# K. ARUMUGA VELAIAH v. P.R. RAMASAMY AND ANR

- **Citation:** [2022] 11 S.C.R. 692
- **Court:** Supreme Court of India
- **Decided:** 2022-01-27
- **Case number:** Civil Appeal No. 2564 of 2012
- **Bench:** L. Nageswara Rao, B. R. Gavai, B. V. Nagrathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-arumuga-velaiah-v-p-r-ramasamy-and-anr-35695
- **Pages:** 32

## Headnote

Code of Civil Procedure, 1908 - Res Judicata -Registration
Act, 1908 - s.17 - One 'PS' had two wives - From his first wife, he
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 onefourth share in the suit schedule properties - District Munsiff
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
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
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:
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
u/s. 17 (1) (e) of the Act - Further, having regard to the fact that in
A
B
C
D
E
F
G
H
693
the instant case there has been no challenge to the finding of
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
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 appellantplaintiff.
Dismissing the appeal, the Court
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
item of joint family property. The said document which has been
styled as an award is, in our view, only a memorandum of
understanding/family arrangement to be acted upon in future.
Hence, in our considered view, the said document did not create
rights in specific properties or assets of the family, in favour of
specific persons. Therefore, the same did not require registration
under section 17 (1) (e) of the Act. [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
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

## Text

_Characters 0–39,992 of 67,527. This is a partial read: ask again with offset=39992 for what follows._

