Madras High Court
Rajaraman vs Nagarathinam on 20 January, 2025
S.A.No.636 of 2 017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 19 / 10 / 2024
JUDGMENT PRONOUNCED ON : 20 / 01 / 2025
CORAM :
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
S.A.NO. 636 OF 2017
AND
CMP NO.15691 OF 2017 IN S.A.NO.636 OF 2017
Rajaraman ... Appellant / Appellant /
Plaintiff
Vs.
1.Nagarathinam
2.Valarmathi
3.Jayalakshmi
4.Ravi
5.Sekar ... Respondents / Respondents /
Defendants
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, 1908, praying to set aside the Judgment and Decree dated
February 17, 2016 made in A.S.No.7 of 2014 by the Subordinate Court,
Thiruvarur confirming the Judgment and Decree dated March 24, 2014
made in O.S.No.28 of 2008 by the District Munsif cum Judicial
Magistrate Court, Nannilam.
https://www.mhc.tn.gov.in/judis Page No.1 of 26
S.A.No.636 of 2 017
For Appellant : Mr.A.Arun Babu
For Respondents 1,2,4 & 5 : Mr.A.Muthukumar
For Respondents 3 : Died – Notice dispensed with
vide this Judgment.
JUDGMENT
The Second Appeal is directed by unsuccessful plaintiff against the Judgment and Decree dated February 17, 2016 passed in A.S.No.7 of 2014 by the 'Subordinate Court, Thiruvarur' ['First Appellate Court' for brevity], whereby the Judgment and Decree dated March 24, 2014 passed in O.S.No.28 of 2008 by the 'District Munsif cum Judicial Magistrate Court, Nannilam' ['Trial Court' for brevity] was confirmed.
2. For the sake of convenience, hereinafter, the parties will be referred to as per their array in the Original Suit.
3. The third defendant remained ex-parte throughout and it is represented that she is no more. The appellant / plaintiff had filed a memo dated March 3, 2022 and sought to dispense with the notice to her. Hence, notice to her is hereby dispensed with.
https://www.mhc.tn.gov.in/judis Page No.2 of 26 S.A.No.636 of 2 017 PLAINTIFF'S CASE
4. The plaintiff filed the Original Suit for partition claiming that Item No.1 of Suit Properties belonged to plaintiff’s father - Nadesa Vanniyar while Item No.2 is Nadesa Vanniyar’s lease hold properties owned by third defendant - Jayalakshmi. Nadesa Vanniyar’s wife predeceased him. Nadesa Vanniyar died intestate around 1992, leaving behind his three sons - the plaintiff, the first defendant and second defendant’s husband, Navarathinam. After Nadesa Vanniyar’s demise, revenue records in respect of Item No.1 was mutated to the names of the plaintiff, first defendant and the husband of the second defendant jointly. As regards Item No.2, the plaintiff alone is in possession and enjoyment of it as a cultivating tenant. However, the plaintiff preferred to partition the same with defendants 1 and 2. The defendants 4 and 5 in collusion with defendants 1 and 2, attempted to disturb the plaintiff’s peaceful possession and enjoyment of the Item No.2 on March 29, 2008. Hence, the Suit for partition of his 1/3rd share in Suit Properties. https://www.mhc.tn.gov.in/judis Page No.3 of 26 S.A.No.636 of 2 017 DEFENDANTS' CASE
5. The second defendant filed written statement which was adopted by defendants 1, 4 and 5. The third defendant remained ex-parte throughout.
