N.Kartheesan vs N.Durairah on 6 August, 2026

    0
    9
    ADVERTISEMENT

    Madras High Court

    N.Kartheesan vs N.Durairah on 6 August, 2026

                                                                                        S.A. No.1118 of 2014
    
                                      IN THE HIGH COURT OF JUDICATURE AT MADRAS
    
                                               RESERVED ON        : 16.02.2026
                                              PRONOUNCED ON       : 06.08.2026
    
                                                        CORAM:
    
                                 THE HONOURABLE DR. JUSTICE A.D. MARIA CLETE
    
                                                   S.A. No.1118 of 2014
    
                    N.Kartheesan
                    S/o.Namakkani,
                    No.7, Nehru Street,
                    Razack Garden,                                            ..Appellant/Appellant/
                    Arumbakkam, Chennai - 600 106.                                    1st Defendant
    
                                                           Vs
                    1.N.Durairaj
                      S/o.Nammakani,
                      17-A, Vallalar Street,
                      17th Main Road, Thirumoolai Colony,
                      Anna Nagar West,
                      Chennai-600 040.
    
                    2.Pradeep Kumar
                      G.H.Pharma
    
                    3.Sreedhar
                     Hot & Spicy Restaurant,
    
                    Respondents 2 &3 Situated
                    At No.7, Razack Garden,                                  ...1, 2 & 3 Respondents/
                    Arumbakkam, Chennai - 600 106.                              1, 2 & 3 Respondents/
                                                                          Plaintiff, Defendants 2 & 3
    
    
                    PRAYER: This Second Appeal is filed under Section 100 of C.P.C., to set aside
                    the judgment and decree passed in O.S.No.4063 of 2010 on the file of the VII
                                                                                                Page 1 of 26
    
    
    
    https://www.mhc.tn.gov.in/judis
                                                                                      S.A. No.1118 of 2014
    
                    Assistant Judge, City Civil Court, by his judgment and decree dated 16.10.2012
                    as confirmed in Appeal in A.S.No.365 of 2013 by the XIX Additional Judge,
                    City Civil Court, by judgment and decree dated 15.04.2014.
    
    
                                  For Appellant:                 Mr.S.Sundaresan
    
    
                                  For Respondents:               Mr.T.Sudhan Raj for R1.
                                                                 R2 & R3 – Given up.
    
    
    
                                                       JUDGMENT
    

    This Second Appeal is preferred by the first defendant against the judgment and

    decree dated 15.04.2014 made in A.S.No.365 of 2013 on the file of the XIX

    SPONSORED

    Additional City Civil Court, Chennai, confirming the judgment and decree

    dated 16.10.2012 made in O.S.No.4063 of 2010 on the file of the VII Assistant

    City Civil Court, Chennai.

    2. For convenience, the parties are referred to by their ranks in O.S. No.

    4063 of 2010. The appellant is referred to as the first defendant; the first

    respondent as the plaintiff; and respondents 2 and 3 as the second and third

    defendants.

    Page 2 of 26

    https://www.mhc.tn.gov.in/judis
    S.A. No.1118 of 2014

    3. The plaintiff pleaded that he, the first defendant, and their elder brother,

    N. Jayaraman, were the three sons of Namakkani Nadar. The suit property

    originally belonged to Namakkani Nadar. By a registered settlement deed dated

    07.03.1988, registered as Document No. 876 of 1988 on the file of the Sub-

    Registrar, Kodambakkam, Namakkani Nadar settled the suit property in equal

    shares among his three sons.

    4. According to the plaintiff, at the time of settlement there was only a small

    tiled structure. The three brothers demolished it and jointly built the existing

    building and the first-floor sheds. They therefore continued in possession and

    enjoyment as co-owners of the site and superstructure.

    5. Jayaraman died on 24.10.1999, leaving his widow and children. The

    plaintiff subsequently learnt that Jayaraman’s legal heirs had conveyed their

    undivided one-third share to the first defendant under a registered sale deed

    dated 01.12.2009, marked Ex.A7. The plaintiff accordingly pleaded that the first

    defendant held two-thirds, while the plaintiff held the remaining one-third.

