Madras High Court
Kaveriappan vs Govindan on 1 August, 2025
AS No. 553 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01-08-2025
CORAM
THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN
AS No. 553 of 2019
AND
CMP NO. 16678 OF 2019
1. Kaveriappan
S/o. Muthusamy Gounder,
Residing at Chadranallur Village,
Thoppur Post, Dharmapuri Taluk,
Dharmapuri District 636 352.
2. Sundaram
S/o.Kaveriappan
Residing at Chadranallur Village,
Thoppur Post, Dharmapuri Taluk,
Dharmapuri District 636 352.
3. Subramani
S/o.Kaveriappan
Residing at Chadranallur Village,
Thoppur Post, Dharmapuri Taluk,
Dharmapuri District 636 352.
Appellant(s)/plaintiffs
Vs
1. Govindan
S/o. Kaveriappan,
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AS No. 553 of 2019
Residing at Chadranallur Village,
Thoppur Post, Dharmapuri Taluk,
Dharmapuri District 636 352.
2.Ramesh
S/o. Govindan,
Residing at Chadranallur Village,
Thoppur Post, Dharmapuri Taluk,
Dharmapuri District 636 352.
3.Suresh Kumar (died)
S/o. Govindan,
Residing at Chadranallur Village,
Thoppur Post, Dharmapuri Taluk,
Dharmapuri District 636 352.
4.Mohan
S/o. Govindan,
Residing at Chadranallur Village,
Thoppur Post, Dharmapuri Taluk,
Dharmapuri District 636 352.
5.Lakshmi
W/o. Late Kuppuram,
D/o. Kaveriappan,
Nainakkadu, Theevattipati Post,
Omalur Taluk, Salem District.
6.Annalakshmi
W/o Suresh Kumar,
Chadranallur Village, Thoppur Post,
Dharmapuri Taluk , Dharmapuri
District 636 352.
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AS No. 553 of 2019
7.Minor Dhanush Sri
D/o. Suresh Kumar,
Chadranallur Village,
Thoppur Post, Dharmapuri Taluk ,
Dharmapuri District 636 352.
8.Minor Rishi Varsan
S/o Suresh Kumar,
Residing at Chadranallur Village,
Thoppur Post, Dharmapuri Taluk,
Dharmapuri District 636 352.
R7 and R8 are represented by her
mother Annalakshmi
R3 died
R6 to R8 are brought on record as legal
heirs of deceased R3, vide order dated
23.08.2024 made in CMP.No.6919 of
2023 in AS.No.553 of 2019.
Respondent(s)
PRAYER: This First Appeal has been filed under Section 96 of CPC r/w.41
Rule 1 of CPC, to set aside the decree and judgement of the trial court passed in
O.S.No.41 of 2009 on the file of the Principal District and Sessions Judge
Dharmapuri dated 30.04.2014.
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AS No. 553 of 2019
For Appellant(s): Mr.G.K.Sekar
For Respondent(s): Mr.V.Sakkarapani
For R1, R2, R4 and R6
R3 died (steps taken)
R5-No appearance
R7, R8 minor rep., by mother R6
ORDER
Unsuccessful plaintiffs have preferred an appeal. The suit is filed for partition, separate possession, declaration, and for permanent injunction, the trial Court had dismissed the suit.
