Madras High Court
V.Shree Gandhi vs Kalamani on 23 October, 2025
2025:MHC:2426
A.S.NO.944 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 23 / 07 / 2025
JUDGMENT PRONOUNCED ON : 23 / 10 / 2025
CORAM:
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
APPEAL SUIT NO.944 OF 2015
AND
M.P.NO.1 OF 2015
1.V.Shree Gandhi
2.V.V.Murugesan ... Appellants /
Defendants 1 & 2
Vs.
1.Kalamani ... Respondent No.1/
Plaintiff
2.Ponnayammal (Died)
[Note:Respondent No.2 passed away.
Memo dated November 30, 2023
filed stating that legal representatives
of deceased second respondent are
already on record, namely appellants
and first respondent. Memo recorded
vide Order of this Court dated July
23, 2025]
3.Rajendran
4.Appichi Gounder
5.T.Murugan (Exonerated)
6.R. Thangaraj ... Respondents 2 to 6 /
Defendants 3 to 7
Page No.1 of 38
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PRAYER: First Appeal filed under Section 96 read with Order XLI Rule
33 of the Code of Civil Procedure, 1908 praying to set aside the Judgment
and Decree dated August 6, 2015 passed in O.S.No.185 of 2013 on the file
of I Additional District Judge, Erode.
For Appellant No.1 : Mr.A.Sundaravadhanan
For Appellant No.2 : Mr.S.Ramesh
For Respondent No.1 : Mr.Murugamanickam
Senior Advocate for
Mr.V.S.Kesavan
For Respondent No.2 : Passed away
(Memo recorded vide Order of
this Court dated 23.07.2025)
For Respondents 3 & 4 : Mr.Pachiyappan
for Mr.D.Baskar
For Respondent No.5 : Not ready in notice
For Respondent No.6 : Mr.K.S.Jeyaganeshan
JUDGMENT
Feeling aggrieved by the Judgment and Decree dated August 6,
2015 passed in O.S.No.185 of 2013 by the 'I Additional District Court,
Erode' ['Trial Court' for brevity], the defendants 1 and 2 therein have filed
this Appeal Suit under Section 96 read with Order XLI Rule 33 of 'the
Code of Civil Procedure, 1908' ['CPC' for short].
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2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit.
PLAINTIFF'S CASE
3. Case of the plaintiff as put forth in the plaint and the reply
statement is as follows:
3.1. The suit properties along with some other properties were
originally an ancestral entitlement of Karuppana Gounder. Karuppana
Gounder had one son namely Velappa Gounder and four daughters namely
Rasayammal, Pappayammal, Kolandayammal and Pavayammal. Velappa
Gounder married Ponnayammal / third defendant and has two sons viz.,
the Defendant Nos.1 and 2 and one daughter viz., the plaintiff in the
wedlock.
3.2. Karuppana Gounder and his four daughters filed a Suit for
partition in respect of ancestral properties and 75 Cents land left behind by
their mother, vide O.S. No.2855 of 1981 on the file of District Munsif,
Erode. A compromise was struck and its result was Partition Deed dated
September 25, 1981.
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3.3. Vide Partition Deed dated September 25, 1981, ancestral
properties including the suit properties were partitioned. In the partition,
Karuppana Gounder was given life interest over a house property
described in “A” Schedule thereof, which is to go to the hands of his
daughters and Defendant Nos.1 and 2 after his lifetime. Further, the
Defendant Nos.1 and 2, for themselves and on behalf of the plaintiff and
her mother / third defendant, were together allotted an extent of common 4
Acres 85 Cents in the total extent of 9 Acre 70 Cents as described in the
“B” Schedule thereof, while Karuppana Gounder's four daughters were
together allotted 2 Acres of land described in “C” Schedule thereof.
Properties under “B” Schedule thereof viz., half share in the total extent of
9 Acre 70 Cents forms the suit properties herein.
3.4. The family was having half share only and the remaining half
belonged to other co-sharers who are third parties. The marriage of
plaintiff took place on September 13, 1981 i.e., a few days before the
partition and since her husband Subramani was not possessed of an
ancestral house to live in, the plaintiff chose to live with her husband in
the house belonging to the family. In these circumstances, having utmost
faith in the words of first defendant, the plaintiff and her mother / third
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defendant agreed that they need not be allotted separate shares, instead
suit properties may be allotted in the names of Defendant Nos.1 and 2. The
plaintiff never intended to give up on her share in the suit properties, but
only wanted to remain joint till a final partition being effected among all
the co-sharers. In short, in the Partition Deed dated September 13, 1981,
the suit properties were jointly allotted to the plaintiff and Defendant
Nos.1 and 2, but in the name of Defendant Nos.1 and 2.
3.5. While so, without the knowledge of the plaintiff, the Defendant
Nos. 1 and 2 entered into a partition on June 23, 1983 with co-sharers and
the Defendant Nos.1 and 2 were together allotted the southern half share
of 4 Acre 16 Cents. The plaintiff is a necessary party for the Partition Deed
dated June 23, 1983 and as she was omitted, it does not bind her.
3.6. The plaintiff has been in joint possession and enjoyment of the
suit properties along with Defendant Nos.1 and 2, all along raising crops
thereon. The plaintiff's husband was an agent for sale of Aavin Milk and
he was doing the said business in a portion of the suit properties.
