Madrasdated High Court · 2025

A.S.No.44 of 2013sought for an injunction restraining the defendants from encumbering the suit properties in any manner till the final division of the properties by metes and bounds. The plaintiffs also sought for decree of profits. The trial Court passed a preliminary decree for partition. It also granted a decree for permanent injunction restraining the defendants from alienating or committing any act of waste in the suit properties. As far as the prayer for profits are concerned, the parties were relegated to separate proceedings. Aggrieved by the said decree passed by the trial Court, the unsuccessful defendants have preferred this first appeal.2. According to the respondents/plaintiffs, the suit Item No.1 was purchased in the name of the plaintiffs and defendants, who are all the sons of Natesa Mudaliar. The first plaintiff is the eldest son of Natesa Mudaliar and the second plaintiff is the third son. The defendants 1 and 2 are the second and fourth sons respectively. The suit item No.1 was purchased in the name of all the sons of Natesa Mudaliar under registered sale deed dated 04.03.1981 marked as Ext.A1. Item Nos.2 and 3 are purchased in the name of all the parties under registered sale deed dated 05.03.1981 marked as Ext.A2. The 4th item of property was purchased by the parties under registered sale deed dated 2/15 https://www.mhc.tn.gov.in/judis A.S.No.44 of 201307.01.1994 marked as Ext.A3. The plaintiffs as well as the defendants joined together and mortgaged the suit properties to Kurinchipadi Co-operative Agricultural Bank on 19.09.1984 and the said document was marked as Ext.A4. The said mortgage was subsequently discharged on 02.07.1991 under Ext.A5. According to the plaintiffs, the suit properties belonged to the plaintiffs and defendants as per the registered documents and hence, each of the plaintiffs were entitled to ¼ share in the subject properties. Therefore, the suit was laid claiming half share in favour of plaintiffs 1 and 2. It was also stated by the plaintiffs that the defendants attempted to alienate the suit properties and tried to cut and remove the valuable trees standing in the suit properties. Hence, a decree for permanent injunction was also prayed for, apart from prayer for profits. 3. The appellants/defendants filed a written statement and resisted the suit on the ground that the suit properties were purchased out of separate funds of the first defendant. It is the case of the first defendant that he had taken various properties under lease and out of the income from those properties, the suit properties were purchased. It was also claimed by the first defendant that he had been in possession and enjoyment of all the suit items of properties. It 3/15 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2013was further stated by the first defendant that the family was managed by the first plaintiff in his capacity as senior most male member of the family and various properties were purchased out of the contribution by all the brothers and some other properties which were purchased by joint efforts were not included in the plaint and therefore, the suit was bad for partial partition. 4. The second defendant filed a separate additional written statement and claimed that the suit properties were purchased with an understanding that the amount borrowed by vendors from the Bank, had to be discharged by the vendees and it was he who had paid the entire money and discharged the loan amount. Suppressing the said fact, the suit had been laid and therefore, the suit should be dismissed on the ground that the plaintiffs approached the Court with unclean hands. 5. Based on these pleadings, the parties faced the trial and the trial Court framed the following issues and additional issues : “ 1/ ,t;tHf;F gFjp ghfg; gphptpidahy; ghjpf;fg;gl;Ls;sjh> 2/ tHf;F rhpahd Kiwapy; kjpg;gPL bra;ag;gl;L. ePjpkd;wf; fl;lzk; brYj;jg;gl;Ls;sjh> 3/ tHf;Fr; brhj;Jf;fs; KGtJk; 1?k; gpujpthjpf;F ghj;jpakhdjh>4/15 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2013 4/ tHf;Fr; brhj;Jf;fspy; thjpfs; Tl;L RthjPdj;jpYk;. mdgtj;jpYk; ,Ue;J tUfpwhh;fsh> 5/ tHf;Fr; brhj;Jf;fspy; thjpfs; 1-2 ghfk; bgw mUfij cilath;fsh> 6/ thjpfSf;F tHf;fpy; nfhhpathW ghpfhu';fs; fpilf;fj;jf;fjh> 7/ thjpfSf;F fpilf;ff; Toa ghpfhu';fs; vd;d> 13/6/2012?y; tidag;gl;l Tljy; tHf;bfGtpdhf;fs; 1/ 2?k; gpujpthjpahy; fld; igry; bra;ag;gl;L tpl;ljh> 2/ thjpfs;. mth;fsJ ghfj;jpw;fhd igry; bra;j fld; bjhidia brYj;j flikg;gl;lth;fsh>”6. Before the trial Court, the first plaintiff was examined as P.W.1 and on behalf of the plaintiffs, 15 documents were marked as Ext.A1 to Ext.A15. On behalf of the defendants, the first defendant was examined as D.W.1 and two other witnesses were examined as D.W.2 and D.W.3 and 19 documents were marked. An Advocate Commissioner was appointed by the Court, pending the suit and his report was marked as Ext.C1. The photo and compact disc submitted by him were marked as Ext.C2 and Ext.C3. 