Madras High Court
S.Thangarasu Pillai vs S.Arumugam Pillai (Died) on 4 June, 2025
2025:MHC:1266
S.A.No.103 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 28 / 10 / 2024
JUDGMENT PRONOUNCED ON : 04 / 06 / 2025
CORAM:
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
S.A.NO.103 OF 2021
AND C.M.P.NO.2219 OF 2021
S.Thangarasu Pillai ... Appellant / 1st Respondent /
1st Defendant
Vs.
S.Arumugam Pillai (Died)
1.Selvakumar
2.G.Shanthi ... Respondents 1 & 2 / Appellants /
Plaintiffs
3.Saraswathi Ammal ... Respondent / 2nd Respondent /
2nd Defendant
Jayalakshmi (Died) ... Respondent / 3rd Respondent /
3rd Defendant
4.Manimegalai
5.Balasubramanian
6.Malliga
7.Vasanthi
8.Sivagami
9.Lalitha ... Respondents 4 to 9 /
(Amended as per Order Respondents 4 to 9
in I.A.No.29/2016)
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S.A.No.103 of 2021
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, 1908, praying to set aside the Judgment and Decree made in
A.S.No.69 of 2014 dated December 12, 2019 on the file of the Principal
District Judge, Ariyalur, reversing the Judgment and Decree dated
October 27, 2006 made in O.S.No.65 of 2004 on the file of the
Subordinate Judge, Ariyalur.
For Appellant : Mr.T.R.Rajagopalan
Senior Advocate
for Ms.B.N.Sivagama Sundari
For Respondents : Mr.P.Valliappan
1&2 Senior Advocate
for M/s.P.V.Law Associates
For Respondents
3 to 6 : Served – No Appearance
For Respondent
7 to 9 : Abated vide Order of this Court
dated November 25, 2022
JUDGMENT
This Second Appeal is directed against the Judgment and Decree dated December 12, 2019 passed in A.S.No.69 of 2014 by the 'Principal District Court, Ariyalur' [henceforth 'First Appellate Court' for the sake of brevity and convenience] reversing the Judgment and Decree dated October 27, 2006 passed in O.S.No.65 of 2004 by the 'Subordinate Court, Ariyalur' [henceforth 'Trial Court'].
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2. For the sake of convenience, hereinafter, the parties will be referred to as per their array in the Original Suit. PLAINTIFF'S CASE
3. The plaintiff is the elder brother of the 1st defendant. The 2nd and 3rd defendants are the sisters of the plaintiff and the 1st defendant. The plaintiff worked as an Engineer in several places in the State of Tamil Nadu and he retired from service in 1993. Thereafter, he is residing along with his son at Pennadam. The 1st defendant who is the younger brother of the plaintiff was living along with his father Subbaraya Pillai in the native village - Sendurai and he has been employed as a Village Administrative Officer. The 2nd and 3rd defendants / sisters are already married.
3.1. Late Subbaraya Pillai is the father of the plaintiff and defendants and they have already divided the landed properties on February 14, 1972 by way of registered deed of partition, excluding the Suit Properties which are house and house-sites. It was agreed that the Suit Properties being enjoyed in common as joint family properties, shall be reserved for partition at a later point of tine. The 1st defendant and father - Subbaraya Pillai were residing in the 1st item of the Suit property Page No.3 of 34 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:10 pm ) S.A.No.103 of 2021 and other Suit items were under the control of the Subbaraya Pillai till his death. Around 1995, Subbaraya Pillai died intestate leaving behind the plaintiff and the defendants as his legal heirs. After the death of Subbaraya Pillai, the Suit Properties are under the management of the 1st defendant and as such the Suit Properties are tenancy in common.
3.2. Then, the plaintiff approached the 1st defendant to divide the Suit Properties equally. The plaintiff stated that the sisters should be given a share in terms of money. But the 1st defendant refused for the same and subsequently attempted to alienate some of the Suit items and now he is trying to put up construction in 6th item of the Suit Property. Under such circumstances, the plaintiff demanded partition on March 14, 2004 to divide the Suit properties and the 1st defendant denied the right of the plaintiff by saying that the plaintiff and the other defendants have no right at all over the Suit properties. Hence, the Suit for partition. DEFENDANTS' CASE
4. The first defendant filed written statement and the same was adopted by defendants 2 and 3. The defendants denied the allegations made in the plaint. It is averred that the Suit properties are not joint family Page No.4 of 34 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:10 pm ) S.A.No.103 of 2021 properties and were already divided through a Panchayat comprising Muthukumarasamy Pillai, Subbaraya Pillai, Rathinasabapathy Pillai and others, around the year 1990. To record the same for remembrance, on August 19, 1990, the partition was reduced into a Partition List in the presence of the Panchayatdhars, drafted by one Selvaraj of Sendurai, and duly attested by all the Panchayatdhars after it was signed by the plaintiff and the first defendant. Since then, the plaintiff and the 1 st defendant have been in absolute possession and enjoyment of their respective shares. The plaintiff issued a notice dated November 6, 1990, acknowledging and admitting the same. In pursuance of the partition, a bore-well was erected and an E.B. Service Connection was obtained in the first defendant’s name in respect of Suit Item No.6. A separate Patta has also been issued to the first defendant for the same. The assertion that the house properties / Suit Properties were not divided and continued as joint family property after the partition of the landed properties is false. Thus, the defendant prayed for dismissal of the Suit.
