High Court · 2025

S.A.No.575 of 2025IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 11.11.2025CORAM:THE HONOURABLE MRS. JUSTICE R.KALAIMATHIS.A.No.575 of 2025andC.M.P.No.19735 of 20251.V.R.Doorvasan2.Devaki3.Balraj4.Balachandiran5.Lalitha6.Lingamma ... Appellants/DefendantsVs.Balakrishnan ... Respondent/PlaintiffPRAYER: This Second Appeal is filed under Section 100 of C.P.C. against the judgment delivered in A.S.No.19 of 2022 dated 20.06.2025 on the file of the learned Principal District Judge, Dharmapuri by confirming the judgment and decree passed in O.S.No.107 of 2017 dated 26.02.2021 on the file of the learned Subordinate Judge, Palacode.For Appellants : Mr.S.Arokia Mani RajFor Respondent : Mr.B.GopalakrishnanJUDGMENTThis Second Appeal has been preferred by the defendants against the judgment and decree dated 20.06.2025 passed in A.S.No.19 of 2022 by the Page 1 of 12 https://www.mhc.tn.gov.in/judis S.A.No.575 of 2025Principal District Court, Dharmapuri.2. Parties are indicated herein as per their litigative status and ranking before the Trial Court.3. According to the plaintiff, the suit property and other properties originally belonged to Mallappa Naidu, S/o.Munusamy Naidu. They are the self acquired properties of Mallappa Naidu. Mallappa Naidu died intestate leaving behind his two sons namely Ramappa Naidu, Venkarasamy Naidu and three grandsons namely Doorvasan (1st defendant), Balakrishnan (Plaintiff) and Selvaraj as his legal heirs to succeed him. Mallappa Naidu executed a registered Will dated 26.02.1976 in favour of the plaintiff, 1st defendant and Selvaraj. In the said Will, the sons of Mallappa Naidu were given only right to enjoy the schedule mentioned properties and to hand over the schedule mentioned properties to his grandsons after their attainment of majority.3.1. As per the recitals of the Will, the three grandsons namely plaintiff, 1st defendant and Selvaraj have to divide the schedule mentioned properties into three equal shares, and accordingly, the above said Selvaraj got his share of property, parted from the plaintiff and 1st defendant long back. Selvaraj sold part of the properties to one Madhammal, W/o.Errappa on 15.11.2004 in Doc.No.1070 of 2004 and sold another property to one Munisamy, Page 2 of 12 https://www.mhc.tn.gov.in/judis S.A.No.575 of 2025S/o.Thimma Naidu on 02.05.2007 in Doc.No.995 of 2007. In both sale deeds, the recitals clearly read that Selvaraj obtained the sold property through the Will dated 26.02.1976.3.2. Whereas, the plaintiff Balakrishnan and 1st defendant Doorvasan are in joint possession and enjoyment of the schedule mentioned properties. They both constituted undivided Hindu Joint Family and there is no partition by metes and bounds that took place between them. Defendant No.1 is elder male member. He was looking after the schedule mentioned properties and he was giving the share to the plaintiff in the form of agricultural produce. For the past one year, 1st defendant stopped giving share to the plaintiff. Therefore, the plaintiff demanded for partition of the schedule mentioned properties. The defendant No.1 did not heed to his request. 3.3. The 1st defendant had fraudulently created registered gift deed on 18.01.2008 in Doc.No.70 of 2008 in S.R.O.Rayakottai in favour of 2nd defendant without the consent or knowledge of the plaintiff. He had also created another registered gift deed in Doc.No.3168 of 2010 in S.R.O.Rayakottai in favour of defendants No.3 and 4 without the consent or knowledge of the plaintiff. The above said documents have been executed in the name of defendants No.2 to 4 would not bind upon them as the said documents are only sham and nominal. When he questioned the 1st Page 3 of 12 