2. The parties are referred to as per their rankings in the trial Court.
3. The brief case of the plaintiffs are as follows:
The plaintiffs 2 and 3 and the first defendant are the sons of the first plaintiff. The 5th defendant is the daughter of the first plaintiff. The defendants 2 to 4 are the sons of the first defendant. They are the members of Joint Hindu Family and are in joint possession of the suit properties and other properties. The plaintiffs and the defendants 1 and 5 have jointly executed a sale deed on 4/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 03:59:40 pm ) AS No. 553 of 2019 05.11.2008 in respect of the properties situated at Thoppur Village in S.Nos.397, 406/2, 407/1 in favour of Senthamarai Ramanujam Educational Trust. The first plaintiff is the karta of the family and is maintaining the joint family properties. Even though the pattas stands in the name of the plaintiffs and the first defendant separately, there is no partition in respect of the joint family properties. The plaintiffs and defendants 1 and 5 are enjoying the suit properties jointly. After the sale deed dated 05.11.2008, there is a difference of opinion between the plaintiffs and the first defendant. Hence, the plaintiffs asked the first defendant, in the presence of panchayatars for amicable partition on 05.07.2009. But the first defendant evaded for the same. In the meantime, the first defendant and his sons/defendants 2 to 4 created a partition deed dated 17.08.2009, in respect of the suit properties, without the knowledge of the plaintiffs. The properties are in joint possession till date. There is no possibility for joint possession of the suit properties. Hence, it is necessary to divide the suit properties into 20 equal shares and to allot 12 such shares to the plaintiffs. 5/32
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4. The brief case of the defendants 1 to 4 are as follows:
There is no mention regarding other properties, in the plaint. It is true that the property allotted for the share of the first plaintiff, was sold to Senthamarai Ramanujam Educational Trust. Since the borrowers insisted the first plaintiff and all his children, should sign in the sale deed, the first defendant put his signature. The partition was effected between the plaintiffs and the first defendant before 30 years, by the father of the first plaintiff, Muthusamy Gounder. All the members are enjoying their shares, allotted to them. The first defendant also obtained Tractor loan of Rs.3 lakhs by way of mortgaging the properties allotted to the first defendant. The first defendant, allotted his share of properties to defendants 2 to 4 on 17.08.2009. The first defendant also incurred a sum of Rs.5 lakhs, for building house and digging well in his share of lands. The second plaintiff also obtained a loan on 09.05.2008, on mortgaging his share of land. The 5th defendant was given with Srithanas, at the time of her marriage, equal to her share of land. Hence, prayed for dismissal of the suit.
5. Based on the above said pleadings, the trial Court has framed the 6/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 03:59:40 pm ) AS No. 553 of 2019 following issues:
(i) Whether the plaintiff is entitled to partition decree, as prayed for?
(ii) Whether the plaintiff is entitled to separate possession of the suit properties?
(iii) Whether the plaintiff is entitled to get declaration relief in respect of partition deed dated 17.08.2009?
(iv) Whether the plaintiff is entitled to get permanent injunction?
(v) Is it true to say that oral partition has already effected?
(vi) Defendants contention that is true to say that the suit properties has been enjoyed by both the parties as separately?
(vii) To what any other relief is entitled?
6. During the trial on the side of the plaintiffs, the second plaintiff/Sundaram himself was examined as PW1, one Kaliappan was examined as PW2, one Arumugam was examined as PW3, one P.Dhanapal was examined as PW4 and one G.Manivannan was examined as PW5, and exhibits Ex.A1 to Ex.A9 were marked. On the side of the defendants, the first defendant 7/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 03:59:40 pm ) AS No. 553 of 2019 himself was examined as DW1, one Peraman was examined as DW2, one R.Ponnusamy, Branch Manager, SBI, Thoppur was examined as DW3, one R.Perumal, Secretary, PACB, Kanikaranahalli was examined as DW4, one M.K.Abiandan, VAO, Kanikaranahalli was examined as DW5, one R.Sivasakthivel was examined as DW6, one Subramanian was examined as DW7 and one Selvam was examined as DW8 and exhibits B1 to B28 were marked.