TRIAL COURT
5. At trial, the plaintiff was examined as P.W.1 and Ex-A.1 to Ex-A.3 were marked on the side of the plaintiff. On the side of the Page No.5 of 34 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:10 pm ) S.A.No.103 of 2021 defendants, the 1st defendant was examined as D.W.1 and Ex-B.1 to Ex- B.6 were marked.
6. After completion of trial and hearing both sides, the Trial Court concluded that oral partition has already been taken place in respect of Suit Properties and the same has only been later recorded through Ex- B.1 – Partition List. Accordingly, it dismissed the plaintiff’s claim. FIRST APPELLATE COURT
7. Feeling aggrieved with the Trial Court's Judgement and Decree, the plaintiff preferred an appeal in A.S.No.69 of 2014 before the First Appellate Court. The First Appellate Court after hearing both sides and perusing the documents available on record, held that Ex-B.1 – Partition List is a unstamped and unregistered document under which rights are purportedly created and hence it is inadmissible. The defendants cannot claim any right under Ex-B.1. Ultimately, it concluded that the plaintiff is entitled to preliminary decree for partition and separate possession of 5/12 share in respect of the Suit Properties as prayed in the plaintiff and accordingly, allowed the appeal.
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8. Feeling aggrieved by the Judgment and Decree passed by the First Appellate Court, the 1st defendant has preferred this Second Appeal. The Second Appeal was admitted on August 18, 2021 on the following substantial question of law:
“i. Whether the disposal of the first Appeal by the Court below, without adverting to and considering the reasoning assigned by the Trial Court would vitiate the Judgment, warranting interference of this Court?
ii. Whether the recitals made under Ex.B2 and Ex.B3 would not operate as estoppels, against the plaintiff to challenge Ex.B1 Partition list?
iii. Whether the Court below is erred in not following the recent decision of the Hon'ble Supreme Court reported in 2019 (6) SCC 409, wherein it was held that once it is established and proved that family arrangement / family sentiment has been executed by the party concerned and thereafter he has also been put into possession of the properties allotted to him, even for its non-registration, it would operate as estoppel against the party to the document?
iv. Whether the learned Judge is erred in not adverting to the fact that Ex.B1 family arrangement has been acted upon between the plaintiff and defendants and the same was confirmed by the plaintiff by his Advocate notice under Ex.B2 addressed to the first defendant and to another and that further by his letter under Ex.B3 addressed to his father?Page No.7 of 34
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9. Mr.T.R.Rajagopalan, learned Senior Advocate for Ms.B.N.Sivagama Sundari, learned Counsel on record for the appellant / first defendant would argue that oral partition was conducted in 1990 in respect of the Suit Properties in the presence of panchayatdhars as well as father of the plaintiff and defendants. Later, for remembrance, the same was reduced into a Ex-B.1 - Partition List on August 19, 1990. It is to be noted that partition was not effected under the Ex-B.1; Oral Partition effected already was only recorded through it. He would emphasize on the word 'gphpj;Jf; bfhz;l tpguk;' contained in Ex-B.1 and argue that it denotes earlier partition. Further, he refers to the cross-examination of P.W.1 as well as Ex-B.2 – Legal Notice and Ex-B.3 – Letter wherein the plaintiff has categorically acknowledged and admitted the Panchayat Partition and called upon the first defendant to act upon it and construct a partition wall in the house. To be noted, Ex-B.2 and Ex-B.3 are admitted by the plaintiff. Hence, the plaintiff is estopped from contending contrary to Ex-B.1 to Ex-B.3. Further, the properties were already divided, and the plaintiffs and the defendants are enjoying their respective allotments. He drew attention to Ex-B.4 to Ex-B.6 and argued that the first defendant erected borewell, obtained electricity service and separate Pattas and also Page No.8 of 34 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:10 pm ) S.A.No.103 of 2021 constructed a house in one of the properties allotted to him in the Panchayat Partition, which is the Suit Item No.6 herein. The First Appellate Court failed to appreciate the said facts and erred in concluding that Ex-B.1 is inadmissible for want of registration. The Trial Court rightly appreciated the evidence and dismissed the Suit. The First Appellate Court failed to consider the admissions made in Ex-B.2 and Ex- B.3 as well as the doctrine of estoppel. Accordingly, he would pray to allow the Second Appeal, set aside the Judgment and Decree of First Appellate Court , and confirm the Judgment and Decree of the Trial Court.
