Madrasreserved High Court · 2025

A.S.No.172 of 2019JUDGMENTAggrieved over the Judgement and Decree dated 23.11.2018 passed in O.S.No.6 of 2016, on the file of the Additional District Court, Hosur, the defendants have preferred the first appeal.2.For the sake of convenience, the parties are referred to as per their rankings in the trial Court.3.Suit for partition and mesne profits.4.The defendants in O.S.No.6 of 2016 on the file of the Additional District Court, Hosur, are the appellants herein and the respondents are the plaintiffs therein.5.The plaintiffs' case is as follows:The suit properties are ancestral properties of Bodi Reddy. The first defendant is the wife of Bodi Reddy. The plaintiffs and the defendants 2 to 4 are children of Bodi Reddy. Bodi Reddy died on 12.11.2006 leaving his wife 2/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 2019the first defendant Lakshmamma and his children viz., the plaintiffs and the defendants 2 to 4 and they had succeeded to the suit properties. They are in joint possession and enjoyment of the same. The plaintiffs have become coparceners along with their brothers the defendants 2 to 4 in view of the Hindu Succession Amended Act 39/2005. Therefore, the plaintiffs are jointly entitled to 66/100 shares. The defendants 2 to 4 jointly are entitled to 33/100 shares in the suit properties. Since the defendants were not coming for partition, the plaintiffs filed the suit for partition to claim shares as stated above for passing preliminary decree and thus, pleaded to allow the suit.6.The defendants contested the suit and filed a written statement and they admitted the relationship between the parties and denied the allegations contained in the plaint. Further contended that all the plaintiffs got married prior to 1985. Therefore, they are not entitled for benefit under the Act 1/1990 or Act 39/2005. During the lifetime of their father Bodi Reddy, there was an oral partition among the father and his sons viz., the defendants 2 to 4 and the defendants 2 to 4 were given lands in Ulimangalam Village. Their father Bodi Reddy retained the lands at Maradanapalli and also at Kasi Agraharam Village. Since there was an oral partition, the plaintiffs are not entitled to claim partition and thus, pleaded to dismiss the suit.3/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 20197.The trial Court carefully perused the above pleadings and framed the following issues for consideration;1.,e;J thhpRhpik jpUj;jr; rl;lk; 39-2005 thjpfspd; tHf;fpw;F bghUe;Jkh>2/tha;bkhHp ghfg;gphptpid Vw;gl;Ltpl;ljhf gpujpthjpfs; TwtJ rhpah>3/khuz;lg;gs;sp fpuhk r/vz;/240-3V brhj;J jtwhf me;j tHf;fpy; nrh;f;fg;gl;Ls;sjh>4/thjpfs; jhth brhj;Jf;fspy; Tl;L RthjPdj;jpy; cs;shh;fsh>5/brYj;jpa[s;s ePjpkd;wf; fl;lzk; rhpahdjh>6/gpuhjpy; nfhhpa[s;sgo thjpfSf;F ghfg;gphptpid kw;Wk; ,ju ghpfhu';fs; fpilf;fj;jf;fjh>7/ntW vd;d ghpfhuk;>8.On the side of the plaintiffs, one witness was examined as PW1 and Ex.A1 to Ex.A11 were marked. On the side of the Defendants, three witnesses were examined as DW1 to DW3 and Exs.B1 to Ex.B12 were 4/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 2019marked.9.On consideration of the evidence on record, the trial Court passed a preliminary decree as prayed for with costs. Aggrieved by this judgement and decree, the defendants preferred the appeal before this Court. 10.The points for consideration before this Court are,i). Whether the plaintiffs are entitled to preliminary decree as prayed for and entitled to 66/100 shares?ii). Whether the oral partition pleaded by the defendants is true or not?iii). To what relief?11.The learned counsel for the appellants/defendants submitted that the judgement and decree of the trial Court in decreeing the suit for partition declaring that the plaintiffs are entitled to 66/100th shares is contrary to law and against the evidence on record and probabilities of the case. Further contended that the trial Court overlooked the fact that the defendants, during the life time of their father, orally divided the ancestral property by metes and bounds and separate enjoyments have been evidenced by filing the documents 5/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 2019Ex.A2 to A11 patta and A register Copy and Ex.B1 to B12 which reveals that the separate enjoyment by the defendants had established the fact of oral partition. In pursuance of the oral partition, parties have mortgaged the property and obtained loan which evidenced by Ex.B4 letter to Indian Bank, Denkanikottai. The trial Court failed to appreciate the separate enjoyment evidenced by the defendants by filing the sufficient revenue documents and A register patta and reiterated the other grounds in the grounds of appeal and thus, pleaded to set aside the judgment and decree of the trial Court which is unsustainable and contrary to evidence on record and pleaded to allow the appeal. 