Madras High Court
Tmt.Rajamma (Died) vs Jujuvadi Muniappa on 3 June, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
S.A.No.721 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 03.06.2025
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Second Appeal No.721 of 2008
Tmt.Rajamma (Died)
2. Prasad
3. Swarna
4. Lalitha
5. Prema
6. Annapoorna
7. Uma
(1st Appellant died, Appellants 2, 4 to 7 are LRs of 1st Appellant
and already on record vide order of Court dated 07.03.2023
made in S.A.No.721 of 2008) (VLNJ)
.. Appellants
Versus
1. Jujuvadi Muniappa
2. Rajanna
3. Mallappa
4. Muthamma
5. Appaji
6. Chennaiah
7. Choodamma .. Respondents
Prayer: Second Appeal filed under Section 100 of C.P.C against the Decree and
Judgment of the Court of the Subordinate Judge, Hosur made in A.S.No.19 of
2003 dated 30.07.2004 confirming the decree and judgment of the Court of the
learned District Munsif, Denkanikottai made in O.S.No.138 of 1994 dated
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S.A.No.721 of 2008
04.04.2003.
For Appellants : Mr.R.Narayanan
For R5 to R7 : M/s.R.Gowri
R1 to R3 : Given up
R4 : Dismissed as abated
JUDGMENT
This Second Appeal is filed against the Decree and Judgment of the learned the Subordinate Judge, Hosur made in A.S.No.19 of 2003 dated 30.07.2004 confirming the decree and judgment of the learned District Munsif and Judicial Magistrate, Denkanikottai made in O.S.No.138 of 1994 dated 04.04.2003.
2. The brief facts of the case are as follows:
2.1. The Appellants, who are the Plaintiffs in O.S.No.138 of 1994, filed the suit for partition and possession of the suit properties of 3.50 acres of land, one tiled-roof house and a tamarind tree.
2.2. It is the case of the Plaintiffs that the suit property along with other 2/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/08/2025 05:53:11 pm ) S.A.No.721 of 2008 properties originally belongs to the Hindu undivided family of Base Goudu.
After his death, the three sons of Base Goudu, namely, Nanjegoudu, Mahadevappa and Veerabadrappa constituted as members of the undivided Hindu Joint Family. After the death of Veerabadrappa, whose wife had also predeceased him, Nanjegoudu, the husband of the 1st Plaintiff Rajamma and Mahadevappa the 1st Defendant constituted the undivided Hindu Joint family owning the suit properties. Thus, Nanjegoudu is entitled to half share in all the properties of the undivided Hindu Joint Family and during his lifetime, there was no division between him and Mahadevappa, the Defendant-1. The said Nanjegoudu died on 30.12.1979 leaving his half share in the suit property and the Plaintiffs as his legal representatives have succeeded the same.
3. The submission of the learned Counsel for the Appellants is that both the trial Court as well as the Appellate Court have been wrongly influenced by Ex.B-33, the alleged partition Muchalika dated 15.12.1972 between Mahadevappa, Nanjegoudu and others and on that basis had wrongly concluded that there is already a partition between the brothers and therefore, dismissed the suit.
4. The learned Counsel for the Appellants invited the attention of this Court in the case of Yellapu Uma Maheswari and another v. Buddha 3/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/08/2025 05:53:11 pm ) S.A.No.721 of 2008 Jagadheeswara Rao and Others reported in (2015) 16 Supreme Court Cases 787, in which it is held that an unstamped and unregistered Muchalika is not admissible as an evidence. An unstamped or inadequately stamped document cannot be admitted in evidence for any purpose in accordance with Section 35 of the Indian Stamp Act, 1899 unless it is properly stamped. It can be stamped and admitted in evidence provided, penalty under Proviso Clause (a) of Section 35 of the Indian Stamp Act, is paid. A document which creates or assigns any right either in the present or in the future on any immovable property has to be compulsorily registered under Section 17 of the Registration Act, 1908. A document which has to be compulsorily registered cannot be received in evidence with respect to any transaction relating to the property mentioned in the document as per the prohibition under Section 49 of the Registration Act.
