1. Defendants 1 to 3 in the suit are the appellants in this Second Appeal. Pending appeal, second appellant died and appellants 4 to 6 have been substituted as his legal heirs. Plaintiff in the suit is first respondent and defendants 4 and 5 are respondents 2 and 3 herein.
2. This Second Appeal is filed challenging the judgment and decree, dated 27.04.2005, passed in A.S.No.6 of 2005 on the file of I Additional District Court, Erode, confirming the judgment and decree, dated 28.11.2003, passed in O.S.No.737 of 1995, on the file of I Additional Sub Court, Erode.
3. For the sake of convenience, the parties are referred to as per their ranking before the trial Court.
4. According to the plaintiff, one Karuppanna Gounder, husband of first defendant, was owning the schedule mentioned properties, who are the ancestral properties of the family; Karuppanna Gounder and first defendant had 3 sons, namely, Sengoda Gounder, husband of plaitniff, Chinnasamy and Arumugam, who are second and third defendants; and they also had a daughter, namely, Ramayammal, whose children are fourth and fifth defendants; Karuppanna Gounder died intestate in the year 1987 and his eldest son – Sengoda Gounder and daughter – Ramayammal predeceased him; plaintiff is the wife of Sengoda Gounder, who is first son of Karuppanna Gounder, and the plaintiff's husband died intestate in the year 1975, leaving behind the plaintiff and first defendant – mother, as his legal heirs; during the lifetime of Karuppanna Gounder, the schedule mentioned properties were being enjoyed by the plaintiff and the defendants as joint family properties; after the death of Ramayammal, there have been some misunderstandings in the family, due to which the plaintiff is living separately along with her parents; the plaintiff is entitled to 2/16 th share in the suit properties and since the demand made by the plaintiff for partition of the suit properties did not fructify, she has come up with the suit for partition of the suit properties and allotment of 2/16 th share.
5. Second defendant resisted the suit by filing a written statement, admitting that the suit properties are ancestral properties of Karuppanna Gounder; the plaintiff was never treated as a member of the joint family and even as early as 25.02.1975, the plaintiff had executed a release deed - Ex.B-1 with regard to all her rights in the joint family and left the family; the plaintiff had relinquished all her rights in the properties for proper and valuable consideration; and that defendants have, therefore, denied that the plaintiff is having any right to demand for partition, claiming 2/16 th share in the suit properties.
6. During the course of trial, plaintiff examined himself as P.W.1 and marked Exs.A-1 to A-14. On the side of defendants, D.Ws.1 to 3 were examined and Ex.B-1 was marked.
7. After analysing the documents and evidences, the trial Court granted a preliminary decree in favour of the plaintiff, granting 4/32 share. The trial Court found that when the defendants had admitted that the suit properties were the ancestral properties and the plaintiff, as the widow of Sengoda Gounder, who is first son of Karuppanna Gounder, is having right in the suit properties, only by relying on the document - Ex.B-1, an unregistered release deed, cannot deny the share of the plaintiff, stating that she has relinquished her rights in the suit properties. The trial Court also found that release deed - Ex.B-1, an unregistered one, has been executed on two stamp papers, which were purchased as early as 07.04.1971. The trial Court further held that there was no reason to purchase the stamp papers four years prior to executing the release deed on 23.02.1975 and that only after Kasipalayam Panchayat was converted into Municipality, the said document was executed and, therefore, the claim made by the defendants was not established by proving the document - Ex.B-1.
8. Aggrieved over the preliminary decree granted by the trial Court, defendants 1 to 3 filed an appeal in A.S.No.6 of 2005 on the file of I Additional District Court, Erode. The lower appellate Court, after re-appreciating the evidence, dismissed the appeal. The lower appellate Court also found that when the defendants claimed that Ex.B-1 was executed by the plaintiff by receiving a sum of Rs.2500/- and no details of the properties much less the suit properties have been mentioned in Ex.B-1, it could only be construed as the amount towards maintenance of the plaintiff and it could never be treated as a release deed, releasing her rights over the suit properties.
