Madras High Court · 2025

A.S. No.107 of 2022assignment by the Government and patta under the UDR scheme of the year 1987. The said Karuppanna Gounder first married one Kaveriammal and through her, the defendants 1 to 3 were born. After the demise of Kaveriammal, Karuppanna Gounder married the Perumayee (fifth defendant) and through her, the plaintiffs Poongudi, Palaniammal and Marappan (fourth defendant) were born. Being the property of Karuppanna Gounder, all his children born through his first wife as well as the second wife, both male and female along with his second wife Perumayee are entitle to inherit and are entitled for equal share in the properties of Karuppanna Gounder. While so, when the plaintiffs requested the defendants 1 to 5 for division of the properties, they refused and also claimed the property of Karuppanna Gounder as the exclusive property of the second defendant, proclaiming that the property being divided between the defendants 2, 6 to 10 under a partition deed dated 09.04.2013 during the life time of Karuppanna Gounder, so the plaintiffs are not entitled for any share in the property.3.In response to the plaint, the defendants 1 and 4 had filed a written statement stating that, the suit properties belongs to Karuppanna Page 3 of 26 https://www.mhc.tn.gov.in/judis A.S. No.107 of 2022Gounder and on his demise, his seven legal heirs, including the plaintiffs and defendants 1 to 5 are entitled to have 1/7th share. In support of the plaintiffs, these two defendants have stated that the properties being jointly enjoyed by all the legal heirs of the Karuppanna Gounder, though the plaintiffs reside with their respective husbands elsewhere, all are equally entitled for a share in the suit properties.4.The second defendant, who is the son born to the first wife of Karuppanna Gounder had filed a written statement denying that the suit properties are self acquired properties of Karuppanna Gounder by assignment and he has also contended that the fifth defendant - Perumayee, who is the mother of the plaintiffs and the fourth defendant - Marappan did not get married to Karuppanna Gounder, after the demise of his mother - Kaveriammal. The said Perumayee was a married lady having two sons. She deserted her husband and children and started living with Karuppanna Gounder, even during the lifetime of Kaveriammal. Therefore, Perumayee is not a legally wedded wife of Karuppanna Gounder and her children, who are the plaintiffs and the fourth defendant are not entitled to seek share in the ancestral properties of Karuppanna Gounder. Page 4 of 26 https://www.mhc.tn.gov.in/judis A.S. No.107 of 20225.The averments of the plaintiffs in the plaint that, the suit properties were jointly enjoyed by them along with the defendants 1 to 5 denied and it is contended by the second defendant that the suit properties were purchased by Karuppanna Gounder, after getting partition of the ancestral properties at Periyasoragai village. He had invested in purchasing the suit properties from out of the share given to him, during division of the ancestral property. The suit properties purchased from the source of joint family nucleus after division were developed by Karuppanna Gounder. During his lifetime, he had provided enough movables, jewels and articles at the time of marriage of the plaintiffs. For more than 30 years, they are living with their respective husbands in their matrimonial home. They are not in the joint enjoyment of the suit properties (or) members of the joint family along with the second defendant. 6.The suit properties being ancestral properties held by the Karuppanna Gounder, during his lifetime, he along with his male descendants, who are the first, second and fourth defendants entered into an oral partition in the year 1999 during the Tamil Month of 'Thai'. As per the Page 5 of 26 https://www.mhc.tn.gov.in/judis A.S. No.107 of 2022village custom and practices, the oral partition was effected and the suit properties and other properties held by Karuppanna Gounder as 'Karta' was divided among the male heirs of the family with an understanding that defendants 1, 2 and 4 have to give a sum of Rs.500/- each and two bags of paddy every year to Karuppanna Gounder till his lifetime. As per the oral partition, the parties have taken their respective shares and enjoying it separately, independently and exclusively by themselves.7.The land in Survey No.158 measuring 90 cents, which was allotted to Marappan (fourth defendant) under the oral partition was sold by him to the second defendant on 15.07.2000 for a sum of Rs.14,000/- and he has also handed over the possession of the said property to the second defendant. Further, on the request of the fourth defendant, the second defendant paid an additional sum of Rs.1,500/- as gratis to the fourth defendant for the property conveyed. The property of Karuppanna Gounder after oral partition, being sub-divided and separate patta was issued to respective legal heirs. 