RAJENDHIRANversusMUTHAIAMMAL @ MUTHAYEE & ORS.

                   [2024] 1 S.C.R. 81 : 2024 INSC 12
                                   Case Details

                                 Rajendhiran
                                         v.
                   Muthaiammal @ Muthayee & Ors.
                         (Civil Appeal No.37 of 2024)
                                03 January 2024
                [Vikram Nath* and Rajesh Bindal, JJ.]
                            Issue for Consideration
       Whether the High Court was justified in allowing the Second
       Appeal filed by the respondents and setting aside the concurrent
       judgments of the trial court and the Sub-Judge dismissing the suit
       of the respondents and decreeing the suit.

                                    Headnotes
       Suit – Suit for declaration – Decreed by the High Court –
       Sustainability of, when on perverse findings and ignoring
       relevant material findings – Suit by the respondent seeking
       declaration that the sale deed executed was null and void;
       that suit property belonged to the respondents and for relief
       of an injunction against the defendants, on the basis of
       an oral partition whereby property was bequeathed to the
       respondents whereas the defendants denied the oral partition
       – Suit dismissed by the trial court and subordinate court –
       However, the High Court allowed the second appeal relying
       on certain documents, to support the existence of an oral
       partition – Correctness:
       Held: Trial court and the first appellate court dealt with the sale
       deeds, and found that those were not sufficient to prove the oral
       partition or in any manner establish the oral partition with respect to
       the survey number in question – High Court failed to consider the
       oral as also the documentary evidence – Only on the basis of the
       two sale deeds and one mortgage deed, which relate to different
       piece and parcels of land, the High Court recorded a perverse
       finding that oral partition had taken place – It also did not deal
       with the other findings recorded by the courts below – Thus, the
       impugned judgment cannot be sustained as it does not conform to
       the scope of s. 100 CPC as also it was perverse on appreciated
       evidence, and also ignored material evidence – Impugned judgment
       and order of the High Court is set aside and that of the trial court

* Author
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      and the first appellate court is confirmed, dismissing the suit of
      the respondent. [Paras 12-15]

          Other Case Details Including Impugned Order and
                            Appearances

      CIVIL APPELLATE JURISDICTION : Civil Appeal No.37 of 2024.
      From the Judgment and Order dated 28.07.2022 of the High Court
      of Judicature at Madras in SA No.351 of 2021.
      Appearances:
      M. A. Chinnasamy, K. S. Gnanasambandan, Mrs. C. Rubavathi,
      C. Raghavendren, Saurabh Gupta, Ch. Leela Sarveswar, Vinod
      Kumar Teng, Manoj Kumar Chowdhary, V. Senthil Kumar, Advs. for
      the Appellant.

               Judgment / Order of The Supreme Court
                                    Judgment
      Vikram Nath, J.
1.    Leave granted.
2.    This appeal, by the defendants, assails the correctness of the
      judgment and order dated 28.07.2022 of the High Court of Judicature
      at Madras whereby the Second Appeal No.351/2021 filed by the
      plaintiff was allowed and the concurrent judgments of the Trial Court
      and the Sub-Judge dismissing the suit of the plaintiff-respondents
      were set aside and the suit was decreed.
3.    Facts in nutshell are :
      3.1 The respondent instituted a suit before the Munsiff Court,
          Tiruchengode registered as OS No.200/2011 claiming relief of
          declaration that the sale deed dated 10.02.2011 executed by
          the first defendant in favour of second defendant was null and
          void and to declare that suit property belonged to the plaintiffs
          and further for relief of an injunction against the defendants.
      3.2 According to the plaint case, the property in question originally
          belonged to one Avinashi Gounder who had four sons namely,
          Arunachalam, Arumugam, Ramasamy and Palaniyappan.
          Plaintiff No.1 is the wife and plaintiff no.2 is the adopted
          son of Arunachalam. The first defendant is the daughter of
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       RAJENDHIRAN v. MUTHAIAMMAL @ MUTHAYEE & ORS.