9.1. He would rely on the following decisions in support of his contentions:
(i) Kale's Case – Judgment of Hon'ble Supreme Court in Kale Vs. Deputy Director of Consolidation, reported in (1976) 3 SCC 119;
(ii) Ravinder Kaul's Case – Judgment of Hon'ble Supreme Court in Ravinder Kaur Grewal Vs. Manjit Kaur, reported in (2020) 9 SCC 706;Page No.9 of 34
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(iii) Ripudaman's case – Judgment of Hon'ble Supreme Court in Ripudaman Singh Vs. Tikka Maheshwar Chand, reported in (2021) 7 SCC 446.
10. Mr.P.Valliappan, learned Senior Advocate, appearing for M/s.P.V.Law Associates, learned Counsel for the respondents 1 and 2 / legal representatives of the sole plaintiff, would argue that Ex-B.1 being an unstamped and unregistered document is inadmissible in law. The Oral Partition allegedly took place around the year 1990 before execution of Ex-B.1 is not proved by the defendants. Recitals contained in Ex-B.1 would show that it is a document for partition and partition was effected under it. It would clarify that it is not a mere record of any earlier oral partition. In these circumstances, Ex-B.1 ought to have been stamped as per the Indian Stamp Act, 1899 and registered as per the Registration Act, 1908. Further, till date the revenue records in respect of the Suit Properties stand in the name of the father, except for Suit Item No.6. The first defendant being a Village Administrative Officer, mutated revenue records in respect of Suit Item No.6 behind the back of the plaintiff. If really partition was concluded, parties would have been in separate possession of their respective shares and revenue records would have Page No.10 of 34 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:10 pm ) S.A.No.103 of 2021 been mutated. The Trial Court failed to consider the above aspects and erred in dismissing the Suit. The First Appellate Court rightly appreciated the said aspects and allowed the appeal decreeing the Suit. There is no reason to interfere with the same. Accordingly, he would pray to dismiss the Second Appeal, confirm the Judgment and Decree of the First Appellate Court.
10.1. He would rely on the following decisions in support of his contentions:
(i) Roshan Singh's Case – Judgment of the Hon'ble Supreme Court in Roshan Singh Vs. Zile Singh, reported in AIR 1988 SC 881 : MANU/SC/0679/1988 ;
(ii) Bhagwan Das's Case – Judgment of the Hon'ble Supreme Court in Bhagwan Das Vs. Girja Shanker, reported in MANU/SC/3111/2000;
(iii) Yellapu Uma Maheswari's Case – Judgment of the Hon'ble Supreme Court in Yellapu Uma Maheswari Vs. Buddha Jagadheeswararao, reported in 2015 AIR SCW 6184 ;
(iv) Lakshmipathy's Case – Judgment of this Court in A.C.Lakshmipathy Vs. A.M.Chakrapani Reddiar, reported in 2001 (1) CTC 112 ;Page No.11 of 34
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(v) Thirumalai's Case – Judgment of this Court in S.Thirumalai Vs. S.Govindarajan (Died), reported in 2017 (1) CTC 198 ;
(vi) Sankar's Case – Judgment of this Court in Sankar @ Barma Sankar Vs. Sivasekaran @ Barma Sekar, reported in 2020 (2) MWN (Civil) 313 ;
(vii) Saminathan's Case – Judgment of this Court in Saminathan Vs. Sukumar, reported in 2021 (5) CTC 859 ;
(viii)Narayana Reddy's Case – Judgment of this Court in M.Narayana Reddy Vs. G.R.Munivenkata Reddy, reported in 2022 (2) MWN (Civil) 593;
(ix) Chinnappareddigari's Case – Judgment of the High Court of Andhra Pradesh in Chinnappareddigari Pedda Muthylareddy Vs. Chinnappareddigari Venkatareddy, reported in AIR 1969 AP 242 : MANU/AP/0141/1969.
DISCUSSION:
11. This Court has heard on either side and perused the materials available on record in light of the Substantial Questions of Law.
