Madras High Court
M.Sabareesh vs Krishnan on 18 June, 2025
2025:MHC:1435
A.S.No.332 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 18.06.2025
Coram:
THE HON'BLE MR.JUSTICE R.SAKTHIVEL
A.S.No.332 of 2021
and C.M.P.No.15929 of 2021
M.Sabareesh
...Appellant/5th Defendant
Versus
1.Krishnan
2.Ramu
3.Babu
4.Chokalingam
5.Manickam
6.Revathi
...Respondents/Plaintiffs
7.Padavatten
8.Kuppu @ Kuppammal
9.Chinnapaiyan
10.Indirani
...Respondents/Defendants 1 to 4
PRAYER: First Appeal filed under Order XLI Rule 1 of the Code of Civil
Procedure, 1908 praying to set aside the Preliminary Decree dated October
31, 2018 passed in O.S.No.93 of 2016 on the file of District Court No.II,
Kancheepuram and dismiss the suit in toto.
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For Appellant : Mr.B.Manoharan
For Respondents – 1 to 6 : Mr.K.C.Gandhi
For Respondents – 7 & 10 : Mr.Arunprasath
for Mr.M.Guruprasad
For Respondents – 8 & 9 : Ex-parte vide Order
dated 08.02.2022
JUDGM ENT
Feeling aggrieved by the Judgment and Decree dated October
31, 2018 passed by the “learned District Judge, District Court No.II,
Kancheepuram” (hereinafter referred to as “Trial Court”) in O.S.No.93 of
2016, the fifth defendant therein has filed this Appeal Suit under Section
96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908.
2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit.
PLAINTIFFS' CASE
3. The case of the plaintiffs is that the Suit 'A' Schedule
Property situate in Nirvalur Village was purchased by one Thulukana and
his son (first defendant) vide Sale Deed dated October 29, 1974 for sale
consideration of Rs.600/-. The Suit 'B' Schedule Property, a house
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property, is situated in Attuputhur Village, Kanchipuram District which is
an ancestral property in the hands of Thulukana. According to the
plaintiffs, the said Thulukana died in the year 1976 leaving behind his
three sons viz., Rajagopal (father of the plaintiffs), Chinnapaiyan (third
defendant) & Padavettan (first defendant) and one daughter – Kuppu @
Kuppammal (second defendant) as his legal heirs. The said Thulukana
died intestate leaving behind 1/2 share in Suit 'A' Schedule Property. The
plaintiffs' father Rajagopal passed away on June 27, 2010. After the
demise of plaintiff's father, the plaintiffs are jointly enjoying the Suit
Properties along with the defendants 1 to 3 as joint family properties. The
plaintiffs are entitled to 1/8 share in the Suit 'A' Schedule Property and 1/4
share in the Suit 'B' Schedule Property. The first defendant obtained Patta
and sub division in his favour. Thereafter, by way of Settlement Deed
dated December 27, 1999, the first defendant had settled the Suit 'A'
Schedule Property in favour of his wife - Mrs.Indirani / fourth defendant.
Subsequently, the fourth defendant had executed a Sale Deed dated
November 18, 2010 in favour of the fifth defendant behind the back of the
plaintiffs. Hence, the Settlement Deed dated December 27, 1999 and the
Sale Deed dated November 18, 2010 are not valid and the same will not
bind the plaintiffs and their share. The plaintiffs had issued a Legal Notice
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dated September 28, 2016 to the defendants seeking partition. Though the
defendants received the same, they did not reply. Hence, the plaintiffs filed
a Suit for declaration that the Settlement Deed dated December 27, 1999
and the Sale Deed dated November 18, 2010 allegedly executed by the
fourth defendant in favour of the fifth defendant are invalid and
consequently, seeking a Preliminary Decree for partition claiming 1/8
share in the Suit 'A' Schedule Property and 1/4 share in the Suit 'B'
Schedule Property.
FIRST AND FOURTH DEFENDANTS’ CASE
4. The first defendant filed written statement and the same
was adopted by the fourth defendant. It is stated in the written statement
that the Suit 'A' Schedule Property was purchased in the name of
Thulukana and first defendant. Further, the defendants denied the averment
that the Suit 'B' Schedule Property is the ancestral property of Thulukana.