7. Findings of the trial Court:- PW1/second plaintiff stated in his proof affidavit that since no partition was effected, the plaintiffs and the defendants 1 to 5 have jointly executed the sale deed. PW1 himself admitted during cross examination that the property sold to the Senthamarai Educational Trust for construction of college of his father who purchased it through the sale deed. The admitted evidence of PW1 about the first plaintiff ownership of the property transferred in the sale deed dated 05.11.2008 (Ex.A1) and the same is corroborated with the evidence of PW5, shows that the contents of the defendants 1 to 4 that the property transferred under the Sale deed Ex.A1 is the 8/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 03:59:40 pm ) AS No. 553 of 2019 property of the first plaintiff, who was allotted the same in the partition. Therefore, the joint execution of the sale deed Ex.A1 could not be construed that the property covered under the Ex.A1 is the undivided joint family property and that no partition was effected. During the cross examination, PW2 to PW4 have admitted the fact that the plaintiffs and the first defendant are living separately. Therefore, the evidence of PW2 to PW4, that the partition has not been effected could not be relied upon. As per Ex.A3 is the patta stands in the name of the first plaintiff for the lands in S.Nos.397, 406/2 and 407/1 in Thoppur Vilage. If the properties are joint family properties without partition they should have been shown in the plaint schedule. But they have not been shown in the plaint schedule, since these properties were already allotted to the first plaintiff. Therefore, the issuance of pattas in the name of the plaintiffs and the first defendant for the joint family property cannot be considered as a conclusive proof of documentary evidence, to arrive at a conclusion that partition was effected among them. The claim of the defendants 1 to 4 about the oral partition that was effected about 30 years back in the presence of Muthusamy Gounder are sufficiently corroborated by the evidence of DW2. The 9/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 03:59:40 pm ) AS No. 553 of 2019 issuance of patta in the name of the first defendant for some of the suit properties and also loan transaction and obtaining of electricity service connection for the houses and the wells in suit properties in the name of the first defendant. Conclusively establish the fact that the oral partition ought to have been held in respect of the joint family properties of the defendants 1 to 5 and the suit properties were allotted to the share of the first defendant. Therefore, it is stated that the suit properties were alloted to the first defendant in the oral partition, the first defendant could be alone the owner of the suit properties.
8. The learned counsel for the appellants/plaintiffs would submit that the joint family properties in Ex.A1 was sold in favour of Senthamarai Ramanujam Educational Service Trust by the plaintiffs and the defendants 1 and 5 under the registered sale deed, which implies that till the date of execution of the sale deed in the joint family properties have been jointly enjoyed by the plaintiffs and the defendants. The oral partition pleaded by the first defendant before 30 years back is not sufficiently proved by the defendants that even it could not have been effected at the age of 17 years of the second plaintiff and 15 years of 10/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 03:59:40 pm ) AS No. 553 of 2019 the third plaintiffs respectively. At the stage of minors, the first and second plaintiffs will not be a party of the partition. As per the evidence of DW1, the Ex.A1 sale deed is the property allotted to the first plaintiff and while there is a documentary proof is in existence, it is wrong in holding that the property in Ex.A1 is the property allotted to the first plaintiff. The defendants 2 to 5 need not to sign in the sale deed which executed in favour of the Senthamarai Ramanujam Educational Service Trust and the defendants have estopped to say that the property mentioned in Ex.A1 is the separate property of the first plaintiff. The evidence of PW5 reveals that the persons who are all having interest over the property made them as a party in the sale deed.
9. The learned counsel for the appellants further would submit that no mortgage deed was marked as document in which the schedule of property shows about the particulars of land to be mortgaged. In the tractor loan only the mortgage deed will be executed and in the agricultural loan there is no such mortgage deed is necessary. The mortgage loan was sanctioned only with regard to S.Nos.452 and 452/1C stands in the name of one Kannammal, who is the 11/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 03:59:40 pm ) AS No. 553 of 2019 wife of the first defendant as she had purchased the property by way of sale dee. In this regard, DW3, who is the Manager of State Bank of India, Thoppur Village had deposed that for the land in S.Nos.406/1, 453/1B and 453/3C, the suit schedule mentioned property, the loan was not sanctioned. Therefore, it is stated that the first defendant is not enjoying the said property separately, for that reason only he had not filed the tractor loan mortgage deed as a document. The trial Court was wrong in holding that, merely on signing in the sale deed by all parties in Ex.A1, which is the sale deed could not be construed that the property covered under Ex.A1 is the undivided joint family property and that no partition was effected.
