AS/434/2002 of P.DHANDAPANI Vs DHANALAKSHMI (DIED)
2026:MHC:1541
A.S.Nos.434 of 2002 & 819 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment reserved on :19.02.2026 Judgment pronounced on :
10.04.2026
CORAM
THE HON'BLE MR. JUSTICE P.B.BALAJI
A.S.Nos.434 of 2002 & 819 of 2023
and
CMP(MD)Nos.15727 & 7821 of 2024 & 29032 of 2023
A.S.Nos.434 of 2002
P.Dhandapani .. Appellant
Vs.
Dhanalakshmi (Died)
2.Valliammal
3.Udhayagiri (died)
4.Geetha
5.B.Sanths
6.V .Latha
(R3 Died R4 to R6, who are Lrs of R3, already on record)
7.Avinaski Mudaliar(died)
8.Parvathy
9.Sudha
10.Latha
(R16 Died, R9 &R10, who are Lrs of R16, already on record)
11.T.S.Lakshmi
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12.Kokilambal
13.Aravinda Krishnan
14.K.V .Radha
15.Latha Prabhu
16.V .V .Shankaran (Died)
17.C.S.Nandakumar
18.T.V .Srinivasan
19.K.Shanmugam
(Transposed as second appellant vide Court order
dated 14.08.2024)
20.S.Gnanasekar
21.P.Ravichandran
22.Suganthi
23.Kalaiselvi
24.Thirugnanasambantham
25.T.Rajaram
26.T.Saranya
(R1 Died R21 to R26 brought on record as Lrs of deceased R1
vide court order dated 05.04.2024)
... Respondents
Prayer: Appeal Suit filed under Section 96 of CPC and Order 41 Rule 1
CPC, against the fiar and final order passed in O.S.No.1555 of 1993 dated
28.09.2000 on the file of the Third Additional Subordinate Judge,
Coimbatore.
For Appellant : Mr.Anirudh Krishnan
Legal aid counsel
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For Respondents : Mr.G.Ananda Kumar for R21
: M/s.M.Vishali
for Mr.K.Govi Ganesan
for R4 to R6
: Mr.V .Radhakrishnan
for Mr.S.Kadarkari, for R24 to 26
: Mr.P.Thangavel for R19
A.S.No.819 of 2023
K.Shanmugam .. Appellant
Vs.
Dhanalakshmi (Died)
1.P.Ravichandran
2.Dhandapani
Valliammal (Died)
3.Saraswathi
4.Vasudevan
Leelavathi (Died)
5.S.Pratap
6.S.Vani
7.Shanmugam
8.Sundaram
Udhayagiri (died) Lrs
9.Geetha
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10.B.Santhi
11.V .Latha
Avinakki Mudaliar(died)
12.Parvathy
13.Sudha
14.Latha
15.T.S.Lakshmi
16.Kokilambal
17.Aravinda Krishnan
18.K.V .Radha
V .V .Shankaran (Died)
19.C.S.Nandakumar
20.T.V .Srinivasan
21.Gnanasekar
Jayanthi (died) Lrs
22.Thirugnanasambantham
23.T.Rajaram
24.T.Saranya
25.Suganthi
26.Kalaiselvi ... Respondents
Prayer: Appeal Suit filed under Section 96 of CPC, read with Order 41
Rule 1 CPC, against the fiar and final order passed in I.A.No.4 of 2022 in
I.A.No.1 of 2022 in O.S.No.1555 of 1993 dated 10.07.2023 on the file of
the Sub Court, Mettypalayam.
For Appellant : Mr.C.Deivasigamani
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For Respondents : Mr.G.Ananda Kumar for R1
: Mr.R.K.Ramaiah
for R2,5,6 &8
: M/s.M.Vishali
for Mr.K.Govi Ganesan
for R9 to R11
: Mr.V .Radhakrishnan
for Mr.S.Kadarkari, for R22 to 24
: Mr.Anirudh Krishnan
Legal aid counsel for R2
: No appearance
for R4,7,12,18,21,25
COMMON JUDGMENT
These appeals are directed against the judgment and decree in
O.S.No.1555 of 1993 on the file of the learned III Additional Sub Judge,
Coimbatore.