12.The learned counsel for the respondents/plaintiffs supported the judgment and decree of the trial Court and contended that Exs.A2 to A11 Patta and A registers could not be taken as evidence for oral partition. The defendants failed to prove the oral partition. Further contended that mutation entries in the revenue records are only to enable the State to collect revenues from the person in possession and enjoyment of the property. The entries are only one of the modes of proof of the enjoyment of the property. Mutation entries do not create any title or interest therein. The defendants, during their cross examination, are unable to evidence which portion was allotted to them 6/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 2019in the oral partition and which portion was allotted to their father and they are not able to say the extent allotted in the oral partition. They failed to prove the oral partition. Therefore, the trial Court rightly granted the preliminary decree in favour of the plaintiffs. There is no grounds for interference and pleaded to dismiss the appeal as it has no merit.13.To Support his argument, the learned counsel for the respondents/plaintiffs relied upon the following judgments: 1.2009 -3-L.W.622 (Ramulu Ammal Vs. Ramachandra Reddy and others)2.2017 (2) MWN (Civil) 241 ( Chithra Vs. Saroja and another)3.(2021) 2 MLJ 511 (Bhoopalan and others Vs. Govindasami)4.2016 SCC OnLine Mad 8624 (A.Krishnan Vs.A.Ponnaiyan (deceased and others)5.AIR 1987 Mad 24 (P.Kaliappa Gounder and others Vs. Muthuswami Mudaliar)6.The decision of this Court in S.A.No.269 of 2013 dated 03.07.2023.7.The decision of this Court in S.A.No.666 of 2015 dated 13.11.2018.7/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 201914.I have considered the matter in the light of the submissions made by the learned counsel for the parties and perused the materials available on record.15.On perusal of the records, the fact reveals that the suit properties are the ancestral properties of Bodi Reddy is admitted. The relationship between the parties are also admitted. Bodi Reddy died on 12.11.2006 is also admitted. The plaintiffs are the daughters and the defendants 2 to 4 are sons of Bodi Reddy. According to respondents/plaintiffs, the suit properties are not effected partition till date. The plaintiffs have become coparceners along with the defendants 2 to 4 as per the Hindu Succession Amended Act 39 of 2005 which came into force on 09.09.2005. The defendants contested the suit on the ground that an oral partition was effected in respect of the suit properties with their father Bodi Reddy in the year 1982 in the presence of Village Elders. 16.I have gone through the oral evidence of the parties and the documents filed by them. PW1 examined herself and filed documents as Ex.A1 to A11. On the defendants' side, defendants examined Dws1 to 3 and 8/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 2019filed documents as Exs.B1 to B12. Ex.A2 to A8 are patta stand in the name of Bodi Reddy and Exs.A9 to A11 are A registers in the name of Ramachandra Reddy (D2), Gopal Reddy (D3), Krishna Reddy (D4). Exs.B1 to B10 are patta, notice and letter issued by Indian Bank in the name of Ramachandra Reddy (D2), Gopal Reddy (D3), Krishna Reddy (D4). The cross examination of DW2 runs as follows:“kUjhdg;gs;sp fpuhkj;jpYk;. vd; mg;gh fhrp mf;ucwhuk; fpuhkj;jpYk; ,Uf;fpw jhth brhj;Jffs; v';fs; K:d;W ngUf;Fk; ghfk; gphpj;J bfhLj;jjhf gjpypy; brhy;ypa[s;nshk;/ kUjdg;gs;sp fpuhkj;jpy; ve;j ve;j r/vz;zpy; vt;tst[ tp!;jPuzk; ghfk; ghpj;Jf; bfhz;lhh; vd;W brhy;y Koa[kh vd;why; brhy;yKoahJ/ fhrp mf;ucwhuk; fpuhkj;jpy; cs;s epy';fis eh';fs; K:d;W ngUk; bghJthf mDgtpj;J tUfpnwhk;/ kUjdg;gs;sp fpuhkj;jpy; xt;bthUtUf;Fk; Ie;J Vf;fh; ghfk; te;jJ/ vd; mg;ghtpw;F ghfj;jpy; brhj;J vJt[k; bfhLf;ftpy;iy/” 17.Admittedly, the suit properties are ancestral properties of Bodi Reddy. The plaintiffs and the defendants are legal heirs of Bodi Reddy. He died on 12.11.2006 intestate. In viw of the decision of Full Court ( 3 judges) 9/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 2019of the Hon'ble Supreme Court in Vineeta Sharma vs Rakesh Sharma and others 2020 9 SCC page 1, the plaintiffs became coparceners are entitled for partition in the ancestral properties. Admittedly, there is no partition effected by a decree of Court or effected by the Registered instruments on or before 20.12.2004. The only plea of the defendants are, there was an oral partition in the