Must a memorandum recording a past oral partition be registered or stamped to be admissible in evidence?

Feeling aggrieved by the Judgment and Decree dated March 31, 2008 passed in A.S. No.15 of 2007 by 'the District Court, Thiruvannamalai' ['First Appellate Court' for brevity], reversing the Judgment and Decree dated February 15, 2007 passed in O.S. No.203 of 2000 by 'the Additional Subordinate Court, Thiruvannamalai' ['Trial Court' for brevity], the first respondent therein who is the plaintiff in the Original Suit has preferred this Second Appeal under Section 100 of the Code of Civil Procedure, 1908.

For the sake of convenience, hereinafter, the parties will be referred to as per their array in the Original Suit before the Trial Court.

One Pavadai Pillai had three sons namely Pachamuthu Pillai (first defendant herein), Arunachalam Pillai, Thiyagarajan and four daughters namely Aandalammal, Poongavanam, Kamala and Angammal. Pavadai Pillai and his wife passed away long back leaving behind the suit properties and other properties as joint family properties to be succeeded by his three sons. All the three sons were living together, and individually acquired some more properties in their respective names and the same were treated and enjoyed as joint family properties of the three brothers.

Defendants 4, 5 and 7 to 9 were called absent and set ex-parte. Defendants 1 and 6 passed away during the pendency of the Suit as stated above.

The second defendant filed a written statement and the same was first adopted by third defendant alone. Later, it was adopted by the sixth defendant upon impleadment. Subsequently, the second defendant filed an additional written statement and the same was adopted by defendants 3 and

They admit the Partition Deed dated June 10, 1970 as well as the allotment of property thereunder in favour of Pachamuthu as stated in the Partition Deed. In other words, they admit that Suit Item Nos.1 to 3 described as 'A' schedule properties therein were allotted to the share of Pachamuthu. Their case is that Suit Item No.4 is the separate property of first defendant / father - Pachamuthu. Their further case is that the Grama Natham site in front of Suit Item Nos.1 to 3 were also his separate property. On May 1, 1984, the first defendant and his sons namely plaintiff and defendants 2 to 4, entered into an oral partition and equally divided Suit Item Nos.1 to 3 in front of panchayatdhars and in furtherance thereto, a document namely Koor Chit was written for remembrance on May 22, 1984. Accordingly, each of them were allotted ¾ Cents. Since then, the plaintiff and the defendants 2 to 4 were in possession of their respective shares. The second defendant has constructed a tiled-house in the portion allotted to him in 1985 and has been enjoying the same. In 1999, the second defendant demolished the same and took steps to put a new house in the property allotted to him. Further, the first defendant executed a Gift Settlement Deed dated May 29, 2000, settling his share allotted under the oral partition in favour of second defendant. Further case of defendants 2, 3 and 6 is that the first defendant executed a registered Will dated July 24, 2000 bequeathing the Grama Natham site lying in front of Suit Item Nos.1 to 3, having Rought Patta No.751, in favour of second defendant, and the Will came into effect upon the demise of first defendant. Accordingly, the second defendant is in possession and enjoyment of his share (3/4 Cents) allotted under the oral partition, property (3/4 Cents) covered under the Settlement Deed and the property (382.5 sq. ft.) covered under the Will. The 3/4 Cents allotted to the second defendant, the 3/4 Cents settled upon him by first defendant and the property covered under the Will, are all contiguous to each other. The second defendant built a house thereon (i.e., in the land spanning 3/4 Cents + 3/4 Cents + 382.5 sq. ft.). According to the defendants 2, 3 and 6, the Suit description of property is incorrect and the plaintiff has wrongly and clandestinely included the aforesaid Grama Natham site in Suit Item No.1. As Suit Item Nos.1 to 3 (excluding the Grama Natham site / property covered under the Will), which are alone the joint family properties, are already partitioned, the defendants 2, 3 and 6 sought for dismissal of the Suit. PLAINTIFF'S REPLY STATEMENT 6. The plaintiff filed a reply statement, formally denying the averments made in the written statement.