2. A.S.No.434 of 2002 is at the instance of the first defendant,
challenging the preliminary decree passed in favour of the plaintiff, in a
suit for partition.
3. A.S.No.819 of 2023 is at the instance of a third party, who has
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purchased the property, 25
th
respondent in I.A.No.4 of 2022 in I.A.No.1
of 2022 in the said suit O.S.No.1555 of 1993.
4.Pleadings
The plaint in brief:
The plaintiff is the daughter of one, Palaniyappa Mudhaliyar, who
died intestate on 27.11.1957. Mother of the plaintiff Nallammal died on
15.02.1992. Schedule A properties are ancestral properties of
Palaniyappa Mudhaliar and Schedule B properties are self acquired
properties of Palaniyappa Mudhaliyar. The plaintiff has been in joint
possession and enjoyment of the said properties along with defendants.
The first defendant, who is settled in the United States of America, started
behaving in a peculiar way, indicating that he is not willing for a
partition and he has also taken steps to alienate the joint properties.
Hence, the suit for partition.
5.Written Statement of the first defendant:
The father, Palaniyappa Mudhalidar was an agriculturist and he
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would did have any property of his own and he was only managing his
estate by cultivating the lands, left behind by his father Pongali
mudhaliyar, who had purchased A schedule as well as B schedule
property between 1915-1920. Palaniyappa M udhalidar died only on
07.01.1954 and not in the year 1957 as claimed by the plaintiff. The
plaintiff is not in joint possession of the suit properties as she has settled
in Tiruppur. It is further stated that upon the demise of Palaniyappa
Mudhaliyar in October 1954, the plaintiff, being a daughter, is not entitled
for any share. Schedule B properties are also not the self acquired
properties of the father and not a single item of the said properties were
purchased by him, out of his own earnings. The first defendant was
allotted various items of lands, agricultural in nature, towards his
exclusive share during the life time of the mother, after the death of father
Palaniyappa Mudhaliyar. The first defendant has been maintaining the
properties single handedly, paying taxes to the Panchayat as well as the
revenue officials. The suit has been filed solely for the purpose of making
an unlawful gain.
6.Written statement of the second defendant:
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The second defendant admits the relationship between the parties
as set out in the plaint. Palaniyappa Mudhaliyar died only in the year
1954 and not 27.11.1957, as claimed by the plaintiff. Palaniyappa
Mudhaliyar did not have any income of his own and the first defendant is
in exclusive possession and enjoyment of the schedule mentioned
properties, which are all agricultural lands. The first defendant is settled
in USA and hence, he has appointed as caretaker, who resides locally and
maintains the properties. The plaintiff as well as the second defendant are
permanent residents of Tiruppur and the plaint lacks merit and is liable to
be dismissed.
7. Issues:
Based on the pleadings, the trial Court has framed the following
issues:
“1. thjp mth; NfhhpAs;sgb jhth nrhj;Jf;fisg;
nghWj;J ghfg;gphptpid ghpfhuk; ngw jFjp cilatuh?
2. thjpapd; jfg;gdhh; 27.11.1957-k; Njjp ,we;J
Nghdhuh?
3. 1-k; gpujpthjpAk;> thjpAk; nrhj;Jf;fisg;
ghfg;gphptpid nra;J nfhz;ljpy; G+kpfs; KotJk; 1-k;
gpujpthjpapd; gq;Ff;F gphpj;J nfhLf;fg;gl;ldth?
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4. thjpf;F vd;d ghpfhuk; fpilf;f Ntz;Lk;?”
8. After framing issues initially, the issues were recast by the trial
Court and the same are extracted hereunder:
“1. thjp mth; NfhhpAs;sgb jhth
nrhj;Jf;fisg; nghWj;J ghfg; gphptpid ghpfhuk;
ngw jFjpAs;sth;jhdh?
2. thjpapd; jfg;gdhh; 27.11.1957-k; Njjp ,we;J
Nghdhuh? my;yJ 07.01.1954-k; Njjp ,we;J Nghdhuh?
3. thjpf;F vd;d ghpfhuk; fpilf;f Ntz;Lk;?'