    Page 3 of 26

    https://www.mhc.tn.gov.in/judis
    S.A. No.1118 of 2014

    6. Defendants 2 and 3 were stated to be tenants of two ground-floor shops.

    The plaintiff alleged that the first defendant collected the rents and remitted

    only small amounts to him at irregular intervals. Although the plaintiff

    estimated his share of income at Rs.9,000 per month, he gave up the claim for

    past profits and sought an enquiry only into future mesne profits.

    7. The plaintiff issued a legal notice dated 10.03.2010, calling upon the first

    defendant to effect partition and to account for the plaintiff’s share of income.

    The first defendant received the notice but neither replied nor complied. The

    plaintiff therefore prayed for a preliminary decree for partition and separate

    possession of his one-third share by metes and bounds; an enquiry into future

    mesne profits from the date of the suit until delivery of separate possession; and

    costs.

    8. The first defendant, in his written statement, admitted the relationship

    between the parties and the execution of the registered settlement deed dated

    07.03.1988. He, however, denied the plaintiff’s contribution to the construction

    and that the plaintiff continued to possess any subsisting share in the suit

    property.

    Page 4 of 26

    https://www.mhc.tn.gov.in/judis
    S.A. No.1118 of 2014

    9. The specific defence was that Namakkani Nadar had acquired two

    properties: the suit property and another property at Rani Anna Nagar,

    measuring about 1,320 sq.ft. It was pleaded that, after Jayaraman’s death, the

    plaintiff, the first defendant and Jayaraman’s legal heirs entered into a family

    arrangement dated 24.08.2005, in the presence of Namakkani Nadar.

    10. He further states that, under the alleged arrangement, the suit property

    was allotted exclusively to the first defendant. The plaintiff and Jayaraman’s

    branch were said to have relinquished their rights in it, while portions of the

    Rani Anna Nagar property were allotted on the other side. It is further alleged

    that Rs.3,50,000 each had been paid towards relinquishment of the shares in the

    suit property, and that the first defendant thereafter remained in exclusive

    possession, paying property tax and collecting rent in his own right.

    11. On that basis, the first defendant denied any obligation to share rental

    income or to pay mesne profits and sought dismissal of the suit.

    Page 5 of 26

    https://www.mhc.tn.gov.in/judis
    S.A. No.1118 of 2014

    12. Upon the above pleadings, the trial Court framed the following issues:

    1. Whether the plaintiff is entitled for partition and 1/3rd share in the
    suit property?

    2. Whether the plaintiff is entitled for mesne profits?

    3. To what other reliefs?

    13. On the plaintiff’s side, the plaintiff examined himself as PW1 and marked

    Ex.A1 to A7. Ex.A1 is the registration copy of the settlement deed dated

    07.03.1988, executed by Namakkani Nadar in favour of his three sons; Ex.A2 is

    a copy of the pre-suit legal notice dated 10.03.2010, along with postal receipts;

    Ex.A3 is the acknowledgement card dated 18.03.2010, evidencing service of

    notice on the first defendant; Ex.A4 comprises the returned postal covers

    relating to defendants 1 to 3; Ex.A5 is the encumbrance certificate dated

    17.12.2009 concerning the suit property; Ex.A6 is the telegram dated

    01.08.2011, sent by the first defendant to the plaintiff in respect of the Rani

    Anna Nagar property; and Ex.A7 is the certified copy of the sale deed dated

    01.12.2009, executed by the legal heirs of Jayaraman in favour of the first

    defendant.