Based on the pleadings, the Trial Court framed the following issues: "1. Whether the properties are joint family properties ? 2. Whether the settlement deed executed by 1 st defendant on 24.05.2000 in favour of 2nd defendant is valid in law ? 3. Whether partition was effected between Plaintiff and defendants ? 4. Whether the plaintiff is entitled to get relief as prayed for ? 5. To what other relief ?"

On April 08, 2005, the following additional issue was framed by the Trial Court: "Additional Issue 1: Whether the properties purchased in the names of the plaintiff, the plaintiff's wife and son are joint family properties and whether the Suit without them as parties is maintainable ? "

The plaintiff's side examined P.W.1 to P.W.4 and Ex.A.1 to A27 were marked. P.W.1 was the plaintiff, P.W.3 was his wife, P.W.4 was her brother and P.W.2 was the fourth defendant. On the side of the defendants five witnesses were examined as D.W.1 to D.W.5 and Exs-B.1 to B10 were marked. D.W.1 was the second defendant, D.W.2 and D.W.3 are said to be the attesting witnesses to the Will. D.W.4 is said to be a witness to the Koor Chit and D.W.5 is said to be the scribe thereof. Further, an Advocate Commissioner was appointed who filed his Report and Plan and the same were marked as Ex-C.1 and Ex-C.2.

After considering the submission and evidence available on record, the Trial Court held that all the suit properties are joint family properties. Ex-B.3 - Koor Chit is an unregistered and unstamped document creating in-praesenti rights and hence, inadmissible in evidence. When Ex- B.3 - Koor Chit is not proved, the first defendant is not entitled to execute Ex-B.4 - Gift Settlement Deed in favour of second defendant and hence, the same is invalid. The Trial Court further held that the properties standing in the name of the plaintiff, his wife and his son are their separate properties and hence, they are not necessary parties and therefore, the Suit is not bad for non-joinder of necessary parties. Accordingly, the Trial Court decreed the Suit qua partition declaring that the plaintiff is entitled to 9/48 share in the suit properties, and dismissed the Suit qua other reliefs.

Feeling aggrieved, the second defendant preferred an Appeal Suit before the First Appellate Court in A.S. No.15 of 2007. The First Appellate Court after hearing both sides, held that the properties described under 'A' schedule of Ex-A.2 - Partition Deed dated June 10, 1970, allotted to first defendant / father - Pachamuthu are ancestral properties in his hand. Ex-B.3 - Koor Chit is true and valid. Ex-B.4 - Gift Settlement Deed is also true and valid. The property covered under Ex-B.1 - Rought Patta No.751 is the separate property of first defendant - Pachamuthu and Ex-B.5 - Will dated July 24, 2000 is true and valid. Accordingly, the First Appellate Court allowed the Appeal, set aside the Trial Court's Judgment and Decree and dismissed the Original Suit.

Feeling aggrieved, the plaintiff has preferred this Second Appeal. The Second Appeal was admitted on November 11, 2006 on the following Substantial Questions of Law: "a) Whether an unregistered document namely Koor Chit is admissible in evidence? b) Whether a settlement deed can be executed by an individual for a family property? c) Is it necessary to send the document for expert opinion, especially when the signatures are disputed? d) Whether the Porambokku lands inherited by adverse possession would form part of family property?"

