Madras High Court
Mohamed Najmudin vs Syed Mohammed Sulaiman on 3 March, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
AS.(MD)No.131 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 12.02.2025
Pronounced On : 03.03.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN
A.S.(MD)No.131 of 2019
and
Cross Objection No.4 of 2025
and
CMP.(MD)Nos.5392, 2077 of 2021 and 905 of 2025
A.S.(MD)No.131 of 2019
Mohamed Najmudin ... Appellant
Vs.
1.Syed Mohammed Sulaiman
2.Mohamed Malik Ibrahim ... Respondents
PRAYER : Appeal is filed under Order 41 Rule 1 r/w Section 96 of the
Code of Civil Procedure against the judgment and decree dated
09.02.2019 made in O.S.No.81 of 2014 on the file of the learned
Principal District Judge, Dindigul, Dindigul District.
Cross Objection (MD)No.4 of 2025
1.Syed Mohammed Sulaiman ... Cross Objector/1st respondent
Vs.
1/18
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AS.(MD)No.131 of 2019
1.Mohamed Najmudin ...1st Respondent/Appellant
2.Mohamed Malik Ibrahim ... 2nd Respondent/2nd Respondent
For Appellant : Mr.G.Gomathi Sankar
For Respondents : Mr.K.Mohanamurali
JUDGMENT
(Judgment of this Court was delivered by M.JOTHIRAMAN, J.)
The unsuccessful Appellant/first defendant has preferred the
present appeal. The respondent/plaintiff has preferred cross-objection in
Cros.Obj(MD)No.4 of 2025 in A.S.(MD)No.131 of 2019. For the sake
of convenience, the parties are referred to as their rank before the trial
Court.
2.Brief case of the plaintiff is as follows:-
The plaintiff filed the suit for partition, declaration and injunction.
The plaintiff and the first defendant are brothers. The suit properties and
other properties were originally owned by the father of the plaintiff and
the first defendant namely Jamal Mohamed. After the death of the Jamal
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Mohamed, his wife Sheik Sulthan Beevi, daughters Samsunisha, Sahitha
Banu and Sabur Kamila and her sons are in joint possession and
enjoyment of the properties. They have entered into partition on
20.05.2008 and the parties have been in possession and enjoyment of the
properties of their respective shares allotted to them. In the said
partition, 'B' schedule properties were allotted to the plaintiff and the first
defendant. The suit 'A' schedule and 'B' schedule properties have been
in joint possession and enjoyment of the plaintiff and the first defendant.
Three months prior to the filling of the suit, the first defendant was
neither rendering the accounts nor paying the share of the income. In
order to defeat the rights of the plaintiff, the first defendant has executed
a sale deed dated 19.08.2014 in favour of the second defendant
fraudulently. The defendants and their men had attempted to oust the
plaintiff from the suit properties on 25.08.2014 and the said attempts
were thwarted by the plaintiff. Hence, the suit.
3.Brief Case of the defendants is as follows:-
The partition deed dated 20.05.2008 entered between the family
members is admitted. Originally the first defendant's father is having
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ground nut mill in the 'B' schedule properties and till their father's life
time, they are doing the same business with their father. Even after the
partition, the plaintiff and the first defendant were doing the same ground
nut business. The plaintiff and the first defendant had obtained loan of
Rs.9,30,000/- in their joint name from City Union Bank by mortgaging
'A' schedule properties and also obtained cash credit facilities to an
extent of Rs.15,00,000/- by mortgaging 'B' schedule properties. Due to
the heavy loss, their liabilities went up to Rs.58,00,000/- excluding the
bank loans. The plaintiff had given his idea to sell the 'A' schedule
property. The plaintiff had approached his relative Jallaluddin for selling
lands and he had transferred a sum of Rs.5,00,000/- in the joint account
of the plaintiff and the first defendant and they agreed to get the
remaining amount of Rs.7,42,000/- from the second defendant and
Jallaluddin to discharge the bank loan. The plaintiff had failed to come
to the Sub Registrar Office to execute the sale deed. The first defendant
had sold the undivided ½ share in 'A' schedule properties in favour of
the second defendant vide sale deed dated 19.08.2014. Entire sale
consideration for the 'A' schedule property was received to discharge the
bank loan. In the present suit, the said Jalaludeen is also one of the
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necessary party. Hence, the suit is hit under non-joinder of necessary
parties.
