Madras High Court
V.Shree Gandhi vs Kalamani on 23 October, 2025
2025:MHC:2426
A.S.NO.944 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 23 / 07 / 2025
JUDGMENT PRONOUNCED ON : 23 / 10 / 2025
CORAM:
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
APPEAL SUIT NO.944 OF 2015
AND
M.P.NO.1 OF 2015
1.V.Shree Gandhi
2.V.V.Murugesan ... Appellants /
Defendants 1 & 2
Vs.
1.Kalamani ... Respondent No.1/
Plaintiff
2.Ponnayammal (Died)
[Note:Respondent No.2 passed away.
Memo dated November 30, 2023
filed stating that legal representatives
of deceased second respondent are
already on record, namely appellants
and first respondent. Memo recorded
vide Order of this Court dated July
23, 2025]
3.Rajendran
4.Appichi Gounder
5.T.Murugan (Exonerated)
6.R. Thangaraj ... Respondents 2 to 6 /
Defendants 3 to 7
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A.S.NO.944 of 2015
PRAYER: First Appeal filed under Section 96 read with Order XLI Rule
33 of the Code of Civil Procedure, 1908 praying to set aside the Judgment
and Decree dated August 6, 2015 passed in O.S.No.185 of 2013 on the file
of I Additional District Judge, Erode.
For Appellant No.1 : Mr.A.Sundaravadhanan
For Appellant No.2 : Mr.S.Ramesh
For Respondent No.1 : Mr.Murugamanickam
Senior Advocate for
Mr.V.S.Kesavan
For Respondent No.2 : Passed away
(Memo recorded vide Order of
this Court dated 23.07.2025)
For Respondents 3 & 4 : Mr.Pachiyappan
for Mr.D.Baskar
For Respondent No.5 : Not ready in notice
For Respondent No.6 : Mr.K.S.Jeyaganeshan
JUDGMENT
Feeling aggrieved by the Judgment and Decree dated August 6, 2015 passed in O.S.No.185 of 2013 by the 'I Additional District Court, Erode' ['Trial Court' for brevity], the defendants 1 and 2 therein have filed this Appeal Suit under Section 96 read with Order XLI Rule 33 of 'the Code of Civil Procedure, 1908' ['CPC' for short].
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2. For the sake of convenience, hereinafter, the parties will be referred to as per their array in the Original Suit. PLAINTIFF'S CASE
3. Case of the plaintiff as put forth in the plaint and the reply statement is as follows:
3.1. The suit properties along with some other properties were originally an ancestral entitlement of Karuppana Gounder. Karuppana Gounder had one son namely Velappa Gounder and four daughters namely Rasayammal, Pappayammal, Kolandayammal and Pavayammal. Velappa Gounder married Ponnayammal / third defendant and has two sons viz., the Defendant Nos.1 and 2 and one daughter viz., the plaintiff in the wedlock.
3.2. Karuppana Gounder and his four daughters filed a Suit for partition in respect of ancestral properties and 75 Cents land left behind by their mother, vide O.S. No.2855 of 1981 on the file of District Munsif, Erode. A compromise was struck and its result was Partition Deed dated September 25, 1981.
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https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015 3.3. Vide Partition Deed dated September 25, 1981, ancestral properties including the suit properties were partitioned. In the partition, Karuppana Gounder was given life interest over a house property described in “A” Schedule thereof, which is to go to the hands of his daughters and Defendant Nos.1 and 2 after his lifetime. Further, the Defendant Nos.1 and 2, for themselves and on behalf of the plaintiff and her mother / third defendant, were together allotted an extent of common 4 Acres 85 Cents in the total extent of 9 Acre 70 Cents as described in the “B” Schedule thereof, while Karuppana Gounder's four daughters were together allotted 2 Acres of land described in “C” Schedule thereof. Properties under “B” Schedule thereof viz., half share in the total extent of 9 Acre 70 Cents forms the suit properties herein.
3.4. The family was having half share only and the remaining half belonged to other co-sharers who are third parties. The marriage of plaintiff took place on September 13, 1981 i.e., a few days before the partition and since her husband Subramani was not possessed of an ancestral house to live in, the plaintiff chose to live with her husband in the house belonging to the family. In these circumstances, having utmost faith in the words of first defendant, the plaintiff and her mother / third Page No.4 of 38 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015 defendant agreed that they need not be allotted separate shares, instead suit properties may be allotted in the names of Defendant Nos.1 and 2. The plaintiff never intended to give up on her share in the suit properties, but only wanted to remain joint till a final partition being effected among all the co-sharers. In short, in the Partition Deed dated September 13, 1981, the suit properties were jointly allotted to the plaintiff and Defendant Nos.1 and 2, but in the name of Defendant Nos.1 and 2.
3.5. While so, without the knowledge of the plaintiff, the Defendant Nos. 1 and 2 entered into a partition on June 23, 1983 with co-sharers and the Defendant Nos.1 and 2 were together allotted the southern half share of 4 Acre 16 Cents. The plaintiff is a necessary party for the Partition Deed dated June 23, 1983 and as she was omitted, it does not bind her.
