D AGASTIN Vs. DEVASAGAYAN

JUDGEMENT

(1.) Defendants 1 and 2 in O.S. No. 229 of 1997 on the file of the District Munsif, Nagapattinam, are the revision petitioners. The first respondent is the plaintiff in that suit and the second respondent is the third defendant in that suit. A document dated 5-8-1991 came to be marked through the plaintiff during trial. According to the plaintiff, it was a partition list evidencing the event of partition that had already taken place. According to the defendants, it is the partition deed itself creating an interest in praesenti over the immovable properties worth more than Rs. 100/- and therefore it is inadmissible in evidence in the context of Ss. 17 and 49 of the Registration Act. The learned trial Judge by order dated 8-7-1998 overruled the objections of the defendants and directed the document to be marked as Ex. A-2. In so doing, the learned trial Judge was of the opinion that the probative value of the said document could be looked into at a later stage and the defendants have enough opportunity to attack the same. It is against this order, this revision is before this Court.

(2.) I heard Mr. Srinath Sridevan, learned counsel for the petitioners and Mr. T. R. Rajaraman, learned counsel appearing for the first respondent in this revision. According to Mr. Srinath Sridevan, the document referred to above is in fact a partition deed by itself which determines the rights of parties over immoveable properties. As it creates a right, title and interest of the value of Rs. 100/- and more in immovable properties, the said document is compulsorily registrable. Such document which requires compulsory registration shall not be received as evidence under S. 49(c) of the Registration Act. Therefore according to the learned counsel for the petitioners, the order of the lower Court has to be set aside and the document should be eschewed from consideration. Mr. T. R. Rajaraman, on the other hand would argue that the document is not a partition deed but it is only a memorandum of record evidencing the partition that had already taken place. Therefore the law does not require such a document to be registered compulsorily.

(3.) In the context of the arguments advanced on either side, I perused the pleadings as well as went through the document itself. When the admissibility of a document is raised, it is the duty of the Court to find out what exactly the document conveys. Two learned Hon'ble Judges of this Court in the judgment in Panchapagesa v. Kalyanasundaram, AIR 1957 Mad 472 held as to what should be the approach of the Court in such circumstances."(19) In construing such documents for the purpose of determining whether or not there is a creation or declaration of a right or title in the sense contemplated by S. 17 of the Act, undue emphasis should not be laid on isolated words and phrases in the document. The Court must read the document as a whole and take a broad view of the circumstances in which and the purpose for which it was written.Looking at the substance of the transaction the Court must arrive at the conclusion one way or the other whether the parties in fact intended the document to be an instrument of partition and the sole evidence of partition and as actually effecting a division of the property. Subba Rao v. Mahalakshmma, ILR 54 Mad 27 at p. 50 : AIR 1930 Madras 883 at pp. 891-892 (Curgenven, J.); Bhangaji v. Pandurang, 76 Ind Cas 158 at p. 160 : AIR 1924 Nagpur 395 at pp. 397-398; Rudragowda v. Basangounda, 40 Bom LR 202 at p. 233 : AIR 1938 Bombay 257 at pp. 274-275."Having the principles laid down above, I applied my mind to the case on hand. The suit is for recovery of possession of the moveables mentioned in Schedule A to the plaint or, in the alternative, the money value of the same as well as for the recovery of the immoveable properties set out in Schedules B and C to the plaint. The next prayer in the suit is for mesne profits till such time the plaintiff gets possession of the immoveable properties. The plaintiff and the second defendant are the sons of the first defendant. The first defendant had two more sons. There was a partition between the first defendant and his four sons under a deed of registered partition dated 29-3-1979 in respect of the properties owned by the family. As Sebastian, one of the sons of the first defendant and who is not a party to the suit, was creating problems in respect of the division, the said registered partition deed dated 29-3-1979 was later avoided and ignored and in the presence of mediators, a partition list dated 5-6-1981 was prepared in respect of the family properties between the father and his sons. As per the partition list, the properties allotted were left to be in the possession of the respective parties. The further allegation in the plaint is that the properties so allotted to the plaintiff under the partition list dated 5-6-1981 continued to be in the occupation of the first defendant as the plaintiff was then a minor. The partition list was filed as document along with the plaint and the xerox copy of the earlier registered partition dated 29-3-1979 was also filed before the Court. There is an allegation in the plaint itself that though the document dated 5-6-1981 referred to earlier is styled as partition deed, yet in effect it is only a partition list. In any event, as the execution of the document dated 5-6-1981 has been admitted by the contesting parties, they cannot have any objection for delivering the properties mentioned therein to the plaintiff. The cause of action alleged in the plaint is so- called partition list dated 5-6-1981. Therefore it is clear that the suit for recovery of possession is based on the document dated 5-6-1981.