IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:21.12.2010 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.781 of 2007 and M.P.No.2 of 2007, 4 of 2008 and 2 of 2010 1.Ammamuthu Ammal(Died) 2.Rani 3.Puspha 4.Suseela 5.Mala Appellants 2 to 5 are brought on record as Lrs. of the deceased sole appellant vide order of Court dt.10.9.2008 made in M.P.Nos.1 to 3 of 2008 in SA No781 of 2007 ... Appellants/Plaintiffs vs. 1.Devaraj 2.Selvam 3.Ramanprabu 4.Minor Srinivasan Minor by gardian mother Kasthuri Ammal, 5.Panju 6.Yashodai respondents 5 & 6 dispensed with in lower Court and respondents 7 to 10 remained exparte. 7.Murugan 8.Gopi 9.Minor Lakshmanan Minor represented by Guardian mother Lakshmi Ammal 10.Vasugi 11.V.Dayalan https://hcservices.ecourts.gov.in/hcservices/ R11 impleaded as party respondent vide order of Court dated 20.9.10 made in M.P.No.1 of 2010 ... Respondents/Defendants This second appeal is filed against the judgement and decree dated 29.9.2006 passed by the Principal District Judge, Villupuram, A.S.No.6 of 2003 confirming the judment and decree dated 28.2.2002 passed by the I Additional Subordinate Judge, Villupuram in O.S.No.13 of 1999. For Appellants : Mr.N.Suresh For Respondents : Mr.S.Gunaseelan for R1 to R4 for R6 Exparte Mr.Bharatha Chakravarthy for M/s.Saibharath and Ilan for R11 No appearance for R5 (exparte) Mr.R.Chavan for R7 to R9 (NA) exparte JUDGMENT This second appeal is focussed by the legal heirs of the original plaintiff, inveighing the judgement and decree dated 29.9.2006 passed by the Principal District Judge, Villupuram, A.S.No.6 of 2003 in confirming the judment and decree dated 28.2.2002 passed by the I Additional Subordinate Judge, Villupuram in O.S.No.13 of 1999, which was filed for preliminary decree for partition and separate possession of 1/4th share of the plaintiff in the suit mentioned properties. 2. For the sake of convenience, the parties are referred to here under according to their litigative status and ranking before the trial Court. 3. Compendiously and concisely the relevant facts absolutely necessary and germane for the disposal of this appeal would run thus: (a) The brief narration of the relevant facts as found set out in the plaint is to the effect that the deceased plaintiff-Ammamuthu Ammal, being the daughter of Parasurama Mudaliar and Amaravathi Ammal, was entitled to 1/4th share in the suit properties, as the suit properties are the absolute properties of Amaravathy Ammal. D1 and his sons D2 to D4 resisted the suit by filing written statement. (b) Whereupon issues were framed. The original plaintiff on her side examined herself as P.W.1 and Exs.A1 to A4 were marked. The defendants on their side examined the first defendant as D.W.1 along with D.W.2 to D.W.4 and Exs.B1 to B15 were marked. https://hcservices.ecourts.gov.in/hcservices/ (c) Ultimately, the trial Court dismissed the suit by giving a finding that the said Ammamuthu Ammal relinquished her share in the suit properties, as per the unregistered Release Deed-Ex.B13 dated 25.9.1975. (d) Being aggrieved by and dissatisfied with the said judgment and decree of the trial Court, appeal was filed for nothing but to be dismissed by the appellate Court with a finding that the non- registration of the said document Ex.B13 was not fatal because it contained only a family arrangement. 4. Challenging and impugning the judgements and decrees of the Courts below, the second appeal has been filed on various grounds, inter alia thus: Ex facie and prima facie, Ex.B13-the Release Deed contains averments to the effect as though the plaintiff- Ammamuthu Ammal relinquished all her rights in the suit properties, consequent upon a compromise arrived at in a Panchayat. Wherefore the said document should have been registered. However, the Courts below fell into error in holding that the said document was not invalid for want of registration, ignoring Section 17 of the Indian Registration Act, which squarely applies to Ex.B13. 5. While admitting the second appeal, my learned predecessor framed the following substantial questions of law: "1) Whether the Courts below are right in law in dismissing the suit filed by the plaintiff on the basis of Exhibit B.13 an unregistered release deed, which deals with immovable properties worth more than Rs.100/-? 