Madrasreserved High Court · 2025

A.S.No.361 of 2015sisters of late Duraisamy and first defendant Munusamy. The 6th defendant is the daughter of yet another sister Nallammal. The above mentioned late Duraisamy, the first defendant Munusamy, the defendants 4 and 5 and mother of 6th defendant Nallammal were children of one Pulichari Nachiappan. It is stated that he died in the year 1963 and his wife Muniammal died on 10.04.1990. The first plaintiff's husband Duraisamy died on 11.07.1985. It was claimed by the plaintiff that the suit 'A' schedule properties were ancestral properties. The suit 'B' schedule property was purchased out of joint family funds in the name of defendants 2 and 3 and hence it was also available for partition. The suit 'C' schedule properties were jointly purchased by first plaintiff's husband Duraisamy and first defendant Munusamy and hence the same shall also be treated as joint family properties available for partition. On these pleadings, the plaintiffs sought for ½ share in the subject property.3. The appellants/defendants 1 to 3 filed a written statement and denied the allegation in the plaint that family had ancestral properties. It was the specific case of the defendants 1 to 3 that father of Duraisamy and Munusamy viz., Pulichari Nachiappan did not have any ancestral 3/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015properties. He purchased item 8 of 'A' schedule properties and entire 'B' schedule property out of his own earnings under sale deeds dated 05.07.1945 and 22.07.1959. It was also stated that after death of Nachiappan, there was oral partition in the year 1975 between Duraisamy and Munusamy and northern portion in the above mentioned property was allotted to the share of Duraisamy and southern portion was allotted to the share of Munusamy. It was further claimed by the defendants 1 to 3 that one Chinna Gounder, father of Nachiappan's first wife executed a gift deed on 03.05.1949 settling items 6 and 7 of 'A' schedule properties in favour of first defendant Munusamy and one Vaguthan @ Annamalai. Later under Ex.B4, dated 09.09.1986, the first defendant purchased share of the above said Vaguthan @ Annamalai. It was also further claimed that out of his own earnings, the first defendant purchased item Nos.3,4,5, 9 to 18. It was also stated that the first defendant and one Ramamoorthy purchased item No.1 of 'C' schedule under sale deeds dated 14.12.1978, 09.11.1982 later the share of Ramamoorthy was purchased by first defendant under sale deed on 15.09.1993. Therefore, the first defendant sought for dismissal of the suit in respect of all the items except item 8 of 'A' and 'B' schedule.4/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 20154. The defendants 4 to 6 filed separate written statement claiming 1/5th share each in item 8 of 'A' schedule and 'B' schedule properties. They also claimed that in the event of Court coming to the conclusion that other properties were purchased out of joint family funds, they were entitled to 1/5th share each in other items also.5. Based on the said pleadings of the parties, the trial Court framed the following issues:(1) Whether the suit schedule properties are ancestral properties of the parties?(2). Whether the suit B schedule properties purchased out of the income derived from joint family income?(3) Whether any oral partition taken place?(4) Whether the plaintiffs are entitled for partition and separate possession?(5) Whether the plaintiffs are entitled for permanent injunction restraining from selling the properties or making any encumbrance?(6) What relief is entitled for plaintiffs?.5/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 20156. The 3rd plaintiff was examined as PW.1 and eleven documents were marked on the side of the plaintiff under Exs.A1 to A11. The first defendant was examined as DW.1, the second defendant was examined as DW.2 and independent witness was examined as DW.3 on behalf of the defendants 1 to 3 and 103 documents were marked as Exs.B1 to 103.7. On appreciation of oral and documentary evidence available on record, the trial Court came to the conclusion that the suit items 1 to 4, 8 to 14 in 'A' schedule property, entire 'B' schedule property and item 1 of 'C' schedule property were purchased out of joint family properties. Since the female heirs of Nachiappan namely D4 to D6 are also entitled to equal share in his properties, the trial Court was pleased to grant preliminary decree for 1/5th share in the above mentioned properties, in respect of the other parties, the trial Court held that the properties were not available for partition and dismissed the suit. Aggrieved by the same, the defendants 1 to 3 have preferred this first appeal.8. The learned counsel appearing for the appellants would submit that all the suit properties except item 8 of 'A' and 'B' schedule 6/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015properties were purchased in the individual name of first defendant Munusamy. According to him, the first defendant was engaged in tamarind business and the same was established by various lease agreements entered into by first defendant with 3rd parties as per Exs.B23 to B103. The trial Court, without taking into consideration the independent source of income available to the first defendant, committed a serious error in treating various items purchased in the name of first defendant as joint family properties available for partition. The learned counsel further submitted that in respect of the properties purchased by Nachiappan, there was an oral partition in the year 1975 and the same has not been properly taken into consideration by the trial Court. He further submitted that the properties were managed by Muniammal, w/o.Nachiappan and hence the income out of properties left by Nachiappan was not at all received by first defendant to enable him to utilise that income for purchase of other items of suit properties. Therefore, he sought for setting aside of the trial Court judgment and decree in respect of various items of suit properties except item 8 of 'A' and 'B' schedule properties.7/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 20159. Per contra, the learned counsel appearing for the contesting respondents 1 to 3 /plaintiffs would submit that the trial Court on proper appreciation of evidence available on record came to the conclusion that the properties purchased in the name of first defendant were in fact purchased out of joint family funds and hence it acquired the character of joint family. The learned counsel pointed out that till the death of