year 1982. Therefore, a plea of partition based on the oral partition has to be proved it ought to be supported by public documents.18.As stated above, in the cross examination of DW2, he is not able to speak about the extent of land allotted for each defendant in the oral partition and the cross examination extracted above, is not in support of the oral partition set out by the defendants. In para No.8 of the Division Bench of this Court P.Kaliappa Gounder and others Vs. Muthuswami Mudaliar reported in AIR 1987 Mad. 24 stated that:“ 8. Partition is the intentional severance of the joint ownership by an unequivocal expression of an intention to bring out severance in the eye of law and further implementing it by actual division by metes and bounds. What was held in common as a single property gets converted into a holding in severalty and in specie. Joint ownership turns into ownership in severalty and in specie. It 10/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 2019is true that 'partition' is not a transfer. But there must be the element of conversion as the joint ownership into ownership in severalty and in specie. Therefore, the essence of partition is that the joint ownership is put an end to and the joint owners come to hold the property in severalty and each in his own individual right. In this country, it is common that not only coparceners of a joint Hindu family but also individuals join or continue together to own property in common. If this common ownership is to be put an end to not only in theory but also in practice, there must be primarily severance of the joint ownership in the eye of law, followed up by actual physical division. We make it clear that in the present case, we are not concerned with the concept of a bare unequivocal expression of an intention to separate to bring about a division in status in a joint Hindu family. It is not unusual for parties holding properties jointly or in common to have separate enjoyment of portions for the sake of sheer convenience. But such separate enjoyment of convenience cannot be equated to partition in the eye of law and in fact, so as to say that the joint ownership has been put an end to and in its place ownership in severalty or in specie has come into existence. Separate enjoyment for the sake of convenience is one thing and partition in the eye of law is another. The latter carried with it the legal incidents of mutating the joint ownership. The latter has to pass through and satisfy a more rigorous test in law and on facts.”11/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 201919.Keeping in mind the above principle when I examined the present case, I am of the view that the oral partition set out by the defendants has not been established. 20.Further, with regard to the mutation entries in the revenue records, the Hon'ble Supreme Court in the case of Sankalchan Jaychandbhai Patel and others V. Vithalbhai Jaychandbhai Patel and others, 1996 (6) SCC 433, it has been held that, it is settled law that mutation entries are only enable the State to collect revenues from the person in possession and enjoyment of the property and that the right, title and interst as to the property should be established de hors the entries. Entries are only one of the modes of proof of the enjoyment of the property. Mutation entries do not create any title or interest therein. 21.In Ramulu Ammal v. Ramachandra Reddy and Others [2009-3-L.W. 622], the plea with regard to oral partition by marking of revenue records to sustain the same came up for consideration and it is relevant to extract the following paragraphs of the said judgment:12/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 2019“23. The onus of proof as well as the onus probandi is on the defendant to prove that there was oral partition before the panchayatars. But it is clear that absolutely there is no evidence much less reliable evidence to uphold the alleged oral partition. No panchayatar was examined on the side of the defendant to prove such panchayat was held and the oral partition took place. In a village, if really a partition had taken place in the presence of panchayatars, certainly some evidence in that regard must be available and the same should have been adduced before the court. But, that was not done so.24. The learned counsel for the plaintiffs appositely and appropriately would invite the attention of this Court to the indubitable fact that DW2 who was examined on the side of the defendant to prove oral partition admittedly was a small boy, aged about 5 years at the time of panchayat and he also during cross examination candidly admitted that since the deceased D1 told him