Is property allotted to a coparcener on partition his self-acquired property and not joint family property?

This Appeal Suit is directed against the judgment and decree dated 06.12.2023 passed in O.S.No.42 of 2019 on the file of the learned Principal District Judge, Dindigul.

The appellants are the plaintiffs in O.S.No.42 of 2019 on the file of the Principal District Court, Dindigul. The respondent is the defendant in that suit. The appellants/plaintiffs filed the suit for partition seeking 3/4 share in the suit properties.

For the sake of convenience, the parties are referred to as per their rank before the trial Court.

The brief facts are as below:

Ponnusamy Thevar. Upon oral partition among the brothers Karuppathevar, Perumal Thevar, Ponnusamy Thevar and their father, the suit properties were allotted to Ponnusamy Thevar. The said Ponnusamy Thevar is the father of the plaintiffs and the defendant. The suit properties have been enjoyed by them as common family properties under the head of the father as kartha. The plaintiffs got married and they are living separately in their matrimonial home. In the meanwhile, their father went missing three years back. The defendant has been maintaining the suit properties as common family properties. In spite of requests, the defendant has not taken any steps to lodge a police complaint, the plaintiffs suspect the defendant. So, there was a misunderstanding between them. Hence, the plaintiffs demanded the defendant to divide the suit properties and allot their 3/4 share. But, the defendant has been evading partition. The defendant got patta in his name and tried to alienate the suit properties. Hence, the plaintiffs sent a legal notice dated 13.11.2018 to the defendant, who sent a reply dated 20.11.2018 with falsehood. So, the plaintiffs have filed the suit for partition.

During the trial, on the plaintiffs' side, the 1st plaintiff examined herself as P.W.1 and marked exhibits as Ex.A.1 to Ex.A.14. On the defendant's side, the defendant was examined as D.W.1, in addition, D.W.2 to D.W.4 were examined. Ex.B.1 to Ex.B.5 were marked.

On appreciation of evidence and the submissions made on behalf of the parties, the trial Court has held that Muchalikka dated 21.03.2012 is not genuine, the suit is not bad for non-joinder of Ponnusamy, however the defendant proved the settlement deed dated 21.05.1996 and the same has been acted upon and hence, the plaintiffs are not entitled for partition and dismissed the suit by its judgment and decree dated 06.12.2023.

Aggrieved by the judgment and decree of the trial Court dated 06.12.2023, the appellants have preferred this appeal.

The learned counsel for the appellants/plaintiffs has submitted that the suit properties originally belonged to Ochammal and Karuppa Thevar, who had five children Karuppa Thevar, Perumal Thevar, Ponnusamy Thevar, Karuthammal and Perumayammal. The said Karuppathevar, along with his three sons, orally partitioned the suit properties and other properties, in which Ponnusamy Thevar, the father of the plaintiffs and defendant, derived the suit properties. Their father held the estate over the suit property, not as his separate property, and he was the unit head representing all his branches. The defendant took stand in his written statement that the suit properties are absolute properties of father Ponnusamy Thevar, that the plaintiffs executed Muchalika on receipt of their share amount on 21.03.2012, the said Muchalika is unregistered one and there is no recital about the suit property and that the father executed Ex.B.1 settlement deed in 1996 and the said settlement was acted upon, the defendant is in possession and enjoyment of the suit properties. The defendant took another plea of ouster as the defendant has been in enjoyment from 1996 and the suit was filed after 23 years in 2019, so the suit is barred by limitation. The defendant, as D.W.1, has also admitted in his evidence that his father, Ponnusamy Thevar, executed a settlement deed in respect of ancestral property. The trial Court overlooked this evidence. The evidence of D.W.2 to D.W.4 was only with regard to Muchalika, that too, the trial Court has not taken into consideration for the suit, as it was not relevant to the suit since there is no property mentioned therein. When the defendant takes a plea that he has given an amount towards a share to the plaintiffs, it is presumed that the plaintiffs have a share in the suit properties. As there was a dispute between the father and the defendant, the settlement deed was torn by Ponnusamy Thevar. Thereafter, the said Ponnusamy Thevar went missing, for which the defendant alone is responsible, as the plaintiffs got married and are living with their families. The trial Court has also accepted the plea of missing but found the suit is not bad for non joinder.

The learned counsel for the appellants/plaintiffs further argued that the only issue is regarding Ex.B.1 settlement, based on which the suit was dismissed. The defendant has not produced the original and has only marked the certified copy. The defendant stated that he made a sale agreement with one Senthilkumar and handed over the original settlement deed to him. But the said Senthilkumar was not examined. So, Ex.B.1 can be taken only for secondary evidence in the absence of production of the original. No witness to Ex.B.1 was examined. So, Ex.B.1 is not a genuine and true one under the provisions of Section 68 of the Indian Evidence Act. The trial Court has not touched this point. The suit properties are ancestral properties and on the same footing, the property was mortgaged by Ponnusamy. So, the suit properties are not self acquired properties of Ponnusamy, when one of the co-owners is in possession, it would be taken as constructive possession of the plaintiffs. In a suit for partition, the plea of ouster cannot be taken, however, the plea of ouster was not proved by the defendant, though the defendant has patta in his name that patta would not convey any title. Therefore, the dismissal of suit for partition by the trial Court is not sustainable in law and the same has to be set aside. Hence, the appellants/plaintiffs' counsel prayed for allowing the appeal.

