Partition cannot be claimed without first cancelling a registered settlement deed that extinguishes the claimant’s title.

The appellants/plaintiffs, three daughters of Ponnusamy Thevar, filed O.S.No.42 of 2019 seeking partition and separate possession of a 3/4 share in the suit properties.

They pleaded that the properties originally belonged to their grandparents and were allotted to their father in an oral partition, after which the properties continued as joint family properties.

The respondent/defendant, their brother, disputed their claim and relied principally on a registered settlement deed dated 21.05.1996, allegedly executed by their parents in his favour, as well as a Muchalikka dated 21.03.2012 recording payment of Rs.40,000/- to each plaintiff.

The trial Court held that the Muchalikka was not proved, but that the registered settlement deed was valid and had been acted upon; it consequently dismissed the suit for partition.

The plaintiffs appealed under Section 96 read with Order XLI Rule 1 CPC.

Whether the registered settlement deed dated 21.05.1996 in favour of the defendant was genuine, valid and proved in law?

Whether the trial Court’s dismissal of the plaintiffs’ partition suit was legally sustainable and whether the appeal was liable to be allowed?

Whether the plaintiffs could seek partition without seeking cancellation or setting aside of the registered settlement deed standing in the defendant’s favour?

The Court held that property allotted to a coparcener in a partition ceases to retain the character of joint family property and becomes his separate or self-acquired property, relying on Uttam v. Saubhag Singh, (2016) 4 SCC 68, and Angadi Chandranna v. Shankar, 2025 INSC 532.

Under the proviso to Section 68 of the Indian Evidence Act, 1872, an attesting witness need not be examined to prove a registered document, other than a Will, unless its execution is specifically denied.

A registered document carries a prima facie presumption of valid execution, placing the burden on the person challenging it to rebut that presumption, as stated in Prem Singh v. Birbal, (2006) 5 SCC 353.

Further, where an instrument constitutes an insurmountable obstacle to the plaintiff’s title, the plaintiff must seek its cancellation or setting aside before claiming consequential relief, pursuant to M.D. Noorul Hoda v. Bibi Raifunnisa, (1996) 7 SCC 767.

The Court found that the plaintiffs’ own pleading established that the suit properties had been allotted to their father in an earlier partition; therefore, the properties were his separate property and not ancestral or joint family property in which the plaintiffs acquired an automatic share.

The defendant relied on a registered settlement deed executed by the plaintiffs’ parents in 1996 and produced its certified copy, explaining that the original had been handed over to a proposed purchaser.

The plaintiffs did not specifically deny the execution of the settlement deed in their pleadings; their objection was primarily directed to the non-production of the original and the absence of an attesting witness.

In those circumstances, the proviso to Section 68 applied, and the registered deed was treated as sufficiently proved.

The defendant’s mutation of revenue records, possession and payment of kist were also consistent with the settlement having been acted upon.

Since the settlement deed transferred the relevant property to the defendant and had not been challenged by a prayer for cancellation or setting aside, the plaintiffs could not maintain a bare claim for partition contrary to that instrument.

It upheld the validity and proof of the registered settlement deed dated 21.05.1996, held that the plaintiffs could not claim partition without first avoiding or cancelling that deed, and found no error in the trial Court’s dismissal of the suit.

The appeal was dismissed, the judgment and decree dated 06.12.2023 in O.S.No.42 of 2019 were confirmed, and the connected miscellaneous petitions were closed without costs.