TaxTMI 
TaxTMI 
2022 (1) TMI 1359
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.... whose wife Poomayil has also died. The Plaintiff, first and second Defendants and late Marimuthu have one-fourth share each in the joint family properties. That Periyaiya Servai through his first wife, Veeramakali Ammal (since deceased) had four daughters and a son, being the first Defendant, namely, P.R. Ramasamy. Through his second wife, Kaliammal, Periyaiya Servai had two sons, being second Defendant, namely, P.R. Kasilingam and Marimuthu. Second Defendant's son, K. Arumuga Velaiya is the Plaintiff. (ii) According to the Plaintiff, Periyaiya Servai had executed a registered will dated 26th January, 1994, in favour of the Plaintiff in relation to his share of the properties of the joint family. Thus, the joint family properties had to be divided into four shares of which the Plaintiff was entitled to one share, bequeathed in his favour by his grandfather, Periyaiya Servai under the will. Further, Poomayil, on the death of her husband Marimuthu had bequeathed his share in the property to the first Defendant. Hence the first Defendant has become entitled to half share in the joint family property and the remaining half has to be equally divided between the second Defe....
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....a Servai's second wife. The second Defendant, taking advantage of the age and ill health of his father tried to acquire properties of late Poomayil. O.S. No. 347 of 1991 was filed in the name of Periyaiya Servai, on the file of the District Munsiff Court, Devakottai, on false and frivolous grounds. In that suit he had shown joint family properties as independent properties of late Periyaiya Servai and stated that the said properties were purchased out of the personal income of Periyaiya Servai. In that suit, the possession and enjoyment of the joint Hindu family ancestral properties by late Periyaiya Servai and his brother, as also the partition between them was suppressed. It was further suppressed in the said suit that in the year 1964 a partition took place before the panchayatdars and the partitioned properties were enjoyed by late Periyaiya Servai, the first and second Defendants and Marimuthu. In the aforementioned suit, the widow of Marimuthu, Poomayil also contested but the District Munsiff Court, without taking into consideration the said partition held that the properties were undivided ancestral joint family properties. Aggrieved by the same the second Defendant pref....
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....orpus petition in HCP No. 457 of 2003 was filed by the first Defendant before the Madras High Court. Before the petition was heard, Periyaiya Servai died and the same was dismissed as not pressed by the first Defendant. (viii) That the plaint in the instant suit was filed with a view to extort monies from the first Defendant. The first Defendant prayed before the Trial Court that the suit for partition and separate possession filed by the Plaintiff be dismissed. 5. The District Munsiff Court, Devakottai by its judgment and decree dated 7th April, 2005 dismissed the suit being O.S. No. 101 of 2004. The salient findings of the Trial Court are as under: (i) The Trial Court noted that the Defendant had filed O.P. No. 7 of 1992 on the file of the District Munsiff Court, Devakottai praying for a declaration that the partition deed stated to be executed in the year 1964 between Periyaiya Servai, the Defendants and Marimuthu was invalid. The said suit was decreed as prayed for, with a declaration to the effect that the partition deed stated to be executed in the year 1964 was an unregistered document and therefore, invalid. (ii) The Trial Court also noted that....
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....Defendants and Marimuthu. That the patta was not obtained individually by the sons of Periyaiya Servai following the execution of the partition deed, however they had been paying kist in connection with their respective properties. In the circumstance, the first appellate court held that the fact that the Defendants had not obtained pattas individually for their respective shares in the suit properties, could not result in a conclusion that Periyaiya Servai had not partitioned the suit properties in favour of his sons. ii) That the kist receipts paid by the first Defendant from the year 1964, in relation to his share of the suit properties led to the conclusion that the first Defendant was enjoying the properties allotted to him by way of the partition effected in the year 1964. iii) Since partition was effected between Periyaiya Servai and his sons in the year 1964, whereby the suit Schedule properties were divided among the first and second Defendants and late Marimuthu, and no property was apportioned in favour of Periyaiya Servai, he had no right to execute a will subsequently, in relation to the suit properties. Therefore the will dated 26th January, 1994 is ....
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....estions of law raised by the Plaintiff were not legally tenable. The unsuccessful Plaintiff has approached this Court challenging the three judgments referred to above. 8. We have heard Sri. V. Prabhakar, learned Advocate for the Appellant and Sri. K.K. Mani, learned Advocate for Respondents and perused the material on record. 9. Learned Counsel for the Appellant-Plaintiff at the outset contended that the High Court as well as the courts below were not right in dismissing the suit filed by the Appellant-Plaintiff by holding that there was a prior partition between the parties in the year 1964 and hence the instant suit for partition and separate possession was not maintainable. Elaborating the said contention it was submitted that the so called partition of the suit Schedule properties in the year 1964 was as per an award. The said award was not registered as per Section 17(1)(e) of the Registration Act, 1908 (hereinafter referred to as "the Act" for the sake of brevity). Section 49 of the Act was also pressed into service to contend that in the absence of registration of the arbitration award effecting the partition between members of the family, the award does not have a....
