Madras High Court
G.Shanthi … vs Anjalam on 1 July, 2025
AS.No.285 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.07.2025
CORAM
THE HONOURABLE MR.JUSTICE M. JOTHIRAMAN
AS.No.285 of 2020
and C.M.P.No.3921 of 2020
G.Shanthi … Defendant No.7/Appellant
Vs.
1.Anjalam
2.Jothi
3.Vijay
4.Thangadurai
5.C.Velayutham
6.C.Murugesan
7.C.Shanmugam
8.S.Kanagaraj
9.V.Sangeetha
10.S.Sudarvizhi
11.C.Manikandan … Defendants/Respondents 5 to 11
Prayer : This First Appeal is filed under Section 96 r/w. Order 41
Rule 1 Code of Civil Procedure 1908, against the judgment and decree
dated 31.08.2018 passed in O.S.No.73 of 2011 by the II Additional
District Court, Salem.
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AS.No.285 of 2020
For Appellant : Mr.D.Govinda Reddy
For Respondents : Mr.S.Kausik
for Mr.K.Sathish Kumar
for R1, R2, R4 to R6 and R11
JUDGMENT
The unsuccessful seventh defendant has preferred this appeal
against the judgment and decree dated 31.08.2018 passed in
O.S.No.73 of 2011 by the II Additional District Court, Salem.
2. The parties are referred to according to their litigative status
before the trial Court.
3. The suit is filed for declaring that the sale deed dated
28.03.2011 executed by the defendants 3 to 6 in favour of the seventh
defendant is null and void and not binding and to pass preliminary decree
to divide the suit property into six equal shares and allot 3/6 shares to
them and separate possession thereof.
4. The trial Court decreed the suit and passed a preliminary decree
for partition by allotting 3/6 share in the suit property to the plaintiffs and
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the eighth defendant together. It was also declared that the sale deed
dated 28.03.2011 is not void, but it will not bind the shares of the
plaintiffs in the suit property and it is valid only in respect of share of the
third defendant in the suit property.
5. The brief case of the plaintiffs is as follows:-
The suit property belonged to one Chinnusamy Padayachi and
he purchased the same from one Kamalamammal and it consists of four
items. He has got three sons, namely, the defendants 1 to 3 and two
daughters, namely, the second plaintiff, Jothi and one Indiragandhi, who
died about 10 years ago leaving behind the plaintiffs 3 and 4 as her legal
heirs. The defendants 4 to 6 are the son and daughters of the third
defendant. The said Chinnusamy Padayachi died intestate about 25 years
ago leaving behind the plaintiffs 1 and 2 and another daughter,
Indiragandhi and the defendants 1 to 3 as his legal heirs. The plaintiffs
and the defendants are enjoying the property jointly without any
hindrance. The defendants 3 to 6 have executed a registered sale deed
dated 28.03.2011 in favour of the seventh defendant. The said sale deed
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is not valid and the alleged oral partition mentioned in the document is
false. Hence, the suit.
6. A written statement was filed by the second defendant and was
adopted by the first defendant as follows:
It is true that the suit property belonged to Chinnusamy Padayachi
and after the death of Chinnusamy Padayachi, the plaintiffs 1 and 2 and
the defendants 1 to 3 are entitled to each 1/6 th share and the plaintiffs
3 and 4 are together entitled to 1/6th share. They have no objection to
pass the judgment and decree as prayed for by the plaintiff.
7. The brief case of the seventh defendant is as follows:-
The husband of Indiragandhi has not been added as party and
hence, the suit is bad for non-joinder of necessary party. The suit
property is the ancestral joint family property of the defendants 1 to 3.
After the demise of Chinnusamy Padayachi, the plaintiffs 1 and 2 and
Indiragandhi orally relinquished their share and thereafter, the
defendants 1 to 3 partitioned the suit property under oral partition. In the
oral partition, the third defendant was allotted 1/3rd share and he sold
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1.02 acre and 1/3rd share in the well along with 1/3 rd share in EMP set
fitted with the well situated in S.Nos.105/1A1 and 106/6B, at
Kolathukombai Village, Valapaddy Taluk, in favour of the seventh
defendant under the sale deed dated 28.03.2011. Eversince, the seventh
defendant is in possession and enjoyment of the suit property so
purchased by him. The seventh defendant is a bonafide purchaser of the
property. There are two thatched sheds and one tiled house in the suit
property and they are not shown in the description. Hence, the plaintiffs
are not entitled to any share.
