A co-owner may sell his undivided share without affecting the other co-owner's rights; injunctions against co-owners in partition suits are not granted except in cases of property destruction; additional evidence in appellate court admissible only under strict conditions.

(Judgment of this Court was delivered by M.JOTHIRAMAN, J.)

The unsuccessful Appellant/first defendant has preferred the present appeal. The respondent/plaintiff has preferred cross-objection in Cros.Obj(MD)No.4 of 2025 in A.S.(MD)No.131 of 2019. For the sake of convenience, the parties are referred to as their rank before the trial Court.

2.Brief case of the plaintiff is as follows:-

The plaintiff filed the suit for partition, declaration and injunction. The plaintiff and the first defendant are brothers. The suit properties and other properties were originally owned by the father of the plaintiff and the first defendant namely Jamal Mohamed. After the death of the Jamal Mohamed, his wife Sheik Sulthan Beevi, daughters Samsunisha, Sahitha Banu and Sabur Kamila and her sons are in joint possession and enjoyment of the properties. They have entered into partition on 20.05.2008 and the parties have been in possession and enjoyment of the properties of their respective shares allotted to them. In the said partition, 'B' schedule properties were allotted to the plaintiff and the first defendant. The suit 'A' schedule and 'B' schedule properties have been in joint possession and enjoyment of the plaintiff and the first defendant. Three months prior to the filling of the suit, the first defendant was neither rendering the accounts nor paying the share of the income. In order to defeat the rights of the plaintiff, the first defendant has executed a sale deed dated 19.08.2014 in favour of the second defendant fraudulently. The defendants and their men had attempted to oust the plaintiff from the suit properties on 25.08.2014 and the said attempts were thwarted by the plaintiff. Hence, the suit.

3.Brief Case of the defendants is as follows:-

The partition deed dated 20.05.2008 entered between the family members is admitted. Originally the first defendant's father is having ground nut mill in the 'B' schedule properties and till their father's life time, they are doing the same business with their father. Even after the partition, the plaintiff and the first defendant were doing the same ground nut business. The plaintiff and the first defendant had obtained loan of Rs.9,30,000/- in their joint name from City Union Bank by mortgaging 'A' schedule properties and also obtained cash credit facilities to an extent of Rs.15,00,000/- by mortgaging 'B' schedule properties. Due to the heavy loss, their liabilities went up to Rs.58,00,000/- excluding the bank loans. The plaintiff had given his idea to sell the 'A' schedule property. The plaintiff had approached his relative Jallaluddin for selling lands and he had transferred a sum of Rs.5,00,000/- in the joint account of the plaintiff and the first defendant and they agreed to get the remaining amount of Rs.7,42,000/- from the second defendant and Jallaluddin to discharge the bank loan. The plaintiff had failed to come to the Sub Registrar Office to execute the sale deed. The first defendant had sold the undivided ½ share in 'A' schedule properties in favour of the second defendant vide sale deed dated 19.08.2014. Entire sale consideration for the 'A' schedule property was received to discharge the bank loan. In the present suit, the said Jalaludeen is also one of the necessary party. Hence, the suit is hit under non-joinder of necessary parties.

4.Based on the above pleadings, the trial Court framed the following issues:-

1.Whether the plaintiff is entitled to half share in the suit properties?

2.Whether the plaintiff is entitled to