5. A family arrangement or a Muchalika in effect grants right or title to certain portions of property to a few individuals and also at the same time takes away the rights and title of some of the parties to the other portions. This document therefore comes squarely under Section 17 of the Registration Act, 1908, as a document which has to be compulsorily registered and under section 49 of the Registration Act, 1908, a document which has to be compulsorily registered cannot be admitted in evidence. 4/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/08/2025 05:53:11 pm ) S.A.No.721 of 2008
6. It is further submitted by the learned Counsel for the Appellants that even though the learned District Munsif, Denkanikottai in judgment dated 04.04.2003 had accepted the stand of the Plaintiffs that an unstamped and unregistered Muchalika marked under Ex.B-33 cannot be accepted as an evidence based on the reported decision in the case of Rangasami Reddiar and Others vs. M.K.Mummachi Reddiar and Others reported in (2002)1 MLJ 760, it had placed reliance on the wordings in a sale deed executed by Nanjegoudu marked as Ex.B-4 and Ex.B-5 and concluded that the partition between brothers had taken place on 05.12.1972 as may be seen from the following observation of the learned District Munsif particularly in Para 7 of the judgment where it is held as follows:
“me;j gp//j/rh/M 33d; go 15/12/1972 Mk; njjp vGjg;gl;l ghfg;gpuptpid Kr;rypf;fh rl;lg;go Vw;Wf;bfhs;sf;Toajh my;yJ 1k; gpujpthjpf;Fk; Kjy; thjpapd; fztUf;Fk; 72 Mk; tUlnk ghfg;gpuptpid Vw;gl;Ltpl;ljh vd;gij Muha[k; nghJ me;j gp/j/rh/M 33 Mf Fwpf;fg;gl;l Kr;rypf;f gjpt[ bra;ag;glhj xU MtzkhFk;/ ,e;epiyapy; thjpfs; jug;g[ me;j tHpfhl;L jPu;g;g[iu me;j Mtzj;ij bghWj;J Vw;Wf;bfhs;sf;Toajhf ,Uf;fpwJ/ vdpDk; ,e;j 15/1/1972 Mk; njjp Vw;gl;ljhf gpujpthjp jug;gpy; Twg;gLk; ghf Kr;rypfh vGjg;gl;l gpwF gp/j/rh/M/4 Mf Fwpf;fg;gl;l fpuag;
gj;jpuj;jpd;go ghu;f;Fk; nghJ thjpapd; fztuhd enrft[L 20/12/1972 Mk; njjp xU g[l;lk;kh vd;gtUf;F 5 brd;l; epyk; fpuak; bra;J bfhLj;jpUf;fpwhu;. Mjpy; jUkg[up upo. bl';fdpf;nfhl;il rg; up/o f;F nrh;e;j rhuf;fg;gs;sp fpuhkj;jpy; vdf;F gpj;juh$pj K:ykhft[k;. ghfK:ykhft[k; ghj;jpag;gl;L vd; RthjPdj;jpYs;s v!;/be/325 g[";ir 4/12 Vf;fu;. jPh;it 5/64 5/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/08/2025 05:53:11 pm ) S.A.No.721 of 2008 ,jpy; khjg;gh tPl;od; gpd; epyj;jpw;F fpHf;F vd;Dila epyj;jpw;F nkw;F. cd; tPl;ow;F tlf;F. e";Rz;lg;gh epyj;jpw;F bjw;fpYk; ,jd; kj;jpapy; tp!;jPuzk; 0/05f;F 0/07 jPu;it cs;;s g[";ir epyk; vd;W me;j ghj;jpuj;jpy; Fwpf;fg;gl;oUf;fpwhu; gp// j/ rh/M/5 Mf Fwpf;fg;gl;l Mtzj;jpy; e";;nrft[:Lt[k;
khypfg;ght[k; nru;e;J xU gj;jpuk; jhth brhj;Jf;fspy; vGjpf;
bfhLj;J ,Uf;fpwhu;fs;/ mjpYk; mtu;fs; v';fsJ
Rauh$pjkhft[k; ghfK:ykhft[k; ghj;jpag;gl;l v';fs;
RthjPdj;jpYs;s r/vz;/325 g[";irapy; 4/12f;F jPu;it 5/64 ,jpy;
kj;jpapy; 0/15f;F jPu;it g[";ir epyj;ij vd;W
Fwpf;fg;gpl;oUf;fpwJ/”
7. It is his further submission that both the trial Court as well as the Appellate Court have failed to consider and appreciate the fact that in every other Sale deed produced and marked as exhibits, the same wordings has been used, even in the documents executed before the alleged partition Muchalika dated 15.12.1972. If all these documents has been considered and appreciated properly, the trial Court should have held that the wordings in the said document namely, “vdf;F gpJuh$pj K:ykhft[k;. ghfK:ykhft[k;
ghj;jpag;gl;L” are used in a very loose and without any meaning in a routine manner by the document writer/Scribe.
