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TMI Blog2019 (10) TMI 1567X X X X Extracts X X X X X X X X Extracts X X X X ..... with law. In the absence of such registration and proper stamping, the document cannot be construed as valid. It is seen from the instrument itself that it was executed on 1.6.1994 and the Second Plaintiff has not signed it, though she figured as a party to the instrument. There are no Attestors also. As already concluded that the explanation offered by the Defendant for non-production of the original is unconvincing. Therefore, considered opinion that the Family Arrangement, dated 1.6.1994 cannot said to be a full fledged Family Arrangement brought about in the presence of the elders of the family in order to settle the disputes between the members of the family. The instrument, which results in relinquishment of share in a particular item of property by one of the members is not valid without being registered and duly stamped under law. Hence, thus issue is answered in favour of the Plaintiffs and against the First Defendant. It is not a case, where the Plaintiffs seek a Declaration of the title to the property or recovery of possession of the property alleging that a document, which confess title is invalid. It is a settled position of law that the relief of setting aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, the fact that the mother had contributed funds for the purchase of the property in the name of her son having been proved, we do not think that the claim of the First Plaintiff with reference to 'A' property could be said to barred by the provisions of the Prohibition of Benami Properties Transaction Act, 1988. Hence, this issue is answered in favour of the Plaintiff and against the First Defendant. Contention of the First Plaintiff that the said property was purchased in her name from and out of the Sale proceeds of the property of C.M. Sundararaj situate at Besant Nagar - As it is clear that though the property stands in the name of the First Plaintiff she was not the absolute Owner of the said property. Since the entire consideration for purchase of the said property came out of the estate of C.M. Sundararaj and therefore the Plaintiffs and the First Defendant would have an equal share in the Suit property. Therefore, Issue is answered in favour of the Plaintiffs and against the First Defendant. As regards the 'D' Schedule property - A perusal of the Plaint would show that the Plaintiff has sought for a Decree for Partition of the entire ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpath, Senior Counsel and V. Srikanth, Advocate For the Respondent : D. Krishnan, Advocate JUDGMENT R. Subramanian, J. 1 . The Suit in C.S. No. 422 of 2001 is for Partition and separate possession of the Plaintiffs 1/3rd share in the Plaint Schedule 'A' to 'D' properties and for a Declaration that the Family Arrangement, dated 1.6.1994 is void, ab initio and non-est. The Plaintiff had also sought for a Declaration that the sale made by the First Defendant of a portion of the Suit 'B' Schedule property is not binding on the Plaintiff and the Second Defendant and for other reliefs. 2. The relationship of the parties in the Suit is as follows: One C.M. Sundararaj died on 23.1.1979 leaving behind the Plaintiff/his wife, the First Defendant/son and the Second Defendant/daughter. Pending Suit, the Plaintiff died and the Second Defendant was transposed as the Plaintiff. 3. According to the Plaintiff, the Suit 'A' Schedule property that stands in the name of the First Defendant and it was allotted to him by the Tamil Nadu Housing Board. As regards the 'B' Schedule property, it is claimed that the property was assigned by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sundararaj, which is only pursuant to the said understanding. The Plaintiffs 1 2 namely, wife and daughter of Late C.M. Sundararaj had executed Affidavits expressing their consent for execution of Sale Deed in favour of the First Defendant. Therefore, the First Defendant had become the absolute owner of the 'B' Schedule properties. 6 . It is also the contention of the First Defendant that he was aged 18 years and the Second Defendant was aged 15 years in 1979, when then-father died. As regards the 'A' Schedule property is concerned, initial allotment was made on 8.2.1984 and ' 30,000 was paid as advance and the remaining amount was paid at ' 931 per month for 8 years. The only income that was available was the Rental Income of the 'B' Schedule property. The Sale Deed was executed on 3.11.1994, a portion of Schedule 'A' property namely, the undivided share was acquired by the Government and the Compensation was deposited into Court. The enhanced Compensation was paid to the First Defendant in the form of RBI Bonds worth ' 5,00,000 have been deposited in the custody of the Court. The First Defendant had also denied the claim of the Pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove pleadings, the following Issues were framed in the Suit as well as the Testamentary Original Suit: (i) Whether the property mentioned in 'A' Schedule to the Plaint has been purchased