BOOVALINGAM vs VALLIAMMAL

S.A.(MD).No.804 of 2005
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 06.08.2026
Pronounced On : 29.10.2026
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
S.A.(MD).No.804 of 2005
Boovalingam Appellant
Vs.
1.Valliammal
2.Vaanmathi
3.Selvaraj Respondents
rd
( 3 respondent given up)
PRAYER:- Second Appeal has been filed under Section 100 of C.P.C.,
against the judgment and decree dated 23.03.2005 passed in A.S.No.29
of 2004 on the file of the learned Subordinate Judge, Paramakudi
confirming the judgment and Decree dated 27.02.2004 passed in O.S.No.
165 of 2002 on the file of the learned District Munsif, Paramakudi.
For Appellant : Mr.S.Ponsenthilkumaran
For respondents : Mr.M.Thirunavukkarasu for R1and R2
: R3 Given up
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S.A.(MD).No.804 of 2005
JUDGMENT
The first defendant in O.S.No.165 of 2002, on the file of the
Principal District Munsif Court, Paramakudi, dated 27.02.2004 is the
appellant in the present second appeal. The appeal is directed against the
judgment and decree passed in O.S.No.165 of 2002, confirmed by the
first appellate Court in A.S.No.29 of 2004 on the file of the learned
Subordinate Judge, Paramakudi dated 23.03.2005.
2. For the sake of convenience and better appreciation, the parties
are referred to as per their ranks before the trial Court.
3. The plaintiffs are the sisters of the appellant/first defendant and
the second defendant. Their parents are Muthukkonar and Ramayammal.
Muthukkonar died about twelve years prior to the institution of the suit,
and Ramayammal died about six years before the filing of the suit.
According to the plaintiffs, both parents left behind several properties. It
is their specific case that, after the death of Ramayammal, a village
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S.A.(MD).No.804 of 2005
panchayat was convened, wherein the parties amicably effected an oral
partition. Under the said oral partition, the properties belonging to
Ramayammal were allotted to her daughters, namely the plaintiffs, while
the properties belonging to Muthukkonar were allotted to the sons,
including the appellant. It is further pleaded that, subsequently, the
appellant attempted to mutate the revenue records in his favour and
interfered with the plaintiffs' peaceful possession and enjoyment of the
suit properties. Hence, the plaintiffs instituted the suit seeking a
declaration of their title and consequential permanent injunction.
4. The first defendant filed a written statement denying the alleged
oral partition. According to him, Ramayammal had executed a Will dated
03.09.1991 in his favour bequeathing the suit properties. He further
contended that he had been in continuous possession and enjoyment of
the properties and had, in any event, acquired his title by adverse
possession. It was also alleged that the plaintiffs had recently secured
mutation of the revenue records without his knowledge. On these
grounds, he prayed for dismissal of the suit. The second defendant
remained ex parte and did not file a written statement.
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S.A.(MD).No.804 of 2005
5. On the basis of the rival pleadings, the trial Court framed the
necessary issues. On the side of the plaintiffs, the first plaintiff examined
herself as PW-1 and their maternal uncle was examined as PW-2 to
establish the alleged oral partition. On the side of the defendants, the first
defendant examined himself as DW-1, and one of the attesting witnesses
to the Will was examined as DW-2.
6. Upon appreciation of the oral and documentary evidence, the
learned trial Judge disbelieved the execution of the Will and accepted the
plaintiffs' case regarding the oral partition, principally relying upon the
testimony of PW-2. Consequently, the suit was decreed. Aggrieved by the
same, the first defendant preferred A.S.No.29 of 2004. The first appellate
Court, on re-appreciation of the entire evidence, dismissed the appeal and
confirmed the judgment and decree of the trial Court. Challenging the
concurrent findings of the Courts below, the present second appeal has
been filed.
7. At time of admission, this Court admitted the second appeal on
the following substantial question of a law:
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S.A.(MD).No.804 of 2005
(1) Whether the finding of the Court below that the
respondents/plaintiffs got the suit property in oral
partition is sustainable in the absence of evidence as
required under Section 101 of Evidence Act?
(2) Whether the Court below is justified in
disbelieving Exhibit B-1(Will) merely because entire
property of the Testatrix is bequeathed to daughter in law
and without giving anything to the daughters?