8. The learned Counsel for the Appellants also submitted that the trial Court had failed to consider and discuss the sale deed dated 16.09.1973 executed by all the brothers, Mallappa, Veerabadrappa, Nanjegoudu, Husband 6/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/08/2025 05:53:11 pm ) S.A.No.721 of 2008 of the Plaintiff-1 and Mahadevappa, the Defendant-1 in avour of J.Muni Reddy. The date of this sale deed marked as Ex.A-17 was 16.09.1973 which was admittedly subsequent to 05.12.1972, the date of partition set up by the Defendants in their written statement. Based on this document alone, both the trial Court as well as the Appellate Court ought to have concluded that there was no partition between Nanjegoudu and his brothers.
9. Both the trial Court as well as the Appellate Court failed to consider and had without discussing and giving attention to several documents placed before it which were marked as Ex.A-8, Ex.A-10 etc. Ex.A-10 which is the UDR patta No.744 dated 12.07.1984 issued in the joint names of Rajamma/ Plaintiff-1 and Mahadevappa/Defendant-1. If really there was a partition in the year 1972 as pleaded by the Defendants and held by the trial Court and if the Appellant-1's husband namely Nanjegoudu has no right in the suit property, the Revenue Authorities would not have issued a joint Patta. Both the trial Court as well as the Appellate Court erred by ignoring this important aspect in this case and wrongly concluded that there was already a partition in the year 1972.
10. The learned Counsel for the Appellants invited the attention of this Court to last page of the Appellate Court judgment, in which it is held as 7/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/08/2025 05:53:11 pm ) S.A.No.721 of 2008 “Tl;Lf;FLk;g brhj;Jfs; midj;Jk; bghWj;J ghfg;gpuptpid nfhuhky; gFjp brhj;Jf;fisg bghWj;J kl;Lnk ghfg;gpuptpid nfhuKoahJ vd;Wk;. jFe;j jug;gpdu;fis thjp xU jug;gpduhf nru;f;fhj epiyapYk; Tl;Lf;FLk;gj;jpw;f;F brhe;jkhd brhj;Jfs; cupik khw;wk; Vw;gl;L mtw;wpd;
cupika[k; mDgtKk; ntW jdpg;gl;l eguplKs;s epiyapy;
tprhuiz ePjpkd;wk; thjpfs; jhf;fy; bra;j tHf;if ed;F rhl;rpa';fs; kw;Wk; Mtz';fs; K:yk; jPu Ma;e;J ,Wjpahf js;Sgo bra;J jPu;g;gspj;Js;sjpy; nkw;go tprhuiz ePjpkd;w jPu;g;g[iu kw;Wk; jPu;g;ghiz rupahdnj vd;Wk;. nkw;go tprhuiz ePjpkd;w jPu;g;g[iu kw;Wk; jPu;g;ghizapy; jiyapl vt;tpj Kfhe;jpuKk; ,y;iybadf;fUjp ,k;nky;KiwaPl;il js;Sgo bra;J cj;jutplntz;oaJ mtrpabkd;Wk; ,e;j ePjpkd;wk; jPu;khdpf;fpwJ/”
11. It is the further submission of the learned Counsel for the Appellants that both the trial Court as well as the Appellate Court had failed to consider the fact that the Plaintiffs were seeking partition of the suit property in S.No.325 in respect of the remaining extent of Ac.3.50 cents along with tile roof house and tamarind tree, after eschewing the extent of land properties already sold by all the brothers under different sale deed, jointly as well as independently.
12. Only the signature page of Ex.B-33 had been marked and all the remaining pages of the alleged unregistered Muchalika was not marked and available for verification. Therefore, it is not possible to have ascertain to total extent of the family property.
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13. It is to be noted that the Defendant-1 had possession of suit property only and all other properties sold were not in his possession. Non inclusion of property not in possession of the Coparceners shall not result in the suit for partition of the properties which are in their possession being rejected.
