Full Judgment Text
Non-reportable
2026 INSC 139
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. of 2026
(@Special Leave Petition (C) No.16254 of 2025)
J. Muthurajan & Anr.
…Appellants
Versus
S. Vaikundarajan & Ors.
...Respondents
With
Civil Appeal No. of 2026
(@Special Leave Petition (C) No. 16880 of 2025)
J U D G M E N T
K. VINOD CHANDRAN, J.
Leave granted.
2. Orchestrating the dissolution of a business empire
built by the father, the children resorted to arbitration,
conciliation and litigation to go their independent ways with
their share of the pie, as is common in families with
multiplying numbers and proliferating assets. Two out of the
Signature Not Verified
Digitally signed by
Deepak Guglani
Date: 2026.02.10
13:46:25 IST
Reason:
four siblings found an amicable partition through
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arbitration. The two remaining, along with their families are
grappling with each other for an equitable partition of the
huge assets and the vast properties amassed over the years.
The respective families are represented by their eldest, the
brothers, Vaikundarajan and Jegatheesan who along with
their immediate kin stakes equal claim to the assets, left to
their joint share in the earlier arbitration and those
accumulated thereafter. Vaikundarajan group relies on a
Conciliation Award, strongly refuted by the Jegatheesan
group, who took recourse first to arbitration, which failed
and then to litigation. Assailed herein is a judgment which
confirmed the rejection of a suit filed by the Jegatheesan
group, allowing an application under Order VII Rule 11 of
1
the Civil Procedure Code, 1908 . We refer to the parties by
their names and the documents from Civil Appeal @SLP (C)
No.16254 of 2025.
3. Differences simmering for some time, surfaced in the
year 2018 and Vaikundarajan group asserts that on a
request made by Jegatheesan, their half-brother Ganesan,
acted as a Conciliator to bring about a settlement by a fair
1
For brevity, ‘The CPC’
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partition. A Partition Deed termed Kaithadi Baga Pirivinai
2
Pathiram was drawn up with the entire assets included in
two Schedules. The division, alleged to be as per custom,
was made by Jegatheesan with Vaikundarajan at the first
instance choosing Schedule ‘C’ and the remaining Schedule
‘A’ left to Jegatheesan. The parties agreed by putting their
signatures on the KBPP , the translated copy of which is
produced as Annexure P-1 dated 31.12.2018.
4. The Conciliation Award drawn up by Ganesan, their
Conciliator/half-brother is produced as Annexure P-2 dated
02.01.2019. While Jegatheesan group accepts and admits
their signatures on the KBPP , they maintain that it was just a
tentative draft, not intended to be acted upon without further
deliberation; especially since the document had to be
stamped & registered to confer it the status of a partition
deed. Jegatheesan also denies having made the division,
and the group in one voice denies that there was ever a
conciliation and opposes the Conciliation Award as one
fabricated, without their knowledge and to which they were
never parties. The Conciliation Award was an afterthought,
2
For brevity, ‘the KBPP’
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alleges Jegatheesan group; that document itself having been
prepared far later to their group having resiled from the
KBPP, which deed itself tilted the scales substantially in favor
of the Vaikundarajan group. The fabrication was also
intended to thwart any attempt of the Jegatheesan group to
have an equitable partition by resort to legal remedies,
either through arbitration or by litigation. The suit now
rejected was initiated by the Jegatheesan group having
failed in their attempt to initiate an arbitration as also their
attempt to abruptly end the proceedings initiated by
Vaikundarajan group to execute the Conciliation Award.
5. Sh. Gopal Shankaranarayanan and Sh. V. Prakash,
learned Senior Counsel appeared for Jegatheesan group,
the appellants/plaintiffs and Sh. Mukul Rohatgi and Sh.
Niranjan Reddy, learned Senior Counsel appeared for
Vaikundarajan group, the respondents/defendants.
6. Sh. Shankaranarayanan, took us through the
communications immediately after the KBPP, to contend that
Jegatheesan had objected to the partition as per the KBPP at
the first instance and sought for an arbitration as was done
before. The correspondences do not indicate a conciliation
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having been carried out in accordance with Part III of the
3
Arbitration and Conciliation Act, 1996 as it existed then.
None of the requirements as is mandated under Sections 61
to 74 of the Act of 1996 have been followed and the alleged
Award is passed behind the back of Jegatheesan group as is
evident from the documents on record. It is pointed out that
the so-called Conciliation Award surfaced long after the
dialogue commenced with respect to the KBPP; which was
resiled from by the Jegatheesan group since it was not an
equitable partition, making it highly suspect. Though the
Jegatheesan group was unsuccessful in initiating an
arbitration and putting an abrupt end to the execution
proceedings, this Court preserved their rights which
enabled them to initiate the present suit challenging the
KBPP ; as arbitrary and not one intended to be acted upon
and the Conciliation Award; as one vitiated by fraud. It is
pointed out from the recitals in the document dated
02.01.2019 that it is prepared on 31.12.2018, which is belied
by the fact that some of the members admittedly signed it on
an earlier date. The learned Senior Counsel would urge that
3
For brevity ‘the Act of 1966’
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there was no cause for rejection of the suit at the threshold,
especially when the plaint cannot be rubbished as having
set up no cause of action nor is it barred by any law or
vitiated by any of the other grounds found in Order VII Rule
11 of the CPC and not in the least is vexatious. A compilation
of decisions is placed before us on the principles regulating
consideration of an application under Order VII Rule 11, the
inadequacy of the remedy under Section 47 of CPC, the law
on partition deeds and conciliation awards as also to canvas
the contention raised on fraud which vitiates every
proceeding and renders any decree, award or order, a
nullity
7. Sh. Prakash, learned Senior Counsel takes us to the
specific provision of Section 61 and argues that the minute
Vaikundarajan pleads a custom, of one of the parties
dividing the partible assets into two separate schedules and
the other party given the first choice to take one, there can
be no application of Part III. There is no Conciliation Award
passed under the Act of 1996 and also considering the plea
of the Award set up, being vitiated by fraud, there is no
status of an Arbitral Award conferred on it to avail the
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remedy of execution akin to that from a decree. It is also
pointed out that the execution proceedings in which the
appellants have filed objections under Section 47 of the CPC
have been clubbed with the suit, for joint trial. The suit was
necessitated since, Ganesan the so called Conciliator was a
necessary party in the resolution of the dispute based on the
challenge raised against the so-called Conciliation Award;
who was not a party to the conciliation and hence was
outside the scope of Section 47 of the CPC.
8. Sh. Rohatgi, learned Senior Counsel at the outset
points out that there are two admitted facts which the
Jegatheesan group cannot wriggle out of. All the members
of their group have put their signatures to the KBPP , which is
a lengthy document; a deliberate action involving
considerable time for the mere execution, especially since it
has been signed on all the 308 pages by the several
members. The document discloses the two Schedules and
the division of assets which include, running industrial
concerns, valuable shares, vast tracks of immovable
property, mining leases and so on. None of the family
members, who put their signature to the document can now
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contend that they were not aware of the division or the
assets they would be entitled to, on its execution. The
second admitted fact, according to Vaikundarajan is that it
was Jegatheesan who first went to Ganesan to conciliate;
seriously disputed by the learned Senior Counsel appearing
for Jegatheesan.
9. Yet again, Sh. Rohatgi forcefully argues that the very
initiation of the suit is an abuse of process since the
appellants had failed in three attempts before Courts, to
wriggle out of the conciliation. The observations in the
decisions are binding inter partes and disable the appellants
from initiating a suit challenging the KBPP , which, read with
the Conciliation Award is a decree, possible of execution
under Section 36 of the Act of 1996; upheld by this Court and
remedy left to raise objections, only in the execution
proceedings. The attempt to initiate arbitration had failed,
which forecloses such right; finding Annexure P-2 dated
02.01.2019 to be a Conciliation Award under the Act of 1996.
A further attempt was made through a revision filed, to
frustrate the remedy of execution, which was rejected by
the High Court with a reasoned order affirmed by this Court
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by dismissal of the SLP filed against that order. The
execution thus is pending, and the appellants have filed
their objections thereat. Without pursuing their remedy
permitted by this Court, the attempt is again to challenge
the KBPP and the Conciliation Award by a freshly instituted
suit which has been found by the Trial Court and the High
Court to be not possible under Clauses (a) and (d) of Order
VII Rule 11 of the CPC.