Only the defendants 1 & 4 had performed the funeral of Thulukana. It is
stated that the Suit 'A' Schedule Property was purchased from the income
of the first defendant and by utilizing the money given by the mother of
fourth defendant. Only as a sign of respect for the father - Thulukana and
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out of love and affection, the first defendant had purchased the Suit 'A'
Schedule Property jointly in his name as well as Thulukana’s name. The
Suit 'A' Schedule Property absolutely belongs to the first defendant. The
first defendant executed the Settlement Deed dated December 27, 1999 in
favour of fourth defendant. Subsequently, the fourth defendant executed a
Sale Deed dated November 18, 2010 in favour of the fifth defendant.
Hence, the plaintiffs have no right to claim partition in the Suit 'A'
Schedule Property.
4.1. As regards Suit 'B' Schedule Property, the said property
originally belonged to one Ellammal (mother of fourth defendant) who
purchased the said property vide registered Sale Deed dated August 01,
1961. The said Ellammal died leaving behind the fourth defendant as her
sole legal heir / legal representative to succeed her estate and thus, the
fourth defendant has absolute title over Suit 'B' Schedule Property. Except
fourth defendant, no one has title over the Suit 'B' Schedule Property.
Hence, the plaintiffs are not entitled to partition in Suit 'B' Schedule
Property.
4.2. Further, the plaintiffs are not in joint possession and
enjoyment of the Suit Properties. Therefore, the court fees paid under
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Section 40 of the ‘Tamil Nadu Court-Fee and Suits Valuation Act, 1955’
['T.N.C.F. Act' for short] is incorrect. Accordingly, the defendants 1 & 4
prayed to dismiss the Suit.
FIFTH DEFENDANT'S CASE
5. The fifth defendant filed written statement stating that the
father of the first defendant viz., Thulukana died in the year 1976. After
the demise of Thulukana, an oral partition took place, in which, Suit 'A'
Schedule Property was allotted to the first defendant. Then, the first
defendant settled the Suit 'A' Schedule Property in favour of fourth
defendant vide Settlement Deed dated December 27, 1999. Subsequently,
the fourth defendant executed a Sale Deed dated November 18, 2010 in
favour of the fifth defendant. Since then, the fifth defendant is in
possession and enjoyment of the Suit 'A' Schedule Property. Hence, the
plaintiffs have no right to claim partition in the Suit 'A' Schedule Property.
The plaintiffs did not challenge the Settlement Deed dated December 27,
1999 and the Sale Deed dated November 18, 2010 within three years from
the date of their execution. Hence, the Suit is barred by limitation. Notably,
the plaintiffs’ father never challenged the Settlement Deed dated December
27, 1999. Accordingly, the fifth defendant prayed for dismissal of the Suit.
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TRIAL COURT
6. Based on the pleadings, the Trial Court framed the
following issues:
“1. Whether the Settlement Deed dated 27.12.1995 (sic,
should be 27.12.1999) is valid and binding the
plaintiffs?
2. Whether the Sale Deed dated 18.11.2010 is valid and
binding the plaintiffs?
3. Whether the plaintiffs are entitled to 1/8 share in A
schedule properties and 1/4 share in B schedule
properties?
4. Whether the payment of court fees is correct?
5. Whether the suit is barred by Limitation?
6. Whether the plaintiffs are entitled to decree as prayed
for?”
7. Before the Trial Court, on the side of the plaintiffs, second
plaintiff - Ramu was examined as P.W.1 and 11 documents were marked as
Ex-A.1 to Ex-A.11. On the side of the defendants, fourth defendant -
Indrani was examined as D.W.1 and 11 documents were marked as Ex-B.1
to Ex.B.11.