14. The learned Counsel for the Appellants invited the attention of this Court to the reported decision of the Hon'ble Supreme Court in the case of B.R.Patil v. Tulsa Y. Sawkar reported in 2022 SCC Online SC 240, particularly in para 11 of its judgment wherein it is held as follows:
“in reality and on the ground these properties could not be said to be actually available for the parties to the present suit to lay claims over them. Properties not in the possession of Co- sharers/Co-parceners being omitted cannot result in a suit for the partition of the properties which are in their possession being rejected”.
15. The learned Counsel for the Respondents submitted that the Respondents 5 to 7 were arrayed as Defendants, who were the sons of Mahadevappa. Mahadevappa is the brother of Nanjegodu. Respondents 5 to 7 filed detailed written statement denying the allegations. It is the contention of the learned Counsel for the Respondents that the partition was already effected as per Muchalika dated 15.12.1972 under Ex.B-33 and the partition was 9/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/08/2025 05:53:11 pm ) S.A.No.721 of 2008 accepted and acted upon. It was primarily contended that in pursuance of partition, subsequent conveyance transactions were also done by 1st Plaintiff's Husband by executing sale deeds Ex.B-4 and Ex.B-5 and thereby the Muchalika partition deed was acted upon and binding on the Plaintiffs. The parties to the partition Muchalika were enjoying the properties separately from 1972 and the suit is therefore not maintainable.
16. The learned Counsel for the Respondents further submitted that the suit in O.S.No.138 of 1994 on the file of the learned District Munsif, Denkanikottai was dismissed on 28.06.1996 and an Appeal was preferred as A.S.No.172 of 1996 and the appeal was remanded back on 11.11.2002. In pursuance to remand, the District Munsif Court, Denkanikottai tried the suit again and after full trial was pleased to dismiss the suit on 04.04.2003 and as against which A.S.No.19 of 2003 was filed before the learned Sub Judge, Hosur and it was also dismissed by the learned Sub Judge, Hosur.
17. It is further submitted by the learned Counsel for the Respondents that in pursuance to the partition Muchalika under Ex.B-33 that Nanjegoudu had executed two registered sale deeds marked as Ex.B-4 and Ex.B-5. The recitals of the sale deed executed by Nanjegoudu was that he is entitled to properties ancestrally and by way of partition.
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18. Ex.B-6 to Ex.B-13 are the kist receipts and Ex.B-19 to Ex.B-32 are the house tax receipts in the name of Defendant-1 which goes to show that the partition already effected and each party were enjoying their respective share separately.
19. The learned Counsel for the Respondents invited the attention of this Court to the Substantial question of law raised whether there was a prior partition on the basis of the unregistered partition Muchalika under Ex.B-33.
20. The learned Counsel for the Respondents relied on the reported decision in the case of Venkatasubramaniya Chettiar (died) v. Perumal Chettiar reported in 2012 (3) CTC 160 where it is held that the unregistered partition deed could be looked into for proving division in status and subsequent separate enjoyment of the parties in a suit for partition.
21. The learned Counsel for the Respondents also invited the attention of this Court to the reported decision of the Hon'ble Supreme Court in the case of K.G.Shivalingappa (dead) by L.Rs and Others v. G.S.Eswarappa and Others reported in 2004 (4) CTC 143, wherein the Apex Court had held that the admissibility of unregistered document- branches of family effected partition 11/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/08/2025 05:53:11 pm ) S.A.No.721 of 2008 and reduced the same in writing-each family had independently dealt with properties thereafter effecting sales and effected mutation and paid assessment separately – partition deed executed through unregistered can be relied on to establish severance of joint family. Therefore, the suit for partition is not maintainable and therefore the suit was rightly dismissed and confirmed the Appellate Court.
22. The Substantial questions of law raised in the Second Appeal are as follows:
(i) Whether the Courts below have erred in law holding that there was a prior partition on the basis of the unregistered and unstamped partition Muchalika under Ex.B-33 whereas only the signature in the document was marked and not the document itself ?
(ii) Whether the Courts below have held that there was prior partition in the family is not correctly appreciated recitals under Ex.B-4 and Ex.B-5?
(iii) Whether the Courts below ought to have held that 3.50 acres in S.No.325 remain as the joint family property and the plaintiffs were entitled to half share in the property? 12/27
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(iv) Whether the Courts below have failed to see that the normal presumption is that a Hindu Joint family remains joint and the burden of proving an earlier partition is on the party pleading such division?