3.7. On the death of Velappa Gounder in or about the year 1975, the
plaintiff and the third defendant became entitled to common 1/12 th share
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each in the suit properties, whereas the defendants 1 and 2 became entitled
to common 5/12th share each.
3.8. The second defendant is trying to alienate a specific portion of
suit properties. The Defendant Nos. 1 and 2 are refusing partition and
attempting to defeat and defraud the rights of the plaintiff. Hence, the
plaintiff filed the present Suit for partition and separate possession.
3.9. The second defendant in his written statement alleged that he had
sold certain extent of land to third parties viz., the defendants 4 to 7. The
above said transactions of sale are void and will not bind the plaintiff in
any manner.
DEFENDANT'S CASE
4. Defendant Nos.1 and 2 filed separate written statements followed
by separate additional written statements. The case of Defendant Nos.1
and 2 as projected in their written statements is in essence one and the
same. The relationship between the parties as stated in the plaint is
admitted. Sum and substance of the written statement is that Karuppana
Gounder was totally entitled to 6 Acre 20 Cents in common without a
permanent partition with other co-sharers.
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4.1. Karuppana Gounder along with his four daughters had filed a
Suit against plaintiff and Defendant Nos.1 to 3, and there was a panchayat
convened in respect of it, wherein a compromise was struck and a family
partition was effected vide Partition Deed dated September 25, 1981.
4.2. Vide Partition Deed dated September 25, 1981, the plaintiff and
mother / third defendant relinquished their shares in favour of defendant
Nos.1 and 2. Defendant Nos.1 and 2 jointly allotted an extent of common
4 Acre 85 Cents described under “B” Schedule thereof.
4.3. Pursuantly, Defendant Nos.1 and 2 sold an extent of 75 cents
within specific four boundaries out of the common 4 Acre 85 Cents
allotted to them, to one S.P.Chandarasekaran under a registered Sale Deed
dated March 09, 1983 to discharge the debts borrowed to celebrate the
plaintiff's marriage. In fact, husband of the plaintiff namely Subramaniam
has attested the said Sale Deed.
4.4. Thereafter, the defendants 1 and 2 and the other co-shares of the
larger common extent, entered into registered Partition Deed dated June
23, 1983 whereunder the suit properties were allotted to Defendant Nos. 1
and 2. Thereafter, Defendant Nos.1 and 2 partitioned the suit properties
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between them vide Partition Deed dated February 19, 1986. Revenue
records have been mutated and the Defendant Nos.1 and 2 are in separate
possession and enjoyment of their respective portions.
4.5. First defendant improved his portion. the second defendant
constructed a building and alienated certain parts of his portion of the suit
properties to Defendant Nos.4 and 5 and one Mangalam vide Sale Deeds
dated June 21, 1989, June 30, 1989, and August 23, 1989 resepctively.
Said Mangalam in turn sold the property purchased by her to Defendant
Nos.6 and 7 vide Sale Deed dated November 25, 1994.
4.6. The suit is bad for non-joinder of necessary parties. Stating so,
the defendants sought to dismiss the Suit.
5. Third defendant, though initially entered appearance through
advocate, failed to file written statement despite affording sufficient
opportunities. Hence she was called absent and set ex-parte.
FOURTH AND FIFTH DEFENDANTS CASE
6. The fourth defendant filed a written statement. The fifth
defendant adopted the written statement filed by fourth defendant. It was
averred that the second defendant through two Sale Deeds dated June 21,
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1989 and June 30, 1989, sold a total extent of 2147 ¾ sq. ft. and 2500 sq.
ft. of the suit properties to fourth and fifth defendants respectively and
delivered possession on the same day. The fourth and fifth defendants are
bonafide purchasers with value and they both are father and son. Fourth
defendant obtained a building approval plan and put up a residential house
in the extent of 2147 ¾ sq. ft. purchased by him. Subsequently, the second
defendant filed a Suit for declaration against defendants 4 to 7, inter alia
in respect of the properties purchased by defendants 4 and 5. The second
defendant failed in the Suit as well as the First Appeal and now Second
Appeal is pending. In any event, if the Hon'ble Court is inclined to grant
Decree in favour of plaintiff, the Hon'ble Court may be pleased to allot the
properties covered under the aforesaid Sale Deeds in favour of the second
defendant. Further, the title of second defendant over the properties
purchased was traced as stated in the written statement filed by second
defendant. The Suit is barred by limitation as the plaintiff did not question
the Partition Deeds dated September 25, 1981 and February 19, 1986 and
also the aforementioned two Sale Deeds. The Suit is not properly valued
and the Court Fee paid is incorrect. Stating so, they sought for dismissal
of the Suit.
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7. The sixth defendant was exonerated on July 11, 2014 by the Trial
Court at the instance of the plaintiff.
SEVENTH DEFENDANT'S CASE
8. The seventh defendant filed a written statement stating that he
had purchased 1450 sq. ft. land within specific four boundaries from one
T.Mangalam and G.Gopalakrishnan, who purchased the said lands from
the second defendant. Further, he reiterated about the Suit initiated by the
second defendant against his purchasers as averred by defendants 4 and 5.
