In a second appeal, the High Court dismissed the challenge regarding a family partition and allotment of shares. The court upheld the lower appellate court's finding that a panchayat agreement evidenced a family arrangement vesting property with one branch, and held the suit bad for partial partition.
No order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
S.A.No.132 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.03.2022
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
S.A.No.132 of 2012
Unnamalai
... Appellant
Vs
PRAYER: Second Appeal filed under Section 100 of C.P.C., against the Judgment and Decree dated 30.09.2010 in A.S.No.38 of 2010 on the file of the I Additional Subordinate Judge, Salem, reversing the Judgment and Decree dated 27.08.2009 in O.S.No.512 of 2007 on the file of the I Additional District Munsif Court, Salem.
For Appellant : Mr.R.Nalliyappan For Respondents : Mr.P.Jagadeesan for R1 to R3 R5 to R9 – No appearance
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JUDGMENT
The plaintiff is the appellant in the second appeal.
originally belonged to one Sadaya Padayachi and the 'B' Schedule property belonged to her mother Nagammal, who is the mother of the plaintiff and defendants 1 and 2 and she is the grandmother of defendants 3 to 9. The said Sadaya Padayachi had two sons namely Duraisamy Padayachi and Chinnathambi Padayachi. The said Duraisamy Padayachi is the father of plaintiff, defendants 1 and 2 and grandfather of defendants 3 to 9. Duraisamy Padayachi had four daughters and one son, who are the plaintiff, the first defendant, one Chinnaponnu, one Paunambal and his son is the second defendant. The further case of the plaintiff is that her father Duraisamy Padayachi and his brother Chinnathambi had orally partitioned the property and the share that fell in favour of Duraisamy Padayachi is the property that has been shown in the 'A' Schedule of the suit property.
Padayachi died on 12.05.1991 and one daughter namely Chinnaponnu
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died on 20.02.1994 and her legal heirs are the defendants 3 to 5. Paunambal also died and her legal heir is the sixth defendant. Defendants 7 to 9 are the sons of the second defendant.
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adopted by defendants 2, 8 and 9. These defendants did not dispute the source of the suit properties and also the relationship between the parties. According to these defendants, all the four daughters were given on marriage during the life time of Duraisamy Padayachi and his wife and as a result of the same, they had incurred a lot of marriage expenses and had taken loan. It was during this point of time that a panchayat was convened on 12.04.1991, wherein it was agreed that the second defendant will settle the entire loan amount of Rs. 23,070/- and he will take the entire property belonging to Duraisamy Padayachi and Nagammal. Accordingly, the loan amount was settled and the property was absolutely enjoyed by the second defendant. Thereafter, the second defendant also developed the property and put up constructions and the properties were ultimately settled in favour of defendants 7 to 9 through a registered settlement deed dated 05.09.2003, marked as Ex.B4. Thereafter, the settlement deed was acted upon and the defendants had mutated their names in the revenue records and were paying the property tax and kist with respect to the suit properties. Thereby, the defendants
have completely denied the right that was claimed by the plaintiff and https://www.mhc.tn.gov.in/judis 4 / 16
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according to them, the plaintiff is not entitled for any share in the suit properties.
“(i) Whether the lower appellate court is correct in holding that the Ex.B1 could be taken as a partition deed (Family Partition) among the first respondent and his
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parents, which is not only an unregistered and insufficiently stamped but also termed as Kandanpathiram ?
(ii) Whether the lower appellate court is correct in holding that the suit is bad for partial partition especially when there are no pleadings raised in the written statement filed by the first respondent ?”
and Mr.P.Jagadeesan, the learned counsel for the respondents 1 to 3. This Court carefully perused the materials available on record and also the findings of both the Courts below.
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land and had left out the entire constructions and the coconut trees that were standing in the suit property.
issues namely partial partition and the panchayat that took place on https://www.mhc.tn.gov.in/judis 7 / 16
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12.04.1991, wherein the Muchalika, Ex.B1 is said to have been executed and also considered the findings of the Trial Court and reversed the findings on both the issues.