2) Whether in law the Courts below are right in taking into consideration Exhibit B13, to dismiss the suit, when the said document is inadmissible and hit by the provisions of Section 17 of the Indian Registration Act and Section 35 of the Indian Stamp Act? (extracted as such) 6. Heard both sides. 7. Both the Substantial Questions of Law are taken together for discussion, as they are interwoven and interlinked, interconnected and entwined with each other. 8. The learned counsel for the plaintiff would reiterate the grounds of appeal and also cite precedents in support of his contention that Ex.B13 was bad for want of registration. https://hcservices.ecourts.gov.in/hcservices/ 9. In an attempt to torpedo and pulverise the arguements as put forth and set forth on the side of the plaintiff, the learned counsel for the contesting defendants would contend that the appellate Court was right in holding that Ex.B13 contains only the terms of compromise arrived at the Panchayat and as such, it was only a family arrangement, requiring no registration as per Section 17 of the Indian Registration Act. 10. The learned counsel for the impleaded respondent also would support the contentions of the learned counsel for D1 to D4. 11. Before venturing into the rival contentions, I would like to fumigate my mind with the following decisions cited on the side of the plaintiff: (i) 2009 (1) CTC 628 – MANOHARAN V. RANGABASHYAM AND 4 OTHERS (judgment of the High Court of Madras), an excerpt from it would run thus: "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." (ii) 2008(2) CTC 11 – THAILAMMAI AND OTHERS V. KARUPPANAN AND OTHERS (judgment of the High Court of Madras), certain excerpts from it would run thus: "13. Ex.B5 is nomenclatured as divorce sum property release deed dated 24.3.1983, which is an unregistered and unstamped one, but the trial Court simply marked it without any reservation. D.W.3 claiming to be knowing about the family affairs of the first defendant, is one among the signatories of Ex.B5. The trial Court committed error in marking Ex.B5 as Muchalika. It is the duty of the trial Court to see as to whether the document is a properly stamped one or not. Ex facie and prima facie, it is clear that the said Ex.B5 is an invalid, unstamped and unregistered document attracted proper stamp duty and registration in view of it envisaging relinquishment of the first plaintiff's right over the immovable property worth more than Rs.100/-. It is a trite proposition f law that any immovable property worth more than Rs.100/- should be stamped properly and registered; even for relying on collateral purposes, it should be properly a stamped one. As otherwise, stamp duty and penal duty should be collected and then only, it could be marked and relied on for collateral purposes. . . . . " https://hcservices.ecourts.gov.in/hcservices/ (iii) 2008(1) CTC 308 – VINCENT LOURDHENATHAN DOMINIQUE AND ANOTHER VS. JOSEPHINE SYLA DOMINIQUE, (judgment of the High Court of Madras) certain excerpts from it would run thus: "12. In the judgment rendered in A.C.Lakshmipathy v. A.M.Chakrapani Reddiar & others, 2001(1) CTC 112 : 2001(1) LW 257, the Division Bench of this Court, while construing a memorandum recording partial partition in the family which was sought to be marked, after elaborately discussing the entire issues relating to the Indian Registration Act and the Indian Stamp Act and also the concept of estoppel, held that the document in question being unstamped and unregistered cannot be looked into for any purpose. In this regard the Division Bench has summed up the legal position as under:- "41. We hold that the document in question being an unstamped and unregistered, cannot be looked into for any purpose. Similarly, oral evidence cannot be let it about the contents of the said document. 42. To sum up the legdal 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 depending upon facts and circumstances of each case. A person cannot claim a right or title, to a https://hcservices.ecourts.gov.in/hcservices/ 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 Sec.35 of the Indian Stamp Act." 12. A mere perusal of the above precedents would unambiguously and unequivocally, palpably and pellucidly highlight and spotlight the fact that if the recitals in the document do display and demonstrate, express and expatiate that transfer in immovable property was intended to be effected by the deed, then Section 17 of the Indian Registration Act would squarely be attracted. 