8.As per the oral partition, the punja land in Survey Nos.156/D Page 6 of 26 https://www.mhc.tn.gov.in/judis A.S. No.107 of 2022measuring 0.81.8 hectare, the punja land in Survey No.158/1B measuring 0.57.0 hectare and the punja land in Survey No.158/3B measuring 0.20.50 hectare were sub-divided and separate patta No.258 was issued to the second defendant. For the first defendant - Madhesh, lands in Survey No.156/2B measuring 0.92.0 hectare, Survey No.158/3A measuring 0.42.0 hectare were allotted and a separate patta was also issued. As far as lands in Survey No.156/2A measuring 0.05.5 hectare, Survey No.156/2C measuring 0.06.0 hectare, Survey No.158/1A measuring 0.06.5 hectare, after sub division, joint patta was issued including the name of Madhesh, who is the first defendant. Likewise, for the fourth defendant - Marappan, after the 90 cents of land sold to the second defendant, the rest of the land allotted to Marappan under the oral partition in respect of lands in Survey No.158/1C measuring 0.04.00 hectare and in Survey No.157/3A measuring 0.63.00 hectare, a separate patta was issued in patta No.165. In respect of lands in S.No.156/2A measuring 0.05.5 hectare and in Survey No.158/1A measuring 0.06.5 hectare, a joint patta No.35 was issued to Marappan. 9.The second defendant further contended that the plaintiffs have deliberately not disclosed the land in S.No.157/3A measuring 0.63.00 Page 7 of 26 https://www.mhc.tn.gov.in/judis A.S. No.107 of 2022hectare allotted to their blood brother Marappan. This deliberate suppression of fact amounts to partial partition, which is not permissible under law. It is further contended that the fourth defendant, after oral partition and allotment of share from the ancestral property had constructed a terrace house with EB service connection and bore well. He has purchased a J.C.B machine from out of the income derived from the share allotted to him. Further, it is contended by the second defendant that the fourth defendant also possess tiled house with EB service connection, two irrigating wells with 5HP service connection. Those properties were also deliberately not included in the schedule of properties for partition. It is also contended that the first defendant - Madhesh has a tiled house and that also not been disclosed in the partition.10.The second defendant had contended that he has developed the property allotted to him under the oral partition and improved it by digging a bore well. He had constructed a tiled house and living along with his family members, who are the defendants 6 to 10. Under such circumstances, he with his wife and children had entered into a partition of the properties, which was allotted to him under the oral partition earlier and developed by Page 8 of 26 https://www.mhc.tn.gov.in/judis A.S. No.107 of 2022him out of his own income. He also contended that the partition deed dated 09.04.2013 between himself and his family members in respect of his property is valid and the plaintiffs have no right to seek for any declaration, to nullify the validity of the said partition deed. It is contended by the second defendant that the suit for partition is bad for non-disclosure of the other properties, which were held by Karuppanna Gounder and allotted to other members of the family under the oral partition.11.Based on these pleading, initially the Trial Court had framed four issues. Later framed two additional issues. They are:-1.Whether the plaintiffs are entitled for partition as prayed for?2.Whether the plaintiffs are entitled to declare the deed executed on 09.04.2013 is null and void?3.Whether the plaintiffs are entitled for the relief of permanent injunction not to alienate the suit property as prayed for?4.To what other relief the plaintiffs are entitled to?Additional issues:1.Whether the suit is bad for partial partition?Page 9 of 26 https://www.mhc.tn.gov.in/judis A.S. No.107 of 20222.Whether defendants, 1, 4 and 5 are entitled to partition as sought for?12.In the suit for partition filed by the plaintiffs, defendants 1, 4 and 5 sailing with the plaintiffs had filed requisite Court fee for allotment of their shares in the suit properties as prayed in the plaint. 