BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated:26.07.2024
CORAM
THE HONOURABLE MR JUSTICE D.BHARATHA CHAKRAVARTHY
C.R.P(MD)No.2296 of 2022 and
C. M.P(MD)No.11016 of 2022
Justinraj
1.Arockiaraj
2.Abraham
3.Arulanantham
4.The District Collector,
Pudukkottai,
Pudukkottai District.
5.The Tahsildar,
Kulathur Taluk,
Keeranur & Post, ..Petitioner/Plaintiff Vs.
..Respondents/Defendants
Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the order and decreetal order dated 16.09.2022 passed in I.A.No.477 of 2022 in O.S.No.130 of 2016 by the District Munsif Court, Keeranur and allow the above Interlocutory Application.
For Petitioner :Mr.R.Paranjothi
For R1 :Mr.G.Sridharan
For R4 & R5 :Mr.SR.A.Ramachandran
Additional Govt. Pleader ORDER
The Civil Revision Petition is filed against the fair and decreetal order in I.A.No.477 of 2022 in OS.No.130 of 2016 on the file of the District Munsif Court, Keeranur.
2.By the said order, the trial Court refused to take on file the document dated 31.03.1976, which is titled as “ghfg;gphptpid xg;ge;j Kr;rypf;if.” The ground on which, the said document was rejected is that the said document, which partitioned the suit properties is a compulsorily registrable document and therefore, in the absence of registration, as per section 17 of the Registration
Act, cannot be taken as evidence and cannot be marked.
3.The learned counsel appearing on behalf of the petitioner would contend that the case of the plaintiff in the suit is that the suit property which devolved upon four brothers, upon the death of their father was already partitioned as early as in the year 1976 by the said partition deed and pursuant thereto, the revenue records were mutated. But however, when the plaintiff’s father executed a settlement deed in favour of the plaintiff and further mutation of the patta was resorted to, at that point of time, the defendants started to interfere in the Pata proceedings and also claimed rights and therefore, the suit for declaration of title and consequential injunction is filed.
4.The suit is resisted by the defendants. The first defendant had filed a written statement, in which, the following averments are made in paragraph No.3:
“It is fraudulent to state that the family properties were divided between the four brothers on 31.03.1976 in to four schedules “A to D” and a written
Partition Muchalika was prepared. It is fraudulent to
state that Arockiasamy got transferred Pattas to the properties allotted to his shares in the said partition is fraudulent.”
Therefore, except to state that the division of family properties by the four brothers as on 31.07.1976 as fraudulent, nothing is stated about the partition deed, whether the signature contained in the written statement belong to all the four brothers and if so, no further averments were made. In that background, when the application is filed for bringing on record the unstamped, unregistered family arrangements, the same was resisted by the defendants by stating that it requires compulsory registration and accepting their case, the trial court has rejected the document and aggrieved by which, the present Civil Revision Petition is filed.
5.The learned counsel appearing on behalf of the petitioner would submit that the impugned document is only a family Muchalika. He would submit that in any event, at least for proving possession, the document is admissible in evidence. He would submit that the property has been treated as separate property pursuant to the family arrangement from the year 1976 and suddenly disputes are made by the defendants. He would rely upon the judgment of the Co-ordinate single Bench of this Court in R.Munusamy-vs-Krishttappillai and others, reported in 2014 (6) CTC 773, to contend that the document shall be taken on file and the same can at least be relied upon to prove the possession.
6.Per contra, the learned counsel appearing on behalf of the first respondent would submit that a plain reading of the document, it is very clear that the document effects partition in presenti and as such is compulsorily registrable. In this case, there is no question of any collateral purpose because the main purpose for which the document is sought to be introduced is to prove the partition. He would further submit that the property is enjoyed in common by the family even as on date. The mother’s property alone was partitioned between the brothers recently. The father’s properties have to be partitioned. While so, clandestinely one of the brother alone by choosing the prime properties having higher value, started dealing with the same as if it is his separate property and executed the deed in favour of his son, who is the plaintiff in the suit and therefore, the defendants are contesting the suit. He would submit that all the properties which are mentioned in the plaint are not even found in the alleged fraudulent partition Muchalika. Therefore, the very case of the plaintiff is false. In that background, this Court should consider that it is the mandate of law that document creating rights of parties in an immovable property should be compulsorily registered and in the absence of registration, the document cannot be looked into or taken on file by the Court. The very case of the plaintiff hinges on the said document and therefore, production of the document cannot be deemed to be for a collateral purpose.
