The main legal point established in the judgment is the requirement of a partition by metes and bounds for a Partition Deed to be valid under the proviso to Section 6 of the Hindu Succession Act.

JUDGMENT :

(R. Subramanian, J.)

(Prayer : Second Appeal filed under Section 100 of the Code of Civil Procedure, to set aside the judgment and decree dated 05.06.2013 made in A.S.No.8 of 2013 on the file of Principal District Court, Erode confirming the findings of the judgment and decree dated 21.07.2011 made in O.S.No.262 of 2010 on the file of Principal Sub Court, Erode.)

These Appeals have been posted together since a common question relating to validity of a document styled as a Partition Deed dated 29.05.1961, entered into between the parties to these Appeals, arises for consideration in both the appeals.

2. The facts leading to the Appeals are as follows:

One Muthiyalu Naicker, had two sons Periya Mara Naicker and Mara Naicker. They constituted a joint Hindu family and it was possessed of various properties. Periya Mara Naicker had three sons by name Periya Chenna Naicker, Mutha Naicker and Chenna Naicker. Mara Naicker had one son by name Mutha Naicker and a daughter Rangammal. Two sons of Periya Mara Naicker viz. Periya Chenna Naicker and Mutha Naicker launched a suit in OS No.68 of 2007 seeking partition and separate possession of their 4/16th share in the suit properties, claiming that as per the Registered Deed of Partition dated 29.05.1961, the branch of Periya Mara Naicker was allotted 3/4th share in the suit properties and 1/4th share was allotted to the branch of Mara Naicker, the younger brother.

3. The entire suit was based on the registered document dated 29.05.1961 and it was in respect of two items of properties situate in MettuNasuvanpalayam Village, Erode District. One son of Periya Mara Naicker viz. Chenna Naicker was made the first defendant in that suit. The son of Mara Naicker viz. Mutha Naicker was the fourth defendant and Rangammal daughter of Mara Naicker was the seventh defendant. While defendants 2 and 3 are the children of Chenna Naicker, the defendants 5, 6 and 8 are the children of Mutha Naicker. Since one of the sons of Mutha Naicker, by name Chenna Naicker died his wife Rajammal was impleaded as the ninth defendant.

4. This suit was resisted by the defendants therein including Chenna Naicker one of the sons of Periya Mara Naicker, contending that there was no partition under the document dated 29.05.1961. The plaintiffs were put to strict proof of their claim that there was a partition on 29.05.1961 and there was a division of properties under the said instrument. It was also contended that Periya Mara Naicker and Mara Naicker died within a very short span of time, about 30 years prior to the suit and soon after the death of the brothers, the parties had divided the properties orally by metes and bounds and have been in enjoyment of their respective shares. Mutation of the Revenue Records was also effected.

5. The seventh defendant Rangammal filed a two paragraph written statement contending that the pleadings in the plaint are false and she paid Court fee for allotment of her share in the properties.

6. On the above pleadings, the Trial Court framed the following issues:

1. Whether the partition was effected between the parties soon after the death of the plaintiff’s father;

2. Whether the 1stdefendant has effected improvements in the property allotted to him;

3. Whether mutation has been effected by the Revenue authorities to the divided properties;

4. Whether the plaintiffs are entitled for a decree for partition;

5. To what reliefs the plaintiffs are entitled to?

7. At trial on the side of the plaintiffs, the first plaintiff was examined as P.W.1 and Exhibits A1 to A11 were marked. The fourth defendant viz. Mutha Naicker was examined as D.W.1 and the seventh defendant Rangammal was examined as D.W.2. No documents were produced on the side of the defendants.

8. The Trial Court on a consideration of the evidence came to the conclusion that Ex.A1 Partition Deed dated 29.05.1961 cannot be termed as a partition, since there is no division of properties by metes and bounds. The document does not