    14. On the side of the first defendant, three witnesses were examined. DW1

    was N. Kartheesan, the first defendant. DW2 was R. Katheerkamavalli, the

    Page 6 of 26

    https://www.mhc.tn.gov.in/judis
    S.A. No.1118 of 2014

    sister of the plaintiff, the first defendant, and Jayaraman. DW3 was J. Thanga

    Ananthi, the widow of Jayaraman. Ex.B1 to Ex.B8 were marked. Ex.B1 is a

    copy of the agreement/family arrangement dated 24.08.2005; Ex.B2 is the

    plaintiff’s signature on the said document; Ex.B3 is the

    affidavit/acknowledgment dated 27.09.2010, relied upon to prove payment to

    Jayaraman’s branch; Ex.B4 is the rental agreement dated 05.06.2006; Ex.B5 is

    the shop rental agreement dated 01.04.2010; Ex.B6 is the house lease deed

    dated 01.03.2008; Ex.B7 is the letter dated 10.08.2011 issued by the Chennai

    Metropolitan Water Supply and Sewerage Board to the first defendant; and

    Ex.B8 is the letter dated 11.08.2011 issued by the Tamil Nadu Electricity Board

    to the first defendant.

    15. The trial Court held that Ex.A1 established the plaintiff’s registered one-

    third title. Ex.A5 disclosed the relevant transactions relating to the suit property,

    and Ex.A7 established that the first defendant subsequently purchased only

    Jayaraman’s one-third share. Unless the defence of relinquishment under the

    disputed agreement was proved, the plaintiff remained entitled to one-third.

    16. The trial Court examined the recitals of the disputed agreement. It noted

    that the writing allotted the suit property to the first defendant, dealt with the

    Page 7 of 26

    https://www.mhc.tn.gov.in/judis
    S.A. No.1118 of 2014

    Rani Anna Nagar property, stipulated payments to various family members, and

    expressly contemplated the registration of a partition deed on 01.12.2005. The

    original was not produced; only a copy on Rs. 20 stamp paper was relied upon.

    The contemplated registered partition deed was never executed.

    17. The trial Court further found that no receipt or independent record proved

    payment of Rs.3,50,000 to the plaintiff. The evidence of DW2 and DW3

    regarding the timing and manner of payment was found inconsistent and

    unsupported. The evidence that certain amounts had been paid to other members

    did not prove that the plaintiff had received consideration or had relinquished

    his registered share.

    18. A significant circumstance noted by the trial Court was Ex.A7. In 2009,

    four years after the alleged arrangement, the first defendant obtained a

    registered sale deed from Jayaraman’s legal heirs. Ex.A7 contained no recital of

    the 2005 arrangement. The Court held that this subsequent transaction was

    inconsistent with the plea that the suit property had already stood absolutely

    allotted to the first defendant and that Jayaraman’s branch had already

    relinquished its share. Ex.B4 to Ex.B6 were treated only as documents

    concerning the tenancy and management of the suit property. Ex. B7 and Ex. B8

    Page 8 of 26

    https://www.mhc.tn.gov.in/judis
    S.A. No.1118 of 2014

    showed utility connections in the plaintiff’s name at Rani Anna Nagar. However,

    they did not prove title to the property or establish that the disputed agreement

    had been fully performed. Ex.A6, on the other hand, contained the first

    defendant’s own assertion that the Rani Anna Nagar property originally

    belonged to the parties’ mother, which undermined the plea that it formed part of

    the father’s common estate covered by the alleged family arrangement.

    19. The trial Court held that the disputed agreement was unregistered,

    insufficiently stamped, incomplete in performance and incapable of divesting

    the plaintiff of the title created by Ex.A1 and passed a preliminary decree

    declaring his entitlement to an undivided one-third share in the suit property,

    with a direction for separate possession by metes and bounds. It also ordered a

    separate enquiry into future mesne profits under Order XX Rule 12 CPC and

    directed the parties to bear their own costs

    20. Aggrieved by the trial court’s judgment and decree, the first defendant

    preferred A.S.No.365 of 2013. The first appellate court independently

    considered Ex.A1 and held that the plaintiff’s one-third title under the registered

    settlement deed was admitted. It then examined the disputed agreement and

    found that its recitals did not merely record a past oral arrangement. The writing

    Page 9 of 26

    https://www.mhc.tn.gov.in/judis
    S.A. No.1118 of 2014

    imposed terms and conditions for allotment, required reciprocal payments and

    contemplated registration on a future date. The document was therefore not

    shown to be a simple memorandum of an already completed oral partition.