by the 1st Plaintiff from and out of the funds of the First Plaintiff and income from the 'B' Schedule property? (ii) Whether the 'B' Schedule property belonged to late C.M. Sundararaj, who died intestate and the Sale Deed executed in the name of the First Defendant by SIDCO in regard to 'B' Schedule property is in Trust on behalf of the other Legal Heirs of late C.M. Sundararaj viz., the Plaintiffs and 1st Defendant? (iii) Whether the Suit for Partition in respect of 'B' Schedule Suit property is maintainable without a, prayer to set aside the Sale Deed executed by SIDCO dated 2.3.1995 in favour of the First Defendant? (iv) Whether the property in 'C' Schedule has been acquired from and out of the sale proceeds of the Besant Nagar Property belonging to the late C.M. Sundararaj? (v) Whether the alleged Family Arrangement, dated 1.6.1994 got executed by the 1st Defendant is ab initio void and non-est in law for the reason that it was exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reatened her with dire consequences, if she went out of the house to consult a Lawyer or a Chartered Accountant. The First Defendant had also threatened the Plaintiff stating that being the only son, it is the First Defendant alone, who can take care of her and the properties. The Second Defendant/Second Plaintiff, being married daughter would not be able to take care of her of her at old age. Left without any other alternative, the Plaintiff was forced to comply with unjust and illegal demands of the First Defendant to sign the so called Family Arrangement prepared by the First Defendant. After having obtained the said instrument, the First Defendant was very happy and his behavior was also very normal for some time. He also executed a Settlement Deed in respect of the lands at Vada Perumbakkam namely, 'D' Schedule property in favour of the Plaintiff. (ii) The Plaintiff would claim that the document, dated 1.6.1994, which is styled as Family Arrangement is invalid for more than one reason. According to her, the document, being a document which creates an interest in presenti in immovable property, the same is void and unenforceable, as it is neither stamped in accordanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tten Statement, the First Defendant would claim that since Late C.M. Sundararaj died suddenly, both the Defendants 1 2 were at tender age, the elders in the family namely, father of the 1st Plaintiff/S. Dakshinamurthi Pillai and brothers of Late C.M. Sundararaj discussed the future plans and on 11.2.1980, a Family Arrangement was arrived in the presence of S. Dakshinamurthi Pillai/father of the Plaintiff, C.M. Rajendra Rao, C.M. Varadarajan, C.M. Seetharaman and C.M. Chandrasekaran/brothers of Late C.M. Sundararaj, N. Vinayagam and Dr. Kandasamy/sisters' husbands of the First Plaintiff. (v) As per the terms of the Family Arrangement, according to the First Defendant, he should undergo proper training and run the Factory by himself. He should also attend to the problems including the Court cases of the Factory. The Plaintiff should be informed about all the affairs of the factory and she would be in charge of the Financial matters. After the marriage of the Second Defendant, the Plaintiff and the Second Defendant should transfer their right over the 'B' Schedule property in favour of the First Defendant to confirm his ownership of 19-08-2023 the same. The flat at Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint out that both the 1st 2nd Plaintiffs have filed Consent Affidavits agreeing for the Sale Deed in respect of the 'B' Schedule property being executed in favour of the First Defendant and pursuant to the same, a said sale was also duly executed and registered on 2.3.1995. Mr. D. Krishnan would also point out that the deceased First Plaintiff and the husband of the Second Plaintiff have figured as identifying Witnesses to the said Sale Deed, dated 2.3.1995. All these, according to the learned Counsel, would show that the Family Arrangement, dated 1.6.1994 was really acted upon and the First Defendant had complied with the terms of the said Agreement. (x) Mrs. Chitra Sampath, learned Counsel appearing for the Second Plaintiff would also draw my attention to the Judgment of the Hon'ble Supreme Court in Sita Ram Bhama v. Ramvatar Bhma, 2018 (3) MWN (Civil) 206 (SC), wherein, the Hon'ble Supreme Court had held that on Memorandum of Family Arrangement which resulted in relinquishment of the rights of the Legal Heirs in the property of the deceased or the common Ancestor is compulsorily registrable and in the absence of registration and payment of appropriate Stamp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing their no objection for execution and registration of the Sale Deed in favour of the First Defendant. The same, in my 19-08-2023 opinion, amounts to relinquishment of whatever interest they had in the Suit 'B' Schedule property and such relinquishment cannot be by way of an unregistered instrument. Ex. P16 namely, the Family Arrangement shows that there are three parties to the same namely, the Plaintiffs 1 2 and the First Defendant, but the