The seventh defendant further averred that he is in actual possession of the
aforesaid extent of suit properties. In the Partition Deed dated September
13, 1981, the suit properties were not jointly allotted to the plaintiff and
Defendant Nos.1 and 2. The plaintiff has no right in the suit properties.
The Suit is devoid of merits and has been filed by the plaintiff to settle
scores with the first and second defendants. Stating so, he sought for
dismissal of the suit.
TRIAL COURT
9. Based on the above pleadings, the Trial Court framed the
following issues:
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“1. Whether the plaintiff is entitled for partition of 1/12
share in the schedule properties by metes and bounds as
prayed for?
2. Whether the schedule properties has been already
partitioned under a registered partition deed dated
September 25. 1981 and the plaintiff relinquish her
share in the schedule properties as alleged?
3. What other reliefs the plaintiff is entitled to?”
9.1. Later, the following additional issue was framed:
“1.Whether the D4, D5 and D7 are entitled for the right of
equity as prayed for? ”
9.2. At trial, the plaintiff was examined as P.W.1 and Ex-A.1 to Ex-
A.17 were marked on the side of the plaintiff. On the side of the
defendants, the first defendant was examined as D.W.1, one Muthusamy
was examined as D.W.2, the second defendant was examined as D.W.3 and
the fourth defendant was examined as D.W.4 and Ex-B.1 to Ex-B.62 were
marked. Ex-C.l and Ex-C.2 were marked as Court exhibits.
9.3. After full-fledged trial, the Trial Court concluded that the plaintiff
has not relinquished her share in the suit properties and she merely
postponed her demand of allotment of her separate share for the time
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being at the time of Partition Deed dated September 25, 1981. Hence, she
is entitled for preliminary decree of partition of her 1/12 share in the suit
properties. The Trial Court further granted right of equity to the
Defendants 4, 5 and 7. Accordingly, the Trial Court decreed the Suit in
favour of the plaintiff.
9.4. Feeling aggrieved, the defendant Nos.1 and 2 have preferred this
First Appeal under Section 96 read with Order XLI Rule 33 of the CPC.
ARGUMENTS:
10. The main contentions of Mr.A.Sundaravadhanan and
Mr.S.Ramesh, learned Counsels for the Appellant Nos.1 and 2 / Defendant
Nos.1 and 2 are as follows:
10.1. Karuppana Gounder, his four daughter, the plaintiff and
Defendant Nos.1 to 3 were co-heirs / co-owners having pre-existing right
over the suit properties and some other properties which were inherited
from paternal as well as maternal side (from plaintiff's maternal
grandmother - Sellayammal). Daughters of Karuppana Gounder filed the
Suit for partition in O.S. No.2855 of 1981 on the file of District Munsif
Erode. During the pendency of that Suit, elders and well-wishers
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intervened and settled the matter through a family arrangement, pursuant
to which, Ex-B.34 - Partition Deed dated September 25, 1981 was entered
into. Ex-B.34 is registered in accordance with the Registration Act, 1908
10.2. The plaintiff voluntarily relinquished her share in favour of
Defendant Nos.1 and 2 in the family arrangement in lieu of her marriage
and seer expenses. The plaintiff's relinquishment has been recorded in Ex-
B.34. Law does not require separate document for relinquishment. Ex-
B.34, which is the original, was marked without any objection. On and
after the date of Ex-B.34, the plaintiff has no right whatsoever over the
suit properties. The plaintiff is not in joint possession and enjoyment of
the suit properties. The Court-Fee paid under Section 37 (2) is incorrect.
10.3. Pursuant to Ex-B.34, Ex-B.36 - Partition Deed dated June 23,
1983 was executed between Defendant Nos.1 and 2 and the other co-
owners, whereby the suit properties were allotted to the Defendant Nos.1
and 2. Pursuant to Ex-B.36, Ex-B.3 - Partition Deed dated February 19,
1986 was executed between Defendant Nos.1 and 2 in respect of the suit
properties. The plaintiff did not challenge the aforesaid Deeds and hence,
the Suit is not maintainable.
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10.4. The plaintiff's husband, who is a signatory in Ex-B.34 as well as
Ex-B.35 - Sale Deed dated March 9, 1983 executed by Defendant Nos.1
and 2 in favour of one Chandrasekharan, has not been examined by the
plaintiff. His non-examination is fatal to the case of plaintiff. The
plaintiff's claim is barred by the doctrine of estoppel by deed viz., Ex-B.34.
10.5. The Trial Court failed to consider the above aspects and erred in
granting Decree in favour of the plaintiff. The Judgment and Decree of the
Trial Court are erroneous and deserves to be interfered with. Accordingly,
he would pray to set aside the Judgment and Decree of the Trial Court.
10.6. In addition, Mr. Ramesh, learned Counsel for Appellant No.2 /
Defendant No.2 would submit that the plaintiff ought to have challenged
Ex-B.34, Ex-B.36 and Ex-B.3 within the stipulated statutory period of
limitation. Hence, the plaintiff's claim is barred by limitation under Article
58 and 59 of the Limitation Act, 1963.