3.6. The plaintiff has been in joint possession and enjoyment of the suit properties along with Defendant Nos.1 and 2, all along raising crops thereon. The plaintiff's husband was an agent for sale of Aavin Milk and he was doing the said business in a portion of the suit properties.
3.7. On the death of Velappa Gounder in or about the year 1975, the plaintiff and the third defendant became entitled to common 1/12 th share Page No.5 of 38 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015 each in the suit properties, whereas the defendants 1 and 2 became entitled to common 5/12th share each.
3.8. The second defendant is trying to alienate a specific portion of suit properties. The Defendant Nos. 1 and 2 are refusing partition and attempting to defeat and defraud the rights of the plaintiff. Hence, the plaintiff filed the present Suit for partition and separate possession.
3.9. The second defendant in his written statement alleged that he had sold certain extent of land to third parties viz., the defendants 4 to 7. The above said transactions of sale are void and will not bind the plaintiff in any manner.
DEFENDANT'S CASE
4. Defendant Nos.1 and 2 filed separate written statements followed by separate additional written statements. The case of Defendant Nos.1 and 2 as projected in their written statements is in essence one and the same. The relationship between the parties as stated in the plaint is admitted. Sum and substance of the written statement is that Karuppana Gounder was totally entitled to 6 Acre 20 Cents in common without a permanent partition with other co-sharers.
Page No.6 of 38 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015 4.1. Karuppana Gounder along with his four daughters had filed a Suit against plaintiff and Defendant Nos.1 to 3, and there was a panchayat convened in respect of it, wherein a compromise was struck and a family partition was effected vide Partition Deed dated September 25, 1981.
4.2. Vide Partition Deed dated September 25, 1981, the plaintiff and mother / third defendant relinquished their shares in favour of defendant Nos.1 and 2. Defendant Nos.1 and 2 jointly allotted an extent of common 4 Acre 85 Cents described under “B” Schedule thereof.
4.3. Pursuantly, Defendant Nos.1 and 2 sold an extent of 75 cents within specific four boundaries out of the common 4 Acre 85 Cents allotted to them, to one S.P.Chandarasekaran under a registered Sale Deed dated March 09, 1983 to discharge the debts borrowed to celebrate the plaintiff's marriage. In fact, husband of the plaintiff namely Subramaniam has attested the said Sale Deed.
4.4. Thereafter, the defendants 1 and 2 and the other co-shares of the larger common extent, entered into registered Partition Deed dated June 23, 1983 whereunder the suit properties were allotted to Defendant Nos. 1 and 2. Thereafter, Defendant Nos.1 and 2 partitioned the suit properties Page No.7 of 38 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015 between them vide Partition Deed dated February 19, 1986. Revenue records have been mutated and the Defendant Nos.1 and 2 are in separate possession and enjoyment of their respective portions.
4.5. First defendant improved his portion. the second defendant constructed a building and alienated certain parts of his portion of the suit properties to Defendant Nos.4 and 5 and one Mangalam vide Sale Deeds dated June 21, 1989, June 30, 1989, and August 23, 1989 resepctively. Said Mangalam in turn sold the property purchased by her to Defendant Nos.6 and 7 vide Sale Deed dated November 25, 1994.
4.6. The suit is bad for non-joinder of necessary parties. Stating so, the defendants sought to dismiss the Suit.
5. Third defendant, though initially entered appearance through advocate, failed to file written statement despite affording sufficient opportunities. Hence she was called absent and set ex-parte. FOURTH AND FIFTH DEFENDANTS CASE
6. The fourth defendant filed a written statement. The fifth defendant adopted the written statement filed by fourth defendant. It was averred that the second defendant through two Sale Deeds dated June 21, Page No.8 of 38 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015 1989 and June 30, 1989, sold a total extent of 2147 ¾ sq. ft. and 2500 sq. ft. of the suit properties to fourth and fifth defendants respectively and delivered possession on the same day. The fourth and fifth defendants are bonafide purchasers with value and they both are father and son. Fourth defendant obtained a building approval plan and put up a residential house in the extent of 2147 ¾ sq. ft. purchased by him. Subsequently, the second defendant filed a Suit for declaration against defendants 4 to 7, inter alia in respect of the properties purchased by defendants 4 and 5. The second defendant failed in the Suit as well as the First Appeal and now Second Appeal is pending. In any event, if the Hon'ble Court is inclined to grant Decree in favour of plaintiff, the Hon'ble Court may be pleased to allot the properties covered under the aforesaid Sale Deeds in favour of the second defendant. Further, the title of second defendant over the properties purchased was traced as stated in the written statement filed by second defendant. The Suit is barred by limitation as the plaintiff did not question the Partition Deeds dated September 25, 1981 and February 19, 1986 and also the aforementioned two Sale Deeds. The Suit is not properly valued and the Court Fee paid is incorrect. Stating so, they sought for dismissal of the Suit.
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7. The sixth defendant was exonerated on July 11, 2014 by the Trial Court at the instance of the plaintiff.
