COMMON JUDGMENT : Feeling aggrieved by the Judgment and Decree dated April 26, 2016 passed in O.S.No.1 of 2014 by the 'Additional District and Sessions Court, Ariyalur' ['Trial Court' for brevity], the defendants therein have filed the Appeal Suit in A.S.No.223 of 2017 under Section 96 read with Order XLI Rule 1 of 'the Code of Civil Procedure, 1908 ' ['CPC' for short]. 2. Similarly, feeling aggrieved by the Judgment and Decree dated April 26, 2016 passed by the Trial Court in the Counter Claim in the aforesaid Original Suit viz., O.S.No.1 of 2014, the defendants therein have filed the Appeal Suit in A.S.No.224 of 2017 under Section 96 read with Order XLI Rule 1 of CPC. 3. For the sake of convenience, hereinafter, the parties will be referred to as per their array in the Original Suit. PLAINTIFF'S CASE 4. The plaintiff filed the plaint on January 4, 2014. He pleaded that he is the son of first defendant and brother of defendants 2 and 3. The Suit land was purchased on November 6, 1975 by his father - Samsudeen. After the purchase, Samsudeen built up a tiled house in it. Then, Samsudeen passed away intestate on September 24, 2003, leaving behind the plaintiff and defendants as his legal heirs. 4.1. The defendants developed hostile attitude towards plaintiff and on account of that, the plaintiff moved out of the Suit Property and been residing in a rented premises. The plaintiff demanded for amicable division of the Suit Property. But the defendants refused to do so. 4.2. As per Hanafi law, first defendant is entitled to 1/8 share and in the remaining 7/8 share, plaintiff is entitled to 2 shares and defendants 2 and 3 are entitled to one share each. Hence, the plaintiff is entitled to 7/8 x 2/4 = 14/32 share in the Suit Property. Accordingly, the plaintiff filed the Suit for partition and separate possession of plaintiff's 14/32 share in the Suit Property and for rendition of accounts with costs. DEFENDANTS' CASE 5. On June 21, 2014, the first defendant filed a written statement and was adopted by the second and third defendants and all the defendants filed a counter-claim under Order VIII Rule 6-A of CPC. The sum and substance of the written statement is that the plaintiff was leading a wayward life and incurred heavy debts. DEFENDANTS' CASE 5. On June 21, 2014, the first defendant filed a written statement and was adopted by the second and third defendants and all the defendants filed a counter-claim under Order VIII Rule 6-A of CPC. The sum and substance of the written statement is that the plaintiff was leading a wayward life and incurred heavy debts. At the instance of the plaintiff, father – Samsudeen discharged plaintiff’s debts by selling an immovable asset with an oral undertaking from the plaintiff that he will not claim any share in any of the other properties. Hence, as per that family arrangement, the plaintiff is not entitled to claim any share in the Suit Property. 5.1. Further, late Samsudeen was a Cloth Merchant and had an established and reputed retail readymade cloth shop in the name and style of 'Priya's Readymade Shop'. Late Samsudeen left behind lot of assets in that shop worth more than Rupees Ten Lakhs in the form of readymade clothes. After his demise, the plaintiff took over the management of the business, changed the name and style of the shop as 'Sumangali Readymade Shop'. The same is the counter-claim property. Since all the defendants are co-owners of the shop along with the plaintiff, the plaintiff is bound to submit accounts for the assets and profits of the cloth shop and give due share of the defendants. The Suit is not maintainable since the plaintiff filed the Suit without including all the properties of Late Samsudeen. 5.2. Further, after the demise of his father, the plaintiff obtained a loan of Rs.2,00,000/- from the Co-operative House Building Bank by mortgaging the Suit Property. The plaintiff has utilized the entire loan for his own benefits and it is his bounden duty to discharge that loan. The loan amount due along with interest accumulates up to Rs.6,00,000/-. The plaintiff suppressed the said facts. 5.3. The Suit Property is a vast vacant ground and a tiled house thereon. The plaintiff is living separately with his wife and children elsewhere. The first defendant is a widow. The second defendant is also living along with her mother, the first defendant herein, since her husband has deserted her. The third defendant is unmarried. All these defendants are Pardanashin women living in the Suit Property. 5.4. The plaintiff is living separately with his wife and children elsewhere. The first defendant is a widow. The second defendant is also living along with her mother, the first defendant herein, since her husband has deserted her. The third defendant is unmarried. All these defendants are Pardanashin women living in the Suit Property. 5.4. On September 25, 2013 at midnight, the plaintiff came to the Suit house, verbally and physically abused the first and third defendants asking them to vacate immediately claiming to be its sole owner. In response, the third defendant filed a complaint before the Ariyalur Police Station on September 26, 2013. Aggrieved by the complaint, the plaintiff has filed the Suit for partition. 