8. The learned counsel for the appellant submitted that both the
Courts below committed a serious error in rejecting the Will despite the
evidence of DW-2, one of the attesting witnesses, satisfying the
mandatory requirements under Section 63(c) of the Indian Succession
Act, 1925 and Section 68 of the Indian Evidence Act, 1872. It was
further contended that PW-2, who deposed regarding the alleged oral
partition, is the maternal uncle of the plaintiffs and is admittedly inimical
towards the appellant. Therefore, his testimony ought not to have been
accepted in the absence of any independent corroboration.
8.1. The learned counsel further argued that the first appellate
Court erred in observing that, according to the customary practice
prevailing in the community, the mother's properties would devolve upon
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S.A.(MD).No.804 of 2005
the daughters. Such a finding, according to the learned counsel, is wholly
in conceivable, as there was neither any pleading nor any evidence
regarding the existence of such a custom. It is a well-settled principle
that a custom must be specifically pleaded and strictly proved. In the
absence of such pleadings and proof, the appellate Court was not
justified in relying upon any alleged custom while affirming the decree.
8.2. It was further submitted that the expert opinion regarding the
thumb impressions on the Will cannot outweigh the direct testimony of
the attesting witness. Merely because the expert could not express a
definite opinion with respect to the thumb impressions found on all the
pages of the Will, the document should not have been discarded when
DW-2 had clearly spoken about its execution and attestation. It was
therefore contended that both the Courts below had misappreciated the
oral and documentary evidence and had arrived at a finding contrary to
law, warranting interference by this Court. In support of this contention
he relied the following precedents:
8.2.1.In the case of Savithri and others vs. Karthiyayani Amma
and others reported in (2007) 11 SCC 621
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S.A.(MD).No.804 of 2005
8.2.2.In the case of Surjit Kaur vs, Garja Singh and others
reported in (1994) 1 SCC 407
8.2.3.In the case of Boramma vs. Krishna Gowda and others
reported in (2000) 9 SCC214
8.2.4.In the case of Chithra vs Saroja and others reported in 2017
(2) MWN (Civil) 241
9. Per contra, the learned counsel appearing for the
respondents/plaintiffs submitted that both the Courts below, upon proper
appreciation of the entire evidence, concurrently accepted the plaintiffs'
case regarding the oral partition and disbelieved the Will propounded by
the appellant. The concurrent findings are pure findings of fact based on
appreciation of evidence and do not warrant interference in the present
second appeal. It was further contended that, even assuming that the
observations regarding customary practice are ignored, the decree is
independently sustainable on the strength of the evidence let in about the
oral partition. It was therefore prayed that the concurrent judgments and
decrees passed by the Courts below be confirmed.
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S.A.(MD).No.804 of 2005
10. This Court carefully perused the entire records, considered the
rival submissions advanced by the learned counsel appearing on either
side, and examined the precedents relied upon by them.
11. At the outset, it is necessary to consider the scope of
interference under Section 100 of the Code of Civil Procedure. The
learned counsel for the appellant relied upon the judgments of the
Hon'ble Supreme Court to contend that the concurrent findings recorded
by the Courts below can to be interfered with. On a consideration of the
principles laid down in the said decisions, it is evident that there is no
inflexible rule that the High Court, while exercising jurisdiction under
Section 100 CPC, can never interfere with concurrent findings of fact.
The settled legal position is that interference is permissible where the
concurrent findings are vitiated by perversity, misreading or non-
consideration of material evidence, consideration of inadmissible
evidence, or where the findings are such that no reasonable person could
have arrived at such a finding on the evidence available on record.
Therefore, it is well within the jurisdiction of this Court to examine
whether the appreciation of the evidence of PW-2 and DW-2 by the
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S.A.(MD).No.804 of 2005
Courts below suffers from such perversity.
12. The plaintiffs' claim is founded entirely on the plea of an oral
partition. The learned counsel for the appellant rightly contended that the
pleadings are conspicuously silent as to the date, month or even the year
on which the alleged oral partition took place. Equally absent are the
particulars regarding the properties constituting the joint family estate,
the properties allegedly belonging to the father and the mother separately,
and the manner in which the properties were allotted to each sharer,
namely, the plaintiffs, the appellant and the second defendant.
13. A partition, in the eye of law, is not established merely because
the parties are in separate enjoyment of certain properties for
convenience. Partition necessarily contemplates a definite division of the
joint estate with certainty regarding the properties allotted to each co-
sharer. The Hon'ble Supreme Court, in its recent decisions, including
Vineeta Sharma v. Rakesh Sharma , has reiterated that an oral partition is
an exception and must be pleaded with specificity and proved by cogent,
convincing and reliable evidence. The relevant principles laid down
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S.A.(MD).No.804 of 2005
therein shall be adverted to at the appropriate stage.
