Suit for partition simpliciter is not maintainable without seeking cancellation of registered instruments obstructing title.

The dispute concerns a suit for partition of a property in Avadi.

The plaintiff (whose legal representatives are appellants in A.S.No.496 of 2022) and the 1st defendant (appellant in A.S.No.448 of 2022) claimed the property was the self-acquisition of their late father, C. Raghavan, who died intestate in 1995.

They sought a 1/3rd share, alleging joint possession.

The 2nd defendant (sister) contended the property was the absolute property of their mother, Mohana, who had settled it on her via a registered settlement deed in 2010.

The 2nd defendant subsequently sold the property to the 3rd defendant in 2015.

The trial court dismissed the suit, holding the property belonged to the mother and that the suit was maintainable only if the settlement and sale deeds were specifically challenged under Section 31 of the Specific Relief Act.

In the appeal, the 1st defendant sought to introduce additional documents (alleged original sale deeds in the father's name) under Order XLI Rule 27 of the CPC.

1. Whether the application for adducing additional evidence under Order XLI Rule 27 of the CPC should be entertained?

2. Whether a suit for partition simpliciter is maintainable in the absence of a declaratory relief challenging the registered settlement deed executed by the mother in favor of the 2nd defendant and the subsequent sale deed in favor of the 3rd defendant?

The court applied Order XLI Rule 27 of the CPC, which prohibits additional evidence in appeal unless the party proves that despite due diligence, such evidence was not within their knowledge or could not be produced at trial.

The court relied on Section 31 of the Specific Relief Act, 1963, which mandates the cancellation of void or voidable instruments that cause reasonable apprehension of serious injury to a person's rights.

It followed the principles in Muppudathi Pillai v. Krishnaswami Pillai (AIR 1960 Madras 1), establishing that a party must challenge a document that acts as a "source of potential mischief" to their title.

It followed the principles in Prem Singh v. Birbal [(2006) 5 SCC 353], which holds that registered documents must be challenged unless void ab initio.

The court applied Section 37(2) of the Court Fees Act regarding the necessity of proving joint possession for nominal court fee valuation.

The court rejected the application for additional evidence, finding the appellant's claim—that he found the documents in an "almirah" after the suit was dismissed—failed the "due diligence" test under Order XLI Rule 27.

Regarding ownership, the court noted that property tax assessments (Ex.B14) were in the mother’s name as early as 1987 while the father was still alive, contradicting the claim of the father's ownership.

The court emphasized that the settlement and sale deeds were registered instruments that created a legal hurdle for the plaintiff; thus, per Section 31 of the Specific Relief Act, the plaintiff was obligated to seek their cancellation.

A suit for partition simpliciter, ignoring these registered transfers, was held to be legally unsustainable.

The court determined that the plaintiff was not in physical or constructive possession, rendering the suit valuation under Section 37(2) of the Court Fees Act improper, as the 3rd defendant had already mutated revenue records and established possession.

The court held that the partition suit was not maintainable without a specific challenge to the registered settlement and sale deeds.

The High Court dismissed both Appeal Suits (A.S.Nos.448 & 496 of 2022) with costs and upheld the trial court's judgment.

All connected miscellaneous petitions were closed or dismissed.