SEVENTH DEFENDANT'S CASE
8. The seventh defendant filed a written statement stating that he had purchased 1450 sq. ft. land within specific four boundaries from one T.Mangalam and G.Gopalakrishnan, who purchased the said lands from the second defendant. Further, he reiterated about the Suit initiated by the second defendant against his purchasers as averred by defendants 4 and 5. The seventh defendant further averred that he is in actual possession of the aforesaid extent of suit properties. In the Partition Deed dated September 13, 1981, the suit properties were not jointly allotted to the plaintiff and Defendant Nos.1 and 2. The plaintiff has no right in the suit properties. The Suit is devoid of merits and has been filed by the plaintiff to settle scores with the first and second defendants. Stating so, he sought for dismissal of the suit.
TRIAL COURT
9. Based on the above pleadings, the Trial Court framed the following issues:
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https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015 “1. Whether the plaintiff is entitled for partition of 1/12 share in the schedule properties by metes and bounds as prayed for?
2. Whether the schedule properties has been already partitioned under a registered partition deed dated September 25. 1981 and the plaintiff relinquish her share in the schedule properties as alleged?
3. What other reliefs the plaintiff is entitled to?” 9.1. Later, the following additional issue was framed:
“1.Whether the D4, D5 and D7 are entitled for the right of equity as prayed for? ” 9.2. At trial, the plaintiff was examined as P.W.1 and Ex-A.1 to Ex-
A.17 were marked on the side of the plaintiff. On the side of the defendants, the first defendant was examined as D.W.1, one Muthusamy was examined as D.W.2, the second defendant was examined as D.W.3 and the fourth defendant was examined as D.W.4 and Ex-B.1 to Ex-B.62 were marked. Ex-C.l and Ex-C.2 were marked as Court exhibits.
9.3. After full-fledged trial, the Trial Court concluded that the plaintiff has not relinquished her share in the suit properties and she merely postponed her demand of allotment of her separate share for the time Page No.11 of 38 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015 being at the time of Partition Deed dated September 25, 1981. Hence, she is entitled for preliminary decree of partition of her 1/12 share in the suit properties. The Trial Court further granted right of equity to the Defendants 4, 5 and 7. Accordingly, the Trial Court decreed the Suit in favour of the plaintiff.
9.4. Feeling aggrieved, the defendant Nos.1 and 2 have preferred this First Appeal under Section 96 read with Order XLI Rule 33 of the CPC. ARGUMENTS:
10. The main contentions of Mr.A.Sundaravadhanan and Mr.S.Ramesh, learned Counsels for the Appellant Nos.1 and 2 / Defendant Nos.1 and 2 are as follows:
10.1. Karuppana Gounder, his four daughter, the plaintiff and Defendant Nos.1 to 3 were co-heirs / co-owners having pre-existing right over the suit properties and some other properties which were inherited from paternal as well as maternal side (from plaintiff's maternal grandmother - Sellayammal). Daughters of Karuppana Gounder filed the Suit for partition in O.S. No.2855 of 1981 on the file of District Munsif Erode. During the pendency of that Suit, elders and well-wishers Page No.12 of 38 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015 intervened and settled the matter through a family arrangement, pursuant to which, Ex-B.34 - Partition Deed dated September 25, 1981 was entered into. Ex-B.34 is registered in accordance with the Registration Act, 1908 10.2. The plaintiff voluntarily relinquished her share in favour of Defendant Nos.1 and 2 in the family arrangement in lieu of her marriage and seer expenses. The plaintiff's relinquishment has been recorded in Ex-
B.34. Law does not require separate document for relinquishment. Ex- B.34, which is the original, was marked without any objection. On and after the date of Ex-B.34, the plaintiff has no right whatsoever over the suit properties. The plaintiff is not in joint possession and enjoyment of the suit properties. The Court-Fee paid under Section 37 (2) is incorrect.
10.3. Pursuant to Ex-B.34, Ex-B.36 - Partition Deed dated June 23, 1983 was executed between Defendant Nos.1 and 2 and the other co- owners, whereby the suit properties were allotted to the Defendant Nos.1 and 2. Pursuant to Ex-B.36, Ex-B.3 - Partition Deed dated February 19, 1986 was executed between Defendant Nos.1 and 2 in respect of the suit properties. The plaintiff did not challenge the aforesaid Deeds and hence, the Suit is not maintainable.
Page No.13 of 38 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015 10.4. The plaintiff's husband, who is a signatory in Ex-B.34 as well as Ex-B.35 - Sale Deed dated March 9, 1983 executed by Defendant Nos.1 and 2 in favour of one Chandrasekharan, has not been examined by the plaintiff. His non-examination is fatal to the case of plaintiff. The plaintiff's claim is barred by the doctrine of estoppel by deed viz., Ex-B.34.
10.5. The Trial Court failed to consider the above aspects and erred in granting Decree in favour of the plaintiff. The Judgment and Decree of the Trial Court are erroneous and deserves to be interfered with. Accordingly, he would pray to set aside the Judgment and Decree of the Trial Court.
10.6. In addition, Mr. Ramesh, learned Counsel for Appellant No.2 / Defendant No.2 would submit that the plaintiff ought to have challenged Ex-B.34, Ex-B.36 and Ex-B.3 within the stipulated statutory period of limitation. Hence, the plaintiff's claim is barred by limitation under Article 58 and 59 of the Limitation Act, 1963.