10.7. They would rely on the following decisions in support of their
contentions:
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(i) R.Krishna Kumar's case - Judgment of Hon'ble Supreme Court in
R.Krishna Kumar -vs- R.Vatsala, made in Civil Appeal No.5638 of
2023 dated September 5, 2023;
(ii) Ramaswamy Gounder's case - Judgment of this Court in
Ramaswamy Gounder -vs- Ananthapadmanabha Iyer, reported in
1967 SCC OnLine Mad 269 : (1971) 84 LW 176 (Mad);
(iii) Panneer Selvam's case - Judgment of this Court in Panneer Selvam
-vs- Kalaivani, reported in 2023 SCC OnLine Mad 2258.
11. Reiterating the submissions of the learned Counsels for the
appellants, Mr.Pachiyappan for Mr.D.Baskar, learned Counsel on record
for Respondents 3 & 4 and Mr.K.S.Jeyaganeshan learned Counsel on
record for Respondent No.6 would submit that the Defendant Nos.4 to 7
derive title from second defendant in respect of a small portion of the suit
properties vide Ex-B.39 to Ex-B.44 - Sale Deeds between 1989 to 1994.
They are bonafide purchasers with value who have invested and
developed their respective portions, to the knowledge of the plaintiff. If in
case the Court is inclined to allow the Appeal Suit, the defendants 4 to 7
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are entitled to get their portion allotted in favour of second defendant as
per the principles of equity. The Trial Court rightly protected their interest
and the same may be confirmed.
12. On the other hand, Mr.T.Murugamanickam, learned Senior
Advocate for Mr.V.S.Kesavan, learned Counsel on record for the first
respondent / plaintiff would argue that maternal side properties
(Sellaiyammal's separate properties) alone were partitioned under Ex-B.34
- Partition Deed dated September 25, 1981. Joint family properties were
not partitioned. In the said Partition Deed, the plaintiff and her mother /
third defendant made a request not to allot their shares separately in their
favour; on the other hand, they sought to allot properties jointly to the
Velappa Gounder's branch. He would refer to the recitals in Ex-B.34 and
submit that if really the plaintiff and her mother / third defendant released
or relinquished their share, no pious obligations / liabilities would have
been imposed on them. However, that is not the case with Ex-B.34. Ex-
B.34 obligates the plaintiff and Defendant Nos.1 to 3 to pay a one-time
settlement amount of Rs.10,000/- to Karuppana Gounder besides yearly
maintenance either in the form of paddy or cash of Rs.1,000/-. This shows
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the intention of the parties and clarifies that 'B' Schedule property under
Ex-B.34 was jointly allotted to Velappa Gounder's branch.
12.1. He would further argue that ancestral and joint family properties
were partitioned vide Ex-A.3 = Ex-B.36 - Partition Deed dated June 23,
1983, whereby 'F' Schedule properties therein was allotted to Defendant
Nos.1 and 2, which forms the suit properties herein. The plaintiff and her
mother / third defendant are not parties to Ex-A.3 = Ex-B.36. Hence, it can
only be construed that 'F' Schedule properties therein was allotted in
favour of Velappa Gounder's branch in the name of Defendant Nos.1 and
2. In other words, Defendant Nos.1 and 2 represented Velappa Gounder's
branch in Ex-A.3 = Ex-B.36. Hence, the plaintiff and the Defendant Nos.1
to 3 are co-owners in respect of the suit properties.
12.2. He would further argue that as Ex-B.34 is not a Composite
Document of Partition and Relinquishment as contended by the Defendant
Nos.1 and 2 and there is no intention of relinquishment, which are evident
from the fact that Stamp Duty has been paid only for partition and not for
relinquishment. The plaintiff and her mother / third defendant's intention
was only to postpone separate allotment of share and hence, they
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consented for joint allotment of all their shares in the name of Defendant
Nos.1 and 2. Thus, Ex-B.34 is merely a Partition Deed whereby 'B'
Schedule property thereof was allotted jointly in favour of the plaintiff and
Defendant Nos.1 to 3, but in the name of Defendant Nos.1 and 2.
Therefore, the plaintiff and Defendant Nos.1 to 3 are co-owners each
entitled to equal share in the suit properties.
12.3. He would further argue that considering that only a small extent
of suit properties were sold by defendants 1 and 2 to third parties, the
plaintiff did not question the same. The same will not affect the rights of
the plaintiff over the suit properties. The Trial Court ought to have
declared the plaintiff's share as per law, dehors what has been prayed for.
Pending the Appeal Suit, third defendant passed away on November 19,
2023 leaving behind the plaintiff and the Defendant Nos.1 and 2 as her
legal heirs. In view of Section 6 of the Hindu Succession Act, 1956 as
interpreted by the Hon'ble Supreme Court in Vineeta Sharma -vs- Rakesh
Sharma, reported in (2020) 9 SCC 1, the plaintiff is legally entitled to 1/3
share in the suit properties. Though the plaintiff did not file separate
appeal, the plaintiff is entitled to seek her lawful share as per Order XLI
Rule 22 of CPC. Accordingly, he would pray to dismiss the Appeal Suit
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and modify the Judgment and Decree of the Trial Court to the effect that
the plaintiff is entitled to 1/3 share in the suit properties.
