JUDGMENT

(V. Ramaswami J.)

1. The first defendant is the appellant. The suit was filed by respondents 1 to 4 for partition and separate possession of their 4/5th share in the plaint schedule properties which consisted of two items. The first item is a pucca house bearing door No. 3/135 and comprised in T.S 10/2191 of Kattur village in Coimbatore town. The second item is given as vacant site measuing 51 cents forming part of T.S 1771/1-A and situate in Pankaja Mills Road, Coimbatore. The appellant and and respondents 1 to 4 are brothers, the appellant being the eldest. The respondents in their plaint stated that they and the first defendant have been living for a considerable time separately each following his own avocation and calling but they have not divided the joint family properties by metes and bounds. Item 1 in the schedule is the ancestral family house in which the plaintiffs are living separately with their own families in different portions. The first defendant has also retained for his own use a portion of the said item. Item 2 is a vacant site measuring 51 cents situate in Pankaja Mills Road. The first defendant appears to have put up some tiled flimsy structures in some portion of the site. He is residing with his family in a structure in a portion of the site and has rented out the other portions without reference to the plaintiffs and without any right or authority to do so. The plaintiffs claim that hey are entitled to vacant possession after removal of the superstructure. On these allegations the plaintiffs sought a decree for partition of their 4/5th share in both the items.

2. In the written statement filed by the appellant herein he stated that in an oral partition some time 30 years ago before 1964, the first defendant became separated and item 1 properties were allotted to the plaintiffs and item 2 which was an unproductive vacant land with number of pits was allotted to him for his share and that the first defendant was driven out of the family house and thereafter the first defendant had nothing to do with the family or its properties or the income therefrom. He also pleaded that by his own exertions by doing cooly work and a small milk vending business he earned some income and with that he put up the buildings on item 2 which was allotted to his share in the said oral partition. The cost of these constructions was stated in the written statement as Rs. 20,000. The defendant also denied that he retained any portion in the first item for his own use and characterised the assertion in the plaint in regard thereto as a deliberate falsehood and asserted that the plaintiffs alone are in possession and enjoyment of the entire house. The second defendant remained absent and was set ex parte.

3. The trial court came to the conclusion that the first defendant has not proved the oral partition pleaded by him and that, therefore, the plaintiffs are entitled to the partition as prayed for. So far as the superstructures on item 2 are concerned, it was found that the first defendant constructed the same at his own cost and that, therefore, in the final decree proceedings the allotment should be made in such a way so as to make the buildings fall to the share of the first defendant, and if this was not possible a Commissioner will have to be appointed to suggest suitable compensation for the buildings.

