(Prayers: Appeal Suit filed under Section 96 of the Civil Procedure Code praying this Court, to set aside the Judgment and Decree passed in O.S.No.12 of 2006 on the file of the IV Additional District Judge, Madurai, dated 10.07.2013.

Appeal Suit filed under Section 96 of the Civil Procedure Code praying this Court, to set aside the Judgment and Decree dated 10.07.2013 in O.S.No.12 of 2006 on the file of the 4th Additional District Court, Madurai and allow this first appeal.

Appeal Suit filed under Section 96 of the Civil Procedure Code praying this Court, to set aside the Judgment and Decree passed in O.S.No.12 of 2006 on the file of the IV Additional District Judge, Madurai, dated 10.07.2013.)

Common Judgment

G.R. Swaminathan, J.

1. These appeals are directed against the judgment and decree dated 10.07.2013 made in O.S No.12 of 2006 on the file of the IV Additional District Judge, Madurai.

2. The suit was primarily one for partition and separate possession. The suit prayer also includes injunction against defendants 1 to 4 from alienating the suit schedule properties till the disposal of the suit. The plaintiff is the son of D.Mayandi (the first defendant). According to the plaintiff, the first defendant married M.Petchi (the sixth defendant) and through the said wedlock, he was begotten ; the said marriage was not dissolved in the manner known to law ; the first defendant developed intimacy with Jeya (the seventh defendant) and through the said relationship, the defendants 2 to 4 were born ; there was a partition between Mayandi and his brothers on 01.04.1973 ; subsequently, there was another partition involving Mayandi and his brothers and their mother on 06.12.1976 ; the suit scheduled properties are either coparcenary properties or purchased out of their income ; the defendants 2 to 4 cannot have any share as they are the illegitimate children of the first defendant. Claiming that he is entitled to half share in the suit scheduled properties, O.S.No.12 of 2006 came to be instituted.

3. During the pendency of the suit, Mayandi passed away. The plaintiff amended the suit prayer accordingly and claimed 5/8th share in the suit scheduled properties.

4. The first defendant along with the second defendant Venkateswaran filed written statement denying the plaint averments. The coparcenary character attributed to all the suit properties was contested. According to them, the marriage between the first and sixth defendant in the year 1958 was dissolved through a customary divorce as per the Kallar community practice on 27.09.1961 ; the sixth defendant remarried ; the first defendant took the seventh defendant as his legally wedded wife ; the second, third and fourth defendants are the legitimate children of the first defendant ; since the plaintiff raised dispute, there was a family arrangement on 05.04.1999 among all the members including the plaintiff ; the plaintiff signed in the family arrangement ; he had also acted upon it ; he had already received his share as per the arrangement and has no locus to file the suit for partition. The contesting defendants questioned the maintainability of the partition suit.

5. The second defendant filed additional written statement. He averred that no ancestral property was sold and proceeds utilized for starting Velmurugan Tyres Retreading Company and Velmurugan Transport. He enumerated the properties received by the plaintiff vide the family arrangement. The fifth defendant (Union Bank of India) who had been inducted as a tenant by the seventh defendant also filed written statement. They averred that the property described as the Third Schedule property, Division D item No.21 is not the joint family property but the absolute property of the seventh defendant. It was originally purchased by her from A.R.Alagammai Achi Trust on 19.09.1979 and was later mortgaged with the Bank for availing loan under the Union Rent Scheme. They have been in occupation of the premises as a tenant and have been adjusting the rental income towards loan amount.

6. Based on the rival pleadings, the court below framed the following issues:-

                  “1.Whether the plaintiff is entitled to half share in the suit properties?

                  2. Whether the plaintiff is entitled for partition ?

                  3. Whether the plaintiff is entitled to get mesne profts?

                  4. Whether the defendants 1 to 4 are liable to render the account?

                  5. To what relief if any plaintiff is entitled?

                  6. Whether the 1st defendant executed a Will dated 13.12.2004?”

7. The plaintiff examined himself as P.W.1. Ex.A1 to Ex.A4 were marked. Mayandi examined himself as D.W.1. Venkateswaran / 2nd defendant examined himself as D.W.4. Two other witnesses were examined on the side of the defendants. Ex.B1 to Ex.B19 were marked. hearing both parties and considering the evidence on record, the below granted preliminary decree holding that the plaintiff is entitled to 5/8th share in the suit properties. The court below gave a finding that the suit properties are ancestral properties and that the coparcenary comprised the plaintiff and the first defendant. It was also held by the court below that the marriage between first defendant and sixth defendant was not dissolved in the manner known to law. The first defendant died intestate during the pendency of the suit proceedings. Therefore, the defendants 2 to 4, notwithstanding their illegitimate status, were entitled to their share in the half share of the first defendant in the suit scheduled properties.

