[Cites 7, Cited by 0]
Madras High Court
Vimaladevi vs Jagadeesan on 28 November, 2025
S.A.No.238 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 16.09.2023
Pronounced on 28.11.2025
CORAM
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
S.A.Nos.238 & 239 of 2025
1.Vimaladevi
2.Thiruvenkadam ...Appellant in both S.As
Vs.
1.Jagadeesan
2.Premalatha ...Respondents in S.A.No.238/2025
1.Jagadeesan
2.Premalatha
3.The Sub Registrar
Omalur Town & Post,
Omalur Taluk, Salem Disrict.
4.The District Registrar,
Salem.
5.The District Collector,
Page 1 of 15
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 08:00:17 pm )
S.A.No.238 of 2025
Collectorate, Salem. ...Respondents in S.A.No.239 of 2025
Prayer in S.A. No.238 of 2025 : Second Appeal filed under Section 100
CPC, 1908 to set aside the decree and judgment dated 25.07.2024 passed
in A.S. No.5 of 2023, on the file of the Sub Judge, Omalur, confirming
the Judgment and decree dated 07.03.2023 passed in O.S. No.238 of
2015, on the file of the District Munsif, Omalur.
Prayer in S.A. No.239 of 2025 : Second Appeal filed under Section 100
CPC, 1908 to set aside the decree and judgment dated 25.07.2024 passed
in A.S. No.6 of 2023, on the file of the Sub Judge, Omalur, Salem
District confirming the Judgment and decree dated 07.03.2023 passed in
O.S. No.390 of 2015, on the file of the District Munsif, Omalur.
For Appellant : Mr.T.Ganesan
in both the appeals
For Respondents :Mr.Naveen Kumar Murthi
in both the appeals for V.Vedachalam for R1 & R2
Mr.V.Ramesh,
Government Advocate for R3 to R5
in S.A.No.239 of 2025
Page 2 of 15
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 08:00:17 pm )
S.A.No.238 of 2025
COMMON JUDGMENT
The above second appeals arise out of the judgment and decree
dated 25.07.2024 passed in A.S. No.5 of 2023 and A.S. No.6 of 2023,
on the file of the Sub Judge, Omalur, Salem District, confirming the
judgment and decree dated 07.03.2023 in O.S. No.238 of 2015 & O.S.
No.390 of 2015 respectively on the file of the District Munsif, Omalur.
2. The plaintiffs 2 and 3, the appellants herein, filed a suit in
O.S.No.238 of 2015 for partition and for permanent injunction
restraining the defendants from encumbering the suit property. The suit in
O.S.No.390 of 2015 is filed for the relief of permanent injunction
restraining the defendants 3 and 4 from entertaining or registering any
kind of document in respect of the suit properties if placed by the
defendants 1 and 2 in the above suit till the disposal of the partition suit
in O.S.No.238 of 2015.
3. The case of the appellants (plaintiffs 2 and 3 herein) in
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 08:00:17 pm )
O.S.Nos.238 & 390 of 2015 is as follows:
3.1. The appellants, (the plaintiffs 2 and 3 herein), filed the suit in
O.S.Nos.238 & 390 of 2015 for partition by stating that the 1st defendant
is the brother of the plaintiffs. Originally, the suit properties and other
properties belonged to the plaintiffs' mother of Akilandammal. The said
Akilandammal had three sons namely Sairam, Plaintiff Vishwanathan and
1st defendant Jagadeesan and one daughter namely Kanmani @
Vijayalakshmi. The plaintiff's father Singaram had died. Thereafter, the
said Akilandammal executed a Will in favour of the 1st defendant on
08.07.1999 and the same was registered before the Sub Registrar Office,
Omalur. But the said Will was not acted upon. All the properties
remained in common possession and enjoyment by the said
Akilandammal and her children. On 23.09.2000 Akilandammal died,
after the demise of Akilandammal, her sons and daughters entered into a
registered partition deed on 19.10.2000 and in the said partition deed the
participants of the document have taken 53 cents each out of 2.52 acres
in S.No.27/3 and 1 acre out of 1.98 acre in S.No.27/1A2, which includes
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 08:00:17 pm )
the property stated in the Will. Since the above properties were jointly
enjoyed by the joint family, this would goes to show that the Will was not
acted upon. As per the partition deed, the plaintiff, 1 st defendant, brother
Sairam and sister Kanmani were separately allotted property and they had
been in separate possession and enjoyment of the respective shares as per
the partition deed. The properties which were not included in the
partition deed are the suit properties. The 1st plaintiff has developed the
suit properties by spending huge amount and he alone took care of his
mother, brother Sairam and sister Kanmani. Hence, the plaintiff's mother
Akilandammal gifted the suit properties to the 1st plaintiff and 1st
defendant to be enjoyed by them jointly in the presence of elders. Thus
the suit property absolutely belongs to the 1st plaintiff and the 1st
defendant alone. There was no partition by metes and bounds in respect
of the suit properties between the plaintiffs and the 1st defendant till
date. Hence, the plaintiff and the 1st defendant are each entitled to half
share in the suit properties. While so, the 1st plaintiff's another brother
Sairam and his daughter Premlatha, who is the 2nd defendant, induced the
1st defendant to sell the suit properties in favour of the 2nd defendant. The
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 08:00:17 pm )
panchayat was also convened on 28.06.2015 in this regard and it was the
panchayatars advised the defendants to allot half share in the suit
properties to the plaintiff. But, the 1st defendant did not agree for
amicable settlement. Hence, the plaintiff was constrained to file the
above suits for partition and for permanent injunction.
