Madras High Court
Subammal vs Annapoorni on 12 September, 2025
S.A.No.1154 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 18.07.2025
Pronounced on 12.09.2025
CORAM
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
S.A.No.1154 of 2019
Chinnaramasamy (died)
1. Subammal
2. Baby @ Gnana Sundari
3. Rajeshwari
4. Maheswari
5. Parameswari
6. Jagadeeswari ...Appellants
Vs.
1. Annapoorni
2. Prabhu
3. Latha
4. Ramesh Kumar
5. N.R.Chandrasekaran
6. N.R. Rangaraj
7. N.R. Padmavathi
8. Palaniammal ... Respondents
Page 1 of 18
https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 08:52:59 pm )
S.A.No.1154 of 2019
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
decree and judgment dated 11.01.2019 made in A.S. No.25 of 2012 on
the file of the learned Principal District Judge, Coimbatore, reversing the
judgment and decree dated 19.01.2007 made in O.S. No.656 of 1999 on
the file of the learned Principal Subordinate Judge, Coimbatore.
For Appellants : Mr. G.K. Muthukumar
Assisted by Mr. A. Ramkumar and
Mr. L. Arunkumar
For Respondents : Mr. C.R. Prasanan for R1 to R4
No appearance for R5 to R8.
JUDGMENT
This appeal is directed against the judgment and decree dated
11.01.2019 made in A.S. No.25/2012 on the file of the Principal District
Court, Coimbatore, reversing the judgment and decree dated 19.01.2007
made in O.S. No.656/1999 on the file of the Principal Sub Court,
Coimbatore.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 08:52:59 pm )
2. The legal heirs of the 1st defendant in O.S. No.656/1999, who
were impleaded as defendants 6 to 11 in the appeal suit are the
appellants herein.
3. One Periya Ramasamy filed the above suit for partition. During
the pendency of the trial the said Periya Ramasamy died and his legal
representatives were impleaded as plaintiffs 2 to 5 in the said suit.
4. For the sake of convenience, the parties are referred to as per
their ranking in the trial court.
5. The case of the plaintiffs is that the 1st plaintiff Periyaramasamy
and the 1st defendant Chinnaramasamy and Late N.R.Duraisamy who is
the husband of the 2nd plaintiff and father of plaintiffs 3, 4 and 5, are the
sons of one Late Rayappa Gounder. The joint family of Rayappa
Gounder consists of 1st plainitff, Late N.R.Duraisamy and the 1st
defendant. The said Rayappa Gounder died in the year 1965 and
thereafter 1st plaintiff, 1st defendant and N.R.Duraisamy who are the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 08:52:59 pm )
members of the joint family divided the properties by an oral partition. In
the said oral partition, Periyaramasamy was allotted in S.F.No.63/2D,
64/2B, 65/2, and Late N.R.Duraisamy was allotted land in S.F.No.69/2A,
63/2B2, 64/2A, 65/2A and 69/2B and Chinnaramasamy was allotted land
in S.F.No.73, 74/1 and 74/2. The lands in S.F.No.74/3 to an extent of
2.16 acres was left in common for the maintenance of Ponni @
Nanjammal, the mother of Periyaramasamy, Chinnaramasamy and Late
Duraisamy. Since she was not a member of the joint family and also for
the convenience of the members of the family, item No.1 of the suit
property was left to Ponni @ Nanjammal for maintenance. The said
Ponni @ Nanjammal died on 18.06.1995 and thereafter the suit 1st item is
in joint possession of plaintiffs and defendants. The 1st plaintiff and
plaintiff No.2 to 5, and the 1st defendant are having 1/3 share. In Item
No.2 of the property there is a residential house belonging to the joint
family of Late Rayappa Gounder, in which, the 1st plaintiff and plaintiffs
No.2 to 5 and the 1st defendant are having 1/3 share each. Even in the
well in S.F.No.74 and Service Connection No.4., the plaintiffs and
defendants are entitled to 1/3 share. Since the 1st defendant is not ready
https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 08:52:59 pm )
for amicable partition, plaintiffs filed the above suit for partition to
divide the suit properties in three equal share and allot two shares to the
plaintiffs.