Mr.D.Manimaran, learned Counsel appearing for the appellant / first respondent / plaintiff, would submit that Suit Item Nos.1 to 3 are joint family properties in the hands of first defendant acquired under Ex-A.2 - Partition Deed dated June 10, 1970. Hence, the marriage of the daughter / fifth defendant took place after Tamil Nadu Act No.1 of 1990 and hence, the plaintiff along with defendants 1 to 5 has equal interest in Suit Item Nos.1 to 3. The second defendant who has set up a plea of oral partition, is bound to prove the same, but he failed to do so. The alleged Koor Chit in Ex-B.3 creates in-praesenti rights. While so, it being unregistered and unstamped, is not an admissible piece of evidence. Since Suit Item Nos.1 to 3 are joint family properties, the first defendant has no right to execute Ex-B.4 - Gift Settlement Deed in favour of second defendant. Further, the first defendant has no right to execute Ex-B.5 - Will dated July 24, 2000 and moreover, it is surrounded by suspicious circumstances owing to the temporal proximity between the alleged execution of the Will and the demise of the testator which is on August 17, 2000. The First Appellate Court miserably failed to consider the aforesaid facts and erred in dismissing the Original Suit. Accordingly, he would pray to allow the Second Appeal, set aside the Judgment and Decree of the First Appellate Court and restore the Judgment and Decree of the Trial Court. The learned Counsel would rely on the following citations: S. No. Citation Cause title 1. (2016) 4 SCC 68 Uttam -vs- Saubhag Singh 2. 2019 (5) CTC 110 Arshnoor Singh -vs -Harpal Kaur 3. 2017 (3) CTC 170 M.Krishnamoorthy -vs -K.Pondeepankar 4. (2022) 3 Mad LJ 503 S.Sampoornam -vs- C.K.Shanmugam

Per contra, Mr.V.Balasubramanian, learned Counsel appearing for first respondent / appellant / second defendant, would submit that 'all the four items' of the suit properties are separate properties of Pachamuthu. Suit Item Nos.1 to 3 are house sites and hence, the first defendant orally partitioned the same equally among himself and his sons in the month of May 1, 1984. Thereafter, the parties were in possession and enjoyment of their respective shares. Only to evidence the same, Ex-B.3 - Koor Chit was written. Since a past transaction is alone recorded, Ex-B.3 - Koor Chit need not be registered or stamped. Accordingly, Ex-B.3 - Koor Chit is valid and admissible. He would further submit that, first defendant settled his share allotted under oral partition dated May 1, 1984 in favour of his son, the second defendant vide Ex-B.4 - Gift Settlement Deed dated May 29, 2000 and hence, the same is valid. As regards Ex-B.5 - Will dated July 24, 2000, as the properties covered thereunder are the separate properties of first defendant, he has every right to dispose it as he desires. Further, the disposition under Ex-B.5 - Will is quite natural as the first defendant did not bequeath all his properties but only the Grama Natham site under the Will. The attestors were examined as D.W.2 and D.W.3 and the Will has been proved as per law. It is not surrounded by any suspicious circumstances. The First Appellate Court after elaborately considering the evidence available on record, rightly allowed the Appeal and dismissed the Original Suit. There is no warrant to interfere with the same. Accordingly, he would pray to dismiss the Second Appeal.

Heard on either side. Perused the evidence available on record in light of the Substantial Questions of Law.

There is no dispute with regard to the relationship between the parties. Admittedly, the first defendant is the father, the sixth defendant is the mother, and the plaintiff and defendants 2 to 5, 7 to 9 are their children. The fifth defendant admittedly remained unmarried at the time of Ex-B.3 - Koor Chit (1984), but there is no evidence in support of plaintiff's contention that the fifth defendant's marriage took place only after Tamil Nadu Act No.1 of 1990. It being the plaintiff's plea, the burden is upon the plaintiff to prove that the fifth defendant's marriage took place after the commencement of Tamil Nadu Act No.1 of 1990, but he failed to prove the same.

