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2026 Supreme(Mad) 1554
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. SOUNTHAR, J.
Narasimmappa – Appellant
Versus
Egalerappa – Respondent
SA No. 313 of 2023 and CMP No.9334 of 2023
Decided On : 06-04-2026
For the Appellant : Ms. T.N. Sona
For the Respondent: Mr. S. Eshwar.
Burden of proof on plaintiffs to establish second marriage and pedigree via cogent evidence; contradictory oral hearsay insufficient; no adverse inference against defendants if plaintiffs fail.
Headnote:(A) Civil Procedure Code, 1908 - Section 100 - Partition suit - Burden of proof to establish second marriage and family relationship through cogent evidence, oral hearsay and contradictory testimony insufficient. (Paras 7 to 14)
Facts of the case:
Suit property originally purchased vide Sale Deed dated 08.10.1930. Plaintiffs claimed descent from second wife, alleging joint possession and share in profits until denied. Defendants denied second marriage and plaintiffs' relationship, claiming exclusive inheritance. Trial Court dismissed suit for failure to prove relationship. First appellate Court reversed, granting preliminary decree for 3/8th share.
Findings of Court:
Plaintiffs failed to prove second marriage or relationship; evidence self-contradictory, hearsay, unsupported by documents. No adverse inference against defendants for not adducing evidence.
Issues: Whether plaintiffs established relationship and legality of second marriage; whether first appellate Court correctly presumed relationship and drew adverse inference against defendants.
Ratio Decidendi: Burden lies on plaintiffs to prove disputed pedigree; oral evidence unreliable without corroboration, contradictions falsify claims; appellate court cannot infer relationship merely from defendants' silence when plaintiffs fail to discharge onus. (Paras 10 to 14)
Result: Second appeal allowed; first appellate judgment and decree set aside; trial Court decree restored.
| Table of Content |
|---|
| 1. procedural history of partition suit and appeals. (Para 2 , 6) |
| 2. dispute on second marriage validity and heirship. (Para 3 , 4) |
| 3. plaintiffs' evidence hearsay, contradictory, lacks documents. (Para 5 , 11 , 12 , 13) |
| 4. burden on plaintiffs; no adverse inference absent proof. (Para 7 , 8 , 9) |
| 5. pleadings contradictory; oral evidence insufficient for relationship. (Para 10 , 14) |
| 6. appeal allowed; trial court decree restored. (Para 15) |
JUDGMENT :
S. SOUNTHAR, J.
This second appeal has been filed to set aside the Judgment and Decree in A.S.No.37 of 2021 dated 14.10.2022 on the file of the Additional District Judge, Hosur in reversing the Judgement and Decree in O.S.No.17 of 2018 dated 26.11.2019 on the file of the Principal Subordinate Judge, Hosur.
2. The unsuccessful defendants are the appellants. The respondents/plaintiffs filed a suit for partition claiming 13/20th share in the suit property. The suit was dismissed by the trial Court. On appeal filed by the respondents/plaintiffs, the first appellate Court reversed the findings of the trial court and granted preliminary decree for 3/8th share in favour of the respondents/plaintiffs. Aggrieved by the same, the defendants have come before this Court.
3. According to the respondents/plaintiffs, the suit property originally purchased by the G.B.Muniyappa vide Sale Deed dated 08.10.1930. He married one Desamma as his first wife. He had a son namely Onnukurukkiyappa and a daughter called Yellama. The said Yellama married one Gopalappa and they have a daughter called Cheneeramma. The said Cheneeramma married Onnukurukkiyappa. The defendants 1 and 2 were born to them. Therefore, the defendants 1 and 2 are grand children of Muniyappa through his first wife Desamma. It was also stated by the plaintiffs that after the death of Desamma, the said Muniyappa married Thimmakka as his 2nd wife. He had a daughter called Papamma through his 2nd wife Thimmakka. The plaintiffs are children of Papamma. According to plaintiffs, they are in possession and enjoyment of the suit property along with defendants as legal heirs of Muniyappa. Upto three years immediately preceding the presentation of the plaint, the defendants have been giving share in the profits from suit property and suddenly they stopped payment of share in the profits. Hence, plaintiffs issued a Legal Notice on 16.08.2017, calling upon the defendants to agree for amicable partition of the suit property. The defendants issued a Reply Notice on 31.08.2017, denying the right of the plaintiffs to claim partition with false and frivolous allegation. In these circumstances, a suit was filed for partition.
4. The defendants filed a written statement and denied the allegations in the plaint that Muniyappa married Thimmakka as his 2nd wife. According to the defendants, the plaintiffs are totally strangers to the family of Muniyappa and they have no right to claim partition. The defendants also denied the allegation in the plaint that plaintiffs had joint possession of the suit property along with them. It was also stated by the defendants that their father Onnukurukkiyappa died in the year 1980 and after his death, their maternal grand father one Gopalappa had taken custody of the minor defendants and he acted as kartha of the property of minor defendants. It was also pleaded that defendants alone are the legal heirs of Muniyappa through her daughter Yellamma. The defendants also pleaded that Gopalappa executed a registered Will bequeathing the suit property to defendants. It was further stated that the revenue documents stand in the name of the defendants and their ancestors and hence sought for dismissal of the suit.
5. During trial, the 2nd plaintiff was examined as P.W.1. Three other persons were examined as P.W.2 to P.W.4. P.W.2 failed to appear for cross examination and therefore, his evidence has been eschewed. On behalf of the plaintiffs, four documents were marked as Ex.A1 to Ex.A4. On behalf of the defendants, no oral or do