23. Heard the learned Counsel for the Appellants and learned Counsel for the Respondents 5 to 7. Perused the judgment of the learned District Munsif, Denkanikottai in O.S.No.138 of 1994 dated 04.04.2003 and the judgment of the learned Sub Judge, Hosur in A.S.No.19 of 2003 dated 30.07.2004. Perused the documents under Ex.A-1 to Ex.A-21 and Ex.B-1 to Ex.B-33.
Substantial Question of Law – 1:
24. Ex.B-33 is not a partition deed. It cannot be relied upon. Ex.B-33 is objected by the learned Counsel for the Plaintiffs stating that it is not properly stamped and not registered. Therefore, it cannot be relied upon. In suits for partition, when there was already an oral partition among the members of the family regarding enjoyment of the properties, and if such an oral agreement is reduced into writing, it is termed as Muchalika. It is only for reference among themselves regarding family arrangement. There are many number of reported decisions that family arrangement when reduced into 13/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/08/2025 05:53:11 pm ) S.A.No.721 of 2008 writing can be relied upon.
25. 1st Plaintiff had examined herself as P.W-1. She was confronted regarding the recital in Ex.B-33 partition Muchalika, specifically, that her husband was allotted 12 ½ cents as per Muchalika. She was unable to identify the signature of her husband in Ex.B-33 regarding the agreement for the Muchalika.
26. In the suit property, 3½ acres in favour of the Defendant and 7 ½ cents in favour of Malikappa were allotted. Suit schedule property in Survey No.375 was allotted in favour of Defendant-1. She claimed ignorance regarding the suggestion that on 20.10.1972, her husband had sold 5 cents in suit schedule property in Survey No.375 to one Rajaiah. She claimed ignorance of those facts. The suggestion that only after the death of her husband, at the instigation of the persons in the area she had also instituted the suit was denied by her. She had denied the suggestion that her husband after partition had been living at Maniampadi. There was also a suggestion that there was an oral partition and based on that oral partition, the Muchalika was recorded in writing. Based on such partition, the parties to the suit have sold their respective shares. For this suggestion, 1st Plaintiff as P.W-1 denied such claim by the learned Counsel for the Defendants. 1st Plaintiff's husband had 14/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/08/2025 05:53:11 pm ) S.A.No.721 of 2008 sold his share of the property during his lifetime. Therefore, the suggestion that as on the date, she cannot claim partition was denied by her. The fact that 1st Plaintiff as P.W-1 was unable to identify her husband's signature. The suggestions regarding the brothers of her husband Nanjegoudu had been in possession of the respective shares as separate properties and had therefore sold the property, for which 1st Plaintiff claims ignorance. Under those circumstances, the appreciation of evidence by the learned District Munsif, Denkanikottai rejecting the claim of Plaintiffs, based on the oral partition is found justified.
27. On re-appreciation of evidence, the learned Sub Judge had confirmed the judgment of the trial Court and dismissed the suit. Aggrieved the Appellants before the first Appellate Court and Plaintiffs before the learned District Munsif, Denkanikottai had preferred this Second Appeal.
28. Ex.B-4 is the sale deed regarding the sale of the property in Survey No.325 Punja land. Out of 4 acres 12 cents, the husband of 1st Plaintiff Nanjegoudu had sold 0.05 cents for Rs.300/-. In the recitals, it is stated that the property had been in enjoyment of the vendor as his family/ancestral properties and was enjoyed by him after partition as it was in his possession. Therefore, he sold the property. The recitals in Ex.B-4 specifically mentions it as a joint 15/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/08/2025 05:53:11 pm ) S.A.No.721 of 2008 family ancestral property and after subsequent partition, it fell into the share of the vendor Nanjegoudu, S/o. Base Goudu and he had sold the property to Puttama, W/o. Muniyappa as per sale deed dated 20.12.1972. The Plaintiffs contend that family properties had not been partitioned during the lifetime of the husband of 1st Plaintiff, and that the Defendants had sold the properties, and the sale proceeds were shared by the Plaintiffs and Defendants. After the death of the husband of the Plaintiff, the Defendants are encumbering properties and denying the share to the legal heirs of Nanjegoudu, the Plaintiffs therefore had sought partition.
