plaintiff could have filed a suit for the relief of declaration that he is not bound by the registered partition deed dated 31.03.2004 under Ex.A3 as he is not a party therein. - suit on 2008 barred by limitation

Madras High Court

T.Bai Ammal vs T.Sampath on 8 July, 2011

      
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 08.07.2011

CORAM:

THE HON'BLE MR.JUSTICE T.MATHIVANAN

A.S.No.918 of 2010


1.T.Bai Ammal
2.T.Sankar
3.T.Parthasarathy
4.K.Kalaimani
5.L.Bhuvaneswari						....  Appellants 
  					
Vs.

T.Sampath							.... Respondent

								
Prayer : Appeal filed under Section 96 of the Code of Civil Procedure, against the Judgment and Decree dated 28.04.2009 and made in O.S.No.2055 of 2008, on the file of the learned VI Additional Judge, City Civil Court, Chennai. 

	For Appellants     : Mr.V.Balaji
             
	For Respondent     : Mrs.G.Gokulavani

*****





J U D G M E N T

Being dissatisfied with the Judgment and Decree dated 28.04.2009 and made in O.S.No.2055 of 2008, on the file of the learned VI Additional Judge, City Civil Court, Chennai, the defendants 1 to 5 have preferred this appeal after invoking the proviso to Section 96 of the Code of Civil Procedure.

2. The facts, which giving rise to the memorandum of appeal may be summarised as under:

The original legal characters of the parties to the suit may not be changed and be it as it is in the suit.

2.1. The suit is filed by the plaintiff:

(a) for the relief of partition and separate possession of 1/6th share in the suit property and allot such 1/6th share to the plaintiff after dividing the suit property by metes and bounds by appointing an Advocate Commissioner and put the plaintiff in possession of his respective share,

(b) for the consequential permanent injunction restraining the defendants from dealing with the suit property including effecting any form of alienation or encumbrance, and

(c) for passing a final degree in terms of the preliminary degree and for costs.

2.2. One Mr.Thiyagarajan is the father of the plaintiff and husband of the first defendant. The other defendants are the brothers and sisters of the plaintiff. Originally, the suit schedule property was allotted to Mr.Thiyagarajan through a partition deed dated 14.08.1977 executed between his brothers and sisters. The plaintiff's father had permitted him to carry on business in the front portion of suit premises and as such he has been in occupation of that portion. Mr.Thiyagarajan had passed away on 22.07.1986, leaving the plaintiff and the defendants as his legal heirs. The suit property is the ancestral property and hence the plaintiff and the defendants are each entitled to 1/6th share.

2.3. When the matter stood thus, the plaintiff was put to understand that the defendants had executed a deed of partition without his knowledge and consent. The alleged deed of partition will not bind on him as he has not admitted and acknowledged it. The plaintiff has therefore not sought to set aside the deed of partition. Without partitioning the suit property, the defendants have now started to construct and alter the structure of the suit property. Hence, the plaintiff was caused to issue a legal notice to the defendants on 22.02.2008 demanding partition. Though a reply was received from the third defendant, the request of the plaintiff was not heeded.

3. The third defendant had filed a written statement on behalf of other defendant, in which they had contented that the suit is not maintainable in law as the plaintiff has not sought for the cancellation of registered partition deed dated 31.03.2004. The partition deed dated 31.03.2004 was accepted and acted upon and as such the partition which was setup already cannot be reopened. In fact, in the front portion, the first defendant has been carrying on Tea Stall for her livelihood and therefore it is false to state that the plaintiff was permitted by his father to carry on business in the front portion.

4. After the demise of the father Mr.Thiyagarajan, the family members had agreed to divide the properties by way of partition. The plaintiff had also given consent for the partition. Based on his consent, the deed of partition was prepared and given to the plaintiff for his approval. However, the plaintiff had left the city for his personal reason.

5. That on 31.03.2004 the registration of partition deed was fixed. On that day, the plaintiff did not come to the Sub-Registrar's Office. Left with no other option, the said partition deed was registered and the appropriate share was also allotted to the plaintiff. Virtually, the plaintiff is residing in the portion allotted to him under the partition.