6. The case of the plaintiffs was resisted by the 1st defendant
stating that the 1st plaintiff, late N.R.Duraisamy Gounder and the 1st
defendant and their father Rayappa Gounder originally constituted a joint
Hindu family. The said joint Hindu family owned properties in
S.F.Nos.63, 64, 65, 69, 73, 74/1, 74/2 and 74/3 in V.Nanjundapuram
Village Coimbatore Taluk. The properties in S.F.No.63, 64, 65 and 69 are
situate on the east of North – South Nanjundapuram Road. The properties
in S.F.No.73, 74 are on the eastern side of S.F.No.63 to 65 and 69. About
50 years back, there was an oral partition between the 1st defendant, 1st
plaintiff, the Late N.R.Duraisamy Gounder and their father Rayappa
Gounder. In the said oral partition, the properties situated in S.F.No.63,
64 and a portion of 65 were allotted to the share of the 1st plaintiff. The
properties situated in S.F.No.69 and eastern part of S.F.No.65 were
allotted to the share of the Duraisamy Gounder. The 1st defendant was
https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 08:52:59 pm )
allotted the southern portion of S.F.No.74 measuring an extent of 2.16
acres and its present sub-division number is 74/3. The parents of the 1st
plaintiff and the 1st defendant were given property measuring an extent of
5.72 acres in S.F.No.73, 74/1 and 74/2 for enjoyment till their life time.
As per the oral partition, after the life time of parents, the said extent of
5.72 acres should devolve upon the 1st defendant, the 1st plaintiff and
late N.R.Duraisamy Gounder. After the death of their parents, the 1st
plaintiff sold his 1/3 share to the 1st defendant's wife by virtue of a
registered sale deed dated 17-01-1973. Similarly the late Duraisamy
Gounder sold his 1/3 share in the said survey field in favour of the 1st
defendant under a sale deed dated 17-03- 1967. Therefore, the allegations
that S.F.No.74/1 is a common property of the plaintiffs and the defendant
is false. The 1st defendant and his wife are the absolute owners of the
properties situated in S.F.No.73, 74/1, 74/2 and 74/3. The house property
described in Item No.2 was allotted to the share of the 1st defendant in the
oral partition that took place 50 years ago. The well, mentioned in the
plaint schedule, absolutely is owned by the 1st defendant. The present
suit has been filed as a counter blast to the suit filed by the defendant and
https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 08:52:59 pm )
his wife in O.S.No.1934/1999 on the file of District Munsif, Coimbatore.
The Court fee paid is not correct. There is no cause of action for the suit.
The plaintiffs never been in joint possession of the properties along with
the defendant. Hence, the defendant prays for dismissal of the suit.
7. The trial court based on the material placed on record dismissed
the suit filed by the plaintiffs. Aggrieved by this, the plaintiffs preferred
the appeal suit in A.S. No.25/2012 before the Principal District Court,
Coimbatore. The learned Principal District Judge, Coimbatore, reversed
the judgment and decree passed by the trial court and passed the
preliminary decree in favour of the plaintiffs in respect of Item No.2 of
the suit properties by holding that the plaintiffs are entitled to get 2/3
shares jointly in Item No.2 of the suit properties and further held that the
plaintiffs are not entitled to get any share as far as Item No.1 and 3 of the
suit properties are concerned.
8. Aggrieved by this, the legal heirs of the 1st defendant in O.S.
No.656/1999, who were impleaded as defendants 6 to 11 in the appeal
https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 08:52:59 pm )
suit has preferred the present second appeal.
9. The second appeal has been admitted on the following
substantial questions of law:
"i) Whether the lower appellate court was right in decreeing
the suit in respect of Item No.2 of the property when there is no
pleading to the effect that Item No.2 was allotted to Ponni @
Nanjammal under Ex.A4?
ii) Whether the lower appellate court was right in ignoring
the specific plea in paragraph 10 of the plaint to the effect that
item No.2 belonged to joint family of Rayappa Gounder and it
remained undivided?"
10. The learned counsel for the appellants submits that admitting
the oral partition between the 1st plaintiff, the late N.R.Duraisamy, and
the 1st defendant, the plaintiffs are estopped from claiming any share in
the second item of the suit property. It is submitted that, under the oral
partition all the joint family properties of Rayappa Gounder were
https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 08:52:59 pm )
partitioned among his three sons and that there was no property, moreso
item No.2 of the suit, was available for partition. Even the property
alloted to Rayappa Gounder and his wife Ponni @ Nanjammal for
maintenance during their life time was devolved on the three sons of
Rayappa Gounder and Nanjammal after their death in equal shares.
