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TMI Blog2022 (1) TMI 1359X X X X Extracts X X X X X X X X Extracts X X X X ..... , first and second Defendants and late Marimuthu have one-fourth share each in the joint family properties. That Periyaiya Servai through his first wife, Veeramakali Ammal (since deceased) had four daughters and a son, being the first Defendant, namely, P.R. Ramasamy. Through his second wife, Kaliammal, Periyaiya Servai had two sons, being second Defendant, namely, P.R. Kasilingam and Marimuthu. Second Defendant's son, K. Arumuga Velaiya is the Plaintiff. (ii) According to the Plaintiff, Periyaiya Servai had executed a registered will dated 26th January, 1994, in favour of the Plaintiff in relation to his share of the properties of the joint family. Thus, the joint family properties had to be divided into four shares of which the Plaintiff was entitled to one share, bequeathed in his favour by his grandfather, Periyaiya Servai under the will. Further, Poomayil, on the death of her husband Marimuthu had bequeathed his share in the property to the first Defendant. Hence the first Defendant has become entitled to half share in the joint family property and the remaining half has to be equally divided between the second Defendant and the Plaintiff. That the first Defendant sent a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd ill health of his father tried to acquire properties of late Poomayil. O.S. No. 347 of 1991 was filed in the name of Periyaiya Servai, on the file of the District Munsiff Court, Devakottai, on false and frivolous grounds. In that suit he had shown joint family properties as independent properties of late Periyaiya Servai and stated that the said properties were purchased out of the personal income of Periyaiya Servai. In that suit, the possession and enjoyment of the joint Hindu family ancestral properties by late Periyaiya Servai and his brother, as also the partition between them was suppressed. It was further suppressed in the said suit that in the year 1964 a partition took place before the panchayatdars and the partitioned properties were enjoyed by late Periyaiya Servai, the first and second Defendants and Marimuthu. In the aforementioned suit, the widow of Marimuthu, Poomayil also contested but the District Munsiff Court, without taking into consideration the said partition held that the properties were undivided ancestral joint family properties. Aggrieved by the same the second Defendant preferred an appeal in A.S. No. 37 of 1993. Late Poomayil had also filed a cross ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition was heard, Periyaiya Servai died and the same was dismissed as not pressed by the first Defendant. (viii) That the plaint in the instant suit was filed with a view to extort monies from the first Defendant. The first Defendant prayed before the Trial Court that the suit for partition and separate possession filed by the Plaintiff be dismissed. 5. The District Munsiff Court, Devakottai by its judgment and decree dated 7th April, 2005 dismissed the suit being O.S. No. 101 of 2004. The salient findings of the Trial Court are as under: (i) The Trial Court noted that the Defendant had filed O.P. No. 7 of 1992 on the file of the District Munsiff Court, Devakottai praying for a declaration that the partition deed stated to be executed in the year 1964 between Periyaiya Servai, the Defendants and Marimuthu was invalid. The said suit was decreed as prayed for, with a declaration to the effect that the partition deed stated to be executed in the year 1964 was an unregistered document and therefore, invalid. (ii) The Trial Court also noted that in O.S. No. 347 of 1991 filed by Periyaiya Servai, the District Munsiff Court, Devakottai decreed that out of the properties belonging t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying kist in connection with their respective properties. In the circumstance, the first appellate court held that the fact that the Defendants had not obtained pattas individually for their respective shares in the suit properties, could not result in a conclusion that Periyaiya Servai had not partitioned the suit properties in favour of his sons. ii) That the kist receipts paid by the first Defendant from the year 1964, in relation to his share of the suit properties led to the conclusion that the first Defendant was enjoying the properties allotted to him by way of the partition effected in the year 1964. iii) Since partition was effected between Periyaiya Servai and his sons in the year 1964, whereby the suit Schedule properties were divided among the first and second Defendants and late Marimuthu, and no property was apportioned in favour of Periyaiya Servai, he had no right to execute a will subsequently, in relation to the suit properties. Therefore the will dated 26th January, 1994 is not a valid document. iv) That the Plaintiff could not claim title over one-fourth share of the suit properties on the basis of the will dated 26th January, 1994 and therefore the Trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i. K.K. Mani, learned Advocate for Respondents and perused the material on record. 