In support of his contention, he has relied on the following citations:

Per contra, the learned counsel for the respondent/defendant has argued that the suit properties and other properties belonged to Karuppa Thevar and Ochammal, who had five children. It is the specific pleading of the plaintiffs that in an oral partition the suit properties were allotted to Ponnusamy Thevar, if so the suit properties became his self acquired properties as per law. The learned counsel relied on the ruling of the Hon’ble Supreme Court in Uttam /v/ Saubhag Singh & Ors. ((2016) 4 SCC 68) that once partition is effected, the share allotted to a coparcener ceases to retain the incidents of joint family property and becomes his separate property. The plaintiffs cannot continue the claim as if it is ancestral property. The defendant’s specific case is that his parents, Ponnusamy Thevar and Chokkathangam, gifted the suit properties to the defendant by executing Ex.B.1 settlement deed dated 21.05.1996 in respect of the suit properties. The defendant has been in possession of the same from 1996 by mutation of revenue records and also obtaining patta and paying kists. The plaintiffs knew about these facts and have not questioned the settlement deed for the past 23 years from 1996 and laid the suit in 2019, which is barred by limitation. Moreover, the plaintiffs have not taken steps for cancellation of the settlement deed. Unless the settlement deed is cancelled or set aside, the plaintiffs cannot seek any relief in the suit properties. The 1st plaintiff alone was examined, and the other two plaintiffs who seek a share have not entered into the witness box and deposed or subjected themselves to cross examination regarding the settlement deed. So, the plaintiffs admitted the execution of the settlement deed and also they have not objected while marking the certified copy of the settlement deed as Ex.B.1. Hence, once execution is admitted, no witness needs to be examined. The defendant has explained the non-production of the original as he handed over the same to his proposed purchaser upon a sale agreement. The trial Court has properly appreciated the evidence and observed that the non production of the original settlement deed will not affect the case of the defendant. Therefore, the trial Court correctly concluded that the defendant is in possession and enjoyment of the suit properties based on Ex.B.1 settlement deed and the plaintiffs are not entitled for partition and hence there is no need for interference in the said finding of the trial Court. Hence, the appeal may be dismissed.

The points for consideration in this appeal are: 1. Whether the Ex.B.1 registered settlement deed dated 21.05.1996 is true and valid one in the eye of law? 2. Whether the judgment and decree of the trial Court are not sustainable in law, if so, whether the appeal is to be allowed?

Point Nos.1 & 2:- Both parties have made rival arguments in respect of their respective cases. On hearing both sides and on perusing the records, it is clear that the suit properties and some other properties belonged to the grandparents of the plaintiffs and the defendant, namely Karuppathevar and Ochammal. They had three sons viz., Karuppa Thevar, Perumal Thevar and Ponnusamy Thevar and two daughters Karuthammal and Perumayammal. Their three sons and father Karuppathevar orally partitioned their properties, in which the suit properties were allotted to Ponnusamy Thevar. The said Ponnusamy Thevar is none other than the father of the plaintiffs and defendant through Chokkathangam. Hence, it is very clear that the suit properties were allotted to the father of the plaintiffs and defendant in a partition that took place among the family members.

A Division Bench of the Hon’ble Supreme Court has recently held in Angadi Chandranna v. Shankar & Ors. (2025 INSC 532) that, ‘after a partition, each party receives a separate and distinct share which becomes their self-acquired property with absolute rights to sell, transfer, or bequeath’ and that ‘after the joint family property has been distributed in accordance with law, it ceases to be joint family properties and the shares of the respective parties become their self-acquired properties.” So, there can be no doubt that the suit properties are self acquired properties of the father Ponnusamy. So, the suit properties are not ancestral properties and are not Hindu Undivided Family properties of the plaintiff and defendants as rightly argued by the counsel for the respondent/defendant relying on the ruling of the Hon’ble Apex Court in the case of Uttam case (2016) 4 SCC 68 (Stated supra). It is pertinent to note that the plaintiffs themselves in their pleading in the plaint stated that in an oral partition their father derived the suit properties as his share. Hence, they cannot say that the suit properties are their ancestral properties.