           Palaniyappan and the second defendant is the vendee of the
           suit property from defendant no.1.
     3.3 According to the plaintiffs, the four brothers had entered into
         an oral partition and the suit property came to the share of
         Arunachalam. Subsequently Arunachalam on 16.07.2003, had
         executed a will whereby the suit property and other properties
         belonging to Arunachalam were bequeathed in favour of the
         plaintiffs. Upon the death of Arunachalam on 30.04.2006, the
         plaintiffs became the absolute owners of the property in suit.
         Further case of the plaintiffs was that plaintiff no.2 and defendant
         no.2 were running a partnership business and the property in
         suit was offered as a security to the Karur Vysya Bank. It was
         the second defendant who had signed the loan papers and
         the security papers with the Bank. As the loan amount could
         not be repaid by defendant no.2, it was plaintiff no.2 who had
         cleared the outstanding loan of the Bank. Further it is claimed
         that defendant no.2 clandestinely obtained the sale deed on
         10.02.2011 in respect of the suit property from the first defendant.
         It was further the case of the plaintiff that the entire property
         which was allotted to Palaniyappan (father of defendant no.1)
         had been sold by defendant no.1 on 15.07.1981 with specific
         boundaries to one Mathiyalagan. It was thus the claim of the
         plaintiffs that the defendants would not have any right over
         the properties of Avinashi Gounder and that the plaintiffs were
         in possession and were cultivating the land in suit but as the
         defendant no.2 tried to trespass the suit property on 24.07.2011,
         the necessity for filing the suit arose.
     3.4 The defendants filed their written statement denying that there
         was any oral partition between the sons of Avinashi Gounder
         with respect to the suit property. They also denied that plaintiff
         no.2 was the adopted son of Arunachalam. The defendants
         had further pleaded that survey number in question had a total
         area of 2.17 cents in which Avanashigounder’s family had 1/3rd
         share i.e. 72 cents. These 72 cents were partitioned amongst
         the three sons of Avanashigounder namely, Arunachalam,
         Ramasamy and Palaniyappan. The fourth son Arumugam had
         died issueless and his share was equally shared by the three
         brothers. Thus, each brother became entitled to 24 cents.
         Palaniyappan, father of defendant no.1 had 24 cents in this
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                   DIGITAL SUPREME COURT REPORTS


             property, out of which 12 cents fell to the share of defendant
             no.1, out of which, she sold 11 cents to the second defendant.
             Plaintiffs had set up a case without any basis only in order to
             deprive the defendants of their property. It was also pleaded
             that there were other co-owners in survey number in question
             who had not been impleaded as defendants, as such the suit
             was bad in law for non-joinder of necessary parties.
4.    The Trial Court framed the following six issues on the basis of the
      pleadings of the parties:
      (i).   Whether the plaintiff is entitled for decree of declaration as
             prayed for?
      (ii). Whether the plaintiff is entitled for decree of permanent injunction
            as prayed for?
      (iii). Whether the husband of the 1st plaintiff executed a will on
             16.07.2003?
      (iv). Whether the 2nd plaintiff is the legal heir of the deceased
            Arunachalam?
      (v). Whether the suit is bad for non-joinder of necessary parties?
      (vi). To what other relief?
5.    The parties led oral and documentary evidence. Both the plaintiffs
      examined themselves as PW 1 and PW 2 and one Mathiyalagan
      was examined as PW 3 and they proved six papers Exh.A1 to A6.
      On behalf of the defendants one Balarajendra was examined as
      DW1 and he proved six papers Exh.B1 to B6. Both the defendants
      did not enter the witness box.
6.    The Trial Court discussed the evidence threadbare and recorded
      the following findings:
      (i).   Both the plaintiffs had pleaded that Arunachalam had executed
             a will on 16.07.2003 but they failed to prove the said will deed
             in accordance to the statutory provisions contained in Section
             68 of the Indian Evidence Act, 1872 and also under Section
             63 of the Indian Succession Act, 1956. Thus, their claim on the
             basis of the will was not found to be substantiated;
      (ii). The suit was bad for non-joinder of necessary parties as the
            co-owners/co-sharers were not impleaded as defendants;
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       RAJENDHIRAN v. MUTHAIAMMAL @ MUTHAYEE & ORS.