8. Aggrieved by the said Judgment and decree, the children of Mayandi, namely, D2 to D4 have filed these independent appeals. Jaya, the seventh defendant joined her daughter as a co-appellant in AS(MD)No.146 of 2017.

9. The learned counsel appearing for the appellants contended that the court below erred in holding that Ex.B16-family arrangement is not a valid document. He pointed out that the plaintiff was very much a signatory to the document along with the first defendant, second defendant, third defendant, fourth defendant and seventh defendant. His contentions are as follows :

10. Ex.B16 dealt with the properties that belonged not only to the Joint Hindu family but also those that stood in the individual names including that of Jeya. When once certain properties had been allotted to the plaintiff in terms of the said document and the said document also reads that the plaintiff shall have no further claim on any of the other properties, the suit seeking partition was clearly not maintainable. Ex.B16 was also acted upon by the plaintiff. The property allotted to him was sold by him vide Document No.11593/2012 on the file of the Joint Sub Registrar Office, Madurai. The said document could not be produced before the court below. That is why, the said document is sought to be marked as additional evidence by filing an application under Order 41 Rule 27 of C.PC. Since the execution of the said document has not been contested, this Court can take the same on record without requiring it to be marked through witness. Once this Court dislodges the finding of the court below with regard to the validity of Ex.B16-family arrangement, the logical consequence is that the Judgment and decree of the court below has to be set aside.

11. Per contra, the learned Senior Counsel appearing for the plaintiff/first respondent submitted that Ex.B16 is neither a partition deed nor a release deed. It is confined only to the items set out therein. Ex.B16 on a true construction leads to the inference that the plaintiff will not be entitled to any share in the self-acquired properties of the defendants 1 to 5 and 7. But it did not exclude his right over the joint family properties. Since the plaintiff alone is the legitimate son of the first defendant and D2 to D4 are the illegitimate children, they can only claim the first defendant's share in the suit scheduled properties and nothing more. The father of the plaintiff was in a dominant position and he has not given correct and equal share to his legitimate son. The court below has merely applied the mathematical formula and the said Judgment does not call for interference. He pressed for dismissal of the appeals.

12. After hearing submissions on either side, the following points arise for determination:-

                  “1.Whether the marriage between the first defendant and sixth defendant was dissolved in the manner known to law?

                  2. Whether the suit schedule properties are ancestral properties?

                  3. Whether D2 to D4 are the legitimate children of D1 (Mayandi)?

                  4. Whether the suit for partition is maintainable in view of Ex.B16-family arrangement?

                  5. Whether C.M.P.(MD)No.13307 of 2024 filed under Order 41 Rule 27 of CPC deserves to be allowed and the additional evidence to be taken on record straight away?”

13. When the matter was taken up for hearing, the learned counsel for the appellants conceded that the evidence on record is insufficient to prove that customary divorce had taken place between the first defendant and sixth defendant. They also did not press for considering the second issue. Consequence of this concession is that the plaintiff's status as the only legitimate son attains finality. The focus of the appellants' counsel was more on demonstrating the validity of Ex.B16-deed of family arrangement and to show that it was acted upon. That is why, C.M.P. (MD)No.13307 of 2024 has been filed for marking a registered sale deed dated 28.11.2012 (Document No.11593/2012) on the file of the Joint Sub Registrar Office, Madurai as Ex.B20.

14. When an application for adducing additional evidence is allowed, the Court has to follow the procedure set out in Order 41 Rule 28 of CPC. But in the case on hand, the execution of the sale deed dated 28.11.2012 is admitted. In fact, the counter affidavit filed in C.M.P. (MD)No.13307 of 2024 is more about expounding the nature of Ex.B16 document. The plaintiff had gone to the extent of contending that since the sale deed dated 28.11.2012 was executed during the pendency of the suit, it is a lis-pendens document and its validity has to abide by the outcome of the suit. We are, therefore, of the view that this document can be marked as Exhibit B20 provided the requirements set out in Order 41 Rule 27 of C.PC are fulfilled.