10. In addition, it is contended that the present attempt
also falls foul of Section 47 of the CPC and is in turn an abuse
of process of law. Part III of the Act of 1996 and the
provisions therein, are read over to urge that if the parties
have agreed to a settlement and the Conciliator has
endorsed the terms of the settlement it takes the character of
an Award under the Act of 1996 which is a deemed decree
capable of being executed under Section 36, taking
recourse to the remedy under the CPC. The KBPP and the
Award are inseparable and read together, it takes the form
of a decree capable of execution by either party. The only
possible remedy against it is under Section 34 of the Act of
1996, which having not been availed of till date, the
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execution has to proceed seamlessly. The contention that
despite having affixed their signatures in the KBPP , they did
not read it and hence is not enforceable, are mutually
destructive and per se dishonest. Insofar as the ground of
abuse the learned Senior Counsel would place reliance on
Shri Mukund Bhavan Trust and Others v. Shrimant
Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle
4
and Another , Dahiben v. Arvindbhai Kalyanji Bhanusali
5
(Gajra) D. Thr. LRs and Ors. and Rajendra Bajoria and
6
Ors. v. Hemant Kumar Jalan and Ors. The learned Senior
Counsel also took us through the decisions inter partes to
contend that the contentions taken in the suit and arguments
addressed before this Court, have been negated earlier,
which binds the parties who were agitating the very same
cause in the earlier instances too.
11. Sh. Reddy, learned Senior Counsel would take us to
the communications addressed after the KBPP was executed,
to contend that though Vaikundarajan had specifically
referred to Ganesan and efforts taken by him at the instance
4
(2024) 15 SCC 675
5
(2020) 7 SCC 366
6
(2022) 12 SCC 641
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of Jegatheesan, it has not been categorically denied in the
response made. It is reiterated that the remedy now
available is only to pursue the objections under Section 47
of the CPC, which the appellants have resorted to. The
reliefs prayed for in the objection and suit are pointed out to
argue that they are similar and it would only lead to
multiplicity of litigation and possibly conflicting orders. The
attempt is only to stay the Execution Proceedings and
pursue the suit so as to further delay the process. Reference
is specifically made to Electrosteel Steel Limited v. Ispat
7
Carrier Private Limited and MMTC Limited v. Anglo
8
American Metallurgical Co. Ltd. to contend that the
remedy under Section 47 is a wholesome one which alone
can be pursued at this point. The translation of the document
dated 02.01.2019 is also seriously challenged, with another
translation which indicates that the recital in Tamil is to the
effect that “final deed dated 31.12.2018 was prepared”.
12. The dispute between the two groups, represented by
the two brothers, boils down to how the KBPP dated
31.12.2018 and the so-called Conciliation Award dated
7
(2025) 7 SCC 773
8
2025 SCC OnLine SC 2328
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02.01.2019 are to be construed. The Vaikundarajan group
asserts that the only possible mode of construction is to read
it together, which gives it the status and effect of a
conciliation award under Part III of the unamended Act of
1996. The Jegatheesan group insists that there was no
conciliation and the so-called Award dated 02.01.2019 is a
fabricated document and the KBPP is vitiated by reason of
undue influence, coercion and misrepresentation under
which it was executed, also resiled from immediately after
finding the partition to be unequal and inequitable. The very
fulcrum of the arguments of the Vaikundarajan group is
based on the earlier litigation which according to them
restrict the remedy of the appellants; the Jegatheesan
group, to contest the execution filed under Section 36 of the
Act of 1996. Hence, it is imperative that we look at the
earlier decisions of the High Court of Madras which, inter
partes , have attained finality by the dismissal of the SLPs
filed, in which orders this Court made certain reservations
with respect to rights of the appellants. The binding nature
of the decisions of the High Court and the escape valve
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provided through the liberty reserved by the High Court or
this Court would in fact decide the questions raised herein.
13.
After the KBPP dated 31.12.2018 was executed by all
the members of the two groups, there occurred a series of
correspondence between the two brothers regarding the
partition. It is to be immediately noticed that, as admitted by
both the parties, all the members of the two families did not
put their signature on a particular day or on the day shown
in the deed. In fact, the admission is to the extent that the
signatures were put before and even after the date shown
on the KBPP, by some members of both the families.
Jegatheesan group also pleads in their suit that some of their
family members were abroad between 29.12.2018 and
02.01.2019. This is refuted on the specific plea that they had
affixed their signatures prior to their going abroad. It is also
pertinent that Vaikundarajan’s assertion is of a conciliation
by Ganesan at the instance of Jegatheesan, the latter
disputes it. There is neither any such communication
exchanged placed on record nor a substantiation of the
procedure under Part III of the Act of 1996 resorted to. The
contention is attempted to be raised on the basis of the
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veiled reference to Ganesan and his intervention in the
matter by Vaikundarajan, which is not specifically disputed
by Jegatheesan, persuading us to draw inferences. The
document dated 02.01.2019 from the recitals therein leave a
lot to be desired, especially with respect to the statement of
all the executants having signed the KBPP in the presence of
the Conciliator.
14. On 14.01.2019, Jegatheesan emailed his brother
Vaikundarajan accusing him to have occasioned financial
crisis in the businesses. Jegatheesan hence suggested
parting of ways by an equitable division of the assets.
Vaikundarajan did not reply to the same and Jegatheesan
followed it up with a communication on 23.01.2019 where he
specifically raised the issue of the KBPP dated 31.12.2018,
admittedly signed by himself and his family members. He
claimed that such execution was only at the instance of
Vaikundarajan. It was also alleged that the division was not
at all fair and equitable which they have realized after
deliberating on the division effected. The partition deed
dated 31.12.2018 was expressly revoked by the said letter.
This was responded to by Vaikundarajan by a
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communication dated 24.01.2019 wherein he spoke of a
request having been made through the elder half-brother
Ganesan and also pointing out certain disputes with respect
to the operation of accounts of the running concerns. It was
stated in unequivocal terms that the partition has already
been carried out by the deed of 31.12.2018, which however
was not referred to in the first communication of Jegatheesan
dated 14.01.2019. The said communication ended with a
request that if Jegatheesan decided to have the partition as
per the KBPP, before the end of the year, Vaikundarajan was
willing. Jegatheesan replied through Annexure P-6 dated
05.02.2019 refuting the statements made by Vaikundarajan
and seeking an arbitration by a retired Judge of this Court
who had earlier acted as an Arbitrator in settling the
disputes in the family. This was replied to by Annexure P-7
dated 18.02.2019 wherein the mediation through Ganesan
and the partition having been completed by execution of the
deed, was reaffirmed. The request for an arbitration by a
named retired Judge of the Supreme Court was specifically
declined asserting that there is nothing more to be done
since the partition stood concluded as on 31.12.2018. This
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was contested by Jegatheesan in his reply dated 09.03.2019.
Again, a request was made to share the complete details of
the assets so as to effectuate an equitable partition which
was replied to by Annexure P-9 dated 17.03.2019.
15. It has to be observed with emphasis that the
Conciliation Award of 02.01.2019 was not referred to by
Vaikundarajan in any of these communications despite the
emphatic references to intervention of Ganesan and the
KBPP . Having reached a stalemate Jegatheesan group issued
a notice through an Advocate, Annexure P-10 dated
28.03.2019, requesting arbitration through a named retired
Judge of this Court. The request was declined by Annexure
P-11 dated 12.04.2019, by the Advocate of the
Vaikundarajan group wherein for the first time the
proceeding dated 02.01.2019 was referred to and
contended that it has the status and effect of an Arbitral
Award under the Act of 1996.
16. Jegatheesan group hence approached the High Court
under Section 11 of the Act of 1996 for appointing an
Arbitrator which petitions were heard alongwith O.A. No.
543 of 2019 which sought an injunction restraining the
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Vaikundarajan group from giving effect to the KBPP; all
rejected by Annexure P-16. After noticing the facts as also
the KBPP and the Conciliation Award, reference was made to
the admitted execution of the KBPP and it was observed that
if there is a challenge to the same on the ground of coercion
then the remedy would be to seek a declaration that the
KBPP cannot be effectuated. The plea of fraud was found to
be general and vague since admittedly KBPP was signed by
the appellants. It was categorically held in paragraph 19 that
if the partition deed is not a result of conciliation proceeding
then the document is in settlement of the disputes in the
family, as per the customs and practice prevailing in the
community. The learned Judge found that the absence of
stamping or registration of KBPP was not very significant,
since then, it has the trappings of a family arrangement. The
conclusion was that if the execution of the deed was on
account of undue influence, coercion and
misrepresentation, the document is only voidable which has
to be set aside in the manner known to law, ‘by the Civil
Court after trial’(sic) . On the other hand, if it was the result of
conciliation proceedings, it was held that the same could be
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assailed under Section 34 of the Act of 1996, wherein the
question of insufficient stamp duty and registration could
also be agitated.