first plaintiff's husband Duraisamy, the family was joint family and hence any purchase made in the name of first defendant prior to death of Duraisamy in the year 1985 shall be treated as the one for the benefit of the joint family out of joint family income. The learned counsel by pointing out the admission in DW.1's evidence that family was managed by mother of Duraisamy and Munusamy from the year 1963 submitted that existence of joint family and its nucleus had been proved to raise a presumption that acquisition in the name of first defendant was only out of joint family funds. Therefore, the trial Court properly appreciated the evidence available on record and had granted decree for partition in respect of items 1 to 4, 8 to 14 in 'A' schedule property, entire 'B' schedule property and item 1 of 'C' schedule property and therefore it requires no interference from this Court.8/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 201510. Based on the pleading of the parties and arguments of the learned counsel appearing for either side, the following points are arising for consideration in this appeal:(i) Whether the items 1 to 4, 8 to 14 in 'A' and 'B' schedule and item No.1 of 'C' schedule are available for partition?(ii) Whether the plaintiffs are entitled to 1/5th share in the suit properties?(iii) Whether the plaintiffs are entitled to permanent injunction against alienation?(iv) Whether the appeal is deserved to be allowed or not?.(v) Whether the CMP.Nos.4751 of 2022, CMP.Nos.15005 and 15007 of 2025 are to be allowed or not?.11. Point No.V:CMP.No.4751 of 2022 is a petition filed by respondents 1 to 3 seeking reception of eleven documents as additional evidence under Order 41 Rule 27 of CPC. 9/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015 CMP.No.15005 of 2025 is yet another petition filed by the respondents 1 to 3 seeking reception of three documents namely the award passed by Revenue Divisional Officer, Krishnagiri dated 27.01.1998 'A' register extract pertaining to the land in S.No.171/5 and certified copy of the mortgage deed dated 28.01.1973 as additional evidence. 12. CMP.No.15007 of 2025 has been filed by the respondents 1 to 3 seeking to amend the plaint so as to include certain new properties as subject matter of the suit. 13. It is submitted by the learned counsel for the petitioner that certain properties belonging to the joint family have been omitted in the plaint in view of the fact that the plaint was prepared as per the instruction given by the first petitioner, mother of the petitioners 2 and 3. It was stated that the first petitioner is not a wise lady acquainted with worldly affairs and therefore due to her inadvertence and oversight, some of the properties belonging to the joint family were omitted in the plaint. He also submitted the additional documents produced by the petitioners in these two applications would help the petitioner to prove that new properties sought to 10/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015be included in the plaint were purchased out of joint family funds or out of compensation received by the first defendant in respect of the family properties acquired by the state. He further submitted that documents produced in all these applications would further advance the case of the plaintiffs.14. These applications were opposed by the contesting respondents/appellants in the main appeal on the ground that property sought to be included in the plaint were not joint family properties. It was further submitted by the learned counsel for the appellants that these petitions were filed by the respondents 1 to 3 with inordinate delay without explaining reason for not filing the applications before the trial Court.15. The reason given by the respondents 1 to 3 for filing amendment application is the ignorance of first petitioner. The petitioners 2 and 3 were also arrayed as co-plaintiffs along with first petitioner in the main suit and infact the plaint was signed by all of them. The 3rd petitioner/3rd plaintiff who has sworn affidavit in amendment application Srikandan was examined as PW.1. Therefore, it is clear that the first 11/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015petitioner was not examined on behalf of the plaintiff, only the 3rd petitioner was examined as PW.1. When he found time to appear before this Court and make a statement on oath, he could have very well verified the plaint and mentioned about non inclusion of alleged joint family properties available for partition. For the reason best known to him, he failed to take any steps to file amendment application before the trial Court . As per proviso to Order VI Rule 17 of amended CPC, a party seeking amendment of the pleading must establish before the Court that notwithstanding the exercise of due diligence by him, he was prevented from seeking amendment before commencement of trial. In the case on hand, the respondents 1 to 3/plaintiffs failed to file amendment application before the trial Court. The appeal is of the year 2015, the amendment application is filed only in the year 2025 before the first appellate Court, when the appeal is ready for final disposal, therefore, absolutely, there is nothing in the affidavit filed in support of petition to amend the plaint to satisfy requirement of Proviso to Order VI Rule 17. Hence, this Court is not inclined to accept the petition in CMP.No.15007 of 2025, accordingly, the same is dismissed.12/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 201516. CMP.No,4751 of 2022 and CMP.No.15005 of 2025 have been filed to receive additional evidence. Order 41 Rule 27 of CPC reads as follows:“(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if-(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.”13/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 201517. Obviously, the contingency mentioned in Rule (1) (a) of CPC is not satisfied in this case as no attempt was made by the respondents 1 to 3 to file these documents before the trial Court. The documents produced by the respondents 1 to 3 are all very old documents, the reasoning given by the petitioner for their failure to produce it before the trial Court is not acceptable. In the affidavit filed in support of petition to receive additional evidence, it is stated by the respondents 1 to 3 that some of the documents are available with appellants 1 to 3 in the appeal and notice to produce will be issued for production of originals. Absolutely, there is nothing on record to suggest, why the respondents 1 to 3 failed to issue notice to produce, when the matter was very well pending before the trial Court. 