10. It is further submitted that the trial Court was wrong in holding that the DW2 had deposed that before 32 years during the lifetime of Muthusamy Gounder, the oral partition was effected, in the presence of Manicka Naicker, Chinnathambi, and Jadayan. But, nobody were examined as witness to prove that the property mentioned in the plain schedule is the joint family property. As per the evidence of DW2 that he had arranged for partition in respect of 12/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 03:59:40 pm ) AS No. 553 of 2019 properties in S.Nos.406/1, 453/1B and 453/3C and the same was alloted in favour of defendants 1 to 4 and to give strengthen to the partition deed dated 17.08.2009 executed among the defendants 1 to 4, he had deposed as if the partition was effected regarding the suit schedule properties before 30 years itself. As per the evidence of DW7, the service connection was issued in S.Nos.451/3 and 407/2 in the name of the second plaintiff, which cannot be conclusive proof that the said property was separately owned by the second plaintiff. The trial Court was wrong in holding that, only on granting patta's and electricity service connection for the houses and wells in the name of the first defendant, the suit for partition was dismissed. It is submitted that the partition deed itself was created with intend to do defraud the shares legally to be allotted to the plaintiffs and the same is not binding on the plaintiffs. The evidence of PW1, had completely neglected by the trial Court. Further, in his cross examination he had stated that the house belongs to the third plaintiff is in the name of the first plaintiff, which reveals that all the properties were managed by the first plaintiff as Kartha of the joint family properties. The evidence of PW2 one Kaliappan that there was a panchayath was convened in the year 2009 and 13/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 03:59:40 pm ) AS No. 553 of 2019 the participants were Sevathan and others have deposed that the defendants 1 to 4 have agreed for partition and the Village Administrative Officer was also present to measure the properties. However, the first defendant have prevented him from measuring the properties. Therefore, he submitted that the main judgment and decree of the Court below is not legally sustainable and prays to allow the appeal. To strengthen his contention, the learned counsel for the appellants has relied upon the following judgments:
(i) (2020) 14 SSC 436 in the case of Arshnoor Singh Vs.Harpal Kaur and others, to show that even if the property partitioned amongst sons, property inherited by them would remain coparcenary property qua their male descendants upto three degrees below them.
(ii) (2015) 16 SSC 787 in the case of Yellapu Uma Maheswari and another Vs. Buddha Jagadheewararao and others, to show that the document effecting relinquishment of right in respect of immovable property held requires compulsory 14/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 03:59:40 pm ) AS No. 553 of 2019 registration.
(iii) (2013) 10 SSC 211, in the case of V.K.Surendra Vs.V.K.Thimmaiah and others, to show that the absence of the division in the family, held joint family continues as Joint family. In such a situation burden to prove that properties purchased by Karta were not joint family properties but self acquired property held lies on the person claiming so.
(iv) (2013) 9 SCC 152, in the case of Vathsala Manickavasagam and others Vs. N.Ganesan and another, to show that merely because that the property was purchased in son's name, it cannot be held on basis of ipse dixit statement made in written statement that there was a valid gift in son's name without any other evidence supporting that claim.
(v) (2009) 15 SCC 747, in the case of Jai Singh and others Vs. Gurmej Singh, to show that transfer is of 15/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 03:59:40 pm ) AS No. 553 of 2019 his right as a co-sharer in land and right to remain in its exclusive possession till joint holding is partitioned.
(vi) 2009 (5) CTC 380 (SC), in the case of Gajara Vishnu Gosavi Vs. Prakash Nanasaheb Kamble and others, to show that the possession cannot be handed over to vendee unless property is partitioned either by decree of Court in partition suit or by settlement among co-sharers.
(vii) 2002 (1) CTC 523, in the case of A.Ramakrishanan Vs.S.Mallikarjuna Raju and another, to show that the person who purchased moiety of interest in joint family and who is in possession of the property cannot be dispossessed till appropriate relief is obtained for partition and for separate possession of property.
