Supreme Court of India
K. ARUMUGA VELAIAHversusP.R. RAMASAMY AND ANR.
- Citation
- 2022 INSC 103
- Decided
- 27 January 2022
- Disposal
- Dismissed
- Bench
- L NAGESWARA RAO
Holding
The 1964 panchayat award was a mere family arrangement that did not create specific property rights and thus did not require registration, and the earlier finding of partition in A.S. No. 37 of 1993 has attained finality, rendering the present suit barred by res judicata.
Summary
The appellant‑plaintiff, K. Arumuga Velaiyah, claimed a one‑fourth share in ancestral joint family property based on a 1994 will of his grandfather, Periyaiya Servai, and sought partition and separate possession. The lower courts dismissed the suit, holding that a partition had already been effected in 1964 by a panchayat award and that the finding was final, invoking res judicata. The High Court affirmed this view. The Supreme Court examined whether the 1964 award required registration under the Registration Act, 1908, and whether the earlier finding of partition was binding. It held that the award was merely a memorandum of understanding/family arrangement that did not create specific rights in immovable property and therefore did not need registration under s. 17(1)(e) or s. 17(2)(v). Consequently, the 1964 partition finding had attained finality, and the present suit was barred by the principle of res judicata. The appeal was dismissed.
Issues considered
- The award of partition dated 13 June 1964, though unregistered, whether it created enforceable rights in specific immovable property.
- Whether such an award falls within the compulsory registration provisions of Section 17 of the Registration Act, 1908.
- Whether the finding of partition in Appeal Suit No. 37 of 1993 is binding on the parties under the doctrine of res judicata.
- Whether the plaintiff can claim a one‑fourth share under the 1994 will despite the earlier partition.
- Whether the principle of res judicata applies even if the earlier judgment is alleged to be erroneous.
Legislation cited
- Arbitration Act, 1940
- Code of Civil Procedure, 1908s. 11
- Registration Act, 1908s. 17(1)(e), s. 17(2)(v), s. 23, s. 25, s. 49
Subjects
res judicatapartitionregistration actfamily settlementmemorandum of understandingcivil procedurejoint family propertywill
Judgment
692 [2022]REPORTS
SUPREME COURT 11 S.C.R. 692 [2022] 11 S.C.R.
A K. ARUMUGA VELAIAH
v.
P.R. RAMASAMY AND ANR.
(Civil Appeal No. 2564 of 2012)
B JANUARY 27, 2022
[L. NAGESWARA RAO, B. R. GAVAI AND
B. V. NAGRATHNA, JJ.]
Code of Civil Procedure, 1908 – Res Judicata –Registration
Act, 1908 – s.17 – One ‘PS’ had two wives – From his first wife, he
C had 4 daughters and a son (first defendant) and through his second
wife he had two sons; second defendant and late‘M’ – Second
defendant’s son is plaintiff – Plaintiff has averred that he has a
right to one-fourth share of PS under a will dated 26.01.1994 –
Plaintiff has sought partition and separate possession of his one-
fourth share in the suit schedule properties – District Munsiff
D dismissed the suit – First Appellate Court also dismissed the appeal
and cross appeal – First Appellate Court held that in an earlier
Appeal Suit No. 37 of 1993 that the suit properties were partitioned
in the year 1964 and were binding on the parties and hence a fresh
suit filed by the plaintiff seeking the very same relief was not
E maintainable – High Court held that in an earlier Appeal Suit No.
37 of 1993 that all the joint family properties had been divided into
three shares in favour of the sons of PS – Against the said decision,
no appeal had been preferred and hence the finding regarding the
partition had attained finality – Therefore, the instant suit was barred
by the principle of res judicata – Before the Supreme Court, point
F for consideration whether, the suit filed by the plaintiff is barred in
view of the judgment and decree passed in A.S. No. 37 of 1993
dated 23.03.1999, wherein it was held that a partition had been
affected in relation to the joint family properties between the first
and second defendants and late ‘M’ in the year 1964 – Held:
G Partition of this property took place in the year 1964 by virtue of
an award dated 13.06.1964 passed by the panchayatdars – The
said document was only a memorandum of understanding/family
arrangement to be acted upon in future – The said document did
not create rights in specific properties or assets of the family, in
favour of specific persons – The same did not require registration
H u/s. 17 (1) (e) of the Act – Further, having regard to the fact that in
692
K. ARUMUGA VELAIAH v. P.R. RAMASAMY AND ANR. 693
the instant case there has been no challenge to the finding of A
partition between the parties till date and the same has attained
finality – Hence, the partition of the ancestral/joint family properties
having found to have taken place in the 1964 and the same having
been acted upon, a fresh suit for partition and separate possession
of the suit properties was not at all maintainable – The principle of
B
res judicata squarely applies in the present case – High Court was
justified in affirming the judgments of the First Appellate Court as
well as the Trial Court dismissing the suit filed by the appellant-
plaintiff.
Dismissing the appeal, the Court
C
HELD: 1. On a perusal of the award which is in the form of
a resolution, it is clear that there was no right created in any
specific item or asset of the joint family properties in any person
but the parties resolved to take certain actions in pursuance of a
family arrangement. Therefore under Annexure P-10 (Ex. B-13)
there was no right created in favour of any party in any specific D
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 E
specific persons. Therefore, the same did not require registration
under section 17 (1) (e) of the Act. [Para 23][719-A-C]
2. Having regard to the aforesaid provisions of law it can
be safely concluded that the said award was a mere arrangement
to divide the properties in future by metes and bounds as F
distinguished from an actual deed of partition under which there
is not only a severance of status but also division of joint family
properties by metes and bounds in specific properties. Hence it
was exempted from registration under Section 17 (2) (v) of the
Act. A document of partition which provides for effectuating a
division of properties in future would be exempt from registration G
under section 17 (2) (v). The test in such a case is whether the
document itself creates an interest in a specific immovable
property or merely creates a right to obtain another document of
title. If a document does not by itself create a right or interest in
H
694 SUPREME COURT REPORTS [2022] 11 S.C.R.
A immovable property, but merely creates a right to obtain another
document, which will, when executed create a right in the person
claiming relief, the former document does not require registration
and is accordingly admissible in evidence. [Para 24][720-A-D]
3. In the instant case exhibit B-13 award is more in the
B nature of a memorandum of understanding, a mere agreement of
the steps to be taken in future for the division of the properties.