8. The seventh defendant by way of an additional written
statement has stated that the plaintiffs have not added the ancestral joint
family property. Further, Chinnusamy Padayachi died in the year 1984
and succession got open even in the year 1984 and therefore, only
Section 6 of the Hindu Succession Act applies and the suit is barred by
limitation. The defendants 1 to 3 divided the suit property under the oral
partition in the year 1987. The third defendant sold the property with
specific boundaries to the seventh defendant. Hence, he prayed for
dismissal of the suit.
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9. Based on the above pleadings, the trial Court has framed the
following issues:
(i) Whether the plaintiffs are entitled to a share in the suit
property?
(ii) Whether the plaintiffs 1 and 2 and Indiragandhi orally
relinquished their share in the suit property?
(iii) Whether the seventh defendant is a bonafide purchaser
for value?
(iv) Whether the plaintiffs are entitled for the relief of
partition as prayed for?
(v) Whether the plaintiffs are entitled to the relief of
declaration that the sale deed dated 23.08.2011 is null and
void or not?
(vi) To what relief, if any, the plaintiffs are entitled to?
10. During trial, on the side of the plaintiffs, the second
plaintiff/Jothi was examined as P.W.1 and the third plaintiff/Vijay was
examined as P.W.2 and Ex.A1 to Ex.A3 were marked. On the side of the
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defendants, the eighth defendant/Shanthi was examined as D.W.1 and
one Poomalai was examined as D.W.2 and Ex.B1 to Ex.B7 were marked.
11.The findings of the trial Court:
Ex.A1/Sale deed stands in the name of Chinnusamy Padayachi and
in the absence of any other evidence, it is his absolute property. The
seventh defendant pleaded that the suit property was purchased from the
sale proceeds of the house in the ancestral property, but the same has not
been established by the seventh defendant. The seventh defendant
claimed that there was an oral partition in the year 1987. However, the
defendants 1 and 2 have not raised any objection to the claim made by
the plaintiffs. The oral partition plea taken by the seventh defendant has
not been established. Ex.A2/Sale Deed executed by the defendants 3 to 6
in favour of the seventh defendant is not binding on the plaintiffs insofar
as their 3/6 shares in the suit property is concerned.
12. The points for determination arises in this appeal are that
(i) Whether the plaintiffs 1 and 2 and Indiragandhi orally
relinquished their share in the suit property?
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(ii) Whether the plaintiffs are entitled to the relief of declaration
that the sale deed dated 23.08.2011 is null and void?.
13. The learned counsel appearing for the appellant/seventh
defendant/purchaser would submit that P.W.1, in her cross-examination
categorically admitted that the suit property was purchased out of sale
proceeds of the ancestral property of her father and therefore, the suit
property is to be considered as ancestral property. P.W.1 in her
cross-examination admits that her brothers were cultivating the lands
allotted to them in the oral partition and hence, the said admission made
by P.W.1 is a conclusive proof for oral partition made between the
plaintiffs 1 and 2 and the defendants 1 to 3. The case of the seventh
defendant is corroborated by the evidence of D.W.2 who is aged about 61
years and resident of the same Village and adjacent land owner of the
suit property. Though the second defendant has filed the written
statement which was adopted by the first defendant supporting the case
of the plaintiffs, but none of the defendants comes forward to give
evidence. P.W.1 in her cross-examination categorically admits that there
was an oral partition. The evidence of P.W.1 itself clearly reveals that
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there was an oral partition and on that basis, the plaintiffs and the
defendants 1 to 3 were enjoying their respective share and the third
defendant along with the son and daughters sold the property to the
seventh defendant and therefore, the seventh defendant is a bonafide
purchaser of the suit property. Hence, he prayed for allowing this appeal.
14. Per contra, the learned counsel appearing for the respondents
submits that the suit property is an absolute property of Chinnusamy
Padayachi and after his death, the plaintiffs 1 and 2 and the defendants 1
to 3 became entitled to each 1/6 share and the plaintiffs 3 and 4 are
together entitled to 1/6th share in the suit property. The alleged oral
relinquishment and the oral partition in the sale deed were not
established by the seventh defendant. There is no reason to interfere with
the judgment and decree of the trial Court.
15. This Court has considered the submissions made on either side
and perused the materials available on record.