4. In this appeal, the learned counsel for the appellant submitted that the admitted long course of conduct of the parties clearly showed that there should have been an oral partition as contended for by the appellant and that only in assertion of his title as per the oral partition, the appellant could have built all the superstructures. As already stated, the superstructures were built by the appellant and this was admitted by the plaintiffs respondents even in the plaint. In the oral evidence of P.W 1 he had stated that the appellant had been in possession of item 2 for more than 20 years, that at that time when he came to originally occupy the site there was no buildings in item 2 and and that later on the first defendant constructed these superstructures from his own income and not from the joint family or other income. Again, the appellant in his written statement had stated that the construction had cost him about Rs. 20,000. A Commissioner was appointed by the lower court to inspect the property and report as to the nature of the superstructure and their value and he has submitted a report in which he had valued the superstructures at Rs. 17,075. The investment of such a large amount over item 2 by way of construction of buildings in our view lead to the inference that it should have been only on the basis of a claim of ownership to the property which could be only on the basis of the oral partition pleaded by the first defendant. This inference is fortified by the fact that though the plaintiffs were aware of the construction even 20 years before, admittedly they did not make any written objection or was there any written demand for partition. Of course, the first plaintiff would say in his evidence that he orally objected and was orally demanding partition for more than 20 years but the first defendant would not accede to that request. This is hardly believable. If in spite of the objection of the plaintiffs the first defendant was going on constructing buildings and refusing to accede to the request for partition, the plaintiffs would not have kept quiet for all these 20 years. In addition to this we have the house tax receipts produced by the first defendant which are marked as Ex. B.7, B.8 and B.10 These receipts refer to the building in respect of which the tax is as door No. 4/41 to 44. For almost the same period the plaintiffs produced Ex. A.7 to A.21 which are purported to be tax receipts issued by the Coimbatore Municipality. The property in respect of which that tax was paid is stated in those receipts as door No. 4 Pankaja Mills road. It is not clear whether door No. 4 relates to the suit item 2. But we have the admission that the tax receipts Ex. B.7, B.8 and B.10 relate to the superstructure on item 2. But there is no clear evidence to show that Ex. A.7 to A.21 relate either to the vacant site in item 2 or to any other property. If they relate to the vacant site on item 2 and if that vacant site is a joint family property as contended by the plaintiffs, then one would have expected that the tax receipts should bt either in the name of all the persons or the tax should have been paid by all of them. It is not the case of the plaintiffs that with reference to item 2 the first defendant had at any time either contributed to the plaintiff for payment of the tax evidenced by Ex. A.7 to A.21 or that they paid the amount including the share of the first defendant. We are, therefore, unable to place any reliance on these Exs. A.7 to A.21 That leaves us with two other sets of evidence in this case. One set of evidence is the mortgage documents executed by the fourth plaintiff and the third plaintiff. Ex. A.1 dated 29th January, 1954 was executed by the fourth plaintiff in favour of the one Rangammal and this related to the one-fifth share of the fourth plaintiff in item 1. Since this documents does not relate to item 2 this does not in any way help the plaintiffs to prove that there was no partition. Ex. A.2 is a mortgage deed dated 24th October 1958 executed by the third plaintiff in favour of one Ayyammal. The property mortgaged is stated to be the one fifth share of the third plaintiff in items 1 and 2. The curious feature in this case is that neither the third plaintiff nor the mortgage had been produced. The learned counsel for the appellant argued that both Ex. A.1 and A.2 are attempts by the plaintiffs to create documents in evidence of title in view of the fact that item 2 had gone up in value subsequent to the oral partition. There is great foree in this argument. These are of the year 1954 and 1958 which are long subsequent to the admitted construction of the superstructures over item 2 by the first defendant. Though the plaintiffs would now admit that they have no right over the superstructures, Ex. A.2 on its terms would include a right over the superstructures as well. Further, these two documents are self-serving documents of the plaintiffs and could not be of any evidenciary value against the first defendant. The next set of documents are land acquisition proceeding which are marked as Ex. A.4 to A.6 Ex. A.4 and A.5 are certified copies of two awards and Ex. A.6 is a notice issued under S. 19 of the Land Acquisition Act to the 4th plaintiff. The land acquisition related to a small portion of item 2. It is true that in all these documents there is a reference to the plaintiffs and the first defendant as joint owners of T.S 1771/1-A. It is not clear whether the portion acquired was entirely in item 2 or any other portion in T.S 1771/1-A. The plaint describes item 2 as part of T.S 1771/1-A. It might be that T.S 1771/1-A included some other portion in which the plaintiffs were interested. In any case there is no explanation as to how the plaint describes the property as T.S 1771/1-A, part and whether the entire land acquired under the Land Acquisition proceedings formed part of item 2. Even assuming that the property aequired formed part of item 2. it cannot be stated that the award and the notice issued conclusively establish the title of the plaintiffs to a joint ownership of the same. It might be noted that the compensation awarded itself was a sum of Rs. 637 of which the first defendant's share is shown as Rs. 317—05 and the share of each of the plaintiffs is shown as Rs. 80—15. It might be that the defendant considered that it is not worthwhile to fight it especially if the title had been disputed it should have been referred under S. 31. It is true the defendant had not come forward with any explanation for not disputing the claim. But it should not be forgotten that the award made by the Land Acquisition Officer treating the property as the joint property cannot be treated to be a binding order relating to the title between the parties, and it is always open to the parties to disputet he question of title in subsequent proceedings. Therefore, Ex. A.4 to A.6 though of some value are not enough to dislodge the consistent course of conduct which showed that the plaintiffs must have had title to the property.

