IN THE HIGH COURT OF JUDICATURE AT MADRAS Date : 10-03-2010 Coram: THE HON’BLE MR. JUSTICE S.TAMILVANAN S.A.Nos. 101 and 102 of 2001 and C.M.P.No.1779 of 2008 S.A.No.101 of 2001 1. Angathal (Deceased) 2. Shanmuga Sundaram … Appellants/1st Defendant and LR of the 2nd Defendant Vs. Poomalai Gounder … Respondent/Plaintiff Second Appeal in S.A.No.101 of 2001 filed under Section 100 C.P.C against the Judgment and Decree, dated 24.03.2000 made in A.S.No.155 of 1998 on the file of the Principal District Judge, Coimbatore, confirming the Judgment and Decree, dated 10.07.1998 made in O.S.No.58 of 1996 on the file of the District Munsif, Mettupalayam. S.A.No.102 of 2001 1. Angathal (Deceased) 2. Shanmuga Sundaram … Appellants/1st Plaintiff and LR of the 2nd Plaintiff Vs. 1. Poomalai Gounder 2. Velumani 3. Uma 4. Selvi Baby 5. Selvi Savithiri 6. Selvi Saraswathy 7. Selvi Anusya … Respondents Second Appeal in S.A.No.102 of 2001 filed under Section 100 C.P.C against the Judgment and Decree, dated 24.03.2000 made in A.S.No.156 of 1998 on the file of the Principal District Judge, Coimbatore, confirming the Judgment and Decree, dated 10.07.1998 made in O.S.No.59 of 1996 on the file of the District Munsif, Mettupalayam. For appellants ::Mr.C.R.Prasanan For respondents :: Mr.K.S.Sundar https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT The Second Appeals have been preferred against the common Judgment and Decree, dated 24.03.2000 made in A.S.No.155 of 1998 and A.S.No.156 of 1998 on the file of the Principal District Judge, Coimbatore, confirming the common Judgment and Decree, dated 10.07.1998 made in O.S.No.58 of 1996 and O.S.No.59 of 1996 on the file of the District Munsif, Mettupalayam. 2. The suit in O.S.No.58 of 1996 was filed by the first respondent herein against the deceased first appellant, Angathal and her husband Arukutti Gounder, seeking declaration of title, recovery of possession of the suit property and for rendition of accounts. The suit in O.S.No.59 of 1996 was filed by the deceased Angathal and Arukutti Gounder, husband of Angathal against the respondent, Poomalai Gounder and six others, seeking permanent injunction restraining the defendants therein and their men from interfering with the peaceful possession and enjoyment of the suit property. 3. It is made clear for the sake of convenience and easy understanding, considering the earlier suit, that the term plaintiff, plaintiff's document or plaintiff's witness and the term defendant, defendant's document or defendant's witness refer to would denote only the term in the suit in O.S.No.1604 of 1992, which was subsequently renumbered as O.S.No.59 of 1996 and also the appeal relating to the said suit, if the suit number, witness or the document is not specifically mentioned in this Judgment. 4. In the suit in O.S.No.58 of 1996, "A" schedule of property is stated as 2.77 acres of punja land in S.No.918, Kumarapalayam village, Mettupalayam Taluk, "B" schedule of property, an extent of 18 cents, out of a total extent of 5.90 acres of land in the said survey number. In the suit in O.S.No.59 of 1996, the schedule of property is stated as S.No.918 in Kumarapalayam village, Mettupalayam Taluk, an extent of 2.95 acres, out of 5.90 acres of land with a well and 5 HP motor pumpset and electric service connection fitted in the well. The details of the electric service connection is also stated in the schedule of property. 5. After the trial, the suit in O.S.No.58 of 1996 filed by Poomalai Gounder was decreed as prayed for and the suit filed in O.S.No.59 of 1996, by the deceased Angathal and Arukutti Gounder was dismissed. Aggrieved by which, appeals in A.S.No.155 of 1998 and A.S.No.156 of 1998 were preferred. Learned Principal District Judge, Coimbatore, by his common Judgment, dated 24.03.2000, confirmed the common Judgment rendered by the trial court and dismissed both the appeals. Aggrieved by which, the second appeals have been preferred. 6. The said Arukutti Gounder died prior to the filing of the appeals, Angathal, wife of Arukutti Gounder was already on record, hence, his son was impleaded as the second appellant. Subsequently, Angathal was reported dead, hence, the only contesting appellant is https://hcservices.ecourts.gov.in/hcservices/ Shanmuga Sundaram, as their only legal heir. 7. Both the second appeals were admitted by this Court on the following common substantial questions of law : "1. Whether in law the Courts below erred in holding that Ex.B.1 required registration overlooking that conferment of status and possession of the first appellant, recognition of her possession for the past 18 years prior to its execution, by recording it by way of Ex.B.1 does not require recognition as per the dictums reported in 1998 (2) L.W. 678 and 2000 II CTC 574 ? 