3.2. The claim of the Appellants/plaintiffs 2 and 3 was resisted by
the respondents 1 & 2 /defendants in O.S.Nos.238 & 390 of 2015 by
stating that the Will executed by the mother Akilandammal was duly
proved in accordance with the mandatory provision under Indian
Evidence Act, 1872. His further submission is that the courts below after
considering the entire evidence available on record held that the Will has
been proved in accordance with Section 68 of Indian Evidence Act, 1872,
especially when the Will is duly executed, satisfying the requirements of
Section 63(c) of Indian Succession Act. His further contention is that the
plaintiffs themselves admitted the execution of Will and that as per
Sections 56 to 58 of Indian Evidence Act, 1872, it leads to the only
conclusion that the facts that are admitted are not required to be proved.
His further contention is that the execution of the Will is categorically
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 08:00:17 pm )
admitted and therefore, the same is binding on the plaintiffs.
4. The respondents 3,4 & 5 /defendants 3, 4 & 5 in O.S.No. 390
of 2015 resisted the claim of the appellants/plaintiffs 2 & 3 by stating
that under Rule 55 of the Indian Registration Act, 1908, it is not the duty
of the Registering Officer to inquire into oral or written objections that a
document brought for registration is legally invalid, or that the person
executing the document has no right to execute it. Hence, prayed for
dismissal of the suit.
5.The trial Court, upon considering the materials on record,
dismissed the above two suits against which the plaintiffs preferred
appeal suits in A.S.Nos. 5 and 6 of 2023. The 1st Appellate Court
dismissed the appeal suits filed by the plaintiffs. Aggrieved by this, the
present second appeals are preferred by the appellant/plaintiffs.
6.Learned counsel appearing for the appellants/plaintiffs submits
that the Courts below failed to consider the fact that the Will executed
by Akilandammal in favour of the 1st defendant is not acted upon as the
1st defendant included part of the property in the Will, in the partition
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 08:00:17 pm )
deed. He would further submit that merely cancelling the revenue records
standing in the name of the 1st plaintiff will not effect the rights of the
plaintiffs. His further contention is that the 1st defendant failed to prove
the Will in accordance with law and the same was not considered by the
Courts below. Hence, he prays for setting aside the judgment and decree
passed by the Courts below.
7.On the other hand, the learned counsel for the respondents 1 & 2
/defendants 1 & 2 in O.S.Nos.238 & 390 of 2015 would submit that the
Will executed by the mother Akilandammal was duly proved in
accordance with the mandatory provision under Indian Evidence Act,
1872. His further submission is that the Courts below, after considering
the entire evidence available on record, held that the Will has been
proved in accordance with 68 of Indian Evidence Act, 1872, especially
when the Will is duly executed satisfying the requirements of Section
63(c) of Indian Succession Act. His further contention is that the
plaintiffs themselves admitted the execution of Will and that as per
Section 56 to 58 of Indian Evidence Act, 1872, it leads to the only
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 08:00:17 pm )
conclusion that the facts that are admitted are not required to be proved.
His further contention is that the execution of the Will is categorically
admitted and therefore, the same is binding on the plaintiffs.