8. After considering the oral and documentary evidence
available on record, the Trial Court has found that there is no recital in Ex-
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A1 – Sale Deed dated October 29, 1974 to show that the entire
consideration was paid by the first defendant and that Thulukana was
merely a name lender. It has also held that the fifth defendant introduced a
new plea of oral partition which was not taken by the defendants 1 & 4 and
the fifth defendant has failed to prove the same. Finally, the Trial Court
concluded that the Suit 'A' Schedule Property belongs to Thulukana and
first defendant, and both were entitled to 1/2 share in the Suit 'A' Schedule
Property. Since the said Thulukana died in the year 1976 leaving behind
his three sons viz., Rajagopal (father of the plaintiffs), Chinnapaiyan (third
defendant), Padavettan (first defendant) and one daughter Kuppu @
Kuppammal (second defendant) as his legal heirs, the plaintiffs are jointly
entitled to 1/8 share in the Suit 'A' Schedule Property.
8.1. As regards the Suit 'B' Schedule Property, the Trial Court
held that the same was purchased by Ellammal (mother of fourth
defendant) vide Ex-B.1 – Sale Deed dated August 1, 1961. Being the only
legal heir of deceased - Ellammal, the fourth defendant is alone in
enjoyment and possession of the Suit 'B' Schedule Property. The Trial
Court held that the plaintiffs have not proved that the Suit 'B' Schedule
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Property is the ancestral property belonged to Thulukana and hence, the
plaintiffs are not entitled to any share in the Suit 'B' Schedule Property.
Accordingly, the Suit was partly decreed and dismissed qua the Suit 'B'
Schedule Property and other reliefs.
FIRST APPEAL
9. Feeling aggrieved, the fifth defendant has preferred this
First Appeal under Section 96 read with Order XLI Rule 1 of the Code of
Civil Procedure, 1908.
ARGUMENTS
10. Learned Counsel for the appellant/fifth defendant would
argue that the Trial Court failed to consider the oral and documentary
evidence in the right perspective. Plaintiffs’ father – Rajagopal passed
away on June 27, 2010. In his lifetime, he did not claim any right in the
Suit ‘A’ Schedule Properties nor did he question Ex-A.2 - Settlement Deed.
Since the plaintiff’s father himself did not question Ex-A.2 – Settlement
Deed, the plaintiff is precluded from questioning the same. Further, the
Suit was filed on November 18, 2016 by the plaintiff questioning Ex-A.2 -
Settlement Deed dated December 27, 1999 and hence, the Suit is clearly
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barred by limitation under Article 58 of the Limitation Act, 1963.
10.1. He would further argue that the Trial Court dismissed
the Suit qua Suit ‘B’ Schedule Property by rendering a clear finding that
the Suit ‘B’ Schedule Property originally belonged to Ellammal, who is the
mother of fourth defendant, vide Ex-B.1 – Sale Deed dated August 1,
1961. The plaintiffs have not preferred any appeal over the same and hence
the said finding qua Suit ‘B’ Schedule Property has reached finality.
Further, the Trial Court failed to appreciate the revenue records,
particularly Ex-A.9 – revenue records namely Computer Patta, Settlement
Register and Copy of Field Measurement Book, and failed to consider the
fact that the plaintiffs have failed to prove their alleged joint possession
and enjoyment of the Suit Properties. The Trial Court further failed to
consider that the Court Fee paid under Section 37 (2) of the T.N.C.F. Act is
incorrect. Hence, the Judgment and Decree of the Trial Court is liable to be
interfered with. Accordingly, he would pray to allow the First Appeal.
10.2. He would rely on the following decisions in support of
his contentions:
(i) Judgment of the Hon'ble Supreme Court in Mallavva Vs.
Kalsammanavara Kalamma reported in (2024) INSC
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1021 & 2024 SCC OnLine SC 3846;
(ii) Judgment of the Hon'ble Supreme Court in
N.V.Srinivasa Murthy Vs. Mariyamma reported in
(2005) 5 SCC 548;
(iii) Judgment of the Hon'ble Supreme Court in Khatri
Hotels Private Limited Vs. Union of India reported in
(2011) 9 SCC 126.
11. Learned Counsel for Respondent Nos.7 and 10/ Defendant
Nos.1 and 4 adopts the arguments advanced by the learned Counsel for the
appellant / fifth defendant.