7. The trial Court based on the evidence available on record, came to the conclusion that all the four suit items were jointly purchased by the plaintiffs 5/15 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2013and defendants, and therefore, the plaintiffs were entitled to a decree as prayed for. Aggrieved by the judgment and decree, the defendants have come before this Court. 8. The learned counsel appearing for the appellants by taking this Court to the evidence of P.W.1, submitted that the first plaintiff who was examined as P.W.1 in his evidence has clearly admitted that some other properties purchased by the parties were not included in the plaint and therefore, the trial Court ought to have dismissed the suit for partial partition. The learned counsel also submitted that the documents marked by the defendants would prove that they have discharged the debt incurred by their vendors and those documents have not been properly taken into consideration by the trial Court and therefore, according to him, the judgment and decree passed by the trial Court is liable to be set aside. In support of his contention, the learned counsel appearing for the appellants relied on the following judgments :i.N.G.Dastane Vs S.Dastane reported in AIR 1975 (SC) 1534;ii.Uttam Singh Dugal & Co. Ltd., Vs Union Bank of India & Ors reported in 2007 (7) SCC 120;iii.Gangabai Vs Chhabubai reported in 1982 (1) SCC 4;iv.Bhaskar Waman Joshi (deceased) and Ors., Vs Shrinarayan Rambilas Agarwal (deceased) and Ors., reported in AIR 1960 (SC) 301;6/15 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2013v.Indira Kaur and Ors. Vs Sheo Lal Kapoor reported in 1988 (2) SCC 488;vi.Seeni Chettiar Vs Santhauathan Chettiar and Ors., reported in 1897 20 ILR (Mad) 58;vii.S.P.Chengalvaraya Naidu (dead) by Lrs Vs Jagannath (dead) by L.Rs, and Ors., reported in 1994 (1) SCC 1; viii.M/s.Trojan and Co., Vs RM. N.N.Nagappa Chettiar reported in (1953) 1 MLJ 729;ix.Sunil Kumar and another Vs Ram Parkash and others reported in AIR 1988 (SC) 576.9. Per contra, the learned counsel appearing for the respondents/plaintiffs would submit that there is a material contradiction between the written statement and the additional written statement filed by the defendants and second defendant respectively, with regard to the payment of consideration in respect of sale deeds under which the suit properties were purchased. The learned counsel submitted that the additional written statement filed by the second defendant would destroy the defence raised by the defendants in the first written statement, as if the suit properties were purchased out of separate funds of the first defendant. The learned counsel submitted that the second defendant did not enter the box to substantiate the plea raised by him in the additional written statement and therefore, the trial Court was justified in granting the decree for partition in favour of the plaintiffs as prayed for. 7/15 https://www.mhc.tn.gov.in/judis A.S.No.44 of 201310. Based on the pleadings and the submissions made by the respective counsel, the following points are arisen for consideration in this appeal :(1) Whether the suit properties are purchased jointly by the plaintiffs and defendants?(2)Whether the suit is bad for partial partition?(3)Whether the judgment and decree passed by the trial Court is sustainable in law? Discussion on Point No.(1) : 11. A close scrutiny of the evidence of P.W.1 and the documents filed in support of the plaint averments would indicate that the suit items 1 to 4 were purchased jointly in the name of the plaintiffs and defendants under three registered sale deeds dated 04.03.1981, 05.03.1981 and 07.01.1984 are marked as Exts.A1 to A3. A perusal of the said documents would establish that the plaintiffs and defendants jointly purchased the suit properties by paying the consideration. There is no recital in the documents regarding moving of the consideration from the first defendant or regarding discharge of debts incurred by the vendor as alleged by the second defendant. It is also seen from Ext.A4 8/15 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2013and Ext.A5 that all the four brothers have jointly mortgaged the suit properties in favour of Kurinchipadi Co-operative Agricultural Bank on 19.09.1984 and the said mortgage debt was discharged on 02.07.1991. Therefore, a combined reading of Ext.A1 and Ext.A5 would clinchingly establish that the suit properties were jointly purchased by plaintiffs and defendants and they enjoyed it as common properties by mortgaging the same. 12. It was claimed by the defendants in their written statement that the consideration for purchase of the suit properties were paid by the first defendant. However, in the registered sale deeds in favour of the parties, there is no mention about the said fact. The first defendant who was examined as D.W.1 in his cross-examination, deposed as follows :@eh';fs; 4 ngUk; Tl;lhf th';fpa brhj;Jf;fSk; cz;L vd;whYk;. ,uz;L ngUk; nrh;e;J th';fpa brhj;J cz;L vd;whYk;. jdp egu; bgaupYk; brhj;J cs;sJ vd;whYk; rupjhd;/ 4 bgaupy; Tl;lhf th';fpa brhj;Jf;fs; tHf;F brhj;Jf;fis jtpu ntW brhj;Jf;fs; fpilahJ vd;why; rhpjhd;/ 4 ngUk; Tl;lhf th';fp g';F gphpj;Jf;bfhs;s