    21. The appellate Court also noted that only a photocopy was produced; the

    original was not accounted for; the document had not been registered; and it was

    written on insufficiently stamped paper. It held that the document could not

    form the basis of the first defendant’s claim to exclusive title.

    22. The admissions regarding the plaintiff’s signature were not considered

    sufficient to establish performance of every term or payment of consideration.

    The appellate Court concurred with the trial Court that the evidence of DW2

    and DW3 did not cure the lack of documentary proof of payment to the plaintiff

    or explain the later registered sale deed Ex.A7.

    23. As regards partial partition, the first appellate Court relied upon Ex.A6, in

    which the first defendant had asserted that the Rani Anna Nagar property

    originally belonged to the parties’ mother. It held that the first defendant could

    not, without proof of common title, contend in the suit that the same property

    Page 10 of 26

    https://www.mhc.tn.gov.in/judis
    S.A. No.1118 of 2014

    belonged to the father and was necessarily available for partition along with the

    suit property.

    24. The first appellate court dismissed the appeal, confirming the judgment

    and decree of the trial court.

    25. Aggrieved by the judgment and decree of the First Appellate Court, the

    first defendant filed this second appeal. By order dated 26.11.2014, this Court

    admitted the Second Appeal only on the following two substantial questions of

    law.

    “1. Whether the Courts below erred in holding that Ex.B1 Agreement
    requires registration when it does not confer any title on the parties
    under the Document?

    2. Whether the Courts below were right in holding that the Suit is not
    suffered by partial partition?”

    26. Learned counsel for the appellant/first defendant submitted that the

    Courts below erred in treating Ex.B1 as an instrument of partition requiring

    compulsory registration and payment of stamp duty. According to the

    appellant/first defendant, apart from the suit property, the family owned another

    property measuring 1,320 sq. ft. at No.33, Valluvar Nedumpathai, Rani Anna
    Page 11 of 26

    https://www.mhc.tn.gov.in/judis
    S.A. No.1118 of 2014

    Nagar, Chennai–600 106. Under the family arrangement dated 24.08.2005, the

    Rani Anna Nagar property was allotted to the plaintiff and legal heirs of the

    deceased Jayaraman, while the suit property was allotted to the first defendant.

    Ex.B1 was executed solely as a memorandum recording a division that had

    already taken place and did not, by itself, create, convey or extinguish any right

    or title in the immovable properties. Since Ex.B1 did not operate to create,

    declare, assign, limit or extinguish any right in immovable property, Section 17

    of the Registration Act was not attracted. The plaintiff suppressed the existence

    of the Rani Anna Nagar property in the plaint, though he was enjoying it

    pursuant to the family arrangement.

    27. Learned counsel further submitted that, in his cross-examination on

    20.09.2011, the plaintiff admitted that the signature on Ex.B1 was his and that

    he had signed the document after it was prepared. His admitted signature was

    separately marked as Ex.B2. The father and the other co-sharers had also signed

    Ex.B1. The other co-sharers had acted upon the arrangement, received the

    differential amount from the first defendant, executed Ex.B3, and conveyed

    their one-third share in the suit property to the first defendant under Ex.A7. The

    mutation entries relating to the Rani Anna Nagar property were also changed in

    favour of the plaintiff and other co-sharers while the suit property remained in

    Page 12 of 26

    https://www.mhc.tn.gov.in/judis
    S.A. No.1118 of 2014

    the first defendant’s name. According to the learned counsel, these

    circumstances established that the earlier family arrangement had been acted

    upon and that Ex.B1 was merely a record thereof.