10.7. They would rely on the following decisions in support of their contentions:
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(i) R.Krishna Kumar's case - Judgment of Hon'ble Supreme Court in R.Krishna Kumar -vs- R.Vatsala, made in Civil Appeal No.5638 of 2023 dated September 5, 2023;
(ii) Ramaswamy Gounder's case - Judgment of this Court in Ramaswamy Gounder -vs- Ananthapadmanabha Iyer, reported in 1967 SCC OnLine Mad 269 : (1971) 84 LW 176 (Mad);
(iii) Panneer Selvam's case - Judgment of this Court in Panneer Selvam
-vs- Kalaivani, reported in 2023 SCC OnLine Mad 2258.
11. Reiterating the submissions of the learned Counsels for the appellants, Mr.Pachiyappan for Mr.D.Baskar, learned Counsel on record for Respondents 3 & 4 and Mr.K.S.Jeyaganeshan learned Counsel on record for Respondent No.6 would submit that the Defendant Nos.4 to 7 derive title from second defendant in respect of a small portion of the suit properties vide Ex-B.39 to Ex-B.44 - Sale Deeds between 1989 to 1994. They are bonafide purchasers with value who have invested and developed their respective portions, to the knowledge of the plaintiff. If in case the Court is inclined to allow the Appeal Suit, the defendants 4 to 7 Page No.15 of 38 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015 are entitled to get their portion allotted in favour of second defendant as per the principles of equity. The Trial Court rightly protected their interest and the same may be confirmed.
12. On the other hand, Mr.T.Murugamanickam, learned Senior Advocate for Mr.V.S.Kesavan, learned Counsel on record for the first respondent / plaintiff would argue that maternal side properties (Sellaiyammal's separate properties) alone were partitioned under Ex-B.34
- Partition Deed dated September 25, 1981. Joint family properties were not partitioned. In the said Partition Deed, the plaintiff and her mother / third defendant made a request not to allot their shares separately in their favour; on the other hand, they sought to allot properties jointly to the Velappa Gounder's branch. He would refer to the recitals in Ex-B.34 and submit that if really the plaintiff and her mother / third defendant released or relinquished their share, no pious obligations / liabilities would have been imposed on them. However, that is not the case with Ex-B.34. Ex- B.34 obligates the plaintiff and Defendant Nos.1 to 3 to pay a one-time settlement amount of Rs.10,000/- to Karuppana Gounder besides yearly maintenance either in the form of paddy or cash of Rs.1,000/-. This shows Page No.16 of 38 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015 the intention of the parties and clarifies that 'B' Schedule property under Ex-B.34 was jointly allotted to Velappa Gounder's branch.
12.1. He would further argue that ancestral and joint family properties were partitioned vide Ex-A.3 = Ex-B.36 - Partition Deed dated June 23, 1983, whereby 'F' Schedule properties therein was allotted to Defendant Nos.1 and 2, which forms the suit properties herein. The plaintiff and her mother / third defendant are not parties to Ex-A.3 = Ex-B.36. Hence, it can only be construed that 'F' Schedule properties therein was allotted in favour of Velappa Gounder's branch in the name of Defendant Nos.1 and
2. In other words, Defendant Nos.1 and 2 represented Velappa Gounder's branch in Ex-A.3 = Ex-B.36. Hence, the plaintiff and the Defendant Nos.1 to 3 are co-owners in respect of the suit properties.
12.2. He would further argue that as Ex-B.34 is not a Composite Document of Partition and Relinquishment as contended by the Defendant Nos.1 and 2 and there is no intention of relinquishment, which are evident from the fact that Stamp Duty has been paid only for partition and not for relinquishment. The plaintiff and her mother / third defendant's intention was only to postpone separate allotment of share and hence, they Page No.17 of 38 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015 consented for joint allotment of all their shares in the name of Defendant Nos.1 and 2. Thus, Ex-B.34 is merely a Partition Deed whereby 'B' Schedule property thereof was allotted jointly in favour of the plaintiff and Defendant Nos.1 to 3, but in the name of Defendant Nos.1 and 2. Therefore, the plaintiff and Defendant Nos.1 to 3 are co-owners each entitled to equal share in the suit properties.
12.3. He would further argue that considering that only a small extent of suit properties were sold by defendants 1 and 2 to third parties, the plaintiff did not question the same. The same will not affect the rights of the plaintiff over the suit properties. The Trial Court ought to have declared the plaintiff's share as per law, dehors what has been prayed for. Pending the Appeal Suit, third defendant passed away on November 19, 2023 leaving behind the plaintiff and the Defendant Nos.1 and 2 as her legal heirs. In view of Section 6 of the Hindu Succession Act, 1956 as interpreted by the Hon'ble Supreme Court in Vineeta Sharma -vs- Rakesh Sharma, reported in (2020) 9 SCC 1, the plaintiff is legally entitled to 1/3 share in the suit properties. Though the plaintiff did not file separate appeal, the plaintiff is entitled to seek her lawful share as per Order XLI Rule 22 of CPC. Accordingly, he would pray to dismiss the Appeal Suit Page No.18 of 38 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015 and modify the Judgment and Decree of the Trial Court to the effect that the plaintiff is entitled to 1/3 share in the suit properties.