about the oral partition, he came to know about it.25. It is obvious and axiomatic, apparent and explicit that such sort of hear say evidence in this sort of serious 13/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 2019matters is totally not permissible legally. DW1, the widow of deceased D1 only relied on the evidence of DW2 to prove the alleged oral partition. Hence, the contention of the plaintiffs that there was no oral partition, is well founded. In para 29 of the said judgment, the learned Single Judge of this Court has placed reliance upon the decisions in Girija Nandini Devi and Others v. Bijendra Narain Choudary [AIR 1967 SC 1124], Sawarni v. Inder Kaur and Others [1996 (6) SCC 223], Kammavar Sangam through its Secretary R.Krishnasamy v. Mani Janagarajan [1999 (III) CTC 304 = 1999-3-L.W.727], Guruvammal and another v. Subbiah Naicker and Others [1999 (III) CTC 650 = 2000-1-L.W.488] and Gopaliappa v. Madanagiriappa and 3 others [(2008) 4 MLJ 781] and held that based on mere revenue records, serious partition suits relating to respective rights of parties of Hindu families, cannot be decided in favour of a person on the sole ground that patta stands in the name of such person. In the considered opinion of the Court, the ratio laid down in the said decision squarely applies to the facts of this case and except marking revenue records, namely Exs.B1 to B10, no other tenable evidence has been produced to sustain the case of the defendants”14/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 201922.In view of the above, the oral partition set out by the appellants has not been established and the mutation of the revenue records is not helpful to support the case of oral partition. The trial Court rightly passed the preliminary decree as prayed for and I find no merit in the appeal and the appeal is liable to be dismissed. Accordingly, the appeal fails and the same is dismissed. No costs. Consequently, the connected miscellaneous petition, if any, is closed. Index/Internet: Yes / NoSpeaking order: Yes/No 11.03.2025smsTo1.The Additional District Court, Hosur. 2.The Section Officer, VR Section High Court, Madras. 15/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 2019 V.SIVAGNANAM, J. sms Pre-delivery judgment made inA.S.No.172 of 201911.03.202516/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 201917/17

A.S.No.172 of 2019JUDGMENTAggrieved over the Judgement and Decree dated 23.11.2018 passed in O.S.No.6 of 2016, on the file of the Additional District Court, Hosur, the defendants have preferred the first appeal.2.For the sake of convenience, the parties are referred to as per their rankings in the trial Court.3.Suit for partition and mesne profits.4.The defendants in O.S.No.6 of 2016 on the file of the Additional District Court, Hosur, are the appellants herein and the respondents are the plaintiffs therein.5.The plaintiffs' case is as follows:The suit properties are ancestral properties of Bodi Reddy. The first defendant is the wife of Bodi Reddy. The plaintiffs and the defendants 2 to 4 are children of Bodi Reddy. Bodi Reddy died on 12.11.2006 leaving his wife 2/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 2019the first defendant Lakshmamma and his children viz., the plaintiffs and the defendants 2 to 4 and they had succeeded to the suit properties. They are in joint possession and enjoyment of the same. The plaintiffs have become coparceners along with their brothers the defendants 2 to 4 in view of the Hindu Succession Amended Act 39/2005. Therefore, the plaintiffs are jointly entitled to 66/100 shares. The defendants 2 to 4 jointly are entitled to 33/100 shares in the suit properties. Since the defendants were not coming for partition, the plaintiffs filed the suit for partition to claim shares as stated above for passing preliminary decree and thus, pleaded to allow the suit.6.The defendants contested the suit and filed a written statement and they admitted the relationship between the parties and denied the allegations contained in the plaint. Further contended that all the plaintiffs got married prior to 1985. Therefore, they are not entitled for benefit under the Act 1/1990 or Act 39/2005. During the lifetime of their father Bodi Reddy, there was an oral partition among the father and his sons viz., the defendants 2 to 4 and the defendants 2 to 4 were given lands in Ulimangalam Village. Their father Bodi Reddy retained the lands at Maradanapalli and also at Kasi Agraharam Village. Since there was an oral partition, the plaintiffs are not entitled to claim partition and thus, pleaded to dismiss the suit.3/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 20197.The trial