Hence, the said document did not require registration under
Section 17 (1) (b) of the Act as under the said document no
creation of rights in any specific joint family property was effected.
[Para 25][720-D-E]
C
3. Having regard to the fact that in the instant case there
has been no challenge to the finding of partition between the
parties till date and the same has attained finality. This Court
does not think that the appellant can seek to rely on the judgment
in Asrar Ahmed. Hence, the partition of the ancestral/joint family
D properties having found to have taken place in the 1964 and the
same having been acted upon, a fresh suit for partition and
separate possession of the suit properties was not at all
maintainable. The principle of res judicata squarely applies in
the present case. This Court holds that the High Court was
E justified in affirming the judgments of the First Appellate Court
as well as the Trial Court dismissing the suit filed by the appellant.
The appeal is accordingly dismissed. [Paras 29 & 31][721-E-F;
723-B]
Shiromani and Ors. v. Hem Kumar and Ors. [1968] 3
F SCR 639 - held inapplicable.
Mohanlal Goenka v. Benoy Kishna Mukherjee AIR
1953 SC 65 : [1953] SCR 377; State of West Bengal v.
Hemant Kumar Bhattacharjee AIR 1966 SC 1061:
[1963] Suppl. SCR 542; Satish Kumar and Ors. v.
G Surinder Kumar and Ors. [1969] 2 SCR 244; Champalal
vs. Mst. Samarth Bai [1960] 2 SCR 810; Kashinathsa
Yamosa Kabadiv. Narsinga Bhaskarsa Kabad [1961]
3 SCR 792; Kale and Ors. v. Deputy Director
of consolidation [1976] 3 SCC 119 : [1976] 3 SCR
H
K. ARUMUGA VELAIAH v. P.R. RAMASAMY AND ANR. 695
202; Mathura Prasad Sarjoo Jaiswal v. Dossibai N.B. A
Jeejeebhoy AIR 1971 SC 2355 : [1970] 3 SCR 830;
Ravinder Kaur Grewal and Ors. v. Manjit Kaur and
Ors. [2020] 9 SCC 706 Ripudaman Singh v. Tikka
Maheshwar Chand [2021] 7 SCC 446 – relied on.
Shiromani and Ors. v. Hem Kumar and Ors. [1968] 3 B
SCR 639 12; Satish Kumar and Ors. v. Surinder Kumar
and Ors. [1969] 2 SCR 244; Lachhman Dass v. Ram
Lal [1989] 3 SCC 99 12 : [1989] 2 SCR 250; Kale and
Ors. v. Deputy Director of Consolidation [1976] 3 SCC
119 : [1976] 3 SCR 202; Bhoop Singh v. Ram Singh
C
Major and Ors. [1995] 5 SCC 709 : [1995] 3 Suppl.
SCR 466 16; Ravinder Kaur Grewal and Ors. v. Manjit
Kaurand Ors. [2020] 9 SCC 706; Ripudaman Singh v.
Tikka Maheshwar Chand [2021] 7 SCC 446; Lachhman
Dass v. Ram Lal [1989] 3 SCC 99 : [1989] 2 SCR 250;
Ratan Lal Sharma v. Purushottam Harit [1974] 3 SCR D
109; Bhoop Singh v. Ram Singh Major and Ors. [1995]
5 SCC 709 : [1995] 3 Suppl. SCR 466; Nanni Bai v
Gita Bai [1959] 1 SCR 479 – referred to.
Asrar Ahmed v. Durgah Committee, Ajmer, AIR 1947
PC 1; Ramaswamy Ayyar and Anr. v. Tirpathi Naik ILR E
27 Mad 43; Ranjangam Iyer v. Ranjangam Iyer AIR
1922 PC 266 – referred to.
Case Law Reference
[1968] 3 SCR 639 referred to Para 12 (a) F
[1969] 2 SCR 244 referred to Para 12(b)
[1989] 2 SCR 250 referred to Para 12 (c)
[1976] 3 SCR 202 referred to Para 16 (a)
[1995] 3 Suppl. SCR 466 referred to Para 16 (b) G
[2020] 9 SCC 706 referred to Para 16 (c)
[2021] 7 SCC 446 referred to Para 16 (d)
[1968] 3 SCR 639 held inapplicable Para 21(a)
H
696 SUPREME COURT REPORTS [2022] 11 S.C.R.
A [1959] 1 SCR 479 referred to Para 21(a)
[1969] 2 SCR 244 relied on Para 21(b)
[1960] 2 SCR 810 relied on Para 21(b)
[1961] 3 SCR 792 relied on Para 21 (b)
B
[1989] 2 SCR 250 referred to Para 21(c)
[1974] 3 SCR 109 referred to Para 21(c)
[1976] 3 SCR 202 relied on Para 22 (a)
C [1995] 3 Suppl. SCR 466 referred to Para 22( b)
[2020] 9 SCC 706 relied on Para 22 (c)
[2021] 7 SCC 446 relied on Para 22 (d)
[1970] 3 SCR 830 relied on Para 30 (a)
D [1953] SCR 377 relied on Para 30( b)
[1963] Suppl. SCR 542 relied on Para 30 (c)
CIVIL APPELLATE JURISDICTION: Civil Appeal No.2564 of
2012.
E
From the Judgment and Order dated 06.08.2007 of the High Court
of Madras at Madurai Bench in S.A. No.92 of 2007.
V. Prabhakar, Ms. Jyoti Parasher, N. J. Ramchander, Mrs. Revathy
Raghavan, Advs. for the Appellant.
F K. K. Mani, Ms. T. Archana, Advs. for the Respondents.
The Judgment of the Court was delivered by
NAGARATHNA, J.