29. Ex.B-5 is the sale deed dated 26.12.1972 for Rs.500/- bearing document No.2610/1972, Basegoudu's son Nanjegoudu in which the specific words in the recitals were stated “gpJuh$pj K:ykhft[k;. ghfK:ykhft[k;
ghj;jpag;gl;L”. Mallikappa who is the adopted son of Pasegouda independently sold the properties to Rajanna S/o. Ramaiya. The recitals in Ex.B-4 and Ex.B- 5 indicate clearly that there was a partition in the family. Therefore, the averments in the plaint that there was no partition are not sustainable. Even though, it is claimed there was no partition, the Husband of the 1st Plaintiff and father of the other Plaintiffs Nanjegoudu along with other Defendants sold several properties and it is claimed that the sale proceeds were shared is not 16/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/08/2025 05:53:11 pm ) S.A.No.721 of 2008 proved through documents.
30. In the documents under Ex.B-33 only signature is marked regarding attestation and not the entire document was marked. Even if accepted, it will not alter the conclusion arrived at by the learned District Munsif, Denkanikottai, on proper appreciation of evidence. As it was found that the recitals in the sale deed clearly stated that it was enjoyed by the vendor Nanjegoudu, S/o. Basegoudu being the Husband of Rajamma the 1st Plaintiff, as his separate property.
31. As far as civil cases are concerned, more than oral evidence, documentary evidence has weightage. Rajamma/1st Plaintiff as P.W-1 had signed in the deposition. It indicates that she is literate. She was aware of the facts of the case. When she was confronted with documents, she claimed ignorance. She had not denied it. The documents in this case are in Telugu or Kannada which had been translated by the local scribe. In the course of evidence, it is stated that the village Karnam, by name Neelakanda Iyer had reduced into writing the oral partition effected between Nenja Goudu, Veerabathrappa, Maathevappa and adopted son Malingappa.
32. It is to be noted that the Muchalika was entered into in the year 17/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/08/2025 05:53:11 pm ) S.A.No.721 of 2008 1972. In those days, it was the practice in the village that the village Karnam which Post was abolished subsequently by the State Government was a hereditary post. The village Karnam had powers as the Village Administrative Officer including Magisterial powers in those days. They used to collect the taxes and penalty regarding enjoyment of the properties in the villages and deposit the same into the Government Account. They were part of the Government machinery that was also in the year 1979 – 1980. Till such time, it was practice in those days that regarding partition regarding sale, the Village Karnam themselves used to act as document writers. Their evidence had more weightage before the Civil Court. The village where the dispute arose is a border District, Krishnagiri, a part of Tamil Nadu where the population are Telugu speaking people and Kannada speaking people. Therefore, the documents would be either in Kannada or in Telugu. In the trial, the documents had been translated for the benefit of the Court by the appearing Counsels which was not disputed by the opposite side. The learned District Munsif, Denkanikottai had appreciated the evidence based on the translated version produced before him by the learned Counsels on both sides. It is clear in the recital that the suit properties had been in enjoyment of Nanjegoudu, the Husband of Rajamma and that the Husband of 1st Plaintiff, Nanjegoudu died on 30.12.1979. The suit for partition had been instituted in the year 1994. 18/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/08/2025 05:53:11 pm ) S.A.No.721 of 2008
33. As per the plaint averments, the suit properties had not been partitioned. Even though it is claimed that the properties had not been partitioned but on perusal of the recitals in the documents under Ex.B-4 and Ex.B-5, it is revealed that 1st Plaintiff's Husband and the Defendant had encumbered many of the properties belonging to the family jointly and that the sale proceeds were shared by them. Therefore, the plaint averments is found not true. As early as in the year 1972, there had been partition through Muchalika. Therefore, the sale deed executed subsequent to the partition is found true. The claim of the learned Counsel for the Appellants that the learned Judge relied on the Muchalika which cannot be the basis for arriving at a conclusion as the Muchalika was actually a partition deed and it should have been impounded and penalty to be imposed without which the Court cannot peruse it. That part of the submission is rejected as the recitals in the Muchalika indicates it was an oral arrangement reduced into writing. Subsequently, there was oral partition prior to Muchalika in the year 1972. The learned Judge had perused it and had discussed the Muchalikka. Even otherwise, if the evidence of the Muchalika is rejected, there is still evidence available through the recitals by Nanjegoudu himself and the claim by the learned Counsel for the Appellants that the document writer, the Scribe has in the usual practice, wrote it in colloquial language cannot be accepted as per the facts of this case. The reported decision relied by her even though found 19/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/08/2025 05:53:11 pm ) S.A.No.721 of 2008 acceptable will not help her case. Even if the Muchalika Ex.B-33 is rejected as inadmissible, there is still evidence through the recitals under Ex.B-4 and Ex.B-5 as proof of claim by the Defendants that there had been a partition in the family which was an oral partition which was subsequently reduced into writing which is termed as Muchalikka.