5. The only other important evidence which the learned counsel for the respondents would rely is Ex. A-3 which is a certified copy of the alleged statement made by the four plaintiffs and the defendant before the Land Acquisition Tahsildar. In this statement of course, there is a reference that suit item 2 is a joint family property belonging to the four plaintiffs and the defendant and that each is entitled to a 1/5 share in the same and so far as the superstructures thereon are concerned, the first defendant alone is entitled to the same. In the certified copy at the end it it stated that the statement was signed by the plaintiffs and the first defendant. But unfortunately for the plaintiff the original statement itself had not been produced. The first defendant in his evidence as P.W 1 flatly denied having given any such statement and having signed any such statement. On this denial, it was necessary for the plaintiffs to have proved either by calling the Tahsildar who recorded the statement or by producing, the original statement or by other means that the first defendant had given such a statement. But he had satisfied himself with filing Ex. A.3 a certified copy of the alleged statement. The learned counsel for the respondents relied on the fact that this document was marked by consent on 14th February 1968. The learned counsel submitted as a proposition of law that when a document is marked by consent not only there was no further need for a formal proof of the document but also it would amount to proof of whatever the document contains. In support of this contention the learned counsel relied on the decision of the Supreme Court in Purushotama v. Perumal(1) “That was a case in which the point in controversy was as to whether the respondent in that case held four election meetings admitted by him in his counter affidavit in the election petition. It was found that the practice in Pondicherry was that before every meeting the person who wants to hold that meeting will have to apply to the Inspector of Police for permission to hold the meeting mentioning the date, place and the time of the meeting. The unsuccessful candidate who filed the election petition marked four applications filed by the respondent for grant of permission for the meetings and the orders made thereon by the Inspector of Police granting such permissions. The Inspector of Police was examined as a witness and he spoke to the factum of filing of those applications and the grant of permission by him. He also stated that when such a a permission was given by him, he used to depute a Head constable to cover that meeting and report about the same. The reports of the Head constable received with reference to the four meetings were filed as evidence through the Inspector of Police. The Supreme Court relied on these reports as evidencing the holding of the meeting on those particular days. It was argued before the Supreme Court that the reports of the head constable were inadmissible in evidence on the ground that the head constable who covered those meetings had not been examined. The Supreme Court pointed out that the reports were marked by consent and, therefore, it is not open to the respondent to object to their admissibility. With reference to the argument that, though the reports in question are admissible because of the consent the court cannot look into the contents of those documents, the Supreme Court observed that once the document is properly admitted the contents of that document are also admitted in evidence though those contents may not be conclusive evidence. It could be seen from the facts that so far as the reports of the Head constable are concerned, the Inspector of Police himself spoke to the fact that he deputed the head constable to cover the meetings and report about the same he produced the original reports submitted to him by the Head constable. The Inspector had also spoken to the fact that those reports disclosed that as per the permission granted the meetings were held. It has to be noted that only with reference to the factum of holding the meeting that those reports were relied on by the Supreme Court and not for any of the other statements as to what transpired or what was spoken to in that meeting. Since the reports themselves were filed through the Inspector at whose instance the head constable covered the meeting, the Supreme Court considered that that would be admissible to prove the holding of the meeting on those days. Even here, the Supreme Court hastened to add that those contentions may not be conclusive evidence”.