12.4. He would rely on the following decisions in support of his contentions:
(i) Mathai Samuel’s Case - Judgment of Hon'ble Supreme Court in Mathai Samuel -vs- Eapen Eapen, reported in (2012) 13 SCC 80;
(ii) V.M.Murugesa Mudaliar’s Case - Judgment of this Court in The Board of Revenue -vs- V.M.Murugesa Mudaliar, reported in (1955) 68 LW 534 (Mad) : 1955 SCC OnLine Mad 83;
(iii) B.P.Easwaran’s Case - Judgment of this Court in The Board of Revenue -vs- B.P.Easwaran, reported in (1970) 83 LW 203 (Mad) (FB) : 1970 SCC OnLine Mad 4;
(iv) Lakshmana Chettiar’s Case - Judgment of this Court in The Board of Revenue -vs- RM.L.RM. Lakshmana Chettiar, reported in (1970) 83 LW 205 (Mad) (FB) : 1970 SCC OnLine Mad 5;
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(v) N.Narasimhan's Case - Judgment of this Court in The Board of Revenue -vs- N.Narasimhan, reported in 1961 2 MLJ 538 : 1961 SCC OnLine Mad 58 : (1961) 74 LW 432 (Mad) (FB).
DISCUSSION:
13. Heard on either side. Perused the evidence available on record.
The following points arise for consideration in this Appeal Suit:
(i) Whether the argument that the subject matter of Ex-B.34 - Partition Deed dated September 25, 1981 is the maternal side properties viz., separate properties of plaintiff's grandmother Sellayammal is correct and sustainable ?
(ii) Whether the plaintiff and her mother / third defendant had relinquished / released their shares under Ex-B.34 - Partition Deed dated September 25, 1981 in favour of Defendant Nos.1 and 2 ?
(iii) Whether the Judgment and Decree of the Trial Court are liable to be interfered with ?
14. For better appraisal of the facts of the case, the admitted relationship between the parties is shown through the following genealogy chart:
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15. Party Nos.1, 6 to 9 (refer genealogy chart) filed a Suit for partition against Party Nos.2 to 5 in O.S. No.2855 of 1981 on the file of District Munsif Erode on September 16, 1981. As per Ex-A.17 - Suit Register, the said Suit was dismissed as settled out of Court on October 28, 1981.
16. Pending Suit, Party No. 2's brother - Muthusamy, plaintiff's father-in-law - Muthusamy, plaintiff's husband - Subramani and a few others made efforts to resolve the dispute amicably, acted as panchayatdhars and facilitated the parties to arrive at a family arrangement. Pursuantly, Ex-B.34 - Partition Deed dated September 25, 1981 was entered into. To be noted, the plaintiff was newly married at that Page No.21 of 38 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015 time; she got married on September 13, 1981 and the partition was about 12 days later.
17. A small house property in the hamlet of Veerapanpalayam, an extent of common 4 Acre 85 Cents out of 9 Acre 70 Cents in Vilarasampatti Village, Erode Taluk and an extent of 1 Acre 95 Cents in Erode Village, all totalling to 6 Acre 80 Cents, forms the subject matter of Ex-B.34.
18. Under Ex-B.34, the aforesaid house property described under 'A' Schedule therein was allotted to Karuppana Gounder. The aforesaid common 4 Acre 85 Cents described under 'B' Schedule therein was allotted in the name of Defendant Nos.1 and 2 along with well and other rights. The aforesaid extent of 1 Acre 95 Cents, described therein as 'C' Schedule property was allotted to the four daughters of Karuppana Gounder jointly.
19. Ex-B.34 recites that the said 6 Acre 80 Cents includes paternal property as well as separate properties of maternal grandmother - Sellayammal. In Ex-B.34, there is no whisper about which properties are paternal and which are maternal. Ex-B.36 is the subsequent Partition Deed Page No.22 of 38 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015 dated June 23, 1983 executed among Defendant Nos.1 & 2 and other co- sharers. What could be understood from a cogent and conjoint reading of Ex-B.34 and Ex-B.36 is that the aforesaid common 4 Acre 85 Cents out of 9 Acre 70 Cents in Vilarasampatti Village is paternal property and that the aforesaid extent of 1 Acre 95 Cents with irrigation Well in Erode Village is maternal property. In other words, 'B' Schedule property under Ex-B.34 is paternal property and 'C' Schedule property thereunder is maternal property. There is no recital or reference about the character of 'A' Schedule property (House property) thereunder.
20. Anyhow, it could be seen both paternal and maternal properties were partitioned under Ex-B.34. Hence, the argument of learned Senior Counsel for the first respondent / plaintiff that only maternal properties were partitioned under Ex-B.34 is incorrect and does not hold up under scrutiny. Point No.(i) is answered accordingly.
Point No.(ii)
21. As stated supra, Ex-B.34 - Partition Deed was entered into in furtherance of the said family arrangement. Ex-B.34 is a original document. Ex-B.34 has five witnesses namely (i) M.Muthusamy son of Page No.23 of 38 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015 Marappa Gounder (third defendant's brother), (ii) Muthusamy son of Chinappa Gounder (plaintiff's father-in-law), (iii) Palanisamy son of Ramasamy, (iv) Subramani son of Muthusamy (plaintiff's husband), (v) Sengotaiyan son of Chinappa Gounder.