17. We cannot but find that the remedy of the appellants to
challenge the KBPP or the Award was not foreclosed by the
judgment of the High Court. What stood foreclosed is the
initiation of arbitration, that too on the assumption that the
documents of 31.12.2018 & 02.01.2019 together constitute a
Conciliation Award. An SLP was filed, the order in which is
produced as Annexure P-18, wherein despite refusing
interference under Article 136 of the Constitution of India,
the appellant was left with ‘liberty to work out the remedy in
accordance with law’(sic) .
18. The appellants then approached the Madras High
Court with three revisions to strike out the proceedings in
EP No. 61, 62 and 63 of 2019 filed before the Principal
District Judge, Tirunelveli, seeking execution of the
conciliation award. The said revisions were heard together
and dismissed by Annexure P-20 Order, which essentially
followed the earlier decision in Annexure P-16. The learned
Single Judge expressed hope that the dispute having arisen
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between close family members, there could be mediation,
to facilitate which a Mediator was appointed on the request
of Vaikundarajan group. It was also observed that if the
mediation fails, Jegatheesan group would be entitled to
raise all issues before the Executing Court. An SLP filed
against the said order also stood rejected by Annexure P-21
which again made a caveat that ‘none of the observations
made in the impugned judgment shall hamper the Executing
Court in deciding the matter on its own merits’(sic) . Hence,
based on the contentions left open to be decided by the
High Court and the liberty reserved to avail remedies in
accordance with law, at the earlier point, we are of the
opinion that the challenge against the KBPP and the Award is
still at large.
19. It cannot be assumed for a moment that what was
intended by Annexure P-21, the rejection of the SLP against
the judgment rejecting the prayer to strike off execution
proceedings as such, would confine the agitation of such
claims before the Executing Court alone. If the Executing
Court finds that the KBPP is not a result of conciliation and
does not constitute an Award under the Act of 1996 then
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necessarily, it would be open for the Vaikundarajan group
who stands by the KBPP to take remedies for enforcement of
the same, even as a family arrangement; in which event it
cannot be said that the rights of the Jegatheesan group
would stand fully precluded. The remedy against the KBPP
cannot be left unresolved, especially when liberty was left
to challenge it in a Civil Court.
20. The essential question the High Court considered at
the first instance, rejecting the plea for arbitration, was as to
whether the KBPP and the document of 02.01.2019, together
make out an award; an executable decree under Section 36
of the Act of 1996 or whether it is a partition deed or a family
arrangement, the last in view of absence of stamping &
registration. It is hence, the High Court held that the
challenge against the KBPP could be made before a Civil
Court or application filed under Section 34 of the Act of
1996, depending on the nature of challenge. The remedies
were thus left open by the High Court itself in Annexure P-
16, which reservation was affirmed by this Court while
rejecting the SLP.
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21. We cannot but notice that on two aspects the High
Court fell into a serious error, which assumes relevance,
considering the liberty left to the appellants. The first error
was in finding the allegation of fraud to be without basis for
reason of the admitted execution of the KBPP . Though it was
argued vigorously that both the KBPP and the Award are to
be read together, it can be so done only if it is found that the
conciliation had proceeded under Part III of the Act of 1996
and culminated in an Award as contemplated under Section
73 of the Act, giving it the status and effect of a Settlement
Agreement under Section 74.
22. We cannot but notice that the contention taken by the
Jegatheesan group from the inception and in the present
suit, against the KBPP and the Award are distinct and
different. While the execution of KBPP is admitted, the
agreement was revoked by the Jegatheesan group after a
few days. The contention against KBPP is that the appellants
did not get enough time to go through the same and they
were made to execute on undue influence, coercion and
misrepresentation. Only after a studied deliberation on the
division of assets, it was found that the partition was tilted
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substantially in favour of the Vaikundarajan group. It is not
uncommon that in family arrangements, the younger
members succumb to the dictate of the eldest, and on
further deliberation and introspection, especially in
partitions, raise disputes on the inequitable division. Here,
we have to reiterate pertinently that the remedy to file a civil
suit against the KBPP was reserved to the appellants even at
the first instance.
23. Insofar as the award dated 02.01.2019, we cannot but
notice that the earlier communications between the brothers
did not at any point refer to a conciliation having been
initiated and concluded under Part III of the Act of 1996,
though reference was made to an intervention by the elder
half-brother, Ganesan. We are also not able to find any
documentary substantiation of the conciliation having been
initiated and carried out under Part III of the Act of 1996.
Even if we accept the contention of the Vaikundarajan group
that a settlement arrived at between the family members
could also be an Award under the Act, as per sub-section (2)
of Section 73; the Settlement Agreement, which is essentially
the KBPP has not been authenticated by the Conciliator as is
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mandated under sub-section (4) of Section 73. The
document dated 01.02.2019 produced as Annexure P-2 is
later to the KBPP and is not signed by any of the parties to
the settlement. In this context we also observe that in
Annexure P-2, the so-called Conciliator alone has put his
signature to the document, categorically stating that the
KBPP was signed in his presence by all the members. This
has to be considered in juxtaposition with the admitted
position that all the members did not sign it on 31.12.2018
and some of them were abroad till 02.01.2019, that is a plea
specifically taken in the present plaint.
24. We may not be mistaken as finding the Award to be
not one issued under the Act of 1996, but it raises serious
questions regarding the Award, which grounds are pleaded
in the suit. The specific contention taken against the Award
is that the same is vitiated by fraud, being a fabricated
document; created only to give the KBPP the sheen of an
Award under the Act of 1996, created behind the back of the
Jegatheesan group and to their detriment.
25. The other error in Annexure P-16 is that referring to
the custom, it was held that the implied consent by reason of
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execution of the KBPP results in a finding of waiver of the
provisions of Part III specifically, Section 61-74 of the Act of
1996. We are unable to accept the said finding especially
since there is no partial waiver, of the provisions,
contemplated. Yet again we also notice the contention
raised by the appellants that if custom is resorted to there
can be no application of Part III of the Act of 1996, which too
we cannot subscribe to. On a reading of Section 61, any
conciliation between two parties brought about by following
the procedure in Part III of the Act of 1996 would definitely
get the status and effect of an Award under the Act of 1996
unless the parties have agreed otherwise; which agreement
should be expressly for the exclusion of Part III of the Act of
1996, despite a conciliation having been proceeded with
and concluded. Here, the custom asserted is also claimed to
have been on the intervention of Ganesan, as a Conciliator.
Hence, if it is found to be an award of conciliation then there
is no exclusion of Part III pleaded and if it does not have that
status, then there is no application of Part III.
26. The remedy of an arbitration has been foreclosed but
only subject to a challenge to the KBPP which the plaintiffs in
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the present suit assailed on the grounds of undue influence,
coercion and misrepresentation. The challenge to the
Award under Section 34 would be available if it can be
termed ‘an Award’ under the Act. The specific contention of
the plaintiff/appellants is that though execution of the KBPP
is admitted, which agreement has been resiled from later,
the Award is a fabricated document, clearly the fraud
employed to undermine and frustrate the rights of the
plaintiffs/appellants.
27. The Trial Court considering the application under
Order VII, Rule 11 of the CPC and the High Court
considering the challenge against the rejection of the plaint
fell into an error in reading the KBPP together with the
Conciliation Award, as contended by the respondents,
deeming it to be a Conciliation Award; against which is the
challenge raised by the appellants in the suit. Both the
Courts categorically found that the KBPP cannot be resiled
from, the plaintiffs having affixed their signatures to it and
there is no sustainable allegation of fraud, except the
appointment of the Conciliator having been projected as a
cooked up, fraudulent theory. The Trial Court went to the
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extent of finding in Annexure P-31 that the allegation of
coercion to sign the KBPP cannot be accepted since there
was no threat at knifepoint or a fear of death, alleged in the
plaint and hence, there is no fraud perpetrated on the
plaintiffs, appreciated as valid by the High Court too. It was
also found that in the earlier rounds, the High Court had
clearly found that a plea of fraud and misrepresentation
cannot be entertained. A reading of the plaint, according to
the impugned orders, would indicate that having lost in the
earlier round of litigation upto the Hon’ble Supreme Court,
an illusory cause of action is attempted to be raised on the
allegation of fraud and misrepresentation without any
specifics on that count. The Trial Court also found fault with
the simultaneous filing of a suit, when on the very same
averments and grounds an objection was filed under Section
47 of the CPC in the execution petitions.