6. The suit has been filed belatedly that too after the lapse of four years and hence the suit is hopelessly barred by limitation. Now all the heirs of the deceased G.Thiyagarajan have been occupying and enjoying their respective shares allotted to them under the partition deed. There is no legal prohibition for carrying out the construction activities in the shares allotted to them. The suit is not properly valued and the trial Court is not having pecuniary jurisdiction to entertain the suit.

7. Based on the pleadings of the parties to the suit, the trial Court had formulated as nearly as four issues for the better adjudication of the suit. They are:

i. Whether the plaintiff is entitled for partition? If so what is the ratio?

ii. Whether the suit is maintainable without setting aside the partition deed dated 31.03.2004?

iii. Whether the plaintiff is entitled to get injunction prayer?

iv. To what other relief the plaintiff is entitled to?

8. In order to substantiate their respective cases, the parties to the suit were put on trial. The plaintiff had himself examined as PW1 and during the course of his examination Exs.A1 to A7 were marked. On the other hand, the third defendant Mr.T.Parthasarathy had examined himself as DW3 and during the course of his examination Ex.B1 alone was marked.

9. On appraising the evidences on record the Trial Court had found that:

(a) Once the partition deed dated 31.03.2004 (Ex.A4) is not signed by the plaintiff, it is not binding on him,

(b) The plaintiff need not to seek a prayer for cancellation of the partition deed dated 31.03.2004 (Ex.A3) as it is void-ab-initio,

(c) It is admitted by both sides that the plaintiff is also running an industry in the front portion, and that being so, he is one of the co-sharer,

(d) The character of the property is admitted by the parties to the suit. The deceased Thiagarajan, who is the husband of the first defendant and the father of the plaintiff and other defendants had obtained the property through a partition effected between his brothers and sisters,

(e) After the amendment of Hindu Law in the year 2005 even the first defendant being he wife of deceased Thiagarajan is entitled to get equal share, and

(f) Hence, the plaintiff and the defendants are entitled to get 1/6th share each in the suit schedule property.

10. Challenging the Judgment and decree dated 28.04.2009, the defendants have approached this Court by way of this appeal.

11. Heard both sides.

12. The present appeal can be decided on the following three points:

i. Whether the suit in O.S.No.2055 of 2009 seeking the relief of partition is not maintainable as the plaintiff has not sought for the cancellation of the earlier registered partition deed dated 31.03.2004?

ii. Whether the claim of partition of 1/6th share by the plaintiff is maintainable as he has been allotted 271 sq.ft., in the earlier partition deed dated 31.03.2004, which is more than the required extent of 216 sq.ft. to constitute 1/6th share?

iii. Is it correct to say that the suit is barred by limitation as the suit was filed on 31.03.2008 after the lapse of four years from 31.03.2004 on which date the deed of partition (Ex.A3), which is in dispute in the present suit was registered?

Point Nos.1 and 2:

13. The first defendant is the mother, whereas the plaintiff and the other defendants are brothers and sisters. One Mr.Thiyagarajan is their father and he got the suit property through a registered partition deed dated 14.08.1974 executed between his brothers and his sisters, which was registered under document No.1379 of 1974. He had passed away on 22.07.1986 leaving behind the plaintiff and the defendants as his legal heirs. These are all admitted facts.

14. After the demise of their father Mr.Thiyagarajan, as per the case of the defendants, a family arrangement in respect of the suit property was made and in accordance with that family arrangement a partition deed was executed on 31.03.2004 and registered on the same day itself. This has been vehemently objected by the plaintiff.

15. The plaintiff would state that since he was not a party to the above said partition deed, it would not bind upon him and hence he has sought for a fresh partition in respect of his 1/6th share in the suit property. What the defendants would contend is that the suit, without seeking of cancellation of registered partition deed dated 31.03.2004, is not at all maintainable and liable to be dismissed. Now the core question to be decided is as to whether the suit is not maintainable as the plaintiff has not sought for the cancellation of the earlier partition deed dated 31.03.2004?