9.Trial:
At trial, the plaintiff examined herself as P.W.1 and Dhanalakshmi
and Lakshmanan were examined as P.W.2 and P.W.3 on the side of the
plaintiff, Ex.A1 to Ex.A14 were marked. On the side of the defendants,
the first defendant examined himself as D.W.1 and Bagthavathsalam,
Sokkannan and Renganathan examined as D.W.2 to D.W.4 and Ex.B1 to
Ex.B4 were marked.
10. Decision of the trial Court:
The trial Court, after appreciation of oral and documentary
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evidence adduced before it, found the plaintiff to be entitled to a share in
the suit properties and granted a preliminary decree, declaring a 1/8
th
share in favour of the plaintiff in A schedule property and 1/4 share in B
schedule properties.
11. A.S.No.434 of 2002:
Aggrieved by the judgment and decree in favour of the plaintiff,
the first defendant has preferred the appeal. However, the first defendant
has not prosecuted the appeal and hence, this Court has appointed a legal
aid counsel to canvass the case of the first defendant, the appellant in
A.S.No.434 of 2002.
12. A.S.No. 819 of 2023:
12.1. The appellant, in this appeal, has challenged the order in
I.A.No.4 of 2022 in I.A.No.1 of 2022 in the very same suit in
O.S.No.1555 of 2023. The appellant is a third party to the suit, however,
the 25
th
respondent in both I.A.Nos.1 and 4 of 2022.
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12.2. I.A.No. 1 of 2022 has been filed by the first respondent /
plaintiff for passing of a final decree and I.A.No.4 of 2022 has been filed
for passing of supplementary preliminary decree. The trial Court allowed
I.A.No.4 of 2022, as against which, the 25
th
respondent in the said I.A has
preferred the appeal in A.S.No.819 of 2023.
13. I have heard Mr.Anirudh Krishnan, learned counsel for the
appellant in A.S.No.432 of 2002 and the second respondent in
A.S.No.819 of 2023 (appointed by the Legal Services Authority),
Mr.C.Deivasigamani, learned counsel for the appellant in A.S.No.819 of
2023, Mr.V .Radhakrishnan, learned Senior Counsel for Mr.S.Kadarkarai,
for the respondents 22 to 24 in A.S.No.434 of 2002 and respondents 22 to
24 in A.S.No.819 of 2023, Ms.Vishali for Mr.K.Govi Ganesan, learned
counsel for the respondents 4 to 6 in A.S.No.434 of 2002 and respondents
9 to 11 in A.S.No.819 of 2023, Mr.G.Ananda Kumar, learned counsel for
the 21
st
respondent in A.S.No.434 of 2002 and first respondent in
A.S.No.819 of 2023.
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14. Arguments of learned counsel for appellant in A.S.No.434/2002:
14.1. Mr.Anirudh Krishnan, learned counsel appearing for the
appellant / first defendant, challenging the preliminary decree in the suit
would take me through the family genealogy tree and contend that the
appeals would hinge on the actual date of death of Palaniyappa
Mudhaliyar, since if according to the plaintiff, her father Palaniyappa
Mudhaliyar died in 1957, then, the Hindu Succession Act, 1956, would
apply and after Act 39/2005, and t he learned counsel for the appellant
has relying on the judgment of the Hon'ble Supreme Court in Vineeta
Sharma v. Rakesh Sharma reported in 2020-9-SCC-1 , would state that
the plaintiff would certainly be entitled for a share. He would however
bring to my notice that the stand of the appellant / first defendant was
definte and specific that his father died prior to 1956, that is in 1954. He
would however fairly state that the first defendant in his pleadings has not
set out the exact date of death of Palaniyappa Mudhaliyar. He would also
take me through the respective versions of the plaintiff and the defendant
with regard to the date of death of Palaniyappa Mudhaliyar. He would
also contend that the death certificate that has been produced by the
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plaintiff is a forged document and has no evidenciary value. He would
further state that in a land acquisition proceedings, the death certificate of
Palaniyappa Mudhaliyar has been filed by the first defendant, which
evidences the fact that Palaniyappa Mudhaliyar died on 07.01.1954 itself
and in such circumstances, the Hindu Succession Act 1956 will not apply
to enable the plaintiff to seek partition. He would also state that the
plaintiff has conveniently contended that even the schedule B property is
a self acquired property of Palaniyappa Mudhaliyar. However, the
plaintiff has not been able to demonstrate as to how Palaniyappa
Mudhaliyar was possessed of funds to acquire schedule B property. He
would further state that B schedule property was also ancestral in nature,
having been inherited by Palaniyappa Mudhaliyar, from his father Pongali
Mudhaliyar.