18. The respondents 1 to 3 have not given any convincing reason to establish that they exercised due diligence, when the suit was pending and notwithstanding exercise of due diligence they were prevented from producing these documents before the trial Court. Hence, the contingency contemplated under Rule 27 (1) (aa) of CPC is also not satisfied in this case.14/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 201519. The respondents 1 to 3 have not taken any steps to file petition to receive additional evidence immediately after admission of the appeal. Infact, they filed two set of application to receive additional evidence. The respondents 1 to 3 are not entitled to produce documents in installment that too before the first appellate Court. The failure of the respondents 1 to 3 to produce the documents before the trial is not very well explained and they have not satisfied any substantial cause to allow the application under Order 41 Rule 27. In fact, the documents filed in support of CMP.No.15005 of 2025 are only to support the amendment application filed by the respondents 1 to 3, this Court already dismissed the amendment application and there is no basis in the pleadings for additional documents produced by the respondents. 20. This Court feels that the production of additional documents is not absolutely essential to enable this Court to dispose of the appeal and based on the documents available on record, this Court can satisfactorily dispose of the appeal and documents produced by the respondents 1 to 3 by way of additional evidence are not absolutely 15/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015necessary to enable this Court to dispose of the appeal. In such circumstances, the contingency contemplated under Order 27 Rule (1) (b) of CPC is also not satisfied. Accordingly, the CMP.No.4751 of 2022 and 15005 of 2025 are dismissed. The point No.5 is answered against the respondents 1 to 3.21. Discussion on point No.(i):Though the suit was filed by respondents 1 to 3/plaintiffs seeking partition in respect of eighteen items in 'A' schedule, 'B' schedule and two items in 'C' schedule, the trial Court granted partition decree in respect of items 1 to 4, 8 to 14 in 'A' schedule, entire 'B' schedule and item 1 of 'C' schedule properties. The said decree is challenged by defendants 1 to 3. The respondents 1 to 3/plaintiffs have not filed any independent appeal challenging the dismissal of the suit, in respect of the other items. After filing of appeal by defendants 1 to 3, the plaintiffs filed Cross Objection with inordinate delay of 3521 days. The petition to condone delay in filing Cross Objection was already dismissed. Hence, the decree passed by the trial Court negativing the relief of partition in respect of other items had attained finality. Therefore, in this appeal we are only concerned 16/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015with items 1 to 4, 8 to 14 in 'A' schedule, 'B' schedule and item 1 of 'C' schedule properties.22. In the written statement filed by the defendants 1 to 3, they clearly admitted that item 8 of 'A' schedule property and entire 'B' schedule property were purchased by the father of Duraisamy and first defendant namely Nachiappan. Therefore, all the children of Nachiappan are entitled to 1/5th share each in the said properties. There is no dispute with regard to the said two items. Hence, the decree of the trial Court in respect of the item 8 of 'A' schedule and 'B' schedule properties need not be interfered with due to the admission in the pleadings of the defendants.23. As far as items 1 to 4, items 9 to 14 in 'A' schedule and item 1 of 'C' schedule are concerned, the documents filed on behalf of the plaintiff would establish that the revenue document patta stands in the name of the first defendant. Ex.A3-patta relates to items 1 to 4 in 'A' schedule. Ex.A4-patta relates to items 5 to 12 in 'A' schedule. Ex.A5-patta relates to items 13 and 14 in 'A' schedule. Ex.A6 relates to item 16 in 'A' schedule. Ex.A7 is patta relating to item 15 in 'A' schedule. Ex.A8 is patta relating to 17/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015item 17 in 'A' schedule. These revenue documents stand in the name of first defendant. As far as item No.1 of 'C' schedule is concerned, the plaintiff has not produced any revenue documents. 24. The various registered documents filed by the defendants 1 to 3 would establish that items 3, 4 and 9 to 12 and 14 in 'A' schedule and item 1 of 'C' schedule were purchased by 1st defendant. Ex.B5-sale deed dated 24.04.1972 would establish item No.3 was purchased by first defendant from Muniappan and others. Ex.B6, dated 22.06.1971 would establish that item 4 was purchased by first defendant from Marikathan @ Chellan and others. Ex.B11, sale deed dated 24.03.1975 would establish that the first defendant purchased items 9, 10, 11 in 'A' schedule from one Chinnukan and Seeraman. Ex.B8, dated 25.04.1968 would establish that the first defendant purchased item 12 of 'A' schedule from Chinnukan and others. Ex.B9, dated 05.04.1972 would establish that item 14 of 'A' schedule was purchased by first defendant from Kuppukan and others. Ex.B17 and 'B18 dated 14.12.1978 and 09.11.1982 respectively would establish that the first defendant and one Ramamoorthi purchased item No.1 18/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015of 'C' schedule from Krishnamoorthy. Later, the first defendant got release of Ramamoorthi's share under Ex.B19 dated 15.09.1993.25. From the documents mentioned above, it is clear that items 3 to 4, 9 to 12 and 14 in 'A' schedule and item 1 of 'C' schedule were purchased by first defendant in his name prior to 11.07.1985, the date of death of Duraisamy. Ex.A1-death certificate produced by the plaintiff would establish that Duraisamy died on 11.07.1985. The Revenue documents produced by the plaintiffs mentioned above would establish that the patta stands in the name of first defendant in respect of items 1 and 2, 13. Therefore, it is clear that items 1 to 4, 9 to 14 in 'A' schedule and item 1 of 'C' schedule were either purchased by first defendant prior to death of Duraisamy or Revenue documents stand in his name. The first defendant even in his pleadings clearly admitted item 8 of 'A' schedule and entire 'B' schedule was purchased by father of Duraisamy and first defendant namely Nachiappan. From the evidence of first defendant, who was examined as DW.1, it was established that mother of Duraisamy and first defendant had been looking after the family from 1963 onwards. Even, as per the case of first defendant, there was a partition between him and his brother 19/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015Duraisamy in the year 1975. Therefore, according to him, the family was living jointly till the year 1975, Duraisamy died only in the year 1985. With regard to the purchase of the suit properties in his name DW.1 deposed as follows:“...... 