12.4. He would rely on the following decisions in support of his
contentions:
(i) Mathai Samuel’s Case - Judgment of Hon'ble Supreme Court in
Mathai Samuel -vs- Eapen Eapen, reported in (2012) 13 SCC 80;
(ii) V.M.Murugesa Mudaliar’s Case - Judgment of this Court in The
Board of Revenue -vs- V.M.Murugesa Mudaliar, reported in (1955)
68 LW 534 (Mad) : 1955 SCC OnLine Mad 83;
(iii) B.P.Easwaran’s Case - Judgment of this Court in The Board of
Revenue -vs- B.P.Easwaran, reported in (1970) 83 LW 203 (Mad)
(FB) : 1970 SCC OnLine Mad 4;
(iv) Lakshmana Chettiar’s Case - Judgment of this Court in The Board
of Revenue -vs- RM.L.RM. Lakshmana Chettiar, reported in (1970)
83 LW 205 (Mad) (FB) : 1970 SCC OnLine Mad 5;
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(v) N.Narasimhan's Case - Judgment of this Court in The Board of
Revenue -vs- N.Narasimhan, reported in 1961 2 MLJ 538 : 1961
SCC OnLine Mad 58 : (1961) 74 LW 432 (Mad) (FB).
DISCUSSION:
13. Heard on either side. Perused the evidence available on record.
The following points arise for consideration in this Appeal Suit:
(i) Whether the argument that the subject matter of Ex-B.34 - Partition
Deed dated September 25, 1981 is the maternal side properties viz.,
separate properties of plaintiff's grandmother Sellayammal is correct
and sustainable ?
(ii) Whether the plaintiff and her mother / third defendant had
relinquished / released their shares under Ex-B.34 - Partition Deed
dated September 25, 1981 in favour of Defendant Nos.1 and 2 ?
(iii) Whether the Judgment and Decree of the Trial Court are liable to be
interfered with ?
14. For better appraisal of the facts of the case, the admitted
relationship between the parties is shown through the following genealogy
chart:
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Point No.(i)
15. Party Nos.1, 6 to 9 (refer genealogy chart) filed a Suit for
partition against Party Nos.2 to 5 in O.S. No.2855 of 1981 on the file of
District Munsif Erode on September 16, 1981. As per Ex-A.17 - Suit
Register, the said Suit was dismissed as settled out of Court on October
28, 1981.
16. Pending Suit, Party No. 2's brother - Muthusamy, plaintiff's
father-in-law - Muthusamy, plaintiff's husband - Subramani and a few
others made efforts to resolve the dispute amicably, acted as
panchayatdhars and facilitated the parties to arrive at a family
arrangement. Pursuantly, Ex-B.34 - Partition Deed dated September 25,
1981 was entered into. To be noted, the plaintiff was newly married at that
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time; she got married on September 13, 1981 and the partition was about
12 days later.
17. A small house property in the hamlet of Veerapanpalayam, an
extent of common 4 Acre 85 Cents out of 9 Acre 70 Cents in
Vilarasampatti Village, Erode Taluk and an extent of 1 Acre 95 Cents in
Erode Village, all totalling to 6 Acre 80 Cents, forms the subject matter of
Ex-B.34.
18. Under Ex-B.34, the aforesaid house property described under 'A'
Schedule therein was allotted to Karuppana Gounder. The aforesaid
common 4 Acre 85 Cents described under 'B' Schedule therein was
allotted in the name of Defendant Nos.1 and 2 along with well and other
rights. The aforesaid extent of 1 Acre 95 Cents, described therein as 'C'
Schedule property was allotted to the four daughters of Karuppana
Gounder jointly.
19. Ex-B.34 recites that the said 6 Acre 80 Cents includes paternal
property as well as separate properties of maternal grandmother -
Sellayammal. In Ex-B.34, there is no whisper about which properties are
paternal and which are maternal. Ex-B.36 is the subsequent Partition Deed
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dated June 23, 1983 executed among Defendant Nos.1 & 2 and other co-
sharers. What could be understood from a cogent and conjoint reading of
Ex-B.34 and Ex-B.36 is that the aforesaid common 4 Acre 85 Cents out of
9 Acre 70 Cents in Vilarasampatti Village is paternal property and that the
aforesaid extent of 1 Acre 95 Cents with irrigation Well in Erode Village is
maternal property. In other words, 'B' Schedule property under Ex-B.34 is
paternal property and 'C' Schedule property thereunder is maternal
property. There is no recital or reference about the character of 'A'
Schedule property (House property) thereunder.
20. Anyhow, it could be seen both paternal and maternal properties
were partitioned under Ex-B.34. Hence, the argument of learned Senior
Counsel for the first respondent / plaintiff that only maternal properties
were partitioned under Ex-B.34 is incorrect and does not hold up under
scrutiny. Point No.(i) is answered accordingly.
Point No.(ii)
21. As stated supra, Ex-B.34 - Partition Deed was entered into in
furtherance of the said family arrangement. Ex-B.34 is a original
document. Ex-B.34 has five witnesses namely (i) M.Muthusamy son of
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Marappa Gounder (third defendant's brother), (ii) Muthusamy son of
Chinappa Gounder (plaintiff's father-in-law), (iii) Palanisamy son of
Ramasamy, (iv) Subramani son of Muthusamy (plaintiff's husband), (v)
Sengotaiyan son of Chinappa Gounder.