2. Whether in law, the Courts below erred in overlooking that the plaintiff, who had accepted his signature in Ex.B.1 had not discharged burden of proving his case that Ex.B.1 was not a genuine document, as laid down in the Judgment reported in AIR 1960 SC 100 ?" 8. Poomalai Gounder, the respondent in S.A.No.101 of 2001 and the first respondent in S.A.No.102 of 2001, who filed the suit in O.S.No.58 of 1996 has stated that himself (Poomalai Gounder), his brother Subramaniya Gounder, deceased Angathal (first defendant) and one Valliammal were the children of late Palani Gounder, who died in the year 1990 and the said relationship is not in dispute. According to himself (Poomalai Gounder), his brother Subramaniya Gounder and their father Palani Gounder had partitioned their family properties, by way of a registered partition deed, dated 28.11.1991. As per the partition deed, Poomalai Gounder became the absolute owner of the suit property described in the "A" schedule, an extent of 2.77 acres of land situated in S.F.No.918 in Kumarapalayam Village. An extent of 18 cents in S.F.No.918 in Kumarapalayam Village described as "B" schedule property, that was allotted to the share of Palani Gounder, his father to be enjoyed by him till his life time and he was given absolute right and title in respect of "B" schedule of property and after the death of his father Palani Gounder, the respondent Poomalai Gounder became the absolute owner of "A" and "B" schedule properties. 9. According to Poomalai Gounder, the second defendant Arukutti Gounder, husband of his sister Angathal had owned no properties in his native place, hence, he came over to his wife's native place and both Angathal and Arukutti Gounder were taken care of by Poomalai Gounder and father, Palani Gounder. Palani Gounder was being helped by his daughter Angathal and her husband and after the death of Palani Gounder, Poomalai Gounder called upon Angathal and Arukutti Gounder to vacate both the items of properties, however, they were postponing delivery of possession under some pretext or other, finally the suit in O.S.No.1604 of 1992 was filed by them against Poomalai Gounder and his children, based on the patta issued in favour of Angathal. https://hcservices.ecourts.gov.in/hcservices/ 10. According to the respondent, Angathal and her husband, who were living with Palani Gounder had managed to get the documents from Palani Gounder and make out a case to suit their convenience. According to Poomalai Gounder, Angathal and Arukutti Gounder had no right in the suit properties and as they failed to vacate and hand over the possession of the property, the suit in O.S.No.58 of 1996 was filed by Poomalai Gounder for declaration of title, delivery of possession and for rendition of accounts. 11. In the suit in O.S.No.59 of 1996, Angathal and Arukutti Gounder as plaintiffs, have stated that the property belonged to Angathal, as the same was allotted to her share and patta was issued in her name and she was regularly paying kists to the revenue department as owner of the property. In support of her contention, she filed Ex.B.2, Patta, Ex.B.3, copy of adangal, Ex.B.4 (series), kist receipts, electricity consumption card, family card and other documents to show her continuous possession and enjoyment of the suit property. 12. Poomalai Gounder, the respondent herein, as P.W.1 before the trial court has admitted the fact that the deceased Angathal, the first defendant in the suit in O.S.No.58 of 1996 was his sister. His father, Palani Gounder had 2 sons, he is one among the sons and the only daughter alive was Angathal. His father, Palani Gounder died in the year 1990. According to him, the superstructure was put up in the property by his father. He has admitted the fact that his father was residing with Angathal and her husband, since Poomalai Gounder had been doing agricultural work at Thekampatti, another Village. The first respondent, Poomalai Gounder as P.W.1 during his cross-examination has admitted his signature available in Ex.B.1, Panchayat Muchalika, dated 14.06.1987 and admittedly, he has not stated that the same was obtained by his sister, Angathal or her husband under threat or coercion. He has further admitted that the panchayat muchalikha was signed by him. 13. Angathal, the first plaintiff in O.S.No.59 of 1996, who examined herself as D.W.1 has deposed that the suit property named 'Mantharai Thottam' was given to her 10 years prior to her deposing evidence with the consent of her father, Palani Gounder and the same was recognised by Poomalai Gounder, the first respondent, under Ex.B.1 and she denied the partition alleged by the first respondent herein. Angathal as D.W.1 has admitted the fact that Arukutti Gounder, her husband, the second defendant in the suit in O.S.No.59 of 1996 had no property, hence, she was brought to