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S. Thirumalai Vs. S. Govindarajan (Died) and Others - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberAppeal Suit (MD) No. 55 of 2002 & C.M.P. (MD) No. 7136 of 2016
Judge
AppellantS. Thirumalai
RespondentS. Govindarajan (Died) and Others
Excerpt:
code of civil procedure, 1908 section 96 indian stamp act section 33, section 35, section 36, section 38, section 61 code of criminal procedure, 1898 tamil nadu act 38 of 1987 section 33a suit for partition trial court dismissed suit for partition of specified share in suit properties, filed by plaintiff/appellant - court held alleged partition or on any subsequent date is not proved by defendant to satisfaction of court trial court failed to follow legal principles and settled law on legal implications of attestation and admissibility of document which was neither registered nor stamped subsequent conduct of plaintiff and defendant by enjoying suit properties in common would clearly prove case of plaintiff plaintiff/appellant was entitled to decree for partition .....(prayer: appeal suit filed under section 96 of civil procedure code, against the judgment and decree dated 06.11.2001 made in o.s.no.120 of 1999 on the file of the principal subordinate judge's court, thanjavur.) 1. the plaintiff in the suit in o.s.no.120 of 1999 on the file of the principal sub court, thanjavur, is the appellant in the above first appeal. 2. the appellant filed the suit in o.s.no.120 of 1999 for partition of his share in the suit properties. the suit properties consist of two items. item 1 is a house property and item 2 consists of three different properties of agricultural land in different survey numbers in keerakollai village in thanjavur taluk, thanjavur district. 3. the case of the appellant is that he and the defendant are brothers and that they jointly purchased.....
Judgment:

(Prayer: Appeal Suit filed under Section 96 of Civil Procedure Code, against the judgment and decree dated 06.11.2001 made in O.S.No.120 of 1999 on the file of the Principal Subordinate Judge's Court, Thanjavur.)

1. The plaintiff in the suit in O.S.No.120 of 1999 on the file of the Principal Sub Court, Thanjavur, is the appellant in the above First Appeal.

2. The appellant filed the suit in O.S.No.120 of 1999 for partition of his share in the suit properties. The suit properties consist of two items. Item 1 is a house property and item 2 consists of three different properties of agricultural land in different survey numbers in Keerakollai Village in Thanjavur Taluk, Thanjavur District.

3. The case of the appellant is that he and the defendant are brothers and that they jointly purchased the suit properties under two registered sale deeds. According to the plaintiff, the first item was purchased on 14.10.1970 and the second item was purchased on 20.11.1972 jointly in the name of plaintiff and the defendant. It is also the specific case of the plaintiff that the suit properties are in the common enjoyment of both the plaintiff and the defendant. The plaintiff has also stated in the plaint about some of the instances by which the suit properties were dealt with by the parties as their common properties. Though the plaintiff is residing in the first item of suit property and the second defendant is residing in a portion in the second item, the landed properties, according to the plaintiff was under joint cultivation. It is also the case of the plaintiff that the plaintiff and the defendant jointly borrowed loan for sinking bore-well in the suit second item by depositing the title deed. Similarly, the property was mortgaged jointly by the plaintiff and defendant on few subsequent occasions indicating that they are always the joint owners of the said properties. Since the defendant was making attempts to sell the suit second item without the plaintiff's knowledge and consent, the plaintiff stated that he was constrained to file the suit for partition.

4. The defendant filed a written statement admitting the case of the plaintiff that the suit properties were purchased jointly by the plaintiff and defendant. However, the defendant set up a partition on 07.04.1983 and contended that he was allotted the entire second item of suit property. The defendant also pleaded that after partition, there was no common enjoyment by the parties and that the defendant was in the exclusive possession and enjoyment of the suit second item. He also stated that he had improved the suit second item and constructed a house in a portion of suit second item. The defendant also pleaded that the plaintiff was given lease of the suit second item for a period of five years and the said lease was also reduced into writing on 25.06.1984. Most importantly, the defendant also pleaded that he had given a portion of suit second item to his daughter as Sreedhana by a document where the plaintiff was the attestor. Further, the defendant also prayed in the written statement that he is entitled for compensation for improvements and construction of house in the suit second item, in case, if for any reason, the Court holds against the partition arrangement pleaded by the defendant. Finally, the defendant also pleaded that the suit is bad for partial partition, as the plaintiff had not included the properties situated in Sakkarasamandam, arasingapuram and Vayaloor Villages which were purchased in the name of the plaintiff who is the elder member of the family.

