(Prayer: This Appeal Suit is filed under Section 96 of the Civil Procedure Code, to set-aside the judgement and decree passed in O.S.No.3 of 2013 on the file of the Additional District Judge, Sivagangai, dated 30.11.2021 and to dismiss the suit by allowing this Appeal.)

1. This Appeal Suit is directed against the judgment and decree dated 30.11.2021 passed in O.S.No.3 of 2013 on the file of the learned Additional District Judge, Sivagangai.

2. The appellant is the 1st defendant in O.S.No.3 of 2013 on the file of the learned Additional District Judge, Sivagangai. The deceased Packiyam and the respondents 1 and 2 are plaintiffs 2 and 3. The respondents 3, 4, one Arockiamary and respondents 5 to 9 are defendants 2 to 9 in that suit. The respondents 1 and 2/plaintiffs filed the suit for partition seeking 5/9 shares in the suit properties and also for declaration that the sale deeds dated 29.08.2001, 02.04.2007, 30.07.2009, 30.07.2009 and 17.09.2009 executed by the 1st defendant in favour of the defendants 5 to 9 will not bind the plaintiffs.

3. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

4. The brief facts are as below:

                     (a) The case of the plaintiffs (Respondents 1 and 2 herein and one Packiyam ) :-

                     The 1st plaintiff, Packiyam, is the wife of one Vedhamuthu Udaiyar. The plaintiffs 2 and 3 and the defendants 1 to 4 are their children. The said Vedhamuthu Udaiyar purchased the suit properties by virtue of sale deeds dated 12.08.1969 and 22.09.1971. Though plaintiffs 2 and 3 were married, they have been in joint enjoyment of the suit properties. Vedhamuthu Udaiyar died on 26.07.1996. The 1st defendant sold certain portions to the defendants 5 to 9 without the knowledge of the plaintiffs and defendants 2 to 4, by various sale deeds dated 29.08.2001, 30.07.2009, 30.07.2009, 02.04.2007, and 17.09.2009, respectively. The above sales came to the knowledge of the 2nd plaintiff in August 2011, that the 1st defendant made those sales deeds after obtaining patta. So, the plaintiffs filed an appeal to cancel the patta before the revenue authority. The said sale deeds will not bind the plaintiffs. Since the 1st defendant tried to construct building, the plaintiffs issued a legal notice to the 1st defendant and President of Velankulam Village, and the Village Administrative Officer. The plaintiffs and the defendants 1 to 4 are equally entitled to the suit properties. The 4th defendant became a nun, however she is also entitled to 1/9 share. Hence, the plaintiffs filed the suit seeking partition and a declaration that the sale deeds made by the 1st defendant will not bind the plaintiffs.

                     (b) The case of the 1 st defendant :-

                     The suit properties are absolute properties of this 1st defendant. The 1st defendant’s father purchased the suit properties by registered sale deeds in the year 1969 and 1971. He executed a settlement deed dated 03.07.1998 in the nature of a partition deed and divided the suit properties into three portions for his sons, the defendants 1 to 3. The defendants 2 and 3 sold their respective shares to the 1st defendant under a sale deed dated 10.03.1991. The plaintiffs well knew about the said settlement deed and release deeds. The plaintiffs are ousted from the suit properties, and they are not in physical or deemed possession. So, the reliefs sought in respect of sale deeds executed by the 1st defendant in favour of defendants 5 to 9 are not at all maintainable. The plaintiffs ought to have challenged the sale deed and family partition within three years, but after a lapse of 25 years the suit is filed, so the suit is barred by limitation. Therefore, the suit is liable to be dismissed.

                     (c) The case of the defendants 2 and 3:-

                     The relationship among the parties and the purchase of the suit properties by Vedhamuthu Udaiyar are admitted. The alleged partition deed dated 03.07.1988 is not acceptable as all the legal heirs of Vedhamuthu are not parties to that deed. The alleged sale deed dated 10.03.1991 is an unregistered one and the same was forcibly obtained from these defendants by the 1st defendant. Hence, the said sale deed dated 10.03.1991 is invalid. The 1st defendant did not take care of his parents and sisters. The defendants 2 and 3 are entitled to a share in the suit properties.

                     (d) The case of the 4 th defendant :-

                     This defendant became a nun. She relinquished her share in the suit properties.

5. The trial Court framed the following issues upon the pleadings of both parties.

                     (1) Whether the sale deed dated 29.08.2001 in favour of the 5th defendant is valid?

                     (2) Whether the sale deed dated 02.07.2007 in favour of the 6th defendant is valid?

                     (3) Whether the sale deed dated 30.07.2009 in favour of the 7th defendant is valid?

                     (4)Whether the sale deed dated 30.07.2009 in favour of the 8th defendant is true and valid?

                     (5)Whether the sale deed dated 17.09.2009 in favour of the 9th defendant is true and valid?

                     (6)Whether the 1st defendant is the exclusive owner of the property?

                     (7)Whether the plaintiffs are entitled for claiming any share in the suit properties?