ntz;oa brhj;Jf;fs; tHf;F brhj;J jtpu ntW fpilahJ vd;why; rhpjhd;/ vd;Dila fl;rp gpufhuk; tHf;F brhj;Jf;fs; ehd; kl;Lnk gzk; nghl;L fpuak; th';fpaJ. vdf;F kl;Lnk ghj;jpak;. kw;w K:th; 9/15 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2013bgaUk; bgaustpy; nrh;f;fg;gl;Ls;sJ. mth;fSf;F ghj;jak; fpilahJ vd;gJjhd;/ nkw;brhd;dthW fl;rp vLg;gjw;F chpik fpilahJ vd;W brhd;dhy; rhpay;y/ th/j/rh/M/1 Kjy; th/j/rh/M/3 tiu tHf;F brhj;Jf;fs; 3 fpua';fs; K:yk; th';fg;gl;ld vd;why; rhpjhd;/ nkw;go 3 fpua';fSf;F ehd; kl;Lnk gzk; bfhLj;njd; vd;gjw;F vGj;J K:ykhf Mjhuk; fpilahJ/@13.Therefore, the first defendant in his evidence clearly admitted that the suit properties were jointly purchased in the name of all the brothers and there is no documentary evidence to suggest that he paid the sale consideration. During the course of his evidence, he also admitted that all the four brothers jointly purchased certain properties and some of the properties were purchased by two of the brothers. He also admitted that some of the properties were purchased in the individual names of the brothers. There is a categorical admission that except four items of suit properties, no other properties were purchased jointly in the name of four brothers, which are available for partition. In view of the categorical admission by D.W.1, this Court has no hesitation in holding that the suit properties were jointly purchased by plaintiffs and defendants and except the suit properties, no other properties are available for partition. Accordingly, Point No.1 is answered against the appellants and in 10/15 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2013favour of the respondents. Discussion on Point No.(2) :14. Though the defendants in their written statement pleaded that the suit was bad for partial partition and there are other properties available for partition, however, there is no specific plea mentioning the description of the joint family properties which were not included in the plaint. The learned counsel for the appellants by relying on the statement made by P.W.1 in his evidence as if there are other properties available for partition, vehemently contended that the suit was to be dismissed for partial partition. Relevant portion of P.W.1 evidence reads as follows :@jhthtpy; 4 mapl;l';fis jtpu vd; mz;zd; jk;gpf;Fs; ghfk; gphpf;ff;Toa brhj;Jf;fs; vJt[nk ,y;iyah vd;W brhd;dhy; brhj;Jf;fs; cs;sd/ ,Jnghy ghfk; gphpf;ff;Toa brhj;Jf;fs; ,Uf;fpwJ vd;W vdJ gpuhjpnyh. thf;FK:yj;jpnyh brhy;ytpy;iy vd;why; rhpjhd;/@”15. A close scrutiny of the above evidence of P.W.1 and D.W.1 would establish that apart from these four items of suit properties, there are other properties which are to be partitioned among the brothers. D.W.1 in his evidence extracted above clearly admitted that some of the properties were 11/15 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2013purchased by all the four brothers, some of the properties were purchased by two brothers and some of the properties were purchased individually by brothers. In the said circumstances, there may be properties which were in the name of two brothers, either plaintiffs 1 and 2 or defendants 1 and 2. The statement made by P.W.1 only refers to those properties purchased in the name of two brothers, and not the properties purchased in the name of all the four brothers. The said fact can be gathered from the clear admission of D.W.1 during the cross-examination that except four items of suit properties, there are no other properties available for partition among the four brothers. The categorical admission by D.W.1 extracted above would give a go-bye to the plea of partial partition made by the defendants in their written statement. Therefore, Point No.2 is also answered in favour of the respondents/plaintiffs.Discussion on Point No.(3):16. As mentioned earlier, the plaintiffs succeeded in proving all the four items of suit properties were purchased in the name of plaintiffs and defendants as per Exts.A1 to A3. Further, D.W.1 in his evidence categorically admitted that except four items of suit properties no other properties were available for partition among the four brothers. In view of the said categorical admission by 12/15 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2013D.W.1 and positive documentary evidence on the side of the plaintiffs, the case laws relied on by the learned counsel for the appellants will not be helpful to him. In view of the conclusion reached by this Court in Point Nos.1 and 2, the Point No.3 is answered against the appellants and the appeal has to be dismissed. 17. In a nutshell, the appeal suit is dismissed by confirming the judgment and decree passed by the trial Court. In the facts and circumstances of the case, there shall be no order as to costs.26.09.2025 Index : Yes / NoNeutral Citation : Yes / Nods13/15 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2013To:1.The Additional District Judge Cuddalore.2.The Section Officer VR Section, High Court, Madras.14/15 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2013S.SOUNTHAR, J, dsA.S.No.44 of 201326.09.202515/15