Madras High Court
Lakshmamma vs Shanthamma on 11 March, 2025
Author: V.Sivagnanam
Bench: V.Sivagnanam
A.S.No.172 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 03.03.2025
PRONOUNCED ON : 11.03.2025
CORAM
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
A.S.No.172 of 2019
1.Lakshmamma
2.Ramachandra Reddy
3.Gopal Reddy
4.Krishna Reddy ... Appellants
Vs.
1.Shanthamma
2.Saraswathamma
3.Suseelamma
4.Rajamma
5.Puttamma @ Mallamma
6.Anusuyamma ... Respondents
PRAYER : First Appeal has been filed under Section 96 r/w under Order 41
Rule 21 of CPC against the judgment and decree in O.S.No.6 of 2016 dated
23.11.2018 on the file of the Additional District Court, Hosur.
For Appellant ... Ms.V.Srimathi
For Respondent ... Mr.R.Poornima
Nos.1 to 4 & 6
Respondent No.5 ... Notice served
No appearance
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1/17
A.S.No.172 of 2019
JUDGMENT
Aggrieved over the Judgement and Decree dated 23.11.2018 passed in
O.S.No.6 of 2016, on the file of the Additional District Court, Hosur, the
defendants have preferred the first appeal.
2.For the sake of convenience, the parties are referred to as per their
rankings in the trial Court.
3.Suit for partition and mesne profits.
4.The defendants in O.S.No.6 of 2016 on the file of the Additional
District Court, Hosur, are the appellants herein and the respondents are the
plaintiffs therein.
5.The plaintiffs' case is as follows:
The suit properties are ancestral properties of Bodi Reddy. The first
defendant is the wife of Bodi Reddy. The plaintiffs and the defendants 2 to 4
are children of Bodi Reddy. Bodi Reddy died on 12.11.2006 leaving his wife
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the first defendant Lakshmamma and his children viz., the plaintiffs and the
defendants 2 to 4 and they had succeeded to the suit properties. They are in
joint possession and enjoyment of the same. The plaintiffs have become
coparceners along with their brothers the defendants 2 to 4 in view of the
Hindu Succession Amended Act 39/2005. Therefore, the plaintiffs are jointly
entitled to 66/100 shares. The defendants 2 to 4 jointly are entitled to 33/100
shares in the suit properties. Since the defendants were not coming for
partition, the plaintiffs filed the suit for partition to claim shares as stated
above for passing preliminary decree and thus, pleaded to allow the suit.
6.The defendants contested the suit and filed a written statement and
they admitted the relationship between the parties and denied the allegations
contained in the plaint. Further contended that all the plaintiffs got married
prior to 1985. Therefore, they are not entitled for benefit under the Act
1/1990 or Act 39/2005. During the lifetime of their father Bodi Reddy, there
was an oral partition among the father and his sons viz., the defendants 2 to 4
and the defendants 2 to 4 were given lands in Ulimangalam Village. Their
father Bodi Reddy retained the lands at Maradanapalli and also at Kasi
Agraharam Village. Since there was an oral partition, the plaintiffs are not
entitled to claim partition and thus, pleaded to dismiss the suit.
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7.The trial Court carefully perused the above pleadings and framed the
following issues for consideration;
1.,e;J thhpRhpik jpUj;jr; rl;lk; 39-2005 thjpfspd;
tHf;fpw;F bghUe;Jkh>
2/tha;bkhHp ghfg;gphptpid Vw;gl;Ltpl;ljhf gpujpthjpfs;
TwtJ rhpah>
3/khuz;lg;gs;sp fpuhk r/vz;/240-3V brhj;J jtwhf me;j
tHf;fpy; nrh;f;fg;gl;Ls;sjh>
4/thjpfs; jhth brhj;Jf;fspy; Tl;L RthjPdj;jpy;
cs;shh;fsh>
5/brYj;jpa[s;s ePjpkd;wf; fl;lzk; rhpahdjh>
6/gpuhjpy; nfhhpa[s;sgo thjpfSf;F ghfg;gphptpid kw;Wk;
,ju ghpfhu';fs; fpilf;fj;jf;fjh>
7/ntW vd;d ghpfhuk;>
8.On the side of the plaintiffs, one witness was examined as PW1 and
Ex.A1 to Ex.A11 were marked. On the side of the Defendants, three
witnesses were examined as DW1 to DW3 and Exs.B1 to Ex.B12 were
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marked.
9.On consideration of the evidence on record, the trial Court passed a
preliminary decree as prayed for with costs. Aggrieved by this judgement and
decree, the defendants preferred the appeal before this Court.
10.The points for consideration before this Court are,
i). Whether the plaintiffs are entitled to
preliminary decree as prayed for and entitled to
66/100 shares?
ii). Whether the oral partition pleaded by the
defendants is true or not?
iii). To what relief?