28. The High Court upheld the findings of the Trial Court
holding that the Conciliation Award though challenged as
fraudulent and fabricated, there could be no such contention
since admittedly the execution of the KBPP was not denied
or disputed. The earlier finding regarding the KBPP possible
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of being construed as a family arrangement settling the
disputes and differences within the family in accordance
with the customs and practices prevailing in the community
was emphasized. Finding the provisions of Part III of the Act
of 1996, specifically Section 61-74 having been waived, the
High Court also extracted from the decisions of this Court to
find the plaint liable to be rejected on five grounds. The five
grounds were:- (i) the admission of execution of KBPP,
justifying the ground taken of abuse of process of law, (ii)
the dismissal of the application under Section 11 of the Act of
1996 and the revision under Section 115 of CPC, validating
the contention of constructive res judicata , (iii) the
simultaneous proceedings in the suit and objection under
Section 47 of the CPC being an abuse of process of law, (iv)
the suppression of the proceedings under Section 47 and (v)
the refusal to set up a claim for cancellation of the KBPP and
the under valuation of the suit; the contention of suppression
and under valuation, having not been argued before us by
the respondents at all.
29. A reading of the plaint would clearly indicate that the
grounds taken against the KBPP and the Conciliation Award
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are distinct and different. The plaint averments categorically
challenge the contention of the defendants that the KBPP and
the document of 02.01.2019 are to be read together and
construed as a Conciliation Award. No doubt, if read
together, the two documents constitute a Conciliation
Award. But the averments in the plaint resist such
construction especially since the document dated
02.01.2019 is challenged on the ground of it having been
drawn up behind the back of the defendants and the
conciliation said to have been carried out by Ganesan
having not actually taken place. The reliance on the custom
alleged; of one of the parties carrying out the division of the
assets, permitting the first election to the other and then to
take up the remaining partible assets, is vehemently denied
by the plaintiffs. The KBPP is challenged as one drawn up
unilaterally by the elder brother. The plea is also that the
members of the younger brother’s family executed the same
under coercion, undue influence and misrepresentation,
which is a matter of evidence. We are unable to agree with
the impugned orders of the Trial Court and the High Court
that a ground of coercion could be urged only if the younger
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brother’s family was faced with a life threat. As we found,
especially within the family, the coercion would not be very
explicit and it could even arise from an apparent feeling of
subservience or a manifest obedience to the elder’s
opinion, which are all matters to be substantiated in
evidence and it cannot be merely brushed aside or
rubbished only on the ground that there is no case set up of
a physical threat. The grounds of coercion, undue influence
and more importantly misrepresentation, resulting in an
inequitable partition, cannot be peremptorily rejected while
considering an application under Order VII, Rule 11 of the
CPC.
30. We reiterate that the KBPP and the document of
02.01.2019 are challenged on two distinct grounds. The
KBPP on the allegation of coercion, undue influence and
misrepresentation, resulting in inequities, while the
document of 02.01.2019 is challenged as a fabricated
document created as an afterthought to give the KBPP the
status and effect of an Award. We also cannot accept the
grounds of simultaneous proceedings in the suit and the
objection under Section 47, to be an abuse of process of law,
Page 29 of 34
CA @ SLP (C) No. 16254 of 2025 etc.
for more than one reason. The execution has been filed on
the specific ground that the KBPP and the document dated
02.01.2019 read together is a Conciliation Award having the
status and the effect of an Arbitral Award under Section 74
which also is possible of execution as a decree under
Section 36 of the Act of 1996. If the objection raised by the
judgment-debtors in the Execution Petition under Section 47
is accepted by the Executing Court, that the document
dated 02.01.2019 is not brought about after a proper
conciliation proceeding, then the execution cannot proceed.
That would not, however, enable the Executing Court to
look into the challenge raised against the KBPP on the
specific grounds hereinabove detailed. Whether the KBPP is
a valid document, sustainable as a partition deed or a family
arrangement, cannot be examined by the execution Court
and for that, the only possible mode is a suit properly
instituted.
31. We hence find the order of the Trial Court as
confirmed by the High Court, resulting in the rejection of the
plaint to be egregiously erroneous in law. We are of the
opinion that there is a prima facie cause of action disclosed
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in the suit and it cannot be termed vexatious or an abuse of
the process of law. The cause of action as seen from the
above discussion is a real one and not illusory or fictional.
The factual averments, the legal grounds and the relief
sought are not meaningless nor can it be said at this stage
that the suit is bound to fail. The decisions relied on by the
respondents have no application. We also do not look at the
decisions placed on record by the appellants regarding
fraud, the validity of a Conciliation Award or the
construction of a Partition Deed or of a family arrangement,
lest we unwittingly make any observation regarding the
facts of the case. We make it clear that whatever
observations we have made here, are only prima facie in
nature and would not govern the final adjudication in the
suit, except insofar as our finding that the remedy of the
appellants to challenge the KBPP and the so-called
Conciliation Award are not foreclosed, which is
unexceptionable. Based on the decisions in the earlier
rounds of litigation, there can be no plea taken of a
constructive res judicata insofar as the independent
challenge now raised against the KBPP and the document
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dated 02.01.2019 is permitted by the High Court in the
earlier rounds and liberty left by this Court too in both the
proceedings.
32. We also find no reason to look into the plea of multiple
proceedings and conflicting orders being passed especially
noticing Annexure P-27 wherein the suit and the objection
under Section 47 of the CPC were clubbed together to be
tried by the Principal District Judge, Tirunelveli before
whom the execution petitions were pending. We set aside
the impugned orders of the High Court and the Trial Court,
allowing the application under Order VII Rule 11 and
restore the plaint to the files of the Principal District Court,
Tirunelveli, which rejected the plaint after the transfer by
Annexure P-31. The suit shall be tried alongwith the
objection raised under Section 47 of the CPC.
33. Before we part with the case, we have to observe that
after arguments were concluded and the judgment
reserved, on the next day, Sh. Niranjan Reddy, learned
Senior Counsel appearing for the respondents herein, made
a submission before us that there could be a mediation. We
directed the learned Counsel representing the appellants
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also to be present in the afternoon, when the suggestion of a
further mediation was fiercely opposed by Sh. Gopal
Sankaranarayanan and Sh. V. Prakash, learned Senior
Counsel appearing for the appellants, that having been
already attempted and failed. In unequivocal terms, we
informed Mr. Reddy that if the respondents withdrew all the
contentions regarding the KBPP and the document dated
02.01.2019, still, there could be an arbitration which would
relieve the parties of further litigation delaying the process
of partition especially since the businesses are remaining
with the Administrator, as directed in the revision against
the execution proceedings.
34. We make it clear that it would be open for the parties
to make the plea of relegating them to an Arbitration when
they appear before the Principal District Court, Tirunelveli
before whom the suit and the execution proceedings are
pending. We make it clear that the plea could only be of an
arbitration and not a mediation, in which event, the
respondents/judgment-debtors/defendants will, on
affidavit, agree and undertake to withdraw all the
contentions regarding the KBPP and the document dated
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02.01.2019, so as to initiate an arbitration afresh dehors the
two contentious documents, which shall be facilitated
through any suitable Arbitrator, mutually agreed upon by
the parties.
35. The appeals are allowed with the above reservation of
an arbitration made possible and that of the findings herein
not governing the final adjudication of the suit and the
objections under Section 47; except the rejection of the plea
of constructive res judicata which plea cannot be now raised
by the respondents/defendants.
36. Pending applications, if any, shall stand disposed of.
………….……………………. J.
(SANJAY KUMAR)
………….……………………. J.
(K. VINOD CHANDRAN)
NEW DELHI;
FEBRUARY 10, 2026.
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CA @ SLP (C) No. 16254 of 2025 etc.