13.To prove the case, on the side of the plaintiffs, three witnesses were examined and nine exhibits were marked. On the side of the defendants, five witnesses were examined and fourteen exhibits were marked. The revenue documents were marked as Exs.X.1 to X.12 and the Court exhibits Exs.C.1 to C.5 were also marked.14.The Trial Court allowed the suit holding that the plaintiffs, first and fifth defendants are entitled to 1/7th share in the suit properties and also declared that the partition deed dated 09.04.2013 entered between the defendants 2, 6 to 10 will not bind the right of the plaintiffs of 3/7th share in the suit properties and the defendants were restrained from creating any encumbrance or alienation of the suit properties to the extent of undivided 2/7th share, until the properties are divided by metes and bounds.Page 10 of 26 https://www.mhc.tn.gov.in/judis A.S. No.107 of 202215.Being aggrieved, the defendants 2, 3, 6 to 10 are before this Court as appellants, challenging the judgment and decree of the lower Court as erroneous. 16.The learned counsel appearing for the appellants submitted that the fifth defendant - Perumayee is not a legally wedded wife of Karuppanna Gounder, hence the plaintiffs and the fourth defendant are not the legitimate children of Karuppanna Gounder. The suit properties are not the self acquired properties of Karuppanna Gounder, they are the properties acquired by Karuppanna Gounder from out of the share of money allotted to him during the partition of the ancestral property. The properties being acquired from out of the proceeds of ancestral property, the suit properties have to be treated as ancestral properties and not as self acquired properties of Karuppanna Gounder. The Trial Court failed to take note that even during the lifetime of Karuppanna Gounder, the properties were divided by an oral partition as per the custom of the village and caste. The said oral partition duly being acted upon, including the fourth defendant and the first defendant, who are dealing with the properties allotted to them Page 11 of 26 https://www.mhc.tn.gov.in/judis A.S. No.107 of 2022independently. The Trial Court having rejected the plea of oral partition ought to have taken note of the fact that the properties acquired by the legal heirs of Karuppanna Gounder and should have dismissed the suit for not including those properties in the suit for partition. The sub-division of the suit properties and allotment of patta in the individual name as well as the joint patta for the properties used in common were totally ignored by the Trial Court, while appreciating the evidence, hence the learned counsel for the appellants submitted that the Trial Court has failed to consider the evidence placed by the appellants to prove that the suit properties are not the self acquired properties of Karuppanna Gounder. 17.The learned counsel appearing for the appellants further submitted that the Trial Court failed to take note of the partial partition sought by the plaintiffs by consciously excluding the properties allotted to defendants 1 and 4, whom sailing with the plaintiffs. The Trial Court failed to appreciate the oral partition held in the year 1999 and the sub division of the property in the revenue records and allotment of separate patta for each of the descendants of Karuppanna Gounder. The admission of P.W.1 and P.W.3 in the cross examination that, the defendants 1,2 and 4 are cultivating Page 12 of 26 https://www.mhc.tn.gov.in/judis A.S. No.107 of 2022their lands separately and they are in separate possession and enjoyment of their respective shares. The Court below failed to appreciate that the oral partition is valid in law and the properties need not to be devolved only through a will or a gift deed, while declaring the partition deed dated 09.04.2013 as not binding on the plaintiffs, the Trial Court had totally ignored the prevailing practice and legally accepted principle of law regarding the oral partition. It has also ignored the mutation of revenue records as well as the own admission of the plaintiffs and witnesses in the cross examination that, parties are enjoying their respective shares independently. The learned counsel appearing for the appellants also submitted that the plaintiffs admittedly married 30 years ago and living separately with their family had laid the partition suit belatedly after loosing their right of possession and enjoyment. They have also failed to prove the joint enjoyment of the suit properties, therefore prayed that the Trial Court judgment and decree has to be set aside.18.Per contra, in support of the judgment of the Trial Court, the learned counsel appearing for the respondents submitted that the plaintiffs have clearly proved that Perumayee married Karuppanna Gounder only after Page 13 of 26 https://www.mhc.tn.gov.in/judis A.S. No.107 of 2022the demise of his first wife Kaveriammal. P.W.2 - Palani, the brother of Karuppanna Gounder mounted the witness box and had spoken about this fact, which has not been contradicted by the defendants in any manner. P.W.2 was not even cross examined by the defendants, therefore the legitimacy of the plaintiffs and the fourth defendant to claim share in the properties of Karuppanna Gounder remains unassailed. Further, the legitimacy of the children born to the second wife of Karuppanna Gounder been accepted and approved by all parties concerned and same is reflected in Ex.B.1 - sale deed dated 22.01.1993, which was executed by Karuppanna Gounder and the defendants 1, 2 and 4 in favour of one Chinnappan. The defendants 2 and 4, who are the sons of Karuppanna Gounder born to his first and second wife respectively are vendors in Ex.B.1. 