Madras High Court
Rukmani vs / on 24 February, 2025
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
A.S.No.244 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 24.02.2025
Coram:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
Appeal Suit No.244 of 2022
and CMP.No.8783 of 2022
Rukmani. .. Appellant
/versus/
1.Sampoornam
2.Vijayakumar
3.Padmavathi .. Respondents
Appeal Suit has been filed under Section 96 of C.P.C., praying to set
aside the judgment and decree dated 23.04.2021 made in O.S.No.226 of
2016 on the file of the I Additional District Court, Salem.
For Appellant :Mr.S.S.Rajesh
For Defendant :Mr.V.Raghavachari, Senior Counsel
For Mr.S.Kalyanaraman
JUDGMENT
Challenging the decree and judgment dismissing the suit filed for
partition and declaration of the settlement deed dated 29.06.2015 as null and
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void, the present appeal came to be filed.
2. The plaintiff is the daughter of the first defendant. The defendants 2
to 4 are the wife and children of one Chellappan, who is the brother of the
plaintiff. According to the plaintiff, the suit property is ancestral properties
and she is entitled to 1/3rd share and the property is in joint possession. The
alleged settlement deed executed by the first defendant dated 29.06.2015
not binding on her, hence, the plaintiff sought for partition of ½ share of the
property.
3. The defendants filed written statements denying the right of the
plaintiff. According to them, after the marriage of the plaintiff, she was
never in joint possession of the property. It is the further contention that on
11.03.1971, the first defendant and his son have partitioned the property,
wherein, the property has been alloted to Chellappan and first defendant,
thereafter, the first defendant has executed the settlement deed dated
29.06.2015 in favour of the grandson/third defendant. Similarly, the second
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defendant and the fourth defendant have also released their share in favour
of the third defendant. Mutation is also effected in their favour. Hence,
sought for dismissal of the suit. Hence, opposed the suit
4. In the light of the above pleadings, the following Issues were
framed by the trial Court for consideration:-
(1)Whether there was an oral partition effected between the first
defendant and his son during the year 1971?
(2)Whether the plaintiff is entitled to ½ share in the suit property as
prayed?
(3)Whether the property is the joint family property as stated by the
defendants 1 to 4?
(4)Whether the settlement deed dated 29.06.2015 is true and valid?
(5) Whether the plaintiff is entitled for declaration of the settlement
deed dated 29.06.2015 as not valid?
(6) To what other reliefs, the plaintiff is entitled to?
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5. On the side of the plaintiff, PW-1 and PW-2 were examined and
Ex.A1 and A8 were marked. On the side of the defendants, DW-1 to DW-3
were examined and Exs.B1 to B13 were marked.
6. Based on the oral and documentary evidence and materials placed
on record, the trial Court dismissed the suit on the ground that the property
has been orally partitioned between the first defendant and son and that
apart, the plaintiff is not in possession of the property. Challenging the
judgment and decree, the present Appeal Suit came to be filed.
7. The learned counsel for the appellant submitted that the Trial Court
has non-suited the plaintiff mainly on the basis of her admission and
revenue records. According to him, the oral partition has not been
established in the manner known to law. Therefore, the Trial Court
dismissing the suit is not valid in the eye of law. As per the Hindu
Succession (Amendment) Act, 2005 (39 of 2005), the plaintiff is entitled for
her share in the suit property.
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8. Whereas, the learned counsel for the respondents submitted that the
plaintiff herself has clearly admitted the oral partition and her evidence also
indicate that she was never in possession of the property. Further, the oral
partition is also proved by public documents like patta and other revenue
records, thus, it has to be held that there was a valid partition. Hence, the
plaintiff cannot claim any share under Act 39 of 2005 as alleged by the
plaintiff.
9. In the light of the above submission, the following Points arise for
consideration in this appeal:-
(i) Whether there was partition between the first defendant and third
defendant much prior to the Act 39 of 2005 came into force
(ii) Whether the plaintiff is entitled to any share in the suit property?
Points (i) & (ii)
10. The plaint is proceeded as if the property has been originally
allotted to the first defendant in a partition deed in Ex.B1 dated 11.03.1971.
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According to the plaintiff, the property is ancestral property, therefore, by
virtue of amendment brought under Section 6 of the Act 39 of 2005, she is
entitled to share. Whereas, it is the contention of the defendants that
property is ancestral property allotted to the first defendant in the year 1971,
there was oral partition effected between the first defendant and
Chellappan/father of the third defendant and the parties were enjoying the
property. Though in Act 39 of 2005, proviso to Section 6 makes it clear that
partition ought to have been made only by registered partition, the law has
been interpreted by the Hon'ble Supreme Court in the case of Vineetha
Sharma vs. Rakesh Sharma reported in (2020) 9 SCC 1, wherein, it has been
held that in exceptional cases where plea of oral partition has been
established prior to the Act came into force, i.e., 23.12.2004, such oral
partition supported by any public documents may be relied upon. In that
context, when evidence of PW1 perused, it is the specific stand of the first
defendant that what was allotted to the first defendant under Ex.B1, there
was a oral parition between the first defendant and his son, pursuant to such
oral partition, the parties were enjoying the property separately and
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mutation has also been taken. To substantiate such stand, Ex.B5 and B6
documents filed, when the documents perused same would clearly indicate
that sub-division has been made in favour of the first defendant and his son.
Plan attached to the Ex.B5 also makes it clear that the sub division has been
effected in the name of the Chellappan/first defendant's son. Similarly,
Ex.B6 patta clearly clearly shows that sub division is effected in the name of
first defendant and his son Chellappan.
12. When the above documents seen in the context of the admission
of PW1 in evidence, she has admitted about the division of the property
between the father and son. She also admitted that her brother was in
separate possession pursuant to the said sub division. She has also admitted
about the revenue records, patta issued by the Government. When the
plaintiff herself has clearly and categorically admitted about the oral
partition effected in the year 1971 and she is not in possession of the
property and further, the oral partition is proved by the revenue records and
sub division also effected. Further, plaintiff is married long back and never
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been in possession of the property she cannot claim any share in the
properties, particularly, in view of Vineetha Sharma's case, wherein, it has
been held that exceptional cases where plea of oral partition is supported by
the public document and partition is finally evinced in the same manner as if
it had been affected by a decree of a court, it may be accepted. Therefore,
once the revenue records proves the sub division of the property between
other coparceners which is also admitted by the plaintiff, it has to be
necessary held that oral partition pleaded by the first defendant has been
clearly established. Therefore, this Court is of the view that Act 39 of 2005
will not come into aid to the plaintiff to claim any share. Accordingly, these
points are ordered.
13. In view of the above, this appeal suit stands dismissed. No costs.
Consequently, connected miscellaneous petition stands closed.
24.02.2025
dhk
Index:yes/no
Speaking order/non speaking order
Neutral citation: yes/no
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To
1. The I Additional District Court, Salem
2.The Section Officer
VR Section
Madras High Court
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N.SATHISH KUMAR, J.
dhk
24.02.2025
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