2026 INSC 139
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. of 2026
(@Special Leave Petition (C) No.16254 of 2025)
J. Muthurajan & Anr.
…Appellants
Versus
S. Vaikundarajan & Ors.
...Respondents
With
Civil Appeal No. of 2026
(@Special Leave Petition (C) No. 16880 of 2025)
J U D G M E N T
K. VINOD CHANDRAN, J.
Leave granted.
2. Orchestrating the dissolution of a business empire
built by the father, the children resorted to arbitration,
conciliation and litigation to go their independent ways with
their share of the pie, as is common in families with
multiplying numbers and proliferating assets. Two out of the
Signature Not Verified
Digitally signed by
Deepak Guglani
Date: 2026.02.10
13:46:25 IST
Reason:
four siblings found an amicable partition through
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arbitration. The two remaining, along with their families are
grappling with each other for an equitable partition of the
huge assets and the vast properties amassed over the years.
The respective families are represented by their eldest, the
brothers, Vaikundarajan and Jegatheesan who along with
their immediate kin stakes equal claim to the assets, left to
their joint share in the earlier arbitration and those
accumulated thereafter. Vaikundarajan group relies on a
Conciliation Award, strongly refuted by the Jegatheesan
group, who took recourse first to arbitration, which failed
and then to litigation. Assailed herein is a judgment which
confirmed the rejection of a suit filed by the Jegatheesan
group, allowing an application under Order VII Rule 11 of
1
the Civil Procedure Code, 1908 . We refer to the parties by
their names and the documents from Civil Appeal @SLP (C)
No.16254 of 2025.
3. Differences simmering for some time, surfaced in the
year 2018 and Vaikundarajan group asserts that on a
request made by Jegatheesan, their half-brother Ganesan,
acted as a Conciliator to bring about a settlement by a fair
1
For brevity, ‘The CPC’
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partition. A Partition Deed termed Kaithadi Baga Pirivinai
2
Pathiram was drawn up with the entire assets included in
two Schedules. The division, alleged to be as per custom,
was made by Jegatheesan with Vaikundarajan at the first
instance choosing Schedule ‘C’ and the remaining Schedule
‘A’ left to Jegatheesan. The parties agreed by putting their
signatures on the KBPP , the translated copy of which is
produced as Annexure P-1 dated 31.12.2018.
4. The Conciliation Award drawn up by Ganesan, their
Conciliator/half-brother is produced as Annexure P-2 dated
02.01.2019. While Jegatheesan group accepts and admits
their signatures on the KBPP , they maintain that it was just a
tentative draft, not intended to be acted upon without further
deliberation; especially since the document had to be
stamped & registered to confer it the status of a partition
deed. Jegatheesan also denies having made the division,
and the group in one voice denies that there was ever a
conciliation and opposes the Conciliation Award as one
fabricated, without their knowledge and to which they were
never parties. The Conciliation Award was an afterthought,
2
For brevity, ‘the KBPP’
Page 3 of 34
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alleges Jegatheesan group; that document itself having been
prepared far later to their group having resiled from the
KBPP, which deed itself tilted the scales substantially in favor
of the Vaikundarajan group. The fabrication was also
intended to thwart any attempt of the Jegatheesan group to
have an equitable partition by resort to legal remedies,
either through arbitration or by litigation. The suit now
rejected was initiated by the Jegatheesan group having
failed in their attempt to initiate an arbitration as also their
attempt to abruptly end the proceedings initiated by
Vaikundarajan group to execute the Conciliation Award.
5. Sh. Gopal Shankaranarayanan and Sh. V. Prakash,
learned Senior Counsel appeared for Jegatheesan group,
the appellants/plaintiffs and Sh. Mukul Rohatgi and Sh.
Niranjan Reddy, learned Senior Counsel appeared for
Vaikundarajan group, the respondents/defendants.
6. Sh. Shankaranarayanan, took us through the
communications immediately after the KBPP, to contend that
Jegatheesan had objected to the partition as per the KBPP at
the first instance and sought for an arbitration as was done
before. The correspondences do not indicate a conciliation
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having been carried out in accordance with Part III of the
3
Arbitration and Conciliation Act, 1996 as it existed then.
None of the requirements as is mandated under Sections 61
to 74 of the Act of 1996 have been followed and the alleged
Award is passed behind the back of Jegatheesan group as is
evident from the documents on record. It is pointed out that
the so-called Conciliation Award surfaced long after the
dialogue commenced with respect to the KBPP; which was
resiled from by the Jegatheesan group since it was not an
equitable partition, making it highly suspect. Though the
Jegatheesan group was unsuccessful in initiating an
arbitration and putting an abrupt end to the execution
proceedings, this Court preserved their rights which
enabled them to initiate the present suit challenging the
KBPP ; as arbitrary and not one intended to be acted upon
and the Conciliation Award; as one vitiated by fraud. It is
pointed out from the recitals in the document dated
02.01.2019 that it is prepared on 31.12.2018, which is belied
by the fact that some of the members admittedly signed it on
an earlier date. The learned Senior Counsel would urge that
3
For brevity ‘the Act of 1966’
Page 5 of 34
CA @ SLP (C) No. 16254 of 2025 etc.
there was no cause for rejection of the suit at the threshold,
especially when the plaint cannot be rubbished as having
set up no cause of action nor is it barred by any law or
vitiated by any of the other grounds found in Order VII Rule
11 of the CPC and not in the least is vexatious. A compilation
of decisions is placed before us on the principles regulating
consideration of an application under Order VII Rule 11, the
inadequacy of the remedy under Section 47 of CPC, the law
on partition deeds and conciliation awards as also to canvas
the contention raised on fraud which vitiates every
proceeding and renders any decree, award or order, a
nullity
7. Sh. Prakash, learned Senior Counsel takes us to the
specific provision of Section 61 and argues that the minute
Vaikundarajan pleads a custom, of one of the parties
dividing the partible assets into two separate schedules and
the other party given the first choice to take one, there can
be no application of Part III. There is no Conciliation Award
passed under the Act of 1996 and also considering the plea
of the Award set up, being vitiated by fraud, there is no
status of an Arbitral Award conferred on it to avail the
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remedy of execution akin to that from a decree. It is also
pointed out that the execution proceedings in which the
appellants have filed objections under Section 47 of the CPC
have been clubbed with the suit, for joint trial. The suit was
necessitated since, Ganesan the so called Conciliator was a
necessary party in the resolution of the dispute based on the
challenge raised against the so-called Conciliation Award;
who was not a party to the conciliation and hence was
outside the scope of Section 47 of the CPC.
8. Sh. Rohatgi, learned Senior Counsel at the outset
points out that there are two admitted facts which the
Jegatheesan group cannot wriggle out of. All the members
of their group have put their signatures to the KBPP , which is
a lengthy document; a deliberate action involving
considerable time for the mere execution, especially since it
has been signed on all the 308 pages by the several
members. The document discloses the two Schedules and
the division of assets which include, running industrial
concerns, valuable shares, vast tracks of immovable
property, mining leases and so on. None of the family
members, who put their signature to the document can now
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contend that they were not aware of the division or the
assets they would be entitled to, on its execution. The
second admitted fact, according to Vaikundarajan is that it
was Jegatheesan who first went to Ganesan to conciliate;
seriously disputed by the learned Senior Counsel appearing
for Jegatheesan.
9. Yet again, Sh. Rohatgi forcefully argues that the very
initiation of the suit is an abuse of process since the
appellants had failed in three attempts before Courts, to
wriggle out of the conciliation. The observations in the
decisions are binding inter partes and disable the appellants
from initiating a suit challenging the KBPP , which, read with
the Conciliation Award is a decree, possible of execution
under Section 36 of the Act of 1996; upheld by this Court and
remedy left to raise objections, only in the execution
proceedings. The attempt to initiate arbitration had failed,
which forecloses such right; finding Annexure P-2 dated
02.01.2019 to be a Conciliation Award under the Act of 1996.
A further attempt was made through a revision filed, to
frustrate the remedy of execution, which was rejected by
the High Court with a reasoned order affirmed by this Court
Page 8 of 34
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by dismissal of the SLP filed against that order. The
execution thus is pending, and the appellants have filed
their objections thereat. Without pursuing their remedy
permitted by this Court, the attempt is again to challenge
the KBPP and the Conciliation Award by a freshly instituted
suit which has been found by the Trial Court and the High
Court to be not possible under Clauses (a) and (d) of Order
VII Rule 11 of the CPC.