16. The plaintiff, in his cross-examination, would depose that he was permitted, in writing, by his father to carry on business in the front portion of the suit property and as such he has been using that portion. He has also deposed that after the demise of his father, he has been enjoying the property along with the defendants and since the suit property is the ancestral property, he himself and the defendants are each entitled to 1/6th share in the suit property. The certified registration copy of the partition deed dated 31.03.2004 was marked as Ex.A3.

17. The plaintiff has also deposed that without partitioning the suit property by metes and bounds, the defendants had started construction in the suit property and therefore he was constrained to issue a legal notice under Ex.A1 dated 22.02.2008, to the defendants, demanding of partition in respect of 1/6th share in the suit property.

18. From the cross-examination of PW1, it is revealed that even prior to the partition deed dated 31.03.2004, an oral arrangement was made in respect of the suit property, which culminated into the execution of settlement deed, but it was not accepted by the members of the family. He has admitted that the date of the disputed partition under Ex.A3 is 31.03.2004, but he has deposed that he did not sign in the partition deed. As seen from his cross-examination, the total extent of the property is 1200 sq.ft., and of which he had claimed 1/6th share. The actual extent of 1/6th share measures 216 sq.ft., and that on the basis of Ex.A3 registered partition deed 271 sq.ft., was allotted to him. This has also been admitted by PW1. Apart from this, he has also admitted that in Ex.A3, the value of 271 sq.ft., had been mentioned as Rs.10,00,000/-.

19. It is significant to note here that under the disputed partition deed (Ex.A3) the property specified in the A-schedule has been allotted to the plaintiff. As disclosed from the A-schedule, 271 sq.ft., has been allotted to the plaintiff, which has been valued as on date of execution of partition deed at Rs.10,00,000/-. As discussed above, this has been admitted by PW1. It is pertinent to note here that the portion, which has been occupied by PW1 comes under the A-schedule, allotted to the plaintiff and this fact has also been admitted by him in his cross-examination.

20. On the other hand, the third defendant, who had himself examined as DW1 would depose that the first defendant, who is their mother, had informed to the plaintiff about the proposal of the partition deed and that the plaintiff had also given consent for effecting partition and only based on the consent a partition deed was prepared and given to him for approval. However, he had left the city for his personal reason.

21. Further, the third defendant (DW1) has also deposed that on 31.03.2004 the deed of partition was prepared including the plaintiff's name and though he was informed about the preparation of partition deed, the plaintiff did not come to the Sub-registrar's Office. Left with no other option, the said partition deed was registered and the appropriate share was also allotted to the plaintiff. It is worthwhile to mention that the plaintiff has been residing in the portion allotted to him under the said partition deed.

22. From the testimonies of PW1 and DW1, it transpires that the plaintiff was aware of the registration of partition deed on 31.03.2004, in which A-schedule property was allotted to him, which encompasses the portion, in which he has been presently in occupation. Under this circumstance, the plaintiff has not assigned valid reasons as to what accelerated him to come forward with this suit with a prayer of fresh partition in respect of 1/6th share in the suit property. This question has not been satisfactorily answered by the plaintiff. It is also relevant to note here that PW1, in his cross-examination, has admitted that the third defendant, in his reply under Ex.A2, has stated that the partition deed was prepared only after having consultation with him. On the other hand, DW1 has also admitted in his cross-examination that the plaintiff had not signed in Ex.A3 partition deed and that the consent given by the plaintiff was only oral and no document was available to prove the consent of the plaintiff.

23. It is the case of the defendants that without seeking cancellation of the earlier partition deed registered on 31.03.2004, the suit for effecting another partition is not maintainable. This contention was turned down by the trial Court.