22. One of the witness, M.Muthusamy son of Marappa Gounder,
was examined on the side of defendants as D.W.2. He deposed about Suit
in O.S. No.2855 of 1981 on the file of District Munsif Erode, the family
arrangement that followed and the pursuant Ex-B.34 - Partition Deed. He
further deposed that said Palanisamy son of Ramasamy and said
Sengotaiyan son of Chinappa Gounder are husband of two daughters of
Karuppana Gounder. In other words, they are plaintiff's paternal uncle. He
further deposed that in the said family arrangement, when 'B' Schedule
property under Ex-B.34 was planned to be allotted to the branch of
Velappa Gounder, the plaintiff and her mother / third defendant
relinquished their shares in favour of Defendant Nos.1 and 2 and that the
same has been recited in Ex-B.34. To be noted, the plaintiff and her
mother / third defendant are parties to Ex-B.34 and they have signed in it.
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23. The plaintiff, in Paragraph No.3 of the plaint, clearly admitted
the execution of Ex-B.34 - Partition Deed, that is a family partition and the
allotment thereunder. Her only contention is that the plaintiff never
intended to give up on her share in the suit properties and only wanted to
remain joint until final partition is effected in respect of 'B' Schedule
property under Ex-B.34 among all the co-sharers. In short, the contention
of the plaintiff is that the allotment of 'B' Schedule property under Ex-B.34
was not absolutely in favour of Defendant Nos.1 and 2, but in favour of
Velappa Gounder's branch represented by Defendant Nos.1 and 2 who are
the male members of the branch.
24. Contrary to her stand in the plaint, she has taken up the plea of
lack of knowledge of the contents of Ex-B.34. In the reply statement, she
has pleaded that in view of the utmost faith vested in first defendant, she
signed Ex-B.34 without going through its contents. It is settled law that
earlier admission, though can be explained, cannot be withdrawn by way
of subsequent pleadings. Hence the pleadings of the plaintiff in the reply
statement is not valid.
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25. At this juncture, this Court deems fit to extract a portion of Ex-
B.34 hereunder:
'vdnt ,jdoapy; fz;l “V” b#oa{y;
brhj;ij ek;kpy; 1 yf;fkpl;ltUk;/ “gp”
b#oa{ypy; fz;l brhj;ij ek;kpy; 3 & 4
yf;fkpl;lth;fSk;/ “rp” b#oa{ypy; fz;l
brhj;ij ek;kpy; 6/ 7/ 8/ 9 yf;fkpl;lth;fSk;
mile;J bfhz;L brhj;Jf;fisa[k; ,d;nw
mtuth;fSila RthjPdKk; bra;J bfhz;L
,Uf;fpwgoahy; ,dp mtutUila ghf
brhj;Jf;F mtuth;fns g{uz
ghj;jpa!;jh;fshfpf; bfhz;L g[j;jpu bgsj;jpu
ghuk; ghpakha; jhdhjp tpf;fpua
tpdpnahf';fSf;F nahf;fpakha;
mtuth;fSila ghf brhj;Jf;F mtuth;fns
gO;rhaj;J thp/ rhf;fhh; jPh;it
Kjyhditfs; brYj;jpf; bfhz;L ru;t
Rje;jpughj;jpa';fSld; Mz;lDgtpj;Jf;
bfhs;s ntz;oaJ.
,dp xUtUf;Fg; gphpe;j ghf brhj;ijf;
Fwpj;J kw;w ghf!;jh;fSf;fhtJ my;yJ
mth;fSila thhPRfSf;fhtJ vt;tpj
ghj;jpa rk;ke;jKk; gpd; bjhlh;r;rpa[k;
fpilahJ.
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,e;j ghf rh!dg; gj;jpuj;jpy; fz;Ls;s
“gp” b#oa{y; brhj;Jf;fs; ek;kpy; 2 Kjy; 5
tiu yf;fkpl;lth;fs; ghfj;Jf;Fg;
gpupe;jpUe;j nghjpYk; ek;kpy; 2 & 5
yf;fkpl;lth;fs; j';fSf;F brhj;J
njitapy;iy vd nfhwpajpy; “gp” b#oa{y;
brhj;ij ek;kpy; 3 & 4 yf;fkpl;lth;fs;
ghfj;Jf;F gpupj;J bfhLj;jpUf;fpwgoahy;
ek;kpy; 2 & 5 yf;fkpl;lth;fs; j';fSf;F
g';F nfhhp vt;tpj eltof;if vLj;jhYk;
mJ bry;yj;jf;fjy;y. vdnt ,e;j ghf
rh!dj;ij ehk; xd;gJ ngh;fSk; KG kd
rk;kjpapy; vGjp itj;Jf;
bfhz;oUf;fpwgoahy; ,ij ek;kpy; ahUk;
vt;tpj Ml;nrgida[k; bra;af;TlhJ. ,dp
ekf;Fs; rpnef rk;ge;jnk jtpu brhj;J
ghj;jpa rk;ke;jk; vJt[k; fpilahJ.
,jdoapy; fz;l “V” b#oa{y; brhj;J
ek;kpy; 1 yf;fkpl;lth; bgahpYk;/ ,jdoapy;
fz;l “gp” b#oa{y; brhj;J ek;kpy; 3 & 4
yf;fkpl;lth;fs; bgahpYk;/ ,jdoapy; fz;l
“rp” b#oa{ypy; fz;l brhj;J ek;kpy; 6/ 7/ 8/
9 yf;fkpl;lth;fs; bgahpYk; khWjy; bra;a[k;
bghUl;L gO;rhaj;J/ gl;lh khWjy;
kDf;fSk; jhf;fy; bra;jpUf;fpnwhk;.'
