Madras High Court
G.Parthiban vs / on 9 July, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
A.S.No.515 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 01.07.2025
Pronounced on : 09.07.2025
Coram::
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
Appeal Suit No.515 of 2022
1.G.Parthiban, aged about 60 years,
S/o Govindasamy,
Athuvambadi Village and Post,
Polur taluk, Tiruvannamalai District. ..Plaintiff/Appellant
/versus/
1.M.Govindasamy, aged about 86 years(died)
S/o Muniya Gounder.
2.G.Palanisamy, aged about 58 years,
S/o Govindasamy.
3.G.Arumugam, aged about 52 years,
S/o Govindasamy.
4.P.Vinothkumar, aged about 34 years,
S/o Palanisamy.
(R1 died.LR's of the R1 i.e Appellant @ R2, R3 are
already on record. Memo. Recorded vide. Court
Order dated 23.06.2025(GJJ))(Memo dated 20.12.2022
USR No.37749)
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A.S.No.515 of 2022
5.P.Vijayakumar, aged about 31,
S/o Palanisamy.
6.P.Nathiya, aged about 36 years,
D/o Palanisamy.
All are Hindus, reising at Athuvambadi Village
and Post,Polur Taluk, Tiruvannamalai District.
...Defendants/Respondents
Appeal Suit has been filed under Section 96 of C.P.C., praying to
allow the appeal setting aside the decree and judgment passed in O.S.No.46
of 2018, dated 07.07.2022 passed by the learned Principal District Judge,
Tirvuannamalai, by allowing the above the first appeal and dismissing the
suit.
For Appellant :Mr.V.Raghavachari,
Senior Counsel for
Mr.T.R.Rajaraman
For Respondents :Ms. Chenthoori Pugazendhi for
Mr.K.Balu, for R2, R4 to R6
R3-No appearance
R1- died
-----
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A.S.No.515 of 2022
JUDGMENT
This Appeal Suit is against the dismissal of the partition suit filed by
Mr.G.Parthiban, against his father Govindasamy and two brothers namely
Palanisamy and Arumugam.
2. The aggrieved plaintiff is the appellant herein.
3. The case of the Appellant/Plaintiff:
The suit properties 33 in numbers are either the ancestral properties or
the properties purchased in the name of the defendants 1, 2 and 4 from the
ancestral nucleus put into hotchpot of the joint family properties. The suit
properties are in joint enjoyment of the plaintiff along with defendants 1 to
3. While so, for past three years, the plaintiff oral request to divide the
properties and give his 1/4th share, but not heeded by the defendants.
Hence, the suit for partition and delivery of separate possession.
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4. In support of his claim, the appellant/plaintiff had relied upon his
oral evidence and the following documents:
(1)Patta issued in the name of his grand father Muniya Gounder, S/o
Parasurama Gounder for suit properties described in items 1 to 7 (Ex.A-1).
(2)Patta issued in the name of Seenu Gounder (alias Muniya
Gounder), S/o Parasurama Gounder for suit properties described in items 8
to 11 (Ex.A-2)
(3)Patta issued in the name of his father Govindasamy (first
defendant), S/o Muniya Gounder for suit properties items 31 to 33(Ex.A-3).
(4)Patta issued in the name of his father Govindasamy (first
defendant), S/o Muniya Gounder for suit properties items 12 to 18(Ex A-4).
(5)Sale deed dated 21.06.1993 in favour of Palanisamy (2nd
defendant) for suit property items 20 to 22(Ex.A-5)
(6)Sale deed dated 12.10.1998 in favour of Palanisamy (2nd
defendant) for suit property item 23. (Ex.A-6)
(7)Sale deed dated 29.01.1999 in favour of Palanisamy (2nd
defendant) for suit property items 24 and 25 (Ex.A-7).
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(8)Sale deed dated 09.07.2003 in favour of Minor Vinodkumar (4th
defendant), Son of Palanisamy (2nd defendant) for suit property items 26 to
30(Ex.A-8).
(9)Settlement deed dated 31.08.2015 executed by Govindasamy (the
first defendant) in favour of Vijayakumar (5th defendant) for suit property
items 12, 13, 15 to 19.(Ex A-9). In this settlement deed, item No.21, bearing
S.No.315/2 measuring 0.02 cents, out of 0.06 cents also included but patta
for this survey number is not in the name of Govindasamy. Item 21 is one of
the property in Ex.A-5 sale deed in favour of Palanisamy (2 nd defendant)
sold by Chinnasamy and his son Nataarajan.