5. The trial Court after framing necessary issues found that the suit properties were jointly purchased by the plaintiff and defendant, as contended by the plaintiff, however, held that there was a partition between the plaintiff and defendant mainly relying upon the unregistered and unstamped partition deed dated 07.04.1983. Though the trial Court held that the document is not admissible in evidence, to prove the rights, strangely, following the judgment of the Hon'ble Supreme Court reported in AIR 1968 SC 1299 held that the document is admissible to prove the division or the intention of coparcener to become divided in status. The trial Court also while appreciating the evidence came to the conclusion that the partition dated 07.04.1983 was acted upon by relying upon the evidence of plaintiff in an earlier suit filed by a stranger claiming easementry right of pathway in respect of a portion of the suit second item. Further, the trial Court also relied upon a document Ex.B8 which was referred to as a dowry agreement executed by the defendant in favour of his daughter. In this document, the defendant has agreed to give a portion of suit second item in favour of his daughter as a gift. This document is not a conveyance. However, the plaintiff has attested this document. The signature of the plaintiff in the document under Ex.B8 is marked as Ex.B1. Since the plaintiff has attested the document Ex.B8 and he has also admitted that the signature found in Ex.B8 was his signature, the trial Court also held that the plaintiff is bound by the recitals in the document where the defendant treated the suit second item as his own property. In view of the findings of the trial Court that there was a partition under document Ex.B7, the suit was dismissed by the trial Court. Aggrieved by the judgment and decree of the trial Court, dated 06.11.2001 in O.S.No.120 of 1999 the plaintiff has preferred the above First Appeal. During the pendency of this appeal, the first respondent who is the defendant in the suit died and respondents 2 to 7 herein were brought on record as his legal representatives.

6. The learned counsel for the appellant put forth the following submissions:

(a) The document Ex.B7 being an unregistered and unstamped document is not admissible even for any collateral purpose and that the findings of the trial Court about the partition under Ex.B7 is unsustainable in law.

(b) The document Ex.B1 and B8 which were filed to prove that the plaintiff had acknowledged the earlier partition have been erroneously accepted by the trial Court. Mere attestation, according to the learned counsel, do not attribute knowledge of attestor as regards the contents of the document.

(c) The findings of the trial Court without considering the documents filed by the plaintiff to prove that the suit properties were treated always as the joint properties of the plaintiff and defendant, vitiate the judgment.

(d) Both the plaintiff and defendant borrowed loan from bank by jointly creating a mortgage in respect of the suit property. Hence, the findings of the trial Court ignoring the conduct of parties subsequent to the alleged partition and the alleged acknowledgement of partition pleaded by the defendant are unsustainable in law.

7. The only question that arises for consideration in this appeal is whether the partition that was pleaded by the defendant as per the document Ex.B7, dated 07.04.1983, is proved or not?

8. The trial Court despite the fact that the document Ex.B7 is unregistered and unstamped, accepted the case of partition pleaded by the defendant by placing reliance on the said document Ex.B7. The lower Court relied upon the judgment of the Hon'ble Supreme Court reported in AIR 1968 SC 1299 which is about a document which is not registered. Since the document dealt with by the Hon'ble Supreme Court is admissible in evidence for collateral purpose, the Hon'ble Supreme Court has held in the said judgment that the unregistered partition is admissible to prove the intention of coparcener to become divided in status. However, it is well settled that a document which is neither registered nor stamped cannot be looked into for any purpose. Further, the expression collateral purpose has been considered in several binding precedents and the law that has been ultimately reiterated is that a party cannot use the unregistered document in any legal proceedings to bring about indirectly the effect which it would have had if it is registered. The learned counsel for the appellant relied upon the judgment of this Court in D.Srinivasan and others v. D.Chairman and others reported in 2013 (4) CTC 145 wherein the learned Single Judge of this Court after referring to various judgments reiterated the view of mine. In other words, an unregistered document cannot be relied upon to prove the very transaction. In this case, the document Ex.B7 is relied upon only for the purpose of proving an earlier partition and hence, it is impermissible in law. The trial Court failed to draw the distinction between an unregistered document and a document which is neither registered nor stamped. The trial Court erroneously held that the document Ex.B7 can be relied upon to prove the partition as alleged by the defendant. Hence the findings of trial Court accepting partition solely relying upon Ex.B7 is unsustainable in law.