    28. It was further contended that Ex.B1 had been admitted in evidence

    without any objection to its admissibility or the sufficiency of stamp duty, and

    had not been marked subject to objection. Therefore, in view of Section 36 of

    the Indian Stamp Act, its admissibility could not subsequently be questioned

    either before the Trial Court or on appeal. In support of these submissions,

    reliance was placed on A.C. Lakshmipathy and another v. A.M. Chakrapani

    Reddiar and others, AIR 2001 Mad 135, and Kale and others v. Deputy

    Director of Consolidation and others, AIR 1976 SC 807, for the proposition

    that a memorandum merely recording an earlier oral family arrangement does

    not require registration. Reliance was also placed on Kaliya Perumal v.

    Dhandapani, CDJ 2010 MHC 242, regarding the admissibility of an

    unregistered document for a collateral purpose; Javer Chand and others v.

    Pukhraj Surana, AIR 1961 SC 1655, and Manoharan v. Rangabashyam

    and others, CDJ 2008 MHC 4719, for the proposition that, once an instrument

    has been admitted in evidence without objection, its admission cannot

    subsequently be questioned on the ground of insufficiency of stamp duty; and S.

    Page 13 of 26

    https://www.mhc.tn.gov.in/judis
    S.A. No.1118 of 2014

    Kaladevi v. V.R. Somasundaram and others, (2010) 5 SCC 401, regarding

    the limited admissibility of an unregistered document under the proviso to

    Section 49 of the Registration Act.

    29. On the question of partial partition, learned counsel submitted that the

    plaintiff had sought partition only of the suit property, excluding the Rani Anna

    Nagar property. However, the existence and allotment of that property were

    specifically pleaded in the written statement and admitted in evidence. The

    plaintiff had not explained the exclusion of that property. It was therefore

    argued that the suit was for partial partition and was not maintainable. The

    Courts below had neither framed a proper issue on partial partition nor

    considered the pleadings, mutation records and evidence relating to the other

    property. Reliance was placed on Kenchegowda v. Siddegowda, (1994) 4 SCC

    294, wherein it was held that a suit for partial partition, without bringing all the

    joint family properties into the common hotchpot, is not maintainable. The

    appellant/first defendant therefore prayed that the concurrent judgments and

    decrees be set aside and the suit be dismissed.

    30. Learned counsel for the first respondent/plaintiff submitted that the

    family arrangement dated 24.08.2005 was not merely a memorandum recording

    Page 14 of 26

    https://www.mhc.tn.gov.in/judis
    S.A. No.1118 of 2014

    an earlier oral family arrangement. Its terms allotted specific portions of the

    Rani Anna Nagar property to different persons, allotted the entire suit property

    to the first defendant, and imposed obligations to pay specified amounts and to

    register the arrangement on a future date. The document therefore purported, by

    itself, to create, declare and extinguish rights in immovable property and

    consequently required proper stamping and compulsory registration under

    Section 35 of the Stamp Act and Section 17(1) of the Registration Act, 1908.

    Reliance was placed on Tek Bahadur Bhujil v. Debi Singh Bhujil, AIR 1966

    SC 292, and A.C. Lakshmipathy and another v. A.M. Chakrapani Reddiar

    and others, 2001 (1) CTC 112, to distinguish between a memorandum

    recording an already completed oral family arrangement and an operative

    instrument intended to constitute the source of title. It was contended that, being

    unstamped and unregistered, the document could not be looked into for any

    purpose.

    31. Learned counsel further submitted that the alleged arrangement had never

    been acted upon. Ex.A6, the telegram dated 01.08.2011 issued by the first

    defendant, showed that he disputed the plaintiff’s claim over the Rani Anna

    Nagar property and asserted that the property originally belonged to their

    mother, which was inconsistent with the alleged allotment under the document.