14.2. Referring to sale deeds (Ex.A3 & Ex.B1) dated 02.07.1933
executed by one Valliyammal in favour of Palaniyappa Mudhaliyar, he
would state that it was only a reconveyance, based on an agreement dated
18.07.1932 and not in the strict sense a sale deed. Referring to sale deed
pertaining to schedule B properties dated 24.06.1932 (Ex.B2).
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Mr.Anirudh Krishnan, learned counsel would state that these properties
are only ancestral properties of Palaniyappa Mudhaliyar and the first
defendant has also mutated tax receipts and records in his name.
14.3. Mr.Anirudh Krishnan , learned counsel would bring to my
notice that pending the suit, the first defendant alienated few of the
subject properties to third parties and even such of the subsequent buyers
have been impleaded in the present appeals, vide order dated 16.12.2019,
CMP.No.26 of 2012.
14.4. The plaintiff died on 15.04.2015 and the appeal was
dismissed as abated on 16.12.2019. Subsequently, the plaintiff's son filed
I.A.No.1 of 2022 for passing of final decree and I.A.No.4 of 2022 for
amending the preliminary decree, in line with the judgment of the Hon'ble
Supreme Court in Vineeta Sharma's case. I.A.No.4 of 2022 was allowed
by the trial Court and the preliminary decree was amended by order dated
10.07.2023, which according to the learned counsel, is the appeal filed by
the third party in A.S.No.819 of 2023. It is the contention of the learned
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counsel that properties in A schedule properties are admittedly ancestral
properties and if it is held that Palaniyappa Mudhaliyar died in 1954,
then, A schedule property would devolve on the first defendant alone and
the plaintiff would not be entitled to stake a claim. However, if this Court
come to the conclusion and concurs with the trial Court, that Palaniyappa
Mudhaliyar died in 1957, then, the Hindu Succession Act would squarely
apply and by birth the plaintiff would also become a co-parcener and be
entitled to on share equal along with the first defendant, in view of Act
39/2005.
14.5. As regards Schedule B properties, the learned counsel would
state that if schedule B properties are self acquired properties of
Palaniyappa Mudhaliyar, then Section 8 of the Hindu Succession Act,
would apply and devolution would be in terms of Section 8 of the Hindu
Succession Act. However, if they are also held to be an ancestral
property, then the same arguments that would apply to Schedule A would
also apply to Schedule B as well. Mr.Aniruth Krishnan, in support of his
submission relied on the decision of the Hon'ble Supreme Court in
Vineeta Sharma v. Rakesh Sharma, reported in 2020-9-SCC-1.
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15. Argument of learned counsel for appellant in A.S.No.819 of 2023
15.1. Mr.C.Deivasigamani, l earned counsel appearing for the
appellant in A.S.No.819 of 2023 would state that the appellant in the said
appeal is admittedly not a party before the trial Court in the original suit
proceedings and he was impleaded pursuant to an application filed in the
present appeal in A.S.No.434 of 2002, besides also being arrayed as
respondent in the final decree application as well as the application to
pass the supplementary preliminary decree. He has challenges the
decision of the trial Court, granting a supplementary decree in favour of
the plaintiff. The learned counsel, Mr.C.Deivasigamani, would state that
when the appellant has not been given any opportunity all along, it is just
fair and proper and also in line with the principles of natural justice that
he is given an audience to canvass his case. He would further state that
the appellant though having purchased the property pending the suit, he
ought to have been impleaded before the trial Court itself, especially,
when the plaintiff is the only sister of the plaintiff, who is well aware of
the sale of the properties in favour of the appellant. Mr.C.Deivasigamani,
learned counsel for the appellant would also state that even before the
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trial Court an application for interim injunction not to alienate the
property had been taken out by the plaintiff and even though an interim
injunction was initially granted in favour of the plaintiff', subsequently,
the injunction application was dismissed and the said order had become
final. It is therefore the submission of Mr.C.Deivasigamani, that it is not
open to the respondent to contend that the appellant is a transferee
pendente lite and he cannot, as a matter of right, seek audience to canvass
his case before this Court. He would further state that the first defendant
was the absolute owner of the B schedule property and the proceedings of
the Special Tahsildar have also become final and the land acquisition
compensation has been paid only to the first defendant and the same has
also become final and hence, the plaintiff cannot contend that the
schedule B properties are self acquired properties of Palaniyappa
Mudhaliyar.