4.Based on the above pleadings, the trial Court framed the following
issues:-
1.Whether the plaintiff is entitled to half share in the
suit properties?
2.Whether the plaintiff is entitled to a preliminary
decree for partition as prayed for?
3.Whether the plaintiff is entitled for declaration that
the sale deed dated 19.08.2014 executed by the first
defendant in favour of the second defendant as null and
void?
4.Whether the plaintiff is entitled for permanent
injunction as prayed for?
5.To what other relief, the plaintiff is entitled to?
During trial, on the side of the plaintiff, the plaintiff was examined as
P.W.1 and his mother was examined as P.W.2 and Ex.A1 to Ex.A6 were
marked. On the side of the defendants, the first defendant was examined
himself as D.W.1, witness Thiru.S.Abdul Halick was examined as D.W.2
and witness Thiru.Jallaludeen was examined as D.W.3 and Ex.B1 to
Ex.B6 were marked.
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5.Findings of the Trial Court:-
(i)The first defendant has not produced any documents to show
that the Bank loans and private loans incurred by him and the plaintiff.
(ii)D.W.3 would admit his cross examination that the plaintiff has
not executed any sale agreement in his favour. Similarly D.W.2 would
admit that the plaintiff has not given anything in writing that he had
agreed to repay his share loan amount.
(iii)In Ex.A2, the first defendant had only sold his undivided ½
share in 'A' schedule properties, but, he is not entitled to sell any specific
portion of the properties as there was no partition between the parties.
(iv)There was no evidence to show that the the plaintiff is in actual
possession and enjoyment of the suit properties along with first
defendant and the plaintiff is not entitled to get the relief of permanent
injunction.
6.During pendency of this appeal, the first respondent/plaintiff has
filed an application in CMP.(MD)No.2077 of 2021 in A.S.(MD)No.131
of 2019 under Order 41 Rule 27 of the Code of Civil Procedure to
receive additional documents in A.S.(MD)No.131 of 2019. In the
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affidavit it is stated that when the petition in CMP(MD)No.6730 of 2019
in A.S.(MD)No.131 of 2019 came up for hearing on 09.09.2020, this
Court was pleased to pass an order passing final decree alone is stayed
until further orders. The plaintiff has been restricted by the first
defendant, though he got a preliminary decree. The documents, which
are sought to be received, are crucial to decide the appeal and the cross
objection, unless the same is not allowed, the plaintiff will be put great
hardship. The said petition has been filed to receive the following
documents:-
S.No. Date Description
01. Acknowledgement issued by the Central Bank of
14.01.2020 India, Dindigul.
02. Account statement of ICICI Bank,Pallapati Branch
11.03.2020
of Syed Mohammed Sulaiman.
03. 11.03.2020 Receipt issued by R.Subramanian
04. 16.03.2020 Receipt issued by Union Bank of India
05. Police complaint given by the Syed Mohammed
01.07.2020
Sulaiman to the Inspector of Police, Dindigul Taluk.
06. 01.07.2020 Online receipt of Police complaint.
Similarly, the first defendant has filed an application in CMP.(MD)
No.905 of 2025 in A.S.(MD)No.131 of 2019 to receive additional
documents. It is stated in the affidavit the following documents were not
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marked before the trial Court by their erstwhile counsel: i)Bank Pass
Book (Original), ii)Loan Sanction Letter given by the Union Bank of
India, Dindigul Branch (Original) and iii)Closing Letter for Joint
Account executed by first defendant and the first plaintiff (Original). If
the said documents are not received, then, the first defendant will be put
to irreparable hardship. Both side have filed their objections to receive
the additional documents in this appeal and cross objection.