     (iii). The plaintiffs were not the owners of the property in suit, they
            had not been able to prove the oral partition and as such were
            found to be not entitled to any relief.
7.   Accordingly, it dismissed the suit, vide judgment dated 08.09.2015.
8.   The plaintiffs preferred an appeal which was registered as Appeal Suit
     No.55/2016. The Subordinate Court, Tiruchengodu, vide judgment
     dated 27.11.2020, after considering the evidence on record, approved
     the findings recorded by the Trial Court and, accordingly, dismissed
     the appeal. Once again specific findings were recorded that the oral
     partition had not been proved by the plaintiffs. For the said purpose,
     both the Courts below had relied upon the evidence led by the parties,
     both oral and documentary.
9.   The First Appellate Court also approved the finding regarding non-
     joinder of necessary parties.
10. Aggrieved by the same, the plaintiffs preferred Second Appeal before
    the High Court, registered as Second Appeal No.351/2021. The
    High Court proceeded on the premise that the only dispute was with
    respect to the oral partition, as to whether oral partition had taken
    place or not and if yes, whether it was duly proved? The High Court
    relied upon Ex.A-3, A-4 and Ex.B-3 to hold that there had been an
    oral partition. Ex.A-3 is the Mortgage Deed dated 13.10.2009. Ex.A-4
    is the Sale Deed dated 15.07.1981. Ex.B-3 is the Sale Deed dated
    02.05.2008. All these three documents were relied upon only for the
    reason that they mentioned boundaries. Based only on the finding
    that oral partition was proved, the High Court allowed the second
    appeal and after setting aside the judgments of the Courts below
    decreed the suit.
11. Heard counsel for the appellants. Despite service of notice, no one
    appeared on behalf of the respondents.
12. The two sale deeds relate to different properties and not to survey
    number in question. Whether any partition with respect to the survey
    number in question had taken place or not, is not borne out from
    the record. The suit property was never recorded in the name of
    the plaintiffs or for that matter, husband of plaintiff no.1, at any time.
    The will which was the basis of the claim of the plaintiff, had not
    been found to be proved in accordance to law. The Trial Court and
    the First Appellate Court had dealt with the documents Exh.A-4 and
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                  DIGITAL SUPREME COURT REPORTS


      B-3, the two sale deeds, and found that these were not sufficient to
      prove the oral partition or in any manner establish the oral partition
      with respect to the survey number in question.
13. Interestingly although the plaintiffs set up a case that the land in suit
    was coming from Avinashi Gounder but on record, two pattas were
    filed which establish that the survey number in question had been
    allotted in the name of plaintiff no.1 and eight others jointly with respect
    to which there was no partition. This fact had been admitted by the
    plaintiffs in their deposition. All these aspects had been considered
    by the Trial Court and the First Appellate Court but the High Court
    failed to consider the oral as also the documentary evidence. Only
    on the basis of the two sale deeds and one mortgage deed, which
    relate to different piece and parcels of land, the High Court recorded
    a perverse finding that oral partition had taken place. It also did not
    deal with the other findings recorded by the Courts below.
14. In view of the above discussion and on the findings recorded above,
    the impugned judgment cannot be sustained as it not only does not
    conform to the scope of Section 100 of the Code of Civil Procedure,
    1908 but also as it was perverse on appreciated evidence, and also
    ignoring material evidence.
15. The appeal is, accordingly, allowed. The impugned judgment and
    order of the High Court is set aside and that of the Trial Court and
    the First Appellate Court is confirmed. The suit of the respondent-
    plaintiff stands dismissed.
16. There shall be no order as to costs.


      Headnotes prepared by: Nidhi Jain      Result of the case: Appeal allowed.