13. Here it has to be seen as to whether the recitals in Ex.B13 are capable of attracting Section 17 of the Act. It is therefore just and necessary to extract the recitals in the said Ex.B13. tpLjiyg;gj;jpuk; 1974k; Mz;L brg;lk;gh; khjk; 25e; njjp ,Ugj;ije;J njjp/ tpGg;g[uk; jhYf;fh tPuKu; kJ}h; g[Jg;ghisak; fpuhkj;jpypUf;Fk; guRuhkKjypahh; Fkhuh;fs; MWKf Kjypahh; 1 cwahh; jk;gp tpj;thd; Kjypahh; mth;fSf;f ic& fpuhkj;jpypUf;Fk; re;jpunrfu Kjypahh; ghhpahs; mk;kKj;jk;khs; vGjpf;bfhLj;j tpLjiyg;gj;jpuk;/ ehd; ehsJ njjpapy; Ch; g";rhaj;jpy; ngrp Kot[ bra;jjpd; nghpy; vdf;F brhe;jkha[k; jha; tPl;Lr; brhj;jpy; vdf;F chpika[s;s ghfkhft[pk; cs;s brhj;ij ,d;iwajpdnk vdJ cld; gpwe;j rnfhjudhfpa c';fSf;F vd;Dila ghf brhj;J cupikf;fhf j';fsplk; U:gha; 3000-=/ ,e;j U:gha; Kd;W MapuKk; bgw;Wf;bfhz;L ,d;iwa jpdnk ghf ghj;jpaj;ij ,jd; K:yk; tpLjiy bra;J bfhLj;Jtpl;nld;/ nkw;go brhj;jpy; vdf;Fk; vdf;Fg; gpwF vdJ thhpRfSf;Fk; ve;jtpj gpd; Jlu;r;rp ghjpaija[k; ,y;iy/ eP';fs; ,UtUk; ,d;W Kjy; jh$jPtpdp tpf;fpiua';fSf;F nahf;fpakha; rfy Rje;juj;Jld; Mz;L mDgtpj;Jf; bfhs;s ntz;oaJ ,e;j gof;F ehd; rk;kjpj;J vGjpf;bfhLj;j ghfghj;jpaij tpLjiygj;jpuk;/ LT.mk;khKj;jk;khs; 14. A mere poring over and perusal of the aforesaid extract would axiomatically and obviously point out that the plaintiff- Ammamuthu Ammal purportedly and allegedly intended to transfer all her rights in the suit properties, which are immovable properties. No doubt, there is some reference to previous Panchayat, but it is not in the form of recording the minutes of the Panchayat and it does not encompass any family arrangement. 15. I would like to extract hereunder various excerpts of the Honourable Apex Court judgments, as found set out in the Division Bench judgment of this Court reported in (2001)1 M.L.J.1 – A.C.Lakshmipathy and another v. A.M.Chakrapani Reddiar and others. "13. In Ram Charam Das v. Girija Nandini Devi and others, (1966)1 S.C.J.61: (1961)3 S.C.R.841: A.I.R.1966 S.C.323, the Supreme Court held that the word family has not to be understood in a narrow sense of being group of https://hcservices.ecourts.gov.in/hcservices/ persons whom the law recognises as having a right of succession or having a claim to a share in the disputed property. In fact, in a subsequent ruling reported in M/s.D.N.Roy v. State of Bihar, (1971)1 S.C.J.30: A.I.R. 1971 S.C.1041, the Supreme Court held that if the dispute is settled between near relations, then the settlement of dispute can be considered as a family arrangement. 15. It is now settled law that to effect a family arrangement, "all that is necessary is that the parties must be related to one another in some way and have a possible claim to the property or a claim or even a semblance of a claim on some ground as, say affection It was so held by the Apex Court in Ram Charan Das's case, A.I.R.1966 S.C.323. For the purpose of completeness, reference can be made to: (a)Pullaiah v. Narasimhan, (1967)2 M.L.J.(S.C.) 14:(1967)1 S.C.J.848: (1967)2 An.W.R.(S.C.) 14:A.I.R.1966 S.C.1836; (b) Shambhu Prasad v. Phool Kumari, (1971)2 S.C.J.650: A.I.R. 1971 S.C.1337. 16. In the ruling reported in Kale v. Deputy Director of Consolidation, A.I.R.1976 S.C.807, the court after referring to various earlier rulings, observed thus: "Conflict of legal claims in praesenti or in futuro is generally a condition for the validity of the family arrangement, it is not necessarily so. Even bona fide disputes, present or possible, which may not involve legal claims will suffice. Members of a joint family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such a family arrangement is entered into bona fide and the terms thereof are fair in a circumstance of a particular case, courts will more readily give recent to such an agreement than to avoid it. Family arrangements are bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all will be favoured." 17.Even disputes based upon ignorance of the parties as to their rights were sufficient to sustain the family arrangement (1967)2 M.L.J.(S.C.)14: (1967)1 S.C.J.848: (1967)2 An.W.R.