6. In the written statement, it is averred that the Suit Properties and other properties were orally partitioned 25 years ago during the lifetime of Nadesa Vanniyar and that the parties have been in exclusive possession of their respective shares since then. The plaintiff has deliberately excluded other properties left by father – Nadesa Vanniyar from the Suit; there are some more lease hold properties enjoyed by father - Nadesa Vanniyar which belong to one Radhabai. It is false to aver that the plaintiff alone is cultivating and enjoying the lease hold properties post the demise of Nadesa Vanniyar. The plaintiff has never cultivated Item No.2. Item Nos.1 and 2 were allotted to defendants 1 and 2 in the aforesaid Oral Partition while the plaintiff being the eldest son, was allotted 350 Kuzhies of Nadesa Vanniyar’s self-acquired properties and the lease hold properties that belonged to said Radhabai along with an ancestral house and some other properties. Defendants 1 and 2 are in https://www.mhc.tn.gov.in/judis Page No.4 of 26 S.A.No.636 of 2 017 possession and enjoyment of the Item No.2 and paying the lease amount in kind to third defendant.
6.1. On November 16, 2004, the first defendant purchased the leasehold properties of an extent of 26 Cents in Survey No.117/1, 44 Cents in Survey No.117/3 and 20 Cents in Survey No.117/4 from the third defendant. Thereafter, he sold an extent of 10 Cents in Survey No.117/1 and 5 Cents in Survey No.117/4 to fourth defendant. Further, the first defendant is residing in a thatched house built by him in Survey No.117/3. Similarly, the second defendant purchased leasehold properties of an extent of 13 Cents in Survey No.117/4 and 77 Cents in Survey No.117/5. Thus, all the properties contained in Item No.2 except an extent of 18 Cents in Survey No.117/3 had been purchased by the defendants 1 and 2.
6.2. Further, legal heirs / legal representatives of Nadesa Vanniyar’s three deceased married daughters, are not added as parties to the Suit and hence, it is bad for non-joinder of necessary parties. Further, on March 15, 2005, the plaintiff caused a notice to the defendants demanding partition of Suit Item No.2 as well as the lease hold properties belonging to said Radhabai. However, the latter properties have not been https://www.mhc.tn.gov.in/judis Page No.5 of 26 S.A.No.636 of 2 017 added in the Suit. The Suit is bad for non-joinder of necessary properties and party [Radhabai] as well as partial partition. Further, the plaintiff supressed the Reply Notice sent by defendants 1 and 2. Further, the Suit is not maintainable in the absence of a prayer for declaration in respect of the Sale Deeds through which the defendants 1 and 2 purchased the lease hold properties as null and void. Further, the Suit is barred under limitation. Accordingly, the defendants sought to dismiss the Original Suit.
TRIAL COURT
7. The Trial Court framed the following issues:
“1) Whether the plaintiff is entitled to 1/3 share in Suit Properties?
2) To what other reliefs?” 7.1. To prove the plaintiff’s case, the plaintiff - Rajaraman examined himself as P.W.1, and two other witnesses were examined as P.W.2 and P.W.3, and Ex-A.1 to Ex-A.30 were marked. On the side of the defendants, Defendant Nos.1, 2, 4 and 5 were examined as D.W.1 to D.W.4 respectively and two other witnesses were examined as D.W.5 and D.W.6, and Ex.B.1 to Ex-B.39 were marked.
https://www.mhc.tn.gov.in/judis Page No.6 of 26 S.A.No.636 of 2 017 7.2. Upon hearing both sides and considering the evidence available on record, the Trial Court concluded that the plaintiff failed to prove his case while the defendants have established their case satisfactorily. The Oral Partition is true and that is why the legal representatives of the deceased daughters of Nadesa Vanniyar were not added as parties and some properties allotted to plaintiff in the Oral Partition were omitted. Accordingly, it dismissed the Suit. FIRST APPELLATE COURT
8. Feeling aggrieved, the plaintiff filed an appeal in A.S.No.7 of 2014 before the First Appellate Court, which after hearing both sides and perusing the documents available on record, concurred with the findings of the Trial Court and dismissed the Appeal Suit.
9. Feeling aggrieved, the plaintiff has preferred this Second Appeal.
ARGUMENTS:
10. The contentions of Mr.A.Arun Babu, learned Counsel for the appellant / plaintiff can be summarised as below:
https://www.mhc.tn.gov.in/judis Page No.7 of 26 S.A.No.636 of 2 017
(i) It is settled law that burden of proof always lies upon on the person who sets up the plea of Oral Partition. The defendants have failed to discharge the said burden.