(Emphasis supplied)
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26. As it could be seen from the above, Ex-B.34 clearly recites that
the properties allotted thereunder are separate properties of the allottees,
that the plaintiff and third defendant emphatically relinquished their shares
in favour of Defendant Nos.1 and 2 and hence, they cannot raise any claim
for their shares in the future. There is no evidence available on record to
prove the contention of the plaintiff that she merely postponed her claim
of separate allotment of her share and did not relinquish it in favour of
Defendant Nos.1 and 2. Thus, it is abundantly clear that the plaintiff and
third defendant had relinquished their share in favour of Defendant Nos.1
and 2.
27. Moreover, Ex-B.35 is Sale Deed dated March 9, 1983 executed
by Defendant Nos.1 and 2 in favour of one Chandrasekharan in respect of
an extent of 75 Cents within specific four boundaries out of the common
extent of 4 Acre 85 Cents allotted to Defendant Nos.1 and 2 as 'B'
Schedule property under Ex-B.34. In Ex-B.35 it has been clearly recited
that the property covered thereunder was separate property of Defendant
Nos.1 and 2 obtained under in the family partition under Ex-A.34. In Ex-
B.35, the plaintiff's husband - Subramani as well as D.W.2 / plaintiff's
maternal uncle are witnesses. In these circumstances, the plaintiff ought to
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have examined her husband in support of her case, but she has failed to do
so.
28. The plaintiff would contend that she being a co-sharer, was
required to sign Ex-B.35 - Sale Deed; however, as she was 9 months
pregnant at the time of Ex-B.35, her husband signed on her behalf. The
logic on the face of it is untenable and would not be valid by any stretch of
imagination. If really a person has share in the subject matter of sale, they
would not sign as a witness; they would rather be a party to the Sale Deed.
Even while assuming otherwise, the plaintiff has been evasive when
questioned about her son's date of birth and there is no evidence to
substantiate her claim of pregnancy at that time. To be noted, the plaintiff
has studied upto V Standard. Hence, she is literate. Further, if we go by the
same logic, then the third defendant would have also been made to sign in
Ex-B.35 which is not the case here.
29. In view of the clear evidence available on record to show that
the plaintiff and third defendant had relinquished their share in favour of
Defendant Nos.1 and 2, the submissions of learned Senior Counsel for
first respondent / plaintiff qua pious obligation / liabilities to maintain
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Karuppana Gounder deserve to be rejected. Moreover, D.W.2's evidence
and Ex-B.1 - Receipt would show that the pious obligations / liabilities
were fully taken care by first defendant.
30. That apart, the transaction under Ex-B.34 - Partition Deed is
purely a partition qua Karuppana Gounder and his four daughters, and a
Composite Deed of partition and relinquishment qua the legal heirs of his
predeceased son - Velappa Gounder viz., plaintiff and Defendant Nos.1 to
3. This is because, at the time of allotment of 'B' Schedule property under
Ex-B.34 itself, the plaintiff and third defendant relinquished their share in
favour of Defendant Nos.1 and 2 as discussed above. It is absolutely
correct that separate stamp duty has to be paid for relinquishment. Ex-B.34
is a registered document written on a Rs.600/- stamp paper and thus,
satisfies the requirement of Section 17 of the Registration Act, 1908.
Release or Relinquishment does not fall under the scope and ambit of the
Transfer of Property Act, 1882. Even while assuming that relinquishment
or release is a transfer, the Transfer of Property Act, 1882 requires only
registration. It does not speak of stamp duty. Stamp duty falls under the
scope and ambit of a separate fiscal enactment viz., the Indian Stamp Act,
1899 and the Rule framed by State of Tamil Nadu.
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31. As per Section 35 of the Indian Stamp Act, 1899, generally, any
document suffering deficit in stamp duty is not admissible in evidence
unless the defect is cured by remitting deficit stamp duty with applicable
penalty. However, Section 36 of the Indian Stamp Act, 1899 says that
when an instrument has been admitted in evidence, such admission shall
not be called in question for deficit in stamp duty, at any stage of the same
Suit or proceedings except as provided under Section 61 thereof. To be
noted, Ex-B.34 was marked in Open Court through D.W.2 without any
objection from the plaintiff's side and hence, the Trial Court did not
impound the document under Section 35 read with Section 61 of Indian
Stamp Act, 1899. Hence, the plaintiff cannot now call into question the
admissibility of Ex-B.34 on the ground of insufficient stamp duty.
32. It is apposite to extract Section 36 of the Indian Stamp Act,
1899, which is as follows:
'36.Admission of instrument where not to be
questioned.- Where an instrument has been admitted in
evidence, such admission shall not, except as provided in
section 61, be called in question at any stage of the same suit or
proceeding on the ground that the instrument has not been duly
stamped.'
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Further, in the case of Javer Chand Vs. Pukhraj Surana, reported in 1961
SCC OnLine SC 22 : AIR 1961 SC 1655, Full Bench of the Hon'ble
Supreme Court held as under:
'4. ...Once a document has been marked as an exhibit in
the case and the trial has proceeded all along on the footing
that the document was an exhibit in the case and has been used
by the parties in examination and cross-examination of their
witnesses, Section 36 of the Stamp Act comes into operation.