(10)Settlement deed dated 29.03.2016 executed by Govindasamy
( first defendant) in favour of Nathiya ( 6th defendant) for suit property
items 8 to 11(Ex A-10).
5. In Ex.A-9, Govindasamy had described the properties items 12 to
19 (except item 14)settled to the 5th defendant as his self acquired property
purchased from his income as a Teacher on various dates . In Ex.A-10, he
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had described the properties, items 8 to 11 as properties inherited from his
ancestors. (Pithurajiaya).
6.During the cross examination of PW-1, the first defendant had
marked Ex.B-1 to Ex.B-12. These 12 documents are:
Ex.B-1 to Ex.B-6 and Ex.B-8 are the sale deeds in the name of Munia
Gounder for the purchase of suit items 1 to 6.
Ex.B-7 is a pronote executed by the 2nd defendant in favour of
A.S.Subramaniam for borrowing Rs.23,000/-. In this pronote, the plaintiff is
one of the attesting witness.
Ex.B-11 is the sale deed in favour of the first defendant in respect of
properties in S.No.90/1 measuring 296 ¼ sq ft and 1387 ½ sqft with specific
boundaries. First defendant had settled 1387 ½ sq t to the plaintiff under
Ex.B-9 and 296 ¼ sqft to the 3rd defendant under Ex B-10, both dated
06.06.1989.
Ex.B-12 dated 16.05.2008 is the sale deed in favour of the plaintiff.
The plaintiff claims as his self acquired property purchased out of his
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income as a Teacher.
7. Case of the Respondents/ Defendants:
The defendants 1 and 2 in the common written statement had denied
the plaint averments that the suit properties items 1 to 11 and 31 to 33 are
the ancestral properties and the other items of properties are purchased in
the name of defendants 1, 2 and 4 from out of the surplus earned from the
ancestral properties.
8. Their specific case is that, items 1 to 11 were the properties
purchased by Muniya Gounder between 1930 to 1954 from out of his self
earning. On his death, those properties devolved on his only son
Govindasamy (first defendant), who is enjoying the property as his absolute
property as the sole heir of Muniya Gounder as per intestate succession.
The properties were neither the ancestral property nor enjoyed jointly with
the plaintiff. The first defendant is a retired Teacher. While in service, he
purchased items 12 to 19, from out of his earnings. As far as items 3 to 33,
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they are grama natham land assigned to the first defendant during the
Natham Nilavari Thittam. Items 20 to 25 were purchased by the 2nd
defendant from out of his individual income and they were never blended
with the remaining properties as claimed by the plaintiff. Items 26 to 30
were purchased by the 2nd defendant in the name of his minor son, the 4th
defendant, from out of his separate income and borrowings. Apart from the
patta in the respective names, chitta and adangal are marked by the
respondents/defendants to substantiate their plea.
9. In support of their plea, the second defendant Thiru.G.Palanisamy
examined as DW-1. Ex.B-13 to Ex.B-35 marked through him.
(i) Ex.B-13,dated 21.12.1975, Ex-14 dated 15.11.1983 and Ex.B-15
dated 11.08.1988 are the sale deeds in favour of Govindasamy (first
defendant) in respect of S.No:315/1, 315/2 and 315/3.
(ii) Ex.B-16 to Ex.B-18 are the Chitta, Adangal and tax receipts in the
name of the first defendant.
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(iii) Ex.B-19, Ex.B-20 and Ex.B-21 are the Chitta, Adangal and tax
receipts in the name of 5th defendant.
(iv) Ex.B-22 to Ex.B-24 are the Chitta, Adangal and Tax receipts in
the name of 6th defendants.
(v) Ex.B-28 to Ex.B-30 are Chitta, Adangal and Tax receipts in the
name of 2nd defendant.
(vi) Ex.B-32 to Ex.34 are Chitta, Adangal and Tax receipts in the
name of 4th defendant.
10. The revenue records are relied by the first defendant to show that
the properties are his separate properties enjoyed exclusively by him and he
had settled few items of the properties to the plaintiff, the 3rd defendant as
well as the defendants 5 and 6. The settlement deeds been accepted and
acted upon by respective parties including the plaintiff and the 3rd
defendant.
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11. In respect of the gold chain of Parvathiammal, W/o Govindasamy,
her three sons namely Parthiban (plaintiff), Palanisamy (second defendant)
and Arumugam (third son) along with their mother had agreed to share it
equally. Each of them had received Rs.7000/- from Palanisamy as their
share and give the gold chain to Palanisamy. Ex.B-35 is the
acknowledgement receipt for the amount.