(ii) Lease hold properties owned by Radhabai are not available for partition and hence, the plaintiff did not add them in the Suit.
(iii) No issues were framed with regard to non-joinder of necessary parties and partial partition. Hence, in the event of its conclusion that the Suit is bad for non-joinder of necessary parties and partial partition, the Trial Court ought to have granted an opportunity to the plaintiff to cure the defect. Non-
joinder of necessary parties is not fatal to the Suit. Parties may be impleaded at any point of time either at the instance of the parties or suo moto by the Court.
(iv) The First Appellate Court and the Trial Court erred in dismissing the Suit on technical grounds, without affording an opportunity to cure the technical defects.
https://www.mhc.tn.gov.in/judis Page No.8 of 26 S.A.No.636 of 2 017 10.2. He would pray to allow the Second Appeal, set aside the Judgment and Decree of First Appellate Court as well as the Trial Court, and decree the Suit.
10.3. He would rely on the following decisions in support of his contentions:
(i) Judgment of Hon'ble Supreme Court in Chinthamani Ammal
-vs- Nandagopal Gounder, reported in (2007) 4 SCC 163;
(ii) Judgment of this Court dated April 26, 2019 in Annamalai Padayachi -vs- Muthulakshmi, made in S.A.No.933 of 2005;
(iii) Judgment of this Court in N.Thirumuppa Gowder -vs-
Ponnusamy, reported in MANU/TN/1692/2014;
(iv) Judgment of this Court in Singaravel -vs- Murugesa Udayar, reported in 2014 (1) CTC 797;
(v) Judgment of the Hon’ble High Court of Bombay in Sumitra Anna Aware and Others Vs. Anusaya Rajaram Aware and Others, reported in 2012 (3) Mh.L.J. 649.
https://www.mhc.tn.gov.in/judis Page No.9 of 26 S.A.No.636 of 2 017
11. Mr.A.Muthukumar, learned Counsel for the Respondent Nos.1, 2, 4 and 5 / Defendant Nos.1, 2, 4 and 5 would argue that
(i) There is a lot of variation between Ex-A.1 - Suit Notice and the plaint pleadings. In Ex-A.1, totally 7 items of leasehold properties were listed for partition. Among them Serial No.1 to 4 were owned by third defendant and Serial No.5 to 7 were owned by the said Radhabai. However, in the plaint, Serial No.5 to 7 [Radhabai’s properties] were omitted and instead Suit Item No.1 was added, which was not listed in Ex-A.1. Hence, the Suit is bad for non-joinder of properties and partial partition.
(ii) Plea of Oral Partition can be inferred from the available evidence and the conduct of the parties. Concurrent findings were recorded by both the Courts that Oral Partition is proved.
(iii) There is no Substantial Questions of Law in this Second Appeal.
11.2. He would pray to dismiss the Second Appeal, and confirm the Judgment and Decree of First Appellate Court and the Trial Court.
https://www.mhc.tn.gov.in/judis Page No.10 of 26 S.A.No.636 of 2 017 11.3. He would rely on the Judgment of a learned Single Judge of this Court in Alli Sekar alias Sekar -vs- Ramu, reported in 2020 MLJ 1 319.
DISCUSSION:
12. This Court has heard on either side and perused the materials available on record.
Non-joinder of necessary parties
13. Admittedly, parties are Hindus and the ‘Hindu Succession Act, 1956 ‘['H.S.Act' for short] is the applicable law. Nadesa Vanniyar died intestate in 1992 leaving behind his four daughters, and three sons - the plaintiff, first defendant and second defendant’s husband. The four daughters were married and they passed away leaving behind their legal heirs. Nadesa Vanniyar died intestate leaving behind Item No.1 of Suit Properties as his separate properties. They would devolve upon his legal heirs as per Section 8 of the H.S.Act. Children of predeceased daughters comes under the category of Class-I heirs as per Section 8, but they have not been added as parties to the Suit. There is no pleading as to when Nadesa Vanniyar’s daughters passed away. Further there is no clarity with https://www.mhc.tn.gov.in/judis Page No.11 of 26 S.A.No.636 of 2 017 regard to nature and character of Item No.1 of Suit Properties in the hands of Nadesa Vanniyar. In the plaint, it has been stated to be separate properties but in the evidence as ancestral properties. In general, as per Order I Rule 9 of Code of Civil Procedure, 1908, no Suit shall be defeated for the reason of non-joinder of parties. But the said rule shall not apply in case of a non-joinder of necessary party. In this regard, it is fruitful to refer to the decision of this Court in T. Panchapakesan -vs- Peria Thambi Naicker, reported in AIR 1973 Mad 133, wherein it was held that as far as a Suit for partition and declaration is concerned, all the sharers / interested persons are necessary parties and their non-joinder is fatal to the Suit. Subsequently, the said Judgment was followed by this Court in A. Ramachandra Pillai -vs- Valliammal (died), reported in (1987) 100 LW 486], relevant extract whereof reads thus:
“7.Though O.1, R.9 of the Code of Civil Procedure provides that no suit shall be defeated by reason of mis-joinder or non-joinder of parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of parties actually before it, there is a proviso which says that nothing in that rule will apply to non-joinder of necessary parties. In a suit for general partition, there could be no doubt that all the sharers are necessary parties as mentioned above. Apart from this, the main part of R.9 is only https://www.mhc.tn.gov.in/judis Page No.12 of 26 S.A.No.636 of 2 017 an enabling provision and the Court shall deal with each case with reference to the particular facts in that case. It is in that context, the decision of the Supreme Court in Kanakarathnammal v. Loganatha1, is relevant. In that case, also, the plaintiff filed a suit for declaration and possession on the ground that the properties belonged to her mother and on her death she, as the sole heir, was entitled to the entirety of the properties. The suit was filed against two defendants who claimed that the father of the plaintiff had executed a will under which the first defendant had been appointed as executor and that as such executor he obtained probate of the said will, got possession of the properties and handed over possession to the second defendant therein as directed in the will. Thus the defendants set up a title in respect of the suit properties in the appellant's father. Alternatively they also added that if the properties belonged to the plaintiff's mother, she would not be entitled to claim exclusive title to the same, because by succession, the suit properties would devolve upon the appellant and her two brothers and the appellant's failure to join her brothers made the suit incompetent for nonjoinder of necessary parties. The trial Court held that the mother was the owner of the properties. However, it held that the suit is bad for non-joinder of necessary parties and on that ground the suit was dismissed. On appeal however, the High Court held that the properties belonged to the father. The appeal was dismissed on this ground and therefore there was no necessity to go into the question whether the suit was maintainable or not. On a further appeal, the Supreme Court accepted the contention of the plaintiff that the properties belonged to the mother. However, the Supreme Court held that since she was https://www.mhc.tn.gov.in/judis Page No.13 of 26 S.A.No.636 of 2 017 one of the three heirs of her mother and since she had not impleaded her two brothers to her suit, the suit was liable to be dismissed. The Supreme Court further observed:
“It is true that under Order I, Rule 9 of the Code of Civil Procedure no suit shall be defeated by reason of the mis-joinder or non-joinder of the parties, but there can be no doubt that if the parties who are not joined are not only proper but also necessary parties to it, the infirmity in the suit is bound to be fatal. Even in such cases, the Court can under Order
1. Rule 10, sub-rule (2) direct the necessary parties to be joined, but all this can and should be done at the stage of trial and that too without prejudice to the said parties' plea of limitation. Once it is held that the appellant's two brothers are co heirs with her in respect of the properties left intestate by their mother, the present suit filed by the appellant partakes of the character of a suit for partition and in such a suit clearly the appellant alone would not be entitled to claim any relief against the respondents.” This decision is thus an authority for the position that in a suit for partition, all the sharers are necessary parties and also for the position that the suit is liable to be dismissed for nonjoinder of any one of the parties. In (T. Panchapakesan and others v. Peria Thambi Naicker and others)also, a Division Bench of this Court has taken a similar view by judgment dated 18-7-1972. We are accordingly of the view that the https://www.mhc.tn.gov.in/judis Page No.14 of 26 S.A.No.636 of 2 017 finding of the learned Subordinate Judge on issue No. 10 holding that the suit is not bad for non-joinder of Nagarathinam's heirs is unsound and liable to be set aside.