Second Plaintiff is not a signatory to the instrument. The Second Plaintiff was admittedly a major and she was married at the time of execution of Ex. P16. The explanation offered by the Defendant that the Second Plaintiff has manipulated to take a Xerox copy by concealing her signatures in Ex. P16 in unconvincing. A perusal of the document would show that it does not contain the signature of the Second Plaintiff. Though the document provides for two Witnesses, no Witness has signed. Therefore, the claim of the First Defendant that the Family Arrangement, dated 1.6.1994 is true and valid and acted upon does not merit acceptance. (xiv) It will be pertinent to point out at this juncture that the First Defendant himself had given u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e disputes between the members of the family. The instrument, which results in relinquishment of share in a particular item of property by one of the members is not valid without being registered and duly stamped under law. Hence, Issue No. 5 is answered in favour of the Plaintiffs and against the First Defendant. 13. Issue Nos. 2, 3 6: These issues are taken together since they relate to B Schedule property. B Schedule property, which is an industrial land was assigned to Late Mr. C.M. Sundararaj, father of the Second Plaintiff and the First Defendant under Ex. B3, dated 28.2.1974. It is also seen from Exs. P4 P5 that C.M. Sundararaj had Mortgaged the property to Small Industries Development Corporation. It is not in dispute that the conditions of the assignment, dated 28.2.1974 were complied with by C.M. Sundararaj even during his life time and the payments were made by him regularly. However, the Sale Deed in respect of the said Industrial land was executed during the life time of said C.M. Sundararaj. It is also not in dispute that the Sale Deed in respect of the 'B' Schedule property was executed by him. It is the further case of the parties that the Sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the 'B' Schedule property. The claim of the First Defendant that since he took over the liabilities of the family, the 'B' Schedule property was allotted to him has not been established by acceptable evidence. It is also seen from Exs. P51 to P55 Exs. P11, P12 P16, which are not in dispute that the deceased First Plaintiff acted as, Proprietor of the Chemiplant Fabrications, which was an Industry run by C.M. Sundararaj in the 'B' Schedule property between 1979 to 1994. Exs. P51 to P55 have emanated from Bharat Heavy Electricals Limited and the other documents namely, Lease Deeds i.e., Exs. P12 P61 are not disputed. The claim of the First Defendant that he had discharged the Mortgage Loan due to Small Industries Development Corporation is also belied by the admission of the First Defendant in his Written Statement wherein, he had stated as follows: So the outstanding of more than ' 2,00,000 to Small Industries Development Corporation remained unpaid. When Small Industries Development Corporation refused to re-allot the B Schedule property to this Defendant on the ground of unpaid Loan amount, the Plaintiff assured this Defendant that she woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39; Schedule property by the First Defendant will not bind the Plaintiffs. (vi) As regards the Issue No. 3, the defence raised by the First Defendant is that the Suit for Partition in respect of 'B' Schedule property is not maintainable without setting aside the Sale, dated 2.3.1995 under Ex. P18. Mr. D. Krishnan, learned Counsel appearing for the First Defendant would vehemently contend that the Sale under Ex. P18, dated 2.3.1995, being in favour of the First Defendant, the First Defendant is the absolute Owner of the property and therefore unless the sale is set aside, the Plaintiffs cannot maintain the Suit for Partition. I am unable to agree with the learned Counsel appearing for the First Defendant. It is the case of the Plaintiffs that though the Sale Deed was taken in the name of the First Defendant, the First Defendant holds in trust for the other heirs of C.M. Sundararaj. It is not a case, where the Plaintiffs seek a Declaration of the title to the property or recovery of possession of the property alleging that a document, which confess title is invalid. It is a settled position of law that the relief of setting aside the document would arise only in a case whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, according to her, though the Sale Deed of the 'A' Schedule property stands in the name of the First Defendant, it was actually purchased out of her own funds and the instalments were paid from the income of the 'B' Schedule property, which admittedly forms part of the estate of C.M. Sundararaj. (iii) Contending contra, the First Defendant would claim that he was 18 years old at the time when his father died and immediately after the death in 1980, the elders met and it was agreed that the First Defendant should undergo training and he should take over the business. Therefore, according to the First Defendant, he started earning in the year 1980. Therefore, according to him, he had