24. Under this circumstance, it may be quiet relevant to refer the proviso to Section 31(i) of the Specific Relief Act, 1963. It enacts as under:

31. When cancellation may be ordered.- (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable: and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

25. Section 31 of the Specific Relief Act, 1963 contemplates that the Court may, in its discretion, so adjudge it and order a document to be delivered up and cancel and have it declared void and voidable against any person, who has reasonable apprehension that such instrument if left outstanding may cause him serious injury and in such case the Court has a discretion to declare the status of right of such person.

26. On coming to the instant case on hand, it is apparent from the testimonies of PW1 and DW1, that PW1 had not signed in Ex.A3 partition deed. The other sharers are not alien to plaintiff, but they are his kith and kin and apart from this the first defendant is his own mother. The defendants have not denied the fact that the plaintiff is also having a share in the suit property. As adumbrated supra, he has also been allotted sufficient share more than the required extent of 1/6th share.

27. Under this circumstance, this Court is of view that the partition deed under Ex.A3 need not be set aside or cancelled. But, how the document under Ex.A3 could be characterised? This is another question, which is arisen under this circumstance. Ex.A3 cannot be termed as a void document by merely non-signing of the plaintiff, but it could be termed as voidable one and the mistake which is crept could be rectified by the conduct of the parties to the document and therefore as decided in Yanala Malleshwari v. Ananthula Sayamma, AIR 2007 AP 57 at 69 even if the plaintiff is not a party to the partition deed under Ex.A3, he can maintain a suit for declaration that the said partition deed under Ex.A3, which is under dispute, is null and void. But, he has not sought for any such relief here.

28. The learned counsel for the appellants, while advancing his arguments, has placed reliance upon the decision in Prem Singh and Others vs. Birbal and Others, (2006) 5 SCC 353 in support of his contention. In this case, at Paragraph No.20, the Division Bench of the Apex Court has held that:

"20. If the plaintiff is in possession of a property, he may file a suit for declaration that the deed is not binding upon him but if he is not in possession thereof, even under a void transaction, the right by way of adverse possession may be claimed. Thus, it is not correct to contend that the provisions of the Limitation Act would have no application at all in the event the transaction is held to be void."

In Paragraph No.27, it has been held that:

"27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption."

29. The learned counsel for the respondent has vehemently objected the contentions raised on behalf of the appellants. The learned counsel has also placed reliance upon the same decision cited by the learned counsel for the appellants viz., Prem Singh and Others vs. Birbal and Others, (2006) 5 SCC 353 and submitted that Ex.A3 had to be discarded as void ab initio because it was never shown to the plaintiff at the time of execution and registration. In the above cited case, it is held that:

"When a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non-est in the eye of law, as it would be a nullity. It refers to both void and voidable document. It provides for a discretionary relief."

30. This Court has carefully gone through the above cited decision. It is to be borne in mind that the facts of each and every case will definitely vary from other.

31. In support of her contentions the learned counsel for the respondent has also placed reliance upon the decision in Mt.Anantia vs. Ramlagan Singh and Ors., reported in AIR 1953 Pat 306. In this case a single judge of Patna High Court has held that;

"as a result of fraud alleged in the plaint against the mortgagee the decree and sale is a nullity in the eye of law and no declaration is needed for avoiding such a decree and sale."

It is also held that the documents which is nullity does not require to be set aside or cancelled.

32. In order to emphasis the same view the learned counsel for the respondent has also placed reliance upon the following decisions;

1. Ganesh Chandra Bag vs. Rashbehari Chakrabarti and Ors., reported in AIR 1978 Cal 486,

2. The Commissioner of Central Excise, Guntur vs. M/s. Kineta Minerals and Metals Ltd.,

3. Jaswant Singh and two Ors., vs. Board of Revenue and Ors. reported in 1984 WLN 608,

4. Sanjay Kaushish vs. D.C.Kaushish and Others, reported in AIR 1992 Delhi 118.

33. Apart from this the learned counsel for the respondent has also made reference to Section 23(A) of Registration Act with regard to the re-registration of the documents. If at all Ex.A3 is to be re-registered, the aggrieved person claiming under such document may, within four months from his first becoming aware that the registration of such document is invalid, present such document or cause the same to be presented, in accordance with the provisions of Part VI for re- registration in the office of the Registrar.