Accordingly, we hold that the suit is liable to be dismissed for non-joinder of the heirs of Nagarathinam.” 13.1. The defendants in their written statement [Paragraph Nos.4 and 14] has taken a categoric stand that the Suit is bad of non- joinder of necessary parties, namely, legal heirs of the deceased married daughters of Nadesa Vanniyar. Despite the same, the plaintiff has not taken any steps to implead them. Hence, this Court is of the view that the Suit is bad of non-joinder of necessary parties. Non-joinder of necessary properties and Partial Partition
14. On March 15, 2005, the plaintiff issued Ex-A.1 – Suit Notice to the defendants 1 to 3, seeking partition, wherein he has listed 7 items as leasehold properties to be partitioned. Serial Nos.1 to 4 thereof, which are leasehold properties owned by the third defendant, now constitute Suit Item No.2. Serial Nos.5 to 7 thereof, which are leasehold properties owned by the said Radhabai, are not added to the Suit and no explanation was assigned for the same. This Court deems fit to extract the relevant portion of Ex-A.1 hereunder:
https://www.mhc.tn.gov.in/judis Page No.15 of 26 S.A.No.636 of 2 017 “gjpt[ jghy; xg;g[jy; ml;ila[ld; ehs; 15.03.2005 jpU. kh. ghhp/ gp.v!;.rp./ gp.vy;./ 1) ehfbuj;jpdk;
tHf;fwpOh; f/bg.enlr td;dpah;
ed;dpyk;. bjw;F bjU/
nrjdpg[uk;/
tpf;ughz;oak; mO;ry;/
Flthry; jhYf;fh.
2) tsh;kjp
f/bg. etbuj;jpdk;
bjw;F bjU/
nrjdpg[uk;/
3) b$abyl;Rkp mk;khs;
f/bg. bu';fbuj;jpdk;
mf;uQhuk; ma;ah;
nrjdpg[uk;/
vk;fl;rpf;fhuh; Flthry; jhYf;fh
tpf;ughz;oak; mO;ry; nrjdpg[uk; fpuhkj;jpy; trpf;Fk; enlr td;dpah; Fkhuh; ,uh$huhkd; vd;gth; bfhLj;j tpguj;jpd; nghpy; fPH;fz;l mwptpg;g[ mDg;gg;gLfpwJ.
j';fspy; Kjy; egh; vk;fl;rpf;fhupd;
rnfhjuh;. 2k; egh; vk;fl;rpf;fhupd; rnfhjuh; etbuj;jpdk; vd;gthpd; kidtp Mthh;fs;.
,we;Jnghd enlr td;dpaUf;F vk;fl;rpf;fhuiu nrh;j;J 3 Mz; kfd;fSk;/ 4 kfs;fSk;
gpwe;jdh;. vk;fl;rpf;fhunu \j;j kfdhthh;. jfg;gdhh; ,Uf;Fk;nghnj vk;fl;rpf;fhuh; jdJ rnfhjhpfs; 4 ngh;fSf;Fk; jpUkzk; bra;J itj;Js;shh;. nkny Twpa enlr td;dpah;
vd;gth; Fj;jif epy';fis rhFgo bra;J te;Js;shh;. fPH;fz;Ls;s epy';fis jtpu ntW epy';fs; vk;fl;rpf;fhuh; jfg;gdhh; enlr https://www.mhc.tn.gov.in/judis Page No.16 of 26 S.A.No.636 of 2 017 td;dpaUf;F fpilahJ. vk;fl;rpf;fhUk; j';fspy; 1/ 2 egh;fSk; Tl;lhf Fj;jif epy';fis rhFgo bra;J tUfpd;wdh;. jfg;gdhh; ,we;J 7 my;yJ 8 tUl';fs; fHpj;J j';fspy; 2k; eghpd; fztUk; ,we;Jtpl;lhh;.