10. In addition, it is contended that the present attempt
also falls foul of Section 47 of the CPC and is in turn an abuse
of process of law. Part III of the Act of 1996 and the
provisions therein, are read over to urge that if the parties
have agreed to a settlement and the Conciliator has
endorsed the terms of the settlement it takes the character of
an Award under the Act of 1996 which is a deemed decree
capable of being executed under Section 36, taking
recourse to the remedy under the CPC. The KBPP and the
Award are inseparable and read together, it takes the form
of a decree capable of execution by either party. The only
possible remedy against it is under Section 34 of the Act of
1996, which having not been availed of till date, the
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execution has to proceed seamlessly. The contention that
despite having affixed their signatures in the KBPP , they did
not read it and hence is not enforceable, are mutually
destructive and per se dishonest. Insofar as the ground of
abuse the learned Senior Counsel would place reliance on
Shri Mukund Bhavan Trust and Others v. Shrimant
Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle
4
and Another , Dahiben v. Arvindbhai Kalyanji Bhanusali
5
(Gajra) D. Thr. LRs and Ors. and Rajendra Bajoria and
6
Ors. v. Hemant Kumar Jalan and Ors. The learned Senior
Counsel also took us through the decisions inter partes to
contend that the contentions taken in the suit and arguments
addressed before this Court, have been negated earlier,
which binds the parties who were agitating the very same
cause in the earlier instances too.
11. Sh. Reddy, learned Senior Counsel would take us to
the communications addressed after the KBPP was executed,
to contend that though Vaikundarajan had specifically
referred to Ganesan and efforts taken by him at the instance
4
(2024) 15 SCC 675
5
(2020) 7 SCC 366
6
(2022) 12 SCC 641
Page 10 of 34
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of Jegatheesan, it has not been categorically denied in the
response made. It is reiterated that the remedy now
available is only to pursue the objections under Section 47
of the CPC, which the appellants have resorted to. The
reliefs prayed for in the objection and suit are pointed out to
argue that they are similar and it would only lead to
multiplicity of litigation and possibly conflicting orders. The
attempt is only to stay the Execution Proceedings and
pursue the suit so as to further delay the process. Reference
is specifically made to Electrosteel Steel Limited v. Ispat
7
Carrier Private Limited and MMTC Limited v. Anglo
8
American Metallurgical Co. Ltd. to contend that the
remedy under Section 47 is a wholesome one which alone
can be pursued at this point. The translation of the document
dated 02.01.2019 is also seriously challenged, with another
translation which indicates that the recital in Tamil is to the
effect that “final deed dated 31.12.2018 was prepared”.
12. The dispute between the two groups, represented by
the two brothers, boils down to how the KBPP dated
31.12.2018 and the so-called Conciliation Award dated
7
(2025) 7 SCC 773
8
2025 SCC OnLine SC 2328
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02.01.2019 are to be construed. The Vaikundarajan group
asserts that the only possible mode of construction is to read
it together, which gives it the status and effect of a
conciliation award under Part III of the unamended Act of
1996. The Jegatheesan group insists that there was no
conciliation and the so-called Award dated 02.01.2019 is a
fabricated document and the KBPP is vitiated by reason of
undue influence, coercion and misrepresentation under
which it was executed, also resiled from immediately after
finding the partition to be unequal and inequitable. The very
fulcrum of the arguments of the Vaikundarajan group is
based on the earlier litigation which according to them
restrict the remedy of the appellants; the Jegatheesan
group, to contest the execution filed under Section 36 of the
Act of 1996. Hence, it is imperative that we look at the
earlier decisions of the High Court of Madras which, inter
partes , have attained finality by the dismissal of the SLPs
filed, in which orders this Court made certain reservations
with respect to rights of the appellants. The binding nature
of the decisions of the High Court and the escape valve
Page 12 of 34
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provided through the liberty reserved by the High Court or
this Court would in fact decide the questions raised herein.
13.
After the KBPP dated 31.12.2018 was executed by all
the members of the two groups, there occurred a series of
correspondence between the two brothers regarding the
partition. It is to be immediately noticed that, as admitted by
both the parties, all the members of the two families did not
put their signature on a particular day or on the day shown
in the deed. In fact, the admission is to the extent that the
signatures were put before and even after the date shown
on the KBPP, by some members of both the families.
Jegatheesan group also pleads in their suit that some of their
family members were abroad between 29.12.2018 and
02.01.2019. This is refuted on the specific plea that they had
affixed their signatures prior to their going abroad. It is also
pertinent that Vaikundarajan’s assertion is of a conciliation
by Ganesan at the instance of Jegatheesan, the latter
disputes it. There is neither any such communication
exchanged placed on record nor a substantiation of the
procedure under Part III of the Act of 1996 resorted to. The
contention is attempted to be raised on the basis of the
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veiled reference to Ganesan and his intervention in the
matter by Vaikundarajan, which is not specifically disputed
by Jegatheesan, persuading us to draw inferences. The
document dated 02.01.2019 from the recitals therein leave a
lot to be desired, especially with respect to the statement of
all the executants having signed the KBPP in the presence of
the Conciliator.
14. On 14.01.2019, Jegatheesan emailed his brother
Vaikundarajan accusing him to have occasioned financial
crisis in the businesses. Jegatheesan hence suggested
parting of ways by an equitable division of the assets.
Vaikundarajan did not reply to the same and Jegatheesan
followed it up with a communication on 23.01.2019 where he
specifically raised the issue of the KBPP dated 31.12.2018,
admittedly signed by himself and his family members. He
claimed that such execution was only at the instance of
Vaikundarajan. It was also alleged that the division was not
at all fair and equitable which they have realized after
deliberating on the division effected. The partition deed
dated 31.12.2018 was expressly revoked by the said letter.
This was responded to by Vaikundarajan by a
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communication dated 24.01.2019 wherein he spoke of a
request having been made through the elder half-brother
Ganesan and also pointing out certain disputes with respect
to the operation of accounts of the running concerns. It was
stated in unequivocal terms that the partition has already
been carried out by the deed of 31.12.2018, which however
was not referred to in the first communication of Jegatheesan
dated 14.01.2019. The said communication ended with a
request that if Jegatheesan decided to have the partition as
per the KBPP, before the end of the year, Vaikundarajan was
willing. Jegatheesan replied through Annexure P-6 dated
05.02.2019 refuting the statements made by Vaikundarajan
and seeking an arbitration by a retired Judge of this Court
who had earlier acted as an Arbitrator in settling the
disputes in the family. This was replied to by Annexure P-7
dated 18.02.2019 wherein the mediation through Ganesan
and the partition having been completed by execution of the
deed, was reaffirmed. The request for an arbitration by a
named retired Judge of the Supreme Court was specifically
declined asserting that there is nothing more to be done
since the partition stood concluded as on 31.12.2018. This
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was contested by Jegatheesan in his reply dated 09.03.2019.
Again, a request was made to share the complete details of
the assets so as to effectuate an equitable partition which
was replied to by Annexure P-9 dated 17.03.2019.
15. It has to be observed with emphasis that the
Conciliation Award of 02.01.2019 was not referred to by
Vaikundarajan in any of these communications despite the
emphatic references to intervention of Ganesan and the
KBPP . Having reached a stalemate Jegatheesan group issued
a notice through an Advocate, Annexure P-10 dated
28.03.2019, requesting arbitration through a named retired
Judge of this Court. The request was declined by Annexure
P-11 dated 12.04.2019, by the Advocate of the
Vaikundarajan group wherein for the first time the
proceeding dated 02.01.2019 was referred to and
contended that it has the status and effect of an Arbitral
Award under the Act of 1996.
16. Jegatheesan group hence approached the High Court
under Section 11 of the Act of 1996 for appointing an
Arbitrator which petitions were heard alongwith O.A. No.