                     (8)Whether the defendant Nos.5 to 9 are bona fide purchasers for value?

                     (9)Whether the suit is hopelessly barred by limitation?

                     (10)Whether the Court fee paid is correct?

                     (11)Whether the plaintiffs are entitled to 5/9th share in the suit properties?

                     (12)To what other reliefs the plaintiffs are entitled?

6. During trial, on the plaintiffs' side, the 2nd plaintiff was examined as P.W.1 and Ex.A.1 to Ex.A.23 were marked. On the defendants' side, defendants 1 and 3 were examined as D.W.1 & D.W.2 and Ex.B.1 to Ex.B.16 were marked.

7. On appreciation of the evidence and the submissions made on behalf of the parties, the trial Court has held that the plaintiffs are entitled to share and passed a preliminary decree allotting 5/15 share to the 1st plaintiff and 4/15 share to the 2nd and 3rd plaintiffs and 4/15 shares to the defendants 2 and 3 by its judgment and decree dated 30.11.2021.

8. Aggrieved by the judgment and decree of the trial Court dated 30.11.2021, the 1st defendant has preferred this appeal.

9. The learned counsel for the appellant/1st defendant submitted that there is no dispute regarding the relationship between the parties. The 1st plaintiff, who is the mother of plaintiffs 2 & 3 and defendants 1 to 4, died on 12.11.2021 and the same was not brought to the notice of the court, but the trial Court heard arguments of both on 29.11.2021 and delivered judgment on 30.11.2021. However, the trial Court has granted a preliminary decree allotting 5/15 share to the deceased 1st plaintiff, which is not sustainable in law.

10. The learned counsel for the appellant/1st defendant further submitted that the 1st plaintiff was not in a good state of mind, which is admitted by the P.W.1 in her cross examination. The defendants 2 and 3 state that the 1st plaintiff executed Ex.B.8 settlement deed dated 04.07.2007 in respect of 10 items. In fact, those 10 items do not belong to the father. Subsequently, these items were included as items 5 to 16 of the suit properties. These facts are suppressed in the plaint. At the inducement of defendants 2 and 3, the plaintiffs 2 and 3 have filed this vexatious suit.

11. The learned counsel for the appellant/1st defendant further submitted that the 1st defendant is the absolute owner of the suit properties by virtue of Ex.B.16 settlement deed dated 06.07.1988 executed by the father in terms of partition and also by virtue of Ex.B.15 sale deed, dated 10.03.1991 executed by the defendants 2 and 3. Though Ex.B.15 is an unregistered one, the 3rd defendant as D.W.2 admitted the Ex.B.15 sale deed. Later, the 1st defendant’s name has been mutated in the revenue records, and the 1st defendant obtained patta in respect of items 1 to 4 in favour of him. The 1st defendant marked the revenue documents and patta as Ex.B.6 to Ex.B.14. The defendants 2 and 3 and the plaintiffs 2 and 3 had knowledge of the above transactions, and P.W.2 admitted the same in her evidence. The plaintiffs admitted that the patta stood in the name of the 1st defendant. The 1st defendant has been in continuous possession from 1995. The parent original documents of the suit properties in the name of father Vedhamuthu Udaiyar are in the hands of the 1st defendant. The 1st defendant sold some suit properties in favour of defendants 5 to 9 by way of Ex.A.3 to Ex.A.7 sale deeds on 29.08.2001, 02.04.2007, 30.07.2009, 30.07.2009 and 17.09.2009. The trial Court has concluded that the patta is not conclusive for title. But the 1st defendant has original documents Ex.B.1 and Ex.B.2 showing title. The 1st defendant has proved hostile animus, long and uninterrupted possession and also exercised his right of exclusive ownership. Hence, the plaintiffs 2 and 3 are ousted from partition and the 1st defendant has proved the plea of ouster by relevant documents. The trial Court has not considered these facts.

12. The learned counsel for appellant/1st defendant further argued that the 1st defendant sold some portions of suit properties to the defendants 5 to 9 on 29.08.2001, 02.04.2007, 30.07.2009, 30.07.2009 and 17.09.2009. The 2nd plaintiff as P.W.1 has also admitted that she knew of those sales



suit in 2013. The plaintiffs had to file the suit within three years from date of their knowledge of the sale. But the trial Court has observed that the plaintiffs are not parties to the sale and so they have not sought to cancel the sale or set aside under Article 59. This observation of the trial Court is wrong. When the plaintiffs admitted about the knowledge of existence of sale, they can seek relief within three years that the sale will not bind them, unfortunately the plaintiffs filed the suit after lapse of 10 years. Moreover, the defendants 2 and 3 have copies of the sale deeds as per their evidence. So, they are estopped from questioning the sale. Further, their father signed Ex.B.16 settlement/partition agreement. Hence, the suit is hopelessly barred by limitation. The trial Court has not appreciated the evidence adduced by the 1st defendant and has not properly considered the facts of the case. So, the trial Court ought to have held that the suit is barred by limitation, but failed to do so.