9. The learned counsel for the respondents relied upon a judgment of the Hon'ble Supreme Court in the case of Javer Chand v. Pukhraj Surana reported in AIR 1961 SC 1655 for the proposition that once a document has been admitted in evidence, it is not open either to the trial Court or to the Court of Appeal to go behind that order. Para 4 of the judgment reads as under:

Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction.

10. First of all, it is to be noticed that in the case before Hon'ble Supreme Court, the unstamped hundis were received in evidence after the payment of duty and penalty. The judgment of trial Court extracted therein reflect this bare fact. The law laid down by Hon'ble Supreme Court in this judgment cannot be extended to all cases where the document was simply marked as an exhibit without an adjudication or application of mind as to the admissibility of document in terms of Section 35.

11. The real position can be examined on first principles by analysing the provisions under Chapter IV of Indian Stamp Act. Sections 33, 35, 36, 38 and Section 61 of Indian Stamp Act are extracted for convenience as they are relevant:

Section 33. Examination and impounding of instruments--(1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument chargeable, in his opinion, with duty, is produced or comes in the performance in his functions shall, if it appears to him that such instrument is not duly stamped, impound the same.

(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed:

Provided that-

(a) Nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898;

(b) In the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf.

(3) For the purposes of this section, in cases of doubt,

(a) The State Government may determine what offices shall be deemed to be public offices; and

(b) The State Government may determine who shall be deemed to be persons in charge of public offices.

Section 35. Instruments not duly stamped inadmissible in evidence, etc- No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:

Provided that-

(a) Any such instrument not being an instrument chargeable 1[with a duty not exceeding ten naye paise] only, or a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;

(b) Where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;

(c) Where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;

(d) Nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898;

(e) Nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government or where it bears the certificate of the Collector as provided by Section 32 or any other provision of this Act.

Section 36. Admission of instrument where not to be questioned - Where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.

Section 38. Instruments impounded how dealt with -

(1) Where the person impounding all instrument under Section 33 has by law or consent of parties authority to receive evidence and admits, such instrument in evidence upon payment of a penalty as provided by Section 35 or of duty as provided by Section 37, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector, or to such person as he may appoint in this behalf.

(2) In every other case, the person so impounding an instrument shall send it in original to the Collector.

Section 61. Revision of certain decisions of Courts regarding the sufficiency of stamps

(1) When any Court in the exercise of its civil or revenue jurisdiction of any Criminal Court in any proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898, makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and a penalty under Section 35, the Court to which appeals lie from, or references are made by, such first-mentioned Court may, of its own motion or on the application of the Collector, take such order into consideration.

(2) If such Court, after such consideration, is of opinion that such instrument should not have been admitted in evidence without the payment of duty and penalty under Section 35, or without the payment of a higher duty and penalty than those paid, it may record a declaration to that effect, and determine the amount of duty with which such instrument is chargeable, and may require any person in whose possession or power such instrument then is, to produce the same, and may impound the same when produced.

(3) When any declaration has been recorded under subsection (2), the Court recording the same shall send a copy thereof to the Collector, and, where the instrument to which it relates has been impounded or is otherwise in the possession of such Court, shall also send him such instrument.

(4) The Collector may thereupon, notwithstanding anything contained in the order admitting such instrument in evidence, or in any certificate granted under Section or in Section 43, prosecute any person for any offence against the Stamp-law, which the collector considers him to have committed in respect of such instrument:

Provided that-

(a) No such prosecution shall be instituted where the amount (including duty and penalty) which, according to the determination of such Court, was payable in respect of the instrument under Section 35, is paid to the Collector, unless he thinks that the offence was committed with all intention of evading payment of the proper duty;

(b) Except for the purposes of such prosecution, no declaration made under this section shall affect the validity of any order admitting any instrument in evidence, or of any certificate granted under Section 42.

12.Section 33 of the Indian Stamp Act mandates impounding of instruments which are not duly stamped when it is produced before every person in charge of a public office except an officer of police, who has by law is competent to receive such instrument as evidence.

13. Section 33A which was introduced by an amendment under the Tamil Nadu Act 38 of 1987 deals with recovery of deficit stamp duty, if, after registration of an instrument, it is found that the proper stamp duty has not been paid.