15. Order 41 Rule 27(1)(b) of CPC provides that if the appellate requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the appellate court may allow such evidence or document to be produced or witness to be examined. The Hon'ble Supreme Court in the decision Wadi vs. Amilal reported in (2015) 1 SCC 677 interpreted sub-clause b) in the following terms:

                  “7. ..The requirement or need is that of the appellate court bearing in mind that the interest of justice is paramount. If it feels that pronouncing a judgment in the absence of such evidence would result in a defective decision and to pronounce an effective judgment admission of such evidence is necessary, Clause (b) enables it to adopt that course. Invocation of Clause (b) does not depend upon the vigilance or negligence of the parties for it is not meant for them. It is for the appellate court to resort to it when on a consideration of material on record it feels that admission of additional evidence is necessary to pronounce a satisfactory judgment in the case.”

                  It is not in dispute that Ex.B16 was duly executed and registered. While the plaintiff would contend that it was not acted upon, the defendants would argue that it was duly acted upon. The entire dispute revolves around the issue as to whether Ex.B16 was duly acted upon or not. The additional evidence now sought to be adduced would definitely throw light on this issue. Thus, it would facilitate a just disposal of the case and enable this court to pronounce a satisfactory judgment in the case. Without the benefit of the additional evidence, our judgment would be defective. In this view of the matter, we allow C.M.P.(MD)No.13307 of 2024 and mark the sale deed dated 28.11.2012 as Ex.B20.

16. Ex.B16 has been styled as “FLk;g Vw;ghL gj;jpuk;” meaning “Deed of Family Arrangement”. The learned counsel for the plaintiff / contesting respondent would argue that the true nature of a document cannot be determined by its nomenclature. This proposition is beyond cavil. Let us examine the actual effect of the said document. Admittedly, the plaintiff was a party to this document along with his father Mayandi and half siblings (D2 to D4) and Jeya (D7) who has been described in maternal terms (rpwpa jhahh;). The tamil expression if literally translated means “small mother”. The expression “aunt” will not convey the actual import of the said expression. Ex.B16 can be parsed as follows:-

                  A. Parameswaran (plaintiff) was the son born through the first wife of Mayandi. The said marriage was dissolved through customary divorce some 37 years earlier. Since then, Mayandi and the first wife are not having any connection with each other.

                  B. Parameswaran had already been granted bus permit.

                  C. He made a request through elders for allotment of more properties. Mayandi, Jeya (second wife) and the four children are having their own independent businesses for 14 years. In order to avoid future disputes and bearing in mind the larger family interest, the family arrangement has been worked out.

                  D. Mayandi and Jeya were having four bus permits. Out of the same, the plaintiff was to take the bus along with the license permit for one of the routes (Madurai to R.S.Mangalam route). He was also to take the permit for another route namely (Madurai to Theni). Since it was standing in the name of the third defendant (Maheswaran), Parameswaran was to transfer the permit for the route from Thondi to Sikkal in his favour. Parameswaran was also to take four items of immovable properties. The bus routes and the properties standing in the name of Mayandi and Jeya were to devolve on Venkateswaran, Chamundeeswari and Maheswaran. Parameswaran shall not have any claim on them.

17. The court below had given three reasons for rejecting Ex.B16. Firstly, the document has been the subject matter of deficit stamp duty proceedings and kept as a pending document; secondly, the defendants have not proved Ex.B16 in the manner known to law ; thirdly, Ex.B16 contains recitals with regard to customary divorce between Mayandi and Petchi which cannot be upheld. The court below came to the conclusion that the parties have abandoned the arrangement.

18. None of the above reasons can hold good for the reasons mentioned hereunder :

                  i) Admittedly, Ex.B16 is a registered document. Hence, the presumption set out in Section 60 of the Registration Act, 1908 of the Act will kick in. The said provision reads as follows:

                  “60. Certificate of registration.

                  (1) After such of the provisions of sections 34, 35, 58 and 59 as apply to any document presented for registration have been complied with, the registering officer shall endorse thereon a certificate containing the word registered, together with the number and page of the book in which the document has been copied.

                  (2) Such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in section 59 have occurred as therein mentioned.”