34. In support of her contention she has also placed reliance upon the decision in Yanala Malleshwari And Ors. vs. Ananthula Sayamma And Ors., reported in AIR 2007 AP 57. It is pertinent to note here that this decision has already been relied upon by the learned counsel for the appellants in support of his case. However in paragraph No.61 of the above said Judgment it is observed as follows;

"Re-registration of certain documents:- notwithstanding anything to the contrary contained in this Act, if in any case a document requiring registration has been accepted for registration by a Registrar or Sub-Registrar from a person not duly empowered to present the same, and has been registered, any person claiming under such document may, within four months from his first becoming aware that the registration of such document is invalid, present such document or cause the same to be presented, in accordance with the provisions of Part VI for re-registration in the office of the Registrar of the district in which the document was originally registered; and upon the Registrar being satisfied that the document was so accepted for registration from a person not duly empowered to present same, he shall proceed to the re-registration of the document as if it had not been previously registered, and as if such presentation for re-registration was a presentation for registration made within the time allowed therefor under Part IV, and all the provisions of this Act, as to registration of documents, shall apply to such re-registration; and such document, if duly re-registered in accordance with the provisions of this section, shall be deemed to have been duly registered for all purposes from the date of its original registration".

35. In the present case no evidence is adduced on behalf of the plaintiff that the defendants have acted with malafide intention or with ulterior motive to cause injury to the rights of the plaintiff. On careful perusal of the above cited decision this Court is of view that it is in favour of the case of the defendants and not lending a helping hand to the case of the plaintiff.

36. In sofar as this case is concerned, Ex.A3 partition deed has been validly registered. Since the partition deed being a registered document, prima facie it would be valid in law. On a combined study of the testimonies of PW1 and DW1 and the other materials, it has been brought into light that the plaintiff was well aware of the execution of the partition deed under Ex.A3. Probably he may not have signed in the partition deed, for that reason alone the said partition deed under Ex.A3 cannot be brushed aside as invalid. But, it is apparent that the plaintiff has been allotted a sizeable share, which is more than the required extent towards his 1/6th share. Therefore, if at all the plaintiff wanted to assail the document under Ex.A3, he could have filed a suit for declaration that the said document is null and void and it will not bind upon him.

37. The learned counsel for the defendants has also placed reliance upon another decision in Vadde Sanna Hulugappa, s/o.Hanumanthappa and others v. Vadde Sanna Hulugappa, s/o. Siddappa and others, AIR 1998 Karnataka 325. In this case, the plaintiffs filed the suit for partition and separate possession of their 2/3rd share in the suit schedule property. The suit was dismissed by the trial Court. The first appeal preferred by the plaintiffs was also dismissed after confirming the Judgment and Decree of the trial Court. It must be borne in mind that both the trial Court and the first appellate Court have come to the conclusion that the plaintiffs are entitled to 2/3 share in the suit schedule property, but they dismissed the suit of the plaintiffs solely on the ground that the plaintiffs had not prayed for cancellation of the sale deeds executed by the first defendant in favour of the fourth defendant.

38. While penning down the Judgment, the learned single Judge of the Karnataka High Court has made reference to the decision in G.S.Bhosle v. R.S.Kulkarni, ILR 1985 (1) Karnataka 1115 : AIR 1985 Karnataka 143, in which it was held that in a suit for partition by a Hindu coparcener, it is not necessary to seek setting aside of alienation and it is sufficient to seek his share and possession with declaration that he is not bound by the alienations.

39. In the instant case on hand also, the contention of the plaintiff is that he is not bound by the registered partition deed dated 31.03.2004 under Ex.A3 as he had not signed. However, it is still valid as it has been registered by a competent authority of registration and as contemplated under Section 114 of the Indian Evidence Act, it may be presumed that the said partition is in existence and probably it may be a voidable one in sofar as the plaintiff is concerned. As rightly observed in the earlier decision, the plaintiff could have filed a suit for the relief of declaration that he is not bound by the registered partition deed dated 31.03.2004 under Ex.A3 as he is not a party therein.

