Madras High Court

C.Shanmugaraja vs J.Rathina Kamala ...1St on 13 March, 2025

Author: R.Vijayakumar

Bench: R.Vijayakumar

                                                                                       C.R.P.(PD)(MD)No.513 of 2025




                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                        RESERVED ON                   : 07.03.2025

                                        PRONOUNCED ON : 13.03.2025

                                                         CORAM

                                  THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR

                                         C.R.P.(PD)(MD)No.513 of 2025
                                                     and
                                          C.M.P(MD)No.2809 of 2025

                C.Shanmugaraja                       ...Petitioner/2nd Respondent/2nd Defendant


                                                       Vs.


                1.J.Rathina Kamala                  ...1st Respondent/Petitioner/Plaintiff
                2.Tamilarasi                        ...2nd Respondent/1st Respondent/1st Defendant
                3.T.Muthulakshmi
                4.C.Balasubramanian
                5.C.Selvi
                6.A.Thangamariappan
                7.S.Johnson                         ...Respondents 3 to 7/Respondents 3 to 7/
                                                           Defendants 3 to 7

                PRAYER: Civil Revision Petition is filed under Article 227 of Constitution of
                India, against the order and decreetal order in I.A.No.3 of 2024 in O.S.No.276
                of 2022, dated 04.12.2024 on the file of III Additional District Court,
                Tirunelveli, and allow this Civil Revision Petition with costs.


                                     For Petitioners         : Mr.R.Ponkarthikeyan
                                     For Respondents : Mr.V.Meenakshi Sundaram for R1

                                                        *****
https://www.mhc.tn.gov.in/judis              ( Uploaded on: 13/03/2025 07:07:34 pm )



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                                                                                         C.R.P.(PD)(MD)No.513 of 2025




                                                         ORDER

The second defendant in O.S.No.276 of 2022, on the file of the Third

Additional District Court, Tirunelveli, has filed the above revision petition,

challenging an order issued by the trial Court directing the second defendant to

let in evidence first.

2.A perusal of the records reveal that the first respondent in the revision

petition had filed the above said suit for the relief of partition and separate

possession of her alleged 1/6 share in the suit schedule properties and in the

accumulated rent collected from the buildings in the first and second schedule

properties, which is shown as the third schedule property.

3.Both the suit schedule properties were the absolute properties of the

father of the plaintiff and the defendants 1 to 5, namely, M.S.Chidambaram

Nadar. He had died intestate leaving behind his wife Unnamalai Ammal and his

sons and daughters. The wife of M.S.Chidambaram Nadar, namely, Unnamalai

Ammal had also died intestate in October 2012. The plaintiff and the defendants

1 to 5 are each entitled to 1/6 shares of the properties. These facts are not

disputed in the written statement filed by the second defendant.

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C.R.P.(PD)(MD)No.513 of 2025

4.The second defendant in his written statement had contended that he

had borrowed bank loan to an extent of Rs.4,50,000/- for renovating the second

suit schedule property. He had further contended that the property of Unnamalai

Ammal is located in Pettai Sundara Vinayagar Temple, 18 sovereigns of jewels,

bank deposit of Rs.4,04,000/- and Rs.10,00,000/- worth household items were

left behind by the said Unnamalai Ammal. They have not been included in the

partition suit. Similarly, the father of the plaintiff and the defendants 1 to 5 was

the owner of 1.08 acres of Nanja land. This property has also not been included.

Therefore, the suit is bad for partial partition.

5.The second defendant has further contended that the female legal heirs,

namely, the plaintiff, the defendants 1, 3 and 5 have already orally relinquished

their shares in the suit schedule property, 48 years back. In the said oral

partition, the first item was allotted to the fourth defendant and second item was

allotted to the second defendant. Since already partition has taken place, the

present suit for partition is not maintainable.

6.The plaintiff had filed I.A.No.3 of 2024, under Order 18 Rules 1 and 2

of C.P.C. for a direction to the second defendant to start his evidence before the

plaintiff side evidence. It is alleged in the said petition that after admitting

relationship, shares and the character of the property, has taken the defence that https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/03/2025 07:07:34 pm )

C.R.P.(PD)(MD)No.513 of 2025

already oral partition has taken place. In such circumstances, the second

defendant alone has to be directed to let in evidence first.

7.The second defendant has filed counter contending that apart from oral

partition, he has also taken a stand that the suit is bad for partial partition. The

suit has been undervalued and proper Court fee has not been paid. The second

defendant has further contended that suppressing various facts, the suit has been

filed for partition. In such circumstances, the question of issuing a direction to

the second defendant to begin the case does not arise.

8.The trial Court after considering the pleadings and submissions made

on either side, has proceeded to allow the application on the ground that when

the shares of the parties are admitted and the second defendant claims that

already partition had taken place, the said fact has to be proved by the second

defendant alone. Based upon the above said observations, the trial Court had

directed the second defendant to begin the case. Challenging the same, the

present revision petition has been filed by the second defendant.

9.According to the learned Counsel appearing for the revision petitioner,

when several defences, apart from the plea of oral partition, have been taken, in

such circumstances, the Court cannot issue a direction to the defendants to

prove begin first. He further contended that the right to begin, is a right https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/03/2025 07:07:34 pm )

C.R.P.(PD)(MD)No.513 of 2025

conferred upon a particular party to let in evidence at the first instance. This

provision cannot be used to compel the defendants to let in evidence first.