19.Heard the learned counsels on either side and records perused.20.According to the plaintiffs, the suit properties are the self acquired properties of Karuppanna Gounder, whereas the second defendant claims that they are the ancestral properties of Karuppanna Gounder. The documentary evidence show that the suit properties are the self acquired Page 14 of 26 https://www.mhc.tn.gov.in/judis A.S. No.107 of 2022properties of Karuppanna Gounder and not the properties purchased from the ancestral nucleus. The document relied by the defendants such as the sale deed dated 14.03.1988 (Ex.B.2) does not indicate that the suit properties were derived from the ancestors or acquired from ancestral nucleus. The property in the native village Periyasoragai village sold jointly by Karuppanna Gounder and defendants 1, 2 and 4 in the year 1993 under Ex.B.1, whereas the suit properties were purchased much earlier in the year 1982 and 1988. The absence of clear evidence to show the properties, which stands in the name of Karuppanna Gounder derived from the ancestral nucleus, the Trial Court has rightly held that the suit properties are the self acquired properties of Karuppanna Gounder.21.Regarding the alleged oral partition, the learned counsel for the respondents submitted that, the evidence to support the case of the appellants is D.W.2 - Kuppan, who had spoken about the partition between the legal heirs of Karuppanna Gounder, However this Court finds in the cross examination of the said witness, he had failed to explain the Court how the division took place and what are the properties allotted to the respective sharers.Page 15 of 26 https://www.mhc.tn.gov.in/judis A.S. No.107 of 202222.The division of the properties among the second defendant and others, which is reflected in the evidence of D.W.3 and D.W.4 as well as the Court exhibits and documents produced by the official witnesses, the Trial Court has found that the application from the Karuppanna Gounder for partition was only in respect of the land in Survey No.150/2. Whereas the authorities have also sub-divided the land in Survey No.157/3, without any request for sub-division of Survey No.157/3. This land has been sub-divided without request by the title holder. 23.The point for consideration is that, whether the suit properties held by Karuppanna Gounder devolved on his legal heirs by interstate succession or already subjected to oral partition during his life time.24.The 'patta' in the name of Karuppanna Gounder is marked as Ex.A.1, this is in respect of land in Survey No.156/2 measuring 1.84.5 hectares, Ex.A.2 is 'Chitta' and Ex.A.3 is 'Adangal' in respect of the land in S.No.156/2. These three documents stand in the name of Karuppanna Gounder in respect of land in Survey No.156/2, which is the first item in the Page 16 of 26 https://www.mhc.tn.gov.in/judis A.S. No.107 of 2022suit schedule. As per the death certificate marked as Ex.A.5, Karuppanna Gounder died on 20.08.2010. The computerised patta for the items 2 and 3 of the suit schedule is in the name of defendants 4, 6 to 8. Regarding the second item of the suit schedule property, which is in respect of the land in Survey No.158/1 measuring 1.65 acre, Ex.B.2 is the sale deed dated 14.03.1988, which is in favour of Karuppanna Gounder. Regarding the third item of the suit schedule property, which falls in Survey No.158/3, the revenue documents indicates that it has been sub-divided to Survey Nos.158/1B, 158/3B and 158/1A and stands in the name of Govindaraj (second defendant). 25.The other revenue records also indicates that in respect of the properties of Karuppanna Gounder, individual patta as well as joint patta have been issued. Ex.B.5 is Patta No.258, is a joint patta which stands in the name of Rani, Perumal and Manikandan, who are the wife and two sons of Govindaraj, they are parties in the suit as defendants 6 to 8. This patta (Ex.B.5) is in respect of properties in Survey Nos.156/2D, 158/1D and 158/3D. Ex.B.6 is an individual Patta No.165 issued in the name of the fourth defendant - Marappan in respect of properties in Survey Nos.156/3A Page 17 of 26 https://www.mhc.tn.gov.in/judis A.S. No.107 of 2022and 158/1C. Whereas, Ex.B.7 is Patta No.35, which is a joint patta given to defendants 1, 4, 6 to 8 in respect of properties in Survey Nos.156/2A and 158/1A. In the partition deed dated 09.04.2013 (Ex.B.8) entered between the second defendant, his wife Rani (sixth defendant) and sons Perumal (seventh defendant) and Manikandan (eighth defendant), we find it is in respect of properties in Survey Nos.156/2D, 158/1B, 158/3B, 156/2C, 156/2A and 158/1A. The above mentioned documents and Kist receipts prove that there had been a partition in respect of lands in Survey Nos.156/2, 158/1 and 158/3, which are the subject matter of the suit and as per the partition, parties are in possession and enjoyment. 