https://www.mhc.tn.gov.in/judis S.A.No.575 of 2025defendant regarding the said documents, 1st defendant cancelled the gift deed (Doc.No.70 of 2008) which was executed in favour of 2nd defendant through registered cancellation deed dated 23.04.2012 in Doc.No.949 of 2012 in S.R.O.Rayakottai and also cancelled the above said gift deed document No.3168 of 2010 (executed in favour of the defendants No.3 and 4) through registered cancellation deed dated 03.05.2012 in Doc.No.1030 of 2012 in S.R.O.Rayakottai.3.4. Again 1st defendant fraudulently executed a General Power of Attorney deed in favour of 6th defendant on 16.04.2012 in Doc.No.25 of 2012. 6th defendant executed a registered sale deed in favour of 5th defendant on 23.04.2012 in Doc.No.954 of 2012 in S.R.O.Rayakottai in respect of some schedule mentioned properties without the consent of the plaintiff. The 6th defendant has no right upon the schedule mentioned property. The sale executed in favour of 5th defendant by the 6th defendant would not bind upon the 5th defendant as it is a sham and fraudulent document. 3.5. The plaintiff has got half share in the schedule mentioned property. Hence, suit is laid for partition to pass a preliminary decree for partition of half share in the suit properties.4. Per contra, the 1st defendant would inter-alia contend that the plaintiff Page 4 of 12 https://www.mhc.tn.gov.in/judis S.A.No.575 of 2025having sold his share of suit properties in favour of the 1st defendant. At the instigation of one Munusamy Naidu, he has falsely laid the suit. Plaintiff does not have any right or share in the suit properties. Before 20 years, oral partition took place between the plaintiff and the 1st defendant. The defendant (1st appellant) holds the share of plaintiff. The plaintiff sold the said properties to the 1st defendant to meet-out his family expenses. Plaintiff has not approached the Court with clean hands. The suit is not maintainable as there is no cause of action.5. The trial Court based on the divergent pleadings framed the relevant issues. At trial, to substantiate the plaint details, on the plaintiff's side, plaintiff, one Nagaraj and Rajadurai have been examined and nine documents have been marked. Ex.A1 is dated 26.02.1976 is copy of the Will executed by Mallappa Naidu in favour of plaintiff, 1st defendant and Selvaraj. On the defendants' side, 1st defendant Doorvasan and one Nethan have been examined and thirteen documents have been marked. Ex.C2 is the certified copy of the Will dated 26.02.1976 (Ex.A1).6. The trial Court upon consideration of oral and documentary evidence, and after hearing the arguments advanced by the learned counsels on either side, held that the plaintiff is entitled for half share in the suit property and granted preliminary decree for half share in the suit property in favour of the plaintiff.Page 5 of 12 https://www.mhc.tn.gov.in/judis S.A.No.575 of 20257. Aggrieved, the defendants preferred appeal before the Principal District Court, Dharmapuri in A.S.No.19 of 2022. The First Appellate Court upon consideration of case records and after hearing the arguments advanced by both sides, rejected the contention of the 1st defendant that the properties were orally divided between the plaintiff and the 1st defendant and held that plaintiff is entitled for half share in the suit properties and confirmed the judgment and decree passed by the trial Court. Against the said finding, the defendants has preferred second appeal before this Court.8. The fact that the suit properties originally belonged to Mallappa Naidu and he has two sons Ramappa Naidu and Venkatasamy Naidu are not in dispute. Plaintiff, 1st defendant and Selvaraj are sons of Ramappa Naidu. Ramappa Naidu's brother