8.Further, the learned counsel for the respondents 3, 4 &5
/defendants 3, 4 & 5 in O.S.No.390 of 2015 would submit that under
Rule 55 of the Indian Registration Act, 1908, it is not the duty of the
Registering Officer to inquire into oral or written objections that a
document brought for registration is legally invalid, or that the person
executing the document has no right to execute it. However, the Sub-
Registrar is bound to consider the objections raised on the following
grounds:
i. the person appearing or about to appear before the Registering
Officer is not who they claim to be.
ii the documents presented are fraudulently signed.
iii. the person claiming to act as an agent under a Power of
Attorney has no authority to appear in that capacity.
iv. the executant, alleged to be the person who executed the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 08:00:17 pm )
document, is not actually dead as claimed.
v. the executant is a minor, or is of unsound mind, or is mentally
incapacitated.
9.Only on these grounds, the Registering Officer have the authority
to refuse registration of the document. If the case relates to property
description being incorrect, such objection is liable to be dismissed. To
support his contention he would rely upon the judgment reported in
A.S.No.299 of 2013 dated 09.03.2023 in Boomathy Vs. Murugesan and
Others Manu/TN/1250/2023. Hence, the Courts below have rightly
dismissed the suits filed by the appellants/plaintiffs which warrants any
interference by this Court.
10.Heard on both sides and records perused.
11.The Second Appeal No.238 of 2025 has been admitted on the
following substantial questions of law:
''1.Whether the common property is eligible for
getting partition, while the previous partition deed non-
consist of the property?
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 08:00:17 pm )
2.Whether the unproved will is to be considered as a
valid and acted upon will?
3.Whether the property mentioned in the will
included in the partition deed then as the will is came into
force?''
12.The Second Appeal No.239 of 2025 has been admitted on the
following substantial question of law:
Whether the plaintiff have a right to get
permanent injunction up on the property, which is to be
partition with the defendant?''
13.Admittedly, the execution, genuineness and validity of the Will
dated 08.07.1999 executed by the deceased Akilandammal in favour of
the 1st defendant marked as Ex.B2 is not disputed by the
plaintiffs/appellants. The only contention raised by the plaintiffs is that
the Will was not acted upon by referring to the fact that certain portion of
the properties found in the Will are dealt with while partitioning the
family properties under a partition deed dated 19.10.2000 which is
marked as Ex.A3. The contention of the 1st defendant is that since there
was a dispute between the brothers with respect to the family properties,
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 08:00:17 pm )
the 1st defendant agreed for partition of some portion of property
mentioned in the Will which cannot be construed that the Will was not
acted upon. He would further submit that after the said partition, the
plaintiff and the 1st defendant and their other brother Sairam are in
possession and enjoyment of their respective shares, the revenue records
are mutated in their names. While so, the remaining portion of the
properties mentioned in the Will is in possession and enjoyment of the 1st
defendant and an exclusive patta was assigned in his name in the year
2003. While so, the 1st plaintiff fraudulently changed the patta in his
favour for the above properties and when the same was brought to the
knowledge of the 1st defendant, he approached the revenue authority
stating that the patta was fraudulently provided in the name of 1st plaintiff
and the same was cancelled after due enquiry. Since the
plaintiffs/appellants have admitted the Will and failed to raise any issue
on the validity and genuineness of the Will, as rightly putforth by the
learned counsel for the respondent, the appellants/plaintiffs cannot
agitate that the said Will was not acted upon. Moreover, by parting
certain portion of the properties itself does not amount to, the Will not
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 08:00:17 pm )
being acted upon. Therefore, the Courts below have rightly dismissed the
suits filed by the appellants/plaintiffs in O.S.Nos.238 & 390 of 2015. No
infirmity or perversity is found in the said finding of the Courts below,
which warrants any interference by this Court. Moreover, the above
questions raised in the second appeals are more of factual aspects and
that there is no substantial questions of law to entertain in these second
appeals.
14.In the result,
i. these second appeals are dismissed as devoid of merits. No
costs.
ii. the judgment and decree dated 25.07.2024 passed in A.S.
Nos.5 & 6 of 2023, on the file of the Sub Judge, Omalur, confirming the
Judgment and decree dated 07.03.2023 passed in O.S. Nos.238 & 390 of
2015, on the file of the District Munsif, Omalur, is upheld.
28. 11.025
vsn
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 08:00:17 pm )
To
1. The Sub Judge, Omalur,
2. The District Munsif, Omalur.
3. The Section Officer, VR Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 08:00:17 pm )
K.GOVINDARAJAN THILAKAVADI,J.
vsn
Pre- delivery judgment made in
S.A.Nos.238 & 239 of 2025
28.11.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 08:00:17 pm )
