The burden to prove an oral partition lies with the party asserting it; mere revenue entries do not suffice to establish partition without clear evidence.

JUDGMENT :

K.GOVINDARAJAN THILAKAVADI, J.

The present Second Appeal is preferred against the decree and judgment dated 21.11.2020 passed in A.S. No.5 of 2015, on the file of the Sub Court, Tiruchengode, confirming the Judgment and decree dated 19.09.2014 passed in O.S. No.264 of 2009, on the file of the Additional District Munsif Court, Tiruchengode.

2. The parties are described as per the litigative status before the trial court.

3. The material facts that are necessary for deciding the present Second Appeal are hereunder:

3.1. The case of the plaintiff is that, the suit properties are joint family properties situate in Padaveedu village, Tiruchengode Taluk, originally purchased by the common ancestor, Palani Gounder, under registered sale deeds dated 29.06.1930 bearing document numbers 1822/1930 and 1829/1930. The said Palani Gounder had two sons, namely Palani Gounder and Sengoda Gounder. The plaintiff is the wife of Sengoda Gounder and the 1^st defendant is the wife of Palani Gounder. During pendency of the suit, the plaintiff Karupayee died and her daughter Rajammal was impleaded as her legal heir. Likewise the 1^st defendant Pavayee died and her two daughters, namely, Palaniammal and Chellammal and her son Palanisamy were impleaded as the legal heirs of the 1^st defendant. The daughter of Karupayeeammal is the appellant herein. According to the deceased plaintiff, though both the branches were cultivating distinct portions for convenience, no oral or written partition ever took place. However, during UDR proceedings, sub divisions were erroneously made and pattas were issued without notice to the plaintiff. On 03.03.2009, the deceased plaintiff demanded for partition which was refused by the deceased defendant. Hence, the deceased plaintiff filed the suit for partition seeking half share in the suit properties.

3.2. The claim of the deceased plaintiff was resisted by the deceased defendant stating that the properties situate at Sanyasipatti village were already divided by means of a registered partition deed dated

30.08.2001 and the properties at Padaveeedu Village, Tiruchengode Taluk was orally partitioned 30 years prior to filing of the suit and the sharers are enjoying their respective shares. Under the UDR scheme, properties were sub divided and pattas were issued in favour of the respective sharers and they are paying the necessary kists to the Government. The plaintiff having suppressed the real facts has come forward with false claim and therefore, the suit is liable to be dismissed.

3.3. The trial court dismissed the suit filed by the plaintiff and the appeal suit filed by the palintiff was also dismissed by the first appellant court, on the basis of the alleged oral partition of 1979 and based on mutation of revenue records. Hence, the present Second Appeal. Pending proceedings, the plaintiff and the defendant died and their legal representatives were impleaded.

4. At the time of admission the following substantial question of law has been framed:

“Whether the courts below are right in coming to the conclusion that there was an oral partition between the plaintiff and the defendants on the basis of Exs. B1 to B5 alone?”

5. Mr. P. Valliappan, learned Senior Advocate, appearing for Mr.R.Marudhachalamurthy, learned counsel on record for the appellant would submit that once joint family status and joint title are admitted, the party alleging an oral partition should establish the same by proving the date and year of partition, the manner in which it was effected, the presence of elders or witnesses, a clear act of division and subsequent conduct evidencing separation. In the present case, the respondents have failed to prove any of these essential elements. The plea of oral partition being an affirm