After the death of Rayappa Gounder, the 1st defendant purchased the
shares of the 1st plaintiff and late N.R. Duraisamy under two registered
sale deed marked as Ex.B2 and Ex.B1 respectively. Therefore, even the
property left to the share of Rayappa Gounder and his wife Nanjammal
was partitioned among their sons along with the other joint family
properties in equal shares after the life time of their parents. It was for
the above reason, that after the demise of Rayappa Gounder, the 1st
defendant and his wife purchased the share of the 1st plaintiff and late
N,R. Duraisamy and later became absolute owners and the mother
Nanjammal also relinguished her enjoyment right in the said property
under Ex.B4. In such circumstances, if the 2nd item of the suit property is
partitioned, then the entire oral partition which took place 50 years prior
to the suit will be unsettled and all the properties of Rayappa Gounder
https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 08:52:59 pm )
belonging to the joint family would be open to partition, thus unsettling
the settled partition. He would further submit that it is not the case of the
plaintiffs that the said oral partition was only a partial partition for which
there is no pleadings or evidence. The learned counsel further submits
that the plaintiffs failed to prove their ownership over the second item of
the suit property. The 1st defendant has produced Ex.B1 and B2 sale
deeds along with Ex.B4 relinquishment deed executed by Nanjammal in
favour of the 1st defendant. The above documents would reveal that the
oral partition was acted upon. The learned counsel further submits that in
the absence of pleadings about the partial partition and while admitting
the oral partition, the first appellate court ought not to have relied upon
the bare claim of 2/3 share by the plaintiffs over item 2 of the suit
properties and decree the suit in this regard. He would further submit that
the first appellate court erred in making out entirely a new case which
was not pleaded. Unless and until specifications are given in the plaint,
the court cannot probe into it, as any amount of evidence cannot be
looked into if that is not supported by a plea. He would submit that it is
well settled that the decision of a case cannot be based on grounds
https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 08:52:59 pm )
outside the plea of the parties and that it is the case pleaded which has to
be found. Therefore, the first appellate court went wrong in ignoring this
basic principle of law, and in making out an entirely new case, i.e partial
partition, which was not pleaded. To support his contention he relied
upon the following judgments.
i. Siddu Venkappa Devadiga vs. Rangu S. Devadiga and ors
reported in (1977) 3 SCC 532.
ii. Sowbakkiam Ammal and ors vs. Gunasekaran reported in 2024
(3) CTC 123.
Therefore, the learned counsel submits that the first appellate court was
not right in decreeing the suit for partition in respect of the second item
of the suit property which warrants interference by this Court.
11. On the other hand, the learned counsel for the respondents 1 to
4 / plaintiffs submits that the 1st plaintiff and the 1st defendant along with
late N.R.Duraisamy, members of the joint family divided the family
properties by oral partition. But, the lands in S.F. No.74/3 measuring 2.16
acres was left in common for the maintenance of Ponni @ Nanjammal,
https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 08:52:59 pm )
the mother of Periyasamy, Chinnasamy and late Duraisamy. The second
item of the suit property is a residential house belonging to the joint
family of Rayappa Gounder, in which, the 1st plaintiff and Plaintiff 2 to 5
and the 1st defendant are having 1/3 share each in the said property. He
would submit that the life estate owner Ponni @ Nanajammal did not
execute any document with respect to 2nd item of the suit property.
Hence, the plaintiffs are jointly entitled 2/3 share in the 2nd item of the
suit properties. The first appellate court, considering the above facts and
circumstances of the case passed the preliminary decree in favour of the
plaintiffs in respect of the 2nd item of the suit property, which warrants no
interference by this Court.
12. Heard on both sides. Records perused.
13. It is not in dispute that there was an oral partition in the family
between the 1st defendant, 1st plaintiff, late N.R.Duraisamy Gounder and
their father Rayappa Gounder. According to the 1st defendant the
properties situate in S.F.No.63,64 and a portion of 65 were allotted to the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 08:52:59 pm )
share of the 1st plaintiff. The properties situate in S.F.No.69 and eastern
part of S.F. No.65 was allotted to the share of late Duraisamy Gounder.
