—
2024 INSC 12
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2024
(Arising out of S.L.P.(C) No.15541 of 2023)
RAJENDHIRAN …APPELLANT(S)
VERSUS
MUTHAIAMMAL @ MUTHAYEE
ORS. …RESPONDENT(S)
JUDGMENT
VIKRAM NATH, J.
1. Leave granted.
2. This appeal, by the defendants, assails the
correctness of the judgment and order dated
28.07.2022 of the High Court of Judicature at
Madras whereby the Second Appeal
No.351/2021 filed by the plaintiff was allowed
and the concurrent judgments of the Trial Court
and the Sub-Judge dismissing the suit of the
plaintiff-respondents were set aside and the suit
was decreed.
Signature Not Verified
Digitally signed by
Neetu Khajuria
3. Facts in nutshell are :
Date: 2024.01.03
17:57:56 IST
Reason:
SLP (C) Appeal No. 15541 of 2023 Page 1 of 10
3.1 The respondent instituted a suit before the
Munsiff Court, Tiruchengode registered as OS
No.200/2011 claiming relief of declaration that
the sale deed dated 10.02.2011 executed by the
first defendant in favour of second defendant was
null and void and to declare that suit property
belonged to the plaintiffs and further for relief of
an injunction against the defendants.
3.2 According to the plaint case, the property in
question originally belonged to one Avinashi
Gounder who had four sons namely,
Arunachalam, Arumugam, Ramasamy and
Palaniyappan. Plaintiff No.1 is the wife and
plaintiff no.2 is the adopted son of Arunachalam.
The first defendant is the daughter of
Palaniyappan and the second defendant is the
vendee of the suit property from defendant no.1.
3.3 According to the plaintiffs, the four brothers had
entered into an oral partition and the suit
property came to the share of Arunachalam.
Subsequently Arunachalam on 16.07.2003, had
executed a will whereby the suit property and
other properties belonging to Arunachalam were
bequeathed in favour of the plaintiffs. Upon the
SLP (C) Appeal No. 15541 of 2023 Page 2 of 10
death of Arunachalam on 30.04.2006, the
plaintiffs became the absolute owners of the
property in suit. Further case of the plaintiffs
was that plaintiff no.2 and defendant no.2 were
running a partnership business and the property
in suit was offered as a security to the Karur
Vysya Bank. It was the second defendant who
had signed the loan papers and the security
papers with the Bank. As the loan amount could
not be repaid by defendant no.2, it was plaintiff
no.2 who had cleared the outstanding loan of the
Bank. Further it is claimed that defendant no.2
clandestinely obtained the sale deed on
10.02.2011 in respect of the suit property from
the first defendant. It was further the case of the
plaintiff that the entire property which was
allotted to Palaniyappan (father of defendant
no.1) had been sold by defendant no.1 on
15.07.1981 with specific boundaries to one
Mathiyalagan. It was thus the claim of the
plaintiffs that the defendants would not have any
right over the properties of Avinashi Gounder and
that the plaintiffs were in possession and were
cultivating the land in suit but as the defendant
SLP (C) Appeal No. 15541 of 2023 Page 3 of 10
no.2 tried to trespass the suit property on
24.07.2011, the necessity for filing the suit arose.
3.4 The defendants filed their written statement
denying that there was any oral partition
between the sons of Avinashi Gounder with
respect to the suit property. They also denied
that plaintiff no.2 was the adopted son of
Arunachalam. The defendants had further
pleaded that survey number in question had a
total area of 2.17 cents in which
Avanashigounder’s family had 1/3rd share i.e. 72
cents. These 72 cents were partitioned amongst
the three sons of Avanashigounder namely,
Arunachalam, Ramasamy and Palaniyappan.
The fourth son Arumugam had died issueless
and his share was equally shared by the three
brothers. Thus, each brother became entitled to
24 cents. Palaniyappan, father of defendant no.1
had 24 cents in this property, out of which 12
cents fell to the share of defendant no.1, out of
which, she sold 11 cents to the second
defendant. Plaintiffs had set up a case without
any basis only in order to deprive the defendants
of their property. It was also pleaded that there
SLP (C) Appeal No. 15541 of 2023 Page 4 of 10
were other co-owners in survey number in
question who had not been impleaded as
defendants, as such the suit was bad in law for
non-joinder of necessary parties.
4. The Trial Court framed the following six issues
on the basis of the pleadings of the parties:
(i). Whether the plaintiff is entitled for decree of
declaration as prayed for?
(ii). Whether the plaintiff is entitled for decree of
permanent injunction as prayed for?
(iii). Whether the husband of the 1st plaintiff
executed a will on 16.07.2003?
(iv). Whether the 2nd plaintiff is the legal heir of the
deceased Arunachalam?
(v). Whether the suit is bad for non-joinder of
necessary parties?
(vi). To what other relief?