Admittedly, Pavadai Pillai who is the father of first defendant and grandfather of plaintiff and defendants 2 to 5 & 7 to 9, purchased a house site measuring north-south 56 feet x east-west 19 feet along with a thatched house thereon as well as an extent of 3 Cents in Survey No.234/3 of Sengam Village vide Ex-A.1 - Sale Deed dated July 2, 1932 from one Arumuga Pillai. Pavadai Pillai had no other properties than this. Pavadai Pillai's three sons including first defendant individually purchased some more properties. The properties covered under Ex-A.1 and the properties purchased by the sons of Pavadai Pillai were put together in a common hotchpot and divided among the three sons of Pavadai Pillai and one daughter namely Aandalammal, vide Ex-A.2 - Partition Deed dated June 10, 1970. In the said partition, 'A' schedule properties therein were allotted to the first defendant and his branch, which included (i) a house site measuring north-south 30 feet x north-south 21 feet along with a tiled house thereon in Natham Survey No.205/2A/1A; (ii) an house site measuring north-south 30 feet x east-west 21 feet in the same Natham Survey No.205/2A/1A; and (iii) an house site measuring 1 ½ Cents in Survey No.234/3. In addition, the first defendant acquired some separate and self-acquired properties which are not covered in the Suit.

Now this Court has to decide the character of the properties in the hands of the first defendant. In Ex-A.2 - Partition Deed dated June 10, 1970, the house sites and house properties were described as acquired from paternal side [gpJuh$pjk;]. There is no evidence on record to show the date of demise of Pavadai Pillai. If he had passed away before the commencement of the Hindu Succession Act, 1956, as such, the property inherited from him would ancestral properties in the hands of his heirs. If he had passed away after the commencement of the Hindu Succession Act, 1956, as such, the property inherited from him would be separate properties in the hands of his heirs qua each other [Vide Arshnoor Singh's Case (cited supra) and S.Sampoornam's Case (cited supra)]. But as stated above, it is not clear when Pavadai Pillai passed away. The plaintiff pleaded that the properties allotted to the first defendant under Ex-A.2 - Partition Deed are joint family properties. The defendants 2, 3 and 6 in Paragraph No.6 of their written statement categorically pleaded that the properties allotted to the first defendant under Ex-A.2 - Partition Deed are ancestral and joint family properties. It is settled law that an admission made in pleadings is a judicial admission, which can however be explained as understood out of context or made based on misunderstanding of certain facts or so. But in this case, no such explanation has been offered in this regard. The Trial Court as well as the First Appellate Court recorded a concurrent finding that the properties allotted to the first defendant under Ex-A.2 - Partition Deed dated June 10, 1970 are joint family properties. In view of the above facts, this Court does not find any reason to disturb the said finding.

