Madras High Court
P.Perumal (Died) vs Palanichamy on 4 July, 2025
S.A(MD)No.294 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 07.04.2025
Pronounced on : 04 .07.2025
CORAM
THE HONOURABLE MR.JUSTICE P.VADAMALAI
S.A(MD)No.294 of 2013
and
M.P(MD)No.1 of 2013
1.P.Perumal (Died)
2.P.Pappathi @ Perumalakkal
3.P.Chinnaperumal ...Appellants 1 to 3/
Respondents 1 to 3/ Defendants
4.P.Seeniammal
5.P.Rengammal
6.P.Vadivel
7.M.Saritha
8.Mahesh Bharathi
9.Shanmugapriya ... Appellants 4 to 9
(Appellants 4 to 9 are brought on record as LRs of the
deceased 1st appellant vide Court order dated
03.12.2021 made in CMP(MD)No.8225 of 2021 in
S.A(MD)No.294 of 2013)
Vs.
1.Palanichamy
2.P.Jayaraman ... 1st & 2nd Respondents/
Appellants 1 & 3/Plaintiffs
3.A.Kavitha
4.A.Vanitha
5.A.Punitha ... Respondents 3 to 5 /
Respondents 4 to 6/LRs of the 3rd
Defendant
1/27
https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/10/2025 07:35:27 pm )
S.A(MD)No.294 of 2013
PRAYER :- This Second Appeal is filed under Section 100 of the Civil
Procedure Code, to set aside the decree and judgment, dated 02.11.2012 passed
in A.S.No.5 of 2011 by the Fast Track Court-cum-Additional District Sessions
Judge, Dindigul, reversing the decree and judgment, dated 24.08.2010 passed
in O.S.No.108 of 2007 on the file of the Sub Court, Palani by allowing this
Second Appeal.
For Appellants : Mr.K.Balasundaram
Senior Counsel
for Mr.R.Thangapandian
For R1 & R2 : Mr.H.Lakshmi Shankar
R3 to R5 : No Appearance
JUDGMENT
This Second Appeal is filed against the judgment and decree, dated 02.11.2012 passed in A.S.No.5 of 2011 by the Fast Track Court-cum-Additional District Sessions Judge, Dindigul, reversing the judgment and decree dated 24.08.2010 passed in O.S.No.108 of 2007 on the file of the Sub Court, Palani.
2. The appellants are the defendants in O.S.No.108 of 2007 on the file of the Sub Court, Palani. The respondents are the plaintiffs in that suit. 2/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/10/2025 07:35:27 pm ) S.A(MD)No.294 of 2013
3. The respondents/plaintiffs have filed the suit for partition, permanent injunction and to cancel the settlement deed, dated 23.07.1963, executed by Palanichamy in favour of 1st defendant as it is not legally valid.
4. For the sake of convenience, the parties are referred as plaintiffs and defendants as arrayed in O.S.No.108 of 2007 on the file of the Sub Court, Palani.
5. Case of the plaintiffs (according to plaint and reply statement):
The 1st defendant was born to one Palanichamy Naicker through his first wife. After the death of first wife, the said Palanichamy Naicker married the 1st plaintiff as 2nd wife, through whom the plaintiffs 2 to 4 were born. The said Palanichamy, plaintiffs, and the 1st defendant were jointly enjoying the suit property. Palanichamy Naicker died in 1971, leaving them as his legal heirs.
The plaintiffs are entitled to 4/5 share and the 1st defendant is entitled to 1/5 share in the suit property. The plaintiffs have been demanding the 1st defendant for partition. The 1st defendant has evaded the same.
On 18.07.2007, the plaintiffs came to know that Palanichamy Naicker had executed a registered settlement deed, dated 04.07.1963, in respect of the suit 3/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/10/2025 07:35:27 pm ) S.A(MD)No.294 of 2013 property in favour of 1st defendant. The said deed was sham nominal and void.