15.2. The 25
th
respondent / appellant in A.S.No.819 of 2023 has
filed an application Order 41 Rule 27 CPC to receive additional
document to establish the date of death of Palaniyappa Mudhaliyar,
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15.3. As regards the death of Palaniyappa Mudhaliyar, learned
Counsel for the appellant, Mr.C.Deivasigamani, would state that in the
appeal in A.S.No.434 of 2002, the appellant in A.S.No.819 of 2023, has
taken out an application to receive additional documents. In this regard,
he would take me through the death certificate filed by the first defendant
/ appellant in A.S.No.434 of 2002 to evidence the death of Palaniyappa
Mudhaliyar, to be 07.01.1954, which would clinchingly establish that the
plaintiff could not claim any share in the suit properties. He would
therefore state that the application should be entertained as the petitioner
was not even a party before the trial Court and hence, in the interest of
justice, the application under Order 41 Rule 27 CPC has to be necessarily
allowed. He would further state that the plaintiff has also wilfully
suppressed the land acquisition proceedings, where compensation has
been paid to the first defendant alone. As the land acquisition proceedings
usually prolong for years together and do not get concluded in a day or
two, he would therefore state that the decree itself is nullity the plaintiff
having suppressed material facts which certainly would have been within
her knowledge.
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15.4. The learned counsel would rely on the decision of the Hon'ble
Supreme Court in S.P .Chengalvaraya Naidu (Dead) v. Jagannath
(Dead) by Lrs. and others reported in 1994-1-SCC-1. The learned
counsel would therefore state that when there are two probable dates of
death of Palaniyappa Mudhaliyar, and proper enquiry has not been done
in this regard, he would pray for the matter be remitted to the trial Court
to give opportunities to both the parties to establish the correct the date of
death of Palaniyappa Mudhaliyar, which alone would facilitate a correct
decision to be arrived at in the suit for partition and consequently, in the
present appeals.
16.Arguments of learned Senior Counsel for respondents 24 to
26 in A.S.No.434 of 2002 and respondents 22 to 24 in A.S.No.819 of
2023:
16.1. Per contra, Mr.V .Radhakrishnan, learned Senior Counsel
appearing for the plaintiff's legal representatives, would state that the
plaintiff having come to Court with a definite case that her father
Palaniyappa Mudhaliyar, died on 25.11.1957, vide exhibits Ex.A1 and
Ex.A2, has clinchingly established the date of death of Palaniyappa
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Mudhaliyar. The learned Senior Counsel would state that public
documents have been brought to the notice of the Court in support of the
plaintiff's case and the trial Court has also relied on the said public
documents to decide the contentious issues in the suit. The learned Senior
Counsel would state that in the absence of any evidence on the side of the
appellant, namely, first defendant to establish the contention that
Palaniyappa Mudhaliyar, died on 07.01.1954, the trial Court cannot be
found fault with for decreeing the suit, based on the available and
acceptable documentary evidence.