5.5. Stating so, the defendants sought to dismiss the Suit. The defendants further sought for grant of Decree for partition and accounts in favour of the defendants / counter-claimants for their 18/32 share in the counter-claim property. REPLY STATEMENT FILED BY THE PLAINTIFF 6. On November 7, 2014, the plaintiff filed a reply statement to the counter claim filed by the defendants. He averred that father - Samsudeen closed his shop and stopped the business on account of his ill health and the entire shop was liquidated. No stocks or movable assets were left in the shop. Hence, the averments that Samsudeen left assets to the tune of Rs.10 lakhs is false. The shop run by late Samsudeen was very small and income derived therefrom was meagre. The plaintiff started a new shop by investing amount in the name and style of "Sumangali Readymade Shop" in the year 2006, which has nothing to do with Samsudeen’s shop which he had eventually closed, and hence, the defendants are not entitled to have any claim in it. 6.1. Further, the alleged loan from Co-operative Housing Bank was obtained for the family, and the plaintiff has not utilized a single pie from it; the amount was appropriated by the first defendant for the defendants 2 and 3. The loan has to be discharged by all the members according to their share in the Suit Property. 6.2. The averments that the plaintiff was leading a wayward life and that he contracted debts were denied. The loan has to be discharged by all the members according to their share in the Suit Property. 6.2. The averments that the plaintiff was leading a wayward life and that he contracted debts were denied. The alleged sale by late Samsudeen to discharge the alleged debts of plaintiff on the family arrangement that plaintiff will not claim any share in the Suit Property after his demise, is denied as false. Other averments made by the defendants were also denied. Stating so, the plaintiff sought to decree the Original Suit and to dismiss the counter-claim. TRIAL COURT 7. Based on the above pleadings, the Trial Court framed the following issues: ‘1) Whether the plaintiff is entitled to the relief of partition? 2) Whether the defendants are entitled to the relief as claimed in the counter-claim? 3) Whether partition has already been effected as claimed by the defendants? 4) To what other relief, the plaintiff is entitled to? ' 8. At trial, on the side of the plaintiff, plaintiff was examined as P.W.1 and Ex-A.1 (Samsudeen’s title deed for the Suit Property) and Ex- A.2 (Patta for the Suit Property) were marked. On the side of the defendants, first defendant was examined as D.W.1 and one Mohammed Iqbal was examined as D.W.2 and Ex-B.1 and Ex-B.2 (both are Police complaint acknowledgments) were marked. 9. After hearing both sides, the Trial Court held that the plaintiff is entitled to 7/8 X 2/4 = 14/32 share in the Suit Property and accordingly, decreed the Suit in favour of the plaintiff. It further held that the defendants have failed to establish that the counter-claim property is the same as that run by Samsudeen and accordingly, dismissed the counter- claim filed by the defendants. 10. Feeling aggrieved by the Trial Court decreeing the Original Suit and by the dismissal of the counter-claim, the defendants have filed A.S. No.223 of 2017 and A.S.No.224 of 2017 respectively. 11. Heard Ms.D.Sathya for M/s.Zeenath Begum, learned Counsel on record for the appellants / defendants, and Mr.P.Valliappan, learned Senior Counsel, assisted by Mr.S.M.S.Shriram Narayanan, learned Counsel for the respondent / plaintiff, in full. DISCUSSION: 12. 11. Heard Ms.D.Sathya for M/s.Zeenath Begum, learned Counsel on record for the appellants / defendants, and Mr.P.Valliappan, learned Senior Counsel, assisted by Mr.S.M.S.Shriram Narayanan, learned Counsel for the respondent / plaintiff, in full. DISCUSSION: 12. Upon perusing the entire evidence available on record and hearing on either side, the following points arise for consideration: (i) Whether the Trial Court is justifiable in rejecting the petition under Order VIII Rule 9 of CPC in I.A.No.1 of 2015 in the Original Suit ? (ii) Whether the Hiba Deed dated August 21, 2003, has been proved by the defendants ? (iii) Whether the Suit is bad for partial partition ? (iv) Whether the plaintiff is entitled for partition in the Suit Property? (v) Whether the defendants are entitled for partition in the counter- claim property ? Point No.(i) 13. Ms.D.Sathya would argue that the defendants filed a petition under Order VIII Rule 9 of CPC in I.A.No.1 of 2015 in the Original Suit seeking leave of the Court to file an additional written statement on June 14, 2015. The Trial Court dismissed the said petition by holding that by way of said additional written statement, the defendants are attempting to introduce a new plea of Hiba and to withdraw their earlier admissions in the written statement. The Trial Court ought to have allowed the petition noting that the first defendant is an illiterate Pardanashin women who inadvertently failed to inform her Counsel about the Hiba at the time of filing of written statement. Dismissal of the said petition by the Trial Court amounts to violation of principles of natural justice. Further, by placing reliance on the Judgment of Hon'ble Supreme Court in Dewaji -vs- Ganpatlal , reported in AIR 1969 SC 560 and the Judgment of a learned Single Judge of this Court in Thirunavukarasu -vs- Mariyayee Ammal reported in 1998 (1) LW 49 : 1997 SCC OnLine Mad 296 , she would submit that since the Order passed in the said Interlocutory Application is a Interlocutory in nature and not a final one, there is no need to prefer revision and the said Order can very well be challenged in the appeal. Accordingly, she would pray to accept the additional