40. In K.Jagannathan vs. A.M.Vasudevan Chettiar and 12 others, 2001 (2) CTC 641, which has also been relied upon by the learned counsel for the defendants, a minor member made co-nominee party to partition deed and represented by mother as guardian. Then the minor member filed the suit for partition ignoring earlier partition deed. In this circumstance, it was held that the suit was not maintainable as the minor should seek setting aside of such document. It is also held that the earlier partition cannot be reopened.

41. On coming to the instant case on hand, though the plaintiff has not signed in the partition deed under Ex.A3, as observed earlier, more than 1/6th share has been allotted to him under A-schedule property. It is to be reiterated that the plaintiff has also admitted this fact. Excepting the plaintiff, the other defendants have accepted the partition deed and it was also acted upon. The portion, in which the plaintiff has been presently in occupation has also been included in the A-schedule property, which was allotted to him under Ex.A3 and therefore the earlier partition deed under Ex.A3, dated 31.03.2004, need not be reopened, as the defendants have not acted against the interest and rights of the plaintiff.

42. Keeping in view of the related facts and circumstances and on considering the testimonies of PW1 and DW1 and the other documentary evidences in particular Ex.A3, this Court is of considered view that the suit for partition filed by the plaintiff is not maintainable as the earlier partition deed dated 31.03.2004 can not be reopened.

43. In sofar as the point No.2 is concerned, admittedly the plaintiff has been allotted 271 sq.ft., in the earlier partition deed dated 31.03.2004. It is absolutely more than the required extent of 216 sq.ft., which is equivalent to 1/6th share as claimed by the plaintiff. When the plaintiff is able to get more than his claim ie. more than 1/6th share, the question of another partition does not arise.

Point No.3

44. It is admitted fact that the partition deed which is under dispute was registered on 31.03.2004. Though the learned counsel for the respondent has vehemently disputed, it is established through the testimonies of PW 1 and DW 1 that the plaintiff was aware of the registration of the partition deed on 31.03.2004. If at all he wanted to file the suit for fresh partition, the cause of action for which could have been given by Ex.A3 which was registered on 31.03.2004. For the suit in such a nature no period of limitation is provided else where in the schedule of Limitation Act. Therefore, Article 113 of Limitation Act would be more preferable and appropriate to the present suit on hand.

45. Article 113 of the Limitation Act being the residuary article applies only if the suit does not come within the purview of any other article in the Limitation Act. In deciding whether this Article will apply, this Court can consider as to whether any other article is applicable before Article 113 of the Limitation Act could be held applicable. To experiment this test, it must be shown that the case is not covered by any other article in the Act. Hence, Article 113 of the Limitation Act prescribes that it will govern all those suits in which there is no prescribed period of limitation in this Act. As contemplated under Article 113 of the Limitation Act, the prescribed period is three years which is to commence from the date that the right to sue accrues.

46. The right to sue accrues for the plaintiff only on and from 31.03.2008, because he has strongly disputed the registration of the partition deed under Ex.A3. Since the suit is filed on 31.03.2008 definitely it is barred by limitation.

47. On careful appreciation of the evidences both oral and documentary and on considering the submissions made on behalf of both sides as well as the related facts and circumstances, this Court is of view that the appeal is liable to be allowed.

48. In the result, the appeal is allowed. The Judgment and decree dated 28.04.2009 and made in O.S.No.2055 of 2008 on the file of the Learned VI Additional Judge City Civil Court, Chennai are set aside and the suit in O.S.No.2055 of 2008 is dismissed. Consequently, connected miscellaneous petitions are closed. Considering the relationship of the parties to the suit there is no order as to costs.

krk To

1. The learned VI Additional Judge, City Civil Court, Chennai

2. The Section Officer, V.R.Section, Madras High Court