                  A learned Judge of this Court in the decision reported in 1977 SCC OnLine Mad 157 (Mariyam Bivi v. Natharsa Rowther Trust) held as follows:-

                  “6...Under this provision, where registration is granted by any registering authority to any instrument, such a certificate shall be admissible for the purpose of proving that the document had been duly registered in the manner provided by the Act and that the facts set out by the registering authority in the endorsements made by him in the instrument had all occurred as therein mentioned. This provision, no doubt, enacts only a rebuttable presumption as to the facts relating to the validity of registration, but the effect of the provision, all the same, is to place the burden of proof squarely and unmistakably on the party who denies registration or its validity.”

                  There is presumption which attaches to the correctness of the endorsement made on the document by the Registrar's office (vide Sujan Bhabani Prasad Chatterjee v. Rajendra Kumar Singh, 2019 SCC OnLine Bom 1315). In the 15th Edition of Mulla's Commentary on the Registration Act, 1908 revised by Shri Srinath Sridevan, Section 60(2) is described as embodying a special rule of evidence.

19. The plaintiff who examined himself as P.W.1 was confronted with Ex.B16. The plaintiff did not deny the signature attributed to him in Ex.B16. He also conceded that he did go to the Sub Registrar's Office. His defence was that he signed because his father exercised undue influence on him and coerced him to sign. It is well settled that general allegations are insufficient. Merely making an averment that there was commission of fraud/undue influence /coercion is not enough. (vide Bishundeo Narain v. Seogeni Rai (1951) SCC 447). The Hon'ble Supreme Court in the decision reported in (2024) 14 SCC 569 (Placido Francisco Pinto v. Jose Francisco Pinto) held that in terms of Order 6 Rule 4 of the Code, in all cases in which the party pleading relies on any misrepresentation, fraud, or undue influence shall state in the pleadings the particulars with dates and items in the pleadings. The burden would lay only on the person raising such plea. The plaintiff nowhere makes a reference to Ex.B16 in the plaint. To him, the document never existed. Even though in the written statement, the defendants had contended that on account of the family arrangement among the parties, the suit would not lie, the plaintiff did not file any replication denying the execution. Of-course, filing of replication is not a sine-qua-non. But then, in the facts and circumstances of this case, filing of replication was necessary because during arguments, the plea of coercion and fraud have been set up. The plaintiff failed to amend the plaint suitably. Allegations of fraud/undue influence/coercion have to be specifically pleaded and proved. They cannot be established through oral submissions.

20. The stand of the defendants was that this document had already been acted upon. To prove the same, they have marked the sale deed dated 28.11.2012 as Ex.B20 before us. The plaintiff does not deny having executed this document. In fact, he admits its execution. This document came to be executed during the pendency of the suit proceedings. That was after examination of the witnesses but before the judgment was pronounced. That is why, the appellants claim that they did not have knowledge of the execution of this document.

21. We had admitted this document and marked it since that would enable us to pronounce an effective judgment. The judgment of the court below has turned out to be defective, because it did not have the benefit of this document. As already mentioned under Ex.B16, four items of immovable properties were allotted to the plaintiff. The first item of property under the family arrangement in Ex.B16 is the subject matter of sale in Ex.B20. This clinchingly shows that the plaintiff did act upon the family arrangement.

22. Parameswaran / plaintiff and the executant of the sale deed dated 28.11.2012 Ex.B20 traces his title to the family arrangement deed dated 07.04.1999. In fact, he is also conscious that the said document was kept as pending document on account of stamp related issues. It was finally released as Document No.1734/2009 on 15.09.2009. This development that took place during the pendency of the suit is specifically mentioned in the sale deed dated 28.11.2012. Ex.B20 seals the plaintiff's case. It clearly clinches the issue in favour of the contesting defendants. The court below erred in holding that the document continued to remain as a pending document. It was not so. The document had already been released since all the stamp related issues had been resolved.

23. It is true that some of the averments in Ex.B16 may not pass the legal muster. For instance, customary divorce said to have taken place between Mayandi and Petchi was specifically not sustained by the court below. Merely because Ex.B16 talks about the said customary divorce, it will not become an invalid document. It is also true that Jeya cannot be considered as legally wedded wife of Mayandi. As a result, the children born to Jeya are also not the legitimate children of Mayandi. But for these reasons, Ex.B16 will not cease to be a deed of family arrangement. The purpose of Ex.B16 was only division of properties and not conferment of status.