paid the initial cost of ' 31,300 and the monthly instalments at ' 931 for the 'A' Schedule property out of his own income. In support of her claim that the monthly instalments payable for the 'A' Schedule property were paid from and out of the income from the 'B' Schedule property, the First Plaintiff would rely upon the Lease Deeds namely, Ex. P12, dated 1.11.1989 and Ex. P61 dated 31.1.1990 executed by the deceased First Plaintiff leasing out t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he copy of the Letter addressed by the First Plaintiff to the First Defendant, which was marked through the Second Plaintiff. In the said letter, she had specifically stated that she had sold her diamond and gold jewellery and had purchased the 'A' Schedule property in the name of the First Defendant. She has also complained that the First Defendant has not been repaying the Loans borrowed from Oriental Benefit Deposit Society. Ex. P31 is another Letter, dated 24.3.1999 wherein, the First Plaintiff has written to her 19-08-2023 brother-in-law complaining about the fact that the First Defendant had not repaid the monies payable to Oriental Benefit Deposit Society and others. She has also complained that the First Defendant is collecting the Rents from the tenants and he has not paid dues payable to Oriental Benefit Deposit Society. On 24.3.1999, the First Plaintiff had sent a telegram to her brother-in-law namely, Varadarajan complaining that the First Defendant is threatening to assault her. Similarly, in Exs. P32 to P36, the First Plaintiff had sent several Letters and Telegrams to the First Defendant either seeking Maintenance or complaining about his inaction in no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows: 2(9) Benami transaction means,-- (A) a transaction or an arrangement-- (a) where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; and (b) the property is held for the immediate or future benefit, direct or indirect, of the person, who has provided the consideration, except when the property is held by: (i) a Karta, or a member of a Hindu Undivided Family, as the case may be, and the property is held for his benefit or benefit of other members in the family and the consideration for such property has been provided or paid out of the known sources of the Hindu Undivided family; (ii) a person standing in a fiduciary capacity for the benefit of another person towards whom he stands in such capacity and includes a Trustee, Executor, Partner, Director of a Company, a Depository or a Participant as an Agent of a depository under the Depositories Act, 1996 (22 of 1996) and any other person as may be notified by the Central Government for this purpose; (iii) any person being an individual in the name of his spouse or in the name of any child of such individual and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of the allotment i.e., 8.2.1984, there is no evidence to show that the First Defendant was earning by doing business at the time of the said allotment. The only material produced by the First Defendant to show that he was doing some business is in the form of Exs. D6, D7 D8. From Ex. D6, it could be seen that the Firm namely, SJS Engineering Services was commenced only in the year 1987. Thus, there is total lack of evidence regarding the source of income for the First Defendant to have paid initial cost of ' 31,300 and also the subsequent monthly instalments. (iv) On the other hand, the documentary evidence available clearly shows that it was the First Plaintiff, who had paid the initial deposit of ' 31,300 as well as the monthly instalments at ' 931. In fact, even in the letter marked as Ex. P29 dated 23.9.1998, the, First Plaintiff had very clearly pointed out that the 'A' Schedule property was purchased out of her own monies and the income from the 'B' Schedule property. The available evidence very clearly indicates that the case of the Plaintiff that the property was purchased by her from and out of the income from the 'B' Schedule p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Loan, she was forced to sell the property. She had also complained about non-payment of the Mortgage Loan by the First Defendant in the Letters written by her i.e., Exs. P29 to 39. The very fact that the Plaintiffs have produced the original discharge receipts as well as the Passbook for the Loan account issued by Oriental Benefit Deposit Society would show that the part of the Sale consideration went towards repayment of the said Loan borrowed by the First Defendant for putting up construction in the 'B' Schedule property and the remaining amount was utilized for purchase of 'C Schedule property in the name of the First Plaintiff. (ii) In the light of evidence, it is clear that though the property stands in the name of the First Plaintiff she was not the absolute Owner of the said property. Since the entire consideration for purchase of the said property came out of the estate of C.M. Sundararaj and therefore the Plaintiffs and the First Defendant would have an equal share in the Suit property. Therefore, Issue No. 4 is answered in favour of the Plaintiffs and against the First Defendant. 