothing to indicate that the income derived from it was shared by D1 with his sisters. By way of buttressing his argument, he would refer to the revenue records, viz., Ex.B2, Chitta extract, Ex.B3, the patta pass book, Ex.B4 the patta, Ex.B5 the Adangal Extract, Ex.B90 – the Proceedings of Tahsildar, Pappireddipatti dated 14.12.2000, Ex.B91 - Chitta extract for pattas 917, 386, 366, 162, 759 and 645 (6 documents) and Ex.B92 – the Adangal extracts for fasli 1382 to 1384, 1386 to 1389, 1391 to 1402, 1405 to 1410, which are standing in the name of D1 and develop his argument that the partition as