The said settlement did not act upon. After the alleged settlement deed, the said Palanichamy had mortgaged the suit property to the husband of the 1st defendant on 16.04.1970. So, the said settlement deed, dated 04.07.1963 has not come into force. The plaintiffs and the 1 st defendant are still in joint possession and enjoyment of the suit property. It is false that the 1 st plaintiff’s husband was died in 1972. He died on 02.09.1975. The 1 st defendant admitted in her reply notice that the plaintiffs were given part share in the properties on humanitarian ground and hence, the plaintiffs were asked not to disturb the 1st defendant’s possession and enjoyment of half share. Hence, the suit is filed for partition and other reliefs.
6. Case of 1st Defendant (as per Written Statement and Additional Written Statement):
There is no relationship of husband and wife between Palanichamy and the 1st plaintiff. The plaintiffs were not in joint possession and enjoyment over the suit property at any point of time. The suit property measuring 6 acres 50 cents originally comprised in Jamin Bymash number 113/3 and the same 4/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/10/2025 07:35:27 pm ) S.A(MD)No.294 of 2013 was given to Palanichamy by the Zamin and then renumbered as S.No.444/1.
At the time of marriage of 1st defendant, her father Palanichamy, possessed several field lands worth Rs.1,500/-and punja land worth Rs.200/-. Her father Palanichamy, had conveyed the suit property towards marriage seer to her by way of registered settlement deed, dated 23.07.1963 and possession of the suit property was handed over on that date itself. These particulars were specifically mentioned in the settlement deed. The settlement deed was acted upon as the deed was handed over to the defendant. The first defendant’s father Palanichamy had also owned properties measuring 4 acres 48 cents in S.No.455/1, 23 cents in S.No.456/4, and half share in well in 10 cents in S.No.455/7 of Kothaiyurumbu village. Palanicmay Naicker died in 1971. Though the plaintiffs are not legal heirs of Palanichamy, on humanitarian ground, the 1st defendant permitted the plaintiffs to enjoy half share in the above lands only. But, the plaintiffs demanded 4/5 share and hence the 1st defendant refused. So, the plaintiffs filed the suit. The alleged mortgaged property by Palanichamy relates to the properties situated in S.No.455/1, 456/4 and 455/7. The four boundaries mentioned in the mortgage deed and in the settlement deed are entirely differed. So, the allegation that the settlement deed did not come into force is strongly denied. The suit property is the absolute 5/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/10/2025 07:35:27 pm ) S.A(MD)No.294 of 2013 property of the 1st defendant. The plaintiffs have not added the other properties in S.No.455/1, 456/4 and 455/7. Hence, the suit is bad for partial partition. The suit is liable to be dismissed.
7. The trial Court/Sub Court, Palani framed the following Issues:
(1)Whether the plaintiffs have right and possession over the suit property?
(2 Whether the settlement deed dated 23.07.1963 is valid?
(3) Whether the plaintiffs are entitled to partition as prayed for?
(4)Whether the plaintiffs are entitled to
permanent injunction as prayed for?
(5) To what other reliefs?
8. During trial, on the plaintiffs' side, two witnesses P.W.1 and P.W.2 were examined and Ex.A1 to Ex.A.7 were marked. On the defendants' side, D.W.1 was examined and Ex.B.1 to Ex.B.45 were marked.
9. After hearing both sides, the learned Subordinate Judge, Palani held that the settlement deed dated 23.07.1963 is valid, acted upon and so the suit property is absolute property of the first defendant, thereby the plaintiffs are not 6/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/10/2025 07:35:27 pm ) S.A(MD)No.294 of 2013 entitled to any share in the suit property and so dismissed the suit by its judgment, dated 24.08.2010.
10. Aggrieved by the judgment and decree, dated 24.08.2010, passed in O.S.No.108 of 2007, the plaintiffs have preferred the civil appeal in A.S.No.5 of 2011 on the file of the Fast Track Court/Additional District Court, Dindigul.
11. The first Appellate Court, after hearing both and after perusing the case records, came to the conclusion that the plaintiffs are entitled to 4/5 share in the suit property and passed decree to that effect by its judgment, dated 02.11.2012, setting aside the judgment and decree of the trial Court in O.S.No.108 of 2007.