The next question that needs to be considered is whether Ex-B.3 - Koor Chit is valid or not. The case of defendants 2, 3 and 6 is that, an oral partition took place on May 1, 1984 among the first defendant and his sons namely plaintiff and defendants 2 to 4. Their further case is that, thereafter, for the purpose of remembrance, on May 22, 1984, Ex-B.3 - Koor Chit was written. The defendants' side examined one of the witness thereto, namely Karunanidhi as D.W.4, and the scribe thereto namely Balarama Chettiar as P.W.5. Their evidence prove the execution of Ex-B.3 - Koor Chit. This Court has perused Ex-B.3 - Koor Chit. It appears that the plaintiff and the defendants 1 to 4 have affixed their signatures therein. The said document is written on an unstamped ordinary white paper. Though the plaintiff and the fourth defendant denied their signatures found therein, they did not take any steps to send Ex-B.3 - Koor Chit for forensic examination and signature verification while they ought to have done so. More so, when the plaintiff and the fourth defendant preferred to deny the said document in Ex-B.3 for the first time after 16 years of its execution. Substantial Question of Law (c) is answered accordingly. In Ex-B.3 - Koor Chit, the properties acquired by the first defendant under Ex-A.2 - Partition Deed had been divided more or less equally among the plaintiff and defendants 1 to 4. The properties being situate in the same street, are of similar features and value. To show the division of properties and the lie and location of the shares of the plaintiff and the contesting defendants, filed a rough sketch, which upon comparison with the Koor Chit, this Court finds to be correct. It could been that the allotment was such that defendants 1 and 2 were each allotted ¾ Cents contiguous lands, and defendants 3 and 4 were allotted 391 sq. ft. each, and the plaintiff was allotted nearly 360 sq. ft. with right to pathway from the main road. The recitals in Ex-B.3 - Koor Chit are in present as well as past tense. For instance, at one place it is stated in present tense as if the parties are thereby partitioning [“ghfg;gphptpid bra;Jbfhs;fpnwhk;”] and in another place it is stated in past tense as if the parties had been enjoying separately and as if they had already agreed to certain things [“jdpj;jdpna mDgtpj;J ... ... ... ehk; Kot[[ bra;J bfhz;nlhk; ... ... ... xg;g[f;bfhs;sg;gl;lJ.”]. In some places, future obligations have been stated, for instance, the plaintiff and defendants 1 to 4 have to contribute their sister / fifth defendant's marriage. Last but not the least, the nomenclature of Ex-B.3 document is "ghf Th;rPl;L cld;gof;if". Relevant extract from Ex-B.3 - Koor Chit reads thus: "...ehk; midtUk; nrh;e;J ekJ Tl;L FLk;g tPL. tPl;L fhypkid bghUj;jkl;oy; Vw;gLj;jpf;bfhz;l ghfTh;rPl;L cld;gof;if vd;dbtd;why;/ fhyk;brd;w 1 yf;fkpl;lth;fspd; jfg;gdhh; ghthil gps;is Rakha; rk;ghjpj;J mDgtpj;J te;J 1970k; Mz;L Vw;gl;l gjpt[ bra;j ghfg;gj;jpug;gof;F 1 yf;fkpl;l gr;rKj;J gps;is te;jile;j br';fk; fpuhkk;. fpuhkej;jk; rh;nt vz;/205/2V/1y; cs;s tPL. $';fk fpuhk; g[v{;ir rh;nt vz;/234/3 vz;qs;s fhypkid Mf bkhj;jk; 04 1/2 bfhz;l mstpyhd tPL kw;Wk; fhypkidia ekf;Fs; fPH;fz;lthW ghfg;gphptpid bra;J bfhs;Sfpnwhk;/ me;jg;gof;F xt;bthUtUk; ek; jdpj;jdpna mile;J mDgtpj;Jf;bfhs;s ntz;oaJ vd Kot[ bra;J bfhz;nlhk;/ ,ij jtpu ek; midtUf;Fk; ghj;jpag;gl;l bghJ FLk;g brhj;Jf;fs; VJkpy;iy/ 1 yf;fkpl;l gr;rKj;Jg;gps;is Vfkha; rk;ghjpj;J br';fk; fpuhkj;jpy; cs;s Rakhd tPl;Lkid ,Jfis itj;J ,d;Dk; jpUkzk; bra;a ntz;oa (5 yf;fkpl;l bry;td; 1 yf;fkpl;lthpd; filrp kfs; rhe;jp Mfpath;fSf;F) jpUkzk; bra;J bfhs;s ntz;oaJ/ njitf;F Vw;g 2/3/ 4 yf;fkpl;l ehk; nkw;go jpUkzj;Jf;F ntz;o gz cjtpia bra;a ntz;oaJ vd;Wk; xg;g[f;bfhs;sg;gl;lJ/ ,e;j Vw;ghl;il gv{;rhaj;jhh;fs; Kd;dpiyf;F ehk; xg;g[f;bfhz;L ghf Th;rPl;L cld;gof;if vGjpf;bfhz;nlhk;.;//"

Considering the cumulative circumstances, especially equal division of properties, denial by plaintiff and fourth defendant about 16 years of its execution coupled with the non-denial by the others, the fact that the parties are all educated [the plaintiff is a Village Administrative Officer], this Court finds Ex-B.3 - Koor Chit is a Memorandum recording an earlier partition. Accordingly, it need not be registered or stamped and it is valid and admissible as such. Substantial Question of Law (a) is answered accordingly. This means, the properties that fell into the hands of the first defendant under Ex-A.2 - Partition Deed dated June 10, 1970, which are the Suit Item Nos.1 to 3, have already been partitioned orally in 1984. Hence, the plaintiff wants to unsettle what has already been settled and the same cannot be permitted.