26.D.W.3 - Junior Assistant in the Sub Registrar Office had produced documents relating to mortgage deed dated 13.04.1975, which has been marked as Ex.C.2, the sale deeds dated 18.03.1981, 02.04.1982 and 16.03.1988 were marked as Ex.C.3, Ex.C.4 and Ex.C.5, respectively. The perusal of these documents indicates that Karuppanna Gounder had mortgaged the land in Survey No.156/2 in favour of Naripalli Co-operative Society. Ex.C.3 is the sale deed dated 18.03.1981, executed by Karuppanna Gounder in respect of land in Survey No.157/3 and Ex.C.4 is the sale deed Page 18 of 26 https://www.mhc.tn.gov.in/judis A.S. No.107 of 2022dated 02.04.1982 is in favour of Karuppanna Gounder to prove that he had purchased the third item of the suit schedule property at Survey No.158/3.27.From the evidence, it is clear that the plaintiffs as well as the fourth defendant, who are the children of Perumayee born to Karuppanna Gounder are legitimate children of Karuppanna Gounder, since there is no evidence to prove that Karuppanna Gounder married Perumayee during the lifetime of his first wife Kaveriammal. Likewise, the evidence proves that the first item of the suit schedule property assigned by the Government in favour of Karuppanna Gounder by issuing patta. Items 2 and 3 of the suit schedule properties are the properties purchased by Karuppanna Gounder under sale deeds marked as Exs.B.2 and C.4, respectively. 28.No doubt as per the revenue records, the suit properties have been sub-divided and joint patta as well as separate patta have been issued to the descendants of Karuppanna Gounder. However how these sub-divisions were effected not properly explained by the revenue authorities. Though the second defendant claims that it was pursuant to the oral partition between Karuppanna Gounder and defendants 1, 2 and 4, but no evidence available to Page 19 of 26 https://www.mhc.tn.gov.in/judis A.S. No.107 of 2022prove the said contention. 29.While there are documents to show that the suit properties are the exclusive properties of Karuppanna Gounder and the death of Karuppanna Gounder is proved through his death certificate marked as Ex.A.5, there is plausible explanation, how there was sub-division of the properties. The revenue records show that Karuppanna Gounder made a request for division of the property in Survey No.157/1 and not the other properties. In the said circumstances, while the sole evidence for the defendants D.W.2 - Mr. Kuppan, who speaks about the oral partition need to be tested, whether his testimony is reliable to accept the oral partition. 30.This witness is about 80 years old at the time of giving evidence, he had stated that Karuppanna Gounder about 21 years ago during the Tamil month of 'Thai', called the village elders and the witness was also called being the 'Ooru Gounder' at that point of time. Therefore his participation in the partition process, as per the village custom and the allocation of the properties to each of the three sons of Karuppanna Gounder is apparently reliable. Page 20 of 26 https://www.mhc.tn.gov.in/judis A.S. No.107 of 202231.D.W.2 had stated that the first defendant - Madhesh was given 3 1/4 acres of land, the second defendant - Govindaraj was allotted 3 acres of land, both Madhesh and Govindaraj were jointly given the right in the well, whereas Marappan was given 2 3/4 acres of land with a tiled house and an individual well. 32.He has also deposed about the debt of Karuppanna Gounder, which agreed to be cleared equally by the three sons and they have taken their respective shares and enjoying independently. Marappan to clear his debt had sold his share of 90 cents of land adjacent to the second defendant Govindaraj for a sum of Rs.14,000/-. And from that day onwards, possession was given to Govindaraj, who is enjoying it independently. The document executed for the said sale and in which, the said Kuppan (D.W.2), Karuppanna Gounder, Madhesh, Perumal, Raman, Dharman and others signed. During the lifetime of Karuppanna Gounder, on his supervision the lands were measured and individual patta was given to Madhesh, Govindaraj and Marappan. Madhesh and Govindaraj have improved their lands allotted to them by constructing a house and digging well. Page 21 of 26 https://www.mhc.tn.gov.in/judis