9. Learned Counsel for the Appellant-Plaintiff at the outset contended that the High Court as well as the courts below were not right in dismissing the suit filed by the Appellant-Plaintiff by holding that there was a prior partition between the parties in the year 1964 and hence the instant suit for partition and separate possession was not maintainable. Elaborating the said contention it was submitted that the so called partition of the suit Schedule properties in the year 1964 was as per an award. The said award was not registered as per Section 17(1)(e) of the Registration Act, 1908 (hereinafter referred to as "the Act" for the sake of brevity). Section 49 of the Act was also pressed into service to contend that in the absence of registration of the arbitration award effecting the partition between members of the family, the award does not have any validity in the eye of law and hence it is not binding on the parties. Since the said award had no effect in law, the family continued to remain joint and the suit Schedule properties were joint ancestral properties. Hence, the suit for partition file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Per contra, learned Counsel for the Respondents supported the impugned judgment of the High Court to contend that registration of the arbitral award making a partition between the parties was not compulsory. It was urged that partition of joint family properties is not a transfer inter vivos. A partition only crystallises the share of the coparceners in the joint family or ancestral properties. That so long as the parties are not allotted shares pertaining to specific assets under a partition deed such a document does not create any right, title or interest in any specific property as such. Therefore, registration of the arbitral award in the instant case as such is not a mandatory requirement. 14. Alternatively, it was contended that the finding of the first appellate court in A.S. No. 37 of 1993, regarding the partition and division of the ancestral joint family properties in the year 1964 has attained finality. The said finding is binding on the parties. Hence a fresh suit seeking partition and separate possession of the properties was not at all maintainable. This is because the aforesaid finding shall be presumed to be accepted by the parties as there has been no challenge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff Court, Devakottai by Periyaiya Servai for declaration of title and permanent injunction, wherein all the suit properties had been shown as joint family properties. Against the dismissal of the said suit a preliminary decree was passed granting one-fourth share to the Plaintiff therein in A.S. No. 37 of 1993 preferred against the dismissal of the suit. (d) In A.S. No. 37 of 1993 it was held that the suit properties were joint family properties and in the year 1964 there was a partition between the members of the joint family. The said judgment was not assailed by any of the parties. (e) However, the Appellant herein instituted a fresh suit being O.S. No. 101 of 2004 on the file of the District Munsiff Court, Devakottai which was dismissed, against which A.S. No. 38/2005 was filed before the Subordinate Judge, Devakottai wherein it was observed that the finding given in A.S. No. 37 of 1993 to the effect that there was a partition in the family in the year 1964, had attained finality. (f) Aggrieved by the dismissal of the appeal, second appeal being S.A. No. 92 of 2007 was filed before the Madurai Bench of the Madras High Court, which has also dismissed the same by the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, document exhibit D-4 considered therein was held to be 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 date of the instrument vide Nanni Bai v. Gita Bai, [1959] 1 SCR 479. The said judgment is not applicable to the facts of this case. b) In Satish Kumar and Ors. v. Surinder Kumar and Ors., [1969] 2 SCR 244, a similar question on registration of an award for partition of joint family property being compulsory Under Section 17(1)(b) read with Section 49 of the Act was emphasised. In that case an award for partition was made under the Arbitration Act, 1940 and the question was whether such an award on a private reference required registration if the award effected partition of immovable property exceeding the value of Rs. 100. The majority (2:1) held that an award made by an arbitrator which affected right, title or interest of the value of more than Rs. 100 in immovable property would require registration. However, it was held that the filing of an unregistered award Under Section 49 of the Act is not prohibited; what is prohibited is that it cannot be taken into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. In doing so, this Court took into consideration Section 17(1)(e) of the Act as well as Sections 23, 25 and 49 of the Act. Further, reliance was placed on a decision of the Division Bench of the Madras High Court in Ramaswamy Ayyar and Anr. v. Tirpathi Naik, ILR 27 Mad 43, wherein it was observed that it is necessary to read a document in order to ascertain, not what the document intends to convey really but what it purports to convey. In other words, it is necessary to examine not so much what it intends to do, but what it purports to do. It was further observed in paragraph 14 as under: 14. The real purpose of registration is to secure that every person dealing with the property, where such document requires registration may rely with confidence upon statements contained in the register as a full and complete account of all transactions by which title may be affected. Section 17 of the said Act being a disabling section, must be construed strictly. Therefore, unless a document is clearly brought within the provisions of the section, its non-registration would be no bar to its being admitted in evidence. Reliance was also placed on Ratan Lal Sharma v. Purushottam Harit, [197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immoveable properties and therefore does not fall within the mischief of Section 17(2) (sic) (Section 17(1)(b)?) of the Registration Act and is, therefore, not compulsorily registrable; (5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld, and the Courts will find no difficulty in giving assent to the same; (6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement. After reviewing severa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition qua Clause (vi) can, on the basis of the aforesaid discussion, be summarised as below: (1) Compromise decree if bona fide, in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration, would not require registration. In a converse situation, it would require registration. (2) If the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs. 100 or upwards in favour of any party to the suit the decree or order would require registration. (3) If