(Prayer: This Second Appeal is filed under Section 100 of the Civil Procedure Code, to allow the appeal by setting aside the judgment and decree in A.S.No.130 of 2017 on the file of the Sub Court, Tiruchendur, dated 23.01.2019 by confirming the judgment and decree in O.S.No.90 of 2008 on the file of the District Munsif Court, Sathankulam, dated 12.02.2013.)

1. This Second Appeal is filed against the judgment and decree, dated 23.01.2019 passed in A.S.No.130 of 2017 on the file of the Sub Court, Tiruchendur by confirming the judgment and decree, dated 12.02.2013 passed in O.S.No.90 of 2008 on the file of the District Munsif Court, Sathankulam.

2. The appellant is the plaintiff in O.S.No.90 of 2008 on the file of the District Munsif Court, Sathankulam. The respondents are the defendants in that suit.

3. The appellant/plaintiff filed the suit for partition and permanent injunction in respect of the suit properties.

4. For the sake of convenience, the parties are referred as plaintiff and defendants as arrayed in O.S.No.90 of 2008 on the file of the District Munsif Court, Sathankulam.

5. Case of the plaintiff:

               The 1st defendant/Essakkimuthu Nadar, is the father of the plaintiff and the defendants 2 and 3. The suit properties are ancestral properties of Arunachala Nadar, who is the father of the 1st defendant. Arunachala Nadar died several years back, leaving 1st defendant and the other two legal heirs. Some other properties were given to the said other two legal heirs by Arunachala Nadar. The plaintiff and the defendants derived the suit properties and enjoyed the same as joint family properties. The 1st defendant had four daughters, Kattithangam, Arumugakani, Kasithangam and Jeyarani and they had executed release deed in respect of their shares. Rajakili Ammal, who was the wife of the 1st defendant and the mother of plaintiff and defendants 2 and 3 was died 20 years back. The plaintiff developed the suit properties by spending his own money and has been cultivating the properties. Whileso, the defendants 1 and 3 attempted to sell the suit properties as if the suit properties are their absolute properties. The plaintiff came to know that the 1st defendant executed a settlement deed, dated 14.10.2008, in favour of the 3rd defendant in respect of the suit properties, suppressing the plaintiff’s share over the suit properties. So, the said settlement deed is not a valid one. Hence, the plaintiff has filed the suit seeking for ¼ share in the suit properties and to declare the settlement deed, dated 14.10.2008 as null and void.

6. Case of the Defendants (as per Written Statement and Additional Written Statement)

               The suit properties originally belonged to Arunachalam Nadar. He died intestate in the year 1958. The suit properties devolved upon his sons, namely the 1st defendant and other two legal heirs. After demise of Arunachalam Nadar, the 1st defendant and his two legal heirs orally partitioned the properties. The 1st defendant became the absolute owner of the suit properties and his name was mutated in the revenue records. The 1st defendant dig well in the suit properties and got electricity connection in his name. The 1st defendant obtained mortgage loan from the Agricultural Cooperative Bank, Chokkankudiyiruppu and the loan was utilized for the development of the scheduled properties. Due to love and affection towards the 3rd defendant, the 1st defendant executed settlement deed, dated 14.10.2008, in favour of the 3rd defendant. From the date of settlement, the 3rd defendant is in possession and enjoyment of the suit properties. The plaintiff knew well about the settlement deed even prior to the legal notice, dated 24.11.2008. Since the prayer for amendment to declare the settlement deed as void is made after three years, the same is barred by limitation. So, the suit is liable to be dismissed.

7. The trial Court/District Munsif Court, Sathankulam, framed the following issues:

               (1) Whether the plaintiff is entitled to the relief of partition as prayed for?

               (2) Whether the plaintiff is entitled to permanent injunction as prayed for?

               (3) To what other reliefs?

               Additional Issues:-

               (1) Whether the suit is not maintainable since the relief for cancelling the settlement deed dated 14.10.2008 is not sought?

               (2) Whether the plaintiff is entitled to the relief in respect of document No.1238/2008, dated 14.10.2008?

8. During trial, on the plaintiff's side, the plaintiff was examined as P.W.1 and Ex.A.1 to Ex.A.3 were marked. On the defendants' side, D.W.1 & D.W.2 were examined and Ex.B.1 to Ex.B.11 were marked.

9. After hearing both sides, the learned District Munsif, Sathankulam, held that the suit properties are absolute properties of the 1st defendant Arunachalam Nadar as per oral partition that took place among himself and his two other brothers, so the settlement deed executed by him is valid one and so dismissed the suit by its judgment dated 12.02.2013.

10. Aggrieved by the judgment and decree, dated 12.02.2013 passed in O.S.No.90 of 2008, the plaintiff preferred the Civil Appeal in A.S.No.72 of 2013 on the file of the Sub Court, Thoothukudi and thereafter, transferred and renumbered as A.S.No.130 of 2017 on the file of the Sub Court, Tiruchendur.