14. Applying the above principles to the present case, the evidence
of PW-2 falls considerably short of the standard required to establish an
oral partition. PW-2 merely stated that a panchayat was convened after
the death of the mother and that an oral partition took place. He did not
depose as to the extent of the family properties, the properties standing in
the names of the father and the mother respectively, the exact allotment
made to each branch, or the terms upon which the alleged settlement was
arrived at. His testimony does not provide the essential particulars
necessary to prove a concluded partition.
15. Both the Courts below proceeded on the premise that the first
defendant had admitted the partition during his evidence. This Court
carefully perused the deposition of DW-1, and the relevant portion has
been extracted hereinbefore:
vd; ngw;Nwhu;fs; nrhj;J rk;ge;jkhf thjp jug;G
PW2 Kd;dhy; Cupy; gQ;rhaj;J ele;jJ vd;why;
rupay;y. mtu; vd; jhAld; gpwe;j vd; khkh kfd;
vq;fSf;Fk; mtUf;Fk; gpur;rid ,y;iy mtuplk;
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S.A.(MD).No.804 of 2005
nrhy;yp mtu; ,Ue;J jha; nrhj;ij ngz;
kf;fSf;Fk;> je;ij top nrhj;ij vq;fSf;Fk;
gpupj;Jtpl;ljd; mbg;gilaha; mtu;fs; mDgtpj;J
tUfpwhu;fs; vd;why; rupay;y. ehq;fs;
ehy;tUk; ,Ue;J Ngrp je;ij nrhj;jpy; -,uz;il
rNfhjupfSf;F tpl;L nfhLj;Jtpl;Nlhk;.
mt;thW Ngrpa NghJ ngw;Nwhu;fs; nrhj;J
OKtJk; rk;ge;jkhf Ngrg;gl;lJ jhahhpd; fphpia
md;W Ngrg;gl;lJ. fphpiaf;F midtUk; PW2
cl;gl te;jpUe;jhh;fs; mJ rk;ge;jkhf
vOjg;gltpy;iy Ngrg;gl;lJ cz;ik vd;whYk;
vd;dhy; nrhy;yg;gl;lJ Nghy KbT
nra;ag;gl;ltpy;iy vd;whYk; mtu;fs; nrhy;tJ
Nghy; fpupia gpd;du; KbT nra;ag;gl;lJ vd;why;
rupay;y.
A reading of the evidence does not disclose any clear or unequivocal
admission regarding the alleged partition. At best, DW-1 admitted that a
panchayat had taken place. Such an admission cannot be construed as an
admission of the plaintiffs' specific case that the properties were
partitioned in the manner pleaded by them. It is well settled that an
admission must be clear, categorical and unambiguous. The finding
recorded by the Courts below treating the evidence of DW-1 as an
admission of partition is therefore a clear misreading of the evidence.
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S.A.(MD).No.804 of 2005
16. Apart from the above, no contemporaneous document
evidencing mutation of revenue records immediately after the alleged
oral partition, separate enjoyment by each party as exclusive owner,
payment of revenue independently, or any other conduct consistent only
with a completed partition has been produced. In the absence of such
evidence, the testimony of PW-2 alone cannot be accepted as sufficient
proof of the alleged oral partition.
17. This Court is therefore of the considered view that the plaintiffs
have failed to establish the oral partition in the manner known to law.
The concurrent findings of the Courts below accepting the oral partition
are the result of mis-appreciation of the oral evidence and omission to
consider the legal requirements governing proof of an oral partition.
Consequently, this Court is justified in exercising its jurisdiction under
Section 100 CPC to interfere with the said findings.
18. Turning to the defence set up by the first defendant, his claim is
founded upon the alleged Will executed by Ramayammal. To prove the
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S.A.(MD).No.804 of 2005
Will, the defendants examined DW-2, one of the attesting witnesses.
19. Both the Courts below, upon appreciation of the entire
evidence, concurrently held that the testimony of DW-2 was not
trustworthy. The Courts found material inconsistencies in his evidence
and noticed circumstances affecting his credibility. The contention of the
learned counsel for the appellant that the mandatory requirements under
Section 63(c) of the Indian Succession Act, 1925, and Section 68 of the
Indian Evidence Act, 1872, stood satisfied cannot be accepted in the facts
of the present case.