13. The learned counsel for the appellant/1st defendant lastly submitted that the defendants 5 to 9 are in possession of the suit properties as per documents. The plaintiffs have paid Court-fee as if they are in joint possession. The plaintiffs are not in joint possession of the same. The Court fee has to be calculated under Section 37(1) of the Tamil Nadu Court Fees and Suits Valuation Act. This fact has also not been properly considered by the trial Court. The trial Court has framed 12 issues, but has not discussed all the issues. In Ex.B8, the settlement deed executed by the 1st plaintiff admitted the 1st defendant’s property as shown in the boundary. The suit items 1 to 3 are the exclusive property of the 1st defendant. The suit items 4, 5 and 16 do not belong to the father. In respect of items 6 to 15 the mother/1st plaintiff executed Ex.B.8 settlement deed in favour of the defendants 2 and 3 and the same is available for partition. The finding of the trial Court is not sustainable in law, and the judgment and decree of the trial Court have to be set aside by allowing this appeal.

14. In support of his arguments, the learned counsel for the appellant/1st defendant has relied on the following rulings:

                     (1) AIR 2016 Supreme Court 1134 in the case of Nagabhushanammal (D) by LRs /v/ C.Chandikeswaralingam, it is held in paragraph Nos.20 to 23 as follows:

                     “20. The other main defense in the suit is ouster and limitation. Ouster is a weak defense in a suit for partition of family property and it is strong if the defendant is able to establish consistent and open assertion of denial of title, long and uninterrupted possession and exercise of right of exclusive ownership openly and to the knowledge of the other co-owner.

                     21. This court in Syed Shah Ghulam Ghouse Mohiuddin and others v. Syed Shah Ahmed Mohiuddin Kamisul Quadri and Ors. held that possession of one co- owner is presumed to be on behalf of all co-owners unless it is established that the possession of the co-owner is in denial of title of co-owners and the possession is in hostility to co-owners by exclusion of them. It was further held that there has to be open denial of title to the parties who are entitled to it by excluding and ousting them.

                     22. A three Judge Bench of this court in P.Lakshmi Reddy v. R.Lakshmi Reddy, while examining the necessary conditions for applicability of doctrine of ouster to the shares of co-owners, held as follows:

                     “4.Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. (See Secretary of State for India v. Debendra Lal Khan [(1933) LR 61 IA 78]). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. (See Radhamoni Debi v Collector of Khulna [(1900) LR 27 IA 136,140]). But it is well-settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. (See Cores v. Appuhamy [(1912) AC 230)]. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. This does not necessarily mean that there must be an express demand by one and denial by the other.”

                     23. This Court in Vidya Devi v. Prem Prakash held that:

                     “28.‘Ouster’ does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.”

                     (2) AIR 1976 Supreme Court 807 in the case of Kale and Ors. .v. Dy.Director of Consolidation, wherein it is held in paragraph Nos.42 and 44 as follows:

                     42. Finally in a recent decision of this Court in S.Shanmugam Pillai's case (AIR 1972 SC 2069) (supra) after an exhaustive consideration of the authorities on the subject, it was observed as follows:

                     "Equitable principles such as estoppel, election, family settlement, etc. are not mere technical rules of evidence. They have an important purpose to serve in the administration of justice. The ultimate aim of the law is to secure justice. In the recent times in order to render justice between the parties, courts have been liberally relying on those principles. We would hesitate to narrow down their scope.

                     In these circumstances there can be no doubt that even if the family settlement was not registered it would operate as a complete estoppel against respondents 4 & 5. Respondent No. 1 as also the High Court, therefore, committed substantial error of law in not giving effect to the doctrine of estoppel as spelt out by this Court in so many cases.

                     44. In view of our finding that the family settlement did not contravene any provision of the law but was a legally valid and binding settlement in accordance with the law, the view of Respondent No.1 that it was against the provisions of the law was clearly wrong on a point of law and could not be sustained. Similarly the view of the High Court that the compromise required registration was also wrong in view of the clear fact that the mutation petition filed before the Assistant Commissioner did not embody the terms of the family arrangement but was merely in the nature of a memorandum meant for the information of the Court. The High Court further erred in law in not giving effect to the doctrine of estoppel which is always applied whenever any party to the valid family settlement tries to assail it. The High Court further erred in not considering the fact that even if the family arrangement was not registered it could be used for a collateral purpose, namely, for the purpose of showing the nature and character of possession of the parties in pursuance of the family settlement and also for the purpose of applying the rule of estoppel which flowed from the conduct of the parties who having taken benefit under the settlement keep their mouths shut for full seven years and later try to resile from the settlement. In Shyam Sunder v. Siya Ram, AIR 1973 All 382, 389 it was clearly held by the Allahabad High Court that the compromise could have been taken into consideration as a piece of evidence even if it was not registered or for that matter as an evidence of an antecedent title.”