12. Challenging the judgment and decree of the First Appellate Court passed in A.S.No.5 of 2011, the defendants have preferred this Second Appeal and the same has been admitted on 19.04.2013 on the following substantial questions of law:-
1. Whether the first appellate Court is correct in decreeing the suit, when plaintiff has not 7/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/10/2025 07:35:27 pm ) S.A(MD)No.294 of 2013 established and proved that the settlement deed dated 04.07.1963 was not acted upon?
2. Whether the first appellate Court is correct in discussing the merit of the case without considering the limitation act?
13. During pendency of the second appeal, the appellants/defendants have filed petition in CMP(MD)No.13691 of 2024 and the respondents/plaintiffs have filed petition in CMP(MD)No.14773 of 2024 before this Court to receive additional documents mentioned in the respective petitions. This Court, by its order passed on 22.10.2024, has directed the trial Court/Subordinate Court, Palani for taking evidence with reference to the additional documents.
14. Accordingly the trial Court has taken evidence and submitted the same before this Court. Already, during trial, on the plaintiffs' side, two witnesses P.W.1 and P.W.2 were examined and Ex.A1 to Ex.A.7 were marked.. On the defendants' side, D.W.1 and D.W.2 were examined and Ex.B.1 to Ex.B.45 were marked. As per order, dated 22.10.2024 passed in CMP(MD)No.13691 of 2024 and CMP(MD)No.14773 of2024 in SA(MD)No. 8/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/10/2025 07:35:27 pm ) S.A(MD)No.294 of 2013 294 of 2023, on the plaintiffs' side P.W.3 was examined and Ex.A.8 to Ex.A.13 were marked. On the defendants' side D.W.3 was examined and Ex.B.46 to Ex.B.49 were marked.
15. Heard both sides. Respondents' side filed their written arguments. Perused the entire records of the case.
16. The learned counsel for the appellants/defendants has argued that the suit property originally belonged to one Palanichamy. The 1st defendant/Ramakkal was born to him through his first wife. The suit property was given to Palanichamy by Edayakottai Zamin by way of Zamin patta, so it was his self acquired property as per Section 11 of Act 26/1948 (Estate Abolition Act). Hence, it is not ancestral property. At the time of marriage, Palanichamy gifted the suit property to the 1st defendant/Ramakkal by executing Ex.B.1 registered settlement deed, dated 23.07.1963. The first plaintiff who claimed as 2nd wife and children of Palanichamy filed the suit for partition and to cancel the said Ex.B.1 settlement deed, dated 23.07.1963, by way of amended relief dated 17.04.2008. The relief sought by the plaintiff is after lapse of more than 44 years. As per document, the possession of the suit 9/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/10/2025 07:35:27 pm ) S.A(MD)No.294 of 2013 property was handed over to the 1st defendant Rammakkal even during the life time of Palanichamy and the same was acted upon. The patta was mutated in the name of the 1st defendant Rammakkal in 1985. The 1st defendant produced Ex.B.6 to Ex.B.39 adangal and kist receipts. These facts were substantiated by the contents of the deed and also evidence of D.W.1 & D.W.2. The plaintiffs claimed knowledge about Ex.B.1 document on 18.07.2007. But, the 1st defendant was in possession and enjoyment from 1963, and it was also known to the plaintiffs. The plaintiffs have not proved about the knowledge on 18.07.2007 by adducing acceptable evidences.
17. The learned counsel for the appellants further argued that Ex.B.1 settlement deed is a registered document and it was also acted upon. Certificate by Registration Officer under Section 60 of the Registration Act is relevant for proving its execution and the contents of deed have considerable value. Ex.B.1 is registered document which was validly executed, so it would be valid in law. Ex.B.1 - Original gift deed is registered deed under document No.706/1963. It is more than 30 years old document. It is produced and marked by defendants from their lawful custody. Therefore, statutory presumption U/s.90 of the Indian Evidence Act can be made out. The party who objects the 10/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/10/2025 07:35:27 pm ) S.A(MD)No.294 of 2013 document has to adduce rebuttal presumption, but there is no valid evidence on the plaintiffs' side. But, the plaintiffs also admitted through oral evidence that when the 1st defendant/Ramakkal was about to sell the suit property, the plaintiffs objected. So, the plaintiffs admitted the enjoyment and possession of property by the 1st defendant/Ramakkal prior to that. The allegation of fraud put forth by the plaintiffs was not pleaded and the same was also not proved.