22. One of the witness, M.Muthusamy son of Marappa Gounder, was examined on the side of defendants as D.W.2. He deposed about Suit in O.S. No.2855 of 1981 on the file of District Munsif Erode, the family arrangement that followed and the pursuant Ex-B.34 - Partition Deed. He further deposed that said Palanisamy son of Ramasamy and said Sengotaiyan son of Chinappa Gounder are husband of two daughters of Karuppana Gounder. In other words, they are plaintiff's paternal uncle. He further deposed that in the said family arrangement, when 'B' Schedule property under Ex-B.34 was planned to be allotted to the branch of Velappa Gounder, the plaintiff and her mother / third defendant relinquished their shares in favour of Defendant Nos.1 and 2 and that the same has been recited in Ex-B.34. To be noted, the plaintiff and her mother / third defendant are parties to Ex-B.34 and they have signed in it. Page No.24 of 38 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015
23. The plaintiff, in Paragraph No.3 of the plaint, clearly admitted the execution of Ex-B.34 - Partition Deed, that is a family partition and the allotment thereunder. Her only contention is that the plaintiff never intended to give up on her share in the suit properties and only wanted to remain joint until final partition is effected in respect of 'B' Schedule property under Ex-B.34 among all the co-sharers. In short, the contention of the plaintiff is that the allotment of 'B' Schedule property under Ex-B.34 was not absolutely in favour of Defendant Nos.1 and 2, but in favour of Velappa Gounder's branch represented by Defendant Nos.1 and 2 who are the male members of the branch.
24. Contrary to her stand in the plaint, she has taken up the plea of lack of knowledge of the contents of Ex-B.34. In the reply statement, she has pleaded that in view of the utmost faith vested in first defendant, she signed Ex-B.34 without going through its contents. It is settled law that earlier admission, though can be explained, cannot be withdrawn by way of subsequent pleadings. Hence the pleadings of the plaintiff in the reply statement is not valid.
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25. At this juncture, this Court deems fit to extract a portion of Ex- B.34 hereunder:
'vdnt ,jdoapy; fz;l “V” b#oa{y;
brhj;ij ek;kpy; 1 yf;fkpl;ltUk;/ “gp” b#oa{ypy; fz;l brhj;ij ek;kpy; 3 & 4 yf;fkpl;lth;fSk;/ “rp” b#oa{ypy; fz;l brhj;ij ek;kpy; 6/ 7/ 8/ 9 yf;fkpl;lth;fSk;
mile;J bfhz;L brhj;Jf;fisa[k; ,d;nw mtuth;fSila RthjPdKk; bra;J bfhz;L ,Uf;fpwgoahy; ,dp mtutUila ghf brhj;Jf;F mtuth;fns g{uz ghj;jpa!;jh;fshfpf; bfhz;L g[j;jpu bgsj;jpu ghuk; ghpakha; jhdhjp tpf;fpua tpdpnahf';fSf;F nahf;fpakha;
mtuth;fSila ghf brhj;Jf;F mtuth;fns gO;rhaj;J thp/ rhf;fhh; jPh;it Kjyhditfs; brYj;jpf; bfhz;L ru;t Rje;jpughj;jpa';fSld; Mz;lDgtpj;Jf;
bfhs;s ntz;oaJ.
,dp xUtUf;Fg; gphpe;j ghf brhj;ijf;
Fwpj;J kw;w ghf!;jh;fSf;fhtJ my;yJ mth;fSila thhPRfSf;fhtJ vt;tpj ghj;jpa rk;ke;jKk; gpd; bjhlh;r;rpa[k;
fpilahJ.
Page No.26 of 38 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015 ,e;j ghf rh!dg; gj;jpuj;jpy; fz;Ls;s “gp” b#oa{y; brhj;Jf;fs; ek;kpy; 2 Kjy; 5 tiu yf;fkpl;lth;fs; ghfj;Jf;Fg;
gpupe;jpUe;j nghjpYk; ek;kpy; 2 & 5 yf;fkpl;lth;fs; j';fSf;F brhj;J njitapy;iy vd nfhwpajpy; “gp” b#oa{y;
brhj;ij ek;kpy; 3 & 4 yf;fkpl;lth;fs;
ghfj;Jf;F gpupj;J bfhLj;jpUf;fpwgoahy; ek;kpy; 2 & 5 yf;fkpl;lth;fs; j';fSf;F g';F nfhhp vt;tpj eltof;if vLj;jhYk;
mJ bry;yj;jf;fjy;y. vdnt ,e;j ghf rh!dj;ij ehk; xd;gJ ngh;fSk; KG kd rk;kjpapy; vGjp itj;Jf;
bfhz;oUf;fpwgoahy; ,ij ek;kpy; ahUk;
vt;tpj Ml;nrgida[k; bra;af;TlhJ. ,dp ekf;Fs; rpnef rk;ge;jnk jtpu brhj;J ghj;jpa rk;ke;jk; vJt[k; fpilahJ.