16.2. As regards the appeal preferred by the third party,
Mr.V . Radhakrishnan, learned Senior Counsel, would invite my attention
to the order passed by this Court in CMP.Nos.1620 of 2024 dated
14.08.2024 in and whereby an application filed by the appellant in
A.S.No.819 of 2023, seeking to substitute himself in the place of the
appellant, A.S.No.434 of 2002 invoking order 23 Rule 1A CPC came to
be dismissed. The learned Senior Counsel would take me through the
observations of this Court, while ultimately dismissing the transpose
application. It is therefore the submission of the learned Senior Counsel
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that having lost in an attempt to get transposed as the second appellant in
A.S.No.434 of 2002, which is the appeal challenging the preliminary
decree, it is not open to the appellant in A.S.No.819 of 2023 to even seek
an audience before this Court. He would further state that the appellant in
A.S.No.819 of 2023 is only a transferee that too pendente lite and he
cannot claim an independent right to challenge the preliminary decree or
the supplementary preliminary decree passed in I.A. No.4 of 2022, being
a total stranger to the appeal and claiming right only as a purchaser that
too in respect of some items of the property alone.
16.3. As regards Schedule B property, Mr. Radhakrishnan, learned
Senior Counsel would state that Palaniyappa Mudhaliyar, had sold the
property in 1932 and he has re-purchased the same property in 1933 from
Valliyammal. Taking me through the contents of the various documents,
Mr. Radhakrishnan, learned Senior Counsel, would state that there is no
evidence that the property was repurchased from and out of any ancestral
nucleus and in such circumstances, the presumption to be drawn is that
the property is a self acquired property of Palaniyappa Mudhaliyar, and
was not ancestral in nature, as contended by the appellants in both the
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appeals. As regards the orders passed by this Court, dated 14.08.2024, in
CMP.No.1620 of 2024, he would submit that the said order become final
and the appellant in A.S.No.819 of 2023 did not challenge the same
before the Hon'ble Supreme Court and further, only in 1994, that too after
filing of the suit, the appellant in A.S.No.819 of 2023 has even purchased
the property and therefore, in a suit for partition amongst the family
members, the role of the appellant in A.S.No.819 of 2023 is very narrow
and it is not open to the petitioner / appellant to take out an application
under Order 41 Rule 2 C.P.C.
16.4. In support of his submission, the learned Senior Counsel
would rely on the decisions of the Hon'ble Supreme Court in Ravinder
Singh Gorkhi v. State of U.P . reported in 2006-5-SCC-584 and CIDCO
v. Vasudha Gorakhnath Mandevlekar reported in 2009-7-SCC-283.
17. I have carefully considered the submissions advanced by the
learned counsel for the parties.
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18.The following points arise for consideration:
I. Whether the respondent No.19/ appellant in A.S.No.819 of 2023
is entitled to an order for receipt of additional documents?
II. Whether Palaniyappa Mudhaliyar died prior to the coming into
force of Hindu Succession Act, 1956 or after?
III. Whether schedule B properties are self acquired properties of
Palaniyappa Mudhaliyar, or ancestral properties?
19.Point No.I :
19.1. The appellant in A.S.No.819 of 2023 has taken out an
application in A.S.No.434 of 2002 for receipt of additional evidence,
invoking Order 41 Rule 27 CPC. It is contended that the first defendant,
the vendor of the petitioner, has contested the partition suit and though his
vendor also prosecuted the appeal in A.S.No.819 of 2023, the appeal was
dismissed as abated and subsequently, the petitioner has filed
CMP.No.384 of 2010 and C.M.P.No.26 of 2012 pursuant to which, he has
been arrayed as 19
th
respondent in A.S.No.434 of 2002.
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19.2. It is the premodial submission of Mr. C.Deivasigamani, that
when the petitioner is not a party to the suit admittedly, he should be
given an opportunity to file the documents to rely on, as the documents
which are now sought to be produced, would not only establish the
correct date of death of Palaniyappa Mudhaliyar, that is, on 07.01.1954,
but also the factum of the properties being the absolute properties of the
first defendant from whom the petitioner has purchased some of the
items. The application is resisted by the contesting respondents.
19.3. As a purchaser from the first defendant, the petitioner, at best
can step into shoes of his vendor. In this context, Order 41 Rule 27 CPC
has to be interpreted and applied to the facts of the present case. The
vendor of the petitioner took a definite stand by way of written statement
in the suit that his father did not die on 27.11.1957, but he died only on
07.01.1954. The plaintiff filed public records to evidence that
Palaniyappa Mudhaliyar, died 07.01.1954. Despite being a party to the
land acquisition proceedings and having filed the death certificate in the
said proceedings, the petitioner's vendor did not choose it necessary to
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file the said death certificate before the trial Court. The first defendant
was conscious of the fact that the date of death of his father, Palaniyappa
Mudhaliyar, would affect to the result of the suit. In such circumstances,
when the petitioner's vendor was in possession of documentary evidence
to establish the date of death of Palaniyappa Mudhaliyar, and did not
choose to produce the document during trial, I am afraid his purchaser
cannot now seek to produce it to reflect the date of death of Palaniyappa
Mudhaliyar as 07.01.1954 by seeking to produce additional evidence
invoking Order 41 Rule 27 CPC.
