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2026 Supreme(Online)(Mad) 55190
Prayer: Second Appeal fild under Section 100 CPC to set aside the Judgment and decree dated 16.03.2025 in A.S.No.22 of 2019 on the file of the Sub Court, Aranthangi, Pudukottai District confirming the Judgment and Decree dated 15.02.2019 in O.S.No.86 of 2012 on the file of the District Munsif Court, Aranthangi, Pudukkottai District.
For Appellants : Mr.S.Mukunth
Senior counsel for Mr.D.R. Murugesan
For Respondents 1 to 4 : Mr.P. Ganapathi Subramanian
For respondents 6 & 9 : Mr. N. Balakrishnan
For respondents 10 & 11 : Mr. R. Kathiravan
For the Appellants/Petitioners: S. Mukunth, D.R. Murugesan
For the Respondents: P. Ganapathi Subramanian, N. Balakrishnan, R. Kathiravan
A suit for partition is not bad for partial partition where the subject properties comprise an independent estate distinct from other family properties. Furthermore, an adverse inference is drawn against a party who asserts an exclusive oral gift but fails to step into the witness box to prove the same.
Headnote:(A) Code of Civil Procedure, 1908 - Section 100 - Partial partition - Suit not bad when properties of mother and father belong to distinct estates and involve different lines of succession.
(B) Evidence Act, 1872 - Section 114 (illustration g) - Adverse inference - Failure of a party claiming an oral gift to enter the witness box entitles the court to draw an adverse inference.
(C) Suit for partition - Non-inclusion of other properties - Suit is not bad for partial partition if the subject matter properties belong to a distinct estate and the plaintiff has no claim or interest in the other omitted properties.
Facts of the case:
The plaintiff filed a suit for partition of his mother’s property, claiming a 1/5th share. The defendants contended that the suit was bad for partial partition as it did not include the father’s properties, which were already partitioned between the sons in 2007 (Ex.B1). The defendants further claimed the suit property was gifted orally by the mother to the first defendant in 1955. The trial and appellate courts held the oral gift to be unproven and decreed the partition.
Findings of Court:
The court sustained the decree, finding the oral gift claim unproven and the plea of partial partition inapplicable because the mother was alive at the time of the father's property partition, creating two distinct successions. The court drew an adverse inference against the first defendant for failing to testify regarding the alleged gift.
Issues: Whether the suit is bad for partial partition due to the non-inclusion of other ancestral properties, and whether a claim of oral gift can be sustained without evidence.
Ratio Decidendi: A suit for partition is not bad for partial partition when the properties sought to be partitioned belong to an independent estate separate from the ancestral property of the father; the failure of a defendant to testify to prove their specific, exclusively asserted title (oral gift) justifies an adverse inference.
Result: Second Appeal dismissed.
| Table of Content |
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| 1. establishing the maintainability of a partition suit regarding distinct estates and the evidentiary burden of proving an oral gift. (Para 2 , 8 , 13) |
| 2. parties' contentions regarding partial partition, adverse possession, and the non-binding nature of previous partial partitions. (Para 3 , 4 , 5 , 9 , 10 , 11 , 14 , 15) |
| 3. the application of adverse inference due to a party's failure to testify on material facts. (Para 6 , 7 , 12 , 23 , 26) |
| 4. clarification of the scope of partial partition and the inapplicability of precedent to distinct successions. (Para 16 , 17 , 18 , 19 , 20 , 21 , 22 , 24 , 25) |
JUDGMENT
1.The 1st and 10th defendants in O.S. No. 86 of 2012 are the appellants in the present Second Appeal. The Second Appeal was admitted on the following substantial questions of law:
i) Whether the concurrent findings for non-inclusion of suit property in Ex.B1 namely, partition deed is vitiated in view of the admission by PW.1?
ii) Whether the suit for partition in respect of sole item of the suit property excluding other properties covered under Ex.B1 is maintainable as the same is deemed to be a suit for partial partition?
2. I have heard Mr. S. Mukunth, learned Senior Counsel appearing for the appellants; Mr. P. Ganapathy Subramanian, learned counsel appearing for respondents 1 to 4 and 7; Mr. N. Balakrishnan, learned counsel appearing for respondents 6 and 9 and Mr. R. Kathiravan, learned counsel appearing for respondents 10 and 11.
3. The brief facts leading to the present Second Appeal are as follows:
(i) Veerappan Servai and Kamalathal were husband and wife. One Karuppaiah, Mariammal, and the 1st respondent/plaintiff viz., Chidambaram, and the 2nd and 3rd defendants are their legal heirs.
(ii) According to the plaintiff, the father and mother owned separate and independent properties. After the demise of the father, the sons alone had chosen to partition the independent properties of the father behind the back of the daughters. There was a claim for partition after the demise of the father. The sons evaded partition in respect of the father's property and, in respect of the mother's property alone, claiming a share, the plaintiff, one of the sons, has come forward to file the suit for partition.
(iii) The suit was resisted by the defendants contending that the suit was bad for partial partition and that since the property is of the father, the daughters had not been included, as the partition between the brothers would not bind the sisters, who also had a share in the properties. It is also the contention of the defendants that the mother had orally gifted her property to the first defendant even in the year 1955 and that the UDR patta as well as “A” Register had been mutated in the separate name of the first defendant. The plaintiff was therefore not entitled to any share in the property that stood in the name of the mother. It is also the contention of the defendants that right from 1955, when the properties were orally given to the first defendant, there had been no claim to the property and even applying adverse possession, the plaintiff is not entitled to seek partition. The trial Court granted a decree for partition as prayed for. Aggrieved by the said findings, the appellants preferred Appeal Suit in A.S. No. 22 of 2019. The said first appeal also came to be dismissed. Challenging the concurrent findings, the present Second Appeal has been preferred by defendants 1 and 10, one of whom is claiming under the oral gift deed made by her mother in the year 1955. The 10th defendant is claiming under the second entry executed by the first defendant.
4. In his arguments, Mr. S. Mukunth, learned Senior Counsel apppearing for the appellants, firstly contends that the suit was bad for partial partition. Since on the date of filing of the suit, not only the father but also the mother had passed away, and admittedly the properties of the father had not been included in the suit for partition. He would further state