12. On the other hand, learned Counsel for the respondents 1
to 6 / plaintiffs would argue that the Suit ‘A’ Schedule Properties were
purchased jointly by first defendant – Padavettan and his father -
Thulukana vide Ex-A.1 – Sale Deed. Thulukana passed away intestate in
1976 leaving behind Padavettan / first defendant, Rajagopal / plaintiffs’
father, Kuppu alias Kuppamal / second defendant, and Chinnapaiyan / third
defendant, as his legal heirs. Hence, the plaintiffs are entitled to 1/8 share
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in Suit ‘A’ Schedule Properties.
12.1. He would further argue that the defendants 1 and 4
(Padavettan and his wife) claimed that the Suit Properties were purchased
by them, and Thulukana’s name (Padavettan’s father) was only nominally
included in the Sale Deed. The claim is not legally valid. Further, the fifth
defendant who is an alleged purchaser of Suit ‘A’ Schedule Properties has
taken a stand that after the lifetime of Thulukana, whereby Suit ‘A’
Schedule Properties were allotted to first defendant – Padavettan through
Oral Partition and then Padavettan executed Ex-A.2 – Gift Settlement
Deed in favour of the fourth defendant, who is his wife and in turn, she
executed a Sale Deed in favour of fifth defendant. If it is so, the burden is
upon the defendants 1, 4 and 5 to prove the alleged Oral Partition. They
miserably failed to do so.
12.2. He would further argue that the first defendant has no
right to execute Gift Settlement Deed in respect of entire extent of Suit ‘A’
Schedule Properties. Hence, the said Gift Settlement Deed is not valid
beyond his own share and does not bind the plaintiffs, and the plaintiffs are
entitled to seek partition of their 1/8 share in Suit ‘A’ Schedule Properties.
Since, Gift Settlement Deed is not binding on the plaintiffs, there is no
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question of limitation in this case. The Trial Court rightly passed Judgment
and Decree in respect of Suit ‘A’ Schedule Properties. There is no warrant
to interfere with it. Accordingly, he prayed to dismiss the Appeal Suit.
POINTS FOR CONSIDERATION
13. This Court has heard on either side and perused the entire
materials available on record. The points that arise for consideration are:
(i) Whether the plea of defendants 1 and 4 that
Thulukana’s name was only nominally included in
Ex-A.1 – Sale Deed, is sustainable in law?
(ii) Whether the Oral Partition as alleged by fifth
defendant is proved?
(iii) Whether Ex-A.2 – Gift Settlement Deed is valid and
binding on the plaintiffs?
(iv) Whether the Suit is barred by limitation?
(v) Whether Ex-A.3 – Sale Deed is valid and binding on
the plaintiffs?
(vi) Whether the Suit valuation and Court Fee paid are
correct?
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(vii) Whether the Judgment and Decree of the Trial Court
is liable to be interfered with?”
DISCUSSION
14. It is worthwhile to refer to the following Genealogy Chart
for easy understanding of the relationship between the parties and better
appreciation of the facts of the case:
15. Though the fifth defendant (appellant) denied that the
plaintiffs are the legal heirs of Rajagopal, the defendants 1 and 4, who are
the competent persons to make such a denial, have in fact admitted the
relationship in their written statement. Further, D.W.1 / fourth defendant
has also admitted the same in her evidence. To be noted, the fifth defendant
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claims title through defendants 1 and 4 and they both are effectively
contesting the case upto this Court. Hence, fifth defendant is precluded
from contending otherwise; he cannot take a contra stand. Moreover, he
did not enter into the witness box and give evidence in this regard. On the
other hand, there are abundant evidence available on record to show that
the plaintiffs are the legal heirs of Rajagopal, who died on June 27, 2010.
Hence, this Court is of the view that the plaintiffs are the legal heirs of
Rajagopal.