18. The learned counsel for the appellants/respondents further argued that the the plaintiffs’ case is that after execution of Ex.B.1 settlement deed, Palanichamy mortgaged the suit property through Ex.A.1 & Ex.A2. In fact, the properties concerned in Ex.A.1 and Ex.A.2 are different properties, in those properties, a well is shown, whereas there is no well in the suit property. These were also admitted by the plaintiffs. The suit is barred by limitation as the suit was not filed within three years. The learned counsel further argued that the father of the 1st defendant also had some properties in S.Nos.444/1, 455/1 and 456/1 and the same were admitted by the plaintiffs' side evidence. Hence, the suit is also barred by partial partition. The trial Court has correctly appreciated the evidences of both sides and dismissed the suit. Whereas the 1st Appellate Court has decreed the suit, in the absence of proof that Ex.B.1 was 11/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/10/2025 07:35:27 pm ) S.A(MD)No.294 of 2013 not acted upon by the plaintiffs and also the fact that the suit is purely barred by limitation. Therefore, the second appeal may be allowed by setting aside the findings of the 1st Appellate Court and the original suit may be dismissed.
19. In support of his arguments, the learned counsel for the defendants has relied on the following citations.
(i) (2006) 5 Supreme Court Cases 353 (Prem Singh and Others /v/ Birbal and Others) wherein it is held in Paragraph Nos.17, 18, 27 and 28 as follows:
Para 17: Once, however, a suit is filed by a plaintiff for cancellation of a transaction, it would be governed by Article 59. Even if Article 59 is not attracted, the residuary article would be.
18. Article 59 would be attracted when coercion, undue influence, misrepresentation or fraud which the plaintiff asserts is required to be proved. Article 59 would apply to the case of such instruments. It would, therefore, apply where a document is prima facie valid. It would not apply only to instruments which are presumptively invalid. (See Unni .v. Kunchi Amma and Sheo Shankar Gir v. Ram Shewak Chowdhri)
27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, 12/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/10/2025 07:35:27 pm ) S.A(MD)No.294 of 2013 thus, would be on a person who leads evidence to rebut the presumption. In the instant case, respondent.1 has not been able to rebut the said presumption.
28. If a deed was executed by the plaintiff when he was a minor and it was void, he had two options to file a suit to get the property purportedly conveyed thereunder.
He could either file the suit within 12 years of the deed or within 3 years of attaining majority. Here, the plaintiff did not either sue within 12 years of the deed or within 3 years of attaining majority. Therefore the suit was rightly held to be barred by limitation by the trial court.
(ii) 2012(1) MLJ 216 (K.A.Shanmugam vs. Tamilarasi)
25. It is well settled principle that each and every case has to be decided based on the facts and circumstances of that case. In the instant case, the settlement deed was handed over by the mother to the plaintiff, in which handing over of possession was mentioned, which fact itself is sufficient to come to a conclusion that the settlement deed has been acted upon. In view of this finding, I am not inclined to accept the other submission made by the learned senior counsel for defendants 4 and 5 that since donor and donee were jointly residing in the same property, mere possession of the property by the donee is not unequivocal factor to prove the case that settlement deed was acted upon, 13/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/10/2025 07:35:27 pm ) S.A(MD)No.294 of 2013 cannot be accepted.
(iii) 2025 INSC 388 (N.P.Saseendran /v/ N.P.Ponnamma 24-03-25 (Civil Appeal No.4312 of 2025 of SC) Para 18. The ratio in the above judgments would have to be applied considering the facts of the case. It is settled law that delivery of possession is not sine qua non to validate a gift or settlement. Therefore, for the document to be valid, it is sufficient it is proved that the same was acted upon during the life time of the executants. In the present case, it is not in dispute that the plaintiff has registered the instrument. Such registration by the plaintiff is possible only if the document was handed over by defendant no.1.
