Plaintiff Cannot Claim 2/3 Share Without Proving Settlement or Joining All Co-Heirs: Madras High Court

Settlement Deed Not Proved, Legal Heirs Not Impleaded – In a significant ruling Madras High Court dismissed a second appeal filed by a plaintiff seeking 2/3rd share in ancestral property, holding that he failed to prove the alleged settlement deed from his father and had not impleaded all necessary legal heirs in a partition suit.

Delivering a reportable judgment Justice P. Dhanabal upheld the First Appellate Court’s decision and confirmed that the plaintiff’s partition claim was legally unsustainable in the absence of proper proof and complete joinder of parties.

“Once the settlement deed has not been proved, the share of the deceased father must devolve equally upon all his legal heirs,” the Court observed.

“Registration is Not Proof” – Settlement Deed Invalid Without Attestation Evidence

The plaintiff, Venkatesan, based his claim on a 2005 registered settlement deed allegedly executed by his father, Kuppugounder, conveying 1/3rd share in ancestral property to him. Combined with his own 1/3rd share, the plaintiff sought 2/3rd rights over the properties, leaving the defendants (legal heirs of his deceased brother) with only 1/3rd.

However, the High Court noted that the execution of the deed was specifically denied by the defendants. Therefore, Section 68 of the Indian Evidence Act was triggered – requiring at least one attesting witness to prove due execution and attestation.

“Execution of a document means more than signing—it requires proof of attestation as per law,” the Court held.

The key witness (P.W.3) examined by the plaintiff failed to speak about attestation in chief examination. His vague reference during cross-examination was deemed insufficient.

“The attesting witness did not speak about attestation in the chief-examination. That is fatal. Mere registration of a document does not prove execution if specifically denied,” the Court declared, rejecting the settlement deed.

“Legal Heirs Cannot Be Ignored – Partition Suit Must Include All”

The Court was categorical that after the death of Kuppugounder, his share in the property could not pass exclusively to the plaintiff without a valid settlement. In such a case, the property must devolve on all legal heirs, including the plaintiff’s siblings and the married sister.

“The plaintiff failed to implead all legal heirs. In a suit for partition, such omission is fatal,” held the Court.

The Court also clarified that non-joinder of necessary parties rendered the entire suit defective. It rejected the argument that since the daughter (Ambuja) was married in 1987, she had no claim.

“Oral Partition Not Proved by Defendants – But Plaintiff Still Fails”

Interestingly, the High Court also dealt with the defendants’ counterclaim that an oral partition had taken place between the brothers and their parents, dividing both paternal and maternal properties.

However, the Court found that no evidence was led to establish which properties were divided, how they were allotted, or whether other co-heirs had consented.

“There is no document or clarity on metes and bounds of partition. Oral partition claim is unsupported,” the Court held.

Yet, this did not help the plaintiff, since the burden to prove the settlement deed and join all heirs was squarely on him—and he failed.

“Substantial Questions of Law Answered Against Plaintiff”

The High Court addressed the three substantial questions of law framed at the time of admission and answered all against the appellant:

1. Earlier partition of 1994 was not in dispute, but since the settlement deed failed, the plaintiff could not claim the father’s share.

2. The defendants failed to prove oral partition, but since the plaintiff’s case was independently weak, that alone could not revive his suit.

3. Even if the plaintiff had proved the 1994 partition, he could not claim 2/3rd share without proving the 2005 settlement and without joining all co-heirs.

“The Appellate Court rightly found that in the absence of a valid settlement deed, the share of the deceased must be divided among all heirs. The partition suit without joining them is not maintainable,” Justice Dhanabal held.

“Fresh Suit Permitted – But With All Legal Heirs and Full Properties”

Though dismissing the appeal, the Court offered a limited reprieve:

“The plaintiff is at liberty to file a fresh suit for partition by impleading all the legal heirs of Kuppugounder and including all the properties.”

This signals that the Court found the plaintiff's approach legally flawed, but not inherently dishonest or fraudulent. The door remains open—if he follows due legal process.

Key Takeaways from the Judgment:

• A registered settlement deed must still be proved under Section 68 of the Evidence Act if its execution is specifically denied.

• An attesting witness must testify to attestation, not just signing.

• In partition suits, all legal heirs are necessary parties—even married daughters.

• Even if oral partition is unproved, plaintiff cannot succeed without proving his own claim.

• The High Court will not interfere with factual findings unless they are perverse or unsupported by evidence.

Sound Procedure Is the Bedrock of Partition Suits

This judgment reinforces a core legal principle in civil law: plaintiffs cannot shortcut procedure, even with seemingly valid claims. Where family property is involved, precision in pleadings, proof, and parties is paramount.

“You cannot claim a bigger share without proving the source. And you certainly cannot leave out your siblings,” summarizes the High Court’s message.

Date of Decision: 9 December 2025