11. The first Appellate Court, after hearing both and after perusing the case records, came to conclusion that the trial court correctly arrived at decision that the suit properties are absolute properties of 1st defendant and the plaintiff is not entitled for partition thereby confirmed the judgment and decree of the trial Court in O.S.No.90 of 2008 and dismissed the first appeal in A.S.No.130 of 2017 on 23.01.2019.

12. Challenging the judgment and decree of the First Appellate Court passed in A.S.No.130 of 2017, the plaintiff preferred this Second Appeal and the same has been admitted on 10.02.2020 on the following substantial questions of law:-

               1. Whether the Courts below were right in concluding that the properties in the hands of Esakkimuthu Nadar were to be treated as self acquisition ignoring the plea of plaintiff that the properties were ancestral properties of his grandfather Arunachala Nadar and it devolved on his sons on the death of Arunachala Nadar in the year 1958?

               2. Whether the Courts below were right in concluding that the plaintiff would not get right by birth to enable him to seek partition even during the life time of his father namely first defendant, more so when the character of property in the hands of Arunachala Nadaar was almost admitted by the defendants?

13. Heard both sides. Both sides have also filed their respective written arguments. Perused the material records of the case.

14. The learned counsel for the appellant/plaintiff has argued that the suit property is ancestral property of Arunachala Nadar, who is the father of the 1st defendant Essakkimuthu Nadar herein. The defendants have not specifically denied about the character of the suit property, therefore, it is admitted that the suit property is the ancestral property of Arunachala Nadar. The defendants filed settlement deeds as Ex.B.7 and Ex.B.8. In the said settlement deeds, it is clearly mentioned as the properties derived by the 1st defendant as   So there was no partition taken place as alleged by the 1st defendant. In Ex.B.7 and Ex.B.8, there are no specific recitals that the properties were allotted to the 1st defendant through oral partition. So, there was no oral partition effected. Since the suit properties are ancestral property, Section 8 of the Hindu Succession Act will not apply. The Courts below erred in holding that the suit property is self acquired property of 1st defendant and also that the partition was already effected and so the plaintiff has no right to claim partition in the suit property. Even if any partition was effected, leaving other coparceners and female coparceners the same is void ab initio. Moreover, after the Registration Act 1908 came into existence in the year 1958, the question of oral partition cannot be accepted. On the defendants' side, there is no concrete evidence to show that there was oral partition. The suit properties are ancestral properties of the 1st defendant’s father/Arunachala Nadar. Since Arunachala Nadar’s grandchildren are available, the 1st defendant cannot get entire properties. The 3rd defendant is influential person with revenue officials and mutated the revenue records in his name with the help of the 1st defendant. Therefore, the plaintiff is entitled to partition. Therefore, the second appeal may be allowed.

15. In support of his arguments, the learned counsel for the appellant/plaintiff has relied on the following rulings:

               (i) (2020) 9 SCC 1 in the case of Vineeta Sharma /v/ Rakesh Sharma and Others.

               (ii) (2024) 4 MLJ 109 High Court of Madras in the case of M.M.Kumaresan and Others /v/ M.Shanmugavadivu and Others.

16. Per contra, the learned counsel for the respondents/defendants has placed arguments that the suit properties and some other properties belonged to the 1st defendant’s father/Arunachala Nadar. He died intestate, leaving 1st defendant and two other children. Thereafter, the 1st defendant and his siblings orally partitioned the properties of Arunachala Nadar and the suit properties were allotted to the 1st defendant and hence, the 1st defendant is the absolute owner of the suit properties. In order to prove oral partition, the defendants have filed Ex.B.1 - Patta and Ex.B.2 showing mortgage made by the 1st defendant. The plaintiff admitted in his evidence that he was not born at the time of the death of Arunachala Nadar, if so, he could not derive any right over his property. It is also admitted that the 1st defendant has three sons and four daughters. On the basis of oral partition, the 1st defendant got the suit properties. So, as he is being absolute owner, the 1st defendant executed Ex.B.7 and Ex.B.8 settlement deeds in favour of his son, 3rd defendant herein, out of love and affection leaving the plaintiff, 2nd defendant and the other four daughters. The settlement deeds were not questioned by the other siblings of the plaintiff. Moreover, the 1st defendant, during his lifetime, filed the written statement and clearly pleaded above facts. The plaintiff as P.W.1 clearly admitted that his father/1st defendant sold out 20 cents which was originally belonged to Arunachala Nadar and the said property was allotted to his father in partition. However, the plaintiff has not added the said 20 cents in the suit properties. So, the suit is bad for partial partition as per the decision of the Hon’ble Supreme Court in 1994 (4) SCC 294 (Kenchegowda /v/ Siddegowda) and of the Madras High Court in 2006 (1) CTC 267 (Gandhi /v/ Saminathan Gounder). Hence, the plaintiff himself admitted about the oral partition from which the 1st defendant got the properties. The Courts below correctly held that before the birth of the plaintiff, his grandfather Arunachala Nadar died and after the death of Arunachala Nadar, there was partition among his sons, namely the 1st defendant and his siblings and the suit properties were allotted to the 1st defendant. Thereby, the 1st defendant became the absolute owner who has every right to convey the property according to his wish. Therefore, the Courts below correctly appreciated both side evidences and correctly dismissed the suit and the same need not be reversed. Hence, the Second Appeal may be dismissed.