9. Further aggrieved over the concurrent findings of facts for grant of preliminary decree, defendants 1 to 3 are before this Court in this Second Appeal.
10. This Court, by an order, dated 06.09.2008, framed the following substantial question of law for consideration of the Second Appeal :
Whether the first appellate Court, being the final Court of fact, has complied with the inbuilt under Section 96 and Order 41, Rule 31 of CPC, before confirming the finding of the trial Court in respect of entitlement of shares of the parties
11. Learned counsel for the appellants/defendants would contend that even though admittedly the suit properties are ancestral properties of Karuppanna Gounder and the plaintiff is the widow of Sengoda Gounder, who is first son, and she was having a right in the joint family properties, the plaintiff herself had voluntarily executed the release deed - Ex.B-1, thereby relinquishing her share in the suit properties, by receiving a sum of Rs.2500/-. According to her, when the plaintiff had executed Ex.B-1 and relinquished her share, she has no right to institute the suit for partition when she does not have any right over the suit properties. She would further contend that the defendants have examined D.Ws.1 and 2 and proved the document Ex.B-1, thereby the rights of the plaintiffs over the suit properties have been released and the present suit, filed by the plaintiff for partition, is not maintainable. The learned counsel also contended that the Courts below have not properly appreciated the document - Ex.B-1, which was executed by the plaintiff for a valuable consideration, by relinquishing her share in the suit properties, and have erroneously granted a decree for preliminary partition, allowing her share in the suit properties. She, therefore, contended that the findings of facts arrived at by the Courts below are not in consonance with the evidences adduced and Ex.B-1 and, as such, are perverse. Accordingly, she sought for allowing the Second Appeal.
12. Conversely, learned counsel for the respondents/plaintiff would contend that when the defendants have admitted that the suit properties are the ancestral properties and the plaintiff is the widow of Sengoda Gounder, who is first son of Karuppanna Gounder, naturally, the plaintiff, on the death of her husband, had inherited the share in the joint family properties and, therefore, is entitled to claim for partition. He would further contend that when the defendants are denying the right of the plaintiff by filing the document - Ex.B-1, stating that it is the release deed, releasing her right in the suit properties, no details of the suit properties have been mentioned in the said document and, therefore, it cannot be construed to be a release of her share in the suit properties. The learned counsel also argues that the stamp papers, purchased for preparation of the deed - Ex.B-1, which are, admittedly, purchased as early as 07.04.1971, and the deed executed on 23.02.1975 would go to show that the deed is not genuine. According to the learned counsel, even the witnesses examined on the side of defendants, namely, D.Ws.1 and 2 have deposed that the stamp papers were neither purchased in the name of the defendants nor the plaintiff and, in fact, one of the stamp papers purchased was in the name of Vepanna Gounder, who is in no way connected to the document, and he is not even an attestor to the document. He would also argue that the Courts below have rightly considered all the issues and arrived at a finding of fact that the document relied upon by the defendants in Ex.B-1 is not genuine and the plaintiff has not released her share and, as such, is entitled to claim partition in the suit properties. He would finally submit that the findings of the Courts below are based on the materials available on record and they do not need any interference by this Court. Accordingly, he prayed for dismissal of the Second Appeal.
13. Admittedly, the suit properties are the ancestral properties of Karuppanna Gounder. First defendant – Angayammal is the wife of Karuppanna Gounder and they had three sons and one daughter. Sengoda Gounder, first son, died intestate in the year 1975 and the plaintiff is the widow of Sengoda Gounder. Other two sons, namely, Chinnasamy and Arumugam, are defendants 2 and 3 in the suit. The only daughter – Ramayammal also died and fourth and fifth defendants are the children of Ramayammal. It is also admitted that Karuppanna Gounder died intestate and all his three sons and one daughter are entitled for share in the suit properties.
