Madras High Court
A.Seenivasan vs S.Navaneetha Krishnan (Died) ....1St on 25 June, 2025
Author: R.Vijayakumar
Bench: R.Vijayakumar
S.A.(MD)No.986 of 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
JUDGMENT RESERVED ON : 21.07.2025
JUDGMENT PRONOUNDED ON : 18.09.2025
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
S.A.(MD)No.986 of 2006
and MP(MD).No.1 of 2006
1.A.Seenivasan
2.R.Gopalakrishnan ....Appellants/6th & 7th Respondents
/6th & 7th Defendants
Vs
1.S.Navaneetha Krishnan (died) ....1st Respondent/Appellant
/Plaintiff
2.A.Sathoorappa Naicker (died)
3.S.Jegadeesan
4.S.Rajagopal
5.S.Venkatesan
6.R.Vijayalakshmi ...Respondents 2 to 6
/Respondents 1 to 5
/Defendants 1 to 5
7.Ayyammal
8.Rajeswari
9.Minor Kishorekumar
10.Minor.Keerthikumar ....Legal heirs of the deceased
1st respondent
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S.A.(MD)No.986 of 2006
(Respondents 2,3 and 5 are given up
since they are exparte in the lower appellate Court)
(Respondents 9 & 10 are represented though their
mother and guardian the 8th respondent)
(Respondents 1,3,4, 5 and 7 who are already on record
are recorded as legal heirs of the deceased 2nd Respondent
vide Court order dated 25.06.2025)
(Respondents 7 to 10 are brought on record as legal heirs
of the deceased 1st respondent vide Court order
dated 23.02.2025)
PRAYER: Second Appeal is filed under Section 100 of C.P.C, against the
judgment and decree passed in A.S.No.64 of 2005 dated 07.06.2006 on the
file of the Sub Court, Kovilpatti modifying the judgment and decree passed in
O.S.No.72 of 2004 dated 03.08.2005 on the file of the District Munsif Court,
Kovilpatti.
For Appellants : Mr.M.Vallinayagam
Senior Counsel
For Mr.D.Nallathambi
For Respondents : M/s.K.Hemakarthikeyan for R3 to R5
: No appearance for R6
: Mr.R.Devaraj for R7 to R10
: R1 & R2 died- steps taken
JUDGMENT
The 6th and 7th defendants in a suit for partition are the appellants herein.
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2.The first respondent herein had filed O.S.No.72 of 2004 before the District Munsif Court, Kovilpatti for the relief of partition and separate possession of his 1/5th share. The trial Court by its judgment and decree dated 03.08.2005 had partly decreed the suit with regard to Item Nos.2 to 4 of the suit schedule properties. The suit was dismissed with regard to the 1st item.
The plaintiff preferred A.S.No.64 of 2005 before the Sub Court, Kovilpatti challenging the disallowed portion.
3.The learned Subordinate Judge had allowed the appeal and granted a decree for partition with regard to the 1st item also. Challenging the said judgment and decree of the First Appellate Court, the present second appeal has been filed by the defendants 6 and 7.
4.As per plaint averments, the immovable properties belonged to one Ayyappa Naicker. He had died 30 years ago leaving behind his three sons namely Ramasamy Naicker, Sathoorappa Naicker (first defendant) and Rengasamy Naicker. The said Sathoorappa Naicker had passed away on 03.09.2012. The plaintiff herein is one of the sons of Sathoorappa Naicker. His other brothers are impleaded as Defendants 2 to 4.
5.According to the plaintiff, in the family partition between the 1st defendant and his brothers, the suit schedule properties were allotted to the 1st defendant. The plaintiff and the defendants 2 to 4 are the sons of the 1st 3/25 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 04:50:54 pm ) S.A.(MD)No.986 of 2006 defendant constituted a Hindu Joint Family and they are in joint possession and enjoyment. The 1st defendant as the head of the family was managing the suit schedule properties. The plaintiff had further contended that the 1 st defendant had started leading wayward life and without heeding to the advise of the plaintiff and his brother, he is living separately. The 1 st defendant is making attempt to alienate the suit schedule property at a throw away price. He had sold a portion of the 1st item of the suit schedule property to the defendants 5 to 7. Hence, a legal notice was issued to the 1st defendant and the defendants 5 to 7 on 22.11.2002. However, no reply was received.