    Page 15 of 26

    https://www.mhc.tn.gov.in/judis
    S.A. No.1118 of 2014

    Likewise, Ex.A7, the sale deed executed by the legal heirs of Jayaraman

    conveying their one-third share in the suit property to the first defendant for

    consideration, would have been unnecessary had the suit property already been

    allotted exclusively to him under the alleged arrangement. The failure to

    produce the original document and to register it on the stipulated date also

    supported the finding that it had not been acted upon. In support of the objection

    regarding admissibility and proof, reliance was also placed on Ammamuthu

    Ammal (Dead) and others v. Devaraj and others, 2011-1-L.W. 842; Avinash

    Kumar Chauhan v. Vijay Krishna Mishra, (2009) 2 SCC 532; and H.

    Siddiqui (Dead) by LRs v. A. Ramalingam, MANU/SC/0174/2011. As

    regards partial partition, it was submitted that no such plea had been raised

    either in the written statement or in the grounds of the first appeal; that the suit

    property had been separately settled upon the plaintiff, the first defendant and

    Jayaraman under Ex.A1; and that the Rani Anna Nagar property stood in the

    name of their mother. The plea of partial partition was therefore untenable, and

    the concurrent decree granting the plaintiff an undivided one-third share called

    for no interference.

    Page 16 of 26

    https://www.mhc.tn.gov.in/judis
    S.A. No.1118 of 2014

    Substantial question of Law No. 1 :

    32. The plaintiff’s one-third title in the suit property is founded on the

    registered settlement deed dated 07.03.1988 (Ex.A1). The first defendant

    admitted that settlement. The later registered sale deed dated 01.12.2009

    (Ex.A7) conveyed to the first defendant the undivided one-third share of

    Jayaraman’s branch. Unless a legally effective transaction thereafter

    extinguished the plaintiff’s one-third share, the first defendant could claim only

    two-thirds, and the plaintiff continued to own the remaining one-third.

    33. The distinction governing family arrangements is set out in Tek Bahadur

    Bhujil v. Debi Singh Bhujil and others, AIR 1966 SC 292. A family

    arrangement may be oral. Where an oral arrangement has already been

    completed, and a writing is subsequently prepared merely as a memorandum or

    record of what has taken place, the memorandum does not itself require

    registration. However, where the writing is intended to be the instrument by

    which rights in immovable property are created, declared, assigned, limited or

    extinguished, it attracts Section 17(1)(b) of the Registration Act, 1908.

    34. A.C. Lakshmipathy and another v. A.M. Chakrapani Reddiar and

    five others, AIR 2001 Mad 135 : (2001) 1 MLJ 1 : (2001) 1 LW 257, applies
    Page 17 of 26

    https://www.mhc.tn.gov.in/judis
    S.A. No.1118 of 2014

    the same distinction and emphasises that the question depends on the language

    of the writing, the surrounding circumstances, and the purpose for which it was

    prepared. Ammamuthu Ammal (Died) and others v. Devaraj and others, 2011-1-

    L.W. 842 : (2011) 5 MLJ 15: 2011 (1) MWN (Civil) 297, likewise holds that a

    document whose recitals themselves effect a transfer of rights in immovable

    property cannot be used to accomplish that transfer under the guise of a

    collateral purpose.

    35. On the pleadings and evidence in the present case, no completed oral

    partition anterior to 24.08.2005 was proved. The written statement itself

    describes the family arrangement as having been entered into on 24.08.2005.

    The disputed writing allocates the suit property to the first defendant, addresses

    the Rani Anna Nagar property, stipulates payments to various family members,

    apportions litigation expenses, and contemplates the registration of a partition

    deed on 01.12.2005. These recitals do not merely narrate a past and completed

    oral arrangement; they set out reciprocal obligations and a proposed future act

    of registration.

    36. The first substantial question contains its own answer. If Ex.B1 did not

    create, declare, limit or extinguish any title, it could not divest the plaintiff of

    Page 18 of 26

    https://www.mhc.tn.gov.in/judis
    S.A. No.1118 of 2014

    the one-third share already vested in him under Ex.A1. If, on the other hand,

    Ex.B1 is relied upon as the transaction by which the plaintiff relinquished that

    share and the first defendant became the exclusive owner, the document

    necessarily affects rights in immovable property and requires registration. The

    first defendant cannot simultaneously deny that the document affects title to

    registration and rely upon it to extinguish the plaintiff’s registered title.