A
B
C
D
E
F
G
H
692
SUPREME COURT REPORTS
[2022] 11 S.C.R.
[2022] 11 S.C.R. 692
692
K. ARUMUGA VELAIAH
v.
P.R. RAMASAMY AND ANR.
(Civil Appeal No. 2564 of 2012)
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
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 onefourth share in the suit schedule properties - District Munsiff
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
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
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:
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
u/s. 17 (1) (e) of the Act - Further, having regard to the fact that in
A
B
C
D
E
F
G
H
693
the instant case there has been no challenge to the finding of
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
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 appellantplaintiff.
Dismissing the appeal, the Court
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
item of joint family property. The said document which has been
styled as an award is, in our view, only a memorandum of
understanding/family arrangement to be acted upon in future.
Hence, in our considered view, the said document did not create
rights in specific properties or assets of the family, in favour of
specific persons. Therefore, the same did not require registration
under section 17 (1) (e) of the Act. [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
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
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
K. ARUMUGA VELAIAH v. P.R. RAMASAMY AND ANR.
A
B
C
D
E
F
G
H
694
SUPREME COURT REPORTS
[2022] 11 S.C.R.
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
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]
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
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
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
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.
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
A
B
C
D
E
F
G
H
695
202; Mathura Prasad Sarjoo Jaiswal v. Dossibai N.B.
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
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
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
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
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)
[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)
[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)
K. ARUMUGA VELAIAH v. P.R. RAMASAMY AND ANR.
A
B
C
D
E
F
G
H
696
SUPREME COURT REPORTS
[2022] 11 S.C.R.
[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)
[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)
[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)
[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.
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.
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
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.
A
B
C
D
E
F
G
H
697
2. For the sake of convenience the parties herein shall be referred
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
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,
being the first defendant, namely, P.R. Ramasamy. Through
his second wife, Kaliammal, Periyaiya Servai had two sons,
being second defendant, namely, P.R. Kasilingam and
Marimuthu. Second defendant's son, K. Arumuga Velaiya
is the plaintiff.
(ii)
According to the plaintiff, Periyaiya Servai had executed a
registered will dated 26th January, 1994, in favour of the
plaintiff in relation to his share of the properties of the joint
family. Thus, the joint family properties had to be divided
into four shares of which the plaintiff was entitled to one
share, bequeathed in his favour by his grandfather, Periyaiya
Servai under the will. Further, Poomayil, on the death of
her husband Marimuthu had bequeathed his share in the
property to the first defendant. Hence the first defendant
has become entitled to half share in the joint family property
and the remaining half has to be equally divided between
the second 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.
(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.
K. ARUMUGA VELAIAH v. P.R. RAMASAMY AND ANR.
[B. V. NAGARATHNA, J.]
A
B
C
D
E
F
G
H
698
SUPREME COURT REPORTS
[2022] 11 S.C.R.
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
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
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
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
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
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
Periyaiya Servai, on the file of the District Munsiff Court,
Devakottai, on false and frivolous grounds. In that suit he
had shown joint family properties as independent properties
of late Periyaiya Servai and stated that the said properties
were purchased out of the personal income of Periyaiya
Servai. In that suit, the possession and enjoyment of the
A
B
C
D
E
F
G
H
699
joint Hindu family ancestral properties by late Periyaiya
Servai and his brother, as also the partition between them
was suppressed. It was further suppressed in the said suit
that in the year 1964 a partition took place before the
panchayatdars and the partitioned properties were enjoyed
by late Periyaiya Servai, the first and second defendants
and Marimuthu. In the aforementioned suit, the widow of
Marimuthu, Poomayil also contested but the District Munsiff
Court, without taking into consideration the said partition
held that the properties were undivided ancestral joint family
properties. Aggrieved by the same the second defendant
preferred an appeal in A.S. No. 37 of 1993. Late Poomayil
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.
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.
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
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.
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.
K. ARUMUGA VELAIAH v. P.R. RAMASAMY AND ANR.
[B. V. NAGARATHNA, J.]
A
B
C
D
E
F
G
H
700
SUPREME COURT REPORTS
[2022] 11 S.C.R.
(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
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
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
Madras High Court. Before the petition was heard, Periyaiya
Servai died and the same was dismissed as not pressed by
the first defendant.
(viii) That the plaint in the instant suit was filed with a view to
extort monies from the first defendant. The first defendant
prayed before the Trial Court that the suit for partition and
separate possession filed by the plaintiff be dismissed.
5. The District Munsiff Court, Devakottai by its judgment and
decree dated 7th April, 2005 dismissed the suit being O.S. No. 101 of
2004. The salient findings of the Trial Court are as under:
(i)
The Trial Court noted that the defendant had filed O.P. No.
7 of 1992 on the file of the District Munsiff Court,
Devakottai praying for a declaration that the partition deed
stated to be executed in the year 1964 between Periyaiya
Servai, the defendants and Marimuthu was invalid. The said
suit was decreed as prayed for, with a declaration to the
effect that the partition deed stated to be executed in the
year 1964 was an unregistered document and therefore,
invalid.
(ii)
The Trial Court also noted that in O.S. No. 347 of 1991
filed by Periyaiya Servai, the District Munsiff Court,
A
B
C
D
E
F
G
H
701
Devakottai decreed that out of the properties belonging to
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
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.
(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
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,
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
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,
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
K. ARUMUGA VELAIAH v. P.R. RAMASAMY AND ANR.
[B. V. NAGARATHNA, J.]
A
B
C
D
E
F
G
H
702
SUPREME COURT REPORTS
[2022] 11 S.C.R.
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
paying kist in connection with their respective properties.
In the circumstance, the first appellate court held that the
fact that the defendants had not obtained pattas individually
for their respective shares in the suit properties, could not
result in a conclusion that Periyaiya Servai had not