(S.C.) 14 : A.I.R.1966 S.C.1836. To sum up: To effect a family arrangement all that is necessary is that the parties must be related to one another in some way and have a claim or a possible claim to the property or even a semblance of a claim or spes successionis or even on some other ground as, say, affection or ignorance of the parties of their rights and when the purpose of object of maintaining peace and harmony in the family. https://hcservices.ecourts.gov.in/hcservices/ 23. It is now fairly well settled that the co-owners can partition the immovable properties orally. But, however where a document is employed to effectuate a partition or any of the transactions specified in Sec.17 of the Registration Act such document must be registered, notwithstanding that the transaction is one which the law does not require to be put into writing. Such unregistered document cannot be looked into to prove the terms of the partition. But, however the same is inadmissible in evidence for the purpose of creating, declaring, assigning, limiting or extinguishing a right to immovable property. The expression "collateral purposes" is no doubt a very vague one and the court must decide in each case whether the parties who seek to use the unregistered document for a purpose which is really a collateral one or as is to establish the title to the immovable property conveyed by the document. But by the simple devise of calling it "collateral purpose", a party cannot use the unregistered document in any legal proceedings to bring about indirectly the effect which it would have had if it registered. (a) Siromani v. Hemkumar, A.I.R.1968 S.C.1299: "Of course, the document is admissible to prove an intention on the part of the coparceners to become divided in status; in other words, to prove that the parties ceased to be joint from the dsate of the instrument . . . . " (b) Roshan Singh v. Zile Singh, A.I.R.1988 S.C.881: "It is well-settled that the document though unregistered can however be looked into for the limited purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family co- tenants. . . . ." 30. . . . . . in Kale v. Deputy Director of Consolidation, A.I.R.1976 S.C.807, the Apex Court has observed as under: "In Tek Bahadur Bhujil v. Debi Singh Bhujil, A.I.R.1966 S.C.292, it was pointed out by this Court that a family arrangement could be arrived at even orally and registration would be required only if it was reduced into writing. It was also held that a document which was no more than a memorandum of what had been agreed to did not require registration. This Court had observed thus: "Family arrangement as such can be arrived at orally, its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in futuro. https://hcservices.ecourts.gov.in/hcservices/ It is 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." 16. The aforesaid judgments would unambiguously highlight that the document should be in the form of recording the minutes of the Panchayat and there should have been allotment of shares to the sharers for convenient enjoyment and such recording should take place subsequent to the occurrences. As such, the gist and kernal, the pith and marrow of the law relating to recording of the family arrangement in a document without the necessity of registration, would depend upon the fact as to whether there is any transfer of interest involved under that document or not. 17. To to the risk of repetition and pleonasm, but without being tautalogous I would like to point out that Ex.B13 is a document by itself, which purports to transfer Ammamuthu Ammal's interest in the immovable properties in favour of the first defendant and as such, it required registration, but no registration was effected. 18. The learned counsel for the contesting defendants would submit that after the emergence of Ex.B13, the said Ammamuthu Ammal undertook to get the deed registered, but under some pretext that got postponed. 19. Be that as it may. Any amount of oral evidence to the effect that Ammamuthu Ammal herself agreed for registration would not partake the place of registration. Registration contemplates presentation of actual document before the Registrar concerned and getting it registered. Even assertions, time out of number by the executant that he/she would get the document registered would not partake the place of registration and such assertions cannot be equated with registration as per the Registration Act. 20. The trial Court fell into error in holding that Ex.B13 did not require registration in view of the alleged fact that stamp duty and penalty were paid and the thumb impression of Ammamuthu Ammal in Ex.B13 was established by oral evidence. As per the trial Court, Ex.B13 could be used for collateral purpose and in support of the same, the learned Judge relied upon the following two judgments referred to therein. (i) (2001)2 M.L.J 507 – RENUGOPAL V. ARULMIGHU GANGAI NARAYANA PERUMAL TEMPLE, SIRUVALLUR VILLAGE, POLUR TALUK https://hcservices.ecourts.gov.in/hcservices/ (ii) 1997-2 M.L.J.64 – KALIMUTHU PILLAR V. VELUSAMI AND OTHERS. 