14. As per Section 35, no instrument chargeable with duty shall be admitted in evidence for any purpose by any authority or shall be acted upon, registered or authendicated by any person or by any public officer, unless such instrument is duty stamped. However, an instrument can be admitted in evidence on payment of the duty together with penalty.

15. The proviso to Section 35 makes exception to five categories of instruments, from the operation of the main provision.

16. As per Section 36 of the Indian Stamp Act, when an instrument has been admitted in evidence, such admission shall not be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. However, the order admitting an instrument in evidence is subject to the power of appellate Court as provided under Section 61 of the Act.

17. Section 61 of the Indian Stamp Act, after taking into consideration, the order of the Court of first instance admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and penalty under Section 35, enables the appellate Court or a Court to which reference are made to declare that such instrument should not have been admitted in evidence without the payment of duty and penalty under Section 35. The appellate Court has also power to determine the amount of duty or to require the production of the document and to impound the same when produced.

18. However, the proviso to Section 61 indicates, even if the appellate Court find that the instrument ought not to have been admitted in evidence without the payment of duty and penalty under Section 35, it can only determine the duty and impound the document and that the declaration that may be made under Section 61 of the Act would not affect the validity of an order admitting any instrument in evidence. Thus, on a harmonious reading of Section 33, Section 35, Section 36 and Section 61, the order admitting an unstamped or insufficiently stamped instrument is final and hence, the view of the Hon'ble Supreme Court in the facts of the case cannot be doubted. However, as pointed out earlier the instruments which are the subject matter of the Hon'ble Supreme Court have been admitted in evidence after payment of stamp duty and penalty and the order admitting the document in evidence was passed by the trial Court therein after applying its mind to the admissibility of the document in terms of Section 35 of the Act. The position in the present case is not similar and hence, the judgment of the Hon'ble Supreme Court is not applicable to the present situation.

19. In the present case, the document Ex.B7 is not the original instrument for partition. The original instrument namely the unregistered and unstamped partition deed dated 07.04.1983 was marked as Ex.B1 in another suit in O.S.No.431 of 1976 on the file of the District Munsif Court, Thanjavur. The said suit was filed by one Kittappa against the appellant herein. The document Ex.B7 is only a certified copy namely Ex.B1 in O.s.No.431 of 1976. Even under Section 35 of the Indian Stamp Act, there can be validation only of the original when it is unstamped or insufficiently stamped. Hence, there is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act. The term instruments in Section 36 is confined only to the original. Having regard to the provisions of Sections 35 and 36, no secondary evidence which is produced to prove the contents of the document, can be dealt with under Section 35 or Section 36. Hence, the document Ex.B7 filed in the present case by the defendant is neither admissible nor can be acted upon to prove the actual partition under Ex.B7. Having regard to the language of Section 33, 35 and 38, the Court is duty bound to impound the document once it is brought to the notice of the Court that the instrument is either unstamped or insufficiently stamped. Hence, when objection being raised, the Court is required to impound the document and decide as to the admissibility of the document even at that stage. In the present case, absolutely there is no judicial application of mind as to the requirement of Section 33 or Section 35 of the Act. There is no indication of any order passed by the Court admitting Ex.B7 in evidence. In such circumstances, the instrument Ex.B7 being original, absolutely there is no scope for relying upon Section 36 of the Act in the present case.

20. Further, provisions to Section 35 are substantive whereas Section 36 are only procedure. There are two limbs for Section 35. The first limb is that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law authority to receive such instrument in evidence, if such instrument is not duly stamped. The second limb of Section 35 is that such unstamped instrument shall not be acted upon or authenticated by any such person who is the authority to receive any evidence. However, the instrument even if it is admitted in evidence cannot be acted upon by Court when the same is not duly stamped. Hence, considering the issue in all perspectives, I am of the view that the document Ex.B7 is inadmissible in evidence and the same cannot be acted upon or relied upon for any purpose. Since the instrument is also unregistered, the case of prior partition pleaded by defendants by means and bounds cannot be accepted relying upon the document Ex.B7. The suggestion that the document can be looked into for the purpose of severance of status has no merit for obvious reasons flow from my conclusions in the previous paragraphs.