9 Kjy; 14 ,d brhj;Jf;fs; 25/4/1968y; vd;d tpiyf;F th';fpndd; vd;gJ epidtpy;iy/ 5/4/1968y; th';fpa brhj;jpd; gug;gst[ kjpg;g[ bjhpahJ/ vd;Dila brhe;j brhj;jpypUe;J te;j tUkhdj;ij bfhz;L nkw;go brhj;Jfis th';fpndd;/ 8/8/1968y; brhj;J th';fpa nghJ Jiurhkp capnuhL ,Ue;jhh;/ nkw;go brhj;J Tl;L FLk;g tUkhdj;jpypUe;J te;j tUkhdj;ij bfhz;L th';fg;gl;lJ vd;whYk; me;j rkaj;jpy; vdf;F jdpg;gl;l tUkhdk; fpilahJ vd;whYk; rhpay;y/ 1975k; Mz;L th';fpa brhj;jpd; kjpg;g[ epidtpy;iy/ 03/09/1977y; th';fpa brhj;jpd; gug;gst[ kw;Wk; kjpg;g[ epidtpy;iy. jdpg;gl;l tUkhdk; vt;tst[ vd;W epidtpy;iy/ 1968y; th';fpa brhj;Jfspd; kjpg;g[ gug;gst[ gj;jpu';fis ghh;j;jhy; jhd; bjhpa[k;/ 1968y; vdJ jdpg;gl;l tUkhdk; epidtpy;iy/ vdf;F ghj;jpag;gl;l brhj;jpypUe;J tUkhdk; te;jJ/ 1978 kw;Wk; 1982y; vdJ jdpg;gl;l tUkhdk; khjk; U:/10.000-? rk;ghjpj;njd;/ tha;bkhHp ghfk; ve;j Mz;L gphpf;fg;gl;lJ vd;W bjhpahJ 2001w;F gpwF jhd; tha;bkhHp ghfk; Vw;gl;lJ.....” 26. Therefore, DW.1 is not in a position to say what was the 20/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015sale consideration and what was the extent of the properties purchased by him under various sale deeds. He could not say what was his independent income during 1968 to 1977. He clearly deposed that from the year 1963 onwards, the family had been administered by his mother. During the year 1963, 1st defendant was hardly 18 years old. Hence, the evidence available on record would suggest that the family was joint prior to death of Duraisamy and properties should have been purchased out of join effort. It is not in dispute that the first defendant is older than first plaintiff's husband Duraisamy. Nachiapppa Gounder, father of Duraisamy and Munusamy died in the year 1963. Thereafter, family had been looked after by mother due to the young age of her sons namely Duraisamy and Munisamy. Though, the oral partition in the year 1975 was pleaded, there is no convincing evidence available on record to suggest that the said oral partition had taken place and it was acted upon by mutation of revenue records. All the revenue records stand in the name of first defendant as he happens to be eldest male member of the family. All the purchases were made in the name of first defendant as he happens to be the eldest male member of the family.21/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 201527. It is settled law, whenever properties are purchased in the name of eldest male member of the family [Manager – Kartha], there is a general presumption, the same was purchased out of joint family funds unless the contrary is proved. In this regard, reference may be had Mallesappa Bandeppa Desai and others Vs. Desai Mallappa and others reported in AIR 1961 SC 1268. The relevant observation of Apex Court reads as follows:We do not know what the income of the said properties was; obviously it could not be of any significant order; but, in our opinion, there is no doubt that where a manager claims that any immovable property has been acquired by him with his own separated funds and not with the help of the joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from his separated fund. The onus of proof must in such a case be placed on the manager and not on his coparceners. 28. Therefore, in the absence of any contra evidence to suggest 22/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015Munusamy had independent source of income at the time of purchase of various items of suit properties covered under sale deeds mentioned above, the trial Court rightly presumed that properties purchased in the name of first defendant were joint family properties. Duraisamy died only in the year 1985. Therefore, the trial Court came to the conclusion that all the purchases made in the name of first defendant prior to death of Duraisamy should have been only out of the joint family funds. It was claimed by the first defendant that he was engaged in the business of taking Tamarind Thoppu under lease and hence he had independent source of income. In order to substantiate the said plea various lease Muchalikkas entered between first defendant and third parties were marked as Ex.B23 to B103. A perusal of said exhibits would indicate that all those lease deeds were subsequent to 1994. The purchase of the above items of the suit properties were made well prior to 1985 under sale deeds mentioned above. Therefore, absolutely, there is no evidence available on record to suggest Munusamy, the first defendant had independent source of income prior to 1985 (i.e., at the time of purchase of above mentioned items of suit properties). Therefore, I concur with the conclusion reached by the trial Court that items 1 to 4, 8 to 14 in 'A' schedule, entire 'B' schedule and item 1 23/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015of 'C' schedule are joint family properties and hence available for partition. The point No.1 is answered against the appellants.29. Discussion on point Nos.(ii), (iii) and (iv):Once the above mentioned items are treated as joint family properties all the children of Nachiappan namely Duraisamy, Munusamy, defendants 4, 5 and mother of 6th defendant are entitled to equal share. Hence, the trial Court was justified in granting a decree for 1/5th share in favour of the plaintiffs. Since there was attempt on the part of the defendants 1 to 3 to alienate the suit properties, the trial Court granted injunction restraining them from alienating the suit properties till the partition of the properties by metes and bounds. The said decree deserves to be confirmed. In view of the discussions made earlier, the appeal suit has no merit and accordingly, the same is liable to be dismissed. The point Nos.2 to 4 are answered accordingly against the appellants.24/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 201530. In view of the conclusion reached by this Court in Point Nos.1 to 5, the appeal suit is dismissed. CMP.Nos.4751 of 2022, CMP.Nos.15005 and 15007 of 2025 are dismissed. No costs.26.09.2025Index : Yes/NoSpeaking order:Yes/NoNeutral Citation:Yes/Noub ToThe Additional District Judge, Krishnagiri.25/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015S.SOUNTHAR, J.ubA.S.No.361 of 201526.09.202526/26