21. It is ex facie and prima facie clear that the trial Court misdirected itself by construing that by establishing collateral purpose, the defendants would be able to succeed in the litigation initiated by the plaintiff. Here the crucial and vital point is to find out whether as per Ex.B13 the defendants could claim that the plaintiff released her share in the suit properties and mere proving the nature of possession etc. i.e. the collateral purpose would not enure to the benefit of the defendants. The concept 'collateral purpose' has been dealt with in various decisions, with which at present this Court is not concerned. 22. Here the contention of the defendants are to the effect that under Ex.B13 and also as per the Panchayat decision, they got right over the entire suit property, as Ammamuthu Ammal relinquished her right over it and that cannot be taken as collateral purpose. To prove the nature of possession, if any document is relied on, then that could be taken as one for collateral purpose. But here, the intention of the contesting defendants was to the effect that they got the share of the Ammamuthu Ammal in their favour by virtue of Ex.B13 and in such a case, I am at a loss to understand as to how the concept 'collateral purpose' could be pressed into service at all in the facts and circumstances of this case. As such, the trial Court without au fait with law and au courant with facts, erroneously decided the lis. 23. Adding fuel to the fire, the first appellate Court went to the extent of treating the recitals in Ex.B13 as one amounting to recording of the family arrangement. As has been already pointed out supra, 'family arrangement' is a different concept and Ex.B13 would display and demonstrate that purportedly Ammamuthu Ammal intended to transfer her share in the immovable properties by that document itself and in such a case, pressing into service the 'family arrangement' concept is a far fetched and misconceived one, warranting interference in the second appeal. 24. The appellate Court wrongly relied on the following decisions: (i) 2002(3) M.D.J. 6 – K.PATTABIRAMAN V. K.BANUMATHI AND OTHERS; (ii) 2005(4) M.L.J.337 – TMT.INDIRANI V. SEETHARMAN; (iii) 2001(2) M.L.J.33 (S.C.) - CHILAKURI GANGULAPPA V. REVENUE DIVISIONAL OFFICER, MADANAPALLE AND ANTOHER. https://hcservices.ecourts.gov.in/hcservices/ (iv) 2001(3) M.L.J. 742 – P.PALANI V. P.SAMINATHA PADAYACHI AND ANOTHER. and mis-understood the entire gamut of the problem and decided the case. The payment of stamp duty and penalty under Section 35 of the Indian Stamp Act would not partake the place of registration. If a document is inherently bad for registration that cannot be cured by paying deficit stamp duty and penalty. But the appellate Court misunderstood those facts and held otherwise. Once again the appellate Court also ushered in the concept 'collateral purpose' which cannot be done in the facts and circumstances for the reasons already adverted to supra by me. 25. It is therefore crystal clear that the Courts below misdirected themselves and applied the wrong proposition of law and held as though Ex.B13 is a valid piece of document and decided the lis, warranting interference in the second appeal. 26. The learned counsel for the defendants at one point of time went to the extent of arguing that the plaintiff falsely pleaded as though she did not affix her thumb impression, but the defendants, proved that it was she who affixed her thumb impression. 27. The learned counsel for the plaintiff-Ammamuthu Ammal would appropriately and appositely, convincingly and correctly submit that even assuming that the plaintiff-Ammamuthu Ammal affixed her thumb impression that would not in any way cure the defect in Ex.B13 and that as such, the valuable right of the plaintiff over her 1/4th share in the suit properties cannot be deprived. 28. Regarding the other aspects of the case are