The 1st defendant was allotted the southern portion of S.F. No.74
measuring 2.16 acres and it is now sub divided as 74/3. It is the specific
case of the plaintiffs that the parent of the 1st plaintiff and the defendants
were given property measuring 5.72 acres in S.F.No.73, 74/1 and 74/2 for
enjoyment till their life time. After their demise, the above 5.72 acres of
land should devolve upon the 1st defendant, the 1st plaintiff and late
N.R.Duraisamy Gounder and that after the death of their parents, the 1 st
plaintiff sold his 1/3 share to the 1st defendant's wife under a registered
sale deed 17.01.1973. Similarly the late Duraisamy Gounder sold his 1/3
share in the said survey number in favour of the 1st defendant by virtue of
a sale deed dated 17.03.1967. Therefore, the contention of the plaintiffs
that S.F. No.74/1 is a common property of the plaintiffs and the
defendants is false. The 1st defendant and his wife are the absolute
owners of the properties situate in S.F. No.73, 74/1, 74/2 and 74/3. along
with the house property described in Item No.2 which was allotted to the
share of the 1st defendant in the oral partition that took place about 50
https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 08:52:59 pm )
years. Whereas, the plaintiffs' contention is that the lands in S.F. NO.74/3
measuring 2.16 acres was left in common for the maintenance of Ponni
@ Nanjammal, mother of the parties. After her demise, the said property
has to be divided among her legal heirs. Hence, the plaintiffs are entitled
to 2/3 share in the said property.
13.1. This appeal is preferred only with respect to Item No. 2 of the
suit property. The appellants/defendants are claiming absolute right over
2nd item of the suit property. It is to be noted that under Ex.A4 settlement
deed, life estate alone was given to the mother Ponni @ Nanjammal in
respect of 2 acres of agricultural land in S.F. No.74. Thereafter, she had
executed Ex.B4 release of maintenance right in favour of the 1 st
defendant and his wife Subbammal. The recitals in Ex.B1 and B2 sale
deeds would reveal that only agricultural land was conveyed to the 1st
defendant and his wife. Even under Ex.B4, it is seen that the said Ponni
@ Nanjammal had released her life estate with regard to the agricultural
property alone. The above facts would reveal that the house property
covered under Ex.A4 settlement deed was not conveyed by Ponni @
https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 08:52:59 pm )
Nanjammal either to the 1st defendant or his wife Subammal. However,
the case of the 1st defendant is that the house property was allotted to his
share in the oral partition. But, the 1st defendant failed to establish the
same. Therefore, the first appellate court has rightly held that, under
Ex.B1 and B2 sale deeds the 1st plaintiff and late N.R. Duraisamy
conveyed only agricultural land, i.e. Item No.1 and 3 alone and that
they did not execute any sale deed in respect of item No.2. The first
appellate court further held that the life estate holder did not convey or
alienate the second item of the suit property. Thus held that, after the
demise of the life estate holder Ponni @ Nanjammal on 18.06.1995, the
plaintiffs jointly entitled to 2/3 share in item No.2 of the suit property. No
perversity or infirmity is found in the said findings.
13.2. The further contention of the learned counsel for the
appellants is that when the plaintiffs admit the oral partition and the
plaint averments and factual matrix establish a total partition of all joint
family properties in the said oral partition, the plaintiffs are estopped
from claiming right over the second item of the suit properties. In the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 08:52:59 pm )
absence of pleading about partial partition, the first appellate court ought
not to have granted the preliminary decree in respect of the second item
of the suit property in favour of the plaintiffs. No doubt, when a
partition is taken place, there is a presumption that it was total, covering
all properties and parties, unless proven otherwise by the parties. But in
this case it is established by proof that the parties intended the partition
to be partial, with respect to the properties left to the mother namely
Ponni @ Nanjammal for maintenance. Moreover, the plaintiffs have
sought for partition and separate possession for the entire suit properties.
The first appellate court having found that the plaintiffs are not entitled
for partition in the suit item Nos.1 and 3, considering the materials
placed on record, made a categorical finding that the second item alone is
available for partition and passed the preliminary decree allotting 2/3
shares in the second item of the suit properties. Therefore, the contention
of the learned counsel for the appellants that in the absence of pleading
of partial partition by the plaintiffs, the first appellate court was not right
in decreeing partition of item 2 of the suit properties is unsustainable.
Accordingly the substantial questions of law are answered against the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 08:52:59 pm )
appellants.
14. In the result,
i. The second Appeal is dismissed. No costs.
ii. The decree and judgment dated 11.01.2019 made in A.S. No.25
of 2012 on the file of the learned Principal District Judge,
Coimbatore, is upheld.
12.09.2025
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
To
1. The Principal District Judge, Coimbatore,
2. The Principal Subordinate Judge, Coimbatore.
3. The Section Officer, VR Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 08:52:59 pm )
K.GOVINDARAJAN THILAKAVADI,J
bga
Pre-delivery judgment in
12.09.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 08:52:59 pm )