Venkatasamy Naidu has no children and he adopted Selvaraj. It is also not in dispute that Mallappa Naidu executed a Will on 26.02.1976 bequeathing the properties in favour of his three grandsons plaintiff, 1st defendant and Selvaraj. It is relevant to extract the Will details and it is culled out and given hereunder:''KDrhkp eha[L kfd; ky;yg;g eha[L Mfpa ehd; vGjp itj;j capy; rhrdk;/ ,g;nghJ vdf;F taJ 80 vdJ Fkhuh;fs;;; uhkg;g eha[L 1. bt';flrhkp eha[L 2. Kjy; ,yf;fkpl;ltupd; ikdu; kf;fs; J};thru; 3. ghyfpUc&;zd; Page 6 of 12 https://www.mhc.tn.gov.in/judis S.A.No.575 of 20254. bry;tuh$; 5. ,tu;fSs; bry;tuhi$ bt';flrhkp eha[L jdf;F gps;is ,y;yhj fhuzj;jhy; jdJ tsu;g;g[ gps;isahf vLj;J tsu;j;J tUfpwhu;/ Mfnt nky; fz;l 5 Ie;J ngh;fSk; vdf;Fg;gpd; vd; brhj;Jf;fsidj;ija[k; clik cilatu;fs;/// gpwF jhd; brhj;Jf;fs; miltjpy; mtu;fspilna rz;il rr;rut[fs; Vw;flhjgof;F ,e;j capiy vGjp itj;Js;nsd;/ vd; Ma[Sf;Fg;gpd; vd; brhj;Jf;fis ,Ukf;fSk; vt;tpj guhjPdk; bra;ahky; mDgtpj;J te;J 2. 3 ,yf;fkpl;l ikdu;fSf;F Kjy; ,yf;fkpl;ltu; fhu;oadhft[k; /// ,Ue;J mtu;fis rk;ul;rid bra;J mtu;fs; nk$h; Mdgpd; brhj;Jf;fis mtu;fs; trk; xg;g[tpj;Jtplntz;oaJ/ 1. 2 ,yf;fkpl;ltu;fs; brhj;Jf;fis vt;tpj ghuhjPdk; bra;af;TlhJ/ mg;go bra;jhYk; mJ bra;aj;jf;fjy;y/ vd; ngud;khu; 3 ngUk; nk$h; Mdgpd; brhj;Jf;fis j';fSf;F j';fSf;Fs; rkkhf mile;Jf; bfhs;s ntz;oaJ/''9. It is stated that one of the beneficiary namely grandson of Mallappa Naidu, Selvaraj has sold the property to third persons, is also not in dispute. The sum and substance of the plaintiff's case is that plaintiff, 1st defendant and their brother Selvaraj are entitled to the properties mentioned in the Will as one brother Selvaraj sold his share, then the share of the plaintiff and the 1st Page 7 of 12 https://www.mhc.tn.gov.in/judis S.A.No.575 of 2025defendant are kept in common enjoyment by the plaintiff and the 1st defendant. Plaintiff would state that time and situation has forced him to file the suit for partition against the 1st defendant.10. The foremost contention of the 1st defendant is that oral partition took place between him and the plaintiff, and the plaintiff has sold his share to the 1st defendant. Therefore, plaintiff is not entitled for any share in the suit properties. As per Section 101 of Evidence Act, 1872, one who pleads has to prove. The 1st defendant has not mentioned about the extent of suit property and the name of the purchaser, date of sale alleged to have been made by the plaintiff. No such details are mentioned in the written statement which would go to show that the 1st defendant's claim is not true. That apart PW1-Balakrishnan has filed his proof affidavit in line with the plaint details. The sale deeds executed by Selvaraj are Ex.A2 and Ex.A3. Gift deed executed by 1st defendant in favour of 2nd defendant is Ex.A4 and the cancellation deed in respect of Ex.A4 is Ex.A5 dated 23.04.2012. Ex.A5 and Ex.A6 are the Cancellation Deeds dated 23.04.2012 and 03.05.2012. Sale deed executed by 6th defendant in favour of 5th defendant is Ex.A7. No details advantageous to the 1st defendant was elicited from PW1 through his cross-examination. PW2 Nagaraj, S/o.Ramappa aged about 53 years who is the relative of plaintiff and 1st defendant has spoken about the execution of the Will (Ex.A1) and the sale effected by Selvaraj.Page 8 of 12 https://www.mhc.tn.gov.in/judis S.A.No.575 of 202511. The 1st defendant / DW1 (Doorvasan, S/o.Ramappa Naidu) would reiterate his written statement details to the effect that plaintiff's oral partition took place between them and the properties that fell to the share of plaintiff were sold to him and now he is demanding for partition at the instigation of one Munisamy Naidu. DW1 would depose that ''… v';fSf;Fk; bry;tuh$%f;Fk; 1998k; tUlj;jpy; ghfgphptpiz Vw;gl;lJ/ mjpy; thjpf;Fk; ghfgphptpiz MdJ/ bry;tuh$; ghfj;jpy; vt;tst[ epyk; xJf;fg;gl;lJ vd;W vdf;F bjhpahJ. bry;tuh$; ghfj;jpw;F brd;w brhj;ij khjk;khs;. KDrhkp. nfhghy; MfpnahUf;F mth; tpw;giz bra;J tpl;lhh;…''12. Further one Nethan, S/o.Chinnapittappa Naidu has been examined as DW2 and he is also the relative of both plaintiff and the defendants. He has supported the case of the 1st defendant. From the testimony of DW1, it transpires that 5th defendant is the son-in-law of 1st defendant and 6th defendant is the 1st defendant's sammandhi(rk;ge;jp). Exs.B1 and B2 are the sale deeds executed by the 1st defendant in favour of third persons and they are not connected with the suit properties. Revenue Records marked on the defendants' side stands in the name of 1st defendant (Exs.B3 to B11). Ex.A4 is Page 9 of 12 https://www.mhc.tn.gov.in/judis S.A.No.575 of 2025the settlement deed dated 18.01.2008 executed by 1st defendant in favour of his wife. The said settlement deed was cancelled by cancellation deed on 23.04.2012 (Ex.A5). It is relevant to note that on the same day through Ex.A7, 1st defendant has sold the suit property to an extent of Acre 2.78 in Survey No.109 (3c) of Nammandahalli Village to Lalitha. Defendants No.5 and 6 are purchasers from 1st defendant and the purchasers have not separately engaged any Advocates and they have not filed separate written statements. The purchasers / defendants 5 and 6 have adopted the written statement of 1st defendant.13. That apart, Will executed by Mallappa Naidu in favour of plaintiff, 1st defendant and Selvaraj is not in dispute. Selvaraj had taken possession of his share alone and sold out to third parties as per Exs.A2 and A3 sale deeds are also not in dispute. Plaintiff demands for half share in the suit property and he has marked the Will as Ex.A1. When the 1st defendant has taken a stand that oral partition took place between himself and the plaintiff and subsequently plaintiff sold his share of properties to him. No details to that effect is given in the written statement. Had it been true the 1st defendant should have filed the sale deeds executed by the plaintiff in his favour and marked. The cumulative analysis of oral evidence and exhibits marked on both sides, it is made clear that as per Ex.A1 Will, plaintiff and 1st defendant are entitled for equal share in the suit properties. In respect of sale effected by 1st Page 10 of 12 https://www.mhc.tn.gov.in/judis S.A.No.575 of 2025defendant in favour of 5th defendant shall be kept in the 1st defendant's share on equity basis. The trial Court as well as the First Appellate Court have uniformly after detailed discussion have come to the conclusion that the plaintiff is entitled for half share in the suit properties. This Court does not find any perversity or infirmity in the findings of the First Appellate Court. This Court also does not find any good reason to upset the findings of the First Appellate Court. No substantial question of law arises for consideration.14. Above being the position, this Second Appeal stands dismissed. Sequel to this, Judgment and Decree dated 20.06.2025 made in A.S.No.19 of 2022 by the Principal District Court, Dharmapuri stands confirmed. Considering the relationship between the parties to the appeal, there is no order as to costs. Consequently, connected miscellaneous petition stands closed.11.11.2025Internet:YesIndex:Yes/NoSpeaking/Non speaking orderssnTo1. The Principal District Judge, Dharmapuri.2. The Subordinate Judge, Palacode.Page 11 of 12 https://www.mhc.tn.gov.in/judis S.A.No.575 of 2025R.KALAIMATHI, J.,ssnS.A.No.575 of 2025andC.M.P.No.19735 of 202511.11.2025Page 12 of 12