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16. It is not in dispute that one Chinnusamy Padayachi has got
three sons, by name, Velayutham/first defendant, Murugesan/second
defendant and Shanmugam/third defendant and two daughters, by name,
second plaintiff/Jothi and one Indiragandhi. The plaintiffs 3 and 4 are the
children of Indiragandhi, through her husband, Manikandan/eighth
defendant. The defendants 4 to 6 are the son and daughters of the third
defendant. It is the specific case of the plaintiffs that the suit property is
the absolute property of Chinnusamy Padayachi and the same has been
purchased under the sale deed dated 20.03.1974 and after his death, the
plaintiffs 1 and 2 and the defendants 1 to 3 became entitled to each 1/6 th
share. The plaintiffs and the defendants 1 to 3 are in joint possession and
enjoyment of the suit property. It is also not in dispute that the
defendants 3 to 6 have executed the sale deed dated 23.08.2011 in favour
of the seventh defendant in respect of a portion of the suit property. The
suit property consists of four items in Kolathukombai Village, Valappady
Taluk, Salem District, measuring to a total extent of 4.39 acres. The
defendants 1 and 2 filed their written statement admitting the claim of the
plaintiffs. The defendants 3 to 6 and 8 remained ex-parte.
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17. The seventh defendant is alleged to be a purchaser of the suit
property and has chosen to contest the suit. According to the seventh
defendant, the suit property is the ancestral property of Chinnusamy
Padayachi and from and out of the sale amount, he had purchased the suit
property. It is also the specific case of the seventh defendant that after the
death of the said Chinnusamy Padayachi, the plaintiffs 1 and 2 and
Indiragandhi relinquished their share and there was an oral partition in
the year 1987. As per the oral partition, the property was divided into
three shares and one share was allotted to the third defendant, who, in
turn, sold his share to the seventh defendant. Per contra, P.W.1/Jothi
stated that the oral relinquishment alleged to have been made by the
plaintiffs 1 and 2 and Indhiragandhi and also the oral partition as claimed
by the seventh defendant are false. Ex.A1, sale deed dated 20.03.1974
stands in the name of Chinnusamy Padayachi with regard to suit schedule
property which was purchased from one Kamalamammal. Initial burden
lying on the plaintiff has been discharged and now the burden of proof
shifts on the seventh defendant to prove his case. It is pertinent to
mention that in legal maxim “reus in exicipiendo fit actor”, the burden of
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proof weights on the plaintiff, but the defendant in objecting becomes as
plaintiff. A maxim means that, when the defendant denies the plaintiff's
offer of proof, the burden of proof shifts on the defendant to refute the
plaintiff's evidence.
18. The seventh defendant has relied upon the oral evidence of
D.W.2, to prove his case that the suit schedule property is an ancestral
property and the plaintiffs 1 and 2 and Indiragandhi relinquished their
share and there was an oral partition in the year 1987. D.W.2 who is the
neighbouring land owner of the suit property, has stated that the seventh
defendant is a bona fide purchaser of the property from the third
defendant. However, the seventh defendant has not chosen to file any
documents to show that the suit property was purchased from the sale
proceeds of the house in the ancestral property. Apart from the evidence
of D.W.2, no other independent witness is examined to establish that
there was an oral partition in the year 1987. The defendants 1 and 2 have
not raised any objection to the claim made by the plaintiffs. The third
defendant has not entered the witness box to support the case of the
seventh defendant and also to speak about the oral relinquishment made
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by the plaintiffs and their sister. The seventh defendant has failed to
prove the oral relinquishment and oral partition alleged to have been
made by the plaintiffs 1 and 2 and their sister along with the
defendants 1 to 3. The burden of proof has not been discharged by the
seventh defendant. The suit schedule property has not been partitioned in
the manner known to law.
19. In view of the above circumstances, Ex.A2/Sale deed as
alleged to have been executed by the defendants 3 to 6 in favour of the
seventh defendant is not binding on the plaintiffs insofar as their share is
concerned. There is no need to declare that the sale deed is null and void
as it is valid only with respect to 1/6 share of the third defendant. The
trial Court has rightly answered the issues. In view of the above, there is
no reason to interfere with the impugned judgment and decree of the
Court below. There is no merit in this appeal and the same is liable to be
dismissed. The points are answered accordingly.
20. In the result, this Appeal Suit is dismissed and the judgment
and decree dated 31.08.2018 passed in O.S.No.73 of 2011 by the II
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Additional District Court, Salem is confirmed. There shall be no order as
to costs. Connected miscellaneous petition is closed.
01.07.2025
Index : Yes/No
Internet : Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation : Yes/No
ssb
To
The II Additional District Court,
Salem.
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M. JOTHIRAMAN, J.
ssb
01.07.2025
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