12. Partition is the transformation of joint ownership by all co-owners into separate ownership of each, through the severance of their respective portions by metes and bounds. By partition, joint ownership is brought to an end, and each co-owner receives a distinct portion of the Page No.12 of 34 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:10 pm ) S.A.No.103 of 2021 joint property, wherein the others no longer have any interest. The allottees become the sole owners of their respective allotted portions, and their right to exclusive possession and enjoyment thereof is assured. Partition may be either temporary or permanent. The burden of proving partition lies on the person asserting it. An oral partition is legally valid. Signs such as separate possession, independent dealings with the property, and mutation of revenue records are signs suggestive of partition. In a partition, each co-owner renounces their rights in the properties allotted to the other co-owners, in consideration of receiving exclusive rights to specific property, where the other co-owners have similarly renounced their rights and interests. It is thus a mutual renunciation of rights and does not constitute a transfer of interest from one co-sharer to another. Partition can be carried out through various instruments such as a deed of family settlement, award, partition list etc. An instrument that declares and effects partition of immovable property valued at Rs.100/- or more must be duly stamped and registered as per Law. It is a thin line that separates family arrangement and partition. A family arrangement entered into by members of a family does not necessarily require division by metes and bounds and is often intended to settle disputes or to preserve Page No.13 of 34 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:10 pm ) S.A.No.103 of 2021 peace, security, and harmony among family members who may possess even a semblance of right [See Kale’s Case (cited supra)]. Partition, on the other hand, requires pre-existing rights and a division by metes and bounds. Both family arrangements and partitions can be oral or written. In either case, if reduced to writing for the sake of remembrance, they do not require stamping or registration under the law. But, if such written document of a family arrangement purports to create, assign, extinguish any right, title or interest, in such a scenario, it must be duly stamped and registered [See this Court’s A.C.Lakshmipathy’s Case (cited supra), affirmed by Hon'ble Supreme Court in Korukonda Chalapathi Rao Vs. Korukonda Annapurna Sampath Kumar, reported in (2022) 15 SCC 475]; as regards partition, if such a written document acts as a document for partition rather than a document recording an earlier / completed partition, in such a scenario, it needs to be registered.
13. A Division bench of this Court in P.Kaliappa Gounder
-vs- Muthusamy Mudaliar, reported in 1985 (98) LW 773 explained the concept of partition as hereunder:
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https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:10 pm ) S.A.No.103 of 2021 "7. Before we do the analysis of factual materials, we would like to recapitulate the concept of ‘partition’ of a joint family. The joint ownership of a thing is the right of two or more persons to possess and use it to the exclusion of others; and the thing, with regard to which there is the joint ownership, is called ‘the joint property’. In this joint property, the joint owners do not own anything in specie and every joint owner has got right, title and interest over every piece and parcel of the joint property, subject to the qualification that the quantum of his share in the whole property stands defined in theory and not on ground.
Though joint owners may be content with owning lands in common, yet subsequently one joint owner or some joint owners may conceive the idea of owning the property referable to his or their share for himself or for themselves to the exclusion of the other or the others. This is the reason which motivates the move to get joint property partitioned. The legal term ‘partition’ is applied to the division of lands or properties belonging to joint owners and the allotments amongst them of the parts referable to their shares so as to put an end to community ownership or joint ownership. Mayne says:
“In England ownership as a rule is single, independent and unrestricted. In India on the contrary, joint ownership is the rule and will be presumed to exist until the contrary is proved.” Page No.15 of 34 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:10 pm ) S.A.No.103 of 2021 While individual property appears to be the rule in the West, corporate property appears to be the rule in the East. Though passage of time and change of notions have shaken up this concept both in theory and in practice, yet, in our country and in particular in rural areas, joint ownership is allowed to persist by sufferance of custom and convenience until the bone of contention crops up.
8. Partition is the intentional severance of the joint ownership by an unequivocal expression of an intention to bring out severance in the eye of law and further implementing it by actual division by metes and bounds.
What was held in common as a single property gets converted into a holding in severalty and in specie. Joint ownership turns into ownership in severalty and in specie. It is true that ‘partition’ is not a transfer. But there must be the element of conversion of the joint ownership into ownership in severalty and in specie. Therefore, the essence of partition is that the joint ownership is put an end to and the joint owners come to hold the property in severalty and each in his own individual right. In this country, it is common that not only coparceners of a joint Hindu family but also individuals join or continue together to own property in common. If this common ownership is to be put an end to not only in theory but also in practice, there must be primarily severance of the joint ownership in the eye of law, followed up by actual physical division. We make it clear that in the present Page No.16 of 34 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:10 pm ) S.A.No.103 of 2021 case, we are not concerned with the concept of a bare unequivocal expression of an intention to separate to bring about a division in status in a joint Hindu family. It is not unusual for parties holding properties jointly or in common to have separate enjoyment of portions for the sake of sheer convenience. But such separate enjoyment of convenience cannot be equated to partition in the eye of law and in fact, so as to say that the joint ownership has been put an end to and in its place ownership in severalty or in specie has come into existence. Separate enjoyment for the sake of convenience is one thing and partition in the eye of law is another. The latter carries with it the legal incidents of mutating the joint ownership. The latter has to pass through and satisfy a more rigorous test in law and on facts."