6.The plaintiff had further contended that since the suit schedule properties are ancestral properties of the plaintiff and the defendants 1 to 4, the alienation made by the 1st defendant in favour of the defendants 5 to 7 is invalid and it is not binding upon the plaintiff. Though a request was made for partition, the first defendant has not acceded to the said request and therefore, the present suit for partition claiming 1/5th share in the suit schedule properties.
7.The defendant 1, 2, 4 and 5 had remained exparte.
8.The 3rd defendant who is one of the brothers of the plaintiff had filed a written statement supporting the case of the plaintiff.
9.The 5th defendant had filed a written statement contending that the suit schedule properties are the separate properties of the grandfather of the 4/25 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 04:50:54 pm ) S.A.(MD)No.986 of 2006 plaintiff namely Ayyappa Naicker. After the death of the said Ayyappa Naicker, his three sons namely Ramasamy Naicker, Sathurappa Naicker and Rengasamy Naicker have not partitioned the properties and they are enjoying the same jointly. Ramasamy Naicker did not have any legal heirs. The first defendant represented that the suit schedule properties are his separate properties and he would like to alienate the same. The first defendant had sold the same to the 5th defendant who is the granddaughter of the Ramasamy Naicker. However, he had cancelled the said sale and again sold it to the 6th defendant. Therefore, the 5th defendant had filed O.S.No.126 of 2002 and the same is pending. The present suit for partition has been filed due to collusion between the 1st defendant and the plaintiff in order to destroy the rights of the 5th defendant. Hence, she had prayed for dismissal of the suit.
10.The 6th defendant who is the purchaser from the 1st defendant has filed a written statement contending that the present suit has been filed by the plaintiff at the instigation of the 1st defendant. He had further contended that the defendant is a bonafide purchaser for valuable consideration without notice. It was further contended that the 1st item belonged to the 1st defendant. Out of 1.94 acres, the eastern 95 cents has been sold by the 1 st defendant in favour of the 6th defendant on 06.11.1996 for valuable consideration. Pursuant to the said sale, the 6th defendant has taken possession of the property and he has also mutated the revenue records in his name. Hence, he 5/25 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 04:50:54 pm ) S.A.(MD)No.986 of 2006 prayed for dismissal of the suit.
11.The 7th defendant had filed a written statement contending that the suit has been filed by the plaintiff in collusion with his father namely the 1st defendant. He has also contended that he is the bonafide purchaser for valuation consideration.
12.The trial Court found that the suit has been filed by the plaintiff only to defeat the rights of the defendants 6 and 7 in whose favour the 1st defendant had executed the sale deed. On the basis of the above said findings, the trial Court decreed the suit for partition with regard to items 2 to 4 alone and dismissed the suit with regard to the 1st item.
13.The plaintiff preferred an appeal challenging the dismissal of the suit with regard to the 1st item. The First Appellate Court recorded a finding that the defendants 6 and 7 have admitted in their oral evidence and in the written statement that the 1st item is the ancestral property of Ayyappa Naicker. Therefore, the First Appellate Court arrived at a finding that the 1st item is the ancestral property of Ayyappa Naicker.
14.The First Appellate Court further found that the 1st defendant being a Kartha of the family, he can alienate the 1st item only for legal necessity. The burden lies upon the purchaser to prove that there was a legal necessity for the Kartha to alienate the suit schedule property. In the sale deeds, there is no reference about the legal necessity or the property is being sold for the 6/25 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 04:50:54 pm ) S.A.(MD)No.986 of 2006 welfare of the family. In such circumstances, the First Appellate Court arrived at a finding that the sale to the 1st item of the suit schedule property by the 1st defendant in favour of the defendants 6 and 7 are not for legal necessity. Merely because the 2nd defendant has signed as one of the witnesses to the sale deed, it does not mean that the sale is known to the plaintiff also.