21. The trial Court proceeded on the basis that the admission of the signature of plaintiff in the document Ex.B8 would bind the plaintiff regarding its contents. It is not in dispute that the plaintiff has only attested the document Ex.B8. It is a well settled proposition of law that attestation proves no more than the signature of executing party attached to a document in the presence of witness and that attestation will not imply estoppel or consent of attesting witness to the transaction as such. Since the attestation does not involve the witness in any knowledge of the contents of the deed, it will not create estoppel nor implies consent as regards the terms of document which is attested by the witness.

22. The legal position is clearly spelt in several judgments. In the judgment of this Court in the case of Chidamabara Padayachi v. Vellaiya Padayachi reported in 2008 (5) CTC 219 it has been held as follows:

19.Attestation proves no more than that the signature of an executing party has been attached to a document in the presence of a witness. It does not involve the witness in any knowledge of the contents of the deed nor offer him with notice of its provisions. It can at the best, be used for the purpose of cross-examination but by itself, it will neither create estoppel nor imply consent.

20. In Pandurang Krishnaji v. M.Tukaram and others, AIR 1922 Privy Council 20, the Privy Council has held as follows:

The attestation of a deed by itself estops a man from denying nothing whatsoever excepting that he has witnessed the execution of the deed. It conveys, neither di9rectly nor by implication, any knowledge of the contents of the document and it ought not to be put forward alone for the purpose of establishing that a man consented to the transaction which the document effects.

21.Attestation by itself would not operate as estoppel. Where it is shown by an independent evidence that, when becoming an attesting witness he must have fully understood what the transaction was, his attestation may support the inference that he was a contesting party. Whether an attesting witness was a consenting party to the document is question of fact and should be determined with reference to the circumstances of each case. The Courts below have recorded concurrent findings of fact that attestation of the Plaintiff in Ex.B4-sale deed would not operate as estoppel. That concurrent findings cannot be said to be improper or perverse warranting interference.

23. The learned counsel for the respondents relied upon the evidence of D.W.1 and submitted that the defendant in his evidence has categorically stated that the plaintiff put his signature after knowing the contents of Ex.B8. The relevant portion is extracted as under:

TAMIL

24. The learned counsel for the respondents further submitted that the statement of D.W.1 extracted above during the chief examination was not suggested to be wrong at the time of cross examination. Though the plaintiff has admitted his signature in the document Ex.B8, no suggestion was put to him in the cross examination about his knowledge as regards the contents of the document Ex.B8. In other words, no suggestion was put to P.W.1 that he had knowledge about the contents of Ex.B8 and that the plaintiff signed the document Ex.B8 after knowing its contents. When the defendant had not cross examined the plaintiff, on this vital aspect, it is not proper to argue that the defendant was not cross examined. Even the evidence of defendant indicates that the plaintiff was forced to sign the document Ex.B8. Hence, the signatures of plaintiff in Ex.B8 cannot be taken as an admission of earlier partition.

25. The learned counsel for the respondents further submitted that the plaintiff in the present suit has given evidence in another suit in O.S.No.431 of 1976 which is marked as Ex.B4, B5 and B6. The learned counsel for the respondents pointed out that the suit in O.S.No.431 of 1976 was filed by a stranger claiming a right of easement in respect of a portion of the suit property. In the said suit, it appears that the plaintiff who was the sole defendant therein deposed to the effect that the suit property therein was allotted to his younger brother as per the partition under Ex.B7. Since the defendant herein was not impleaded as a party in the suit in O.S.No.431 of 1976, it was a valid defence available to the plaintiff herein so as to non-suit the plaintiff in the previous suit who is only a stranger to the family. Hence, the objection raised by the plaintiff in the previous suit which is seen from Ex.B3 and the evidence adduced by the plaintiff in the said suit in O.S.No.431 of 1976 cannot be given much importance especially when the suit properties were purchased in the joint names of both plaintiff and defendant and that there were several instances by which it can be shown that the properties were dealt with by both parties as their joint property long after the pleadings and evidence in the previous suit. It is to be seen that the document Ex.B7 was also explained by the plaintiff by stating that the said document was signed only at the instance of defendant under peculiar circumstances and that the said document was never acted upon. When it is the specific case of plaintiff that the suit property was enjoyed in common and the plaintiff has produced documents after the so called partition under Ex.B7, it is not possible to accept the case of partition without considering the explanations offered by the plaintiff and other documents in support of his claim.