The plaintiff in Original Suit No. 101 of 2004 has assailed the
G judgment and decree passed in Second Appeal No. 92 of 2007 by the
Madurai Bench of the High Court of Judicature of Madras dated 6th
August, 2007 by which, the judgment and decree passed in Appeal Suit
No. 38 of 2005 by the First Appellate Court i.e. Court of the Subordinate
Judge, Devakottai, affirming the dismissal of the aforesaid suit by the
District Munsiff Court, Devakottai has been sustained.
H
K. ARUMUGA VELAIAH v. P.R. RAMASAMY AND ANR. 697
[B. V. NAGARATHNA, J.]
2. For the sake of convenience the parties herein shall be referred A
to in terms of their rank and status before the Trial Court.
3. The case of the Plaintiff in a nutshell is stated as under :
(i) Periyaiya Servai and Muthu Servai, were the sons of
Marimuthu Servai. Periyaiya Servai had three sons, being
the first and second defendants and Marimuthu, who is no B
longer alive and 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, C
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.
D
(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 E
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 F
the second defendant and the plaintiff. That the first
defendant sent a legal notice objecting to plaintiff’s share
in the suit schedule properties, which are joint family
properties. Therefore, the plaintiff has been constrained to
file a suit for partition and separate possession.
G
(iii) Plaintiff has averred that he has a right to one-fourth share
of Periyaiya Servai under the will dated 26th January, 1994,
which came into operation on 25th March, 2003, on the
demise of Periyaiya Servai. With the aforesaid averments
the plaintiff has sought partition and separate possession of
his one-fourth share in the suit schedule properties. H
698 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 4. In response to the plaint, first defendant filed his written
statement which is encapsulated as under:-
(i) First defendant has admitted that the suit schedule properties
were joint family properties but they had since been divided.
The fact that Periyaiya Servai had executed a will dated
B 26th January, 1994 (the written statement filed by the first
defendant before the Trial Court mentions the date of the
will as 24th January, 1994) in a good state of mind and
health has been denied. It is averred that late Periyaiya
Servai had a share in the suit properties but the fact that
they were bequeathed to the plaintiff by a will, is false. It is
C averred that Periyaiya Servai and his brother Muthu Servai
were living as a joint family and Periyaiya Servai was the
Karta of the family. That from the income of the undivided
ancestral properties, several properties were purchased in
the name of Periyaiya Servai as he was the Karta of the
D family. There was a partition between the brothers under a
registered partition deed. The coparcerners then became
divided. That in 1964 Periyaiya Servai in turn partitioned
his share of the joint family properties in three parts, i.e.
between the first and second defendants and late Marimuthu
and they have been enjoying the properties since then. In
E that partition, no share was allotted to Periyaiya Servai. An
agreement for maintenance of Periyaiya Servai during his
life was also made. Marimuthu died suddenly and his share
in the properties was being enjoyed by his wife Poomayil.
(ii) Periyaiya Servai was 93 years old in 1991 and was not in a
F position to take decisions on his own due to his old age. He
was acting according to the will of the second defendant
and Kaliammal who was Periyaiya 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
G 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
H Servai. In that suit, the possession and enjoyment of the
K. ARUMUGA VELAIAH v. P.R. RAMASAMY AND ANR. 699
[B. V. NAGARATHNA, J.]
joint Hindu family ancestral properties by late Periyaiya A
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
B
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
preferred an appeal in A.S. No. 37 of 1993. Late Poomayil C
had also filed a cross appeal in A.S. No. 37 of 1993. The
said suit was remanded to the lower court in the year 1995.
(iii) Against the order of remand a second appeal was filed
before the High Court of Madras which remanded the
matter to the Sub-court, Devakottai, by restoring A.S. No. D
37 of 1993. The said appeal was disposed on 23rd March,
1999 by giving a finding that the suit properties were
ancestral properties which were partitioned between the
first and second defendants herein and late Marimuthu and
they were enjoying the same separately. That after the death
of Marimuthu, Poomayil was in possession of the properties. E
The said judgment has attained finality.
(iv) It was also contended that since the suit properties had
been partitioned equally between the first and second
defendants and late Marimuthu in 1964, they also had the
right of prescription against each other and were in adverse F
possession. That Poomayil had died bequeathing her
husband’s properties to the first defendant under a will and
he was enjoying the properties after her death.
(v) That on 26th December, 1988 Periyaiya Servai wrote two
Inam settlement deeds in respect of properties in Sr. No.
G
181/1 and 181/3 in Sathyamangalam Village. That O.S. No.
376 of 1991 was filed by the plaintiff herein against the
settlement deed, on the file of the District Munsiff Court,
Devakottai. The said suit was dismissed and the judgment
and decree in the said suit was confirmed in A.S. No. 38 of
1994. H
700 SUPREME COURT REPORTS [2022] 11 S.C.R.
A (vi) That since the plaintiff herein had not benefited under the
said suit, he prepared the disputed will with the help of the
second defendant as if it was the will of Periyaiya Servai.
That during the period when the will is said to have been
executed, Periyaiya Servai was bed ridden and was not
sane and was a prisoner. That Periyaiya Servai was
B
disqualified by virtue of the doctrine of ouster, from making
the will in respect of ancestral properties, particularly after
the judgment in O.S. No. 347/1991. That the suit had been
filed vexatiously when the first defendant raised objection
for the transfer of the Patta on the basis of a concocted
C will.
(vii) As late Periyaiya Servai was not sane and healthy and he
was treated as a prisoner by the family of the plaintiff and
the second defendant a habeas corpus petition in HCP No.
457 of 2003 was filed by the first defendant before the
D 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
E 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:
F (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
G 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 in O.S. No. 347 of 1991
filed by Periyaiya Servai, the District Munsiff Court,
H
K. ARUMUGA VELAIAH v. P.R. RAMASAMY AND ANR. 701
[B. V. NAGARATHNA, J.]
Devakottai decreed that out of the properties belonging to A
Periyaiya Servai, his three sons, being the defendants therein
and late Marimuthu, would each be entitled to one-third
share. In an appeal from the judgment and decree in O.S.
No. 347 of 1991, the first appellate court in A.S. No. 37 of
1993 held that a valid partition had been carried out in the
B
year 1964 whereby it was decided that no share was to be
retained by Periyaiya Servai and each of his sons was
entitled to one-third share in the suit properties.