(iv) (2004) 8 Supreme Court Cases 588 (A.C.Ananthaswamy and others /v/ Boraiah (dead) by LRs.
Para 5. “..Fraud is to be pleaded and proved.
To prove fraud, it must be proved that representation made was false to the knowledge of the party making such representation or that the party could have no reasonable belief that it was true. The level of proof required in such cases is extremely higher. An ambiguous statement cannot per se make the representor guilty of fraud. To prove a case of fraud, 14/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/10/2025 07:35:27 pm ) S.A(MD)No.294 of 2013 it must be proved that the representation made was false to the knowledge of the party making such representation.
(v) (2023) 8 Supreme Court Cases page 410 (Manik Majumder /v/ Dipak Kumar Saha) “Registration of a document is evidence of its execution by its executor. Certificate by Registration officer under section 60 of the Registration Act, 1908 is relevant for proving its execution. Proof by evidence afforded by the contents of the documents is of considerable value.
(vi) (2021) 15 SCC 300 (Rattan Singh and Ors. /v/ Nirmal Gill and Others)
32.To appreciate the findings arrived at by the Courts below, we must first see on whom the onus of proof lies. The record reveals that the disputed documents are registered. We are, therefore, guided by the settled legal principle that a document is presumed to be genuine if the same is registered, as held by this Court in Prem Singh and Ors. v. Birbal and Ors. The relevant portion of the said decision reads as below:
''27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law.
The onus of proof, thus, would be on a person who 15/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/10/2025 07:35:27 pm ) S.A(MD)No.294 of 2013 leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption'' Therefore, it is clear that once a document is registered under Registration Act, there is a presumption that the document has been executed and the same is genuine and valid. The contrary to be proved by the opposite party who disputed the documents.
20. Per contra, the learned counsel for the respondents/plaintiffs has placed arguments that there is no dispute about the genealogy claiming under Palanichamy. The suit property is the ancestral property of Palanichamy.
There is no evidence produced by the defendant to show that the suit property was zamin land. No settlement zamin patta was produced by the defendants' side. There is also no document to show that the suit property is self acquired property of Palanichamy. The alleged settlement deed executed in favour of the 1st defendant was only sham and nominal, hence, the limitation point could not be taken into consideration. Of course, a document becomes void and voidable when it is vitiated by fraud, coercion, undue influence, mistake or any other vitiating factor coming into play during its execution, that is not all the plaintiffs’ case, The plaintiffs’ specific case is Ex.B.1 settlement deed was 16/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/10/2025 07:35:27 pm ) S.A(MD)No.294 of 2013 executed as sham and nominal, because after execution of Ex.B.1 the said Palanichamy mortgaged the property to the husband of the 1st defendant. Hence, it has not come into force and the property remained with Palanichamy himself even after execution of Ex.B.1. Only after death of Palanicamy in 1975, the 1st defendant managed to change revenue records in her name. So, the defendants’ citations are not applicable to the facts of this case.
21. The learned counsel for the respondents/plaintiffs has further argued that the plaintiffs came to knowledge of Ex.B.1 only on 18.07.2007 and the same was not specifically disputed by the defendants in the written statement, it is deemed to have been admitted as per provisions of Order 8 Rule 3, 4 and 5 of CPC. When there is no issue regarding limitation point either before the trial court or before the 1st Appellate Court, that issue cannot be raised for the first time in second appeal, as it is mixed question of law and fact, where in allegations and counter allegations with factual aspects are needed to decide it. For this argument the learned counsel relied on citation reported in 2004 (1) SCC 328 (State of Punjab vs. Darshan Singh). Moreover, when the plaintiffs sought relief based on sham and nominal document, Article 59 of the Limitation Act would not apply. He would further submit that the 1st plaintiff’s 17/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/10/2025 07:35:27 pm ) S.A(MD)No.294 of 2013 mother's name is Ramakkal. The first defendant’s name is also Ramakkal. From the additional documents Ex.A.8 to Ex.A.10, which stood in the name Ramakkal in respect of properties in S.No.455/1 and 455/7. According to those documents, the age of Ramakkal would show that the 1st defendant/Ramakkal, could not purchase the properties in 1947. D.W.1 and D.W.2 admitted that the 1st plaintiff’s name is Ramakkal and the properties in S.Nos.455/1 and 455/7 are her properties, so the said properties are not liable for partition. D.W.1 and D.W.2 also admitted that the properties in S.Nos.455/1, 455/7 and 45/4 are not properties of Palanichamy Naicker. Therefore, there is no question of partial partition.