20. Compliance with the statutory requirements regarding
attestation and proof of execution is only one aspect of the issue. Equally
important is the credibility of the witness who speaks to the execution.
Where the attesting witness himself is found to be unreliable, the mere
fact that his testimony formally satisfies the ingredients of Section 63(c)
of the Indian Succession Act and Section 68 of the Evidence Act does not
compel the Court to accept the Will as genuine. The Hon'ble Supreme
Court has consistently held that proof of a Will depends upon the totality
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S.A.(MD).No.804 of 2005
of the surrounding circumstances and that each case must be decided on
its own facts.
21. In the present case, this Court finds no infirmity in the
concurrent conclusion that the execution of the Will has not been
satisfactorily proved. Significantly, the opinion of the handwriting expert
also does not fully support the appellant's case. The expert was unable to
give a definite opinion regarding the thumb impression found on the last
page of the Will. Though expert opinion is not conclusive, the absence of
a definite opinion assumes significance when viewed along with the
unreliable testimony of DW-2 and the surrounding suspicious
circumstances. Accordingly, this Court concurs with the finding of the
Courts below that the alleged Will has not been proved in accordance
with law.
22. Thus, while the plaintiffs have failed to establish the oral
partition pleaded by them, the first defendant has equally failed to prove
the Will claimed by him. Consequently, the plaintiffs are not entitled to
the declaration of exclusive title or the consequential relief of permanent
injunction sought in the suit, and the suit, as framed, is liable to be
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S.A.(MD).No.804 of 2005
dismissed.
23. However, the matter does not rest there. The litigation is
between brothers and sisters and has remained pending for more than two
decades. During the course of evidence, it has emerged that all the parties
are the legal heirs of the original owners. The trial Court has also
incidentally observed that, in the absence of proof of the alleged
arrangements, the parties would continue to be co-owners. Therefore,
dismissal of the suit without preserving the legitimate rights of the
parties would result in multiplicity of proceedings and perpetuate the
family dispute.
24. The jurisdiction of a civil court is not confined to granting or
refusing the precise relief claimed. The Court has power to mould relief
if the facts of the circumstances warrants and in the case of directing the
parties to drive the another round of litigation which is not only consume
the time of the parties and also the precious judicial time more
particularly in cases of this nature the Court is duty found mould relief
and put on end to the litigations. (I.e.) in an appropriate case, the Court
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S.A.(MD).No.804 of 2005
is empowered to mould the relief in order to render substantial and
complete justice between the parties, provided such relief flows from the
pleadings and the admitted or proved facts in order to advance the ends
of justice and avoid multiplicity of litigation. The same was reiterated
by the Honble Supreme Court and the various Courts. The power of a
civil Court to mould relief under Order VII Rule 7 CPC enables it to
grant appropriate relief founded on the pleadings and the facts
established at trial, provided no prejudice is caused to either party. This
principle has been recognised in Rangappa v. Jayamma , ILR 1987 KAR
2889; R. Dhanalakshmi v. Senthilkumari , 2008 (1) CTC 19; M.M.
Kumaresan v. M. Shanmugavadivu , 2024 SCC OnLine Mad 2863; and J.
Ganapatha v. M/s. N. Selvarajalou Chetty Trust , 2025 LiveLaw (SC)
353. The Hon'ble Supreme Court, in J. Ganapatha and Others v. M/s. N.
Selvarajalou Chetty Trust, represented by its Trustees and Others ,
reported in 2025 INSC 395 and 2025 LiveLaw (SC) 353, reiterated the
principles governing the moulding of relief. In paragraph 20 of the
judgment, the Supreme Court explained that the Court may shape the
relief in the light of the circumstances established at trial, with a view to
shortening litigation and rendering complete justice. It is relevant to
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S.A.(MD).No.804 of 2005
extract paragraph 20 of the Hon'ble Supreme Court in the case of
J.Ganapatha and Others Vs. M/s.N.Selvarajalou Chetty Trust rep by its
trustees and others reported in 2025 LiveLaw(SC) 353:
20 . The concept of moulding of relief refers to the
ability of a court to modify or shape a relief sought by a party
in a legal proceeding based on the circumstances of the case
and the facts established after a full-fledged trial. The
principle enables the court to grant appropriate remedies
even if the relief requested in the pleading is not exact or
could not be considered by the court or changed
circumstances have rendered the relief obsolete. The court
aims that justice is served while taking into account the
evolving nature of a case. The above road map is pursued by
a court based on the notion of flexibility in relief, equitable
jurisdiction, and is tempered by judicial discretion. When
moulding the relief, the court considers the issues and
circumstances established during the full-fledged trial, looks
at shortening the litigation, and then in its perspective, render
complete justice to the issue at hand. The converse of the
above is that the moulded relief should not take the aggrieved
party by surprise or cause prejudice. The relief is moulded as
an exception and not as a matter of course.