15.Based upon the above said findings, the First Appellate Court was pleased to set aside the judgment and decree of the trial Court with regard to 1st item of the property and proceeded to grant a decree for partition for the said item also. Challenging the judgement and decree of the First Appellate Court, the present second appeal has been filed by the defendants 6 and 7.
16.The second appeal was admitted on 25.10.2006 by framing the following substantial questions of law:
“1.Whether the judgment of the Lower Appellate Court warrants interference since the same is not in compliance with Order 41 Rule 31 of C.P.C.?
2.Whether the Lower Appellate Court has committed error by not entertaining the question of partial partition on the ground of plea and no issue, when the parties have let in evidence on that point, advanced arguments before the trial Court and when the trial Court discussed that point in detail and decided the suit for partial partition and hence, the same warrants interference under Section 100 of C.P.C.?7/25
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17.After hearing the counsels on either side, the Court felt that the additional substantial questions of law also arise for consideration. The following additional substantial questions of law were framed on 10.07.2025 and it was adjourned to 17.07.2025 to enable the counsels on either side to make their submissions.
(i)Whether at all there was any joint family nucleus which was pressed into service to purchase the first item under Ex.A13?
(ii)If the property in the hands of Ayyappa Naicker is deemed to be a separate property, whether his grandsons would be entitled to seek for partition while their father is alive.?
(B).Submissions of the counsels appearing on either side:
18.Learned Senior Counsel appearing for the appellants contended that there is no pleading whatsoever that there is a joint family nucleus. Out of which, 1st item was purchased by Ayyappa Naicker. There are no pleadings whatsoever with regard to the date of death of Ayyappa Naicker's wife. He had further submitted that no details of oral partition between Ayyappa Naicker and his brothers have been placed on record.
19.The learned Senior Counsel had further stated that, in the plaint, it has been admitted that the 1st defendant was managing the property as Kartha of the family. Even after alienation was made by the father, the father and son were residing under the same roof. Even assuming that the 1st item of the property is a joint family property, as a Kartha, the 1st defendant has got 8/25 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 04:50:54 pm ) S.A.(MD)No.986 of 2006 power to alienate the same and the alienation is binding upon the other members of the family. He had further submitted the one of the sons namely the 2nd defendant has attested Ex.B2 sale deed. In such circumstances, the alienation made by the Kartha cannot be questioned. He had further submitted that no oral evidence has been let in either to establish the joint family nucleus or to establish the fact that there was surplus from the said joint family to purchase the 1st item of the property. Hence, it is clear that the property that was purchased under Ex.A13 dated 20.04.1939 is not a joint family property, but it is the self acquired property of Ayyappa Naicker.
20.The learned Senior Counsel appearing for the appellants had further contended that the 1st item of the suit schedule property was purchased by the 1st defendant under Ex.A13 on 20.04.1939 and had sold the said property in favour of the defendants 6 and 7 under Ex.B2 dated 22.02.1996 and under Ex.B8 dated 06.11.1996. One of the sale deeds namely Ex.B2 has been attested by the 2nd defendant. He had further submitted that since the property purchased under Ex.A13 is a separate property of Ayyappa Naicker, on his death, it would devolved upon his three sons under Section 8 of the Hindu Succession Act. Therefore, the plaintiff who is the son of the 1 st defendant cannot make any claim while his father is alive.
21.The learned Senior Counsel had further submitted that even assuming that the sale deed executed by the 1st defendant in favour of the 9/25 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 04:50:54 pm ) S.A.(MD)No.986 of 2006 defendants 6 and 7 under Ex.B2 and B8 is without any legal necessity, it is only a voidable transaction. Hence, the same has to be challenged within a period of three years from the date of the transaction. However, the present suit for partition has been filed only in the year 2002. Without challenging the said sale deed, the present suit for partition is not maintainable.