Given the contradictory decrees passed in O.P. No. 7
of 1992 and in A.S. No. 37 of 1993, the Trial Court held
that the latter decree would alone be enforceable. C
(iii) That the partition deed executed in the year 1964 was valid
in the eye of law and such validity was confirmed by the
Sub-Court, Devakottai in A.S. No. 37 of 1993. Since
questions surrounding the validity of the partition deed were
finally settled, the suit was barred by the principle of res D
judicata.
(iv) According to the decision in A.S. No. 37 of 1993, Periyaiya
Servai had not been allotted any share in the property and
the same was divided in three equal parts in favour of the
two defendants and Marimuthu. That Periyaiya Servai, E
following the partition in the year 1964 had no right over
the said property and consequently had no right to execute
a will in respect of the suit properties, in favour of the
Plaintiff.
(v) That the plaintiff is not entitled to one-fourth share in the F
suit properties as prayed by him. That the defendants were
entitled to enjoy their share of the suit properties without
any restraint by virtue of the partition effected in 1964.
6. Being aggrieved, the plaintiff preferred A.S. No. 38 of 2005
before the first appellate court. By Judgment dated 17th February, 2006, G
the appeal and cross appeal were dismissed and the judgment of the
Trial Court referred to above was affirmed. The relevant findings of the
first appellate court are encapsulated as under:
i) The first appellate court considered the evidence of the
first defendant as DW-1. In his cross-examination DW-1 H
702 SUPREME COURT REPORTS [2022] 11 S.C.R.
A had stated that a partition had been effected in the year
1964, wherein the suit properties were divided among the
three sons of Periyaiya Servai i.e., the first and second
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
B
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
C 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
D 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
E 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
not a valid document.
iv) That the plaintiff could not claim title over one-fourth share
F of the suit properties on the basis of the will dated 26th
January, 1994 and therefore the Trial Court rightly dismissed
the suit filed by the plaintiff.
7. Being aggrieved, the plaintiff preferred second appeal No. 92
of 2007 before the Madurai bench of the Madras High Court. By
G judgment dated 6th August, 2007, the second appeal was dismissed by
holding that the following substantial questions of law sought to be raised
by the Plaintiff could not be considered:
i) Whether the Courts below are justified in holding that the
suit is barred in view of the decision in Appeal Suit No. 37
of 1993 dated 23.03.1999 in as much as there was a specific
H
K. ARUMUGA VELAIAH v. P.R. RAMASAMY AND ANR. 703
[B. V. NAGARATHNA, J.]
direction by the High Court, Madras in the order of remand A
to the subordinate judge to consider only whether the
properties are joint family properties or self acquisitions of
Periyaiah Servai?
ii) Whether the courts below are justified in holding that the
suit is barred in view of the decision in Appeal Suit No. 37 B
of 1993 on the file of Sub-Court, Devakottai without
considering whether the principles laid down in section 11
of the Code of Civil procedure are applicable?
iii) Whether the courts below are justified in not considering
the decision in Original Petition No. 7 of 1972 on the file of C
the Sub-Court, Devakottai where under original of exhibit
B-10 was held to be invalid and unenforceable?
iv) Whether the courts below are justified in not considering
the admissions of DW-1 that Periyaiah Servai was entitled
to a share in the joint family properties? D
v) Whether the findings of courts below which are perverse
and not supported by any materials and against available
materials on record can be sustained?
The following findings were recorded by the High Court in the
impugned judgment: E
(i) That it had already been held in Appeal Suit No. 37 of 1993
that all the joint family properties had been divided into three
shares in favour of the sons of Periyaiya Servai. Against
the said decision, no appeal had been preferred and hence
the finding regarding the partition had attained finality. F
Therefore, the instant suit was barred by the principle of
res judicata.
(ii) The second appeal was dismissed at the stage of admission
on the ground that the substantial questions of law raised
by the plaintiff were not legally tenable. G
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. H
704 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 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
B
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
C award effecting the partition between members of the family, the award
does not have any validity in the eye of law and hence it is not binding on
the parties. Since the said award had no effect in law, the family continued
to remain joint and the suit schedule properties were joint ancestral
properties. Hence, the suit for partition filed by the appellant was
maintainable.
D
10. In this context it was brought to our notice that O.S. No. 347
of 1991 was filed by Periyaiya Servai, the grandfather of the plaintiff
seeking declaration of title and consequential relief and the said suit was
dismissed against which A.S. No. 37 of 93 was filed. In the said appeal
there was an order of remand to the Trial Court. The remand order was
E challenged before the High Court. The High Court remanded the matter
to the first appellate court to decide the appeal and to give a finding only
on the nature of the properties. Reliance was placed on the finding given
by the first appellate court on remand from the High Court to the effect
that the suit schedule properties are joint ancestral properties. However,
F the first appellate court even in the absence of any mandate of the High
Court being given in the remand order went ahead to hold that there was
a partition between the members of the family in the year 1964 and
hence the suit for partition was not maintainable. Learned counsel for
the appellant contended that such a finding could not have been given by
the first appellate court transgressing the contours of the order of remand
G made by the High Court which was to determine only the nature of the
suit schedule properties and not whether there was a partition of the
same between the members of the family. That the decision of the first
appellate court in A.S. No. 37 of 1993 was erroneous in so far as it
travelled beyond the scope of the remand made to it by the High Court
H and hence the said finding is not binding on the parties.
K. ARUMUGA VELAIAH v. P.R. RAMASAMY AND ANR. 705
[B. V. NAGARATHNA, J.]
11. It was contended that the High Court in passing the impugned A
judgment, could not have dismissed the second appeal on the basis of an
erroneous finding given by the first appellate Court as the said finding
was also not binding on the High Court. It was contended that the principle
of res judicata does not apply in the instant case. Hence, the judgments
of the High Court and the Courts below may be set aside and the suit
B
may be decreed.