16. The Suit ‘A’ Schedule Properties were purchased vide Ex-
A.1 – Sale Deed by Thulukana and Padavettan for a sale consideration of
Rs.600/-. Admittedly, Thulukana died intestate in 1976 leaving behind
defendants 1 to 3 as well as plaintiffs’ father as his legal heirs as stated
supra. First defendant and fourth defendant in their written statement, have
pleaded that Thulukana did not contribute any money for purchasing the
property covered under Ex-A.1 i.e., Suit ‘A’ Schedule Properties, and only
out of love and affection, his name was included in the Sale Deed as if he
is a joint purchaser. While so, in her evidence, D.W.1 / fourth defendant
has introduced a new plea by deposing that during the lifetime of
Thulukana, he executed a document and thereby transferred his share in
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respect of Suit ‘A’ Schedule Properties in favour of first defendant. Their
first plea is legally barred under Section 4(1) of the Benami Transactions
(Prohibition) Act, 1988 [See R.Rajagopal Reddy Vs. Padmini
Chandrasekharan reported in AIR 1996 SC 238 (Note: The written
statement was filed after 1988)], and the newly introduced plea is not
substantiated with any evidence. Thus, both the pleas are not sustainable.
Point No.(i) is answered accordingly in favour of plaintiffs.
17. In Ex-A.1, totally two extents of land measuring 33 Cents
each, totally 66 Cents, in Survey No.492 was purchased by Thulukana and
Padavettan. While defendants 1 and 4 did not take any stand about Oral
Partition, the fifth defendant in his written statement has stated that, after
the demise of first defendant’s father – Thulukana in 1976, under an Oral
Partition, the Suit ‘A’ Schedule Properties totally measuring 64 Cents were
allotted to Padavettan. It is settled law that Oral Partition is valid, provided
it is proved by satisfactory evidence, and the burden of proof is upon the
person who brings up the plea of Oral Partition. However, the fifth
defendant in his written statement has not mentioned any particulars as to
when the Oral Partition was effected, who were parties to it, allotment of
properties, etc. Further, he did not examine himself and give evidence.
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Since defendants 1 and 4 refrained from taking such a stand, the fifth
defendant, claiming right through defendants 1 and 4, is precluded from
taking up the plea of Oral Partition. More so, when the defendants 1 and 4
are effectively contesting the case up to this Court and have not taken such
a stand. Hence, this Court is of the view that the Oral Partition as alleged is
not proved. Point No. (ii) is answered accordingly in favour of
plaintiffs.
18. This Court has perused Ex-A.1 – Sale Deed, wherein it is
recited that both, Thulukana and Padavettan, jointly purchased the
properties covered thereunder viz., Suit ‘A’ Schedule Properties. It would
further recite that the consideration was provided jointly, without
specifying any particular proportion in which consideration was paid by
them, which means, in the eyes of law, both have contributed equally and
thus are entitled to equal share. Be that as it may, the burden is upon
defendants 1 and 4 to prove that Thulukana was a namesake and nominal
purchaser, in other words, a mere name lender. Unless the contrary is
proved, in the eyes of law, Thulukana and Padavettan are joint owners
entitled to equal shares in the Suit ‘A’ Schedule Properties. Admittedly,
Thulukana passed away as a Hindu in 1976 leaving behind ½ share in Suit
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‘A’ Schedule Properties and defendants 1 to 3 & Rajagopal as legal heirs.
Hence, as per Section 8 of the Hindu Succession Act, 1956, his legal heirs
are entitled to the same equally, which means the plaintiffs’ father would
also be entitled 1/8 share in it. Thus, the first defendant is entitled to
execute a Gift Settlement Deed only in respect of his 5/8 (1/2 + 1/8) share
in Suit ‘A’ Schedule Properties. Hence, the Gift Settlement Deed is not
valid beyond first defendant’s share in Suit ‘A’ Schedule Properties and not
binding in respect of the plaintiffs and their 1/8 share in Suit ‘A’ Schedule
Properties. Point No.(iii) is answered accordingly in favour of plaintiffs.
19. As regards limitation, as elaborated above, since the Gift
Settlement Deed is itself not valid and not binding qua plaintiffs’ 1/8 share,
the plaintiffs can simply ignore the same and there is no need to cancel or
set aside it. Thus, limitation would not come into the picture. Point No.(iv)
is answered accordingly in favour of plaintiffs.