From a perusal of evidence and records, it is seen that the defendant took a stand that his parents executed the settlement deed Ex.B.1 in his favour on 21.05.1996 in respect of the suit properties. It is his further stand that the plaintiffs were paid Rs.40,000/- each towards their share over the suit properties and the plaintiffs executed Ex.B.4 Muchalika. It is further stated that the plaintiffs have not added their father as a party as he was alive and he was not declared civil dead though their father was missing for five years. However, on perusal of the findings of the trial Court upon appreciation of the evidence of both sides, Ex.B.4 Muchalika is not helpful to this case and this case is not bad for non-joinder of father Ponnusamy. The defendant has not challenged the said finding by way of filing a separate appeal, much less a cross-appeal in this appeal. The parties are also not making rival arguments upon the said issue. So, the said finding regarding Muchalika and non joinder of a necessary party became final. The only point to be challenged is regarding Ex.B.1 settlement deed in this appeal. Hence, the main dispute between the parties is in respect of the settlement deed dated 21.05.1996, which is marked as Ex.B.1.

On perusal of the appeal records, trial Court records and on consideration of arguments advanced by both sides, it is clear that the settlement deed is a registered one. It was not disputed. Admittedly, the original settlement deed was not filed instead, a certified copy of the settlement deed is marked as Ex.B.1. The defendant contended that the original was handed over to his proposed purchaser based on a sale agreement. The settlement came to be executed in 1996. The plaintiffs have not questioned the same till the filing of the suit and only in this suit contended that the settlement is not a genuine one and no witness was examined to prove as per Section 68 of the Indian Evidence Act. It is replied on the defendant's side that the plaintiffs have not objected at the time of marking the certified copy and, having permitted the document to be marked and having contested on merits, the plaintiffs cannot contend that Ex.B.1 should be discarded solely for the reason that the original was not produced. From perusal of records, the plaintiffs have not specifically denied the Ex.B.1 settlement deed by way of reply statement even after filing of written statement by the defendant. Hence, the contention of the respondent/defendant side that the execution of the settlement deed is admitted by the plaintiffs is accepted since there is no specific denial, if it is so, the settlement deed being registered is proved under the proviso of Section 68 of the Indian Evidence Act.

The material records of this case reveal that the disputed document is a registered one and therefore, as guided by the settled legal principle that a document is presumed to be genuine if the same is registered, as held by the Hon’ble Supreme Court in the case of Prem Singh and Ors. v. Birbal and Ors. reported in (2006) 5 Supreme Court Cases 353. The relevant portion of the said decision reads as below:

Section 68 of the Indian Evidence Act is extracted hereunder:

Except for the argument that the original was not produced, the plaintiffs have not denied the settlement deed, which is a registered one. Since all the parties are plaintiffs in a suit for partition, the plaintiff can very well examine the alleged attestors to the deed to substantiate their contra version. Therefore, this Court is of the view that the execution of the settlement deed by the parents of the defendant was not specifically denied and so, the respondent/defendant is entitled to invoke the provisions of Section 68 of the Indian Evidence Act. The trial Court has properly appreciated the evidence adduced in the case on hand and hence, the conclusion of the trial Court in respect of the settlement deed as valid and acted upon is a correct one.

The specific argument of the defendant's side is that until the settlement deed is cancelled or set aside, the plaintiffs cannot seek partition as the deed is the main obstacle to the plaintiffs. On perusal of records, the defendants in their written statement clearly pleaded that his parents executed a registered settlement deed dated 21.05.1996 in his favour. Thereafter, the defendant mutated the revenue records and has been in possession and enjoyment for the past about 25 years from 1996. The defendant marked patta and kist receipt as his exhibits. Hence, the plaintiffs, being sisters of defendant, might have known about the execution of the settlement deed. Even after filing written statement with contents about the execution of registered settlement deed, the plaintiffs have not taken any steps to cancel or set aside the same by way of filing a case before appropriate forum, much less to add a prayer for cancellation of settlement deed in the suit on hand. Therefore, the plaintiff cannot seek for partition without setting aside or cancelling the settlement deed as rightly put forth by the defendant by relying on ruling (1996) 7 Supreme Court Cases 767 in MD.Noorul Hoda /v/ Bibi Raifunnisha and Others case (stated supra) in which it is held in paragraph No.6 as follows:

As discussed above, the settlement deed dated 21.05.1996 under Ex.B.1 is proved by the respondent/defendant and the trial Court has the right to hold that it is valid and proved. Therefore, the plaintiff cannot seek for partition in respect of the suit property covered in Ex.B.1 settlement deed. Considering the above facts and circumstances, the judgment and decree of the trial Court do not warrant interference and the same has to be confirmed. The points are answered accordingly. Thus, this appeal fails.

In the result, this Appeal Suit is dismissed. The judgment and decree dated 06.12.2023 passed in O.S.No.42 of 2019 on the file of the learned Principal District Judge, Dindigul are confirmed. No costs. Consequently, the connected Civil Miscellaneous Petitions are closed. 10.09.2026