12. Learned counsel for the appellant relied upon the following
judgments in support of his submissions:
a) Shiromani and Ors. v. Hem Kumar and Ors., [1968] 3
SCR 639. C
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 D
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
E
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. F
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 has attained
finality. The said finding is binding on the parties. Hence a fresh suit
seeking partition and separate possession of the properties was not at all G
maintainable. This is because the aforesaid finding shall be presumed to
be accepted by the parties as there has been no challenge to the same
and hence principle of res judicata would apply.
15. It was further contended that even if it is assumed for the
sake of argument that, on remand, the first appellate court had passed H
706 SUPREME COURT REPORTS [2022] 11 S.C.R.
A an erroneous judgment by giving a finding on a point beyond the scope
of remand, i.e., on the aspect of the arbitral award having partitioned the
suit schedule properties, such a finding is binding on the parties as it has
not been interfered with by the High Court. That nothing prevented the
appellant from assailing the said finding before the High Court by filing a
second appeal. Instead the appellant filed a fresh suit for partition which
B
is an instance of abuse of process of law as it is hit by the principle of res
judicata.
16. In the above backdrop it was contended that the High Court
was right in dismissing the second appeal as well as the suit filed by the
appellant plaintiff and there is no merit in this appeal. Hence the same
C may be dismissed.
Learned counsel for respondents relied upon the following three
decisions to buttress his submissions:
a) Kale and Ors. v. Deputy Director of Consolidation,
D [1976] 3 SCC 119.
b) Bhoop Singh v. Ram Singh Major and Ors., [1995] 5
SCC 709.
c) Ravinder Kaur Grewal and Ors. v. Manjit Kaur and
Ors., [2020] 9 SCC 706.
E
d) Ripudaman Singh v. Tikka Maheshwar Chand, [2021]
7 SCC 446.
17. Having heard learned counsel for respective parties the only
point which arises for our consideration is, whether, the suit filed by the
plaintiff is barred in view of the judgment and decree passed in A.S. No.
F
37 of 1993 dated 23rd March, 1999, wherein it was held that a partition
had been affected in relation to the joint family properties between the
first and second defendants and late Marimuthu in the year 1964.
18. The following undisputed facts may be noted:-
G (a) The relationship between the parties is not in dispute.
Periyaiya Servai through his first wife had begotten the first
defendant, P.R. Ramaswamy and through his second wife
had two sons, namely, P.R. Kasilingam - second defendant
and late Marimuthu. The appellant-plaintiff is the son of
P.R. Kasilingam.
H
K. ARUMUGA VELAIAH v. P.R. RAMASAMY AND ANR. 707
[B. V. NAGARATHNA, J.]
(b) Appellant has also claimed that his grandfather Periyaiya A
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 B
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.
C
(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 D
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,
Devakottai wherein it was observed that the finding given
in A.S. No. 37 of 1993 to the effect that there was a partition
in the family in the year 1964, had attained finality. E
(f) Aggrieved by the dismissal of the appeal, second appeal
being S.A. No. 92 of 2007 was filed before the Madurai
Bench of the Madras High Court, which has also dismissed
the same by the impugned judgment.
F
19. The main plank of argument of the appellant is that the suit
filed by the plaintiff-appellant herein could not have been dismissed on
the principle of res judicata by holding that in A.S. No. 37 of 1993 there
was already a clear finding to the effect that there was a partition of the
suit properties between the members of the joint family and hence a
fresh suit for partition and separate possession vis-a-vis the same G
properties could not have been filed by the plaintiff as it is not maintainable.
In this regard the contention of the appellant-plaintiff is that the aforesaid
finding was contrary to the mandate of remand and hence was not binding
on the parties. Contrarily, respondents have contended that the finding
that the suit properties were joint family properties which had been
H
708 SUPREME COURT REPORTS [2022] 11 S.C.R.
A partitioned by the parties in the year 1964, not having been challenged at
all by the plaintiff, had attained finality and hence the plaintiff was estopped
from filing a fresh suit claiming partition and separate possession.
20. In the aforesaid context another contention raised by the
learned counsel for the appellant was that the so-called partition which
B took place in the year 1964 was by virtue of an award passed by the
panchayatdars (arbitrators) and the same, not having been registered,
was not made a rule of the court and hence had no validity in the eye of
law. The counter to the aforesaid argument by learned counsel for the
respondent is that the said award did not require registration at all.
C 21. We shall at the outset consider the following judgments relied
upon by the learned counsel for the appellant:
a) In Shiromani and Ors. v. Hem Kumar and Ors., [1968] 3
SCR 639, one of the questions raised was whether the validity
of a partition deed could be challenged as being inadmissible
D in evidence on the ground that it had not been registered as
mandated under Section 17 (1) (b) of the Act. In that case it
was held that under the recitals of exhibit D-4 considered
therein, 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
E 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
F
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.,
G
[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
H such an award on a private reference required registration if
K. ARUMUGA VELAIAH v. P.R. RAMASAMY AND ANR. 709
[B. V. NAGARATHNA, J.]
the award effected partition of immovable property exceeding A
the value of Rs. 100. The majority (2:1) held that an award
made by an arbitrator which affected right, title or interest of
the value of more than Rs. 100 in immovable property would
require registration. However, it was held that the filing of an
unregistered award under Section 49 of the Act is not
B
prohibited; what is prohibited is that it cannot be taken into
evidence so as to affect right, title or interest in immovable
property as per Section 17 of the Act. For this proposition
reliance was place on Champalal vs. Mst. Samarth Bai,
[1960] 2 SCR 810.
Also reliance was placed on Kashinathsa Yamosa C
Kabadi v. Narsinga Bhaskarsa Kabadi, [1961] 3 SCR
792 wherein this court had observed as under:
“The records made by the Panchas about the division of
the properties, it is true, were not stamped nor were
they registered. It is however clear that if the record D
made by the Panchas in so far as it deals with immovable
properties is regarded as a non-testamentary instrument
purporting or operating to create, declare, assign, limit
or extinguish any right, title or interest in immovable
property, it was compulsorily registrable under Section E
17 of the Registration Act, and would not in the absence
of registration be admissible in evidence.”