17. In support of his argument, the learned counsel for the defendants relied on the following rulings:

               (1) 1986 (3) SCC 567 in the case of Commissioner of Wealth Tax Kanpur & Ors. /v/ Chander Sen and Others.

               (2) AIR 1979 Madras 1 in the case of Addl.commissioenr of Income Tax Madras /v/ P.L.Karuppan Chettiar.

               (3) (2007) 4 MLJ 993 in the case of N.Ramachandran /v/ E.Varadarajan and Anr.

               (4) 2010 5 LW 329 in the case of M.Kumaran & Anr. /v/ J.Rajesh (Minor) & Anr.

18. It is admitted that the 1st defendant is the father of the plaintiff and the defendants 2 and 3 and that the 1st defendant has also four daughters. The plaintiff mainly claims that the suit properties are ancestral properties of his grandfather/Arunachala Nadar and after the demise of Arunachala Nadar, the suit properties have been enjoyed by his father, the 1st defendant and his children. It is the specific case of the defendants that the suit properties and some other properties belonged to the said Arunachala Nadar and after death of Arunachala Nadar his children namely 1st defendant and 1st defendant’s siblings orally partitioned the properties and the suit properties were allotted to the share of the 1st defendant and hence, the 1st defendant being absolute owner of the suit properties he executed settlement deeds Ex.B.7 and Ex.B.8 in favour of the 3rd defendant.





21. It is admitted fact that the plaintiff was not born at the time of death of Arunachala Nadar and also at the time of the partition taken place between the 1st defendant and his brother Athi Narayana Nadar. So, the suit properties which are allotted to the share of 1st defendant and the same became his absolute properties. The Courts below correctly held in respect of this aspect. On perusal of citation relied on by the defendants' side reported in 2010 (5) Law Weekly 329, the Hon’ble Supreme Court clearly held in M.Kumaran’s case that “when a divided son or daughter has got the property belonging to their father in a partition, whether it is ancestral or self acquired property of the father, they become absolute owners of their respective shares and they can deal with the properties exclusively excluding their sons”.

22. In this case on hand, prior to birth of the plaintiff, there was partition between the 1st defendant and his brother in which the suit properties were allotted to the share of the 1st defendant, so the 1st defendant is the absolute owner of the suit properties and he can deal with the suit properties exclusively as per his wish. The Hon’ble Supreme Court recently in a verdict in Angadi Chandranna case reported in 2025 SCC Online SCC 877 reaffirmed that as per Hindu Law, after partition each member of the joint family gets a and distinct share, and this share becomes his or her self acquiredand the recipient thus has absolute rights over the property received pursuant to partition and can freely sell, transfer or bequeath it.

23. It is settled proposition of law that the High Court will not interfere with the concurrent findings of the courts below, except some exceptions, as held by the Hon’ble Supreme Court in the case of Nazir Mohamed v. J.Kamala case reported in (2020) 19 SCC 57, held as follows:

               “33.4. The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence;(ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.

               But, in this case, the concurrent findings of the Courts below do not fall in the above criteria. Both the Courts below correctly appreciated the evidences on both sides and correctly came to the conclusion that the plaintiff establish his case. Since the Courts below correctly appreciated the evidence adduced on both sides and gave findings, the evidence cannot be reappreciated by the High Court in the Second Appeal.

24. From the above facts and circumstances of the case, the defendants' side proved that the suit properties were derived by the 1st defendant upon partition and he is the absolute owner of the suit properties and the plaintiff has failed to establish his claim as rightly held by the courts below. Therefore, the Courts below have correctly appreciated the evidences and correctly came to the conclusion that the plaintiff is not entitled to partition, resulting dismissal of the suit and the same need not be interfered by way of this Second Appeal. The citations relied on by the appellant/plaintiff are not applicable to the facts of this case. The questions of law framed in this second appeal are answered against the appellant/plaintiff. Thus, the Second Appeal fails.

25. In the result, this Second Appeal is dismissed. The judgment and decree, dated 23.01.2019 passed in A.S.No.130 of 2017 on the file of the Sub Court, Tiruchendur, confirming the judgment and decree, dated 12.02.2013passed in O.S.No.90 of 2008 on the file of the District Munsif Court, Sathankulam is confirmed. No costs. Consequently, the connected Civil Miscellanous Petition is closed.