fPH;fz;Ls;s epy';fspy; 1 Kjy; 4 mapl;l epy';fs; j';fspy; 3k; egUf;F brhe;jkhdjhFk;. mitfs; jfg;gdhh; fhyk; Kjw;bfhz;L Fj;jif rhFgoapy; ,Ue;J tUfpwJ. 5 Kjy; 7 mapl;l brhj;Jf;fs; brd;idapid nrh;e;j uhjhgha; vd;w ,jpy; nruhj \d;whk; egh;
xUtUf;F brhe;jkhdjhFk;. mita[k; Fj;jif epy';fshFk;. me;j epy';fSk; Tl;L Fj;jif rhFgoapy;jhd; cs;sJ. nkw;go uhjhgha;
vd;gthplk; 7 g[y vz;fspy; fz;l brhj;jpid enlrd; vd;gth; Fj;jif rhFgo bra;J mjpy;
4 mapl;l brhj;Jf;fis nkw;go enlrd;
fhyj;jpnyna epyr;brhe;jf;fhuUf;F tpl;Lf;bfhLf;fg;gl;Ltpl;lJ. vdnt uhjhgha;
epy';fspy; 3 mapl;l brhj;Jf;fs; kl;Lnk Fj;jif rhFgoapy; ,Ue;J tUfpwJ. uhjhgha;
vd;gtUf;F brhe;jkhd epy';fis rhFgo bra;J tUtjw;F tptrhapfs; ml;il tH';fg;gl;ljpy; vk;fl;rpf;fhuh; bgaUf;F nkw;go ml;il tH';fg;gl;Ls;sJ. Fj;jif epy';fs; bghUj;J jfg;gdhh; enlrd; vt;tpj Vw;ghLk; bra;ahky; ,we;Jtpl;lhh;.
https://www.mhc.tn.gov.in/judis Page No.17 of 26 S.A.No.636 of 2 017 vk;fl;rpf;fhuh; ,dpa[k; Fj;jif epy';fis Tl;lhf mDgtpf;f tpUk;gtpy;iy. j';fspd; 3k;
egh; 1/ 2 egh;fSld; VnjDk; Mtz';fs;
Vw;gLj;jpdhy; mJ vk;fl;rpf;fhuiu fl;Lg;gLj;jhJ. Kjy; 4 mapl;l brhj;Jf;fs;
bghUj;J nkw;go 3k; egh; Mtzk;
Vw;gLj;jpdhYk; bry;yf;Toajy;y. tUtha;
ePjpkd;wk; tHpahfj;jhd; rhFgoahsh;
chpikapid ePf;f Koa[k;. vdnt j';fspy; 3k;
egh; vt;tpj xg;ge;jKk; 1/ 2 egh;fSld; bra;a ntz;lhk; vd ,jd; \yk;
nfl;Lf;bfhs;sg;gLfpwPh;fs;.
,e;j mwptpg;g[ fz;l 10 jpd';fSf;Fs;
j';fspy; 1/ 2 egh;fs; fPH;fz;Ls;s brhj;Jf;fspy; vk;fl;rpf;fhuUf;Fs;s 1/3 ghf tPjj;jpid (Fj;jif brhj;J) gphpj;J bfhLf;Fk;go nfl;Lf;bfhs;sg;gLfpwPh;fs;.