The minority opinion voiced through K.S. Hegde J. in
the aforesaid case was that an arbitrator’s award does create
rights in property but those rights cannot be enforced without F
further steps. For the purpose of Section 17(1) (b) of the Act,
all that is to be seen is whether the award in question purports
or operates to create or declare, assign, limit or extinguish,
whether in present or future any right, title or interest, whether
vested or contingent of the value of one hundred rupees and
upwards to or in immovable property. If it does, it is G
compulsorily registerable.
c) In Lachhman Dass v. Ram Lal, [1989] 3 SCC 99, the
issue was that the arbitrator’s award had not been properly
stamped and as such could not be made the rule of the Court.
It was also contended that the award was unregistered and H
710 SUPREME COURT REPORTS [2022] 11 S.C.R.
A as such it could not be made the rule of the Court as it affected
immovable property of more than Rs. 100. The said contention
was accepted by the Trial Court but in second appeal the
High Court observed that the award was stamped properly
and it did not require any registration as the award did not
create any right as such in the immovable property; it only
B
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
C 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
D 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:
E
“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 statements contained in the register as a full and
complete account of all transactions by which title may
F be affected. Section 17 of the said Act being a disabling
section, must be construed strictly. Therefore, unless a
document is clearly brought within the provisions of the
section, its non-registration would be no bar to its being
admitted in evidence.”
G Reliance was also placed on Ratan Lal Sharma v.
Purushottam Harit, [1974] 3 SCR 109 to hold that the
arbitration award in the said case did not just seek to assign a
share of the respondent to the appellant therein, but made an
exclusive allotment of the partnership assets including the
factory and liabilities to the appellant therein. Therefore, the
H
K. ARUMUGA VELAIAH v. P.R. RAMASAMY AND ANR. 711
[B. V. NAGARATHNA, J.]
award in express words purported to create rights in A
immovable property worth a sum above Rs. 100/- in favour
of the appellant therein. It was accordingly held that it would
mandatorily require registration under section 17 of the Act.
22. We shall now consider the citations relied upon by the
respondents: B
a) Kale and Ors. v. Deputy Director of consolidation, [1976]
3 SCC 119, is a case which had a checkered history in which
a discussion on the effect and value of family arrangements
entered into between the parties with a view to resolve
disputes once and for all, came up for consideration. It was C
observed that in the case of a family settlement, usually there
would be an agreement which is implied from a long course
of dealing, but such an agreement would be embodied or
effectuated in a deed to which the term “family arrangement”
is applied. Such a family arrangement is not applicable to
D
dealings between strangers but is in the context of maintaining
the interest and peace of the members of the family. In
paragraph 10 of the said judgment, this Court has adumbrated
on the essentials of a family settlement which could be
usefully extracted as under:
“10. In other words to put the binding effect and the E
essentials of a family settlement in a concretized form, the
matter may be reduced into the form of the following
propositions:
(1) The family settlement must be a bona fide one so as to
resolve family disputes and rival claims by a fair and F
equitable division or allotment of properties between the
various members of the family;
(2) The said settlement must be voluntary and should not
be induced by fraud, coercion or undue influence;
G
(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 H
712 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 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
B
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
C 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
D 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 the Courts
will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which
E may not involve legal claims are settled by a bona fide family
arrangement which is fair and equitable the family
arrangement is final and binding on the parties to the
settlement.”
After reviewing several judgments of this Court, the
F Privy Council and other High Courts, this Court in paragraph
20 indicated the following propositions:
“We would, therefore return the reference with a statement
of the following general propositions:
(1) A family arrangement can be made orally.
G
(2) If made orally, there being no document, no question of
registration arises.
(3) If though it could have been made orally, it was in fact
reduced to the form of a “document” registration (when
the value is Rs. 100 and upwards) is necessary.
H
K. ARUMUGA VELAIAH v. P.R. RAMASAMY AND ANR. 713
[B. V. NAGARATHNA, J.]
(4) Whether the terms have been “reduced to the form of a A
document” is a question of fact in each case to be
determined upon a consideration of the nature and
phraseology of the writing and the circumstances in which
and the purpose with which it was written.
(5) If the terms were not “reduced to the form of a B
document”, registration was not necessary (even though
the value is Rs. 100 or upwards); and, while the writing
cannot be used as a piece of evidence for what it may be
worth, e.g. as corroborative of other evidence or as an
admission of the transaction or as showing or explaining
C
conduct.
(6) If the terms were “reduced to the form of a document”
and, though the value was Rs. 100 or upwards, it was not
registered, the absence of registration makes the document
inadmissible in evidence and is fatal to proof of the
D
arrangement embodied in the document.”
Ultimately, this Court held that the family arrangement
in the nature of a compromise which was considered in that
case did not require registration. It was further held that since
the existence of the family arrangement was admitted in that
E
case, the same was binding on the principle of estoppel. Also,
even if the family arrangement could not be registered it could
be used for collateral purpose, i.e. to show the nature and
character of possession 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, F
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 G
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:
H
714 SUPREME COURT REPORTS [2022] 11 S.C.R.
A (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.
B (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 attract any of the clauses of
C Sub- section (1) of Section 17, as was the position in the
aforesaid Privy Council and this Court’s cases, it is apparent
that the decree would not require registration.
(4) If the decree were not to embody the terms of
compromise, as was the position in Lahore case, benefit
D from the terms of compromise cannot be derived, even if a
suit were to be disposed of because of the compromise in
question.
(5) If the property dealt with by the decree be not the
“subject- matter of the suit or proceeding”, Clause (vi) of
E Sub-section (2) would not operate, because of the
amendment of this Clause by Act 21 of 1929, which has its
origin in the aforesaid decision of the Privy Council,
according to which the original Clause would have been
attracted, even if it were to encompass property not
litigated.”