12. Ex.B-7, Ex.B-25(series), Ex.B-26(series) and Ex.B-27 (series),
which are pronotes executed by the second defendant to show the source for
the second defendant to buy these properties in items 20 to 25. For the
purpose of disproving the case of the plaintiff that they were bought in the
name of the 2nd defendant from the joint family nucleus.
13. The 3rd defendant in his written statement had contended that,
there was oral partition between the son and grand sons of Muniya Gounder,
about 21 years ago, in respect of the properties left by Muniya Gounder who
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died intestate. As per the oral partition, his father Govindasamy out of his
own will and violation did not take any share in the landed properties.
Under the oral partition, the plaintiff was allotted items 3 to 6, to an extent
of 0.12.0 hectre in items 11, 12, 13, 18, 21 and 30 along with a terraced
house situated in the natham No:556 of 23 and a Bullet motor cycle. For the
3rd defendant, items 1, 2, 8 to 10, and 0.06 acre in item 11, 31 and 33 were
allotted along with a terraced house and vacant site comprised in natham
S.No.90/1 situated at Kalasthambadi village. From the date of oral partition,
he is in absolute possession and enjoyment of the properties allotted to him.
14. On 18.08.2015 he caused notice through his lawyer calling upon
his father and the brother to execute partition deed as per the oral partition.
They did not come forward to execute the partition deed. The 3rd defendant
had further contended that, the settlement deed dated 31.08.2015 (Ex.A-9)
executed by the first defendant in favour of 5th defendant is not valid. This
document was created after he caused notice for partition. Likewise the
settlement deed dated 29.03.2016 (Ex.A-10) in favour of the 6th defendant
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is also not valid. This settlement includes items 8 to 11 which were already
allotted to him under the oral partition. However, the settlement deed of his
father in favour of him and the plaintiff is valid, since it was the personal
property of his father (1st defendant)
15. To show that suit properties were purchased from ancestral
nucleus, the 3rd defendant had marked Ex.B-36 to Ex.B-40. The sale deed
dated 29.03.1940 by Thiruvenkathan Gounder in favour of Parasurama
Gounder in S.No.363/8 measuring 1.45 acres out of 2.90 acres is Ex.B-36.
The sale deed dated 02.07.1924 by Chellamuthu Gounder and Kantha
Gounder in favour of Parasurama Gounder in S.No:361/6 measuring to an
extent of 0.86 cents out of 2.13 acres is Ex.B-37.
16. Ex.B-38 is the notice sent on behalf of the 3rd defendant on
18.08.2015 two years prior to the partition suit. In this notice, the 3rd
defendant had demanded the others for execution of the partition deed as
per the oral partition happened 18 years ago. He has mentioned the
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properties allotted to respective sharers under schedule A, B and C.
17. In this notice, 3rd defendant had stated that as per the oral partition
S.No:363/8 purchased by Parasuraman under Ex.B-36 is shown as 363/8 A
to 363/8 E in Schedule 'A' allotted to Parthiban/the plaintiff. S.No.361/6
purchased by Parasuraman under Ex.B-37 in schedule 'B' allotted to
Palanisamy the second defendant.
18. The plaintiff through evidence could not establish joint family
nucleus and blending of the properties purchased in the name of individual
members of the family, hence, the trial Court dismissed the suit.
19. In the appeal, Mr.V.Ragavachari, the Learned Senior Counsel
contended that, the trial Court failed to frame proper issues. Court below
failed to see the documentary evidence let in by the parties properly. Several
admissions of the first defendant that the properties were held in common as
joint family property not considered by the trial Court. Despite evidence like
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Ex.B-36 and Ex.B-37 to show that Muniya Gounder got property from his
father Parasurama Gounder and only from the income derived from that
property he purchased the other properties listed as items 12 to 18 and items
31 to 33, the trial Court overlooked those evidence. The first defendant
Govindasamy who is the father of the plaintiff and defendants 2 and 3,
ought to have mounted the witness box to tell the court how the properties
were acquired. Failure to give evidence ought to presume adverse to him.