22. The respondents/plaintiffs counsel insisted that Ex.B.1 is sham and nominal, so use of word fraudulently in the plaint cannot be blown out of proportion as it is settled principle of law that ‘mofussil pleadings have to be considered liberally’ by relying on citation reported in (2007) 9 SCC 641 [Des Raj and Others vs. Bhagat Ram (Dead) by LRs. and Others]. Since it is sham document, the 1st defendant is stopped from claiming that it is not ancestral property and it is separate property of Palanichamy as per Section 92 of the Indian Evidence Act. Therefore, the first appellate court has correctly 18/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/10/2025 07:35:27 pm ) S.A(MD)No.294 of 2013 appreciated both sides evidences and correctly decreed the suit and the same need not be reversed. Hence, the second appeal may be dismissed.
23. It is admitted that the 1st defendant/Ramakkal was the daughter of one Palanichamy Naicker through his wife and that the plaintiffs 2 to 4 were born to him through the 1st plaintiff. Though there was dispute about the 1st plaintiff regarding the legal wife, now the said Palanichamy Naicker, the 1st defendant and 1st plaintiff, are no more. It is also an admitted fact that the suit property with total extent of 6 acres 50 cents in S.No.113/3, new S.No.444/1 originally belonged to Palanichamy Naicker. It is the definite case of the plaintiffs that the suit property is ancestral property, whereas it is the case of the 1st defendant that the suit property was originally Zamin property, which was given to her father, Palanichamy Naicker by way of issuance of Zamin patta. To substantiate the same on the defendants' side Ex.B.2 mortgage deed said to have been executed by Palanicamy Naicker in favour of A.958 Kothaiarumbu Society is produced. On perusal of the contents of the said deed, it is clear that the deed was executed in the year 1930, which is registered one and that the suit property consists of Zamin Bymas No.113/3. The Ex.B.1 was not disputed by the plaintiffs' side. In the plaint, the description of the suit 19/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/10/2025 07:35:27 pm ) S.A(MD)No.294 of 2013 property is also mentioned as old S.No.113/3. So it is established that the suit property is Zamin property given to the said Palanichamy Naicker. Therefore, as rightly argued by the learned counsel for the defendants as per Section 11 of Act 26/1948 (Estate Abolition Act), the suit property has to be deemed as self acquired property of the person to whom the property was given by Zamin Estate. As per citations relied on by both, if a registered document existed more than 30 years, the contents of the document have to be held as substantiated.