6. In this case, the fact in issue is as to whether there was an oral partition sometime 30 years before the filing of the suit. With reference to this fact in issue any fact which is inconsistent with this fact in issue would be a relevant fact. Therefore, if the first defendant had made any statement subsequent to the alleged oral partition that the suit item 2 is a joint family property, that would be a relevant fact which has to be proved in any of the modes stated in the Evidence Act. Since this statement is stated to be in writing and given to a particular person, it should be proved as provided in Chapter V of Evidence Act relating to documentary evidence. Under S. 64 documents must be proved by primary evidence except in the case thereafter mentioned. Primary evidence is defined to mean document itself produced for inspection of the court. One of the exceptions referred to in this rule is the one to be found in S. 65 Cl. (e) which is to the effect that where (the original is a public document within the meaning of S. 74, secondary evidence may be given of the existence, condition or contents of the document. When secondary evidence is sought to be admitted, it is necessary for the party who produce the secondary evidence to prove that the document is one of those mentioned in S. 65 and that, therefore, he is entitled to adduce that secondary evidence. In this case the certified copy of the alleged statement was produced by the plaintiffs. If this has to be admitted in evidence it would have to be shown that the original of the same is a public document within the meaning of S. 74. Whether it is the primary evidence of the production of the original document itself or the secondary evidence of a certified copy, the document will have to be proved with reference to the person who executed the document, attestation and the handwriting of the person by whom it is purported to have been exempted under S. 67, 68 and 69. The consent of the party for marking the document only relieves the plaintiff of his obligation to prove that the original is a public document within the meaning of S. 74. But still since the document is alleged to have been signed by the first defendant and since that fact is disputed by the first defendant the plaintiff is under an obligation to prove the signature of the first defendant or that the first defendant signed the document as required by S. 67. The consent given by a party for making a document does not dispense with either the proof of contents or the document or the truth or otherwise of the contents. In this connection we may refer to the decision of a Division Bench of this court reported in Palaniappa Chettiar v. Bombay Life Assurance Co. Ltd. which considered the effect of marking a document by consent. That was an appeal from a suit filed against an Insurance Co., for payment of an amount insured on the death of the insured. The Insurance Co. produced the documents. One was a report given by the doctor who attended on the deceased at the time of his death and the second was the answers given by the same doctor for a questionaire sent by the Insurance Co. These two documents contained some materials as to the ailments of the insured which are of such a nature that if they had been disclosed at the time when the policy was issued the company would not have accepted the proposal. These two documents were marked by consent. The doctor who issued those certificates was not examined. The question for consideration was whether the contents of the documents could be relied on by the company against the plaintiff. This court held that permitting a document to be marked by consent only means that the party consenting is willing to waive his rights to have the document in question proved, that is the plaintiff was prepared to admit that the documents were what they purported to be namely a certificate given by the doctor and sent to the defendant and a reply given by the doctor to the question are sent by the company. But agreeing to the document being marked by consent did not mean that the plaintiff accepted the correctness of every statement made by the doctor in those two documents. The correctness of the allegations contained in the certificates given by the doctor and in his reply would have to be proved only in the recognised ways as contained in the Evidence Act. With great respect, we are in entire agreement with this view of the learned Judge. Therefore, the statement in Ex. A.3 cannot be relied on by the plaintiffs as disproving the oral partition contended for by the first defendant. We are also unable to rely on Ex. A.3 since it purports to be a statement by five people and signed by all of them. It could not be stated that all of them gave such a statement. It must have been given by one of them and assented to by others if at all. But there is no evidence as to who gave that statement and who assented to the same. The Tahsildar who examined the parties would have been in a position to state as to whether the first defendant did give a statement as contained in Ex. A.3 and as to whether the signature in the original of Ex. A.5 was that of the first defendant. But he had not been examined. Even the plaintiff in his evidence did not state that the statement contained in Ex. A.3 is the statement given by the first defendant. He satisfied himself by stating merely that the plaintiffs and the defendants gave a statement to the Tahsildar to the effect that it is a joint family property. In those circumstances, we are unable to place any reliance on Ex. A.3 We have already noticed that the preponderance of evidence adduced by the first defendant showed that there ought to have been an oral partition and allotment of item 2 to the first defendant and only thereafter, he could have invested such large sums of money for construction of houses over the same. We therefore hold that the first defendant had established that there was a formal partition about 30 years prior to the suit and in that partition item 2 was allotted to the first defendant. On this finding no other point arises.

7. The appeal is therefore, allowed, the judgment and decree of the lower court are set aside and the suit is dismissed with costs. There will, however, be no order as to costs in this appeal.

V.C.S