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2025 Supreme(Online)(Mad) 49944
IN THE HIGH COURT OF JUDICATURE AT MADRAS
G.R.SWAMINATHAN, J
N.Nagarajan – Appellant
Versus
R.Perumalsamy Naidu (Died) – Respondent
Second Appeal | S.A.(MD)No.65 of 2017 | C.M.P.(MD)No.1289 of 2017
For the Appellant: Mr.J.Barathan
For R-2 to R-4: Mr.H.Lakshmi Shankar
For R-5 to R-10: Ms.M.Benazir Begam
In partition suits, all co-sharers must be included, and the validity of transactions must be established with evidence, particularly when labeled as sham.
Headnote:(A) Civil Procedure Code, 1908 - Section 100 - Partition Suit - The trial Court dismissed the suit, but the first appellate Court reversed it citing that the sale deed was valid and the appellant’s claim of title through adverse possession was unsubstantiated - Legal heirs of the original plaintiff were impleaded during the appeal process. (Paras 1, 2, 19)
(B) Partition - Necessity of Parties - The Court ruled that all co-sharers must be parties to the suit, but failure to specify which parties were absent does not automatically invalidate the suit. (Paras 12, 13)
(C) Sham Transactions - The appellant claimed that the sale deed was sham, but the onus to prove this lies on the appellant, who failed to provide sufficient evidence. (Paras 15, 18)
Findings of Court:
The second appeal was dismissed, affirming the first appellate Court's decision to recognize the validity of the sale deed.
Issues: Validity of sale deed, necessity for co-sharers to be parties, proof of adverse possession.
Ratio Decidendi: The second appellate Court emphasized that the execution of a registered document must be accepted unless proven otherwise by substantial evidence.
Result: The second appeal is dismissed.
| Table of Content |
|---|
| 1. defendant's role and appeal's context. (Para 1 , 2) |
| 2. arguments regarding sale and legal representation. (Para 3 , 4 , 5) |
| 3. outline of the disputed partition suit. (Para 7 , 8 , 9) |
| 4. legal standards governing necessary parties and proof. (Para 10 , 11 , 12) |
| 5. concluding assessment and judgment rationale. (Para 15 , 18 , 19) |
J U D G M E N T
The first defendant in O.S.No.85 of 2007 on the file of the Principal Sub Court, Dindigul is the appellant in this second appeal. The first respondent herein filed the said suit seeking partition of 53 cents in the suit schedule first item and 76 cents in the suit schedule second item and separate possession by metes and bounds. The trial Court vide judgment and decree dated 08.02.2012 dismissed the suit. Questioning the same, the plaintiff filed A.S.No.11 of 2012 before the I Additional District and Sessions Judge, Dindigul. The first appellate Court reversed the decision of the trial Court and granted preliminary decree as prayed for. Challenging the same, the second appeal came to be filed.
2. The second appeal was admitted on 13.02.2017 on the following substantial questions of law:-
“a) When the trial Court had elaborately discussed various circumstances relating to the sale deed Ex.A.5 and had given a finding that Ex.A.5 is only a sham and nominal deed executed for some other purpose, whether the lower appellate Court committed an illegality in omitting to consider and discuss those findings and setting aside them without answering them?
b) When the appellant / first defendant had pleaded in his written statement that he had prescribed title to the suit property by adverse possession and has also let in oral and documentary evidence to that aspect, whether the lower appellate Court committed an illegality in omitting to frame a point for consideration under Order 41 Rule 31 of the Civil Procedure Code?
c) Whether the lower appellate Court committed an illegality in failing to follow the settled proposition of law that in a suit for partition, all the co-sharers are necessary parties and omitting to implead them is fatal to the suit?
d) When the trial Court had specifically given a finding that the first respondent / plaintiff had admitted in his deposition about the non-impleading of other pangalis and hence, the suit is bad for non-joinder of necessary parties, whether the lower appellate Court committed an illegality in omitting to consider the said finding?
e) Whether the lower appellate Court had committed an error in misapplying the oral and documentary evidence of the appellant / first defendant for deciding title and not for adverse possession?”
3. The learned counsel appearing for the appellant reiterated all the contentions set out in the memorandum of grounds of appeal and called upon this Court to answer the substantial questions of law in favour of the appellant and set aside the impugned judgment and decree and restore the decision of the trial Court.
4. During the pendency of this appeal, the plaintiff passed away and his legal heirs were brought on record as respondents 5 to 10. The learned counsel for the legal heirs of the plaintiff submitted that the impugned judgment and decree is well reasoned and it does not call for interference.
5. Respondents 2 to 4 herein figured as defendants 2 to 4.
They entered into a sale agreement with the appellant / first defendant. The first appellate Court had restrained the alienation in favour of defendants 2 to 4. The learned counsel for defendants 2 to 4 adopted the stand of the appellant's counsel. He also filed a detailed written notes and relied on a catena of decisions in support of his contentions. He called upon this Court to allow this second appeal.
6. I carefully considered the rival contentions and went through the evidence on record.
7. The case of the plaintiff is as follows:-
The suit properties originally belonged to the ancestors of the first defendant. The Tamil word employed in the plaint is “vagayara”. The sui