                     (3) AIR 2017 Supreme Court 2419 in the case of Gurnam Singh (D) Thr. Lrs and others .v. Gurbachan Kaur (D) by Lrs. and Others, in which it is held in paragraph No.22 as follows:

                     22. It is a fundamental principle of law laid down by this Court in Kiran Singh’s case (AIR 1954 SC 340) (supra) that a decree passed by the Court, if it is a nullity, its validity can be questioned in any proceeding including in execution proceedings or even in collateral proceedings whenever such decree is sought to be enforced by the decree holder. The reason is that the defect of this nature affects the very authority of the Court in passing such decree and goes to the root of the case. This principle, in our considered opinion, squarely applies to this case because it is a settled principle of law that the decree passed by a Court for or against a dead person is a “nullity”’.

15. Per contra, the learned counsel for the respondents 1 and 2/plaintiffs 2 and 3 has argued that the 1st plaintiff died on 12.11.2021. In this case, both sides' evidence was closed and the suit was ripe for argument on 05.10.2021. As per provisions under Order 22 Rule 6 of CPC, between conclusion of trial and pronouncement of judgment, no abatement can be effected for the reason of death. Originally, both parties completed arguments on 22.11.2021 and the matter was posted for judgment on 29.11.2021, on which date again both sides argued the matter and the trial Court delivered judgment on 30.11.2021. Moreover, the suit is filed for partition and all the rival parties are relatives, that too legal heirs of the 1st plaintiff. So, nothing will happen on the death of the 1st plaintiff. However, the share allotted to the 1st plaintiff can be equally distributed to the other LRs at the time of final decree.

16. The learned counsel for the respondents 1 & 2/plaintiffs 2 & 3 further submitted that the appellant/1st defendant contended that the 1st plaintiff was not in a sound state of mind while executing Ex.B.8 settlement deed in favour of defendants 2 and 3. The plaintiffs are co-sharers and the suit is filed by mother and two daughters against brothers and one sister, who is a nun and who relinquished her right. The 1st plaintiff executed Ex.B.8 settlement deed in favour of defendants 2 and 3 and the 1st defendant has accepted the genuineness of Ex.B.8 and hence, he cannot question the status of the 1st plaintiff and it could be taken as if she was in a sound state of mind. The 1st plaintiff/mother is not competent to execute Ex.B.8 as she has no separate properties in her name and her mother has no locus standi before partitioning the properties of the father. So, Ex.B.8 is also null and void, and Ex.B.8 has no legal sanctity. Hence, the properties mentioned in Ex.B.8 are also added as suit properties in this suit.

17. The learned counsel for the plaintiffs has further argued that the appellant/1st defendant mainly traces his entire right over the suit properties based on Ex.B.16, said to be a partition deed. Ex.B.16 is an unregistered one. The 1st defendant stated that Ex.B.16 was executed by his father in terms of partitioning properties to his sons by way of settlement. But the father has not signed it. Moreover, all legal heirs were not at all added as parties. The 1st defendant has not examined any witness to the said settlement deed. So, the 1st defendant has not proved Ex.B.16 as a valid one, if so, he cannot have the exclusive right over the suit properties and as such he cannot execute any sale deed in respect of properties in which other heirs are having right. A mere patta produced by the 1st defendant will not convey title. Hence, Ex.B.16 is not a valid one. The trial Court has properly discussed the facts quoting the provisions of Sections 17 and 49 of the Indian Registration Act.

18. The learned counsel for the plaintiffs has further submitted that in a suit for partition, the plea of ouster will not attract. The possession of any one of the co-sharers is in possession of the property, that would extend to the other co-sharers also. A patta will not give title, and the other co-sharers did not give consent for issuance of patta and the co-sharers were not given notice for patta proceedings. So, the co-sharers filed an appeal against the patta. This was not specifically denied by the defendants. The alleged Ex.B.16 came to be executed among brothers/defendants 1 to 3. The 1st defendant claims that the defendants 2 and 3 sold their share to the 1st defendant. The said sale deed is an unregistered one and also the defendants 2 and 3 deposed that it was obtained under coercion by the 1st defendant. The 1st defendant, being the eldest son, had custody of parent documents Ex.A1 and Ex.A.2. The custody of documents would not give any title when other co-sharers were alive for partition.

19. The learned counsel for the plaintiffs further argued that the 1st defendant executed sale deeds between the years 2001 and 2009 to the defendants 5 to 9, claiming title under Ex.B.16. In the alleged partition under Ex.B.16, the father, mother and sisters are not parties and so it cannot be taken as a valid one. The plaintiffs obtained an encumbrance certificate for the suit properties in the year 2011 and came to knowledge of alienation by the 1st defendant in favour of the defendants 5 to 9 and so they filed the suit in the year 2013. As per the Limitation Act, a suit for declaration has to be filed within three years from the date of knowledge. The plaintiffs are not parties in those sale deeds. The suit is filed within three years from knowledge and so, the suit is not barred by limitation. The trial Court has discussed the point of ouster and limitation taking into consideration the rulings of the Hon’ble Supreme Court.