“ jhthr; brhj;jpy; xU bkj;ij tPLk; cs;sJ/ 2 Tiu tPLk; cs;sJ tpy;iy tPL 1 cs;sJ 1 fpzW cs;sJ/ gyd; juf;Toa 35 bjd;id ku';fs; cs;sJ/ jw;nghJ Twpa brhj;Jf;fs; jdpj;jdpahf jdpj;jdpahf kjpg;gPL Fwpg;gplg;gltpy;iy vd;W brhd;dhy; rhp/ jhthr; brhj;jpy; cs;s bkj;ij tPl;il bghWj;J ghfk; nfl;ftpy;iy/ Tiu tPl;oy; ghfk; nfl;ftpy;iy. 35 bjd;id ku';fs; Fwpj;Jk; ghfk; nfhutpy;iy/ jhthr; brhj;J Fwpj;J tptuk; rhpahf Fwpg;gplg;gltpy;iy vd;W brhd;dhy; rhpay;y/ 2k; gpujpthjp rpd;Drhkp vd; jk;gp Mfk;/ 7.8.9 gpujpthjpfs; vd; jk;gpapd; kfd;fs;/ jhthr; brhj;jpy; vd; jk;gpa[k; jk;gpapd; kfd;fSk; mDgtpj;J tUfpd;wdh; vd;Wk; vdf;F mjpy; tUtjpy;iy vd;W brhd;dhy; rhp ”
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come to a conclusion that the plaintiff was aware about the various constructions that had come up in the suit property and the same being put up by the second defendant and inspite of the same, she consciously did not claim any share over those super structures. Therefore, the lower Appellate Court held that the suit was bad for partial partition. According to the lower Appellate Court, this issue was not properly appreciated by the Trial Court and hence the finding in this regard was reversed.
S.A.No.132 of 2012
regarding the panchayat that took place on 12.04.1991 and the Muchalika
that was executed and marked as Ex.B1, took into consideration the oral
and documentary evidence of P.Ws.1 and 2 in this regard.
“ mHfhg[uk; fpuhkj;jpy; mupag;g[j;jpi gilahr;rp kfd;fs; bjhpa[k;/ mth; vd; j';if fzth;/ mtUld; vd; mg;gh fld; th';fpapUe;jhh;/ me;j fld; rk;ke;jkhf v';fSf;Fk; vd; rnfhjuUf;Fk; ,ilna xU g";rhaj;J ele;jJ/ 12/04/1991 md;W Vw;gl;lJ (g";rhaj;J) g";rhaj;jpy; gj;jpuk; vGjg;gl;lJ/ mij ehd; ghh;j;J cs;nsd;/ me;j g";rhaj;jpy; vd; mg;gh. jhahh;. rnfhju rnfhjhpfs; ifbahg;gk; bra;Js;sdh;/ mij goj;Jg; ghh;f;f tpy;iy/ Kr;rypf;fh vjw;fhf Vw;gl;lJ vd;gJ bjhpa[k;/ vd; j';fiapd; fzth; mHfg;gdplk; vd; jha; jfg;gdhh; bgw;w flid 2k; gpujpthjp milj;J tpl;L mg;gh mk;khtpw;F bfhLj;j brhj;jpid 2k; gpujpthjp bgw;Wf; bfhs;s ntz;Lk; me;j g";rhaj;jpy; vGjg;gl;Ls;sJ vd;why; rhp jhd;/ mjd;go flid milj;J vd; jk;gp rpd;Drhkp jhd; ghfr; brhj;ij mDgtpj;J
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te;jhh;/ ”
“ 12/4/91y; Jiurhkp FLk;gj;jpy; g";rhaj;J ele;jJ vd;gJ cz;ik/ mHfg;gd; fld; rk;ke;jkhf me;j g";rhaj;jpy; ngrg;gl;lJ/ me;j g";rhaj;jpy; thjp jfg;gdhh; Jiurhkp mHfg;gdplk; th';fpa flid 2k; gpujpthjp rpd;Drhkp fl;otpl ntz;Lbkd;W Kot[ bra;ag;gl;lJ vd;why; rhp/ mHfg;gDf;F Jiurhkp U/21.000 fld; ju ntz;Lk;/ me;j gzj;ijf; bfhLjjhh;/ ; mnj rkak; jdf;F fld; rhpahf milf;ftpy;iy vd;W Twpdhh;/ mHfg;gd; Twpdhh;/ brYj;j ntz;oa gzk; KgtJk; brYj;jpa gpd;g[ me;j fld; gj;jpuj;ij rpd;Drhkp th';fp itj;jpUf;fpw tpguk; vdf;Fj; bjhpa[k;/ jhth brhj;ij 2k; gpujpthjp kfd;fs; jw;nghJ mDgtpj;J tUfpd;wdh; jhth brhj;jpy; thjp xU nghJk; RthjPdj;jpy; ,Ue;jJ ,y;iy vd;Wr; brhd;dhy; Muk;gj;jpy; RthjPdj;jpy; ,Ue;jJ vd;W rhl;rp brhy;fpwhh; ”.
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evidence, came to a conclusion that the properties were under mortgage
