Oral partitions, while valid, must be substantiated by evidence, and unregistered documents regarding such partitions are inadmissible in court; res judicata applies to suits dismissed for default without merit.

JUDGMENT :

The Appeal Suit is directed against the judgment and decree made in O.S.No.59 of 2011, dated 04.09.2014, on the file of the Additional District Court, Dindigul.

2. The plaintiffs are the appellants and they have filed the above suit claiming partition and allotment of 1/2 share in the suit properties and for permanent injunction restraining the defendant from in any manner alienating the suit properties in favour of the third parties.

3. For the sake of convenience and brevity, the parties will hereinafter be referred as per their status/ranking in the original suit.

4. The relationship not in dispute is that the plaintiffs 1, 2, 3 and 6 are the sons, the plaintiffs 4 and 5 are the daughters and the seventh plaintiff is the wife of the deceased Perumal Naidu and that the said Perumal Naidu is the brother of the defendant – Ramasamy Naidu. It is not in dispute that the defendant's father – Venkatasamy Naidu had four sons viz., Gopal, Seetharaman, Perumal – father of the plaintiffs 1 to 6 and Ramasamy – defendant, that the defendant's brother Gopal went away from the family, that the other three brothers had purchased the properties jointly, that they have subsequently entered into a registered partition dated 20.12.1961 under Ex.B.1 and the properties shown in schedule “A” therein were allotted to the share of Seetharaman and “B” schedule therein were allotted jointly to the defendant and his brother Perumal Naidu and they had been in joint possession and enjoyment of the suit properties and that subsequently, the defendant and his brother Perumal Naidu had purchased the other items of the suit properties vide sale deeds under Exs.A.1 to A.5.

5. The case of the plaintiffs is that the said Perumal Naidu died on 17.03.2002 intestate leaving behind the plaintiffs as his legal heirs to succeed his estate, that after the death of Perumal Naidu, the plaintiffs along with the defendant have been in possession and enjoyment of the suit properties, that the plaintiffs after coming to know that the defendant has been attempting to encumber the suit properties, approached the defendant and demanded for an amicable partition, that the defendant blatantly refused for partition and denied the legal share of the plaintiffs in the suit properties and that therefore, the plaintiffs were constrained to file the above suit for partition and allotment of 1/2 share in all the suit properties.

6. The defence of the defendant is that there was an oral partition entered into between the defendant and his brother – Perumal Naidu 35 years back, that both of them had been in separate possession and enjoyment of the properties allotted to them in the said partition and since both of them were in need of a document to show the earlier partition, they have entered into a family arrangement deed dated 07.01.1996 under Ex.B.3 recording the earlier partition effected between them, that Perumal Naidu and the defendant had also got patta in their names in respect of the properties allotted to them, that the defendant has constructed a house in the property allotted to him and got electricity service connection, that the said Perumal Naidu accepting the partition had executed a settlement deed dated 28.11.2001 under Ex.B.4 in favour of his daughter – fifth plaintiff settling the property allotted to him, that the defendant had also executed a registered Will dated 29.04.2002, bequeathi