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....submissions: a) Shiromani and Ors. v. Hem Kumar and Ors., [1968] 3 SCR 639. b) Satish Kumar and Ors. v. Surinder Kumar and Ors., [1969] 2 SCR 244. c) Lachhman Dass v. Ram Lal, [1989] 3 SCC 99. d) Asrar Ahmed v. Durgah Committee, Ajmer AIR 1947 PC 1. 13. Per contra, learned Counsel for the Respondents supported the impugned judgment of the High Court to contend that registration of the arbitral award making a partition between the parties was not compulsory. It was urged that partition of joint family properties is not a transfer inter vivos. A partition only crystallises the share of the coparceners in the joint family or ancestral properties. That so long as the parties are not allotted shares pertaining to specific assets under a partition deed such a document does not create any right, title or interest in any specific property as such. Therefore, registration of the arbitral award in the instant case as such is not a mandatory requirement. 14. Alternatively, it was contended that the finding of the first appellate court in A.S. No. 37 of 1993, regarding the partition and division of the ancestral joint family properties in the year 1964....
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.... late Marimuthu. The Appellant-Plaintiff is the son of P.R. Kasilingam. (b) Appellant has also claimed that his grandfather Periyaiya Servai had executed a will in his favour and therefore he had one-fourth share in the suit property. (c) It is also not in dispute that O.S. No. 347 of 1991 was filed on the file of the District Munsiff Court, Devakottai by Periyaiya Servai for declaration of title and permanent injunction, wherein all the suit properties had been shown as joint family properties. Against the dismissal of the said suit a preliminary decree was passed granting one-fourth share to the Plaintiff therein in A.S. No. 37 of 1993 preferred against the dismissal of the suit. (d) In A.S. No. 37 of 1993 it was held that the suit properties were joint family properties and in the year 1964 there was a partition between the members of the joint family. The said judgment was not assailed by any of the parties. (e) However, the Appellant herein instituted a fresh suit being O.S. No. 101 of 2004 on the file of the District Munsiff Court, Devakottai which was dismissed, against which A.S. No. 38/2005 was filed before the Subordinate Judge, Devakot....
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....ein, there was allotment of specific properties to individual coparceners and the document therefore fell within the mischief of Section 17(1)(b) of the Act as it required registration. Hence, the said document was not admissible in evidence to prove the title of the coparceners to any particular property or to prove that any particular property had ceased to be joint property. However, document exhibit D-4 considered therein was held to be admissible to prove an intention on the part of the coparceners to become divided in status; in other words, to prove that the parties ceased to be joint from the date of the instrument vide Nanni Bai v. Gita Bai, [1959] 1 SCR 479. The said judgment is not applicable to the facts of this case. b) In Satish Kumar and Ors. v. Surinder Kumar and Ors., [1969] 2 SCR 244, a similar question on registration of an award for partition of joint family property being compulsory Under Section 17(1)(b) read with Section 49 of the Act was emphasised. In that case an award for partition was made under the Arbitration Act, 1940 and the question was whether such an award on a private reference required registration if the award effected partition of imm....
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....stration as the award did not create any right as such in the immovable property; it only admitted the already existing rights between the parties and hence registration was not required. Hence the question considered was whether the Court could have looked into the award for the purpose of pronouncing judgment upon the award. On a construction of the award questioned therein the decision of the High Court was reversed. In doing so, this Court took into consideration Section 17(1)(e) of the Act as well as Sections 23, 25 and 49 of the Act. Further, reliance was placed on a decision of the Division Bench of the Madras High Court in Ramaswamy Ayyar and Anr. v. Tirpathi Naik, ILR 27 Mad 43, wherein it was observed that it is necessary to read a document in order to ascertain, not what the document intends to convey really but what it purports to convey. In other words, it is necessary to examine not so much what it intends to do, but what it purports to do. It was further observed in paragraph 14 as under: 14. The real purpose of registration is to secure that every person dealing with the property, where such document requires registration may rely with confidence upon state....
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....nfluence; (3) The family arrangements may be even oral in which case no registration is necessary; (4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immoveable properties and therefore does not fall within the mischief of Section 17(2) (sic) (Section 17(1)(b)?) of the Registration Act and is, therefore, not compulsorily registrable; (5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour ....