18. Issue No. 7: As regards the 'D' Schedule property, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tend that the period of limitation being 3 years and once it is claimed that the document was brought about by coercion and undue influence, the Suit should have been filed within 3 years from the date of the document as the right to sue first accrues on the date of the document and not later. (ii) While deciding Issue No. 5, I have concluded that the Family Arrangement, dated 1.6.1994 is void as it was executed by the First Defendant under coercion and undue influence. The starting point of the limitation under Article 58 assumes importance. It does not say that the starting point of limitation to obtain a declaration with reference to a particular document is the date of the document. The starting point is when the right to sue first accrues. Though the document was executed in 1994, things were going well till about 1998 and it was only when the First Defendant showed his true colours and started illtreating the First Plaintiff, the First Plaintiff came to know the effect of the instrument executed by her. (iii) Mrs. Chitra Sampath, learned Counsel appearing for the Second Plaintiff would contend that the document being an inchoate instrument, which is admittedly not signe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts 1 2 in the Suit were also the Class-I Heirs of C.M. Sundararaj. Pending Suit, the First Plaintiff died. The Second Plaintiff, who was also the Class-I Heir of C.M. Sundararaj sought herself to be transposed as Second Plaintiff in the Suit and the same was allowed. The capacity in which the Second Defendant in the Suit sought for transposing herself as the Second Plaintiff is as the heir of C.M. Sundararaj, she is not claiming under the deceased First Plaintiff. (ii) As regards the Will left by the deceased First Plaintiff, the Executor had already taken steps for getting it prohibited and T.O.S. No. 33 of 2008 is already pending in this Court. Therefore, the question of Section 211 of the Indian Succession Act, operating as a bar for the claim of the Second Plaintiff cannot be accepted, in view of the fact that the Second Plaintiff claims interest in the property as Class-I Heir of Late C.M. Sundararaj, who died intestate. Therefore, the Second Plaintiff is well within her rights to prosecute the Suit as heir of C.M. Sundararaj. Hence, Issue Nos. 12 13 are also answered in favour of the Plaintiffs and against the First Defendant. 22. In the light of the answers to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lace of execution of the Will, the presence of PW1 at the time of execution, the non-mentioning of PW2 as scribe of the Will and the fact that PW2 has admitted that he has written the date of the execution. According to the learned Counsel, these circumstances though taken individually may not be a suspicious circumstance in order to reject the claim for grant of Probate but the cumulative effect of these circumstances would show that the execution of the Will is doubtful. Therefore, he would seek dismissal of the Suit. 25 . The Attesting Witness to the Will has been examined as PW2. He has deposed categorically to the effect that he had typed the Will and Mrs. Chandra Sundararaj, the Testator, signed in his presence and in the presence of the other Attesting Witnesses namely, P. Harikrishna. It is not as if the Attesting Witness is stranger to the family. He is the sister's son of Chandra Sundarsraj. Therefore, he is the Cousin of the First Defendant. The other Attesting Witness is his brother. Though PW2 has been crossexamined extensively, nothing has been brought about to discredit his evidence regarding the execution of the Will and the presence of PW2 and the other Atte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to type the Will and the same was typed by him. This evidence of PW2 has not been discredited in cross-examination. Therefore, I am of the considered opinion that the Plaintiff in T.O.S. No. 33 of 2008 has proved the Will. 28. Mr. V. Srikanth, learned Counsel appearing for the Plaintiff would also draw my attention to the Judgment of the Hon'ble Supreme Court in Daulat Ram and others v. Sodha and others, 2004 (5) CTC 790 (SC) : AIR 2005 SC 233, wherein, the Hon'ble Supreme Court had pointed out that once the propounder has discharged, the burden of proving the Will it is for the person, who alleges that it was obtained by undue influence or coercion or that it is forged to prove his claim. In the case on hand, there is no evidence much less substantial evidence on the side of the First Defendant to prove the so called suspicious circumstances as alleged by the First Defendant. 29 . In Gopal Swaroop v. Krishna Murari Mangal and others, 2010 (14) SCC 266, the Hon'ble Supreme Court has held that In the matter of proof of documents as in the case of the proof of Wills, it is idle to expect proof with mathematical certainty. The test to be applied always is the test ..... X X X X Extracts X X X X X X X X Extracts X X X X
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