10.The learned Counsel appearing for the revision petitioner has relied

upon the Division Bench Judgment of our High Court reported in 2010 (5) Law

Weekly 454, and contended that the right mentioned under Order 18 Rules 1

and 2 of C.P.C. would not give the plaintiff a further right to compel the

defendant to produce his evidence at the first instance. The leaned Counsel

appearing for the revision petitioner has also relied upon the judgment of our

High Court reported in 2017 (1) CTC 305, wherein, this Court has held that the

defendant cannot be compelled to adduce evidence first, when multiple grounds

have been raised in the written statement. When several defences are taken by

the defendant in his written statement, the trial Court was not correct in

directing the defendant to let in evidence at the first instance. Relying upon the

said decisions, the learned Counsel appearing for the revision petitioner had

contended that when a plea of partial partition, undervaluation of the suit and

suppression of the material facts have been raised, as defences, apart from oral

partition, the defendant cannot be compelled to adduce evidence first.

11.Per contra, the learned Counsel appearing for the respondents herein

had contended that the second defendant, having admitted the character of the

property, quantum of shares and the fact that M.S.Chidambaram Nadar had died https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/03/2025 07:07:34 pm )

C.R.P.(PD)(MD)No.513 of 2025

intestate has to adduce evidence first. The plaintiff and other defendants who

are sailing with the plaintiff had filed an affidavit before this Court to the effect

that the plea of partial partition though raised in the written statement, would

not affect the result of the suit. In paragraph Nos.6 and 7 of the said affidavit, it

is contended that as far the properties of Unnamalai Ammal is concerned, those

properties are yet to partitioned among the siblings of Unnamalai Ammal. In

such circumstances, those properties cannot be included in the present suit

which has been laid for partition of the properties of M.S.Chidambaram Nadar.

12.It is further contended on the side of the respondents that as far as the

property of 1.08 of Nanja land in Argunnkulam Village, Tirunelveli Taluk, is

concerned, the said property is not a family property and the second defendant

is at liberty to take the said property absolutely without affecting his right of 1/6

shares in the suit schedule property.

13.Relying upon the above said affidavit, the learned Counsel appearing

for the respondents herein had contended that when the plea of the partial

partition had already been answered in the reply statement filed by the plaintiff

and by way of affidavit before this Court, no other defence has been made out

by the second defendant to oppose the prayer for partition. In such

circumstances, the entire burden would be upon the second defendant to

establish the plea of oral partition. Therefore, the trial Court has rightly allowed

the application and has directed the second defendant to begin the case. https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/03/2025 07:07:34 pm )

C.R.P.(PD)(MD)No.513 of 2025

14.The learned Counsel appearing for the respondents has also relied

upon the Hon'ble Division Bench of our High Court reported in 2010 (5) Law

Weekly 454, wherein the Hon'ble Division Bench in paragraph No.28 has held

that the question of defendant beginning the case would arise only in cases

wherein the defendant admits the facts alleged in the plaint and contends that

either on point of law or on some additional facts alleged by him, the plaintiff is

not entitled to any part of the relief which he seeks. Hence, in the present case,

the defendant having admitted the character of property, relationship and shares,

is duty bound to produce his evidence first.

15.I have considered the submissions made on either side and perused the

materials available on record.

16.The written statement filed by the second defendant reveals that he has

admitted the relationship between the parties, the character of the property and

the quantum of shares. However, the defendant has taken a specific stand in

paragraph Nos.8 and 9 of the written statement that the suit is bad for partial

partition for not including certain properties of Unnamalai Ammal (Mother) and

one of the properties of M.S.Chidambaram Nadar (Father). Apart from this

defence, the second defendant has also contended that the female legal heirs of

the M.S.Chidambaram Nadar have orally relinquished their shares. It has further https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/03/2025 07:07:34 pm )

C.R.P.(PD)(MD)No.513 of 2025

averred in the written statement that by way of oral partition, the first item was

allotted to the fourth defendant and the second item was allotted to the second

defendant.

17.It is the case of the plaintiff and the other defendants sailing along

him, that in the reply statement as well as the affidavit filed before the Court,

they have explained the circumstances in which the properties of Unnamalai

Ammal and M.S.Chidambaram Nadar have not been included in the suit.

Whether the explanation offered by the plaintiff relating to partial partition, is

legally acceptable or not, has to be decided only based upon oral and

documentary evidence. In case, if the trial Court arrives at a finding that the

explanation offered by the plaintiff is not legally sustainable, then the suit for

partition would fail on the ground of partial partition. Merely upon the reply

statement and the affidavit filed before this Court, this Court cannot brush aside

the defence taken by the second defendant in his written statement, relating to

partial partition. In such circumstances, the defendant cannot be compelled to

adduce evidence first.

18.The trial Court merely relying upon the plea of oral partition taken by

the second defendant, has proceeded to pass the impugned order without

considering the plea of partial partition and the effect of explanation offered by

the plaintiff in his reply statement. In such circumstances, the burden would be https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/03/2025 07:07:34 pm )

C.R.P.(PD)(MD)No.513 of 2025

upon the plaintiff to establish that she is legally entitled to exclude the property

standing in the name of Unnamalai Ammal and another property of

M.S.Chidambaram Nadar. Hence, the impugned order of the trial Court is liable

to be set aside. Accordingly, it is set aside.

19.In the result, this Civil Revision Petition stands allowed. No costs.

Consequently, connected miscellaneous petition is also closed.

13.03.2025 Internet:Yes/No Index:Yes/No RJR

The III Additional District Judge, Tirunelveli.

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