24. The plaintiffs filed the suit seeking for partition of suit property as it was ancestral property of Palanichamy Naicker. But, the defendants case is that the said Palanichamy Naicker gifted the suit property to his daughter/1st defendant by way of registered gift deed Ex.B.1, dated 23.07.1963. On perusal of records, on plaintiffs side written argument it is admitted that there is no dispute about the fact that Ex.B.1 settlement deed is executed and registered in a valid manner and hence the reliance placed on AIR 2006 SC 3608 (Prem Singh and Others vs. Birbal and Others) and (2021) 15 SCC 300 (supra) are also not necessary in this case. However, it is the case of the plaintiffs that the Ex.B.1 was executed only as sham and nominal and the same was not come into force during the life time of Palanichamy Naicker and also 20/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/10/2025 07:35:27 pm ) S.A(MD)No.294 of 2013 after his death by contending that the said Palanichamy Naicker has mortgage the property covered under Ex.B.1 to the husband of the 1 st defendant through Ex.A.1 and Ex.A.2. The recital of Ex.A.1 and Ex.A.2 would show that there is a well in the property. The defendants’ case is that the property mortgaged under Ex.A.1 and Ex.A2 is some other property and it is not suit property as there is no well in the suit property. The 2nd plaintiff as P.W.1 admitted in his cross examination that “jhth brhj;jpy; 444y; fpzW xd;Wk; ,y;iy. 457y; xU fpzW cs;sJ bad;why; mJ Tl;Lf;fpzW ..”. On the plaintiffs side one attestor of Ex.A.1 and Ex.A.2 has been examined as P.W.2. P.W.2 has deposed in his cross examination that “ve;j brhj;J Fj;jiff;F vGjp itj;jhh; vd;W vdf;F bjhpahJ me;j brhj;ij ehd; ghh;j;jJk; ,y;iy…Fj;jif gj;jpuj;ij ehd; goj;Jg;ghh;f;ftpy;iy> Fj;jif gj;jpuj;jpy; ifbaGj;J nghlr; brhd;ddhh;fs;> ifbaGj;J bra;njd; …”. Therefore, the plaintiffs have not established that the property under Ex.B.1 was subsequently mortgaged by Palanichamy through Ex.A.1 and Ex.A.2. As held by the Hon’ble Supreme Court, if a registered document was handed over to 1st defendant, the title of the same also conveyed to her. Admittedly, Ex.B.1 is registered document through which possession was also handed over to 1st defendant. 21/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/10/2025 07:35:27 pm ) S.A(MD)No.294 of 2013 Ex.B.1 is more than 30 years old and so, it has to be held as confirmed document. The plaintiffs have not established that the Ex.B.1 was sham and nominal by adducing acceptable evidence.
25. The possession and enjoyment of 1st defendant over the suit property subsequent to Ex.B.1 was not disputed at any earlier point to time even though revenue records were transferred in her name. The P.W.1 clearly admitted in his cross examination that “2007y; uhkf;fhs; fpiuak; tpw;f brd;whh; vd;why; rhpjhd; mjdhy;jhd ehd; tptfhuk; bra;J ngg;ghpy; tpsk;guk; bra;njd; vd;why; rhpjhd;. mjw;F Kd;g[ ehd; Ml;nrgid br;aatpy;iy vd;why; rhpjhd;..”. So, from the above evidence, it is clear that the plaintiffs knew about the possession and enjoyment over the suit property even prior to 2007. Moreover, though the plaintiffs have pleaded in the plaint that they came to know about the Ex.B.1 on 18.07.2007, the same has not been proved by the plaintiffs. On perusal plaint averments, they pleaded that Ex.B.1 is sham and nominal at one place and that Ex.B.1 is forged and created one at another place. They pleaded inconsistent averments. Whileso, only for the purpose of filing suit, they might have averred that they came to know about Ex.B.1 only on 18.07.2007, which is not acceptable in the facts and circumstances of the case. 22/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/10/2025 07:35:27 pm ) S.A(MD)No.294 of 2013
26. Moreover, on the plaintiffs' side, the execution and registration of Ex.B.1 is admitted. So, they cannot turn back from the pleading that it is forged one. Ex.B.1 is executed in the year 1963 and the suit is filed after lapse of 44 years. By these years, the plaintiffs' averment that they do not know about the execution of Ex.B.1 is not acceptable one. It is also admitted that the revenue records were mutated in the name of the 1st defendant even in 1985 itself. The citations relied on the plaintiffs' side are not applicable to the facts of the case.