R\fkhd Kiwapy; vk;fl;rpf;fhuh; ghfj;jpid jdpahf gphpj;J bfhLf;fhtpoy; chpa ePjpkd;wj;jpy; tHf;F bjhlh;e;J ghpfhuk; njl nehpLk; vd;gij mwpat[k;.
brhj;J tpguk;
Flthry; jhYf;fh rPjf;fk';fsk; tl;lk;
nkyg;gplhif fpuhkj;jpy; cs;s https://www.mhc.tn.gov.in/judis Page No.18 of 26 S.A.No.636 of 2 017
1) g[y vz; 117/1 y; 0.10.5 Vh;!; eO;ir
2) g[y vz; 117/3 y; 0.25.5 Vh;!; eO;ir
3) g[y vz; 117/4 y; 0.13.5 Vh;!; eO;ir
4) g[y vz; 117/5 y; 0.31.5 Vh;!; eO;ir Flthry; jhYf;fh nrjdpg[uk; fpuhkj;jpy;
msthfpa[s;s
5) g[y vz; 58/16 y; 0.20.0 Vh;!; eO;ir
6) g[y vz; 63/4 y; 0.16.0 Vh;!; eO;ir
7) g[y vz; 14//5 y; 0.02.0 Vh;!; eO;ir ”
15. Ex-A.1 is the foundation of the plaint. If some properties are omitted there is no bar to add them in the plaint. But when some properties are categorically listed in the Suit Notice for partition, their omission in the plaint without any due reason is not acceptable. It is settled law that in a Suit for partition, all the properties have to be included in the Suit. As stated supra, in this case, the plaintiff has not included the leasehold properties of Radhabai described as Serial Nos.5 to 7 in Ex-A.1. The plaintiff cannot omit and seek partition only in respect of certain properties as per his discretion [See Alli Sekar’s Case (cited supra)]. Hence, the Suit is bad for not just non-joinder of necessary properties but partial partition as well.
16. P.W.1 in his evidence has deposed that Serial No.1 (Survey No.6/17) in Suit Item No.1 was purchased in his wife’s name https://www.mhc.tn.gov.in/judis Page No.19 of 26 S.A.No.636 of 2 017 from his father – Nadesa Vanniyar; that Serial No.2 (Survey No.7/16B) thereof had been sold to one Veeramani by his father, but Sale Deed is yet to be executed; that Serial No.3 (Survey No.23/12) had been sold by him in favour of one Sidhar. However, the plaintiff did not file any document in support of his evidence. The above evidence supports the defendants’ case of Oral Partition. If really, Serial No.1 to 3 in Suit Item No.1 had not been allotted to the plaintiff, he would not have been able to sell the same to others in the absence of the co-sharers.
17. Further, there is no documents evidence available on record to show that the plaintiff is in possession and enjoyment of the Suit Item No.2. The plaintiff filed Ex-A.11 to Ex-A.25. There is nothing available on record to suggest that the said documents are related to Suit Item No.2. The First Appellate Court in Paragraph No. 12 of its Judgment after an elaborate discussion found that the plaintiff is not in possession and enjoyment of the Suit Item No.2. Further, the original owner Jayalakshmi / third defendant, in her Reply Notice to the plaintiff dated March 22, 2005 (Ex-B.3 = Ex-B.36), has stated that except the Thopu of 18 Cents in R.Survey No.117/3, all the other properties contained in Suit Item No.2 were initially cultivated by plaintiff’s father-Nadesa Vanniyar https://www.mhc.tn.gov.in/judis Page No.20 of 26 S.A.No.636 of 2 017 and later by the first defendant and the second defendant’s husband, after Nadesa Vanniyar divided his properties and allotted Suit Item No.2 except the said Thopu to them. Further stated that, vide Exs-B.33 & B.38 - Sale Deeds dated November 16, 2004 and September 29, 2004, she sold Suit Item No.2 except the said Thopu to defendants 1 and 2. Relevant extract of Ex-B.3 = Ex-B.36 reads thus:
“2. That Natesan was the cultivating tenant of the lands except the Thopu'of about 18 cents in R.S. No. 117/3, Even while Natesan was alive, it seems that he divided his properties namely rights and possession of lands amicably and caused his sons to cultivate the same as per the said arrangement. The lands mentioned items 1 to 4 in your notice is one such lands.