26. Again the learned counsel for the respondents relied upon the judgment of Hon'ble Supreme Court in the case of Union of India v. Moksh Builders and Financiers Ltd., reported in AIR 1977 SC 409 for the proposition that an admission by a party is substantive evidence of the fact admitted and admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. In another judgment of the Hon'ble Supreme Court in the case of John v. Returning Officer reported in AIR 1977 SC 1724, it has been held that an admission, if clearly and unequivocally made, is the best evidence against the party making it and though not conclusive, shifts the onus on to the maker on the principle that what a party himself admits to be true may reasonably be presumed to to so and until the presumption is rebutted the fact admitted must be taken to be established.

27. In another judgment relied upon by the learned counsel for the respondents in the case Shivalingappa, K.G. v. Eswarappa, G.S., reported in 2004 (4) CTC 143, the Hon'ble Supreme Court considered the scope of admissibility of an unregistered document. As pointed out earlier, the case on hand is different where the document Ex.B7 is not only unregistered but also unstamped. He also relied upon the judgment of the Hon'ble Supreme Court in the case of Avadh Kishore Dass v. Ram Gopal reported in AIR 1979 SC 861 wherein it is stated that evidentiary admissions are not conclusive proof of the facts admitted and may be explained or shown to be wrong. This judgment is not very much helpful to the defendant and the principles stated therein would also support the case of the plaintiff to explain the admission in the present case.

28. In the present suit, the plaintiff has come forward with a specific plea that in the year 1996, the plaintiff and the defendant jointly borrowed a loan of Rs.1,00,000/- from the bank by creating an equitable mortgage. Though this loan was obtained by the defendant and the defendant undertook to repay the entire loan amount, the plaintiff also was asked to sign for getting the loan. The creation of mortgage jointly by the plaintiff and defendant and that after the alleged partition under Ex.B7 would clearly indicate that the alleged partition as per Ex.B7 must be either explained by the plaintiff or was not acted upon. One important circumstance, which drew my attention is the nature of suit properties items 1 and 2. The first item is only a small residential house constructed in a plot measuring less than 2000 square feet. Item 2 consists of three different parts of agricultural land. The total extent of land described as item No.2 comes to an extent of 2 acres 56 cents. The defendant admits that the house in Item No.2 was constructed by availing loan from the bank and that the loan was obtained jointly by the plaintiff and defendant. Even the repayment of the loan, according to D.W.1, was by both. The first item and suit second item were purchased by the documents under Ex.A1 and A2 jointly for a consideration of Rs.10,500/- and Rs.10,200/- respectively. Item No.1 is a residential house and it was purchased as a house even when it was purchased under Ex.A1. This house is located in a small extent of land which is located within Thanjavur Town and within the municipal limits. The suit second schedule also lies within the municipal limits. The extent of second schedule is 2.81 acres. The value of the first schedule at the time of Ex.A1 is not because of the cost of land but because of the residential house. After ten years, the value of the land will be more whereas the cost of building will be reduced because of the depreciation. Taking the pragmatic and practical view of the matter, I am of the opinion that the value for the first schedule will not be equal to the value of the second schedule. Hence, premise partition as pleaded by the defendant is not probable. In such circumstances, the allotment of entire second item to the defendant is unbelievable. Though defendant admitted that the plaintiff was in enjoyment of the suit property for several years, when he has faced with a difficult situation, the defendant explained by saying that the plaintiff was inducted by the defendant as lessee in respect of suit second item. Though according to the defendant the lease was in writing and he could produce the same before the Court, no such document was produced at any time before Court. Hence, the possession of plaintiff or enjoyment of suit second schedule was not explained by defendant.

29. In the above circumstances, I am of the considered view that the alleged partition under Ex.B7 or on any subsequent date is not proved by the defendant to the satisfaction of the Court. The trial Court failed to follow the legal principles and the settled law on the legal implications of attestation and the admissibility of a document which is neither registered nor stamped. The subsequent conduct of the plaintiff and defendant by enjoying the suit properties in common would clearly prove the case of the plaintiff. Since partition as spoken to by the defendant is held unbelievable and not proved, the plaintiff / appellant is entitled to a decree for partition. In view of this, the judgment and decree in O.S.No.120 of 1999 of the Principal Sub Court, Thanjavur, is set aside and the suit in O.S.No.120 of 1999 is decreed as prayed for. The appeal is therefore allowed by decreeing the suit filed by the plaintiff. Taking into consideration the fact that the parties before this Court are brothers, there is no costs. Consequently, the connected miscellaneous petition is closed.


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