to one Azhagappan and it was agreed, during the panchayat held on 12.04.1991, that the second defendant will settle the entire amount and the property will vest upon him absolutely. The fact that the panchayat was held and the decision was taken in the panchayat was acted upon and thereafter the second defendant started enjoying the property absolutely and had also put up construction over the property, is clearly proved. The lower Appellate Court took into consideration the fact that the revenue records stood in the name of the second defendant from the year 1991 to 2003 and Exs.B2 and B3 was also taken into account in this regard. Thereafter, the property was settled in favour of D7 to D9 through Ex.B4 and the revenue records stood mutated in favour of these defendants which was substantiated through Exs.B5 to B7. The lower Appellate Court took into consideration the claim made by the plaintiff to the effect that the property in question are joint family properties. If that is so, the plaintiff who got married 40 years ago, never had a right over the properties. The lower Appellate Court also took into consideration, the subsequent family arrangement that was arrived at between Duraisamy Padayachi, Nagammal and the second
defendant. Their loans were settled by the second defendant and the https://www.mhc.tn.gov.in/judis 12 / 16
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second defendant was given the property. These loans were incurred
towards the marriage of the daughters. The plaintiff probably took advantage of the 2005 amendment and all of a sudden created a cause of action in the year 2007 and was attempting to destabilise the entire settlement of properties that had taken place by then between the family members.
S.A.No.132 of 2012
Court took into consideration the Judgment reported in 2006 (1) CTC
267 (Gandhi Vs. Saminatha Gounder and another) and held that where
there is failure in bringing all the properties for partition, the same will be bad for partial partition. This finding rendered by the lower Appellate Court is in accordance with law. The second substantial question of law is answered accordingly.
facts and circumstances of the case, there will be no order as to costs.
07.03.2022
Index :Yes/No Internet :Yes/No Lpp
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To
N. ANAND VENKATESH, J.
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Lpp
S.A.No.132 of 2012
07.03.2022
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2 issues framed by the court
Whether the lower appellate court was correct in holding that the document Ex.B1 could be taken into consideration as the basis of a family partition?
Whether the suit was bad for partial partition when the plaintiff failed to bring all properties for partition?
Colour shows how this judgement treated each authority
Gandhi Vs. Saminatha Gounder and anotherApplied¶100
2006 (1) CTC 267 (Gandhi Vs. Saminatha Gounder and another)
1 provisions across 1 enactments
Unnamalai
Chinnusamy
Arul
Ashokan
Anandhan
Selvam
N. ANAND VENKATESH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