27. The another argument put forth by the defendants is that the said Palanichamy Naicker also has some other properties in S.Nos.455,456 and 457. The plaintiffs claim that the properties in those survey numbers belong to the maternal grandmother Ramakkal. During the pendency of the second appeal, both sides filed the petitions to mark additional documents and as per the order passed by this Court, both sides adduced oral as well as documentary evidence. As per evidence of P.W.3, in his cross examination he deposed that “muR Mtzq;fspd;go rh;nt vz;.455/7 kw;Wk; 456/4 gHdpr;rrhkp ehaf;fh; bgahpy; brhj;Jf;fs; cs;sjhfjhd; vd;Wk;> Mdhy; me;j brhj;Jf;fis ,e;j tHf;fpy; nrh;f;fhjjhy; ,e;j tHf;F ghjpf;fg;gl;Ls;sJ vd;W brhd;dhy; rhpay;y… vd; ghl;o uhkf;fhSf;F 23/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/10/2025 07:35:27 pm ) S.A(MD)No.294 of 2013 rh;nt vz;.455/1 brhj;J ghj;jpag;gl;lljhf brhy;ypapUf;Fk; epiyapy; mnj brhj;ij th.rh.m.10K:yk; 2k; gpujpthjpapd; xU thhprhd KUnfrdpd; thhpRfsplkpUe;J fpiuak; thq;fpa[s;nsd; vd;why; Mkhk;… th.rh.M.8> 9 .. tHf;F epYitapy; ,Uf;Fk;nghJ Vw;gLj;jg;gl;lJ..” On the defendants' side have marked additional documents as Exs.B.46 to B.49 from which it is clear that Palanichamy had properties also in S.Nos.454/1, 455/1, 455/7 and 456/4 in his name. There is no explanation as to why those properties are not included in the suit for partition, while claiming the suit property belonged to Palanichamy Naicker. So, the argument put forth by the defendants' side that the suit is bad for partial partition cannot be brushed aside.
28. From the above facts and circumstances of the case, the defendants' side proved that the suit property was gifted to 1 st defendant by her father, Palanichamy Naicker, who derived from Zamin Estate, which deemed to be his self acquired property as per the Provisions of Section 11 of Act 26/1948 of the Estate Abolition Act. Ex.B.1 is registered gift deed, which is also not disputed by the plaintiffs. Their plea that it was executed only as sham and nominal was not proved by the plaintiffs. It is pertinent to mention here that in the contents of Ex.B.1 itself, it is mentioned that the possession was handed over to 24/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/10/2025 07:35:27 pm ) S.A(MD)No.294 of 2013 1st defendant. The Ex.B.1 is more than 30 years old, so, as per rulings relied on both sides, the contents of the same are confirmed. Hence, it is clear that Ex.B.1 was acted upon. Revenue records of the suit property were also mutated in the name of 1st defendant in 1985 itself. The plaintiffs admitted that they raised an objection in 2007 while the 1st defendant tried to alienate the suit property and prior to that, they have not raised any objection.
29. Therefore, as discussed supra, the first Appellate Court has erred in appreciating the evidences of both sides and wrongly held that the plaintiffs are entitled to 4/5 share in the suit property. The trial Court has correctly discussed the issues and has rightly dismissed the suit. Therefore, from the above facts and circumstances, the judgment and decree of the first Appellate Court is not sustainable in law and the same needs interference by way of this second appeal. Hence, the substantial questions of law framed in this appeal are answered in favour of the appellants. Thus the second appeal succeeds.
30. In the result,
i) This Second Appeal is Allowed.
ii) The findings, judgment and decree of the First Appellate Court is set aside and the judgment and decree of Trial Court is restored. 25/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/10/2025 07:35:27 pm ) S.A(MD)No.294 of 2013
iii) The suit in O.S.No.108 of 2007 is dismissed
iv) No costs. Consequently, the connected Miscellaneous Petition is closed.
04.07.2025 NCC : Yes / No Internet : Yes / No Index : Yes / No VSD To
1.The Fast Track Court-cum-Additional District and Sessions Judge, Dindigul.
2.The Sub Court, Palani
3.The Record Keeper, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
26/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/10/2025 07:35:27 pm ) S.A(MD)No.294 of 2013 P.VADAMALAI, J.
VSD Pre-Delivery Judgment made in S.A(MD)No.294 of 2013 and M.P(MD)No.1 of 2013 04.07.2025 27/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/10/2025 07:35:27 pm )