    37. Although an unregistered document that is compulsorily registrable may,

    in appropriate circumstances, be received for a collateral purpose under the

    proviso to Section 49 of the Registration Act, an instrument that is insufficiently

    stamped cannot be admitted in evidence or acted upon for any purpose unless it

    is first impounded under Section 33 of the Indian Stamp Act and the requisite

    stamp duty and penalty are paid in terms of Section 35. Further, Section 36

    merely prevents a subsequent challenge to the admission of a document already

    marked in evidence; it does not cure the defect of insufficient stamping or

    authorise the Court to rely upon such a document. Therefore, merely marking an

    insufficiently stamped instrument as an exhibit does not make it legally capable

    of being acted upon to determine the rights of the parties.

    Page 19 of 26

    https://www.mhc.tn.gov.in/judis
    S.A. No.1118 of 2014

    38. Indeed, the document has already been admitted into evidence and

    marked as Ex. B1. Therefore, in view of Section 36 of the Indian Stamp Act, its

    admission cannot now be called in question on the ground that it is

    insufficiently stamped. However, Section 36 only prohibits reopening the order

    admitting the instrument; it does not authorise the Court to act upon an

    instrument which is insufficiently stamped. The opening portion of Section 35

    expressly provides that an instrument chargeable with duty shall neither be

    admitted in evidence “for any purpose” nor “acted upon” unless it is duly

    stamped. Hence, although Ex.B1 cannot now be de-marked merely on the

    ground of insufficient stamping, it cannot be acted upon or relied upon for

    adjudication of the rights of the parties. This position is supported by D.

    Balachandran v. T.C. Shanmugam, 2013 (2) CTC 832: 2013 (3) LW 99,

    particularly paragraph 10.

    39. The plaintiff’s admission that the signature marked Ex.B2 is his own does

    not establish the legal effect asserted by the first defendant. An admitted

    signature may prove that the plaintiff signed the writing. It does not, by itself,

    prove that the reciprocal terms were performed, that Rs.3,50,000 was paid to the

    plaintiff, that the contemplated registered partition was abandoned by mutual

    consent, or that the plaintiff’s vested share was extinguished.

    Page 20 of 26

    https://www.mhc.tn.gov.in/judis
    S.A. No.1118 of 2014

    40. The record supports the concurrent findings on performance. The original

    agreement was neither produced nor satisfactorily accounted for. No receipt,

    bank record, or independent document establishes payment of Rs. 3,50,000 to

    the plaintiff. The Courts below found material inconsistencies in the evidence of

    DW2 and DW3 regarding the alleged payments. Ex.B7 and Ex.B8 are utility-

    service records relating to the Rani Anna Nagar property; they may evidence

    use or occupation, but they do not prove title or acceptance of that property in

    complete satisfaction of the plaintiff’s registered interest in the suit property. The

    rental records similarly show that the first defendant managed the suit property

    and do not establish the extinguishment of a co-owner’s title.

    41. Ex.A7 is a further circumstance against the defence. In December 2009,

    the first defendant obtained a registered conveyance from Jayaraman’s legal

    heirs in respect of their undivided share in the suit property. Ex.A7 contains no

    recital that their share had already been relinquished under the alleged

    arrangement of 24.08.2005. If the first defendant had already become the

    exclusive owner under that arrangement, the necessity for the later registered

    purchase would have required a satisfactory explanation. The Courts below

    Page 21 of 26

    https://www.mhc.tn.gov.in/judis
    S.A. No.1118 of 2014

    were entitled to regard Ex.A7 as inconsistent with the plea that the disputed

    agreement had already been fully acted upon.