22.The learned Senior Counsel had further submitted that though certain allegations have been made as against the father relating to his character, no evidence has been let in. He relied upon a decision of the Hon'ble Supreme Court in a judgment reported in 1970 (3) SCC 350 (Raj Kumar Gaghubanchmani Prasad Narain Singh Vs. Ambica Prasad Singh (dead) by Lawyers and others); 2016 SAR (Civil) 161(Rajni Sanghi Vs. Wester Indian State Motors Ltd., & Others) and (2017) 1 MLJ 759 (Chinna Palanisamy Gounder Vs. Latha and others) in support of his contention.
23.As a residuary and alternative submission, he contended that in case if the Court arrives at a finding that it is a joint family property and the alienation made by the 1st defendant in favour of the defendants 6 and 7 are not valid, the 1st item may be allotted to the share of the appellants.
24.Per contra, the learned counsel appearing for the respondent/plaintiff submitted that Exs.A4 and A9 which are of the year 1923 and 1919 would clearly indicate that there was a joint family nucleus and only out of the surplus of the said joint family nucleus, the 1 st item of the 10/25 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 04:50:54 pm ) S.A.(MD)No.986 of 2006 property was purchased by the 1st defendant under Ex.A13 on 20.04.1939. Therefore, the plaintiff has clearly established the existence of ancestral nucleus, surplus from the said property and the fact that it has been used to purchase the 1st item of the property under Ex.A13. In fact, the property purchased under Ex.A9 by the family has been allotted to the share of another brother under Ex.A4. This would clearly indicate that the properties are joint family properties.
25.The learned counsel appearing for the respondent further submitted that DW1 in his evidence, has categorically admitted that he is aware of the fact that the 1st item of the property is a joint family property and his children are having share by birth. He further submitted that the alienation made by the 1st defendant will not be binding upon the other co-parcener in view of the fact that no legal necessity has been averred in Ex.B2 or Ex.B8. Alienations have been made by the 1st defendant only because of his bad habits and without heeding to the advise of the plaintiff and his brother.
26.The learned counsel for the respondent had further submitted that at the time of alienation made by the 1st defendant under Ex.B2 and B8, the other co-parceners were major. Their consent has not been obtained by the 1 st defendant. Therefore, the sale is not valid. He relied upon a decision of our High Court reported in (1994) 1 Cur CC 548 (Sonnappa Iyer Vs. K.R.Ramuthaiammal and 6 others).
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27.The learned counsel appearing for the respondent further submitted that the properties purchased by Ayyappa Naicker have been orally partitioned by his sons. Even after oral partition, the character of the property as that of the ancestral in nature would continue. He relied upon a decision of the Hon'ble Supreme Court reported in 2019 (5) CTC 110 (Arshnoor Singh Vs. Harpal Kaur and others) in support of his contention.
28.The learned counsel for the respondent further submitted that when an alienation is being made by the Kartha of the joint family, there should be a specific recital in the sale deed with regard to legal necessity. However, there are no such recitals either in Ex.B2 or under Ex.B8. The purchaser should have been careful enough in verifying the character of the property and the power of Kartha for alienating the same. He further submitted that when the defendants have admitted about the ancestral nature of the property, no further evidence is required and also it is the best form of evidence.
29.The learned counsel for the respondents further submitted that merely because Ex.B2 sale deed was attested by the 2nd defendant, the attestation would not operate as estoppel and it will not extinguish the rights of a co-parcener. Hence, he prayed for confirming the judgment and decree of the First Appellate Court.
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30.The learned Senior Counsel appearing for the appellants by way of a reply submitted that the plaintiff was not in a position to establish the surplus arising out of joint family nucleus or utilization of the said nucleus. There is no reference or any pleading with regard to Ex.A9 in the plaint. When there is no averments in the plaint with regard to the ancestral character of the property, the plaintiff cannot rely upon the recital in the sale deed. When Ex.B2 sale deed has been attested by a person interested in the property, it would certainly operate as an estoppel and it would be binding upon the family members. He further reiterated that the alienation made by the Kartha without legal necessity, is only a voidable document and without challenging the said sale deed within a period of three years, the present suit for partition is not maintainable and hence, he prayed for allowing the second appeal.
31.I have carefully considered the submissions made on either side and perused the material records.