7.I have considered the submissions made on either side and perused the material records of the case.
8.The case of the plaintiff in the suit and the case of the defendant in the written statement is extracted supra, the same is kept in the background. The fact that the family arrangement/ partition agreement Muchalika is said to have been happened in the year 1976 is also borne in mind. In this scenario, the question which is to be decided by this Court is as to whether or not the said document can be taken on file and marked as a document in evidence. It is true that if there is a family arrangement, the Court should always endeavor to implement the family arrangement.
9.The family arrangement recording a oral partition which had happened in the past and need not be registered. On the contrary, if the family arrangement Muchalika effects partition in- presenti, then the same is compulsorily registrable and cannot be received in as evidence. In that background, the document reads as follows:
“,e;epiyapy; ehk; Jlh;e;J itj;Jf;bfhs;s ,y;yhky; gpd; fz;lthW A,B,C,D b\oa{y;fspy; fz;lgo ghfk; gphpj;Jf;bfhs;fpnwhk;. moapy; fz;l A b\oa{ypy; fz;l brhj;Jf;fis ekk; py;
1tJ eguhd ahfg;g[ilahFk;. B b\oa{ypy; fz;l brhj;Jf;fis ek;kpy; 2tJ eguhd Mnuhf;arhkp cilahFk;. C b\oa{ypy; fz;l brhj;Jf;fis ekk; py;
3tJ eguhd mg;u+hKk; D b\oa{ypy; fz;l brhj;Jf;fis ekk; py; 4tJ eguhd mUshde;jKk; mile;J bfhz;L ehk; ehsJ njjp Kjy; ,jdoapy; fz;l gQ;rhaj;jhh;fs; Kd;dpiyapy; xjpf;fpf;bfhz;l go g[j;jpugt[j;jpu ghuk;gh;akha; jhdhjp tpdpka tpf;uaq;fSf;F nahf;akha; mtuth;fs; rh;t Rje;jpuj;Jld;
Mz;lDgtpj;Jf;bfhs;s ntz;oaJ.”
(emphasis supplied)
10.Therefore, the document speaks of a oral partition being arrived at by the parties in the presence of panchayattars and at the same time speaks as if the partition is created in presenti. Therefore, in this case, the question whether there was any oral partition which is recorded as per the family partition Muchalika or whether the partition is created in presenti has to be decided only by looking into the document and after hearing the objections of both parties. Similarly, whether the document is relied upon for the primary purpose or for any other collateral purpose is also a fact which the trial Court has to decide during the course of the
trial.
11.In view thereof, I am of the view that the petitioner should not be shunted out at the outset without even taking the document on file. In view thereof, I am unable to sustain the objections raised by the learned counsel on behalf of the first respondent and the Civil Revision Petition is allowed on the following terms:
(i)the order dated 16.09.2022 made in I.A.No.1 of 2022 in OS.No.130 of 2016 shall stand set aside, and consequently the said I.A stands allowed.
(ii)It would be open for the parties to contend about the requirement of compulsory registration, admissibility, relevancy for the main purpose or collateral purpose etc., before the trial Court as and when the document is marked and is being
considered at the time of the trial / final disposal;
(iii)As and when such objections are made that objections will be considered by the trial Court afresh, based on the evidence on record, which may be let in by the parties in any manner uninfluenced by any of the findings made by this court in the present order, which is made only for the purposes of the disposal of the Civil Revision petition. No costs. Consequently, connected miscellaneous petition is also closed.
26.07.2024
NCC:Yes/No
Ns
To
The District Munsif Court,
Keeranur
D.BHARATHA CHAKRAVARTHY, J.
Ns
C.R.P(MD)No.2296 of 2022 and C.M.P(MD)No.11016 of 2022
26.07.2024