14. This Court will now deal with the present case bearing in mind the above principles. Admittedly, the Suit Properties were joint family properties in the hands of the plaintiff, first defendant and their father in the year 1990. The case of the plaintiff is that the plaintiff, the first defendant and their father already divided their landed properties vide Registered Partition Deed dated February 14, 1972, whereby they also reserved the Suit Properties for later division; that their father passed away intestate in 1995, leaving behind the plaintiff and defendants as his Page No.17 of 34 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:10 pm ) S.A.No.103 of 2021 legal heirs; that thereafter, the Suit Properties were under the management of first defendant, and as such the Suit Properties are tenancy in common; that on March 14, 2004, the plaintiff demanded partition which the first defendant refused denying the rights of the plaintiff and the other defendants and hence, the Suit. The defendants’ case is that the Suit Properties were already divided by means of oral panchayat partition and the same was later recorded vide Ex-B.1 – Partition List dated August 19, 1990; that the plaintiff himself has acknowledged and admitted the same in Ex-B.2 - Legal Notice dated November 6, 1990 as well as in his Ex-B.3 – Letter (undated) and hence the plaintiff’s claim for partition is not sustainable.
15. As stated supra, the burden to prove the alleged Panchayat Partition and pursuant Ex-B.1 – Partition List lies upon the defendants, as it is them who have brought up the plea of partition. Except the first defendant, none was examined to prove the Panchayat Partition / Oral Partition in the year 1990. First defendant relies solely on Ex-B.1 – Partition List. The question now is whether partition was effected under Ex-B.1, or merely a record of earlier partition; to put differently, whether Ex-B.1 is a document for Partition or document of partition. This could be Page No.18 of 34 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:10 pm ) S.A.No.103 of 2021 gathered from the intention of the parties at the time of Ex-B.1, which in turn could be gathered from the recitals contained in Ex-B.1 as well as the attending circumstances.
16. Admittedly, Ex-B.1 is unstamped and unregistered. Ex- B.1 recites that Item No.1 therein is to be enjoyed by plaintiff and Item No.2 therein by the first defendant. There are no mention of any specific particulars, such as four boundaries, measurements, extents, etc., in Ex- B.1. Further, there is a condition that the house is to be divided by a partition wall within 3 months at the cost of both parties therein. No explicit recital about any earlier oral partition and that Ex-B.1 was written to record the same for remembrance is found in Ex-B.1. Further, the future tenses used in Ex-B.1 supports the contention that it is not a document of partition. In short, there is nothing to infer that oral partition was effected before Ex-B.1 and the same has only been documented under it. To be noted, on the date of Ex-B.1, the father (who also had equal rights in the properties that day along with the plaintiff and first defendant) was alive and he has signed as one of the panchayatdhars. For ready reference, entirety of Ex-B.1 is extracted hereunder: Page No.19 of 34
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m.jh.bre;Jiw fpuhkj;jpy; bjw;Fj;bjUtpy; fPH; nky; tPjpf;Fk; tlg[wk; cs;s FoapUg;g[ tPl;oy;Page No.20 of 34
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,jd; efy; MSf;bfhd;W bfhLf;fg;gl;Ls;sJ.
g";rhaj;jhh;fs;
A.Kj;Jf;Fkhurhkp S/o. MWKfg;gps;is/ bre;Jiw T.Rg;guhagps;is S/o. jk;ghgps;is/ bre;Jiw V.,uj;jpdrghgjp S/o. tonty;gps;is/. bre;Jiw vGjpaJ cs;gl (K.bry;tuhR S/o.A.Kj;Jf;Fkhurhkpgps;is/ bre;Jiw” Page No.21 of 34 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:10 pm ) S.A.No.103 of 2021
17. This Court has looked into Ex-A.2 – Letter dated September 26, 1990 as well as Ex-A.3 dated October 15, 1990. In Ex-A.2, the father wrote to the plaintiff saying that the document writer had asked for some clarifications, so a few changes had to be made to their earlier negotiations. He also mentioned that since the matter concerns ‘house and life’, it should be handled with patience and settled fairly, without causing harm to either the plaintiff or the first defendant. He added that if all three of them agreed, there would be no need for anyone else to get involved. Relevant extract from Ex-A.2 is hereunder:
“md;g[kpf;f MWKfj;jpw;F eyk;. eyk; fhz
ehl;lk;.
ek; tPL ghf tp#akhf Kd; ngrpaij
mog;gilahf bfhz;L rpy rPh;jpUj;jk; bra;a ntz;o ,Ug;gjhy; vGj;Jf;fhud; nfl;Fk; nfs;tpf;F gjpy;
,UtUk; ,Ue;Jjhd; brhy;y ntz;o ,Uf;fpwJ.