(C).Analysis:
(i).Alienation of by Kartha:
32.As per paragraph No.3 of the plaint, the suit schedule properties originally belonged to Ayyappa Naicker and he had died intestate leaving behind his three sons. The sons entered into a family partition and in the said 13/25 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 04:50:54 pm ) S.A.(MD)No.986 of 2006 family partition, the property was allotted to the share of the first defendant who is the father of the plaintiff. It is further contended in the plaint that as head of the family, the first defendant was managing the schedule of properties. Therefore, as per plaint averments, it is clear that the first defendant had alienated the properties in favour of the defendants 6 and 7 under Ex.B2 and Ex.B8 as Kartha of the family. According to the learned counsel for the respondents, these two sale deeds do not reflect that the alienations have been made for legal necessity.
33.The Hon'ble Supreme Court in a judgment reported in 1970 (3) SCC 350 (Raj Kumar Gaghubanchmani Prasad Narain Singh Vs. Ambica Prasad Singh (dead) by Lawyers and others) in Paragraph No.5 has held as follows:
“5.In any event an alienation by the Manager of the joint Hindu family even without legal necessity is voidable and not void. On the findings of the Trial Court, respondent 1 and 2 were in possession of the land, since the year 1936. The appellant forcibly deprived respondent 1 and 2 of possession of the land. In the circumstances respondent 1 and 2 were entitled to be restored to possession of the land, unless the appellant in an action for partition of the joint family established his claim to the land in dispute. No such attempt was made by the appellant.”
34.The Hon'ble Supreme Court in a judgment reported in (1990) 3 SCC 68 ( Manibhai and others Vs. Hemraj and others) in paragraph No.23 14/25 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 04:50:54 pm ) S.A.(MD)No.986 of 2006 has held as follows:
23........In any event an alienation by the Manager of the Joint Hindu Family even without legal necessity and not tainted with immorality but for his personal benefit would be voidable and not void.
35.The Hon'ble Supreme Court in a judgment reported in (2007) 10 SCC 571 (Subhodkumar and others Vs. Bhagwant Namdeorao Mehetre and others) in paragraph No.11 has held as follos:
“11.......A karta has power to alienate for value the joint family property either for necessity or for benefit of the estate. He can alienate with the consent of all the coparceners of the family. When he alienates for legal necessity he alienates an interest which is larger than his undivided interest. When the Karta, however, conveys by way of imprudent transaction, the alienation is voidable to the extent of the undivided share of the non-consenting coparcener which in the present case was Panditrao........”
36.In view of the judgments of the Hon'ble Supreme Court, it is clear that any alienation made by a Karta of a joint family without any legal necessity, is only a voidable transaction and not a void one. In such circumstances, the said document has to be challenged in a manner known to law.
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(ii).Limitation to challenge the voidable document:
37.As per Article 59 of the Limitation Act, limitation to seek setting aside of an instrument is three years from the date when it first comes to the knowledge of the plaintiff.
38.The Hon'ble Supreme Court in a judgment reported in (1996) 7 SCC 767 (Md.Noorul Hoda Vs. Bibi Raifunnisa and others) in paragraph No.6 has held as follows:
“6......In a suit to set aside or cancel an instrument, contract or a decree on the ground of fraud,Article 59 is attracted. The starting point of limitation is the date of knowledge of the alleged fraud. When the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded. Section 31 of the Specific Relief Act, .1963 regulates suits for cancellation of an instrument which lays down that any person against whom a written instrument is void or voidable and who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, can sue to have it adjudged void or voidable and the court may in its discretion so adjudge it and order it to be delivered or cancelled. It would thus be clear that the word 'person' in Section 31 of the Specific Relief Act is wide enough to encompass person seeking derivative title from his seller. It would 16/25 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 04:50:54 pm ) S.A.(MD)No.986 of 2006 therefore, be clear that if he seeks avoidance of the instrument, decree or contract and seeks a declaration to have the decrees set aside or cancelled he is necessarily bound to lay the suit within three years from the date when the facts entitling the plaintiff to have the decree set aside, first become known to him. “
39. The Hon'ble Supreme Court in a judgment reported in (2025) 5 SCC 198 ( Uma Devi and others Vs. Anand Kumar and others) in paragraph No.13 and 14 has held as follows:
“13.A registered document provides a complete account of a transaction to any party interested in the property. This Court in Suraj Lamp Industries Pvt. Ltd. v. State of Haryana & Anr.(2012) 1 SCC 656 held as under:
“15....'17....Registration of a document ( When it is required by law to be, and has been effected by a registered instrument) -gives notice to the world that such a document has been executed.