the suit village along with her husband from his native place, Pachapalayam for about 32 years prior to the date of her deposing evidence by her father, Palani Gounder and her father was residing in the suit property along with his sister, Angathal and Arukutti Gounder till his life time. Originally patta stood in the name of her father, subsequently, that was changed in the name of Poomalai Gounder, the first respondent herein. After Ex.B.1, panchayat muchalika, dated 14.06.1987, executed by Poomalai Gounder, the first respondent, recognising the right of Angathal has specifically stated that his sister Angathal is entitled to address https://hcservices.ecourts.gov.in/hcservices/ the Tahsildar for change of patta in the name of Angathal, the first appellant herein. Subsequently, patta was issued in her name by Tahsildar. 14. Mr.K.S.Sundar, learned counsel for the respondent in S.A.No.101 of 2001 and the respondents in S.A.No.102 of 2001 submitted that Ex.B.1 is inadmissible in evidence, on the ground that it was not a registered document. Per contra, Mr.C.Prasannan, learned counsel for the appellants submitted that Ex.B.1, being a family arrangement does not require any compulsory registration. 15. It is seen that Subbaiya, son of one Rangaiya Gounder, who had been one of the attestors to Ex.B.1 was examined as D.W.2. According to him, he had been invited along with other panchayatdars by Palani Gounder, Poomalai Gounder and Angathal for the purpose of executing Ex.B.1. According to him, the contents of the document was read out to both the parties, Angathal affixed her left hand thumb impression, then Poomalai Gounder, the first respondent signed and other persons signed as witnesses to the document, Ex.B.1. Another Attestor to the document, Ex.B.1, K.Subbaiya, son of one Karuppa Pannadi has also deposed a similar evidence with regard to the execution and genuineness of Ex.B.1, signed by Poomalai Gounder, the first respondent herein. 16. Learned counsel for the appellant relied on the decision rendered by Full Bench of the Hon'ble Supreme Court in Kale vs. Dy. Director of Consolidation, reported in 1976 (3) SCC 119 and submitted that a family arrangement reduced into writing and signed by parties, need not be a registered document, which is binding on the parties to the document. Referring various earlier decisions of the Hon'ble Apex Court, has held in the decision referred to above that a document which is in the nature of memorandum of an earlier family arrangement, that was filed before the Court need not be a registered document and therefore, the same can be used in evidence to prove the family arrangement and if proved, which would be binding on the parties to the document. It is made clear by the Hon'ble Apex Court that a family arrangement reduced into writing and signed by both the parties does not require any registration, when the factum of the family arrangement is established. 17. In Ram Charan Das vs. Girjanandini Devi, reported in AIR 1966 SC 323, the Hon'ble Supreme Court has held as follows : "Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. The word 'family' in the context is not to be understood in a narrow sense of bring a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute... The consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in https://hcservices.ecourts.gov.in/hcservices/ establishing or ensuring amity and good will amongst persons bearing relationship with one another. That consideration having been passed by each of the disputants the settlement consisting of recognition of the right asserted by each other cannot be permitted to be impeached thereafter." 18. In Digambar Adhar Patil vs. Devram Girdhar Patil, reported in AIR 1995 SC 1728, the Hon'ble Supreme Court has held that under the Hindu Law, it is not necessary that a partition should be effected only by a registered partition deed. Even a family arrangement is enough to effect partition between coparcerners and to confer right of separate share and enjoyment thereof. In the said decision, it was held that the entries made in the Record of Rights regarding the factum of partition, is a relevant piece of documentary evidence in support of the oral evidence given by the respondent therein and his brother to prove the factum of partition, though he could not give the date and year, in which the partition was effected. 19. In Lakshmi Ammal vs. Chakravathi, reported in 1999 (1) CTC 256, the Hon'ble Supreme Court has held that it is not necessary that the parties being members of a family and claiming right in the property are in law entitled to some share, when the basic requirements for family arrangement are fulfilled and such a deed must be held to be a valid document to establish the family arrangement. 