20. The learned counsel for the plaintiffs has further submitted that the plaintiffs are co-sharers of the suit properties and when a co-sharer is in possession, all co-sharers are deemed to be in possession. The Court fee paid U/s.37(2) of the Tamil Nadu Court Fees and Suit Valuation Act is correct. The 1st defendant has not raised any preliminary issue regarding payment of Court fee before the trial Court and hence now he cannot raise such question. The trial Court has correctly concluded that the Ex.B.16 settlement/partition deed is not proved by the 1st defendant and that the plaintiffs are entitled to partition. The finding of the trial Court need not be interfered with and hence, the appeal may be dismissed.

21. In support of their contention, the learned counsel relied on the following rulings of the Hon’ble Supreme Court and the High Courts.

                     (1) (1989) 3 Supreme Court Cases 612 in the case of Corporation of the City of Bangalore /v/ M.Papaiah and Anr., in paragraph No.5 it is held as follows:

                     “5. .....…It is firmly established that the revenue records are not documents of title and the question of interpretation of a document not being a document of title is not a question of law…”.

                     (2) (1993) 4 Supreme Court Cases 349 in the case of Guru Amarjit Singh /v/ Rattan Chand and Anr, it is held in paragraph No.10 as follows:

                     “…Jamabandi entries at best would show of the lease convenanting to pay Rs.2 per annum as ground rent. They do not, therefore, establish any proof of payment of rent. Nor are the entries in Jamabandi proof of title. They are only statements for revenue purpose.”

                     (3) (1996) 11 Supreme Court Cases 257 in the case of State of H.P /v/ Keshav Ram and Ors, it is held in paragraph No.5 as follows:

                     “5…But, at any rate such an entry in the Revenue papers by no stretch of imagination can form the basis for declaration of title in favour of the plaintiff........”.

                     (4) 1997) 7 Supreme Court Cases 137 in the case of Balwant Singh and Anr. /v/ Daulat Singh (Dead) by LRs and Ors., it is held as follows:

                     “Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question…

                     Entries in revenue records are only for the purpose of payment of land revenue.....”.

                     (5) 1962 (1) MLJ 197 in the case of Valliammal Achi v. Velu Servai, it is held as follows:-

                     “Patta is not a document of title. Mere absence of a patta in one’s name cannot derogate from the title of that person…”.

                     (6) 1971 (1) Supreme Court Cases 597 in the case of Syed Shah Ghulam Ghouse Mohiuddin and Ors. /v/ Syed Shah Ahmed Mohiuddin Kamisul Quadri (Died) by Lrs. and Ors., it is held in paragraph No.18 as follows:

                     “18. ....On the contrary, possession by one co-owner is presumed to be the possession of all the co-owners unless it is established that the possession of the co-owner is in denial of title of co-owners and the possession is in hostility to co-owners by exclusion of them. In the presence case, there is no evidence to support this conclusion. Ouster is an unequivocal act of assertion of title. There has to be open denial of title to the parties who are entitled to it by excluding and ousting them..”.

22. The points for consideration in this appeal are:

                     1.Whether the Ex.B.16 alleged settlement deed dated 06.07.1988 is true and valid one in the eye of law?

                     2.Whether the plea of ouster against the plaintiffs is proved by the 1st defendant?

                     3.Whether the suit is barred by limitation?

                     4.Whether the decree passed by the trial Court allotting share in favour of a deceased person is not sustainable in law?

                     5.Whether the judgment and decree of the trial court are not sustainable in law and whether the appeal is to be allowed?

23. Point Nos.1 to 5:

On hearing both sides and on perusing the material records along with grounds of appeal, both sides admitted that the suit properties are self acquired properties of Vedhamuthu Udaiyar. He has three sons and three daughters through his wife Packiyam. The mother is the 1st plaintiff. Three daughters are the plaintiffs 2, 3 and 4th defendant. The three sons are the defendants 1 to 3. The plaintiffs’ case is that the said Vedhamuthu Udaiyar died intestate, so they are entitled to a 5/9 share in the suit properties as they belonged to an Indian Christian. It is their further case that without their knowledge and consent, the 1st defendant sold some portions of their father’s property to defendants 5 to 9 and so those sales would not bind them. The 1st defendant claims that his father Vedhamuthu Udaiyar executed a settlement deed dated 06.07.1988 as a partition deed dividing his properties to his three sons and that out of three sons two sons, namely defendants 2 and 3 have sold their respective shares to the 1st defendant by a sale deed dated 10.03.1991, so he is absolute owner of the suit properties. The main dispute between the parties is in respect of alleged settlement deed dated 06.07.1988 which is marked as Ex.B.16 and of alleged sale deed executed by defendants 2 and 3, which is marked as Ex.B.15 and also in respect of knowledge of the same by the plaintiffs and subsequent sales of 1st defendant. It is the further case of the appellant/1st defendant that the 1st plaintiff died on 12.11.2021, but the trial Court passed a decree against a dead person.