(viii) 2015 (1) MWN (Civil) 589 in the case of 16/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 03:59:40 pm ) AS No. 553 of 2019 Shanmugha Mudaliar (died); S.Jothi and others Vs.Krishnasamy Mudaliar (died); Arumuga Mudaliar and others, to show that at the time of execution of Mortgage Deed, there was no partition between plaintiffs and the defendant, consequently, suit for partition rightly decreed by Courts below.
11. Per contra, the learned counsel appearing for the respondents/defendants would submit that the plaintiffs and the defendants 1 and 5 jointly sold the joint family properties in S.Nos.397, 406/2, 407/1, situated at Thoppur Village in favour of Senthamarai Ramanujam Educational Trust on 05.11.2008. The oral partition was effected between the plaintiffs and the first defendant in the presence of Muthusamy Gounder, who is the father of first plaintiff. The plaintiffs and the defendants are in separate possession and enjoyment of their respective shares and also obtained separate patta. Since the borrowers insisted the first plaintiff and all his children show sign in the sale deed in Ex.A1, the first defendant has put his signature. Ex.B1 is the patta 17/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 03:59:40 pm ) AS No. 553 of 2019 stands in the name of first defendant pertaining to S.Nos.453/1B, 453/3C and 406/1 situated at Thoppur Village in favour of Senthamarai Ramanujam Educational Trust. Ex.B2 to Ex.B4 and Ex.B6 are the pattas standing in the name of the second plaintiff, third plaintiff and the first defendant. The properties mentioned in the above documents have not been included in the plaint schedule. The plaintiffs and the defendants were never in joint possession and enjoyment of the suit properties and from the evidence of defendants side witnesses would clearly proved that the oral partition effected and separate pattas have been issued and all the revenue records were mutated in respect of their respective shares of properties. To strengthen his contentions, he has relied upon the judgment of Hon'ble Supreme Court reported in AIR 2020 SSC 3717, in the case of Vineeta Sharma Vs.Rakesh Sharma, to show that exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as it if had been affected by a decree of a Court, it may be accepted. Another judgment of this Court in S.A.No.2086 of 2004 dated 26.09.2022, in the case of C.Natarajan Vs.Elumalai and the judgments in A.S.No.75 of 2017 dated 07.12.2023, in the 18/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 03:59:40 pm ) AS No. 553 of 2019 case of Jagadesan Vs.Minor Gopinath and others, to show that after the oral partition, separate patta was issued and all the revenue records were mutated accordingly in respect of their respective shares. Then the oral partition effected between the parties cannot be discounted.
12. This Court has considered the submissions made on learned counsel on either side and perused the materials available on record.
13. The points arises for consideration in this appeal are as follows:
(i) Whether the plaintiffs, the first defendant and the 5th defendant are in joint possession and enjoyment of the suit properties?
(ii) Whether there was an oral partition was effected 30 years back by the late Muthusamy gounder in respect of joint family properties among the plaintiffs and the first defendant?
(iii) Whether the plaintiffs are entitled to get the relief of declaration that the partition deed dated 17.08.2009 effected among the defendants 1 to 4 in respect of the suit properties is not valid and not binding on the plaintiffs? 19/32
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14. It is the specific case of the plaintiffs that the plaintiffs and the defendants are in the joint possession and enjoyment of the joint family properties and that they sold a portion of the joint family properties under the sale deed in Ex.A1 dated 05.11.2008 and that eventhough the pattas stands in the name of the plaintiffs and the first defendant separately, would prove that no partition was effected in respect of the joint family properties.
15. It is the specific case of the defendants that the properties which was allotted to the share of the first plaintiff was sold in favour of Senthamarai Ramanujam Educational Trust, since the borrowers insisted that the first plaintiff and all his children should sign in the sale deed. The first defendant has subscribed his signature. Further, their case is that the partition was effected between the plaintiffs and the first defendant before 30 years by the father of the first plaintiff, namely Muthusamy Gounder all the members are enjoying their shares allotted to them.