F
c) In Ravinder Kaur Grewal and Ors. v. Manjit Kaur and
Ors., [2020] 9 SCC 706 considering both the aforesaid
judgments, this Court opined that when a family settlement
arrived at between the parties has been acted upon then it is
not open to resile from the same and the parties are estopped
G from contending to the contrary.
d) The facts in Ripudaman Singh v. Tikka Maheshwar
Chand, [2021] 7 SCC 446 were that, the parties being
brothers, had entered into a compromise in respect of a land
dispute. Plaintiff, therein, on the basis of the compromise
H decree applied for mutation of land in his favour, which was
K. ARUMUGA VELAIAH v. P.R. RAMASAMY AND ANR. 715
[B. V. NAGARATHNA, J.]
allowed. In appeal there was a direction to Naib Tehsildar to A
decide the mutation afresh. Subsequently, the Divisional
Commissioner dismissed the appeal filed against the said
order. A suit was filed which was dismissed but the appeal
preferred by the appellant was allowed. However, the High
Court in the second appeal, set aside the judgment of the first
B
appellate court and dismissed the suit on the ground that the
land, even though was a subject matter of compromise, was
not the subject matter of the suit and therefore, the compromise
decree required registration under the provisions of the Act.
This Court while allowing the appeal and setting aside the
decree of the High Court held that when a pre-existing right C
in the property is being recognised by way of a settlement in
a Court proceeding and no new right is created for the first
time when the parties entered into a compromise in the civil
court, there is no requirement of compulsory registration. In
other words, a compromise recognising a pre-existing right in
D
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 E
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 F
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 G
ON 20TH DAY OF THE MONTH OF PANGUNI OF TAMIL
SOBAKRITHU YEAR IN REGARD TO PARTITION
BETWEEN THE THREE SONS OF M. PERIYAYYA
SERVAI VIZ. (1) RAMASAMY, (2) KASILINGAM AND
(3) MARIMUTHAN.
H
716 SUPREME COURT REPORTS [2022] 11 S.C.R.
A DETAILS
The said M. Periyayya Servai had two wives
1) Veerayakli – First Wife
2) Kaliyamma – Second Wife
B The Son born through first wife is Ramasamy. The Sons born
through second wife are Kasilingam and Marimuthan.
We have passed the following Resolutions on the strength of the
statement given by the said M. Periyayya Servai in front of us
and the consent statement given by Ramasamy and Kasilingam,
C after perusal of the above statement.
DETAILS OF RESOLUTIONS
1. The nanjai, punjai and accessories viz Thitthuthidal, cattle,
chickens, vessels and all other household articles are to be
divided into three equal shares.
D
2. As the Panchayatdars unanimously decide that the three
acres of land out of the total common Nanjai lands are to
be left to the care of Ramasamy, the eldest Son, the said
three acres of Nanjai Lands are to be accordingly given
away to Ramasamy.
E
3. We, the Panchayatdars RESOLVE to cancel the expenses
incurred in connection with the actions revolving round
partition as per the amount contained in the statements given
by both the parties, besides cancelling the difference in
expenses of the marriages of Ramasamy and Kasilingam,
F and the marriage of one Ms. Patharammal is to be
performed from out of the amounts from the share of both
Kasilingam and Marimuthan, on the statement made by
Kaslingam that a Minor Chain weighing about 3 his marriage
and the same could not be traced out, in spite of search,
G Kasilingam shall give the expenses amounting to Rs.300/-
in common.
4. It was RESOLVED that Marimuthan shall conduct his
marriage on his own from his share and Marimuthan shall
have no responsibility towards either amounts receivable,
H payable or loans concerning the common family.
K. ARUMUGA VELAIAH v. P.R. RAMASAMY AND ANR. 717
[B. V. NAGARATHNA, J.]
5. It was RESOLVED that the PANCHAYATDARS having A
decided that on the approval of Kasilingam, Bangalore
M. Sethuraman, for having taken limestone valued at
Rs.20,000/- in regard to kiln for bricks, since Kasilingam
permitted the above person to take Rs.340/- (Rupees three
hundred forty only) on his own volition without the approval
B
of his father, it was RESOLVED that Kasilingam shall
bear the said sum of Rs.340/- from out of his pocket.
6. The school at Bangalore 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 C
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 Panchatdars. The
person who takes up the responsibility of the said school D
shall pay the above sum of Rs.3000/- 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/-.
E
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 F
his use besides a cow for meeting his requirement for milk.
8. In his statement Periyayya had stated that a sum of
Rs.1,000/- or land equal to its value shall be given to his
sister Lakshmi. We, the Panchayatdars, have today
RESOLVED that a sum of Rs.1,000/- or land equal to its G
value ought to be given to the said Lakshmi.
9. As is found in the statement that in order to give a house to
Karuvarividan of Sathamangalam, it is RESOLVED that
the lower layer of the first farm shall be given to the above
person. There is no time for performing charitable activities H
718 SUPREME COURT REPORTS [2022] 11 S.C.R.
A for the three partners. It has been decided that the three
shares in the same can hereafter be done together under
the supervision of Ramasamy.
10. As found in the statement of Sri Periyayya Servai, wherein
it has been written that considering the value of all the
B Kalluppatti properties at Rs.800/- shall be sold to his daughter
Segappi, it has been decided that the said properties shall
be sold for the above said value itself and the said decision
has been endorsed by us, the Panchayatdars.
11. The house may be divided into two by using coconut matai
C and shall be taken by Kasilingam and Marimuthan. For the
share going to Marimuthan the vacant site also is to be
added. The Nattavali house shall be held and used in
common. It has been decided as above.
12. It has been RESOLVED as regards the common family
honour of Lance, that in line with the age old customs, after
D
the life time of Periyayya Servai, his eldest Son, Ramasamy
is considered to be due for the said honour.
13. All the above have been unanimously RESOLVED by us,
the Panchayatdars.
PANCHAYATDARS
E
1. S. Appasamy Servai, Unchanai
2. Bhootha Thiru Muthaiyyan Servai, Ethappadivayal
3. M. Muthiah Servai of Umbiyur Iruppukkudi
4. Ana. Anamugappan
F
5. S.V. Durai Servai, Sathamangalam.
We have read the above RESOLUTIONS. We agree with the
above. We shall wholeheartedly obey the above.
Sd/- M. Periyayya Servai
G Sd/- Ramasamy
Sd/- Kasilingam
Resolution written by and I am also one of the Panchayathars.
Sd/-
H (illegible)”
K. ARUMUGA VELAIAH v. P.R. RAMASAMY AND ANR. 719
[B. V. NAGARATHNA, J.]