24. The appellant/1st defendant mainly relies upon Ex.B.16 settlement deed/partition deed and Ex.B.15 sale deed allegedly executed by the defendants 2 and 3 in favour of the 1st defendant, thereby, he claims that he is the absolute owner of the suit properties. The respondents/plaintiffs vehemently object to Ex.B.16 and Ex.B.15. From perusal of Ex.B.16 and Ex.B.15, it is clear that they are unregistered. As per the provisions of the Indian Registration Act, when an immovable property has a value more than Rs.100/- the document relating to immovable property must be registered. Of course, an unregistered document can be taken for collateral purposes, but at the same time the said unregistered document has to be proved by examining witnesses.

25. In this case, from perusal of the records, it is clear that the appellant/1st defendant has not examined any of the witnesses to the Ex.B.16. Moreover, the executor, namely Vedhamuthu Udaiyar, is not a party to that alleged settlement/partition, but it is stated that he has signed it. From the contents of Ex.B.16, it is seen that it is executed among the brothers/defendants 1 to 3 in respect of the properties of Vedhamuthu Udaiyar. When Ex.B.16 is claimed by the 1st defendant as a family partition, the other legal heirs of Vedhamuthu Udaiyar have to be shown as parties to that document, or at least reasons must be assigned for ignoring them. The document Ex.B.16 has nothing regarding the other legal heirs. Moreover, the learned counsel for the 1st & 2nd respondents/plaintiffs 2 and 3 and the 2nd defendant have rightly argued that the unregistered settlement deed is void and it cannot convey any title to the beneficiary by relying on citations of Madras High Court reported in 1999 (III) CTC 650 in the case of Guruvammal and Anr. /v/ Subbiah Naicker and Ors. and (2013) 5 MLJ 785 Viswalingam @ Mayavel /v/ Balasubramnaian). The appellant's side has not put forth any contra argument against the version of the plaintiffs. Hence, this argument of the 3rd respondent’s counsel has some force. The trial Court has considered those documents keeping in mind the provisions of Sections 49 and 17 of the Indian Registration Act and held that the appellant/1st defendant cannot claim absolute ownership in respect of properties based on Ex.B.16.

26. The findings of the trial Court are correct one. A perusal of Ex.B.16, which is said to be a settlement/partition deed, shows that the executor Vedhamuthu Udaiyar is not a party. Moreover, he had three daughters and a wife at the time of the alleged execution of Ex.B.16. They are also not shown as parties, nor is there any reason assigned for ignoring them. Ex.B.16 seems to be a partition document among three brothers, i.e., the defendants 1 and 3, while their father was alive. So Ex.B.16 is not a valid document. When Ex.B. 16 is held invalid, the execution of the alleged Ex.B.15 sale deed by the defendants 2 and 3 in favour of the 1st defendant is also invalid. Ex.B.15 is also an unregistered one. Further, the defendants 2 and 3 categorically contended that they were forced to execute Ex.B.15 by the 1st defendant. While so, it is for the 1st defendant to prove that Ex.B.15 was not obtained under coercion or force. D.W.2 clearly deposed that he was forced by the 1st defendant to execute Ex.B.15 unregistered sale deed. From the evidence adduced on behalf of the 1st defendant, it is clear that he has not proved that Ex.B.15 was not created under force.

27. The appellant/1st defendant has stated that he was issued patta in respect of suit properties and on that basis he executed subsequent sale deeds in favour of defendants 5 to 9 by virtue of Ex.A.3 to Ex.A.7. It is a well settled position of law that mere patta or mutation of name in revenue records will not give valid title as rightly argued by the learned counsel for the respondents/plaintiffs 2 and 3 relying on number of rulings (supra). It is pertinent to note here that the basic document Ex.B.16 relied on by the appellant/ 1st defendant is not a valid one. While so, a mere patta will not give any authenticated right to him. The argument that the custody of parent documents Ex.B.1 and Ex.B.2, which are sale deeds, stood in the name of father Vedhamuthu Udaiyar, at the hands of the 1st defendant will not give any presumption in his favour. Because he is the eldest son in the family and the plaintiffs being mother and sisters, and merely because sisters were given in marriage, the custody of the parent document with the 1st defendant will not be much relied upon in his favour for claiming exclusive title. It is a settled law that a person cannot transfer a better full title or property right than he actually has and that a person who has defective title over a property cannot transfer the said property in entirety under the legal phrase “Nemo dat quod non habet''. A perusal of the judgment of the trial Court shows that the 1st defendant has not proved Ex.B.16 as a valid one and hence he has no exclusive title over the suit properties. He has to prove a better title over the suit properties. The 1st defendant has not proved exclusive title over the suit properties.