    42. The Courts below also noted that only a copy of the disputed writing was

    produced and that the document was insufficiently stamped. It is unnecessary to

    base the decision in this Second Appeal solely on the stamp objection. Even

    setting that objection aside, the first defendant failed to prove a completed

    antecedent oral arrangement, of which Ex.B1 was merely a memorandum, failed

    to prove performance of the reciprocal obligations, and could not use the

    unregistered writing to establish relinquishment of the plaintiff’s registered one-

    third share.

    43. The Courts below therefore applied the correct legal distinction. They

    committed no error in holding that Ex.B1 could not be relied upon as the basis

    of the first defendant’s exclusive title. Substantial question of law No.1 is

    answered against the appellant/first defendant and in favour of the first

    respondent.

    Page 22 of 26

    https://www.mhc.tn.gov.in/judis
    S.A. No.1118 of 2014

    Substantial question of law No.2 :

    44. A suit for partition should ordinarily include all properties jointly owned

    by the same co-sharers and available for division, so that the parties’ rights may

    be determined in one proceeding. The objection to partial partition nevertheless

    requires proof that the omitted property forms part of the same joint estate,

    belongs to the same co-sharers and is legally available for partition among them.

    A bare assertion that another property exists is insufficient.

    45. The suit property stands on a different and established footing. Ex. A1

    created defined one-third shares in favour of the three brothers. After Ex. A7,

    the first defendant held two-thirds, and the plaintiff held one-third. The first

    defendant, who invoked the Rani Anna Nagar property to defeat the suit, was

    required to establish, by title evidence, that it was jointly owned by the same

    parties and formed part of a common pool available for partition.

    46. No title deed was produced to show that the Rani Anna Nagar property

    belonged to Namakkani Nadar or that the plaintiff jointly held it, the first

    defendant and Jayaraman’s branch, in the same character as the suit property.

    Ex.B7 and Ex.B8 do not prove ownership. Further, Ex.A6 contains the first

    Page 23 of 26

    https://www.mhc.tn.gov.in/judis
    S.A. No.1118 of 2014

    defendant’s own assertion that the Rani Anna Nagar property originally

    belonged to the parties’ mother and had been transferred to the plaintiff. That

    assertion is inconsistent with the defence that the property belonged to the father

    and necessarily had to be included in the present suit.

    47. In the absence of proof that the omitted property was jointly owned by

    the same co-sharers and available for division in this suit, the plea of partial

    partition was rightly rejected. Substantial question of law No. 2 is answered

    against the appellant/first defendant and in favour of the first respondent.

    48. In the result, the judgment and decree dated 15.04.2014 made in

    A.S.No.365 of 2013 on the file of the XIX Additional City Civil Court,

    Chennai, confirming the judgment and decree dated 16.10.2012 made in

    O.S.No.4063 of 2010 on the file of the VII Assistant City Civil Court, Chennai

    are confirmed.

    Page 24 of 26

    https://www.mhc.tn.gov.in/judis
    S.A. No.1118 of 2014

    49. Accordingly, the Second Appeal is dismissed. In light of the relationship

    between the parties, no order as to costs is made in the Second Appeal. The

    connected miscellaneous petition, if any, is closed.

    06.08.2026
    ay

    Index:Yes/No
    Speaking Order /Non-speaking order
    Neutral citation:Yes/No

    To

    1. XIX Additional Judge, City Civil Court, Chennai.

    2. VII Assistant Judge, City Civil Court, Chennai.

    3.The Section Officer,
    VR Section,
    High Court, Chennai.

    Page 25 of 26

    https://www.mhc.tn.gov.in/judis
    S.A. No.1118 of 2014

    DR. A.D. MARIA CLETE, J

    ay

    PRE DELIVERY JUDGMENT
    S.A. No.1118 of 2014

    06.08.2026

    Page 26 of 26

    https://www.mhc.tn.gov.in/judis



    Source link

    LEAVE A REPLY

    Please enter your comment!
    Please enter your name here