11.The learned counsel for the appellants/defendants submitted that the
judgement and decree of the trial Court in decreeing the suit for partition
declaring that the plaintiffs are entitled to 66/100th shares is contrary to law
and against the evidence on record and probabilities of the case. Further
contended that the trial Court overlooked the fact that the defendants, during
the life time of their father, orally divided the ancestral property by metes and
bounds and separate enjoyments have been evidenced by filing the documents
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Ex.A2 to A11 patta and A register Copy and Ex.B1 to B12 which reveals that
the separate enjoyment by the defendants had established the fact of oral
partition. In pursuance of the oral partition, parties have mortgaged the
property and obtained loan which evidenced by Ex.B4 letter to Indian Bank,
Denkanikottai. The trial Court failed to appreciate the separate enjoyment
evidenced by the defendants by filing the sufficient revenue documents and A
register patta and reiterated the other grounds in the grounds of appeal and
thus, pleaded to set aside the judgment and decree of the trial Court which is
unsustainable and contrary to evidence on record and pleaded to allow the
appeal.
12.The learned counsel for the respondents/plaintiffs supported the
judgment and decree of the trial Court and contended that Exs.A2 to A11
Patta and A registers could not be taken as evidence for oral partition. The
defendants failed to prove the oral partition. Further contended that mutation
entries in the revenue records are only to enable the State to collect revenues
from the person in possession and enjoyment of the property. The entries are
only one of the modes of proof of the enjoyment of the property. Mutation
entries do not create any title or interest therein. The defendants, during their
cross examination, are unable to evidence which portion was allotted to them
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in the oral partition and which portion was allotted to their father and they are
not able to say the extent allotted in the oral partition. They failed to prove the
oral partition. Therefore, the trial Court rightly granted the preliminary decree
in favour of the plaintiffs. There is no grounds for interference and pleaded to
dismiss the appeal as it has no merit.
13.To Support his argument, the learned counsel for the
respondents/plaintiffs relied upon the following judgments:
1.2009 -3-L.W.622 (Ramulu Ammal Vs. Ramachandra
Reddy and others)
2.2017 (2) MWN (Civil) 241 ( Chithra Vs. Saroja and
another)
3.(2021) 2 MLJ 511 (Bhoopalan and others Vs.
Govindasami)
4.2016 SCC OnLine Mad 8624 (A.Krishnan
Vs.A.Ponnaiyan (deceased and others)
5.AIR 1987 Mad 24 (P.Kaliappa Gounder and others
Vs. Muthuswami Mudaliar)
6.The decision of this Court in S.A.No.269 of 2013
dated 03.07.2023.
7.The decision of this Court in S.A.No.666 of 2015
dated 13.11.2018.
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14.I have considered the matter in the light of the submissions made by
the learned counsel for the parties and perused the materials available on
record.
15.On perusal of the records, the fact reveals that the suit properties are
the ancestral properties of Bodi Reddy is admitted. The relationship between
the parties are also admitted. Bodi Reddy died on 12.11.2006 is also admitted.
The plaintiffs are the daughters and the defendants 2 to 4 are sons of Bodi
Reddy. According to respondents/plaintiffs, the suit properties are not
effected partition till date. The plaintiffs have become coparceners along with
the defendants 2 to 4 as per the Hindu Succession Amended Act 39 of 2005
which came into force on 09.09.2005. The defendants contested the suit on
the ground that an oral partition was effected in respect of the suit properties
with their father Bodi Reddy in the year 1982 in the presence of Village
Elders.
16.I have gone through the oral evidence of the parties and the
documents filed by them. PW1 examined herself and filed documents as
Ex.A1 to A11. On the defendants' side, defendants examined Dws1 to 3 and
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filed documents as Exs.B1 to B12. Ex.A2 to A8 are patta stand in the name of
Bodi Reddy and Exs.A9 to A11 are A registers in the name of Ramachandra
Reddy (D2), Gopal Reddy (D3), Krishna Reddy (D4). Exs.B1 to B10 are
patta, notice and letter issued by Indian Bank in the name of Ramachandra
Reddy (D2), Gopal Reddy (D3), Krishna Reddy (D4). The cross examination
of DW2 runs as follows:
“kUjhdg;gs;sp fpuhkj;jpYk;. vd; mg;gh
fhrp mf;ucwhuk; fpuhkj;jpYk; ,Uf;fpw jhth
brhj;Jffs; v';fs; K:d;W ngUf;Fk; ghfk;
gphpj;J bfhLj;jjhf gjpypy; brhy;ypa[s;nshk;/
kUjdg;gs;sp fpuhkj;jpy; ve;j ve;j r/vz;zpy;
vt;tst[ tp!;jPuzk; ghfk; ghpj;Jf; bfhz;lhh;
vd;W brhy;y Koa[kh vd;why; brhy;yKoahJ/
fhrp mf;ucwhuk; fpuhkj;jpy; cs;s epy';fis
eh';fs; K:d;W ngUk; bghJthf mDgtpj;J
tUfpnwhk;/ kUjdg;gs;sp fpuhkj;jpy;
xt;bthUtUf;Fk; Ie;J Vf;fh; ghfk; te;jJ/
vd; mg;ghtpw;F ghfj;jpy; brhj;J vJt[k;
bfhLf;ftpy;iy/”
17.Admittedly, the suit properties are ancestral properties of Bodi
Reddy. The plaintiffs and the defendants are legal heirs of Bodi Reddy. He
died on 12.11.2006 intestate. In viw of the decision of Full Court ( 3 judges)
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of the Hon'ble Supreme Court in Vineeta Sharma vs Rakesh Sharma and
others 2020 9 SCC page 1, the plaintiffs became coparceners are entitled for
partition in the ancestral properties. Admittedly, there is no partition effected
by a decree of Court or effected by the Registered instruments on or before
20.12.2004. The only plea of the defendants are, there was an oral partition in
the year 1982. Therefore, a plea of partition based on the oral partition has to
be proved it ought to be supported by public documents.