543 of 2019 which sought an injunction restraining the
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Vaikundarajan group from giving effect to the KBPP; all
rejected by Annexure P-16. After noticing the facts as also
the KBPP and the Conciliation Award, reference was made to
the admitted execution of the KBPP and it was observed that
if there is a challenge to the same on the ground of coercion
then the remedy would be to seek a declaration that the
KBPP cannot be effectuated. The plea of fraud was found to
be general and vague since admittedly KBPP was signed by
the appellants. It was categorically held in paragraph 19 that
if the partition deed is not a result of conciliation proceeding
then the document is in settlement of the disputes in the
family, as per the customs and practice prevailing in the
community. The learned Judge found that the absence of
stamping or registration of KBPP was not very significant,
since then, it has the trappings of a family arrangement. The
conclusion was that if the execution of the deed was on
account of undue influence, coercion and
misrepresentation, the document is only voidable which has
to be set aside in the manner known to law, ‘by the Civil
Court after trial’(sic) . On the other hand, if it was the result of
conciliation proceedings, it was held that the same could be
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assailed under Section 34 of the Act of 1996, wherein the
question of insufficient stamp duty and registration could
also be agitated.
17. We cannot but find that the remedy of the appellants to
challenge the KBPP or the Award was not foreclosed by the
judgment of the High Court. What stood foreclosed is the
initiation of arbitration, that too on the assumption that the
documents of 31.12.2018 & 02.01.2019 together constitute a
Conciliation Award. An SLP was filed, the order in which is
produced as Annexure P-18, wherein despite refusing
interference under Article 136 of the Constitution of India,
the appellant was left with ‘liberty to work out the remedy in
accordance with law’(sic) .
18. The appellants then approached the Madras High
Court with three revisions to strike out the proceedings in
EP No. 61, 62 and 63 of 2019 filed before the Principal
District Judge, Tirunelveli, seeking execution of the
conciliation award. The said revisions were heard together
and dismissed by Annexure P-20 Order, which essentially
followed the earlier decision in Annexure P-16. The learned
Single Judge expressed hope that the dispute having arisen
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between close family members, there could be mediation,
to facilitate which a Mediator was appointed on the request
of Vaikundarajan group. It was also observed that if the
mediation fails, Jegatheesan group would be entitled to
raise all issues before the Executing Court. An SLP filed
against the said order also stood rejected by Annexure P-21
which again made a caveat that ‘none of the observations
made in the impugned judgment shall hamper the Executing
Court in deciding the matter on its own merits’(sic) . Hence,
based on the contentions left open to be decided by the
High Court and the liberty reserved to avail remedies in
accordance with law, at the earlier point, we are of the
opinion that the challenge against the KBPP and the Award is
still at large.
19. It cannot be assumed for a moment that what was
intended by Annexure P-21, the rejection of the SLP against
the judgment rejecting the prayer to strike off execution
proceedings as such, would confine the agitation of such
claims before the Executing Court alone. If the Executing
Court finds that the KBPP is not a result of conciliation and
does not constitute an Award under the Act of 1996 then
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necessarily, it would be open for the Vaikundarajan group
who stands by the KBPP to take remedies for enforcement of
the same, even as a family arrangement; in which event it
cannot be said that the rights of the Jegatheesan group
would stand fully precluded. The remedy against the KBPP
cannot be left unresolved, especially when liberty was left
to challenge it in a Civil Court.
20. The essential question the High Court considered at
the first instance, rejecting the plea for arbitration, was as to
whether the KBPP and the document of 02.01.2019, together
make out an award; an executable decree under Section 36
of the Act of 1996 or whether it is a partition deed or a family
arrangement, the last in view of absence of stamping &
registration. It is hence, the High Court held that the
challenge against the KBPP could be made before a Civil
Court or application filed under Section 34 of the Act of
1996, depending on the nature of challenge. The remedies
were thus left open by the High Court itself in Annexure P-
16, which reservation was affirmed by this Court while
rejecting the SLP.
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21. We cannot but notice that on two aspects the High
Court fell into a serious error, which assumes relevance,
considering the liberty left to the appellants. The first error
was in finding the allegation of fraud to be without basis for
reason of the admitted execution of the KBPP . Though it was
argued vigorously that both the KBPP and the Award are to
be read together, it can be so done only if it is found that the
conciliation had proceeded under Part III of the Act of 1996
and culminated in an Award as contemplated under Section
73 of the Act, giving it the status and effect of a Settlement
Agreement under Section 74.
22. We cannot but notice that the contention taken by the
Jegatheesan group from the inception and in the present
suit, against the KBPP and the Award are distinct and
different. While the execution of KBPP is admitted, the
agreement was revoked by the Jegatheesan group after a
few days. The contention against KBPP is that the appellants
did not get enough time to go through the same and they
were made to execute on undue influence, coercion and
misrepresentation. Only after a studied deliberation on the
division of assets, it was found that the partition was tilted
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substantially in favour of the Vaikundarajan group. It is not
uncommon that in family arrangements, the younger
members succumb to the dictate of the eldest, and on
further deliberation and introspection, especially in
partitions, raise disputes on the inequitable division. Here,
we have to reiterate pertinently that the remedy to file a civil
suit against the KBPP was reserved to the appellants even at
the first instance.
23. Insofar as the award dated 02.01.2019, we cannot but
notice that the earlier communications between the brothers
did not at any point refer to a conciliation having been
initiated and concluded under Part III of the Act of 1996,
though reference was made to an intervention by the elder
half-brother, Ganesan. We are also not able to find any
documentary substantiation of the conciliation having been
initiated and carried out under Part III of the Act of 1996.
Even if we accept the contention of the Vaikundarajan group
that a settlement arrived at between the family members
could also be an Award under the Act, as per sub-section (2)
of Section 73; the Settlement Agreement, which is essentially
the KBPP has not been authenticated by the Conciliator as is
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mandated under sub-section (4) of Section 73. The
document dated 01.02.2019 produced as Annexure P-2 is
later to the KBPP and is not signed by any of the parties to
the settlement. In this context we also observe that in
Annexure P-2, the so-called Conciliator alone has put his
signature to the document, categorically stating that the
KBPP was signed in his presence by all the members. This
has to be considered in juxtaposition with the admitted
position that all the members did not sign it on 31.12.2018
and some of them were abroad till 02.01.2019, that is a plea
specifically taken in the present plaint.
24. We may not be mistaken as finding the Award to be
not one issued under the Act of 1996, but it raises serious
questions regarding the Award, which grounds are pleaded
in the suit. The specific contention taken against the Award
is that the same is vitiated by fraud, being a fabricated
document; created only to give the KBPP the sheen of an
Award under the Act of 1996, created behind the back of the
Jegatheesan group and to their detriment.
25. The other error in Annexure P-16 is that referring to
the custom, it was held that the implied consent by reason of
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execution of the KBPP results in a finding of waiver of the
provisions of Part III specifically, Section 61-74 of the Act of
1996. We are unable to accept the said finding especially
since there is no partial waiver, of the provisions,
contemplated. Yet again we also notice the contention
raised by the appellants that if custom is resorted to there
can be no application of Part III of the Act of 1996, which too
we cannot subscribe to. On a reading of Section 61, any
conciliation between two parties brought about by following
the procedure in Part III of the Act of 1996 would definitely
get the status and effect of an Award under the Act of 1996
unless the parties have agreed otherwise; which agreement
should be expressly for the exclusion of Part III of the Act of
1996, despite a conciliation having been proceeded with
and concluded. Here, the custom asserted is also claimed to
have been on the intervention of Ganesan, as a Conciliator.
Hence, if it is found to be an award of conciliation then there
is no exclusion of Part III pleaded and if it does not have that
status, then there is no application of Part III.
26. The remedy of an arbitration has been foreclosed but
only subject to a challenge to the KBPP which the plaintiffs in
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the present suit assailed on the grounds of undue influence,
coercion and misrepresentation. The challenge to the
Award under Section 34 would be available if it can be
termed ‘an Award’ under the Act. The specific contention of
the plaintiff/appellants is that though execution of the KBPP
is admitted, which agreement has been resiled from later,
the Award is a fabricated document, clearly the fraud
employed to undermine and frustrate the rights of the
plaintiffs/appellants.