Court carefully perused the above pleadings and framed the following issues for consideration;1.,e;J thhpRhpik jpUj;jr; rl;lk; 39-2005 thjpfspd; tHf;fpw;F bghUe;Jkh>2/tha;bkhHp ghfg;gphptpid Vw;gl;Ltpl;ljhf gpujpthjpfs; TwtJ rhpah>3/khuz;lg;gs;sp fpuhk r/vz;/240-3V brhj;J jtwhf me;j tHf;fpy; nrh;f;fg;gl;Ls;sjh>4/thjpfs; jhth brhj;Jf;fspy; Tl;L RthjPdj;jpy; cs;shh;fsh>5/brYj;jpa[s;s ePjpkd;wf; fl;lzk; rhpahdjh>6/gpuhjpy; nfhhpa[s;sgo thjpfSf;F ghfg;gphptpid kw;Wk; ,ju ghpfhu';fs; fpilf;fj;jf;fjh>7/ntW vd;d ghpfhuk;>8.On the side of the plaintiffs, one witness was examined as PW1 and Ex.A1 to Ex.A11 were marked. On the side of the Defendants, three witnesses were examined as DW1 to DW3 and Exs.B1 to Ex.B12 were 4/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 2019marked.9.On consideration of the evidence on record, the trial Court passed a preliminary decree as prayed for with costs. Aggrieved by this judgement and decree, the defendants preferred the appeal before this Court. 10.The points for consideration before this Court are,i). Whether the plaintiffs are entitled to preliminary decree as prayed for and entitled to 66/100 shares?ii). Whether the oral partition pleaded by the defendants is true or not?iii). To what relief?11.The learned counsel for the appellants/defendants submitted that the judgement and decree of the trial Court in decreeing the suit for partition declaring that the plaintiffs are entitled to 66/100th shares is contrary to law and against the evidence on record and probabilities of the case. Further contended that the trial Court overlooked the fact that the defendants, during the life time of their father, orally divided the ancestral property by metes and bounds and separate enjoyments have been evidenced by filing the documents 5/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 2019Ex.A2 to A11 patta and A register Copy and Ex.B1 to B12 which reveals that the separate enjoyment by the defendants had established the fact of oral partition. In pursuance of the oral partition, parties have mortgaged the property and obtained loan which evidenced by Ex.B4 letter to Indian Bank, Denkanikottai. The trial Court failed to appreciate the separate enjoyment evidenced by the defendants by filing the sufficient revenue documents and A register patta and reiterated the other grounds in the grounds of appeal and thus, pleaded to set aside the judgment and decree of the trial Court which is unsustainable and contrary to evidence on record and pleaded to allow the appeal. 12.The learned counsel for the respondents/plaintiffs supported the judgment and decree of the trial Court and contended that Exs.A2 to A11 Patta and A registers could not be taken as evidence for oral partition. The defendants failed to prove the oral partition. Further contended that mutation entries in the revenue records are only to enable the State to collect revenues from the person in possession and enjoyment of the property. The entries are only one of the modes of proof of the enjoyment of the property. Mutation entries do not create any title or interest therein. The defendants, during their cross examination, are unable to evidence which portion was allotted to them 6/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 2019in the oral partition and which portion was allotted to their father and they are not able to say the extent allotted in the oral partition. They failed to prove the oral partition. Therefore, the trial Court rightly granted the preliminary decree in favour of the plaintiffs. There is no grounds for interference and pleaded to dismiss the appeal as it has no merit.13.To Support his argument, the learned counsel for the respondents/plaintiffs relied upon the following judgments: 1.2009 -3-L.W.622 (Ramulu Ammal Vs. Ramachandra Reddy and others)2.2017 (2) MWN (Civil) 241 ( Chithra Vs. Saroja and another)3.(2021) 2 MLJ 511 (Bhoopalan and others Vs. Govindasami)4.2016 SCC OnLine Mad 8624 (A.Krishnan Vs.A.Ponnaiyan (deceased and others)5.AIR 1987 Mad 24 (P.Kaliappa Gounder and others Vs. Muthuswami Mudaliar)6.The decision of this Court in S.A.No.269 of 2013 dated 03.07.2023.7.The decision of this Court in S.A.No.666 of 2015 dated 13.11.2018.7/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 201914.I have considered the matter in the light of the submissions made by the learned counsel for the parties and perused the materials available on record.15.On perusal of the records, the fact reveals that the suit properties are the ancestral properties of Bodi Reddy is admitted. The relationship between the parties are also admitted. Bodi Reddy died on 12.11.2006 is also admitted. The plaintiffs are the daughters and the defendants 2 to 4 are sons of Bodi Reddy. According to respondents/plaintiffs, the suit properties are not effected partition till date. The plaintiffs have become coparceners along with the defendants 2 to 4 as per the Hindu Succession Amended Act 39 of 2005 which came into force on 09.09.2005. The defendants contested the suit on the ground that an oral partition was effected in respect of the suit properties with their father Bodi Reddy in the year 1982 in the presence of Village Elders. 