18.As stated above, in the cross examination of DW2, he is not able to
speak about the extent of land allotted for each defendant in the oral partition
and the cross examination extracted above, is not in support of the oral
partition set out by the defendants. In para No.8 of the Division Bench of this
Court P.Kaliappa Gounder and others Vs. Muthuswami Mudaliar reported in
AIR 1987 Mad. 24 stated that:
“ 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
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is true that 'partition' is not a transfer. But there must be the
element of conversion as 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 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 carried 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.”
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19.Keeping in mind the above principle when I examined the present
case, I am of the view that the oral partition set out by the defendants has not
been established.
20.Further, with regard to the mutation entries in the revenue records,
the Hon'ble Supreme Court in the case of Sankalchan Jaychandbhai Patel
and others V. Vithalbhai Jaychandbhai Patel and others, 1996 (6) SCC
433, it has been held that, it is settled law that mutation entries are only
enable the State to collect revenues from the person in possession and
enjoyment of the property and that the right, title and interst as to the
property should be established de hors the entries. Entries are only one of
the modes of proof of the enjoyment of the property. Mutation entries do
not create any title or interest therein.
21.In Ramulu Ammal v. Ramachandra Reddy and Others [2009-3-
L.W. 622], the plea with regard to oral partition by marking of revenue
records to sustain the same came up for consideration and it is relevant to
extract the following paragraphs of the said judgment:
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“23. The onus of proof as well as the onus probandi is
on the defendant to prove that there was oral partition before
the panchayatars. But it is clear that absolutely there is no
evidence much less reliable evidence to uphold the alleged
oral partition. No panchayatar was examined on the side of
the defendant to prove such panchayat was held and the oral
partition took place. In a village, if really a partition had
taken place in the presence of panchayatars, certainly some
evidence in that regard must be available and the same
should have been adduced before the court. But, that was not
done so.
24. The learned counsel for the plaintiffs appositely
and appropriately would invite the attention of this Court to
the indubitable fact that DW2 who was examined on the side
of the defendant to prove oral partition admittedly was a
small boy, aged about 5 years at the time of panchayat and
he also during cross examination candidly admitted that
since the deceased D1 told him about the oral partition, he
came to know about it.
25. It is obvious and axiomatic, apparent and explicit
that such sort of hear say evidence in this sort of serious
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matters is totally not permissible legally. DW1, the widow of
deceased D1 only relied on the evidence of DW2 to prove the
alleged oral partition. Hence, the contention of the plaintiffs
that there was no oral partition, is well founded.
In para 29 of the said judgment, the learned Single
Judge of this Court has placed reliance upon the decisions
in Girija Nandini Devi and Others v. Bijendra Narain
Choudary [AIR 1967 SC 1124], Sawarni v. Inder Kaur and
Others [1996 (6) SCC 223], Kammavar Sangam through its
Secretary R.Krishnasamy v. Mani Janagarajan [1999 (III)
CTC 304 = 1999-3-L.W.727], Guruvammal and another v.
Subbiah Naicker and Others [1999 (III) CTC 650 = 2000-1-
L.W.488] and Gopaliappa v. Madanagiriappa and 3 others
[(2008) 4 MLJ 781] and held that based on mere revenue
records, serious partition suits relating to respective rights of
parties of Hindu families, cannot be decided in favour of a
person on the sole ground that patta stands in the name of
such person. In the considered opinion of the Court, the ratio
laid down in the said decision squarely applies to the facts of
this case and except marking revenue records, namely
Exs.B1 to B10, no other tenable evidence has been produced
to sustain the case of the defendants”
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22.In view of the above, the oral partition set out by the appellants has
not been established and the mutation of the revenue records is not helpful to
support the case of oral partition. The trial Court rightly passed the
preliminary decree as prayed for and I find no merit in the appeal and the
appeal is liable to be dismissed. Accordingly, the appeal fails and the same is
dismissed. No costs. Consequently, the connected miscellaneous petition, if
any, is closed.
Index/Internet: Yes / No
Speaking order: Yes/No 11.03.2025
sms
To
1.The Additional District Court, Hosur.
2.The Section Officer, VR Section High Court, Madras.
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V.SIVAGNANAM, J.
sms
Pre-delivery judgment made in
11.03.2025
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