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)
Page No.1 of 34
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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
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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
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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
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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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SECOND APPEAL
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?
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ARGUMENTS
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
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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;
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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
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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 ;
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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
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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
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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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"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.”
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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
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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
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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
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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:
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“1990k; tU#k; Mf!;L khjk; 19k; njjp mhpaY}h;
tl;lk; bre;Jiu fpuhkj;jpy; ,Uf;Fk; j.Rg;guha
gps;is kfd;fs; MWKfk; gps;is (1) j';fuhR
gps;is (2) eh';fs; ,UtUk; moapy;fz;l
g";rhaj;jhh;fs; Kd;dpiyapy; vGjpf;bfhz;l tPLfs;/
kidfs; tifawh ghfk; gphpj;Jf; bfhz;l tpguk;.
moapy;fz;l 1tJ b#l;a{y; brhj;ij 1tJ egh;
jpU. S.MWKfk; gps;isa[k; 2tJ b#l;a{y; brhj;ij
2tJ egh; jpU. S.j';fuhR gps;isa[k; mDgtpj;Jf;
bfhs;s ntz;oaJ.
1tJ b#l;a{y; MWKfk; gps;is mDgtpj;Jf;
bfhs;s ntz;oa brhj;jpd; tpguk;.
m.jh.bre;Jiw fpuhkj;jpy; bjw;Fj; bjUtpy; fPH;nky;
tPjpf;F tlg[wk; cs;s FoapUg;g[ tPl;oy; nky; ghjpa[k;
nkw;go cs;s bjd;g[wk; cs;s ehl;L XLtpy;iy
fl;olKk; itj;jpdhjgps;is tifawh tPl;ow;Fk;
nky;g[wk; cs;s fhyp kidapy; nky;g[wk; ghjpa[k;/
nkw;go kidf;Fj; bjd;g[wk; cs;s njhl;lj;jpy;
nky;g[wk; ghjpa[k; mjpy; cs;s fy;fl;L fpzwpy; cs;s
ghj;jpak; ghjpapy; mDgtpj;Jf; bfhs;sntz;oaJ.
mjpy; cs;s bjd;id ku';fs; Ie;jpy; ghjp ghfKk;/
FoapUg;g[ tPl;ow;F nkw;g[wk; cs;s fhypkida[k;
nkw;g[wk; bjUtpy; bjd; tly; re;jpw;Fk; nkw;g[wk;
cs;s fhypkidapy; bjd;g[wk; ghjp itj;jpdhjrhkp
gps;is tifawh tPl;Lf;F vjphpy; cs;s nrhg;;gl;liw
kidapy; ekf;F cs;s ghfj;jpy; ghjp.
2tJ b#l;a{y; j';fuhR gps;is mila
ntz;oa brhj;jpd; tpguk;.
m.jh.bre;Jiw fpuhkj;jpy; bjw;Fj;bjUtpy; fPH;
nky; tPjpf;Fk; tlg[wk; cs;s FoapUg;g[ tPl;oy;
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fPH;ghjpa[k; nkw;go fPH;g[wk; cs;s fhypkida[k; mjpy;
fl;lg;gl;Ls;s bts;is fpzW cs;gl nkw;go
bjUtpy; bjd;g[wk; cs;s rPik xl;odhy; fl;lg;gl;l
khl;Lf; bfhl;lifa[k; itj;jpaehjrhkp gps;is
tifawh bjw;F nky;g[wk; cs;s fhypkidapy;
fPH;ghjpa[k; nkw;go fhypkidf;F bjd;g[wk; cs;s
fhypkidapy; fPH;g;g[wk; ghjpa[k; mjpy; cs;s
br';fy;fl;L fpzwpy; ghjp ghfKk; nkw;go kidapy;
cs;s bjd;id ku';fs; Ie;jpy; ghjpg;ghfKk; nkw;go
itj;jpaehj rhkpgps;is tPl;ow;F vjph;g[wk; cs;s
nrh;gl;liu kidapy; ekf;Fs;s ghfj;jpy; ghjp
nkyj;bjUtpy; bjd;tly; tPjpf;F nkw;g[wk; cs;s fhyp
kidapy; tlg[wk; ghjpa[k; mhpaY}h; nuhl;ow;F fPH;g[wk;
cs;s ts;spak;ik Mr;rpapd; capy; \ykh fpilf;fgl;l
fhypkid.
nkw;go b#l;a{ypy; fz;lgo mtuth;fs;
mDgtpj;Jf; bfhs;s ntz;oaJ.
tlg[wk; cs;s FoapUg;g[ tPl;oy; kj;jpapy;
,Uth; brytpYk; \d;W khjj;jpw;Fs; (Ig;grpf;Fs;)
bghJ Rtuhf itj;Jf; bfhs;s ntz;oaJ.
,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”
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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)
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
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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
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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
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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
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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
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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,
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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
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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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