Mifahy; cd; rpukj;ij vjph;ghuhky; 3 ehs; yPt[ vLj;Jf;bfhz;L bgz;zhlk; fzgjp tPl;Lf;F te;J nrut[k;. ,e;j jlit igdyhf Koe;JtpLk;. tUk;
Kd;Tl;ona vdf;F byl;lh; vGjt[k;. bfhj;jl;il gps;isa[k; njitgl;lhy; miHj;J bfhs;nthk;. tPL thH;f;if gpur;rpid. ,jpy; bghUj;J bra;tjhy; jtW ,y;iy. ,UtUf;Fk; ghjfk; Vw;glhky; jPh;j;Jf;
bfhs;nthk;. Mifahy; cd; rpukj;ij vjph;ghh;f;fhky;
cld; te;J Koj;J bfhs;st[k;. ,jpy; ,t;tst[
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gpur;ridf;F ,lnk ,y;iy. ehk; \tUk;
xj;Jf;bfhz;lhy; ntW vtUf;Fk; ngr ,lkpy;iy.
Mfnt cld; te;J Koj;Jf;bfhs;st[k;.”
18. Further on October 15, 1990, the father wrote Ex-A.3 - Letter, which appears to be a reply to Ex-B.3 – Letter from the plaintiff to the father, proposing three options as alternatives as there are some discrepancy in the division of properties by panchayatdhars - it is unfair, unequal and requires reconsideration in respect of house properties and cow sheds. Though there is no explicit reference to Ex-B.1 when the father talks about division of properties by panchayatdhars, a conjoint reading of Ex-A.2 and Ex-A.3 would suggest that he’s referring to Ex- B.1. For easy reference, Ex-A.3 is extracted hereunder:
“md;g[kpf;f MWKfj;jpw;F eyk;. eyk; fhz ehl;lk;.
cd; byl;lh; fpilj;jJ. tp#ak; mwpe;njd;.
g";rhaj;jhh; Kotpd;go ts;spak;ik Mr;rp tPL epyj;jpw;FaPlhd j';fuhRf;F xJf;fpaJ jtpu kw;w ,l';fis rkkhf gphpj;Jf; bfhs;tJ vd;W ngrp kw;w fhypkidfis ghjpahf gphpj;Jf; bfhLj;Js;shh;fs;.
Mdhy; fl;olkhf cs;s tPL 2 khl;Lf; bfhl;lha; 1
Mf ,itfis kl;Lk; mt;tpjk; gphpf;fhky;
ghugl;rkhf gphpj;Js;shh;fs;. mJ rl;lj;jpw;Fk;
epahaj;jpw;Fk; tpnuhjkhft[k; bghUj;jkw;wjhft[k;
cs;sJ. Mifahy; ehk; ,UtUk; kWghprPyid bra;J
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jpUj;jpf;bfhs;syhk; vd;Wjhd; cdf;F byl;lh;
vGjpndd;. eP mjw;F vd;bdd;dnkh byl;lh;
vGjpdha;. mk;khjphp ntz;lhk;.
1. tlg[uk; tPl;il g{uht[k; ePna
itj;Jf;bfhs;st[k;. bjd;g[uk; tPl;il j';fuhR itj;Jf;bfhs;st[k;. 2 f;Fk; cs;s kjpg;gpy;
tpj;jpahrj;jpYs;s Jifapy; ghjpia j';fuhRf;F bfhLf;ft[k;. mg;go rk;kjk; ,y;iy vd;why;
j';fuhR ghfj;ij eP itj;Jf;bfhz;L Jifia eP bgw;Wf;bfhs;st[k;. vg;go ,Ue;jhYk; MSf;F xU tPL ,Ug;gJ mtrpak;.
2. mg;go gpof;ftpy;iy vd;why; bjw;fhy tPl;oy;
ghjpa[k; bfhl;lhapy; ghjpa[k; tlf;fhy tPl;oy;
ghjpa[khf gphpj;Jf;bfhs;st[k;.
3. ,g;nghJ gphpj;Js;sgo g';if khw;wpf;
bfhs;tJ.
nkw;fz;lgo xJ';fpf; bfhs;tJjhd; eyk;. ,jpy;fz;l 3 mapl;lj;jpy; vjpy; ed;iknah mg;go xJ';fpf;bfhs;st[k;. (P.T.O) -2- rpu";rPtp MWKfj;jpw;F eyk;.
c';fSila eyidjhd; ngRfpwPh;fns jtpu vd;
epyik vd;d Mapw;W/ vdf;Fs;s jhdpak; kfR{y;
nghlt[k;. vd; me;jpa fhyj;jpy; ehd; ,g;bghGJ j';fp ,Uf;ft[k; vd;d Vw;ghL bra;fpwPh;fs; c';fs; byl;lhpy; vy;yhk; c';fs; 2 ghfj;ij kl;Lk; ngRfpwPh;fns jtpu vd; epiyik vd;d Mapw;W. ,g;go vy;yhk; eP';fs;
nfhh;l;L vd;W mof;fo brhy;tjhy; vdf;F cs;s Page No.24 of 34 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:10 pm ) S.A.No.103 of 2021 ghfj;ija[k; ehd; nfl;Fk; epiy Vw;gLk;. mjw;Fk;
Vw;ghL bra;at[k;.