20. In Maturi Pullaiah vs. Maturi Narasimhan, reported in AIR 1966 SC 1836, the Hon'ble Apex Court has held that although conflict of legal claims in praesenti or in future is generally a condition for the validity of family arrangements, it is not necessarily so. Even bonafide disputes, present or possible, which may not involve legal claims, will suffice. Members of a joint Hindu family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an arrangement is entered into bonafide and the terms thereof are fair in the circumstances of a particular case, Courts will more readily give assent to such an arrangement than to avoid it. 21. It is seen that the Substantial Questions of law raised by the appellants are based on the ruling Ayyakannu Padayachi and 3 others vs. Boorasamy and another reported in 1998-2-LW 678 and Narayan vs. Gopal, reported in AIR 1960 SC 100. 22. This Court in the decision, Ayyakannu Padayachi and 3 others vs. Boorasamy and another reported in 1998-2-LW 678, following the Judgment of Arumughachary Nadar vs. Deivanaiammal reported in 1998 (1) LW 507 and C.S.Kumaraswamy Gounder vs. Aragagiri Gounder and another reported in AIR 1974 Madras 239, has held that there was record of understanding reached between the parties earlier, pursuant to a panchayat, hence, it could be stated as a record of agreement reached between the parties, after earlier negotiations. Therefore, the document does not require https://hcservices.ecourts.gov.in/hcservices/ registration, as the same would be recording of the earlier family arrangement made between the parties. 23. In the decision, Narayan vs. Gopal, reported in AIR 1960 SC 100, Full Bench of the Hon'ble Apex Court has held as follows : "11...An admission is the best evidence that an opposing party can rely upon and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous." It has been held that admission is the best piece of evidence. Here, in the instant case, Poomalai Gounder, the respondent has admitted that he is a signatory to Ex.B.1 and admittedly, he has signed in all four pages of the document, only his sister, Angathal, the other party to the document has affixed her left hand thumb impression. It has been established by the appellants / plaintiffs in O.S.No.59 of 1996, by way of examining the attestors, Ex.B.1 that the respondent herein has voluntarily executed the said document. 24. In the light of the various decisions of the Hon'ble Apex Court and this Court, it is a well settled proposition of law that a family arrangement need not be registered and if the family arrangement is established, that is binding on the parties to the arrangement. In the instant case, Ex.B.1, panchayat muchalika was executed by Angathal, the deceased first appellant / first plaintiff in O.S.No.59 of 1996 and the first defendant in O.S.No.58 of 1996 and Poomalai Gounder, the first respondent herein / plaintiff in O.S.No.58 of 1996 and the first defendant in O.S.No.59 of 1996. It is an admitted fact that both are sister and brother, being the daughter and son of Palani Gounder and it is between a brother and sister with regard to the property left by their father and hence, it is a family arrangement, which requires no registration for its validity. 25. Poomalai Gounder, who was examined before the trial court as P.W.1 has admitted in his cross-examination that he has signed Ex.B.1, dated 24.06.1987. The four signatures available in the document were shown to him and he has specifically admitted that the signatures were affixed by him. He has also admitted that the suit property was originally belonged to Palani Gounder, father of himself and Angathal. 26. Angathal, who was examined as D.W.1 has deposed that the suit property was the self-acquired property of Palani Gounder and she was in possession and enjoyment of the property for about 32 years, prior to the date of her deposing evidence and patta was also issued in her name, 10 years prior to the date of her deposing evidence. The patta relating to the suit property was issued in the name of Angathal and marked as Ex.B.2. Certified copy of the Adangal was marked as Ex.B.3 and the kist receipts for the payment of kist made by Angathal, five in number were marked as Ex.B.4 series. She has stated that 5 HP motor was installed by her in the https://hcservices.ecourts.gov.in/hcservices/ property for the purpose of irrigation and for which, the electric service connection stands in her name. In support of her contention, she has produced electric consumption card (3 in number) and the receipts (9 in number) for the payment of consumption charges, issued by the Tamil Nadu Electricity Board as Exs. B.5 and B.6 series and the family card shows that she had been residing at the suit property and the family card issued by the authority was marked as Ex.B.7. In the garden land, she constructed