partitioned the suit properties in favour of his sons.
ii)
That the kist receipts paid by the first defendant from the
year 1964, in relation to his share of the suit properties led
to the conclusion that the first defendant was enjoying the
properties allotted to him by way of the partition effected in
the year 1964.
iii)
Since partition was effected between Periyaiya Servai and
his sons in the year 1964, whereby the suit schedule
properties were divided among the first and second
defendants and late Marimuthu, and no property was
apportioned in favour of Periyaiya Servai, he had no right
to execute a will subsequently, in relation to the suit
properties. Therefore the will dated 26th January, 1994 is
not a valid document.
iv)
That the plaintiff could not claim title over one-fourth share
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
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
A
B
C
D
E
F
G
H
703
direction by the High Court, Madras in the order of remand
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
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
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?
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:
(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.
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.
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.
K. ARUMUGA VELAIAH v. P.R. RAMASAMY AND ANR.
[B. V. NAGARATHNA, J.]
A
B
C
D
E
F
G
H
704
SUPREME COURT REPORTS
[2022] 11 S.C.R.
9. Learned counsel for the appellant-plaintiff at the outset
contended that the High Court as well as the courts below were not
right in dismissing the suit filed by the appellant-plaintiff by holding that
there was a prior partition between the parties in the year 1964 and
hence the instant suit for partition and separate possession was not
maintainable. Elaborating the said contention it was submitted that the
so called partition of the suit schedule properties in the year 1964 was as
per an award. The said award was not registered as per section 17 (1)
(e) of the Registration Act, 1908 (hereinafter referred to as "the Act"
for the sake of brevity). Section 49 of the Act was also pressed into
service to contend that in the absence of registration of the arbitration
award effecting the partition between members of the family, the award
does not have 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.
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
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,
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
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
and hence the said finding is not binding on the parties.
A
B
C
D
E
F
G
H
705
11. It was contended that the High Court in passing the impugned
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
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.
b)
Satish Kumar and Ors. v. Surinder Kumar and Ors.,
[1969] 2 SCR 244.
c)
Lachhman Dass v. Ram Lal, [1989] 3 SCC 99.
d)
Asrar Ahmed v. Durgah Committee, Ajmer, AIR 1947
PC 1.
13. Per contra, learned counsel for the respondents supported the
impugned judgment of the High Court to contend that registration of the
arbitral award making a partition between the parties was not compulsory.
It was urged that partition of joint family properties is not a transfer inter
vivos. A partition only crystallises the share of the coparceners in the
joint family or ancestral properties. That so long as the parties are not
allotted shares pertaining to specific assets under a partition deed such a
document does not create any right, title or interest in any specific property
as such. Therefore, registration of the arbitral award in the instant case
as such is not a mandatory requirement.
14. Alternatively, it was contended that the finding of the first
appellate court in A.S. No. 37 of 1993, regarding the partition and division
of the ancestral joint family properties in the year 1964 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
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
K. ARUMUGA VELAIAH v. P.R. RAMASAMY AND ANR.
[B. V. NAGARATHNA, J.]
A
B
C
D
E
F
G
H
706
SUPREME COURT REPORTS
[2022] 11 S.C.R.
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
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
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,
[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.
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.
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:-
(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.
A
B
C
D
E
F
G
H
707
(b)
Appellant has also claimed that his grandfather Periyaiya
Servai had executed a will in his favour and therefore he
had one-fourth share in the suit property.
(c)
It is also not in dispute that O.S. No. 347 of 1991 was filed
on the file of the District Munsiff Court, Devakottai by
Periyaiya Servai for declaration of title and permanent
injunction, wherein all the suit properties had been shown
as joint family properties. Against the dismissal of the said
suit a preliminary decree was passed granting one-fourth
share to the plaintiff therein in A.S. No. 37 of 1993 preferred
against the dismissal of the suit.
(d)
In A.S. No. 37 of 1993 it was held that the suit properties
were joint family properties and in the year 1964 there was
a partition between the members of the joint family. The
said judgment was not assailed by any of the parties.
(e)
However, the appellant herein instituted a fresh suit being
O.S. No. 101 of 2004 on the file of the District Munsiff
Court, Devakottai which was dismissed, against which A.S.
No. 38/2005 was filed before the Subordinate Judge,
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.
(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.
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
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
K. ARUMUGA VELAIAH v. P.R. RAMASAMY AND ANR.
[B. V. NAGARATHNA, J.]
A
B
C
D
E
F
G
H
708
SUPREME COURT REPORTS
[2022] 11 S.C.R.
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
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.
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
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
registration. Hence, the said document was not admissible in
evidence to prove the title of the coparceners to any particular
property or to prove that any particular property had ceased
to be joint property. However, document exhibit D-4
considered therein was held to be admissible to prove an
intention on the part of the coparceners to become divided in
status; in other words, to prove that the parties ceased to be
joint from the date of the instrument vide Nanni Bai v Gita
Bai, [1959] 1 SCR 479. The said judgment is not applicable
to the facts of this case.
b)
In Satish Kumar and Ors. v. Surinder Kumar and Ors.,
[1969] 2 SCR 244, a similar question on registration of an
award for partition of joint family property being compulsory
under Section 17 (1) (b) read with section 49 of the Act was
emphasised. In that case an award for partition was made
under the Arbitration Act, 1940 and the question was whether
such an award on a private reference required registration if
A
B
C
D
E
F
G
H
709
the award effected partition of immovable property exceeding
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
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
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
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
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
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
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
K. ARUMUGA VELAIAH v. P.R. RAMASAMY AND ANR.
[B. V. NAGARATHNA, J.]
A
B
C
D
E
F
G
H
710
SUPREME COURT REPORTS
[2022] 11 S.C.R.
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
admitted the already existing rights between the parties and
hence registration was not required. Hence the question
considered was whether the Court could have looked into
the award for the purpose of pronouncing judgment upon the
award. On a construction of the award questioned therein
the decision of the High Court was reversed. In doing so, this
Court took into consideration section 17 (1) (e) of the Act as
well as sections 23, 25 and 49 of the Act.