,jdoapy; fz;l “V” b#oa{y; brhj;J ek;kpy; 1 yf;fkpl;lth; bgahpYk;/ ,jdoapy; fz;l “gp” b#oa{y; brhj;J ek;kpy; 3 & 4 yf;fkpl;lth;fs; bgahpYk;/ ,jdoapy; fz;l “rp” b#oa{ypy; fz;l brhj;J ek;kpy; 6/ 7/ 8/ 9 yf;fkpl;lth;fs; bgahpYk; khWjy; bra;a[k; bghUl;L gO;rhaj;J/ gl;lh khWjy;
kDf;fSk; jhf;fy; bra;jpUf;fpnwhk;.' (Emphasis supplied) Page No.27 of 38 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015
26. As it could be seen from the above, Ex-B.34 clearly recites that the properties allotted thereunder are separate properties of the allottees, that the plaintiff and third defendant emphatically relinquished their shares in favour of Defendant Nos.1 and 2 and hence, they cannot raise any claim for their shares in the future. There is no evidence available on record to prove the contention of the plaintiff that she merely postponed her claim of separate allotment of her share and did not relinquish it in favour of Defendant Nos.1 and 2. Thus, it is abundantly clear that the plaintiff and third defendant had relinquished their share in favour of Defendant Nos.1 and 2.
27. Moreover, Ex-B.35 is Sale Deed dated March 9, 1983 executed by Defendant Nos.1 and 2 in favour of one Chandrasekharan in respect of an extent of 75 Cents within specific four boundaries out of the common extent of 4 Acre 85 Cents allotted to Defendant Nos.1 and 2 as 'B' Schedule property under Ex-B.34. In Ex-B.35 it has been clearly recited that the property covered thereunder was separate property of Defendant Nos.1 and 2 obtained under in the family partition under Ex-A.34. In Ex-
B.35, the plaintiff's husband - Subramani as well as D.W.2 / plaintiff's maternal uncle are witnesses. In these circumstances, the plaintiff ought to Page No.28 of 38 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015 have examined her husband in support of her case, but she has failed to do so.
28. The plaintiff would contend that she being a co-sharer, was required to sign Ex-B.35 - Sale Deed; however, as she was 9 months pregnant at the time of Ex-B.35, her husband signed on her behalf. The logic on the face of it is untenable and would not be valid by any stretch of imagination. If really a person has share in the subject matter of sale, they would not sign as a witness; they would rather be a party to the Sale Deed. Even while assuming otherwise, the plaintiff has been evasive when questioned about her son's date of birth and there is no evidence to substantiate her claim of pregnancy at that time. To be noted, the plaintiff has studied upto V Standard. Hence, she is literate. Further, if we go by the same logic, then the third defendant would have also been made to sign in Ex-B.35 which is not the case here.
29. In view of the clear evidence available on record to show that the plaintiff and third defendant had relinquished their share in favour of Defendant Nos.1 and 2, the submissions of learned Senior Counsel for first respondent / plaintiff qua pious obligation / liabilities to maintain Page No.29 of 38 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015 Karuppana Gounder deserve to be rejected. Moreover, D.W.2's evidence and Ex-B.1 - Receipt would show that the pious obligations / liabilities were fully taken care by first defendant.
30. That apart, the transaction under Ex-B.34 - Partition Deed is purely a partition qua Karuppana Gounder and his four daughters, and a Composite Deed of partition and relinquishment qua the legal heirs of his predeceased son - Velappa Gounder viz., plaintiff and Defendant Nos.1 to
3. This is because, at the time of allotment of 'B' Schedule property under Ex-B.34 itself, the plaintiff and third defendant relinquished their share in favour of Defendant Nos.1 and 2 as discussed above. It is absolutely correct that separate stamp duty has to be paid for relinquishment. Ex-B.34 is a registered document written on a Rs.600/- stamp paper and thus, satisfies the requirement of Section 17 of the Registration Act, 1908. Release or Relinquishment does not fall under the scope and ambit of the Transfer of Property Act, 1882. Even while assuming that relinquishment or release is a transfer, the Transfer of Property Act, 1882 requires only registration. It does not speak of stamp duty. Stamp duty falls under the scope and ambit of a separate fiscal enactment viz., the Indian Stamp Act, 1899 and the Rule framed by State of Tamil Nadu.
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31. As per Section 35 of the Indian Stamp Act, 1899, generally, any document suffering deficit in stamp duty is not admissible in evidence unless the defect is cured by remitting deficit stamp duty with applicable penalty. However, Section 36 of the Indian Stamp Act, 1899 says that when an instrument has been admitted in evidence, such admission shall not be called in question for deficit in stamp duty, at any stage of the same Suit or proceedings except as provided under Section 61 thereof. To be noted, Ex-B.34 was marked in Open Court through D.W.2 without any objection from the plaintiff's side and hence, the Trial Court did not impound the document under Section 35 read with Section 61 of Indian Stamp Act, 1899. Hence, the plaintiff cannot now call into question the admissibility of Ex-B.34 on the ground of insufficient stamp duty.