a house, which stands in the name of her husband, Arukutti Gounder, the second defendant in O.S.No.58 of 1996. The motor pump set installed in the well was originally in the name of her father, Palani Gounder, for which she has produced the supporting document and then it was transferred in her name long back. 27. The oral and the aforesaid documentary evidence would establish that Angathal had been in possession and enjoyment of the suit property and that was recognised by the revenue authority by issuance of patta, electric service connection, installed in her name in the suit property and she has been paying the electricity consumption charges and after her death, being her son, the second appellant is in possession and enjoyment of the property. 28. It has been held by oral and documentary evidence that Angathal and her husband, Arukutti Gounder were in possession and enjoyment of the suit property. According to her, only at the instance of her father, Palani Gounder, the family arrangement was made and accordingly, properties were allotted to Palani Gounder's two sons, including Poomalai Gounder and also his daughter, Angathal, the first appellant / plaintiff in O.S.No.59 of 1996. As per her evidence, herself and her husband were cultivating the suit land for about 32 years from the period, while her father Palani Gounder was alive and living with her. Before the village panchayat, the family arrangement was signed by Poomalai Gounder voluntarily and she affixed her left hand thumb impression in the document in the presence of attesting witnesses. 29. The suit in O.S.No.59 of 1996 was an earlier suit filed by Angathal and her husband, Arukutti Gounder, which was originally numbered as O.S.No.1604 of 1992 on the file of the District Munsif Court, Coimbatore against the first respondent, Poomalai Gounder and others seeking permanent injunction restraining them from interfering with the peaceful possession and enjoyment of the property. 30. The plaintiffs in O.S.No.59 of 1996 Angathal and Arukutti Gounder have stated that they owned the property, 20 years back and continuously in the possession and enjoyment of the same. From 12.07.1992, the defendants in the suit were interfering with the peaceful possession and enjoyment of the property by Angathal and Arukutti Gounder. As per the plaint averments, the first appellant's father, Palani Gounder owned the property and he was living with her till his death, which is not in dispute and she has further stated that she got title to the property and patta was also issued in her favour. On the side of the appellant / https://hcservices.ecourts.gov.in/hcservices/ plaintiff, Angathal herself was examined as D.W.1, apart from examining three other witnesses and also filed the supporting documents, Exs.B.1 to B.16. 31. In the written statement filed by the respondent herein before the trial court, he has raised a defence that there was a partition deed between himself, his father Palani Gounder and brother Subbanna Gounder on 28.11.1981. As per the partition deed, he became the absolute owner of the suit property. However, he has not disputed the possession and enjoyment of the suit property by the appellants / plaintiffs and prayed for the dismissal of the suit in O.S.No.59 of 1996. Subsequently, the respondent herein filed the suit in O.S.No.58 of 1996, that was originally numbered as O.S.No.193 of 1993 on the file of the Subordinate Judge, Coimbatore, seeking declaration of title with regard to the suit property, recovery of possession and mesne profits. In support of his contention, the respondent, Poomalai Gounder, who is the plaintiff in O.S.No.58 of 1996 examined himself as P.W.1 and marked only a certified copy of a partition deed, dated 28.11.1981 between Palani Gounder, the first respondent Poomalai Gounder and his younger brother Subbanna Gounder. The document has been disputed by the first appellant / Angathal and Arukutti Gounder, as plaintiffs in O.S.No.59 of 1996 and defendants in the suit in O.S.No.58 of 1996. 32. In order to prove the execution and the genuineness of the document, Ex.A.1, the respondent Poomalai Gounder could have examined any attestor to the document or any other witness. His evidence and marking the aforesaid certified copy of the document, Ex.A.1 are not sufficient to establish his claim. He has not even chosen to examine Subbanna Gounder, his brother to establish the execution of the original of the document, Ex.A.1. Admittedly his sister Angathal was not a party to the document, however, the court below has given a finding that Angathal has failed to examine Subanna Gounder or another sister and decreed the suit filed by Poomalai Gounder and that was confirmed by the appellate court. It is a settled proposition of law that the parties relying on a document has to