20. Ms.Chenthoori Pugazendhi, the Learned Counsel appearing for
the respondents, submitted that the plaintiff, cannot claim partition of his
father's property during the life time of his father, on the false ground that
the properties are ancestral properties and he being a coparcener, is entitled
for a share. The plaintiff had not proved that he and the defendants are in a
joint Hindu Family as a coparceners or the suit properties were purchased
from the nucleus of a joint family properties. From plaintiff's own
documents and documents he admitted during the cross examination, the
defendants have proved that the properties shown as Items 1 to 11 and items
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31 to 33 are not ancestral properties for the plaintiff to claim share. They
were the properties of the first defendant inherited from his father Muniya
Gounder or by purchase by him from his personal income. The partition
among the Parasurama Gounder and his four sons is admitted by PW-1 in
the cross examination. Though the 3rd defendant had pleaded that there was
oral partition between the plaintiff and defendants 1 to 3 about 18 years ago,
no evidence placed before the Court to prove the said oral partition.
21. There is not a piece of land available to characterise the suit
properties as ancestral property. Contrarily, when evidence placed to proves
that first defendant from his personal income as a Teacher purchased
properties shown as items 12 to 19 and two other properties under Ex.B-11
which he settled the plaintiff and 2nd defendant under Ex.B-9 and Ex.B-10.
The plaintiff deliberately suppressed Ex.B9 to Ex.B10 in his plaint to
sustain his the baseless suit for partition.
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22. The first defendant, who purchased items 12 to 19 from his
income, later settled it in favour of his grand son the 5th defendant.
Similarly, he had settled items 8 to 11 to the 6th defendant his grand
daughter. Being the absolute owner of these properties, those settlement
deeds executed by the first defendant are valid.
23. The Learned Counsel also contended that there is no evidence of
joint living or blending of the properties purchased either by the first
defendant or by the second defendant in their names or in the name of the
minor children. The suit for partition being baseless and ill-conceived, the
trial Court rightly dismissed the suit. The appeal also therefore deserved to
be dismissed.
24. Point for determination:
Whether properties purchased by Parasurama Gounder under Ex.B-36
and Ex.B-37 are sufficient to presume that the suit properties, which are
purchased by Muniya Gounder or his son the first defendant in his name or
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the second defendant in his minor children names were from and out of
surplus income derived from these two properties and got blended into the
hotchpot of the family nucleus?
25. The family tree of the parties to the suit is as under:-
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26. In Hindu Law, a person as coparcener gains right by birth in the
joint family property, if the property has gained the character of coparcenary
property. Otherwise, succession will open only on the death of the owner of
the property.
27. Ex.B-36 the sale deed dated 29.03.1940 executed by Venkatathan
Gounder in favour of Parasurama Gounder is in respect of S.No.363/8
measuring to an extent of 1.45 acres, out of 2.90 acres. Part of this property
is shown under item 7 as available with the joint family for division. The
survey number of this property shown in the plaint is S.No.363/8A
measuring to an extent of 0.55.0 hectare. The sub division of the survey
numbers 363/8 into 363/8A is one proof that the property purchased by
Parusrama Gounder had been subjected to division and lost the character of
ancestral property due to the interruption, probably when the sons of
Parasuraman entered into partition as admitted by the parties in their oral
evidence. Thus, S.No.363/8A allotted to Muniya Gounder had become his
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absolute property, after its division. Muniya Gounder had left the said
property to his only son Govindsamy Gounder, who had succeeded it as the
legal heir of Muniya Gounder as intestate succession and enjoying it as his
absolute property. While so, seeking partition by the son (the plaintiff in this
case) from the properties of the father(first defendant in this case) during the
life time of the father or challenging the alienation of the properties by his
father by way of settlements are not legally sustainable.
28. Likewise, Ex.B-37-the sale deed dated 02.07.1924 by
Chellamuthu Gounder and Kantha Gounder in favour of Parasurama
Gounder is in respect of property in S.No:361/6 measuring to an extent of
0.86 cents out of 2.13 acres. Part of this property is shown as S.No.361/6B
in item No:14 measuring 0.41.0 hectre (i.e) around 1 acre. How 0.86 cents
in 361/6 enlarged into one acre in S.No.361/ 6B is not explained by either of
the parties.
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29. A property gains the character of coparcenary property, on
satisfying the following conditions:-
(i) If it is inherited from the paternal ancestors through at least four
generations or those properties acquired from the income of ancestral
property and got blended into the common hotchpot and
(ii) If it remains undivided and enjoyed by the family members jointly
without any interruption.