A.S.No.361 of 2015sisters of late Duraisamy and first defendant Munusamy. The 6th defendant is the daughter of yet another sister Nallammal. The above mentioned late Duraisamy, the first defendant Munusamy, the defendants 4 and 5 and mother of 6th defendant Nallammal were children of one Pulichari Nachiappan. It is stated that he died in the year 1963 and his wife Muniammal died on 10.04.1990. The first plaintiff's husband Duraisamy died on 11.07.1985. It was claimed by the plaintiff that the suit 'A' schedule properties were ancestral properties. The suit 'B' schedule property was purchased out of joint family funds in the name of defendants 2 and 3 and hence it was also available for partition. The suit 'C' schedule properties were jointly purchased by first plaintiff's husband Duraisamy and first defendant Munusamy and hence the same shall also be treated as joint family properties available for partition. On these pleadings, the plaintiffs sought for ½ share in the subject property.3. The appellants/defendants 1 to 3 filed a written statement and denied the allegation in the plaint that family had ancestral properties. It was the specific case of the defendants 1 to 3 that father of Duraisamy and Munusamy viz., Pulichari Nachiappan did not have any ancestral 3/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015properties. He purchased item 8 of 'A' schedule properties and entire 'B' schedule property out of his own earnings under sale deeds dated 05.07.1945 and 22.07.1959. It was also stated that after death of Nachiappan, there was oral partition in the year 1975 between Duraisamy and Munusamy and northern portion in the above mentioned property was allotted to the share of Duraisamy and southern portion was allotted to the share of Munusamy. It was further claimed by the defendants 1 to 3 that one Chinna Gounder, father of Nachiappan's first wife executed a gift deed on 03.05.1949 settling items 6 and 7 of 'A' schedule properties in favour of first defendant Munusamy and one Vaguthan @ Annamalai. Later under Ex.B4, dated 09.09.1986, the first defendant purchased share of the above said Vaguthan @ Annamalai. It was also further claimed that out of his own earnings, the first defendant purchased item Nos.3,4,5, 9 to 18. It was also stated that the first defendant and one Ramamoorthy purchased item No.1 of 'C' schedule under sale deeds dated 14.12.1978, 09.11.1982 later the share of Ramamoorthy was purchased by first defendant under sale deed on 15.09.1993. Therefore, the first defendant sought for dismissal of the suit in respect of all the items except item 8 of 'A' and 'B' schedule.4/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 20154. The defendants 4 to 6 filed separate written statement claiming 1/5th share each in item 8 of 'A' schedule and 'B' schedule properties. They also claimed that in the event of Court coming to the conclusion that other properties were purchased out of joint family funds, they were entitled to 1/5th share each in other items also.5. Based on the said pleadings of the parties, the trial Court framed the following issues:(1) Whether the suit schedule properties are ancestral properties of the parties?(2). Whether the suit B schedule properties purchased out of the income derived from joint family income?(3) Whether any oral partition taken place?(4) Whether the plaintiffs are entitled for partition and separate possession?(5) Whether the plaintiffs are entitled for permanent injunction restraining from selling the properties or making any encumbrance?(6) What relief is entitled for plaintiffs?.5/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 20156. The 3rd plaintiff was examined as PW.1 and eleven documents were marked on the side of the plaintiff under Exs.A1 to A11. The first defendant was examined as DW.1, the second defendant was examined as DW.2 and independent witness was examined as DW.3 on behalf of the defendants 1 to 3 and 103 documents were marked as Exs.B1 to 103.7. On appreciation of oral and documentary evidence available on record, the trial Court came to the conclusion that the suit items 1 to 4, 8 to 14 in 'A' schedule property, entire 'B' schedule property and item 1 of 'C' schedule property were purchased out of joint family properties. Since the female heirs of Nachiappan namely D4 to D6 are also entitled to equal share in his properties, the trial Court was pleased to grant preliminary decree for 1/5th share in the above mentioned properties, in respect of the other parties, the trial Court held that the properties were not available for partition and dismissed the suit. Aggrieved by the same, the defendants 1 to 3 have preferred this first appeal.8. The learned counsel appearing for the appellants would submit that all the suit properties except item 8 of 'A' and 'B' schedule 6/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015properties were purchased in the individual name of first defendant Munusamy. According to him, the first defendant was engaged in tamarind business and the same was established by various lease agreements entered into by first defendant with 3rd parties as per Exs.B23 to B103. The trial Court, without taking into consideration the independent source of income available to the first defendant, committed a serious error in treating various items purchased in the name of first defendant as joint family properties available for partition. The learned counsel further submitted that in respect of the properties purchased by Nachiappan, there was an oral partition in the year 1975 and the same has not been properly taken into consideration by the trial Court. He further submitted that the properties were managed by Muniammal, w/o.Nachiappan and hence the income out of properties left by Nachiappan was not at all received by first defendant to enable him to utilise that income for purchase of other items of suit properties. Therefore, he sought for setting aside of the trial Court judgment and decree in respect of various items of suit properties except item 8 of 'A' and 'B' schedule properties.7/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 20159. Per contra, the learned counsel appearing for the contesting respondents 1 to 3 /plaintiffs would submit that the trial Court on proper appreciation of evidence available on record came to the conclusion that the properties purchased in the name of first defendant were in fact purchased out of joint family funds and hence it acquired the character of joint family. The learned counsel pointed out that till the death of first plaintiff's