27. The Trial Court considering the application under
Order VII, Rule 11 of the CPC and the High Court
considering the challenge against the rejection of the plaint
fell into an error in reading the KBPP together with the
Conciliation Award, as contended by the respondents,
deeming it to be a Conciliation Award; against which is the
challenge raised by the appellants in the suit. Both the
Courts categorically found that the KBPP cannot be resiled
from, the plaintiffs having affixed their signatures to it and
there is no sustainable allegation of fraud, except the
appointment of the Conciliator having been projected as a
cooked up, fraudulent theory. The Trial Court went to the
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extent of finding in Annexure P-31 that the allegation of
coercion to sign the KBPP cannot be accepted since there
was no threat at knifepoint or a fear of death, alleged in the
plaint and hence, there is no fraud perpetrated on the
plaintiffs, appreciated as valid by the High Court too. It was
also found that in the earlier rounds, the High Court had
clearly found that a plea of fraud and misrepresentation
cannot be entertained. A reading of the plaint, according to
the impugned orders, would indicate that having lost in the
earlier round of litigation upto the Hon’ble Supreme Court,
an illusory cause of action is attempted to be raised on the
allegation of fraud and misrepresentation without any
specifics on that count. The Trial Court also found fault with
the simultaneous filing of a suit, when on the very same
averments and grounds an objection was filed under Section
47 of the CPC in the execution petitions.
28. The High Court upheld the findings of the Trial Court
holding that the Conciliation Award though challenged as
fraudulent and fabricated, there could be no such contention
since admittedly the execution of the KBPP was not denied
or disputed. The earlier finding regarding the KBPP possible
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of being construed as a family arrangement settling the
disputes and differences within the family in accordance
with the customs and practices prevailing in the community
was emphasized. Finding the provisions of Part III of the Act
of 1996, specifically Section 61-74 having been waived, the
High Court also extracted from the decisions of this Court to
find the plaint liable to be rejected on five grounds. The five
grounds were:- (i) the admission of execution of KBPP,
justifying the ground taken of abuse of process of law, (ii)
the dismissal of the application under Section 11 of the Act of
1996 and the revision under Section 115 of CPC, validating
the contention of constructive res judicata , (iii) the
simultaneous proceedings in the suit and objection under
Section 47 of the CPC being an abuse of process of law, (iv)
the suppression of the proceedings under Section 47 and (v)
the refusal to set up a claim for cancellation of the KBPP and
the under valuation of the suit; the contention of suppression
and under valuation, having not been argued before us by
the respondents at all.
29. A reading of the plaint would clearly indicate that the
grounds taken against the KBPP and the Conciliation Award
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are distinct and different. The plaint averments categorically
challenge the contention of the defendants that the KBPP and
the document of 02.01.2019 are to be read together and
construed as a Conciliation Award. No doubt, if read
together, the two documents constitute a Conciliation
Award. But the averments in the plaint resist such
construction especially since the document dated
02.01.2019 is challenged on the ground of it having been
drawn up behind the back of the defendants and the
conciliation said to have been carried out by Ganesan
having not actually taken place. The reliance on the custom
alleged; of one of the parties carrying out the division of the
assets, permitting the first election to the other and then to
take up the remaining partible assets, is vehemently denied
by the plaintiffs. The KBPP is challenged as one drawn up
unilaterally by the elder brother. The plea is also that the
members of the younger brother’s family executed the same
under coercion, undue influence and misrepresentation,
which is a matter of evidence. We are unable to agree with
the impugned orders of the Trial Court and the High Court
that a ground of coercion could be urged only if the younger
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brother’s family was faced with a life threat. As we found,
especially within the family, the coercion would not be very
explicit and it could even arise from an apparent feeling of
subservience or a manifest obedience to the elder’s
opinion, which are all matters to be substantiated in
evidence and it cannot be merely brushed aside or
rubbished only on the ground that there is no case set up of
a physical threat. The grounds of coercion, undue influence
and more importantly misrepresentation, resulting in an
inequitable partition, cannot be peremptorily rejected while
considering an application under Order VII, Rule 11 of the
CPC.
30. We reiterate that the KBPP and the document of
02.01.2019 are challenged on two distinct grounds. The
KBPP on the allegation of coercion, undue influence and
misrepresentation, resulting in inequities, while the
document of 02.01.2019 is challenged as a fabricated
document created as an afterthought to give the KBPP the
status and effect of an Award. We also cannot accept the
grounds of simultaneous proceedings in the suit and the
objection under Section 47, to be an abuse of process of law,
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for more than one reason. The execution has been filed on
the specific ground that the KBPP and the document dated
02.01.2019 read together is a Conciliation Award having the
status and the effect of an Arbitral Award under Section 74
which also is possible of execution as a decree under
Section 36 of the Act of 1996. If the objection raised by the
judgment-debtors in the Execution Petition under Section 47
is accepted by the Executing Court, that the document
dated 02.01.2019 is not brought about after a proper
conciliation proceeding, then the execution cannot proceed.
That would not, however, enable the Executing Court to
look into the challenge raised against the KBPP on the
specific grounds hereinabove detailed. Whether the KBPP is
a valid document, sustainable as a partition deed or a family
arrangement, cannot be examined by the execution Court
and for that, the only possible mode is a suit properly
instituted.
31. We hence find the order of the Trial Court as
confirmed by the High Court, resulting in the rejection of the
plaint to be egregiously erroneous in law. We are of the
opinion that there is a prima facie cause of action disclosed
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in the suit and it cannot be termed vexatious or an abuse of
the process of law. The cause of action as seen from the
above discussion is a real one and not illusory or fictional.
The factual averments, the legal grounds and the relief
sought are not meaningless nor can it be said at this stage
that the suit is bound to fail. The decisions relied on by the
respondents have no application. We also do not look at the
decisions placed on record by the appellants regarding
fraud, the validity of a Conciliation Award or the
construction of a Partition Deed or of a family arrangement,
lest we unwittingly make any observation regarding the
facts of the case. We make it clear that whatever
observations we have made here, are only prima facie in
nature and would not govern the final adjudication in the
suit, except insofar as our finding that the remedy of the
appellants to challenge the KBPP and the so-called
Conciliation Award are not foreclosed, which is
unexceptionable. Based on the decisions in the earlier
rounds of litigation, there can be no plea taken of a
constructive res judicata insofar as the independent
challenge now raised against the KBPP and the document
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dated 02.01.2019 is permitted by the High Court in the
earlier rounds and liberty left by this Court too in both the
proceedings.
32. We also find no reason to look into the plea of multiple
proceedings and conflicting orders being passed especially
noticing Annexure P-27 wherein the suit and the objection
under Section 47 of the CPC were clubbed together to be
tried by the Principal District Judge, Tirunelveli before
whom the execution petitions were pending. We set aside
the impugned orders of the High Court and the Trial Court,
allowing the application under Order VII Rule 11 and
restore the plaint to the files of the Principal District Court,
Tirunelveli, which rejected the plaint after the transfer by
Annexure P-31. The suit shall be tried alongwith the
objection raised under Section 47 of the CPC.
33. Before we part with the case, we have to observe that
after arguments were concluded and the judgment
reserved, on the next day, Sh. Niranjan Reddy, learned
Senior Counsel appearing for the respondents herein, made
a submission before us that there could be a mediation. We
directed the learned Counsel representing the appellants
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also to be present in the afternoon, when the suggestion of a
further mediation was fiercely opposed by Sh. Gopal
Sankaranarayanan and Sh. V. Prakash, learned Senior
Counsel appearing for the appellants, that having been
already attempted and failed. In unequivocal terms, we
informed Mr. Reddy that if the respondents withdrew all the
contentions regarding the KBPP and the document dated
02.01.2019, still, there could be an arbitration which would
relieve the parties of further litigation delaying the process
of partition especially since the businesses are remaining
with the Administrator, as directed in the revision against
the execution proceedings.
34. We make it clear that it would be open for the parties
to make the plea of relegating them to an Arbitration when
they appear before the Principal District Court, Tirunelveli
before whom the suit and the execution proceedings are
pending. We make it clear that the plea could only be of an
arbitration and not a mediation, in which event, the
respondents/judgment-debtors/defendants will, on
affidavit, agree and undertake to withdraw all the
contentions regarding the KBPP and the document dated
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02.01.2019, so as to initiate an arbitration afresh dehors the
two contentious documents, which shall be facilitated
through any suitable Arbitrator, mutually agreed upon by
the parties.
35. The appeals are allowed with the above reservation of
an arbitration made possible and that of the findings herein
not governing the final adjudication of the suit and the
objections under Section 47; except the rejection of the plea
of constructive res judicata which plea cannot be now raised
by the respondents/defendants.
36. Pending applications, if any, shall stand disposed of.
………….……………………. J.
(SANJAY KUMAR)
………….……………………. J.
(K. VINOD CHANDRAN)
NEW DELHI;
FEBRUARY 10, 2026.
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