the decree were not to attract any of the clauses of Sub-section (1) of Section 17, as was the position in the aforesaid Privy Council and this Court's cases, it is apparent that the decree would not require registration. (4) If the decree were not to embody the terms of compromise, as was the position in Lahore case, benefit from the terms of compromise cannot be derived, even if a suit were to be disposed of because of the compromise in question. (5) If the property dealt with by the decree be not the "subject- matter of the suit or proceeding", Clause (vi) of Sub-section (2) would not operate, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriyaiya Servai and the consent statement given by P.R. Ramaswamy and P.R. Kasilingam, the two major sons of Periyaiya Servai. There are details as to how the properties had to be dealt with. The parties had also stated that they had read the above resolution and had agreed wholeheartedly to obey the provisions thereof. For a better appreciation of the nature of the award passed by the panchayatdars, it would be useful to extract Annexure P-10 as under: RESOLUTION PASSED BY THE PANCHAYATDARS. ON 20TH DAY OF THE MONTH OF PANGUNI OF TAMIL SOBAKRITHU YEAR IN REGARD TO PARTITION BETWEEN THE THREE SONS OF M. PERIYAYYA SERVAI VIZ. (1) RAMASAMY, (2) KASILINGAM AND (3) MARIMUTHAN. DETAILS The said M. Periyayya Servai had two wives 1) Veerayakli-First Wife 2) Kaliyamma-Second Wife The Son born through first wife is Ramasamy. The Sons born through second wife are Kasilingam and Marimuthan. We have passed the following Resolutions on the strength of the statement given by the said M. Periyayya Servai in front of us and the consent statement given by Ramasamy and Kasilingam, after perusal of the above statement. DETAILS OF RESOLUTIONS 1. The nanjai, punjai and accessories viz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght over the aforesaid sum of Rs. 3,000/-. 7. It is further RESOLVED that the Savukkai house along with the fenced compound shall be given to Periyayya and to leave the two properties viz. one comprised in S. No. 181/1 measuring 1.40 cent and another house comprised in giving him the right to deal with the properties as he may desire. It is also RESOLVED to give him a cart and two bullocks for his use besides a cow for meeting his requirement for milk. 8. In his statement Periyayya had stated that a sum of Rs. 1,000/- or land equal to its value shall be given to his sister Lakshmi. We, the Panchayatdars, have today RESOLVED that a sum of Rs. 1,000/- or land equal to its value ought to be given to the said Lakshmi. 9. As is found in the statement that in order to give a house to Karuvarividan of Sathamangalam, it is RESOLVED that the lower layer of the first farm shall be given to the above person. There is no time for performing charitable activities for the three partners. It has been decided that the three shares in the same can hereafter be done together under the supervision of Ramasamy. 10. As found in the statement of Sri. Periyayya Servai, wherein it has been written ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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: xxx xxx xxx (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; xxx xxx xxx (2) Nothing in Clauses (b) and (c) of Sub-section (1) applies to: xxx xxx xxx (v) any document other than the documents specified in Sub-section (1A) not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest. 24. Having regard to the aforesaid provisions of law it can be safely concluded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e suit properties were partitioned in the year 1964 is binding on the parties and hence a fresh suit filed by the Plaintiff seeking the very same relief was not maintainable. In A.S. No. 37, on considering the oral and documentary evidence on record it was opined as under: From his evidence it is clear that there is a partition in the year 1964 and the list of the apportionment and they have also written a Muchallikka before the panchayat. It is undoubtfully known that since there was a joint possession, the partition was effected to the Plaintiff's 3 sons in 1964 by Plaintiff by accepting that the suit properties were joint properties, it is not right on the part of the Plaintiff to claim that the properties are his individual, self-acquired properties and it is also unbelievable. This finding is sought to be questioned before us by placing reliance on a judgment of the Apex Court in Asrar Ahmed v. Durgah Committee, Ajmer AIR 1947 PC 1 to contend that the plea of res judicata does not arise in the instant case. We have perused the same. Learned Counsel for the Appellant placed heavy reliance on this judgment contend that when a finding has been given by a lower court based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s judicata, for a Rule of procedure cannot supersede the law of the land. b) In Mohanlal Goenka v. Benoy Kishna Mukherjee (AIR 1953 SC 65), the second round of litigation was admittedly in respect of same property and between the same parties, after the earlier litigation had attained finality even up to the stage of execution. It was held that later on the judgment debtor was precluded from raising the plea of jurisdiction in view of principles of constructive res judicata. In Paragraph 23 it was as under: 23. There is ample authority for the proposition that even an erroneous decision on a question of law operates as 'res judicata' between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as 'res judicata. c) In State of West Bengal v. Hemant Kumar Bhattacharjee (AIR 1966 SC 1061), the main issue related to the Special Court to try a Criminal offence, in as much as an incorrect decision cannot be equated with a decision rendered without jurisdiction. Even a wrong decision can be superseded only through appeals to higher tribunals or Courts or through review, if provided by law. 31. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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