So, Ex-B.3 - Koor Chit is proved as recording the past transaction of oral partition of Suit Item Nos.1 to 3 on May 2, 1984. Under Ex-B.4 - Gift Settlement Deed dated May 29, 2000, the first defendant settled upon the second defendant his share allotted under the oral partition subsequently recorded in Ex-B.3 - Koor Chit. The property having been allotted to him under a partition is his separate property and not his family property. Hence, Substantial Question of Law (b) does not arise at all in this case. The plaintiff did not specifically deny the execution of Ex-B.4 - Gift Settlement Deed dated May 29, 2000 and hence, the examination of the attesting witnesses or scribe thereto is not necessary; the production of the original Gift Settlement Deed is sufficient and the same is found in Ex- B.4. Hence, Ex-B.4 is valid.

As regards Ex-B.5 - Will dated July 24, 2000, it being a registered Will, mere formal proof is sufficient. The property covered thereunder namely the Grama Natham site is a separate property of the first defendant allotted to him by Government vide Ex-B.1 - Rough Patta No.751 issued in the year 1999 by Special Tahsildhar Natham Land Tax Scheme. It is not a poromboke land acquired by adverse possession. Hence, Substantial Question of Law (d) does not arise at all in this case. The defendants have examined the attestors of Ex-B.5 as D.W.2 and D.W.3 and proved its validity as per Section 63 of the Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act, 1872. The disposition under Ex-B.5 - Will is natural as the testator bequeath only a portion of his separate properties and not all his separate properties. The property covered under Ex-B.5 - Will is an extent of 382.5 sq. ft. which is contiguous to the property allotted to the second defendant's share under Ex-B.3 as well as the property settled upon the second defendant by first defendant vide Ex-B.4 - Gift Settlement Deed. Hence, the purpose behind the testamentary disposition could have been to enable the second defendant to conveniently construct a house and enjoy the same. In these circumstances, this Court is of the view that there are no suspicious circumstances surrounding Ex-B.5 - Will and it has been proved as per law.

As regards Suit Item No.4, it is an extent of 3 Acres 3 Cents and some more extent in Survey No.148/2A of Sengam Village, which was acquired by first defendant under Ex-A.3 and Ex-A.4 - Sale Deeds dated June 9, 1955 and June 29, 1960 respectively. It is his separate property. When questioned by this Court, the learned Counsels on either side submitted in unison that Suit Item No.4 is a separate property of the first defendant. As stated supra, Suit Item Nos.1 to 3 have already been partitioned and only Suit Item No.4 being separate property of the first defendant is available for partition. Upon the demise of the first defendant, it would devolve upon his legal heirs under Section 8 of the Hindu Succession Act, 1956. Admittedly, the sixth defendant being the wife of first defendant has passed away. Hence, the Suit Item No.4 would devolve upon the plaintiff, defendants 2 to 5 & 7 to 9 qua legal heirs of the first defendant. Each of them would be entitled to equal i.e., 1/8 share in Suit Item No.4. Therefore, this Court is inclined to grant a Preliminary Decree for partition in favour of the plaintiff in respect of 1/8 share in Suit Item No.4 alone.

There is no quarrel with the other case laws relied on by the learned Counsel for the appellant.

In fine, this Second Appeal is partly allowed in the following terms: (a) The Judgments and Decrees of the First Appellate Court and the Trial Court are set aside. A Preliminary Decree for partition is granted in favour of the plaintiff in respect of Suit Item No.4 alone i.e., an extent of 3 Acres 3 Cents in Survey No.148/2A alone. Suit Item No.4 shall be divided into eight equal shares and one such share shall be allotted to the plaintiff. (b) Considering the facts and circumstances, there shall be no order as to costs. (c) Consequently, connected Miscellaneous Petition is closed.