16.I have gone through the oral evidence of the parties and the documents filed by them. PW1 examined herself and filed documents as Ex.A1 to A11. On the defendants' side, defendants examined Dws1 to 3 and 8/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 2019filed documents as Exs.B1 to B12. Ex.A2 to A8 are patta stand in the name of Bodi Reddy and Exs.A9 to A11 are A registers in the name of Ramachandra Reddy (D2), Gopal Reddy (D3), Krishna Reddy (D4). Exs.B1 to B10 are patta, notice and letter issued by Indian Bank in the name of Ramachandra Reddy (D2), Gopal Reddy (D3), Krishna Reddy (D4). The cross examination of DW2 runs as follows:“kUjhdg;gs;sp fpuhkj;jpYk;. vd; mg;gh fhrp mf;ucwhuk; fpuhkj;jpYk; ,Uf;fpw jhth brhj;Jffs; v';fs; K:d;W ngUf;Fk; ghfk; gphpj;J bfhLj;jjhf gjpypy; brhy;ypa[s;nshk;/ kUjdg;gs;sp fpuhkj;jpy; ve;j ve;j r/vz;zpy; vt;tst[ tp!;jPuzk; ghfk; ghpj;Jf; bfhz;lhh; vd;W brhy;y Koa[kh vd;why; brhy;yKoahJ/ fhrp mf;ucwhuk; fpuhkj;jpy; cs;s epy';fis eh';fs; K:d;W ngUk; bghJthf mDgtpj;J tUfpnwhk;/ kUjdg;gs;sp fpuhkj;jpy; xt;bthUtUf;Fk; Ie;J Vf;fh; ghfk; te;jJ/ vd; mg;ghtpw;F ghfj;jpy; brhj;J vJt[k; bfhLf;ftpy;iy/” 17.Admittedly, the suit properties are ancestral properties of Bodi Reddy. The plaintiffs and the defendants are legal heirs of Bodi Reddy. He died on 12.11.2006 intestate. In viw of the decision of Full Court ( 3 judges) 9/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 2019of the Hon'ble Supreme Court in Vineeta Sharma vs Rakesh Sharma and others 2020 9 SCC page 1, the plaintiffs became coparceners are entitled for partition in the ancestral properties. Admittedly, there is no partition effected by a decree of Court or effected by the Registered instruments on or before 20.12.2004. The only plea of the defendants are, there was an oral partition in the year 1982. Therefore, a plea of partition based on the oral partition has to be proved it ought to be supported by public documents.18.As stated above, in the cross examination of DW2, he is not able to speak about the extent of land allotted for each defendant in the oral partition and the cross examination extracted above, is not in support of the oral partition set out by the defendants. In para No.8 of the Division Bench of this Court P.Kaliappa Gounder and others Vs. Muthuswami Mudaliar reported in AIR 1987 Mad. 24 stated that:“ 8. Partition is the intentional severance of the joint ownership by an unequivocal expression of an intention to bring out severance in the eye of law and further implementing it by actual division by metes and bounds. What was held in common as a single property gets converted into a holding in severalty and in specie. Joint ownership turns into ownership in severalty and in specie. It 10/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 2019is true that 'partition' is not a transfer. But there must be the element of conversion as the joint ownership into ownership in severalty and in specie. Therefore, the essence of partition is that the joint ownership is put an end to and the joint owners come to hold the property in severalty and each in his own individual right. In this country, it is common that not only coparceners of a joint Hindu family but also individuals join or continue together to own property in common. If this common ownership is to be put an end to not only in theory but also in practice, there must be primarily severance of the joint ownership in the eye of law, followed up by actual physical division. We make it clear that in the present case, we are not concerned with the concept of a bare unequivocal expression of an intention to separate to bring about a division in status in a joint Hindu family. It is not unusual for parties holding properties jointly or in common to have separate enjoyment of portions for the sake of sheer convenience. But such separate enjoyment of convenience cannot be equated to partition in the eye of law and in fact, so as to say that the joint ownership has been put an end to and in its place ownership in severalty or in specie has come into existence. Separate enjoyment for the sake of convenience is one thing and partition in the eye of law is another. The latter carried with it the legal incidents of mutating the joint ownership. The latter has to pass through and satisfy a more rigorous test in law and on facts.”11/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 201919.Keeping in mind the above principle when I examined the present case, I am of the view that the oral partition set out by the defendants has not been established. 