16. It is an admitted fact that the properties sold under Ex.A1 is also the 20/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 03:59:40 pm ) AS No. 553 of 2019 joint family properties of the plaintiffs and the defendants.
17. On perusal of Ex.A1 shows that the plaintiffs and defendants 1 and 5 were jointly executed a sale deed on 05.11.2008 in respect of S.Nos.397, 406/2, 407/1 in favour of Senthamarai Ramanujam Educational Trust. The recitals shows that the first plaintiff/Kaveriappan has purchased the dry land in S.No.397 by way of registered sale deed vide doc.No.535 of 1974 to an extent of 4 acres and 70 cents and the remaining portion of the dry land in S.No.406/2 to an extent of 15 cents and in S.No.407/1 to an extent of 10 cents have been obtained through patta. From the recitals of Ex.A1, reveals that the land in S.No.397 came to be purchased by the first plaintiff under the sale deed and the remaining properties they were in possession and enjoyment and obtained through patta.
18. PW1 himself admits that the property sold under Ex.A1 to the Senthamarai Ramanujam Educational Trust for construction of college is the property of his father, who purchased it through sale deed. PW5 is the official 21/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 03:59:40 pm ) AS No. 553 of 2019 from the college has deposed that patta for the property mentioned therein at the time of execution of Ex.A1 stands in the name of PW1/Kaveriappan, and that insisted on bringing up the persons having interest over the properties should come and sign in the sale deed. From the evidence of PW1 and PW5 and through Ex.A1 reveals that the properties sold under Ex.A1 is the property of the first plaintiff which was alloted to him and also reveals that from the evidence of PW5 that the college/buyer was insisted that all the legal heirs of the first plaintiff should execute the sale deed, accordingly the plaintiffs 2 and 3 and the defendants 1 and 5 were jointly executed the said sale deed along with the first plaintiff. A mere joint execution of the sale deed could not construed, as that the property mentioned under Ex.A1 is the undivided joint family property and that no partition was effected.
19. At this juncture, it is relevant to refer Section 101 to 103 of the Indian Evidence Act (in short, the Act), which reads as under:
Section 101 of the Act: Burden of proof Whoever desires any Court to give judgment as to any 22/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 03:59:40 pm ) AS No. 553 of 2019 legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Section 102 of the Act: On whom burden of proof lies The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
Section 103 of the Act: Burden of proof as to particular fact The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
20. It is the evidence of PW1 that they have been in joint possession and enjoyment of the suit properties without partition and that even though the pattas are standing in the names separately, but still the joint family properties have not been partitioned. In order to prove the case of the plaintiff that no partition has been effected, relied upon the evidence of other witnesses PW2 to 23/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 03:59:40 pm ) AS No. 553 of 2019 PW4. PW2 is the relative of the first plaintiff and PW3, who is the brother in law of first plaintiff and PW4 is an independent witness. During cross examination PW2 to PW4 categorically deposed that the plaintiff and the first defendant are in enjoyment of the joint family properties and that no partition has been effected among them. However, in cross examination they have categorically admitted that the plaintiffs and the first defendant are living separately. PW3 in his evidence deposed that the plaintiffs and the first defendant are in enjoyment of the suit properties separately and that they are living in separate houses and also cultivating their lands separately. Therefore, the evidence of PW2 to PW4 are not sufficient to show that the partition has not been effected among the parties.
21. Since the PW1 had himself admitted that the first plaintiff and other plaintiffs and the first defendant are living separately in cross examination, but he could not say about the patta numbers of the lands in which they are residing and cultivating. PW1 also could not say about the electricity service connection for the motor pumpset of the well. The initial burden of proof lies on the 24/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 03:59:40 pm ) AS No. 553 of 2019 plaintiffs has not been discharged to show that the suit scheduled properties are the joint family properties and the properties were not partitioned in any manner known to law.
