Oral partition admission binds; courts mould relief granting lesser entitlement via admitted sale deed.

JUDGMENT :

P.B. BALAJI, J.

The plaintiffs, aggrieved by concurrent findings of the trial Court and the first Appellate Court, in a suit for declaration and permanent injunction, are the appellants herein.

2. The Second Appeal was admitted by this court on 01.12.2023, on the following substantial questions of law:-

“1) When the sale deed dated 20.04.1993 executed by husband of 1st defendant regarding 93 cents in S.No.225/1 is admitted in the written statement, whether the Courts below are correct in dismissing the suit for declaration and injunction in toto instead of granting lesser relief ?

2) When the case of the defendant in the written statement that the oral partition between Chinnaramasamy Thevar, Pandi @ Periyasamy Thevar and Subbiah Pandian is not proved and there is a defective title in the sale deed dated 27.05.1998 of the husband of the 1st defendant, whether the courts below are correct in ignoring this vital aspects and thereby dismissed the suit and the warrants interference under Section 100 of CPC?”

3. I have heard Mr.V.Meenakshisundaram, learned counsel for the appellants / Plaintiffs and Mr.S.Meenakshi Sundaram, learned Senior Counsel for Mr.R.T.Arivukumar, learned counsel for the respondents/defendants.

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

5. Brief facts that may be necessary to decide the second appeal are as hereunder:

An extent of 1.86 Acres, forming part of a larger extent of 2.80 cents was originally belonging to the father, Chinnaramasamy Thevar and his two sons, viz., Pandi @ Periyasamy Thevar and Subbaiah Pandiyan. The plaintiffs allege that the two sons, viz., Pandi @ Periyasamy Thevar and Subbaiah Pandiyan had sold an extent of 1.40 cents each, in excess of their 1/3 entitlement share, totally effacing the right and interest of their father, Chinnaramasamy Thevar. According to the plaintiffs, the father Chinnaramasamy Thevar had settled the property measuring 93 cents in favour of the plaintiffs by a settlement deed dated 13.06.1990 and it was in respect of his 1/3 entitlement in total extent of 1.86 Acres, which was the northern portion of the larger extent of 2.80 Acres, comprised in Survey No.225/1. Hence, the plaintiffs claimed the relief of declaration and permanent injunction.

6. The suit was resisted by the defendants, contending that even 40 years back, there was an oral partition amongst the father Chinnaramasamy Thevar and his two sons viz., Pandi @ Periyasamy Thevar and Subbaiah Pandiyan, in and by which the property measuring 2.80 Acres was allotted to the two sons, viz., Pandi @ Periyasamy Thevar and Subbaiah Pandiyan, equally, each of them entitled to 1.40 Acres and the father was not allotted any property or share in this property, but, was compensated in other property. It was therefore the case of the defendants, the father Chinnaramasamy Thevar did not have any subsisting right to settle the property in favour of the plaintiffs.

7. Before the trial Court, the first plaintiff examined himself as P.W.1 and exhibited Ex.A1 to Ex.A11. On the side of the defendants, the first defendant examined herself as D.W.1 and exhibited Ex.B1 to Ex.B5.

8. The trial Court, based on the admissions of the plaintiffs in cross examination, answering in the affirmative the issue regarding oral partition, dismissed the suit. On appeal, the first appellate Court confirmed the findings of the trial Court. As against the said concurrent findings, the plaintiffs are before this Court.

9. Arguments of the learned counsel for the appellants:

Mr.V.Meenakshisundaram, learne