18.Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with a property, as to the nature and extent of the rights which persons may have, affecting that property. In other words, it enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is or are the person(s) presently 17/25 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 04:50:54 pm ) S.A.(MD)No.986 of 2006 having right, title, and interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon the statements contained in the registers (maintained under the said Act) as a full and complete account of all transactions by which the title to the property may be affected and secure extracts/copies duly certified”.
14. Applying this settled principle of law, it can safely be assumed that the predecessors of the plaintiffs had notice of the registered sale deeds (executed in 1978), flowing from the partition that took place way back in 1968, by virtue of them being registered documents. In the lifetime of Mangalamma, these sale deeds have not been challenged, neither has partition been sought. Thus, the suit (filed in the year 2023) of the plaintiffs was prima facie barred by law. The plaintiffs cannot reignite their rights after sleeping on them for 45 years.”
40.In view of the judgments cited above, it is clear that even assuming that the first item is an ancestral property, the Karta having alienated the same without legal necessity, it is only a voidable document. The alienations have been effected in the year 1996. The present suit for partition has been filed on 13.12.2002 without challenging those sale deeds. Therefore, the suit for partition is not maintainable and it is clearly barred by limitation. 18/25 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 04:50:54 pm ) S.A.(MD)No.986 of 2006
(iii).Character of property and devolution of interest :
41.The learned counsel for the appellants had contended that the first item of the suit schedule property is not a joint family property, but it is the absolute property of Sathoorappa Naicker and he had every right to alienate the same during his life time under Exs.B2 and B8. According to him, the property had devolved upon the first defendant under Section 8 of the Hindu Succession Act and therefore, while the son is alive, grandson would not have any right to make a claim seeking partition.
42.The Hon'ble Supreme Court in a judgment reported in (1986) 3 SCC 567 (Commissioner of Wealth Tax, Kanpur and others Vs. Chander Sen and others) in paragraph No.22 has held as follows:
“22......It would be difficult to hold today the property which devolved on a Hindu under section 8 of the Hindu Succession would be HUF in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and vis-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated.....”
43.The Hon'ble Supreme Court in a judgment reported in (2008) 3 SCC 87 (Bhanwar Singh Vs. Puran and others) in paragraph No.13 has held as follows:
“ 13.....Section 8 lays down the general rules of succession 19/25 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 04:50:54 pm ) S.A.(MD)No.986 of 2006 that the property of a male dying intestate devolves according to the provisions of the Chapter as specified in clause (1) of the Schedule. In the Schedule appended to the Act, natural sons and daughters are placed in Class-I heirs but a grandson, so long as father is alive, has not been included.....”
44.The Hon'ble Supreme Court in a decision reported in (2016) 4 SCC 68 ( Uttam Vs.Saubhag Singh and others) has quoted the judgement reported in (2008) 3 SCC 87 in approval.
45.In the present case, the 1st item of the suit schedule property has been purchased by Iyyappa Naicker under Ex.A13 on 20.04.1939. Though it is contended on the side of the respondent that Ex.A13 property was purchased utilizing the income from Exs.A4 and A9, there is no pleading to the said effect in the plaint. The plaint clearly proceeds on the basis that the 1st item of the suit schedule property is the absolute property of Iyyappa Naicker.