19.4. In a pending first appeal, additional evidence cannot be
permitted in a liberal manner. Conditions set out in Rule 27 CPC have to
be strictly complied with. Though the argument of Mr.C.Deivasigamani
that the petitioner is not a party to the suit and therefore, there was no
occasion for him to produce the documents appears to be attracted the
first blush, considering the fact that the petitioner is a third party to the
family and his vendor himself lost his right to produce any additional
documents by not making any attempts, during the trial of the suit to file
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the same, having stepped into the shoes of the defendant, the petitioner is
not entitled to independently canvass that since he was not a party to the
suit, he should be permitted to rely on the additional documents that are
pertaining only to the first defendant. In such view of the matter, I do not
see any merit in application to adduce evidence. Hence, the Civil
Miscellaneous Petition is dismissed.
20. Point No.II :
22.1. This brings us to the date of death of Palaniyappa
Mudhaliyar. In the plaint, the plaintiff has asserted that the father
Palaniyappa Mudhaliyar died on 27.11 .1957, after the coming into force
of the Hindu Succession Act 1956. In order to establish the plaint
averments, the plaintiff also exhibited Ex.A1 and Ex.A2, which are public
documents, viz., death certificate and legal heir certificate. Both these
documents reflect the death of Palaniyappa Mudhaliyar as 27.11.1957.
Though the defendants vaguely contended that the father Palaniyappa
Mudhaliyar died in 1954, there was no specific date provided by the
defendants in the written statement. No attempt has been made by the
first defendant to establish the correct date of death of Palaniyappa
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Mudhaliyar to be only in 1954 and not after coming into force of the
Hindu Succession Act. In such circumstances, the trial Court had rightly
gone by Ex.A1 and Ex.A2 in coming to the conclusion that Palaniyappa
Mudhaliyar died only on 27.11.1957 and consequently, the provision of
Hindu Succession Act, 1956 would apply.
22.2. Therefore, insofar as Schedule A property, initially a
preliminary decree in favour of the plaintiff was passed and an amended
preliminary decree was passed in I.A.No.4 of 2022 in line with the
provisions of the Act, amended by Act 39 of 2005 and the ratio in
Vineeta Sharma's case. In such circumstances, I do not find any merit in
the contention raised by the first defendant and the third party purchaser
from the first defendant.
21. Point No.III:
21.1. Coming to schedule B property, it is the case of the plaintiff
that schedule B properties were self acquired properties of Palaniyappa
Mudhaliyar. Admittedly, these properties have been purchased in the
name of Palaniyappa Mudhaliyar in the year 1933 from one Valliammal It
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is seen that in 1932 Palaniyappa Mudhaliyar had alienated the schedule B
properties and the same had been re-purchased by him in the year 1933.
In such circumstances, I do not see how the properties which were
standing in the name of Palaniyappa Mudhaliyar, having been gone out
of the family and again purchased by Palaniyappa Mudhaliyar in 1933
can be treated as ancestral property. The property, once having gone out
of the family, loose the character of being an ancestral property or joint
property, especially, when it is brought back into the family by purchase
made by one of the family members. Therefore, the burden was on the
first defendant to establish that the purchase by father of Palaniyappa
Mudhaliyar in 1933 from Valliyammal was only out of surplus ancestral
funds available with the joint family. There is no evidence let in by the
first defendant to establish such contentions. Therefore, Schedule B
property is only a self acquired property of Palaniyappa Mudhaliyar and
succession will have to necessarily go by Section 8 of the Hindu
Succession Act, 1956, and all the children of Palaniyappa Mudhaliyar
would become entitled to 1/4 share in his property.