husband Duraisamy, the family was joint family and hence any purchase made in the name of first defendant prior to death of Duraisamy in the year 1985 shall be treated as the one for the benefit of the joint family out of joint family income. The learned counsel by pointing out the admission in DW.1's evidence that family was managed by mother of Duraisamy and Munusamy from the year 1963 submitted that existence of joint family and its nucleus had been proved to raise a presumption that acquisition in the name of first defendant was only out of joint family funds. Therefore, the trial Court properly appreciated the evidence available on record and had granted decree for partition in respect of items 1 to 4, 8 to 14 in 'A' schedule property, entire 'B' schedule property and item 1 of 'C' schedule property and therefore it requires no interference from this Court.8/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 201510. Based on the pleading of the parties and arguments of the learned counsel appearing for either side, the following points are arising for consideration in this appeal:(i) Whether the items 1 to 4, 8 to 14 in 'A' and 'B' schedule and item No.1 of 'C' schedule are available for partition?(ii) Whether the plaintiffs are entitled to 1/5th share in the suit properties?(iii) Whether the plaintiffs are entitled to permanent injunction against alienation?(iv) Whether the appeal is deserved to be allowed or not?.(v) Whether the CMP.Nos.4751 of 2022, CMP.Nos.15005 and 15007 of 2025 are to be allowed or not?.11. Point No.V:CMP.No.4751 of 2022 is a petition filed by respondents 1 to 3 seeking reception of eleven documents as additional evidence under Order 41 Rule 27 of CPC. 9/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015 CMP.No.15005 of 2025 is yet another petition filed by the respondents 1 to 3 seeking reception of three documents namely the award passed by Revenue Divisional Officer, Krishnagiri dated 27.01.1998 'A' register extract pertaining to the land in S.No.171/5 and certified copy of the mortgage deed dated 28.01.1973 as additional evidence. 12. CMP.No.15007 of 2025 has been filed by the respondents 1 to 3 seeking to amend the plaint so as to include certain new properties as subject matter of the suit. 13. It is submitted by the learned counsel for the petitioner that certain properties belonging to the joint family have been omitted in the plaint in view of the fact that the plaint was prepared as per the instruction given by the first petitioner, mother of the petitioners 2 and 3. It was stated that the first petitioner is not a wise lady acquainted with worldly affairs and therefore due to her inadvertence and oversight, some of the properties belonging to the joint family were omitted in the plaint. He also submitted the additional documents produced by the petitioners in these two applications would help the petitioner to prove that new properties sought to 10/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015be included in the plaint were purchased out of joint family funds or out of compensation received by the first defendant in respect of the family properties acquired by the state. He further submitted that documents produced in all these applications would further advance the case of the plaintiffs.14. These applications were opposed by the contesting respondents/appellants in the main appeal on the ground that property sought to be included in the plaint were not joint family properties. It was further submitted by the learned counsel for the appellants that these petitions were filed by the respondents 1 to 3 with inordinate delay without explaining reason for not filing the applications before the trial Court.15. The reason given by the respondents 1 to 3 for filing amendment application is the ignorance of first petitioner. The petitioners 2 and 3 were also arrayed as co-plaintiffs along with first petitioner in the main suit and infact the plaint was signed by all of them. The 3rd petitioner/3rd plaintiff who has sworn affidavit in amendment application Srikandan was examined as PW.1. Therefore, it is clear that the first 11/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015petitioner was not examined on behalf of the plaintiff, only the 3rd petitioner was examined as PW.1. When he found time to appear before this Court and make a statement on oath, he could have very well verified the plaint and mentioned about non inclusion of alleged joint family properties available for partition. For the reason best known to him, he failed to take any steps to file amendment application before the trial Court . As per proviso to Order VI Rule 17 of amended CPC, a party seeking amendment of the pleading must establish before the Court that notwithstanding the exercise of due diligence by him, he was prevented from seeking amendment before commencement of trial. In the case on hand, the respondents 1 to 3/plaintiffs failed to file amendment application before the trial Court. The appeal is of the year 2015, the amendment application is filed only in the year 2025 before the first appellate Court, when the appeal is ready for final disposal, therefore, absolutely, there is nothing in the affidavit filed in support of petition to amend the plaint to satisfy requirement of Proviso to Order VI Rule 17. Hence, this Court is not inclined to accept the petition in CMP.No.15007 of 2025, accordingly, the same is dismissed.12/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 201516. CMP.No,4751 of 2022 and CMP.No.15005 of 2025 have been filed to receive additional evidence. Order 41 Rule 27 of CPC reads as follows:“(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if-(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.”13/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 201517. Obviously, the contingency mentioned in Rule (1) (a) of CPC is not satisfied in this case as no attempt was made by the respondents 1 to 3 to file these documents before the trial Court. The documents produced by the respondents 1 to 3 are all very old documents, the reasoning given by the petitioner for their failure to produce it before the trial Court is not acceptable. In the affidavit filed in support of petition to receive additional evidence, it is stated by the respondents 1 to 3 that some of the documents are available with appellants 1 to 3 in the appeal and notice to produce will be issued for production of originals. Absolutely, there is nothing on record to suggest, why the respondents 1 to 3 failed to issue notice to produce, when the matter was very well pending before the trial Court. 