A.S. No.107 of 202233.This witness/ D.W.2 was subjected to cross examination and in the cross examination of the plaintiffs, he had stated that during the partition, the female heirs were given one sovereign of gold each and the partition was reduced into writing. The evidence of D.W.2 - Kuppan is suspected for non production of the alleged deed of partition and it is being contrary to the case of the defendants that there was only oral partition in presence of village elders. His evidence in the chief was that the lands were measured as per the oral partition with the help of a surveyor, at the instance of the Karuppanna Gounder. Contrarily, in the cross examination, he has stated that he had measured the land and allotted the respective shares. The evidence of Kuppan being impeached by cross examining him about the alleged loan of Karuppanna Gounder and allocation of one sovereign of gold to each of the female heirs, which does not form part of the pleading of the defendants or evidence adduced on behalf of the defendants.34.The law recognises the oral partition. The Court shall give its seal of approval for oral partition, if it is proved to be voluntary and acted upon by the parties concerned. However in this case, the evidence proves Page 22 of 26 https://www.mhc.tn.gov.in/judis A.S. No.107 of 2022that the suit properties belongs to Karuppanna Gounder and he died on 20.08.2010. There is no clear evidence to show that he married the fifth defendant - Perumayee when his first wife Kaveriammal was alive. Therefore the plaintiffs and the fourth defendant are to be considered as legitimate children of Karuppanna Gounder, in the absence of any proof to the contrary.35.The evidence of D.W.2 coupled with revenue records, certainly prove that there was division of the suit properties during the life time of Karuppanna Gounder and the properties held by Karuppanna Gounder were distributed among his three sons, which reflects in the revenue records by way of separate patta as well as the joint patta for lands under common utilization. The sub-division and issuance of UDR patta is of the year 1987 proves division, while so, the present suit is filed on 19.08.2013 by the two female heirs of Karuppanna Gounder, who are born to his second wife Perumayee. When Karuppanna Gounder died, he had left behind his widow wife, two sons and one daughter born to his first wife Kaveriammal and one son and two daughters born to his second wife Perumayee. The documents produced on the side of the plaintiffs and the defendants clearly indicates Page 23 of 26 https://www.mhc.tn.gov.in/judis A.S. No.107 of 2022that there are other properties held by Karuppanna Gounder, apart from the suit schedule properties. There is no whisper about these properties in the plaint, except alleging that the plaintiffs have come to know about the partition of the suit properties among the second defendant and his family members and attempted to sell the suit property to the third parties. Conveniently, the plaintiffs have suppressed the existence of other properties, which have been subjected to partition and acted upon by the respective parties.36.If the oral partition was with the consent and under the supervision of Karuppanna Gounder during his life time, then the properties being his self acquired properties, except the beneficiaries under the partition, other legal heirs may not have any claim or right on the suit properties. 37.In this case, there is clear proof for oral partition, the contention of the second defendant that the oral partition was given effect and the properties of Karuppanna Gounder was distributed among the three male heirs, even during the lifetime of Karuppanna Gounder is proved through the Page 24 of 26 https://www.mhc.tn.gov.in/judis A.S. No.107 of 2022oral evidence of D.W.2 and other documents. Also enough material available to show the oral partition duly acted upon and the properties allotted to the other sharers not included in the suit for partition. Hence for suppression of material facts and for partial partition also the Trial Court ought to have dismissed the suit.38.As a result, this appeal stands allowed and the judgment and decree dated 29.10.2021 passed by the learned Additional District Judge, Dharmapuri in O.S.No.52 of 2013 is hereby set aside. Consequently, connected civil miscellaneous petition stands closed. There shall be no order as to costs. 14-08-2025Index : Yes/NoInternet: Yes/NoSpeaking order/Non-Speaking orderNeutral Citation : Yes/NostnDr. G. JAYACHANDRAN, J.,stnPage 25 of 26 https://www.mhc.tn.gov.in/judis A.S. No.107 of 2022To1. The Additional District Judge, Dharmapuri.2. The Section Officer, VR Section, High Court of Madras.Pre-delivery Judgment made in A.S. No.107 of 2022and C.M.P. No.4017 of 202214.08.2025Page 26 of 26