21.2. Though Mr.C.Deivasigamni, learned counsel relied on
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S.P .Chengalvaray Naidu's case for the proposition that when a party is
guilty of fraud, who secured an unfair advantage over another, by
suppressing material facts in filing the suit for partition then, it
tantamounts to playing fraud on the Court and the decree obtained by the
plaintiff by fraud is a nullity in the eye of law, I am unable to see how
this decision can be applied to the facts of the present case. That was a
case where the plaintiff himself had sold the properties and thereafter,
suppressing the sale, filed a suit for partition as if he was entitled to share
in the property. Material particulars within the acknowledge of the
plaintiff were suppressed in order to make unlawful gain and in such
circumstances, this Court held the plaintiff's act to be fraud on Court and
the decree obtained by suppression to be a nullity. Here, the allegation
made by the appellant in merely that the plaintiff was aware of the land
acquisition proceedings, where compensation has been paid to the first
defendant, her brother and therefore, the suit for partition has been filed
by suppressing the said proceedings and it would amount to fraud.
21.3. Admittedly, the plaintiff was not even a party to the land
acquisition proceedings, which was only between the authority and the
first defendant. Therefore, the plaintiff cannot be held to be guilty of any
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suppression. As a daughter, the plaintiff filed a suit for partition for
declaring her share in the property. In the land acquisition proceedings,
the first defendant set up a case that he is the sole owner since the
property is an ancestral property and he was given compensation for the
lands acquired. Therefore, I do not see any fraud committed by the
plaintiff in order to render the decree a nullity.
21.4. In Ravinder Singh Gorkhi's case, the Hon'ble Supreme
Court held that entries in public records / Registers are relevant and
admissible under Section 35 of Indian Evidence Act. Here, Ex.A1 and
Ex.A2 are admittedly public records and the same had rightly relied on by
the trial Court and in the absence of any contra evidence, on the side of
the first defendant, the findings of the trial Court cannot be said to be
improper.
21.5. In CIDCO v. Vasudha Gorakhnath Mandevlekar 's case the
Hon'ble Supreme Court held t hat t he Deaths and Births Register
maintained by the statutory authorities raises a presumption of
correctness. Such entries made in the statutory registers are admissible in
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evidence in terms of Section 35 of the Indian Evidence Act. It would
prevail over an entry made in the school register, particularly, in absence
of any proof that same was recorded at the instance of the guardian of the
respondent. In the present case, contending that the father Palaniyappa
Mudhaliyar did not die in 1957, the first defendant has not been able to
substantiate the date of death of his father to be prior to coming into force
of the 1956 Act. In such circumstances, these two decisions would
certainly apply in all fours to justify the findings of the trial Court.
22. For all the above reasons, I do not see any error committed by
the trial Court, in initially granted a preliminary decree and thereafter in
passing a supplementary decree in I.A.No.4 of 2022 warranting
interference in these appeals.
23. Before parting, I would like to place on record the assistance
rendered by Mr.Anirudh Krishnan, learned counsel, appointed by Legal
Aid Services Authority. Though the first defendant had filed the appeal
challenging the decree for partition, he subsequently abandoned the
appeal suit and despite there being no assistance from the appellant,
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Mr.Anirudh Krishnan, learned counsel has taken pains to place all
materials, oral and documentary evidence, for the purpose of better
appreciation and to effectively adjudicate the points that arose for
consideration.
24.Result:
Both the Appeal Suits are dismissed. C.M.P.No.15757 of 2024 is
also dismissed. However, there shall be no order as to costs.
C.M.P.Nos.29032 of 2023 and 7821 of 2024 are closed.
10.04.2026
Neutral Citation Case : Yes / No
Speaking / Non-speaking order
Index : Yes/No
LS
To
1.The III Additional Sub Judge,
Coimbatore.
2.The Sub Court,
Mettypalayam.
3.The Section Officer,
VR Section,
Madras High Court,
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Chennai.
P.B.BALAJI.J,
LS
Pre-delivery Judgments made in
A.S.Nos.434 of 2002 & 819 of 2023
and
CMP(MD)Nos.15727 & 7821 of 2024 & 29032 of 2023
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10.04.2026
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