18. The respondents 1 to 3 have not given any convincing reason to establish that they exercised due diligence, when the suit was pending and notwithstanding exercise of due diligence they were prevented from producing these documents before the trial Court. Hence, the contingency contemplated under Rule 27 (1) (aa) of CPC is also not satisfied in this case.14/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 201519. The respondents 1 to 3 have not taken any steps to file petition to receive additional evidence immediately after admission of the appeal. Infact, they filed two set of application to receive additional evidence. The respondents 1 to 3 are not entitled to produce documents in installment that too before the first appellate Court. The failure of the respondents 1 to 3 to produce the documents before the trial is not very well explained and they have not satisfied any substantial cause to allow the application under Order 41 Rule 27. In fact, the documents filed in support of CMP.No.15005 of 2025 are only to support the amendment application filed by the respondents 1 to 3, this Court already dismissed the amendment application and there is no basis in the pleadings for additional documents produced by the respondents. 20. This Court feels that the production of additional documents is not absolutely essential to enable this Court to dispose of the appeal and based on the documents available on record, this Court can satisfactorily dispose of the appeal and documents produced by the respondents 1 to 3 by way of additional evidence are not absolutely 15/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015necessary to enable this Court to dispose of the appeal. In such circumstances, the contingency contemplated under Order 27 Rule (1) (b) of CPC is also not satisfied. Accordingly, the CMP.No.4751 of 2022 and 15005 of 2025 are dismissed. The point No.5 is answered against the respondents 1 to 3.21. Discussion on point No.(i):Though the suit was filed by respondents 1 to 3/plaintiffs seeking partition in respect of eighteen items in 'A' schedule, 'B' schedule and two items in 'C' schedule, the trial Court granted partition decree in respect of items 1 to 4, 8 to 14 in 'A' schedule, entire 'B' schedule and item 1 of 'C' schedule properties. The said decree is challenged by defendants 1 to 3. The respondents 1 to 3/plaintiffs have not filed any independent appeal challenging the dismissal of the suit, in respect of the other items. After filing of appeal by defendants 1 to 3, the plaintiffs filed Cross Objection with inordinate delay of 3521 days. The petition to condone delay in filing Cross Objection was already dismissed. Hence, the decree passed by the trial Court negativing the relief of partition in respect of other items had attained finality. Therefore, in this appeal we are only concerned 16/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015with items 1 to 4, 8 to 14 in 'A' schedule, 'B' schedule and item 1 of 'C' schedule properties.22. In the written statement filed by the defendants 1 to 3, they clearly admitted that item 8 of 'A' schedule property and entire 'B' schedule property were purchased by the father of Duraisamy and first defendant namely Nachiappan. Therefore, all the children of Nachiappan are entitled to 1/5th share each in the said properties. There is no dispute with regard to the said two items. Hence, the decree of the trial Court in respect of the item 8 of 'A' schedule and 'B' schedule properties need not be interfered with due to the admission in the pleadings of the defendants.23. As far as items 1 to 4, items 9 to 14 in 'A' schedule and item 1 of 'C' schedule are concerned, the documents filed on behalf of the plaintiff would establish that the revenue document patta stands in the name of the first defendant. Ex.A3-patta relates to items 1 to 4 in 'A' schedule. Ex.A4-patta relates to items 5 to 12 in 'A' schedule. Ex.A5-patta relates to items 13 and 14 in 'A' schedule. Ex.A6 relates to item 16 in 'A' schedule. Ex.A7 is patta relating to item 15 in 'A' schedule. Ex.A8 is patta relating to 17/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015item 17 in 'A' schedule. These revenue documents stand in the name of first defendant. As far as item No.1 of 'C' schedule is concerned, the plaintiff has not produced any revenue documents. 24. The various registered documents filed by the defendants 1 to 3 would establish that items 3, 4 and 9 to 12 and 14 in 'A' schedule and item 1 of 'C' schedule were purchased by 1st defendant. Ex.B5-sale deed dated 24.04.1972 would establish item No.3 was purchased by first defendant from Muniappan and others. Ex.B6, dated 22.06.1971 would establish that item 4 was purchased by first defendant from Marikathan @ Chellan and others. Ex.B11, sale deed dated 24.03.1975 would establish that the first defendant purchased items 9, 10, 11 in 'A' schedule from one Chinnukan and Seeraman. Ex.B8, dated 25.04.1968 would establish that the first defendant purchased item 12 of 'A' schedule from Chinnukan and others. Ex.B9, dated 05.04.1972 would establish that item 14 of 'A' schedule was purchased by first defendant from Kuppukan and others. Ex.B17 and 'B18 dated 14.12.1978 and 09.11.1982 respectively would establish that the first defendant and one Ramamoorthi purchased item No.1 18/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015of 'C' schedule from Krishnamoorthy. Later, the first defendant got release of Ramamoorthi's share under Ex.B19 dated 15.09.1993.25. From the documents mentioned above, it is clear that items 3 to 4, 9 to 12 and 14 in 'A' schedule and item 1 of 'C' schedule were purchased by first defendant in his name prior to 11.07.1985, the date of death of Duraisamy. Ex.A1-death certificate produced by the plaintiff would establish that Duraisamy died on 11.07.1985. The Revenue documents produced by the plaintiffs mentioned above would establish that the patta stands in the name of first defendant in respect of items 1 and 2, 13. Therefore, it is clear that items 1 to 4, 9 to 14 in 'A' schedule and item 1 of 'C' schedule were either purchased by first defendant prior to death of Duraisamy or Revenue documents stand in his name. The first defendant even in his pleadings clearly admitted item 8 of 'A' schedule and entire 'B' schedule was purchased by father of Duraisamy and first defendant namely Nachiappan. From the evidence of first defendant, who was examined as DW.1, it was established that mother of Duraisamy and first defendant had been looking after the family from 1963 onwards. Even, as per the case of first defendant, there was a partition between him and his brother 19/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015Duraisamy in the year 1975. Therefore, according to him, the family was living jointly till the year 1975, Duraisamy died only in the year 1985. With regard to the purchase of the suit properties in his name DW.1 deposed as follows:“...... 