32. It is apposite to extract Section 36 of the Indian Stamp Act, 1899, which is as follows:
'36.Admission of instrument where not to be questioned.- Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.' Page No.31 of 38 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015 Further, in the case of Javer Chand Vs. Pukhraj Surana, reported in 1961 SCC OnLine SC 22 : AIR 1961 SC 1655, Full Bench of the Hon'ble Supreme Court held as under:
'4. ...Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial court itself or to a court of appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same court or a court of superior jurisdiction.' The above dictum has been followed by the Hon'ble Supreme Court in the case of Shyamal Kumar Roy Vs. Sushil Kumar Agarwal, reported in (2006) 11 SCC 331, wherein the plaintiff therein, in a Specific Performance Suit, exhibited a Development Agreement dated January 16, 1995 without any objection from the other side. At the stage of arguments, the defendants filed two applications to recall the order admitting the document and to send the same to the Collector for impounding. The Trial Court dismissed the applications, against which, a revision was preferred which was also dismissed and a review was also dismissed. Aggrieved Page No.32 of 38 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015 over the same, the defendant preferred an appeal to the Apex Court and the same was dismissed by the Apex Court, by relying on the judgment cited supra.
33. Merely on the ground of deficit stamp duty, it cannot be said that Ex-B.34 is not valid qua relinquishment by plaintiff and third defendant. The case laws relied on by the learned Senior Counsel are decided under the reference referred under Section 57 of the Indian Stamp Act, 1899 with regard to question of appropriate stamp duty. No quarrel with these case laws. It is up to the concerned authority to collect the necessary stamp duty as per law. Further, as stated supra, Ex-B.34 was marked and admitted as evidence without objection qua deficit stamp duty. In these circumstances, these case laws does not come to the aid of the plaintiff.
34. To sum up, in view of the abundant evidence available on record in the form of recitals contained in Ex-B.34 - Partition Deed, deposition of D.W.2, recitals in Ex-B.35 - Sale Deed wherein the plaintiff's husband has signed as a witness, and the admissions made by the plaintiff in the pleadings qua execution of Ex-B.34 and allotment of shares, this Court is of the view that the plaintiff and the third defendant had Page No.33 of 38 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015 relinquished their share in 'B' Schedule properties under Ex-B.34 - Partition Deed dated September 25, 1981 in favour of Defendant Nos.1 and 2. Point No.(ii) is answered accordingly.
Point No.(iii)
35. As the plaintiff had relinquished her share in favour of Defendant Nos.1 and 2 under Ex-B.34 - Partition Deed, she is not entitled to any share in the 'B' Schedule properties thereunder. When so, the plaintiff cannot question Ex-A.3 = Ex-B.36 - Partition Deed dated June 23, 1983 executed among the Defendant Nos.1 and 2 and other co-sharers, whereby the suit properties were allotted to Defendant Nos.1 and 2. In turn, the Defendant Nos.1 and 2 partitioned the suit properties between them and thereafter, have been in possession and enjoyment of the their respective portions. Separate Patta has been issued in favour of the Defendant Nos.1 and 2 in respect of his portion of the suit properties allotted under Ex-B.3 - Partition Deed dated February 19, 1986. They have been in separate dealing of their respective portions and in fact, have alienated certain portion of suit properties to third parties including Defendant Nos.4 to 5 herein.
36. Ex-A.4 to Ex-A.6 - Water Tax Receipts and Ex-A.7 to Ex-A.10 - Page No.34 of 38 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015 Electricity Receipts were relied on by the plaintiff to prove her case of joint possession and enjoyment. However, perusal of Ex-A.4 to Ex-A.10 would show that they stand in the name of second defendant. As stated supra, separate pattas have been issued in favour of Defendant Nos.1 and 2 in respect of their respective portion of the suit properties, and the defendants 1 and 2 have been in separate dealing of their respective portions. In these circumstances, merely because the bill amounts were remitted by plaintiff's husband, it cannot be said that the plaintiff is in joint possession and enjoyment with the Defendant Nos.1 and 2. The plaintiff or her husband could very well be a permissive occupant. There is no other evidence available on record to show joint possession. Hence, the Court Fee paid under Section 37 (2) of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955 is incorrect. The Trial Court failed to consider these aspects and erred in decreeing the Suit. Further, in a Suit for partition, the Trial Courts ought to ascertain the character of suit property, state the applicable law to the parties and relevant provisions, and demonstrate the division of shares. In this case, the Trial Court has miserably failed to do so. There is no clue as to on what basis the Trial Court declared that the plaintiff is entitled to 1/12 share in the suit properties to the plaintiff. Page No.35 of 38 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015 Hence, its Judgment and Decree are liable to be set aside. Point No.(iii) is answered accordingly.
CONCLUSION:
37. Resultantly, the Appeal Suit stands allowed. The Judgment and Decree of the Trial Court are hereby set aside. The Original Suit is dismissed. Taking into consideration the relationship between the parties, there shall be no order as to costs. Connected Miscellaneous Petition shall be closed.
23 / 10 / 2025
Index : Yes
Speaking Order : Yes
Neutral Citation : Yes
pam/TK
To
The I Additional District Judge,
Erode.
Page No.36 of 38
https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm )
A.S.NO.944 of 2015
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https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm ) A.S.NO.944 of 2015 R. SAKTHIVEL, J.
PAM/TK PRE-DELIVERY JUDGMENT MADE IN APPEAL SUIT NO.944 OF 2015 23 / 10 / 2025 Page No.38 of 38 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 09:11:54 pm )