On a perusal of the award which is in the form of a resolution, it A
is clear that there was no right created in any specific item or asset of
the joint family properties in any person but the parties resolved to take
certain actions in pursuance of 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
B
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 C
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.—(l) 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 D
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 E
(b) other non-testamentary instruments which purport or operate
to create, declare, assign, limit or extinguish, whether in present
or in future, any right, title or interest, whether vested or contingent,
of the value of one hundred rupees and upwards, to or in
immovable property;
F
xxx xxx xxx
(2) Nothing in clauses (b) and (c) of sub-section (l) applies to:—
xxx xxx xxx
(v) any document other than the documents specified in sub-
G
section (1A) not itself creating, declaring, assigning, limiting or
extinguishing any right, title or interest of the value of one hundred
rupees and upwards to or in immovable property, but merely
creating a right to obtain another document which will, when
executed, create, declare, assign, limit or extinguish any such right,
title or interest.” H
720 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 24. Having regard to the aforesaid provisions of law it can be
safely concluded that the said award was a mere arrangement to divide
the properties in future by metes and bounds as distinguished from an
actual deed of partition under which there is not only a severance of
status but also division of joint family properties by metes and bounds in
specific properties. Hence it was exempted from registration under
B
Section 17 (2) (v) of the Act. A document of partition which provides for
effectuating a division of properties in future would be exempt from
registration under section 17 (2) (v). The test in such a case is whether
the document itself creates an interest in a specific immovable property
or merely creates a right to obtain another document of title. If a
C document does not by itself create a right or interest in immovable
property, but merely creates a right to obtain another document, which
will, when executed create a right in the person claiming relief, the former
document does not require registration and is accordingly admissible in
evidence vide Ranjangam Iyer v. Ranjangam Iyer, AIR 1922 PC
266.
D
25. In the instant case exhibit B-13 award is more in the nature of
a memorandum of understanding, a mere agreement of the steps to be
taken in future for the division of the properties. Hence, the said document
did not require registration under Section 17 (1) (b) of the Act as under
the said document no creation of rights in any specific joint family property
E was effected. Hence the second limb of the contention of the appellant
is accordingly answered.
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
F 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
G 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
H properties were partitioned in the year 1964 is binding on the parties and
K. ARUMUGA VELAIAH v. P.R. RAMASAMY AND ANR. 721
[B. V. NAGARATHNA, J.]
hence a fresh suit filed by the Plaintiff seeking the very same relief was A
not maintainable. In A.S. No.37, on considering the oral and documentary
evidence on record it was opined as under:
“From his evidence it is clear that there is a partition in the year
1964 and the list of the apportionment and they have also written
a Muchallikka before the panchayat. It is undoubtfully known that B
since there was a joint possession, the partition was effected to
the plaintiff’s 3 sons in 1964 by plaintiff by accepting that the suit
properties were joint properties, it is not right on the part of the
plaintiff to claim that the properties are his individual, self-acquired
properties and it is also unbelievable.”
C
This finding is sought to be questioned before us by placing reliance
on a judgment of the Apex Court in Asrar Ahmed v. Durgah Committee,
Ajmer, AIR 1947 PC 1 to contend that the plea of res judicata does
not arise in the instant case. We have perused the same. Learned Counsel
for the appellant placed heavy reliance on this judgment contend that
when a finding has been given by a lower court based on sufficient D
evidence, if erroneous, is not binding between the parties to the said
proceeding on the principle of res judicata. The said judgment is not
applicable to the present case.
29. Having regard to the fact that in the instant case there has
been no challenge to the finding of partition between the parties till date E
and the same has attained finality we do not think that the appellant can
seek to rely on the judgment in Asrar Ahmed (Supra). Hence, the
partition of the ancestral/joint family properties having found to have
taken place in the 1964 and the same having been acted upon, a fresh
suit for partition and separate possession of the suit properties was not F
at all maintainable. The principle of res judicata squarely applies in the
present case.
30. In this context, following judgments could be cited with regard
to the operation of the principles of res judicata in respect to the previous
proceeding and judgment: - G
a) In Mathura Prasad Sarjoo Jaiswal v. Dossibai N.B.
Jeejeebhoy (AIR 1971 SC 2355), it was observed as under:
“10. It is true that in determining the application of the rule
of res judicata the Court is not concerned with the
correctness or otherwise of the earlier judgment. The matter H
722 SUPREME COURT REPORTS [2022] 11 S.C.R.
A in issue, if it is one purely of fact, decided in the earlier
proceeding by a competent Court must in a subsequent
litigation between the same parties be regarded as finally
decided and cannot be reopened. A mixed question of law
and fact determined in the earlier proceeding between the
same parties may not, for the same reason, be questioned
B
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
C 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
D
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.”
E 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 the earlier litigation had attained finality even up to the
stage of execution. It was held that later on the judgment
F debtor was precluded from raising the plea of jurisdiction in
view of principles of constructive res judicata. In Paragraph
23 it was as under :-
“”23. There is ample authority for the proposition that even
an erroneous decision on a question of law operates as ‘res
G judicata’ between the parties to it. The correctness or
otherwise of a judicial decision has no bearing upon the
question whether or not it operates as ‘res judicata.”
c) In State of West Bengal v. Hemant Kumar Bhattacharjee
(AIR 1966 SC 1061), the main issue related to the Special
H Court to try a Criminal offence, in as much as an incorrect
K. ARUMUGA VELAIAH v. P.R. RAMASAMY AND ANR. 723
[B. V. NAGARATHNA, J.]
decision cannot be equated with a decision rendered without A
jurisdiction. Even a wrong decision can be superseded only
through appeals to higher tribunals or Courts or through review,
if provided by law.
31. We accordingly hold that the High Court was justified in
affirming the judgments of the First Appellate Court as well as the Trial B
Court dismissing the suit filed by the appellant herein. We have no reason
to interfere with the impugned judgment.
The appeal is accordingly dismissed.
Having regard to the relationship between the parties, they shall
bear their own costs. C
Ankit Gyan Appeal dismissed.
(Assisted by : Shubhanshu Das, LCRA)
D
E
F
G
H
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