28. The 1st defendant mainly takes a plea of ouster against his sisters. There is no document produced by the 1st defendant that he was given the entire property by executing any kind of document by his sisters. Simply, he says that he is in possession and enjoyment of the suit property by paying kist and taxes based on patta. The trial Court rightly observed that adverse possession cannot be established on the basis of mere mutation of name in revenue records without issuing notice to the co-owners and also that merely paying property tax could not establish that possession became adverse to other co-owners. Moreover, it is settled law that when a co-owner is in enjoyment of the property of father, it is deemed to be enjoyment of all co-owners. It is also a settled position that a co-owner is in possession of family property deems the co-owners’ possession over the same. This was rightly argued by the respondents/plaintiffs' side by relying on citation reported in 1971 (1) Supreme Court Cases 597 in the case of S.S.Ghulam Ghouse Mohiuddin /v/ Ahmed Mohiuddin Kamisul Quadri (Died) by LRs and Ors. This argument was not forcibly agitated by the appellant/1st defendant side.

29. Moreover, as per the argument of the appellant/1st defendant, to prove ouster, he has to prove his possession over the suit properties by hostile animus, long and uninterrupted possession, and also by exercising his right of exclusive ownership. Unfortunately, the appellant/1st defendant has not examined any other witness to prove his possession over the suit properties, and he has not elucidated anything from the evidence of the plaintiff's side to prove his possession under exclusive ownership. Hence, the plea of ouster was not proved by the 1st defendant. Also, the appellant/1st defendant has not raised any issue as a preliminary issue to decide regarding Court fee. The 1st defendant admitted in his evidence that the plaintiff and the defendants 2 to 4 are also co-owners of the suit property. The 1st defendant has not proved his exclusive possession beyond the statutory period by producing acceptable materials and also he has not proved the plea of ouster against the plaintiff and other sisters.

30. The learned counsel for the appellant/1st defendant has argued that the trial Court has passed a decree against the deceased 1st plaintiff and so the trial Court finding is not an acceptable one. There is no dispute that the 1st plaintiff died on 12.11.2021. The fact of death of the 1st plaintiff was not brought to the notice of the trial Court by both sides. From perusal of records, it is clear that the evidence of both was concluded and ripe for argument on 05.10.2021 and the argument of both was fully heard on 22.11.2021 and posted for judgment on 29.11.2021. In between, the 1st plaintiff died. On 29.11.2021, the parties again argued and judgment was pronounced on 30.11.2021. The counsel for both parties have not brought to the notice of the trial Court about the death of the 1st plaintiff and the same is admitted by both. The learned counsel for the 1st & 2nd respondents/plaintiffs 2 & 3 has submitted that there is no abatement by reason of the death of a party between conclusion of trial and pronouncement of judgment under Order 22 Rule 6 of CPC. This argument is a correct one.

31. The Hon’ble Supreme Court, in a landmark judgment reported in AIR 1996 SC 116 in the case of N.P. Thirugnanam (D) by LRs v. Dr. R.Jagan Mohan Rao & Ors. (equally 1995 (5) SCC 115, AIR 1996 SUPREME COURT 116), the Hon’ble Supreme Court held that in the face of the explicit language of Order XXII Rule 6 of CPC, a judgment delivered after hearing arguments—even if a party dies in the interim—does not cause the suit to abate and is not a nullity. The relevant portion is extracted hereunder.

                     “2. The first ground raised in the SLP is that the decree of dismissal against the dead plaintiff appellant is a nullity. We find no force in the contention. It is true that the plaintiff died on December 26, 1994 by which date the arguments in the appeal were already heard and the judgment was reserved. The counsel for the plaintiff filed a Memorandum bringing to the notice of the court the demise under Order 22 Rule 11-A of CPC and prayed for time to bring on record the petitioners as legal representatives to represent the estate of the deceased. The court declined to accede to the request. 3. Rule 6 of Order 22 provides that:

                     No abatement by reason of death after hearing:-

                     "Notwithstanding anything contained in the foregoing rules,whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgement, but judgement may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place."

                     In the face of the explicit language in Rule 6 of Order 22, there can be no abatement by reason of the death of any party between the conclusion of the hearing and the pronouncement of the judgement. It may be pronounced, notwithstanding the death, and shall have the same force and effect as if judgment had been pronounced before the death took place. Therefore, the contention that the judgement and decree of the appellate court is a nullity is devoid of substance.”

32. The above said settled position has been followed by the Hon’ble Apex Court in various decisions and also by the High Courts. Therefore, the argument of the appellant/1st defendant that the trial Court has passed a decree in favour of the deceased 1st plaintiff is not sustainable, has no force and the same is not acceptable. Moreover, the suit is filed for partition and admittedly the 1st plaintiff’s husband already died and all the legal heirs of the 1st plaintiff are available as parties to the suit. So, the share allotted to the 1st plaintiff can be distributed equally to her legal heirs at the final decree proceedings in order to avoid multiplicity of proceedings.

33. The next point raised by the appellant/1st defendant is regarding the court fee paid by the plaintiff. It is argued by the appellant/1st defendant that the plaintiffs are out of possession and so the court fee has to be paid U/s.37(1) of the Tamil Nadu Suit Valuation and Court-Fees Act. The nature of the issue has been considered by the principal seat of this Court in S.A.No.100 of 2021 dated 30.10.2024 in the case of Marithoppai /v/ Alamelu and held that “a co-owner is legally presumed to be in constructive possession of family property unless ouster or exclusive title is proved by another co-sharer”. The relevant portions in S.A.No.100 of 2021 are extracted hereunder.