34. The Court below had not erred in law. It was on proper appreciation of evidence by the trial Court and by the first Appellate Court that Ex.B-33 was marked as signature of the attesting witness who are none other than the parties to the document and witnesses. The witnesses are the elders in the family, namely, Nanjegoudu, Defendant-1/Mahadevappa, Veerabathrappa and Malingappa who had attested the documents and for that purpose, it was marked and it is admissible as part of the evidence. The oral partition was also proved through the recitals by the vendor Nanjegoudu, the husband of 1st Plaintiff. 'Pithurarjithamayin' is the word used which indicates that the property had been in enjoyment in his family through the father and had devolved through his father and subsequently, as his separate property through partition. Therefore, 1st Plaintiff is estopped from denying such partition. The scribe of the document is stated to be Neelakanda Iyer, the then village Karnam of those period. Therefore, the submission of the learned Counsel for the Appellants that the Scribe had used colloquial language that it loose in its terms 20/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/08/2025 05:53:11 pm ) S.A.No.721 of 2008 it cannot be given due importance is rejected on that ground. Unlike, the scribe of these days, the village karnam had more knowledge about the people in village and enjoyment of the properties in the village. Their evidence was presumed to be true in those days in a Court of law. Therefore, even though Neelakanda Iyer had not been examined as witness, the document executed by him is found to be bona fide. Based on the facts that is known to him, that is reported to him by Nanjegoudu, the vendor. Part time Village Officers are called as Karnam. The post of part time Village Officers (Karnam) was abolished under the Tamil Nadu Abolition of Post of Part-time Village Officers Act, 1981. The 1981 Act leads to the creation of full time Village Administrative Officers (VAOs) and appointment of Village Administrative Officers in 1982.
35. The reported decisions cited by the learned Counsel for the Appellants in the cases of Yellapu Uma Maheswari and another v. Buddha Jagadheeswararao and Others reported in (2015) 16 SCC 787 and B.R.Patil v. Tulsa Y.Sawkar and Other reported in 2022 SCC OnLine SC 240, even though found acceptable, will not help the case.
36. The reported decision cited by the learned Counsel for the Respondents/Defendants in the case of K.G.Shivalingappa (dead) by Lrs and 21/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/08/2025 05:53:11 pm ) S.A.No.721 of 2008 others v. G.S.Eswarappa and others, in which the Head Note are as follows:
Registration Act, 1908, Section 17 – Evidence Act, 1872 Admissibility of unregistered document – Branches of family effected partition and reduced same in writing in 1916 – Each family had independently dealt with properties thereafter effecting sales and effecting mutation and paid assessment separately – Each family had taken compensation in respect of lands acquired – Partition deed executed in 1916 though unregistered can be relied on to establish severance of Joint Family.
Code of Civil Procedure, 1908, Section 100 – Duty of Court-Suit for partition dismissed of ground that there had been earlier partition and parties had acted upon it-Elaborate evidence regarding separate possession and enjoyment adduced and accepted by Courts below-High Court framed question of law regarding admissibiilty of unregistered partition deed and decreed suit stating that it was inadmissible-High Court did not set aside concurrent findings of courts below holding that earlier partition had been effected and parties had been separately enjoying properties-Judgment of High Court set aside as there was no discussion on such findings.
is found applicable to the facts of this case. Ex.B-33 is not given due weightage by this Court. Even if Ex.B-33 is rejected, there is evidence through Ex.B-4 and Ex.B-5 which are registered sale deed executed by the Husband of the 1st Plaintiff Rajamma wherein it is clearly recited that there was partition and the property was in his separate possession. Under those circumstances, the claim of the Plaintiffs that for partition is found unacceptable.
37. On perusal of the judgment of the learned District Munsif and the learned Sub Judge, Hosur it is found that the learned District Munsif had 22/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/08/2025 05:53:11 pm ) S.A.No.721 of 2008 properly assessed the evidence and arrived at a conclusion that there was a prior partition and the learned Sub Judge, Hosur, had on independent assessment arrived at the same conclusion that there was a partition during the life time of the husband of the first Plaintiff. Therefore, the claim of the widow of Nanjegoudu for partition is not maintainable. Therefore, against concurrent finding, the Substantial Question of law-1 is raised here.