20.Further, with regard to the mutation entries in the revenue records, the Hon'ble Supreme Court in the case of Sankalchan Jaychandbhai Patel and others V. Vithalbhai Jaychandbhai Patel and others, 1996 (6) SCC 433, it has been held that, it is settled law that mutation entries are only enable the State to collect revenues from the person in possession and enjoyment of the property and that the right, title and interst as to the property should be established de hors the entries. Entries are only one of the modes of proof of the enjoyment of the property. Mutation entries do not create any title or interest therein. 21.In Ramulu Ammal v. Ramachandra Reddy and Others [2009-3-L.W. 622], the plea with regard to oral partition by marking of revenue records to sustain the same came up for consideration and it is relevant to extract the following paragraphs of the said judgment:12/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 2019“23. The onus of proof as well as the onus probandi is on the defendant to prove that there was oral partition before the panchayatars. But it is clear that absolutely there is no evidence much less reliable evidence to uphold the alleged oral partition. No panchayatar was examined on the side of the defendant to prove such panchayat was held and the oral partition took place. In a village, if really a partition had taken place in the presence of panchayatars, certainly some evidence in that regard must be available and the same should have been adduced before the court. But, that was not done so.24. The learned counsel for the plaintiffs appositely and appropriately would invite the attention of this Court to the indubitable fact that DW2 who was examined on the side of the defendant to prove oral partition admittedly was a small boy, aged about 5 years at the time of panchayat and he also during cross examination candidly admitted that since the deceased D1 told him about the oral partition, he came to know about it.25. It is obvious and axiomatic, apparent and explicit that such sort of hear say evidence in this sort of serious 13/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 2019matters is totally not permissible legally. DW1, the widow of deceased D1 only relied on the evidence of DW2 to prove the alleged oral partition. Hence, the contention of the plaintiffs that there was no oral partition, is well founded. In para 29 of the said judgment, the learned Single Judge of this Court has placed reliance upon the decisions in Girija Nandini Devi and Others v. Bijendra Narain Choudary [AIR 1967 SC 1124], Sawarni v. Inder Kaur and Others [1996 (6) SCC 223], Kammavar Sangam through its Secretary R.Krishnasamy v. Mani Janagarajan [1999 (III) CTC 304 = 1999-3-L.W.727], Guruvammal and another v. Subbiah Naicker and Others [1999 (III) CTC 650 = 2000-1-L.W.488] and Gopaliappa v. Madanagiriappa and 3 others [(2008) 4 MLJ 781] and held that based on mere revenue records, serious partition suits relating to respective rights of parties of Hindu families, cannot be decided in favour of a person on the sole ground that patta stands in the name of such person. In the considered opinion of the Court, the ratio laid down in the said decision squarely applies to the facts of this case and except marking revenue records, namely Exs.B1 to B10, no other tenable evidence has been produced to sustain the case of the defendants”14/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 201922.In view of the above, the oral partition set out by the appellants has not been established and the mutation of the revenue records is not helpful to support the case of oral partition. The trial Court rightly passed the preliminary decree as prayed for and I find no merit in the appeal and the appeal is liable to be dismissed. Accordingly, the appeal fails and the same is dismissed. No costs. Consequently, the connected miscellaneous petition, if any, is closed. Index/Internet: Yes / NoSpeaking order: Yes/No 11.03.2025smsTo1.The Additional District Court, Hosur. 2.The Section Officer, VR Section High Court, Madras. 15/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 2019 V.SIVAGNANAM, J. sms Pre-delivery judgment made inA.S.No.172 of 201911.03.202516/17 https://www.mhc.tn.gov.in/judis A.S.No.172 of 201917/17