Once a document has been admitted in evidence, as aforesaid, it
is not open either to the trial court itself or to a court of appeal
or revision to go behind that order. Such an order is not one of
those judicial orders which are liable to be reviewed or revised
by the same court or a court of superior jurisdiction.'
The above dictum has been followed by the Hon'ble Supreme Court in the
case of Shyamal Kumar Roy Vs. Sushil Kumar Agarwal, reported in
(2006) 11 SCC 331, wherein the plaintiff therein, in a Specific
Performance Suit, exhibited a Development Agreement dated January 16,
1995 without any objection from the other side. At the stage of arguments,
the defendants filed two applications to recall the order admitting the
document and to send the same to the Collector for impounding. The Trial
Court dismissed the applications, against which, a revision was preferred
which was also dismissed and a review was also dismissed. Aggrieved
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over the same, the defendant preferred an appeal to the Apex Court and the
same was dismissed by the Apex Court, by relying on the judgment cited
supra.
33. Merely on the ground of deficit stamp duty, it cannot be said that
Ex-B.34 is not valid qua relinquishment by plaintiff and third defendant.
The case laws relied on by the learned Senior Counsel are decided under
the reference referred under Section 57 of the Indian Stamp Act, 1899 with
regard to question of appropriate stamp duty. No quarrel with these case
laws. It is up to the concerned authority to collect the necessary stamp
duty as per law. Further, as stated supra, Ex-B.34 was marked and
admitted as evidence without objection qua deficit stamp duty. In these
circumstances, these case laws does not come to the aid of the plaintiff.
34. To sum up, in view of the abundant evidence available on
record in the form of recitals contained in Ex-B.34 - Partition Deed,
deposition of D.W.2, recitals in Ex-B.35 - Sale Deed wherein the plaintiff's
husband has signed as a witness, and the admissions made by the plaintiff
in the pleadings qua execution of Ex-B.34 and allotment of shares, this
Court is of the view that the plaintiff and the third defendant had
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relinquished their share in 'B' Schedule properties under Ex-B.34 -
Partition Deed dated September 25, 1981 in favour of Defendant Nos.1
and 2. Point No.(ii) is answered accordingly.
Point No.(iii)
35. As the plaintiff had relinquished her share in favour of
Defendant Nos.1 and 2 under Ex-B.34 - Partition Deed, she is not entitled
to any share in the 'B' Schedule properties thereunder. When so, the
plaintiff cannot question Ex-A.3 = Ex-B.36 - Partition Deed dated June 23,
1983 executed among the Defendant Nos.1 and 2 and other co-sharers,
whereby the suit properties were allotted to Defendant Nos.1 and 2. In
turn, the Defendant Nos.1 and 2 partitioned the suit properties between
them and thereafter, have been in possession and enjoyment of the their
respective portions. Separate Patta has been issued in favour of the
Defendant Nos.1 and 2 in respect of his portion of the suit properties
allotted under Ex-B.3 - Partition Deed dated February 19, 1986. They have
been in separate dealing of their respective portions and in fact, have
alienated certain portion of suit properties to third parties including
Defendant Nos.4 to 5 herein.
36. Ex-A.4 to Ex-A.6 - Water Tax Receipts and Ex-A.7 to Ex-A.10 -
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Electricity Receipts were relied on by the plaintiff to prove her case of
joint possession and enjoyment. However, perusal of Ex-A.4 to Ex-A.10
would show that they stand in the name of second defendant. As stated
supra, separate pattas have been issued in favour of Defendant Nos.1 and
2 in respect of their respective portion of the suit properties, and the
defendants 1 and 2 have been in separate dealing of their respective
portions. In these circumstances, merely because the bill amounts were
remitted by plaintiff's husband, it cannot be said that the plaintiff is in joint
possession and enjoyment with the Defendant Nos.1 and 2. The plaintiff or
her husband could very well be a permissive occupant. There is no other
evidence available on record to show joint possession. Hence, the Court
Fee paid under Section 37 (2) of the Tamil Nadu Court-Fees and Suits
Valuation Act, 1955 is incorrect. The Trial Court failed to consider these
aspects and erred in decreeing the Suit. Further, in a Suit for partition, the
Trial Courts ought to ascertain the character of suit property, state the
applicable law to the parties and relevant provisions, and demonstrate the
division of shares. In this case, the Trial Court has miserably failed to do
so. There is no clue as to on what basis the Trial Court declared that the
plaintiff is entitled to 1/12 share in the suit properties to the plaintiff.
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Hence, its Judgment and Decree are liable to be set aside. Point No.(iii) is
answered accordingly.
CONCLUSION:
37. Resultantly, the Appeal Suit stands allowed. The Judgment and
Decree of the Trial Court are hereby set aside. The Original Suit is
dismissed. Taking into consideration the relationship between the parties,
there shall be no order as to costs. Connected Miscellaneous Petition shall
be closed.
23 / 10 / 2025
Index : Yes
Speaking Order : Yes
Neutral Citation : Yes
pam/TK
To
The I Additional District Judge,
Erode.
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R. SAKTHIVEL, J.
PAM/TK
PRE-DELIVERY JUDGMENT MADE IN
APPEAL SUIT NO.944 OF 2015
23 / 10 / 2025
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