7.At this juncture, it is relevant to read the Order 41 Rule 27 of the
Code of Civil Procedure, as hereunder:-
27. Production of additional evidence in Appellate
Court.—(1) The parties to an appeal shall not be entitled to
produce additional evidence, whether oral or documentary,
in the Appellate Court. But if —(a) the Court from whose
decree the appeal is preferred has refused to admit evidence
which ought to have been admitted, or
(aa) the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due
diligence, such evidence was not within his knowledge or
could not, after the exercise of due diligence, be produced
by him at the time when the decree appealed against was
passed, or
(b) the Appellate Court requires any document to be
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produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantial cause, the
Appellate Court may allow such evidence or document to be
produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be
produced by an Appellate Court, the Court shall record the
reason for its admission.
The reasons stated in the affidavit filed by the plaintiff and the first
defendant are not sufficient and not attracted the terms stipulated under
Order 41 Rule 27 of the Code of Civil Procedure. They have failed to
establish the conditions stipulated under Order 41 Rule 27 that the
additional documents are most relevant material to the present case. The
additional documents must be necessary to enable the Court to decide the
issue. The additional documents must not have been available before the
trial Court during trial proceedings. They have not shown that no fault
on them, for not producing the aforesaid additional documents before the
trial Court. We are of the view that there is no necessity to receive the
said documents to decide the issues involved in this appeal and the cross
objection. Therefore, the civil miscellaneous petitions in C.M.P.
(MD)Nos.2077 of 2021 & 905 of 2025 in A.S.(MD)No.131 of 2019 are
dismissed.
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8.The points for determination arises in this appeal is that,
(i)Whether the plaintiff is entitled for partition and permanent
injunction as prayed for in the suit?
(ii)Whether the sale deed executed by the first defendant in favour
of the second defendant is valid or not?
9.The learned counsel appearing for the first defendant would
submit that the suit property already partitioned between the parties in
the year 2008 itself. Therefore, the plaintiff is not having right to file the
suit for partition once again. The father of the plaintiff and the first
defendant has borrowed a loan of Rs.58,00,000/- and he died without
repaying the same. After partition under Ex.A1, the plaintiff and the first
defendant jointly running the business in 'B' schedule property and
borrowed the loan and therefore, they have to jointly discharge their loan.
He would further submit his arguments based on the several grounds
raised in this appeal.
10.The learned counsel appearing for the plaintiff in cross-
objection No.4 of 2025 would submit that the trial Court was passed
based on the evidence adduced on both side. While so, the plaintiff is
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entitled the decree for permanent injunction. He would further submit
his arguments based on the grounds raised in the cross-objection.
11.We have considered the submissions made on either side and
perused the materials available in the record.
12.It is not in dispute that one Jamal Mohamed and his wife Sheik
Sulthan Beevi have two sons, namely, Mohamed Najmudin-first
defendant and Syed Mohammed Sulaiman-plaintiff and three daughters
namely, Samsunisha, Sahitha Banu and Sabur Kamila. The said Jamal
Mohamed died on 17.10.2006. It is also not in dispute that the plaintiff
and the first defendant have obtained the properties through Ex.A1
partition deed. The suit 'A' schedule properties are agricultural lands and
suit 'B' schedule properties are ground-nut oil mill buildings and the
related lands, machineries. According to the plaintiff, the first defendant
had initially had maintained the mill business and was rendering proper
accounts to the plaintiff and paid his share of profits regularly. While so,
in the year 2014, the first defendant under the influence of the third
parties, he had stopped rendering accounts and he compelled the plaintiff
to join him in selling 'A' schedule properties. The plaintiff had refused to
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accept the demand and the first defendant, without consent and
knowledge of the plaintiff, had sold the ½ share in 'A' schedule
properties to the second defendant under Ex.A2 sale deed. Since there
was no partition effected between them, the first defendant has no right
to execute any sale deed. It is the specific case of the first defendant that
after the death of their father, the had continued their father's business.
The plaintiff and the first defendant had purchased two other properties.
They had jointly obtained cash credit facilities to the extent of
Rs.15,00,000/- and obtained mortgage loan at Rs.9,30,000/- from Union
Bank of India and also other private loans to the tune of Rs.58,00,000/-.