3. That as per their arrangements, his sons Nagarathinam and Navarathinam have been contributing their physical labour in the cultivation of the said lands even while Natesan was alive and paying rent. That they continued even after the demise of Natesan.The said Nagarathinam and Navarathinam were cultivating the properties 1 to 4 and have been paying the rent to our client. Your client Rajaraman has not cultivated items 1 to 4 and not paid rent. Hence the said Nagarathinam and Navarathinam were the persons who succeeded to the https://www.mhc.tn.gov.in/judis Page No.21 of 26 S.A.No.636 of 2 017 tenancy rights as far as the items 1 to 4 (even assuming that there was no division previous to death of Natesan) and paying rent to our client.
4. Navarathinam died and his wife Valamarthi has been contributing physical labour and cultivated the lands jointly with Navarathinam and paying rent.
5. They wanted to purchase the lands which they have been cultivating. Hence our client executed separate sale deeds as wished by them, and transferred the properties by sale deed for consideration on 16.11.2004 and .29.9.2004. The said Nagarathinam and Valarmathi have become absolute owners of the properties as per their respective sale deeds.”
18. Pursuant to Ex-B.33 and B.38 – Sale Deeds, revenue records were mutated in the names of first defendant and second defendant in respect of their respective portions. Thereafter, first defendant sold an extent of 10 Cents in Survey No.117/1 and 5 Cents in Survey No.117/4 to fourth defendant – Ravi vide Ex-B.32 - Sale Deed dated May 31, 2005. Further, on the same day first defendant executed Ex-B.30 – Sale Deed in respect of an extent of 6 2/3 Cents in Survey No.117/4 in favour of fifth defendant - Sekar. Evidence available on https://www.mhc.tn.gov.in/judis Page No.22 of 26 S.A.No.636 of 2 017 record shows that revenue records were also mutated accordingly in the names of the purchasers.
19. P.W.2 - Kaliyamoorthi in his evidence has deposed that the sons of Nadesa Vanniyar were managing the properties separately.
P.W.3 also deposed about the purchase of portions of Suit Item No.2 by defendants 4 and 5 from first defendant. Conjoint reading of the evidence would lead this Court to strong inferences, which in turn would lead to strong presumptions, which in turn, in view of Section 3 of the Indian Evidence Act, 1872, leads to the conclusions that Oral Partition had been effected, that Suit Item No.2 excluding the said Thopu was allotted to first defendant and second defendant’s husband; that Serial Nos.1 to 3 in Suit Item No.1 and some other properties not included in the Suit were allotted to the plaintiff. 1st defendant and 2nd defendant's husband being exclusive title holder, injunction cannot be granted against them. The Trial Court as well as the First Appellate Court after considering the evidence available on record arrived at a factual finding that Oral Partition took place whereby Suit Item No.2 was allotted to the first defendant and second defendant’s husband, excluding the said Thopu. This Court does not find any reason to deviate from the concurrent findings. The Second Appeal https://www.mhc.tn.gov.in/judis Page No.23 of 26 S.A.No.636 of 2 017 does not have any question of law, much less, Substantial Question of Law. Therefore, it is liable to be dismissed. There is no quarrel with the rulings cited on either side.
CONCLUSION:
20. Resultantly, the Second Appeal is dismissed. Keeping in mind the facts and circumstances of the case, there shall be no order as to costs. Connected Civil Miscellaneous petition shall be closed.
20 / 01 / 2025
Index : Yes
Speaking Order : Yes
Neutral Citation : Yes
TK
https://www.mhc.tn.gov.in/judis Page No.24 of 26
S.A.No.636 of 2 017
To
1.The Subordinate Court
Thiruvarur.
2.The District Munsif cum
Judicial Magistrate Court
Nannilam.
https://www.mhc.tn.gov.in/judis Page No.25 of 26
S.A.No.636 of 2 017
R. SAKTHIVEL, J.
TK
PRE-DELIVERY JUDGMENT MADE IN
S.A.NO. 636 OF 2017
20 / 01 / 2025
(2/2)
https://www.mhc.tn.gov.in/judis Page No.26 of 26