38. Even though signature was marked under Ex.B-33, it indicates that there was a family partition under Ex.B-33, even though weightage is not given, evidence is available through Ex.B-4 and Ex.B-5 which are registered sale deeds executed by the Husband of the 1st Plaintiff wherein it is clearly stated that there was an oral partition and that he had been in enjoyment of the property that is sold, which was under his exclusive possession as separate property. The recitals is given due weightage as it was written by the then Village Karnam Neelakanda Iyer.
39. In the light of the above discussion, the Courts below have not erred in law by holding that there was a prior partition on the basis of an unregistered and unstamped partition Muchalika under Ex.B-33 whereas only the signature in the document was marked and not the document itself. It is because the witnesses to the document was examined. Therefore, on proper 23/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/08/2025 05:53:11 pm ) S.A.No.721 of 2008 appreciation of evidence only the trial Court as well as the first Appellate Court had arrived at a conclusion that there was a prior partition Muchalika is an admissible document. Muchalika means an oral partition that had been executed and subsequently reduced into writing. Therefore, the finding of the trial Court as well as the first Appellate Court was on proper appreciation of evidence. Both the Courts had not erred in law in holding that there was prior partition on the basis of the unregistered and unstamped partition Muchalika under Ex.B-33. Therefore, the Substantial Question of Law-1 is answered in favour of the Defendants and against the Plaintiffs in O.S.No.138 of 1994.
Substantial Question of Law-2:
40. In the light of the recitals under Ex.B-4 and Ex.B-5, the Defendants had proved the Defendants' claim of partition. The Courts below had properly appreciated the evidence based on the evidence available before the Court through the Defendants witness. Therefore, the Substantial Question of Law-2 is answered in favour of the Defendants and against the Plaintiffs in O.S.No.138 of 1994.
Substantial Question of Law-3:
41. A normal presumption is that the Hindu family is presumed to be a 24/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/08/2025 05:53:11 pm ) S.A.No.721 of 2008 Hindu joint family and the burden of proving the earlier partition is on the party pleading such division. Pleading such division was the Defendants. The Defendants had through their evidence marked as Ex.B-4 and Ex.B-5. Upon instructions of the Husband of the first Plaintiff alone, the Scribe had used the word, “gpJuhh;$pj K:ykhft[k;. ghfK:ykhft[k; ghj;jpag;gl;L.”. Therefore, the submission of the learned Counsel for the Appellants that it was colloquial language used by the Scribe cannot be accepted. The Courts below have rightly rejected the claim of the Plaintiffs and dismissed the suit. Therefore, the Substantial Question of Law-3 is answered in favour of the Defendants and against the Plaintiffs in O.S.No.138 of 1994.
Substantial Question of Law-4:
42. The Defendant-1 had let in evidence. Mahadevappa as D.W-1 had let in evidence. The Defendants marked the documents as Ex.B-4 and Ex.B-5. Ex.B-1, Ex.B-2 and Ex.B-3 are promissory notes executed by the three sons Nanjegoudu, Veerabathrappa and Mahadevappa and they released their shares in the house settled in favour of the Mahadevappa, the Defendant-1. The Courts below have properly appreciated the evidence and arrived at a conclusion based on the Defendants claim that there was a prior partition. Therefore, the Substantial Question of Law-4 is answered in favour of the 25/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/08/2025 05:53:11 pm ) S.A.No.721 of 2008 Defendants and against the Plaintiffs in O.S.No.138 of 1994.
In the result, this Second Appeal is dismissed. The Decree and Judgment of the learned Subordinate Judge, Hosur made in A.S.No.19 of 2003, dated 30.07.2004 confirming the decree and judgment of the Court of the learned District Munsif, Denkanikottai made in O.S.No.138 of 1994 dated 04.04.2003 is upheld. There shall be no order as to costs.
03.06.2025 Shl Index: Yes/No Internet: Yes/No Speaking Order/Non-speaking Order To
1. The District Munsif, Denkanikottai.
2. The Subordinate Judge, Hosur.
3. The Section Officer, Vernacular Records, High Court, Madras.
26/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/08/2025 05:53:11 pm ) S.A.No.721 of 2008 SATHI KUMAR SUKUMARA KURUP, J.
Shl Judgment made in S.A.No.721 of 2008 03.06.2025 27/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/08/2025 05:53:11 pm )