The plaintiff has to bear ½ share in the business loans and he agreed to
sell 'A' schedule to clear some debts. But the plaintiff has not turned up
to execute the sale deed and hence, the first defendant had executed
Ex.A2 sale deed in respect of his undivided share in 'A' schedule
property. It is an admitted fact that there is no partition between the
plaintiff and the first defendant in respect of the suit properties under
Ex.A1 partition and the first defendant himself had admitted that they
have not partitioned the suit properties and they are owning jointly.
From the above pleadings and admissions made by the parties, it is clear
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that the plaintiff and the first defendant are entitled to get ½ share each in
the suit properties.
13.According to the plaintiff, he is not aware of the loans or debts.
According to the first defendant, they have obtained the loan jointly for
their joint business. Burden of proof lies on the first defendant to prove
that the Bank loan and other private loans were availed for the benefits of
their joint business. The first defendant, in his cross-examination has
deposed that there is a recital found in Ex.A1 partition deed that after
partition, the plaintiff and the first defendant have to repay the loan
amount obtained by them individually. He admits that he has not filed
any document to show that they have joint account in a Bank and he also
admits that they are submitting income tax returns individually. Further,
he admits that he has not file any document to show that he is doing
business in suit 'B' schedule property and he has not filed any documents
to show that they were doing business jointly. Ex.B5 is the memorandum
of deposition of title deeds executed by the plaintiff and the first
defendant in favour of the Union Bank of India dated 23.10.2009,
wherein, it has been stated that by confirming the deposit already made
on 22.10.2009 with intent to create an equitable mortgage over the 'B'
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schedule properties for the purpose of securing repayment to the Bank of
all the documents owing to the Bank under advance made to J.Mohamed
Najmudeen by the Bank up to the limit of Rs.15,00,000/-. It is clear that
Ex.B5 refers to the loan taken by the first defendant alone. Ex.B6 is
receipt, wherein, it has been stated that Bank has received the entire loan
amount of Rs.9,30,000/- with interest, which was obtained on
09.08.2010, by depositing title deeds in respect of suit 'A' schedule
properties. Admittedly, the first defendant has not produced
memorandum of deposit of title deeds executed by the plaintiff and the
first defendant in respect of suit 'A' schedule properties. Therefore, it is
clear that the first defendant has not produced any valid documents to
prove that the Bank loans and private loans were obtained jointly by the
plaintiff and the first defendant.
14.It is the case of the first defendant that he had sold his
undivided ½ share in 'A' schedule properties. It is settled law that the co-
owner can sell his undivided share to the third parties. But, in the instant
case, the sale effected by the first defendant in favour of the second
defendant, does not bind the plaintiff nor his ½ share in 'A' schedule
properties. It is stated in the plaint that the plaintiff and the first
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defendant are doing joint business and that the first defendant has been
paying agricultural produce and other income from the suit properties to
the plaintiff. As a genuine principle, an injunction cannot be granted
against co-sharers or co-partners in a partition suit, as it would amount to
granting a decree in suit for partition without trial. In a reported
judgment in 2016 (8) SCC 677, K.Kamalavalli Vs. K.Rajalakshmi, it has
been held by the Hon'ble Supreme Court of India that an injunction
cannot be granted against the co-sharers (or) co-partners in a partition
suit, except in case of waste or destruction of property. In this regard, the
findings of the trial Court is that absolutely there is no evidence to show
that the plaintiff is in actual possession and enjoyment of the suit
properties along with the first defendant, therefore, the plaintiff is not
entitled to get the relief of permanent injunction. In the light of the above
discussions, there is no reasons to interfere with the judgment and decree
of the trial Court. The points are answered accordingly.
16.In the result, the First Appeal and the cross objection are
dismissed and the judgment and decree dated 09.02.2019 made in
O.S.No.81 of 2014 on the file of the learned Principal District Judge,
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Dindigul, Dindigul District is hereby confirmed. Considering the
relationship between the parties, the parties are directed to bare their own
costs. Consequently, connected miscellaneous petition is closed.
(G.R.S., J.) & (M.J.R., J.)
03.03.2025
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
gns
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To
The Principal District Judge,
Dindigul,
Dindigul District.
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G.R.SWAMINATHAN, J.
AND
M.JOTHIRAMAN,J.
gns
Pre-Delivery Judgment made in
03.03.2025
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