22. DW1/Govindan deposed that after oral partition, the plaintiffs and the first defendant are in separate possession and enjoyment of their shares allotted to them and that he has mortgaged the land situated in Thoppur village in the State Bank of India for obtaining tractor loan and agricultural loan. He has also stated that in his evidence that he has been paying kist for the suit properties and he has also been paying electricity charges for the service connection of his house and motor pumpset. He has also stated about electricity service connection and patta standing in the name of the plaintiffs for the shares allotted to them. Ex.B20 is the sale deed dated 09.05.2008 stands in the name of second plaintiff. Ex.A3 is the patta stands in the name of the first plaintiff for the lands in S.Nos.397, 406/2, and 407/1 in Thoppur Village. Ex.A4 is the patta stands in the name of the second plaintiff pertaining to S.No.451/3 of Thoppur village. The Ex.A5 is the patta pertaining to the properties in S.Nos.453/1A and 453/3A 25/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 03:59:40 pm ) AS No. 553 of 2019 of Thoppur Village stands in the name of the third plaintiff. These properties have been shown as item Nos.5 and 6 in the plaint schedule. Ex.A6 is the patta pertaining to S.Nos.453/1B and 453/3C stands in the name of first defendant. These properties are shown as items Nos.2 and 3 in the plaint schedule. Ex.A7 is the patta relating to S.No.406/1 of Thoppur village stands in the name of first defendant, which has been shown as item No.1 in the plaint schedule. It is pertinent to note that Ex.B1 is the patta passbook stands in the name of the first defendant pertaining to the properties in S.Nos.453/1B, 453/3C and 406/1 of Thoppur village. These properties have been shown as item Nos.1 to 3 in the plaint schedule. Ex.B2 is the patta stands in the name of Sundaram/2nd plaintiff. B3 is the patta stands in the name of Subramani/3rd plaintiff and Govindan/1st defendant. Ex.B6 is the patta stands in the name of the Subramani/3rd plaintiff. Ex.B5 is the joint patta stands in the name of the 2nd plaintiff and paternal uncle pertaining to S.Nos.451/2 of Thoppur village.
23. From the perusal of the above documents would reveals that the pattas for the suit properties have been mutated in the names of the plaintiffs and the 26/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 03:59:40 pm ) AS No. 553 of 2019 first defendant. In this regard, PW1 categorically admitted that the pattas for the lands were issued in their names. It is also seen from the perusal of the above said pattas reveals that pattas have been issued in the name of plaintiffs for the properties which have not shown in the plaint schedule. Therefore, the issuance of pattas in the name of plaintiffs and the first defendant for the joint family property cannot be considered as a conclusive proof of evidence. Ex.B7 series is the receipts (16 nos.) for the payment of kist by the first defendant for lands of patta Nos.177 and 183. Ex.B1 is the patta passbook pertaining to patta passbook pertaining to Nos.177 and 183 and this patta passbook has been issued for the lands in S.Nos.453/1B, 453/3C and 406/1. On perusal of B7 series shows that the first defendant has been paying kist for this lands right from the year 1987 till 2010. These properties are shown as item Nos.2 and 3 and 1 in the plaint schedule. Ex.B9 is the identity card for small margin farmers issued in the name of the first defendant in the year 1992 in respect of the lands bearing S.Nos.177, 406/1, 453/1B and 453/3C, which have been shown as item Nos.1 to 3 in the plaint schedule. Ex.B8 is the Diesel Identity card issued in the name of the first defendant in the year 1990 for installing an oil engine in the lands 27/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 03:59:40 pm ) AS No. 553 of 2019 bearing S.Nos.453/1B and 453/3C. Ex.B10 to Ex.B15 shows that the first defendant has obtained electricity service connection for his house constructed in S.No.453/3C and that he has obtained electricity service connection for the motor pumpset for the well situated in S.No.406/1. The Ex.B16 is the quotation for purchase of tractor by obtaining loan from the State Bank of India, Thoppur Village. Ex.B17 is the legal notice sent by the State Bank of India dated 01.06.2004 to the first defendant and his wife calling upon them to repay the instalment amount with interest for the purchase of the tractors. Ex.B18 is the notice sent by State Bank of India, Thoppur dated 05.05.2011 for repayment of the loan amount. Ex.B19 is the bank passbook issued in the name of the first defendant and his wife in respect of tractor loan. DW3, who is the Manager of the State Bank of India, deposed that the first defendant and his wife obtained tractor loan in the year 1999 in his Bank by mortgaging their lands.