46.Our High Court in a judgment reported in (2010) 1 MLJ 1019 (K.V.Ramasamy Vs.K.V.Rahgavan and three others) in paragraph No.34 has held as follows:
“34.From the conjoint reading of the decisions referred to supra, the following aspects can be culled out easily:
a)The joint family nucleus must have left sufficient surplus income so as to enable acquisition.20/25
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b)Initially burden lies upon a member who alledges that a particular property is a joint family property to the extent that the alleged joint family nucleus must have left sufficient surplus income and by Utilising the same, the property in question could have been acquired.
c)If the initial burden as referred to above is proved then the burden shifts to the member of the joint family setting up claim that it is his personal property and the same has been acquired without any assistance from the joint family property.
d)Failure to prove existence of nucleus, the inevitable presumption is that the acquisition in question is nothing but self acquisition.
e)Mere fact of existence of a joint family does not lead to presumption that a property held by any of its member is joint family property unless the above aspect are proved.
f)If the property acquired is standing in the name of the female member of a joint family, she need not prove as to how she acquired it.”
47.In the present case, there are no pleadings whatsoever to the effect that there was a joint family nucleus and there was surplus income from the said nucleus. The plaintiff has also not pleaded that the alleged surplus was utilized for purchasing the property under Ex.A13. In such an event, this Court has constrained to arrive at a finding that the suit schedule properties are the absolute properties of the deceased Iyyappa Naicker. As a consequence, it 21/25 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 04:50:54 pm ) S.A.(MD)No.986 of 2006 should only be concluded, it had devolved upon Sathoorappa Naicker only under Section 8 of the Hindu Succession Act and not as an co-parcenary property in his hands. During his life time, Sathoorappa Naicker had alienated the property. Hence, the plaintiff who is the son of the Sathoorappa Naicker being not a Class-I heir, would not be entitled to make any claim over the first item of the suit schedule properties.
48.A perusal of the decree marked as Ex.A8 would reveal that the present 1st item of the property was shown as 1st item in the said suit also. The trial Court proceeded to dismiss the suit on the ground that there was an oral partition among the sons of Ayyappa Naicker and in such circumstances, the suit for partition is not maintainable. Therefore, it is clear that the partition has taken place among the sons of Ayyappa Naicker and the property is devolved upon them only under Section 8 of the Hindu Succession Act.
49.The said Sathoorappa Naicker had alienated the property initially in favour of the 5th defendant Vijayalakshmi who is the granddaughter of his brother Ramasamy Naicker on 10.05.1993 under Ex.B3. This alienation has not been put to challenge by the present plaintiff. Later, Sathoorappa Naicker had executed Ex.B2 in favour of the 7th defendant on 22.02.1996 and Ex.B8 in favour of the 6th defendant on 06.11.1996 for an extent of 1.94 acres. Only this sale deed has prompted the plaintiff to file the present suit for partition. 22/25 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 04:50:54 pm ) S.A.(MD)No.986 of 2006
50.The trial Court has granted a decree for partition in favour of the plaintiff with regard to Item Nos.2 to 4, the same has not been challenged by the defendants. In the plaintiff's appeal, the First Appellate Court had granted a decree in favour of the plaintiff with regard to the 1st item. This Court has arrived at a finding that the 1st item of the suit schedule properties are the absolute properties of Ayyappa Naicker and it had devolved upon his son Sathoorappa Naicker under Section 8 of the Hindu Succession Act. Therefore, the plaintiff would not have any right by birth to make a claim for partition over the 1st item of the property. The First Appellate Court had erroneously granted a decree with regard to the 1st item of the property also.
(D).Conclusion:
51.The substantial questions of law are answered in favour of the appellants. The judgment and decree of the First Appellate Court are set aside and the judgment and decree of the trial Court are restored. This second appeal stands allowed. No costs. Consequently, connected miscellaneous petition is closed.
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Index : Yes / No
Internet : Yes / No
NCC : Yes/No
msa
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S.A.(MD)No.986 of 2006
To
1.The Subordinate Judge
Kovilpatti
2.The District Munsif
Kovilpatti
3.The Section Officer
V.R.Section
Madurai Bench of Madras High Court
Madurai
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S.A.(MD)No.986 of 2006
R.VIJAYAKUMAR, J.
msa
Pre-delivery Judgment made in
S.A.(MD)No.986 of 2006
and MP(MD).No.1 of 2006
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