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S.A.(MD).No.804 of 2005
25. Therefore this court inclines to apply theory of moulding of
relief to the facts of the present case. Having regard to the admitted
relationship between the parties, the evidence on record and the
prolonged pendency of the litigation, this Court is of the view that a
preliminary decree for partition would effectively resolve the subsisting
dispute and preserve the parties’ lawful rights, rather than dismissing the
present suit and driving them to another round of litigation. Accordingly,
the two plaintiffs, who are sisters, the first defendant and the second
defendant are each entitled to an equal one-fourth share in the suit
properties as per provisions of the Hindu Succession Act, 1956. This
Court would be justified in moulding the relief and passing a preliminary
decree for partition, instead of dismissing the suit in its entirety.
Accordingly this Court holds that the suit properties shall be treated as
joint properties among the legal heirs. Consequently, the plaintiffs, who
th
are two sisters, are jointly entitled to 2/4 share (each being entitled to
th th
1/4 share ), the first defendant/appellant is entitled to 1/4 share , and
th
the second defendant, though set ex parte, is also entitled to 1/4 share
in the suit properties. On that basis, the plaintiffs would be jointly
th th
entitled to 2/4 share, each being entitled to 1/4 share, while the first
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S.A.(MD).No.804 of 2005
th
defendant and the second defendant would each be entitled to 1/4 share
in the suit properties.
26. Accordingly this Court moulds the relief and passes a
preliminary decree for partition, declaring the two plaintiffs jointly
th
entitled to 2/4th share, each being entitled to 1/4 share, and the first and
th
second defendants each entitled to 1/4 share in the suit properties. This
relief neither validates the unproved oral partition nor gives effect to the
unproved Will; it merely recognises the independent rights of inheritance
of the parties and further this relief is extended only to avoid multiplicity
of proceedings.

27. It is made clear that this declaration is confined only to the suit
properties. Insofar as the other properties allegedly belonging to the
father of the parties are concerned, it is open to the plaintiffs and the
other legal heirs to work out their rights by instituting appropriate
proceedings in accordance with law. The observations made in this
judgment shall not preclude any such proceedings. This conclusion has
been reached solely because the alleged oral partition has not been
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S.A.(MD).No.804 of 2005
established in the manner known to law and neither side has produced
satisfactory evidence to show that the alleged oral arrangement had been
acted upon so as to attain legal finality. Having regard to the
extraordinary facts and circumstances of the case, and in order to avoid
multiplicity of proceedings, this Court considers it appropriate to
exercise its equitable jurisdiction by moulding the relief in the above
manner.
28. Accordingly, the Second Appeal is disposed of on the following
terms:
(i) The judgments and decrees passed in O.S. No. 165 of 2002 and
A.S. No. 29 of 2004 are set aside to the extent indicated herein.
(ii) There shall be a preliminary decree for partition declaring
th
that the plaintiffs are jointly entitled to 2/4 share (each plaintiff being
th th
entitled to 1/4 share ), the first defendant/appellant is entitled to 1/4
th
share , and the second defendant is entitled to 1/4 share in the suit
properties.
(iii) The Registry shall draw up the preliminary decree accordingly.
(iv) The parties are at liberty to institute final decree proceedings
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S.A.(MD).No.804 of 2005
before the jurisdictional trial Court. Upon such application being filed,
the trial Court shall dispose of the final decree proceedings expeditiously
and in accordance with law.
(v) There shall be no order as to costs.
29.10.2026
NCC :Yes/No
Index : Yes/No
Internet : Yes/No
sbn
Note:Issue Order copy on 30.10.2026
To:
1. The learned Subordinate Judge,
Paramakudi.
2.The learned District Munisif,
Paramakudi.
3.The Section Officer,
VR Section.
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD).No.804 of 2005
K.K.RAMAKRISHNAN, J.
sbn
S.A.(MD)No.804 of 2005
29.10.2026
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