14. The only contention of the defendants is that though the plaintiff, being the widow of Sengoda Gounder, is entitled for share in the suit properties, she had voluntarily executed a release deed – Ex.B-1, dated 23.02.1975, for a valuable consideration, by receiving a sum of Rs.2500/-, and thereby released all her rights in the joint family properties. Therefore, according to the defendants, when once the plaintiff has released the rights by executing the released deed, she has no right to institute the suit for partition in respect of the suit properties and, hence, the present suit is not maintainable.
15. A perusal of Ex.B-1 shows that it is an unregistered document, alleged to be executed by the plaintiff for a consideration of Rs.2500/-, even though no details of the suit properties or any other properties are mentioned in the said document. The plaintiff contends that it was only a sum towards maintenance, but the defendants contend that it was the consideration, received for relinquishing the share in the suit properties.
16. At this juncture, it is useful to refer to Section 17 (1) (b) of the Registration Act,1908, which reads as under :
Section 17. Documents of which registration is compulsory.-
(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:—
(a) xxxx
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.
17. A reading of the above provision shows that no non-testamentary instrument, whereby the rights of the parties are transferred for a value of Rs.100/- and above in respect of any immovable property, can be done without the document being compulsorily registered. In other words, any document, purporting to transfer a right to immovable property having value of Rs.100/- and above, is to be compulsorily registered. No doubt Ex.B-1 shows that a sum of Rs.2500/- was paid as valuable consideration towards execution of the document. When it is the specific case of the defendants that the release deed - Ex.B-1 has been executed in respect of releasing of rights of the plaintiff in the suit properties for a valuable consideration by receiving a sum of Rs.2500/-, unless and until the document is registered, no right would have been transferred in respect of the immovable properties. Therefore, the document – Ex.B-1, which is contended to be a released deed, is to be compulsorily registered under Section 17 (1) (b) of the Registration Act and since it is an unregistered document, it is not a valid document in the eye of law, whereby it could be taken that the rights of the plaintiff had been released and transferred in favour of the defendants.
18. Added to the above, as rightly observed by the Courts below, the stamp papers for the document – Ex.B-1 had been purchased on 07.04.1971, one in the name of Vepanna Gounder and the other in the name of Karuppanna Gounder. When admittedly Vepanna Gounder is in no way connected to the release deed, it is not made clear as to how the document purchased in his name has been used to execute the document – Ex.B-1. Also, when the stamp papers were purchased as early as 07.04.1971, the release deed – Ex.B-1 was executed on 23.02.1975 i.e., after a period of nearly four years. The admission of D.Ws.1 and 2, in their evidence, that the stamp papers for the document – Ex.B-1 were purchased on 07.04.1971 and the release deed was also executed on 07.04.1971 itself goes against the fact that when admittedly the plaintiff's husband – Sengoda Gounder himself died intestate in the year 1975, the plaintiff did not have any right in the year 1971, when her husband was alive. Furthermore, the Courts below observed, that, in the document – Ex.B-1, it has been mentioned as Kasipalayam Municipality. It is pertinent to mention, in this context, that, in the year 1971, only Kasipalayam Panchayat was in existence, which was later converted to Kasipalayam Municipality. Taking note of all the above discrepancies and the evidences, the Courts below have arrived at a finding of fact that the defendants have not proved the document – Ex.B-1.
19. As discussed earlier, apart from the factual aspects, in respect of stamp papers purchased in the year 1971 and used for execution of the document – Ex.B-1 in the year 1975 and several other discrepancies, the released deed – Ex.B-1 has not been proved. Besides, the document – Ex.B-1 cannot be construed to be a release deed, as it has not been registered as per Section 17 (1) (b) of the Registration Act.
20. The Courts below have arrived at the findings of facts, which are based on the material available on record and not perverse. In view of the above findings, the substantial question of law is answered against the appellants and in favour of first respondent.
21. Second Appeal is, therefore, dismissed. No costs. Consequently, the connected M.P.No.1 of 2007 is closed.