24. The Division Bench of this Court in the decision reported in 2001 (1) CTC 112 (A.C.Lakshmipathy Vs. A.M.Chakrapani Reddiar) had dealt with a similar issue in the following terms:

                  “12. The next aspect to be considered and dealt with is as to who can be the parties to the family arrangement or in other words, how the term 'family' has to be understood while understanding the family arrangement..

                  13. In Ram Charan Das v. Girja Nandini Devi and others, , the Supreme Court held that the word family has not to be understood in a narrow sense of being group of persons whom the law recognizes as having a right of succession or having a claim to a share in the disputed property. In fact, in a subsequent ruling reported in M/s. D.N. Roy v. State of Bihar, , the Supreme Court held that if the dispute is settled between near relations, then the settlement of dispute can be considered as a family arrangement.

                  14. A learned single Judge of this Court in a ruling reported in Thirumathi Ramayammal v. Thirumathi Muthammal, 1974 (2) M.L.J. 34 ruled that, " it is well established that a party who takes benefit under a family settlement need not necessarily be shown to have, under the law, a share in the property and all that is necessary to show is that the parties are related to each other in someway and have a possible claim to the property or even a semblance of a claim on some ground or other. This is clear from the decision of the Judicial Committee in Rangasami Gounden v. Nachiappa Gounden and the decision of the Supreme Court in Ram Charan Das v. Girja v. Nandini." In Kale v. Deputy Director of Consolidation, the Supreme Court ruled, "That is why the term 'family' has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed forever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless and futile litigation is able to devote its attention to more constructive work in the larger interest of the country."

                  The Supreme Court further held:

                  "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 of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and courts will find no difficulty in giving assent to the same."

                  In Lakshmi Ammal and others v. Chakravarthi and others, , the Supreme Court held that, ".....it is not necessary that the parties being members of the family and claiming right in the property are in law entitled to some share."

                  The next question is as to when such a family arrangement can be effected or what can be the provocation.

                  15. It is now settled law that to effect a family arrangement, "all that is necessary is that the parties must be related to one another in some way and have a possible claim to the property or a claim or even a semblance of a claim on some ground as, say affection". It was so held by the Apex Court in Ram Charan Das's case (cited supra) .

                  ....

                  16. In the ruling reported in Kale v. Deputy Director of Consolidation, , the Court after referring to various earlier rulings, observed thus:-

                  "Conflict of legal claims in praesenti or in futuro is generally a condition for the validity of the family arrangement, it is not necessarily so. Even bona fide disputes, present or possible, which may not involve legal claims will suffice. Members of a joint family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such a family arrangement is entered into bona fide and the terms thereof are fair in a circumstance of a particular case, Courts will more readily give accent to such an agreement than to avoid it.

                  Family arrangements can bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all will be favoured."

25. The aforesaid decision squarely applies to the facts and circumstances of this case. The very purpose of entering into the family arrangement is to ensure that all the issues are given quietus and are not agitated again. Halsbury’s Laws of England describes a family arrangement as “an agreement between members of the same family intended to be generally and reasonably for the benefit of the family, either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour”. Ex.B20 is the evidence of the fact that family arrangement was acted upon by the plaintiff also. Once it is seen that the plaintiff has himself acted upon the family arrangement under Ex.B16, the rule of estoppel contained in Section 115 of the Indian Evidence Act, 1872 would kick in.

26. The Hon'ble Supreme Court in Sahu Madho Das v. Pandit Mukand Ram (1955) 2 SCR 22), observed as follows :

                  "But, in our opinion, the principle can be carried further and so strongly do the courts lean in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all, that we have no hesitation in taking the next step (fraud apart) and upholding an arrangement under which one set of members abandons all claims to all title and interest in all the properties in dispute and acknowledges that the sole and absolute title to all the properties resides in only one of their number (provided he or she had claimed the whole and made such an assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration is present.”", 1967 MLJ 2 14, (Mar 1, 1966)”

27. It is the duty of the Courts to give effect to the terms of the family arrangement (vide Lala Khunni Lal v. Kunwar Gobind Krishna Narain, 1911 SCC OnLine PC 14). We, therefore, set aside the finding of the court below that Ex.B16 is not a valid document. Once this finding is dislodged, consequence is that the suit for partition becomes not maintainable. In this view of the matter, the impugned judgment and decree passed by the court below is set aside. These Appeal Suits are allowed. Consequently, connected miscellaneous petitions are closed.