5. The parties led oral and documentary evidence.
Both the plaintiffs examined themselves as PW 1
and PW 2 and one Mathiyalagan was examined
as PW 3 and they proved six papers Exh.A1 to
A6. On behalf of the defendants one Balarajendra
was examined as DW1 and he proved six papers
SLP (C) Appeal No. 15541 of 2023 Page 5 of 10
Exh.B1 to B6. Both the defendants did not enter
the witness box.
6. The Trial Court discussed the evidence
threadbare and recorded the following findings:
(i). Both the plaintiffs had pleaded that
Arunachalam had executed a will on 16.07.2003
but they failed to prove the said will deed in
accordance to the statutory provisions contained
in Section 68 of the Indian Evidence Act, 1872
and also under Section 63 of the Indian
Succession Act, 1956. Thus, their claim on the
basis of the will was not found to be
substantiated;
(ii). The suit was bad for non-joinder of necessary
parties as the co-owners/co-sharers were not
impleaded as defendants;
(iii). The plaintiffs were not the owners of the property
in suit, they had not been able to prove the oral
partition and as such were found to be not
entitled to any relief.
7. Accordingly, it dismissed the suit, vide judgment
dated 08.09.2015.
8. The plaintiffs preferred an appeal which was
registered as Appeal Suit No.55/2016. The
SLP (C) Appeal No. 15541 of 2023 Page 6 of 10
Subordinate Court, Tiruchengodu, vide
judgment dated 27.11.2020, after considering
the evidence on record, approved the findings
recorded by the Trial Court and, accordingly,
dismissed the appeal. Once again specific
findings were recorded that the oral partition had
not been proved by the plaintiffs. For the said
purpose, both the Courts below had relied upon
the evidence led by the parties, both oral and
documentary.
9. The First Appellate Court also approved the
finding regarding non-joinder of necessary
parties.
10. Aggrieved by the same, the plaintiffs preferred
Second Appeal before the High Court, registered
as Second Appeal No.351/2021. The High Court
proceeded on the premise that the only dispute
was with respect to the oral partition, as to
whether oral partition had taken place or not and
if yes, whether it was duly proved? The High
Court relied upon Ex.A-3, A-4 and Ex.B-3 to hold
that there had been an oral partition. Ex.A-3 is
the Mortgage Deed dated 13.10.2009. Ex.A-4 is
the Sale Deed dated 15.07.1981. Ex.B-3 is the
SLP (C) Appeal No. 15541 of 2023 Page 7 of 10
Sale Deed dated 02.05.2008. All these three
documents were relied upon only for the reason
that they mentioned boundaries. Based only on
the finding that oral partition was proved, the
High Court allowed the second appeal and after
setting aside the judgments of the Courts below
decreed the suit.
11. Heard counsel for the appellants. Despite service
of notice, no one appeared on behalf of the
respondents.
12. The two sale deeds relate to different properties
and not to survey number in question. Whether
any partition with respect to the survey number
in question had taken place or not, is not borne
out from the record. The suit property was never
recorded in the name of the plaintiffs or for that
matter, husband of plaintiff no.1, at any time.
The will which was the basis of the claim of the
plaintiff, had not been found to be proved in
accordance to law. The Trial Court and the First
Appellate Court had dealt with the documents
Exh.A-4 and B-3, the two sale deeds, and found
that these were not sufficient to prove the oral
partition or in any manner establish the oral
SLP (C) Appeal No. 15541 of 2023 Page 8 of 10
partition with respect to the survey number in
question.
13. Interestingly although the plaintiffs set up a case
that the land in suit was coming from Avinashi
Gounder but on record, two pattas were filed
which establish that the survey number in
question had been allotted in the name of
plaintiff no.1 and eight others jointly with respect
to which there was no partition. This fact had
been admitted by the plaintiffs in their
deposition. All these aspects had been
considered by the Trial Court and the First
Appellate Court but the High Court failed to
consider the oral as also the documentary
evidence. Only on the basis of the two sale deeds
and one mortgage deed, which relate to different
piece and parcels of land, the High Court
recorded a perverse finding that oral partition
had taken place. It also did not deal with the
other findings recorded by the Courts below.
14. In view of the above discussion and on the
findings recorded above, the impugned judgment
cannot be sustained as it not only does not
conform to the scope of Section 100 of the Code
SLP (C) Appeal No. 15541 of 2023 Page 9 of 10
of Civil Procedure, 1908 but also as it was
perverse on appreciated evidence, and also
ignoring material evidence.
15. The appeal is, accordingly, allowed. The
impugned judgment and order of the High Court
is set aside and that of the Trial Court and the
First Appellate Court is confirmed. The suit of the
respondent-plaintiff stands dismissed.
16. There shall be no order as to costs.
……………………………………J.
(VIKRAM NATH)
……………………………………J.
(RAJESH BINDAL)
NEW DELHI
JANUARY 03, 2024
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