                     “14. ....The moment she passed away on December 7, 2009, her interest in the Suit Properties devolved upon the plaintiff and the 1 st defendant and they become the co-owners of the Suit Properties. It is settled law that even if one co-owner is not in actual possession, the Law presumes that he/she is in constructive possession of the Suit Properties along with the other co-owners, unless ouster or exclusion is proved. Thus, even while assuming the moment that the plaintiff is not in actual possession in the Suit Properties along with the 1 st defendant, the plaintiff is in deemed possession of the Suit Properties. Hence, this Court is of the considered view that the valuation of the Suit under Section 37(2) of the T.N.C.F. Act, is perfectly correct.

                     19.To sum up, this Court decides that the First Appellate Court has committed an error in non-suiting the plaintiff on the ground that he failed to prove his possession over the Suit Properties to value the Suit under Section 37(2) of the T.N.C.F. Act, especially in the absence of plea of ouster. Further, the First Appellate Court erred in not following the position of Law that a co-owner/co-sharer is presumed to be in constructive possession and enjoyment of the Suit Properties along with other co-heirs or co-owners. The Substantial Questions of Law are answered accordingly in favour of the appellants and against the respondents.'

In this case, as already held, the appellant/1st defendant has not proved the plea of ouster against the plaintiffs and his exclusive right over the suit properties. Thus, the objection regarding Court fee U/s.37(1) raised by the appellant/1st defendant is not a valid one.

34. The next point is regarding limitation. The suit is filed for partition and the sale deeds executed by the appellant/1st defendant will not bind the plaintiffs. The plaintiffs stated that only in the year 2011 did they have knowledge of alienation by the 1st defendant and filed the suit in 2013, i.e., within three years. The 1st defendant draws the attention of the Court that the P.W.1 admits in her evidence that she knew of the sale about 10 years back as



Court reveals that the plaintiffs are not parties to the sale deeds in question and also they have not sought for cancellation or set aside the instrument as per Article 59 of the Limitation Act and so the limitation is not applicable to the suit for partition. It is a settled position of law that a particular answer in evidence of a witness could not be taken for consideration and the entire evidence has to be looked into. The trial Court observed that the plaintiffs proved that they come to knowledge of Ex.A.3 to Ex.A.7 sale deeds in the year 2011 and filed the suit in 2013 as they will not bind them. The trial Court observed that the plaintiffs have not sought cancellation or set aside the documents and they only sought that the documents will not bind them and so, the suit is well within the limitation. The said observation, in my view, is correct. Because, in a suit for partition, it is a well settled position of law by the Hon’ble Three Judges Bench of the Supreme Court that the Legislature has not prescribed any period of limitation for filing a suit for partition because partition is an incident attached to the property and there is always a running cause of action. The Hon’ble Supreme Court has taken such a proposition of law in Vidya Devi’s case reported in AIR 1995 Supreme Court 1789, relied on by the plaintiffs' side, it is extracted as under:

                     “21.The legislature has not prescribed any period of limitation for filing a suit for partition because partition is an incident attached to the property and there is always a running cause of action for seeking partition by one of the co-sharers if and when he decides not to keep his share joint with other co-sharers. Since the filing of the suit is wholly dependent upon the will of the co-sharer, the period of limitation, specially the date or time from which such period would commence, could not have been possibly provided for by the legislature and, therefore, in this Act also a period of limitation, so far as suits for partition are concerned, has not been prescribed....”.

The above decision was adopted by this Court in various cases and was also relied on by the plaintiffs' side in the judgment rendered in A.S.No.453 of 2023 in Chenniappan’s case. And also this Court has also held in another case that the suit for partition is not barred by limitation in the judgment in A.S.No.298 of 2018 in Renuka’s case. Therefore, the trial Court has correctly considered the legal dictums on the limitation in a suit for partition.

35. From the above facts and circumstances, the suit is not barred by limitation, the 1st defendant has not proved his long exclusive possession along with title over the suit properties and since the suit properties are self acquired properties of father Vedhamuthu Udaiyar, who died intestate, his legal heirs have shares over the suit properties. The parties being Indian Christian, the trial Court correctly declared the share to them. There is nothing wrong in its decision. The trial Court has properly and correctly appreciated the evidence and came to the right decision and passed the judgment and decree correctly. For all these reasons, the judgment and decree of the trial Court are sustainable in law and the same need not be interfered with by way of this appeal. These points are answered accordingly. Thus, the appeal fails.

36. In the result, this Appeal Suit is dismissed. The judgment and decree dated 30.11.2021 passed in O.S.No.3 of 2013 on the file of the learned Additional District Judge, Sivagangai are confirmed. No costs. Consequently, the connected Civil Miscellaneous Petition is closed.