30. As per the plaint, the common male ancestor in this case is
Muniya Gounder and not even his father Parasurama Gounder to show the
properties passed through 4 generations. It is also not the case of the
plaintiff that Muniya Gounder purchased the properties items 1 to 11 and 31
to 33 from out of the income he derived from property, he got from his
father Parasurama Gounder. The scrutiny of Ex.B-36 and Ex.B-37, the two
properties (i.e.,) items 7 and item 14, in view of its division, it has been
enjoyed as separate property of Muniya Gounder, and it does not carry the
character of a coparcenary. Muniya Gounder has acquired other properties
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on his own self and held the properties as his separate properties and not as
kartha of the joint family. Therefore, on the death of Muniya Gounder, the
properties held by Muniya Gounder has devolved on his only son
Govindasamy (first defendant) as per intestate succession under Section 8 of
the Hindu Succession Act and not by survivorship. The plaintiff, who is son
of Govindasamy cannot have a right to seek for partition as a right by birth
since, the suit properties are neither ancestral property nor properties
acquired from out of the ancestral properties.
31. The factum of partition in respect of property held by Parasurama
Gounder among his 4 sons is not disputed. The plaintiff claims that under
Ex.A-1, suit schedule items 1 to 7 and under Ex.A-2, suit schedule items 8
to 11 were purchased by Muniya Gounder. The further case of the plaintiff
is that the first defendant Govindasamy got the suit properties 1 to 11 and
dealing the properties as common joint family property. However, the
documentary evidence before the Court proves that Muniya Gounder was
holding the property as his separate property and not as kartha of the joint
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family. Likewise, Govindasamy, son of Muniya Gounder also was holding
the properties not as kartha of the joint family. This fact is established from
the recitals in the settlements deeds Ex.B-9 and Ex.B-10 in which the
plaintiff along with 3rd defendant are the beneficiaries. For items 31 to 33,
'Thorayamanai patta' is issued to the first defendant under Ex.A-3, based on
his long possession.
32. A minuscule piece of land less than 2 acres traced to a common
ancestor Parasurama Gounder, with an ample evidence to show, it was sub
divided and succession interrupted, does not give the character of joint
family property to the majority of the suit properties purchased subsequently
by Muniya Gounder or few other properties purchased by the first and
second defendants, who had proved their independent source of income to
buy these properties.
33. In Angadi Chandranna v. Shankar and others reported in [2025
INSC 532], the Hon'ble Supreme Court regarding doctrine of blending of
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self acquired property with joint family property, relying upon the earlier
judgments of the Hon'ble Supreme Court in Lakkireddi Chinna Venkata
Reddy and Others v. Lakkireddi Lakshamama reported in [1964 (2) SCR
172] and K.V. Narayanan v. K.V.Ranganandhan and Others reported in
[(1977) 1SCC 244], has observed as below:-
“20.Regarding the doctrine of blending of self-
acquired property with joint family, it is settled law that
property separate or self-acquired of a member of joint
Hindu family may be impressed with the character of joint
family property if it is voluntarily thrown by the owner
into the common stock with the intention of abandoning
his separate claim therein but to establish such
abandonment a clear intention to waive separate rights
must be established. From the mere fact that other
members of the family were allowed to use the property
jointly with himself, or that the income of the separate
property was utilized out of generosity to support persons
whom the holder was either bound or not bound to
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support, or from the failure to maintain separate
accounts, abandonment cannot be inferred, for an act of
generosity or kindness, will not ordinarily be regarded as
an admission of a legal obligation.”
34. In the absence of evidence that the properties purchased by
Muniya Gounder, Govindasamy (first defendant) and Palanisamy (second
defendant) were blended with the other properties and treated as a common
property of the joint family, the plaint has to suffer lack of cause of action.
More so, when the plaintiff admits that the purchase of property in his name
under Ex.B-12 in the year 2008, but excluded that property in the suit for
partition by claiming that it is his own self acquired properties and
suppressing the settlement deed Ex.B9 by 1st defendant in his favour.
35. For the above said reasons, this Court holds that the trial Court
judgment and decree is based on proper appreciation of law and evidence
adduced by the parties. Hence, it is to be confirmed.
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36. As a result, this Appeal Suit stands dismissed. No order as to
costs.
09.07.2025
Index : Yes
Neutral citation : Yes/No
Speaking/non-speaking order
ari
To,
1.The Principal District Judge, Tiruvannamalai.
2.The Section Officer, V.R.Section, High Court, Madras.
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Dr. G.JAYACHANDRAN, J.,
ari
delivery Judgment made in
09.07.2025
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