24. It is seen from the evidence of DW3, that the first defendant has deposited adangal pertaining to S.Nos.406/1, 453/1B, 453/1C and 453/3C, which are shown as suit scheduled properties. DW3 further deposed that he has 28/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 03:59:40 pm ) AS No. 553 of 2019 sanctioned loan to the first defendant and his wife after verifying the title over the properties for which records were submitted in the Bank including the loan application and other relating documents were placed as Ex.B21. DW4 is the Secretary in Primary Cooperative Agricultural Society, deposed that the first defendant obtained loan on 31.03.2000 for cultivating his lands bearing S.Nos.453/1B, 453/3C and 406/1. DW5 is the Village Administrative Officer has deposed that the pattas in respect of S.Nos.453/1B, 453/3C and 406/1 have been issued in the name of the first defendant. He has also deposed in his evidence about the issuance of pattas in the name of the first plaintiff and the first defendant in S.No.451/3. He has also stated in his evidence that patta for S.Nos.451/2 and 451/3 have been issued in the name of the 2nd plaintiff. DW6 who is the Assistant Accounts Officer in a Revenue Section of Tamil Nadu Electricity Board, Omalur, deposed that service connection for the well in S.No.406/1 has been given in the name of the 1st defendant. He also deposed about the issuance of electricity service connection No.144 for the well in S.No.453/3B and electricity service connection No.101 for the house constructed in S.No.453/3C. From the documents, which reveals that the 29/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 03:59:40 pm ) AS No. 553 of 2019 electricity service connection No.210 in S.No.253/1A has been issued in the name of the 2nd plaintiff. DW7/Subramanian, Commercial Inspector has deposed that the electricity service connection No.110/7 in S.No.451/3 and service connection No.117 for S.No.407/2 have been issued in the name of the 2nd plaintiff.
25. It is the specific case of the defendants 1 to 4 that the oral partition was effected 30 years back in the presence of Muthusamy Gounder, has been clearly established through the evidence of DW2. From the evidence of DW1 to DW7 and documents from EX.B1 to B26 would reveals that the suit properties were allotted to the first defendant in the oral partition and the parties were enjoying their shares of properties and Revenue Records were also mutated in their favour. The defendants 1 to 4 established the factum that after the oral partition separate pattas were issued and all the revenue records were mutated accordingly in respect of their respective shares. Therefore, the Court below had rightly dismissed the suit in O.S.No.41 of 2009 dated 30.04.2014 and this Court finds no illegality in the impugned judgment and decree passed by the Court 30/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 03:59:40 pm ) AS No. 553 of 2019 below.
26. In the result, the first appeal is dismissed by confirming the judgment and decree dated 30.04.2014 in O.S.No.41 of 2009 on the file of the Principal District and Sessions Judge Dharmapuri. No costs. Consequently, connected Miscellaneous Petition is closed.
01-08-2025 jd Index:Yes/No Speaking/Non-speaking order Internet:Yes Neutral Citation:Yes/No To The Principal District and Sessions Judge, Dharmapuri.
31/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 03:59:40 pm ) AS No. 553 of 2019 M.JOTHIRAMAN J.
jd AS No. 553 of 2019 AND CMP NO. 16678 OF 2019 01-08-2025 32/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 03:59:40 pm )