,g;gof;F md;g[s;s T.Rg;guhagps;is 15-1-90”
19. As stated supra, the burden is upon the defendants to prove oral partition. No evidence was adduced to prove the same by the defendants. There is no whisper about any earlier oral partition in Ex-B.1. Nor does Ex-B.1 recite that it is written for remembrance. To be noted, Ex-B.1 is unstamped and unregistered. Ex-B.1 was not acted upon as there arose some difficulties and discrepancies with regard to the same. The parties were not actually allotted any properties under Ex-B.1 and they did not acquire possession of their individual shares. There is no separate possession, separate dealings and mutation of records in respect of the Suit Properties, except for Suit Item No.6. The case of the plaintiff is that first defendant being a Village Administrative Officer mutated the revenue records in respect of Suit Item No.6 behind the back of the plaintiff. In the plaint it is also pleaded that post the demise of the father, the Suit Properties were under the maintenance of the first defendant and that revenue records other than that of Suit Item No.6 till date stands in the name of the father. As stated supra, the burden is upon the defendants Page No.25 of 34 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:10 pm ) S.A.No.103 of 2021 to prove oral partition. But the defendants have not produced any revenue records in respect of other Suit Properties. These circumstances lead this Court to the conclusion that there is no sufficient evidence available on record to prove allotment, separate possession and individual dealing pursuant to the alleged oral partition. Thus, no actual partition took place in pursuance of Ex-B.1. In other words, joint ownership was not severed. Further, Ex-B.1 does not contain any specific particulars about allotment and share. It does not recite about who is allotted which survey number, the extent and the measurements allotted to each etc. Further, the fact that the father went to document writer with Ex-B.1 suggests that the parties did not intend Ex-B.1 to be a document determining their ultimate separate rights and interests. The future tense used in Ex-B.1 ('mile;J bfhs;sntz;oa brhj;jpd; tpguk; mila ntz;oa brhj;jpd; tpguk;') may seem to lead to an inference that it is a document for partition / Partition Deed. But when the facts that Ex-B.1 is unstamped and unregistered, that Ex-B.1 does not contain any specific particulars about the allotment and shares, coupled with Ex-A.2 – Letter, wherein the father has stated that he went to document writer with Ex-B.1 and Ex-A.3, whereby the father has proposed three alternatives to the Page No.26 of 34 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:10 pm ) S.A.No.103 of 2021 plaintiff for division of properties, clears the illusion and clarifies that Ex- B.1 is not a document for partition, but merely an agreement for partition. A partition cannot be effected just like that and it is natural for the parties to have entered into an agreement before the panchayatdhars for peaceful partition. Some property disputes between the plaintiff and the first defendant and the father trying to resolve them amicably could be sensed Ex-A.2 and Ex-A.3 – Letters, which reasons out why was there a need to enter into a partition agreement in front of panchayatdhars. Thus, Ex-B.1 can only be an agreed step towards partition or an agreement for partition, and not a document for partition.
20. Mr.T.R.Rajagopalan, learned Senior Advocate, would rely on Ravindaer Kaur’s Case, which is a case revolving around a memorandum of family settlement, the Hon'ble Supreme Court held that a memorandum which recorded only a pre-existing right in the immovable property settled between the parties does not require registration. Here, as stated supra, Ex-B.1 is not a memorandum of earlier partition but an agreement for partition and hence, Ravindaer Kaur’s Case does not help the defendants.
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21. He would also rely on Ripuduman Singh’s Case, wherein Hon'ble Supreme Court dealt with the question, whether a Compromise Decree in respect of a land which is not the subject matter of the Suit but a part of the settlement between the family members requires compulsory registration in terms of Section 17 (2) (vi) of Registration Act, 1908. The Hon'ble Supreme Court answered the same after inter alia referring to Kale’s Case. This Court is of the view that the question in the case on hand is not related to the one in Ripuduman Singh’s Case. Hence, it does not come to the aid of the defendants in any manner.
22. As regards estoppel, it is true that the plaintiff in his evidence as well as in Ex-B.2 – Legal Notice and Ex-B.3 - Letter, has made a factual admission of the execution of Ex-B.1. There is no specific admission of Ex-B.1 as a Partition List written for remembrance of earlier oral partition. It is the nature and character of Ex-B.1 in question before this Court and the burden to plead and prove their case that Ex-B.1 is a record of earlier oral partition is upon the defendants. As stated supra, the defendants have failed to prove the same. At any rate, the general principle of doctrine of estoppel, which is a rule of evidence, cannot be let Page No.28 of 34 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:10 pm ) S.A.No.103 of 2021 to override statutory requirement of the stamps and registration, unless Ex-B.1 has been acted upon. There is no admission as to Ex-B.1 being acted upon nor is there sufficient evidence available on record to show separate possession, individual dealing, mutation of revenue records or any other evidence to suggest that Ex-B.1 is acted upon. Hence, even while assuming that Ex-B.1 is a document for partition and not a record of earlier oral partition, the doctrine of estoppel cannot be invoked to cure the defect of non-registration and non-stamping.