20. As answered under Point No.(iii), the Gift Settlement
Deed in favour of fourth defendant is valid only in respect of first
defendant’s 5/8 share. Hence, Ex-A.3 – Sale Deed executed by fourth
defendant in favour of fifth defendant will not bind or affect the plaintiffs’
1/8 share in Suit ‘A’ Schedule Properties in any manner. Point No.(v) is
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answered accordingly in favour of plaintiffs.
21. As stated supra, plaintiffs’ grandfather – Thulukana passed
away in 1976 leaving behind defendants 1 to 3 and their father - Rajagopal.
The legal heirs of Thulukana are entitled to equal share as regards his ½
share in Suit ‘A’ Schedule Properties. Hence, plaintiffs and defendants 1 to
3 are co-owners entitled to equal share in Thulukana’s ½ share. Law
presumes that possession of one co-owner is that of other co-owners too.
Hence, the Suit valuation and Court Fee paid under Section 37 (2) of
T.N.C.F. Act is correct [See Neelavathi Vs. Natarajan reported in AIR
1980 SC 691]. Point No.(vi) is answered accordingly in favour of
plaintiffs.
22. As regards the Suit ‘B’ Schedule Property, the case of the
defendants 1 and 4 is that originally it belongs to one Ellammal vide Ex-
B.1 – Sale Deed. It is admitted by P.W.1 / second plaintiff – Ramu that the
fourth defendant is the daughter of Ellammal. The defendants produced
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Ex-B.1 – Sale Deed which stands in the name of Ellammal. Ex-B.2 and
Ex-B.3 are Patta issued under Natham land Tax Scheme and Notice issued
under Section 9 of Tamil Nadu Surveys and Boundaries Act, 1923 [TN Act
No.VIII of 1923] respectively, both in the name of Indirani W/o.
Padavettan / fourth defendant. Ex-B.6 to Ex-B.11 – House Tax and Water
Tax Receipts stands in the name of fourth defendant. These would prove
that Suit ‘B’ Schedule Property originally belonged to Ellammal and after
her demise was inherited by fourth defendant. Moreover, the burden is
upon the plaintiffs to prove that Suit ‘B’ Schedule Property belonged to
Thulukana as his ancestral entitlement, but they miserably failed to do so.
In these circumstances, the Trial Court rightly held that Suit ‘B’ Schedule
Property originally belonged to Ellammal and after her demise fell in the
hands of fourth defendant. The plaintiffs have not preferred any appeal and
hence the findings of the Trial Court in respect of Suit ‘B’ Schedule
Property have attained finality. Further, the plaintiffs have also not raised
any argument under Order XLI Rule 33 of CPC qua Suit ‘B’ Schedule
Property. Hence, there is no need to interfere with the said findings of the
Trial Court qua Suit ‘B’ Schedule Property.
23. The Trial Court after considering the evidence and
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documents, rightly concluded that the plaintiffs are entitled 1/8 share in
Suit ‘A’ Schedule Properties and that Ex-A.2 - Gift Settlement Deed is not
valid beyond 5/8 share of first defendant as well as not binding the
plaintiffs and their share. It further rightly held that the Court Fee is correct
and that the Suit is not barred by limitation. Hence, there is no need to
interfere with the Judgment and Decree of the Trial Court.
24. Since, in the case on hand, the Gift Settlement Deed is
not binding on the plaintiffs and their 1/8 share in the Suit 'A' Schedule
Property, the case laws relied on by the appellant / fifth defendant are thus
distinguishable on facts and not applicable to the case on hand.
CONCLUSION:
25. Resultantly, the First Appeal stands dismissed. The
Judgment and Decree dated October 31, 2018 passed by the Trial Court in
O.S.No.93 of 2016 is hereby confirmed. Keeping in mind the facts and
circumstances of the case, there shall be no order as to costs.
Consequently, connected Civil Miscellaneous Petition shall be closed.
18.06.2025
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Index : Yes
Neutral Citation : Yes
Speaking Order : Yes
mrr/tk
To
The District Court No.II,
Kancheepuram.
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R.SAKTHIVEL, J.
mrr/tk
A.S.NO.332 OF 2021
18.06.2025
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