9 Kjy; 14 ,d brhj;Jf;fs; 25/4/1968y; vd;d tpiyf;F th';fpndd; vd;gJ epidtpy;iy/ 5/4/1968y; th';fpa brhj;jpd; gug;gst[ kjpg;g[ bjhpahJ/ vd;Dila brhe;j brhj;jpypUe;J te;j tUkhdj;ij bfhz;L nkw;go brhj;Jfis th';fpndd;/ 8/8/1968y; brhj;J th';fpa nghJ Jiurhkp capnuhL ,Ue;jhh;/ nkw;go brhj;J Tl;L FLk;g tUkhdj;jpypUe;J te;j tUkhdj;ij bfhz;L th';fg;gl;lJ vd;whYk; me;j rkaj;jpy; vdf;F jdpg;gl;l tUkhdk; fpilahJ vd;whYk; rhpay;y/ 1975k; Mz;L th';fpa brhj;jpd; kjpg;g[ epidtpy;iy/ 03/09/1977y; th';fpa brhj;jpd; gug;gst[ kw;Wk; kjpg;g[ epidtpy;iy. jdpg;gl;l tUkhdk; vt;tst[ vd;W epidtpy;iy/ 1968y; th';fpa brhj;Jfspd; kjpg;g[ gug;gst[ gj;jpu';fis ghh;j;jhy; jhd; bjhpa[k;/ 1968y; vdJ jdpg;gl;l tUkhdk; epidtpy;iy/ vdf;F ghj;jpag;gl;l brhj;jpypUe;J tUkhdk; te;jJ/ 1978 kw;Wk; 1982y; vdJ jdpg;gl;l tUkhdk; khjk; U:/10.000-? rk;ghjpj;njd;/ tha;bkhHp ghfk; ve;j Mz;L gphpf;fg;gl;lJ vd;W bjhpahJ 2001w;F gpwF jhd; tha;bkhHp ghfk; Vw;gl;lJ.....” 26. Therefore, DW.1 is not in a position to say what was the 20/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015sale consideration and what was the extent of the properties purchased by him under various sale deeds. He could not say what was his independent income during 1968 to 1977. He clearly deposed that from the year 1963 onwards, the family had been administered by his mother. During the year 1963, 1st defendant was hardly 18 years old. Hence, the evidence available on record would suggest that the family was joint prior to death of Duraisamy and properties should have been purchased out of join effort. It is not in dispute that the first defendant is older than first plaintiff's husband Duraisamy. Nachiapppa Gounder, father of Duraisamy and Munusamy died in the year 1963. Thereafter, family had been looked after by mother due to the young age of her sons namely Duraisamy and Munisamy. Though, the oral partition in the year 1975 was pleaded, there is no convincing evidence available on record to suggest that the said oral partition had taken place and it was acted upon by mutation of revenue records. All the revenue records stand in the name of first defendant as he happens to be eldest male member of the family. All the purchases were made in the name of first defendant as he happens to be the eldest male member of the family.21/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 201527. It is settled law, whenever properties are purchased in the name of eldest male member of the family [Manager – Kartha], there is a general presumption, the same was purchased out of joint family funds unless the contrary is proved. In this regard, reference may be had Mallesappa Bandeppa Desai and others Vs. Desai Mallappa and others reported in AIR 1961 SC 1268. The relevant observation of Apex Court reads as follows:We do not know what the income of the said properties was; obviously it could not be of any significant order; but, in our opinion, there is no doubt that where a manager claims that any immovable property has been acquired by him with his own separated funds and not with the help of the joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from his separated fund. The onus of proof must in such a case be placed on the manager and not on his coparceners. 28. Therefore, in the absence of any contra evidence to suggest 22/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015Munusamy had independent source of income at the time of purchase of various items of suit properties covered under sale deeds mentioned above, the trial Court rightly presumed that properties purchased in the name of first defendant were joint family properties. Duraisamy died only in the year 1985. Therefore, the trial Court came to the conclusion that all the purchases made in the name of first defendant prior to death of Duraisamy should have been only out of the joint family funds. It was claimed by the first defendant that he was engaged in the business of taking Tamarind Thoppu under lease and hence he had independent source of income. In order to substantiate the said plea various lease Muchalikkas entered between first defendant and third parties were marked as Ex.B23 to B103. A perusal of said exhibits would indicate that all those lease deeds were subsequent to 1994. The purchase of the above items of the suit properties were made well prior to 1985 under sale deeds mentioned above. Therefore, absolutely, there is no evidence available on record to suggest Munusamy, the first defendant had independent source of income prior to 1985 (i.e., at the time of purchase of above mentioned items of suit properties). Therefore, I concur with the conclusion reached by the trial Court that items 1 to 4, 8 to 14 in 'A' schedule, entire 'B' schedule and item 1 23/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015of 'C' schedule are joint family properties and hence available for partition. The point No.1 is answered against the appellants.29. Discussion on point Nos.(ii), (iii) and (iv):Once the above mentioned items are treated as joint family properties all the children of Nachiappan namely Duraisamy, Munusamy, defendants 4, 5 and mother of 6th defendant are entitled to equal share. Hence, the trial Court was justified in granting a decree for 1/5th share in favour of the plaintiffs. Since there was attempt on the part of the defendants 1 to 3 to alienate the suit properties, the trial Court granted injunction restraining them from alienating the suit properties till the partition of the properties by metes and bounds. The said decree deserves to be confirmed. In view of the discussions made earlier, the appeal suit has no merit and accordingly, the same is liable to be dismissed. The point Nos.2 to 4 are answered accordingly against the appellants.24/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 201530. In view of the conclusion reached by this Court in Point Nos.1 to 5, the appeal suit is dismissed. CMP.Nos.4751 of 2022, CMP.Nos.15005 and 15007 of 2025 are dismissed. No costs.26.09.2025Index : Yes/NoSpeaking order:Yes/NoNeutral Citation:Yes/Noub ToThe Additional District Judge, Krishnagiri.25/26 https://www.mhc.tn.gov.in/judis A.S.No.361 of 2015S.SOUNTHAR, J.ubA.S.No.361 of 201526.09.202526/26