23. Mr.T.R.Rajagopalan, learned Senior Advocate, would rely on Kale’s Case (cited supra) which speaks about family arrangement. It was held by the Hon'ble Supreme Court that even if a family arrangement which required to be registered was unregistered, it would operate as estoppel against the party who has taken advantage of the family arrangement. But in the case on hand, there is no act in furtherance of Ex- B.1 i.e., Ex-B.1 had not acted upon as stated supra. Hence, Kale’s Case is not applicable to the instant case.
23.1. Thus, this Court is of the view that, in the facts and circumstances of this case, the doctrine of estoppel does not aid the defendants.
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24. As stated supra, Ex-B.1 can at most be an agreed step towards partition or a partition agreement. In such a scenario, the remedy available to the parties is a Suit for Specific Performance or for Partition. Admittedly, no such a Suit has been laid so far. Be that as it may, there is no complete partition effected till date as stated supra. As per Section 6 (5) of the Hindu Succession Act, 1956 as amended by the Hindu Succession (Amendment) Act, 2005 (Act No.39 of 2005), amended Section 6 will not affect any partition that has been effected on or before December 20, 2004. The explanation thereto says that partition means any partition made by Partition Deed duly registered under the Registration Act, 1908 or that effected by a Decree of Court. In view of Vineetha Sharma Principle [laid down by Hon'ble Supreme Court in Vineetha Sharma Vs. Rakesh Sharma, Neutral Citation: 2020 INSC 487], any oral partition before December 20, 2004 if proved is also saved under amended Section 6 (5). In this case, the defendants have failed to prove their plea of oral partition and nor is Ex-B.1 duly registered. In these circumstances, the defendants 2 and 3 are also co-parceners by birth and consequently, the plaintiff’s share in the Suit Properties diminishes to ¼ and hence his claim of 5/12th share in the Suit Properties is not Page No.30 of 34 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:10 pm ) S.A.No.103 of 2021 sustainable. The First Appellate Court has ultimately decreed the Suit in favour of the plaintiff declaring that he has 5/12th share in the Suit Properties by holding that Ex-B.1 is inadmissible and the same is incorrect. As elaborated before, Ex-B.1 is a mere agreement for partition and the same was not acted upon and further, the plaintiff’s share has diminished to 1/4th. Hence, the Judgment and Decree of the First Appellate Court are to be modified to the above extent alone.
25. This Court has gone through the case laws relied on by respondent’s side as well. In view of the above findings, there is no need to discuss the same.
26. From the evidence available on record, it is seen that just before the Suit the first defendant began constructing a house in Suit Item No.6. In view of the above decision of this Court, the first defendant may seek to allot the Suit Item No.6 in his favour. This Court is of the view that, it being a matter of equity, the same shall be decided at the time of Final Decree Proceedings.
27. As regards the Substantial Question of Law No.(i), the First Appellate Court only after considering the Trial Court’s Judgment, Page No.31 of 34 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:10 pm ) S.A.No.103 of 2021 arrived at its decision. Its decision warrants interference only to the extent indicated above.
27.1. As regards the Substantial Question of Law No.(ii), estoppel is not applicable as stated above.
27.2. As regards the Substantial Question of Law Nos.(iii), in the decision in Thulasidhara Vs. Narayanappa, reported in (2019) 6 SCC 409, Oral Partition was established unlike the case on hand and hence, the said decision is distinguishable on facts and not applicable.
27.3. As regards the Substantial Question of Law Nos.(iv), no proof is available to show that Ex-B.1 was acted upon. The plaintiff admitted only the execution of Ex-B.1 and not that it was acted upon. Moreover, it is not a Substantial Question of Law at all in the first place.
27.4. Substantial Questions of Law are answered accordingly. CONCLUSION:
28. Resultantly, the Second Appeal stands partly allowed and the Judgment and Decree of the First Appellate Court declaring 5/12th Page No.32 of 34 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:10 pm ) S.A.No.103 of 2021 share in favour of the plaintiff in the Suit Properties is modified to the extent that the plaintiff is entitled 1/4th share in the Suit Properties. A Preliminary Decree for partition declaring plaintiff's 1/4th share in the Suit Properties is passed in favour of plaintiff. Considering the relationship between the parties, there shall be no order as to costs. Connected Civil Miscellaneous petition shall be closed.
04 / 06 / 2025
Index : Yes
Speaking Order : Yes
Neutral Citation : Yes
TK
To
1.The Principal District Judge
Ariyalur.
2.The Subordinate Judge
Ariyalur.
3.The Section Officer
V.R.Section
Madras High Court, Madras.
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R. SAKTHIVEL, J.
TK
PRE-DELIVERY JUDGMENT MADE IN
S.A.NO.103 OF 2021
04 / 06 / 2025
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