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....session of the parties in pursuance of the family settlement and also for the purpose of applying the Rule of estoppel which flowed from the conduct of the parties, who, having taken benefit under the settlement for seven years, later tried to resile from the settlement. b) In Bhoop Singh v. Ram Singh Major and Ors., [1995] 5 SCC 709, this Court stated the legal position in the context of registration of documents Under Section 17(2)(vi) of the Act in the following words, so as to distinguish the same from Section 17(2)(v): 18. The legal position qua Clause (vi) can, on the basis of the aforesaid discussion, be summarised as below: (1) Compromise decree if bona fide, in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration, would not require registration. In a converse situation, it would require registration. (2) If the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs. 100 or upwards in favour of any party to the suit the decree or order would require registration. (3) If the decree were not to att....
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....o requirement of compulsory registration. In other words, a compromise recognising a pre-existing right in a property amongst heirs does not require registration under the Act. In this case the distinction between Section 17(2)(v) and (vi) was brought out by referring to the aforementioned judgments. 23. In order to answer the aforesaid twin questions, at the outset we have to consider the award dated 13th June, 1964 passed by the panchayatdars which has been produced as Annexure P-10 by learned Counsel for the Appellant. The award is in the form of a resolution on the strength of the statement given by Periyaiya Servai and the consent statement given by P.R. Ramaswamy and P.R. Kasilingam, the two major sons of Periyaiya Servai. There are details as to how the properties had to be dealt with. The parties had also stated that they had read the above resolution and had agreed wholeheartedly to obey the provisions thereof. For a better appreciation of the nature of the award passed by the panchayatdars, it would be useful to extract Annexure P-10 as under: RESOLUTION PASSED BY THE PANCHAYATDARS. ON 20TH DAY OF THE MONTH OF PANGUNI OF TAMIL SOBAKRITHU YEAR IN REGARD TO PART....
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....lore shall be valued for sale, taking into account all the goods/things and accessories available in the said school and the said school shall be taken over either by Ramasamy or Kasilingam depending upon the one coming out successful in the paper token to be tossed over and both of them agree to the above proposal. The value of the said school has been unanimously arrived at Rs. 3,000/- (Rupees three thousand only) by the Panchayatdars. The person who takes up the responsibility of the said school shall pay the above sum of Rs. 3,000/- to their father M. Periyayya with liberty to be spent by him as he wishes, for his personal use. It is RESOLVED by the Panchayatdars, the three sons shall not have any right over the aforesaid sum of Rs. 3,000/-. 7. It is further RESOLVED that the Savukkai house along with the fenced compound shall be given to Periyayya and to leave the two properties viz. one comprised in S. No. 181/1 measuring 1.40 cent and another house comprised in giving him the right to deal with the properties as he may desire. It is also RESOLVED to give him a cart and two bullocks for his use besides a cow for meeting his requirement for milk. 8. In his st....
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.... a family arrangement. Therefore under Annexure P-10 (Ex. B-13) there was no right created in favour of any party in any specific item of joint family property. The said document which has been styled as an award is, in our view, only a memorandum of understanding/family arrangement to be acted upon in future. Hence, in our considered view, the said document did not create rights in specific properties or assets of the family, in favour of specific persons. Therefore, the same did not require registration Under Section 17(1)(e) of the Act. The said document was in the nature of a document envisaged Under Section 17(2)(v) of the Act. For a better understanding of the same it would be useful to refer to Section 17(1)(e) and 17(2)(v) as under: 17. Documents of which registration is compulsory.--(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely: xxx xxx xxx ....
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....swered. 26. Thus, in our view the judgment in O.P. No. 7 of 1972 which was a petition filed Under Section 17 of the Arbitration Act, 1940 praying to receive the award passed by the arbitrators and to pass a judgment thereon, wherein it was held that the award was not registered as mandated Under Section 17(1)(b) of the Act and hence could not be made a Rule of the Court, is wholly incorrect. In our view, the award was not a document of title to the property hence it did not require registration. Therefore, the Order dated 22nd August, 1975 passed in O.P. No. 7 of 1972 holding that the award was inadmissible in evidence as it was not registered and hence a decree could not be passed, is incorrect. 27. In our view, exhibit B-13 did not require registration. 28. The next question that arises for our consideration is whether, the finding of the first appellate court in A.S. No. 37 of 1993 that the suit properties were partitioned in the year 1964 is binding on the parties and hence a fresh suit filed by the Plaintiff seeking the very same relief was not maintainable. In A.S. No. 37, on considering the oral and documentary evidence on record it was opined as under: Fro....
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....law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression "the matter in issue" in Section 11 of the Code of Civil Procedure means the right litigated between the parties i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the Rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the Rule of res judicata, for a Rule of procedure cannot supersede the law of the land. b) In Mohanlal Goenka v. Benoy Kishna Mukherjee (AIR 1953 SC 65), the second round of litigation was admittedly in respect of same property and between the same parties, after ....