written statement sought to be filed by the defendants and remand the matter to the Trial Court for proving the Hiba. 14. Accordingly, she would pray to accept the additional written statement sought to be filed by the defendants and remand the matter to the Trial Court for proving the Hiba. 14. In response to the same, Mr.P.Valliappan would argue that the defendants filed their written statement along with their counter claim on June 21, 2014. The plaintiff filed reply statement to the counter-claim on November 7, 2014. Based on the pleadings, issues were framed on the even date i.e., November 7, 2014. The plaintiff filed his chief-affidavit on March 17, 2015 and the Trial commenced. Cross-examination of P.W.1 was done partly on April 27, 2015, partly on June 25, 2015 and was yet to be completed. At that stage of trial, on July 14, 2015, the defendants filed the aforesaid Interlocutory Application in I.A.No.1 of 2015 seeking leave to file additional written statement. In the said additional written statement, the defendants for the first time pleaded that Samsudeen gifted the Suit Property in favour of the defendants by way of a Hiba Deed dated August 21, 2003. The said plea is an afterthought and the said Hiba Deed is a forged one. Granting leave to file the said additional written statement would tantamount to permitting the defendants to withdraw their earlier admissions in the written statement that the defendants are co-owners along with the plaintiff in the counter-claim property as well as the Suit Property, and cause gross-injustice to the plaintiff. The Trial Court rightly dismissed the said Interlocutory Application and there is no warrant to interfere with its dismissal. 15. This Court has considered both sides’ submissions qua the Interlocutory Application under Order VIII Rule 9 of CPC and perused the additional written statement sought to be filed. For ready reference, the averments made in the said additional written statement are extracted as such hereunder: “ The late husband of this Defendant was forced to sell a portion of his vacant site to discharge the debts incurred by plaintiff. This defendant has already pleaded about this in her Written Statement. After that Samsudeen the husband of this Defendant thought fit to settle the suit property to this defendant. This defendant has already pleaded about this in her Written Statement. After that Samsudeen the husband of this Defendant thought fit to settle the suit property to this defendant. So out of love and affection the late Samsudeen had gifted the suit property to this defendant and executed a Hiba (Gift deed) deed on 21.8.2003 in a sound mind in the presence of two witnesses and also in the presence of a notary. He had handed over the original Hiba deed to this defendant. This defendant has accepted the Hiba and she is in possession and is living in the house all along with her daughters. Some years ago one of the attesters Mohamed Halifulla also died. The xerox copy of the Hiba deed is filed herewith. As per this gift deed this defendant has become the absolute owner of the suit property. At the time of death of Samsudeen this property did not belong to him and there was no instate succession. So the plaintiff is not entitled for any share in the suit property. Hence it is humbly prayed that this Honourable Court may be pleased to dismiss the suit with costs and decree the counter claim of this defendant with costs and thus render justice.” 16. The defendants in their written statement as well as their counter-claim, have in effect pleaded that the plaintiff and the defendants are co-owners of the Suit Property as well as the counter-claim property. Particularly, in Paragraph No.9 of the written statement, the defendants have averred that the Suit Property is not viable for division as per respective shares of the parties and in Paragraph No.11 thereof, they have averred that if all the factors mentioned therein above are taken together, most probably the plaintiff may not get any allotment of share in the Suit Property; that on the principles of equity also, the entire house has to be allotted to the share of the defendants taking into account their position and helpless nature; and that if there is any share for the plaintiff, a portion of the vacant site may be allotted according to his share. In the counter- claim, it has been specifically pleaded that the defendants are co-sharers with the plaintiff and entitled to share as per law in it. In the counter- claim, it has been specifically pleaded that the defendants are co-sharers with the plaintiff and entitled to share as per law in it. From a bare reading of the averments contained in the written statement, more specifically Paragraph Nos.9 and 11, one can easily come to the conclusion that the defendants themselves admit that the plaintiff is entitled to share in the Suit Property. An admission made in the pleadings is a judicial admission under Section 58 of Indian Evidence Act, 1872 , and cannot be easily withdrawn. 17. As per Mohameddan Law, to constitute a valid gift or Hiba, three essentials are must. One, declaration of the gift by the donor, second, acceptance of the same by the donee expressly or impliedly and third, delivery of possession actually or constructively. If really these essentials were met, any common prudent person would have obviously been aware of the Hiba, could not have confused the Hiba with any other transaction and most importantly, would not have allowed it to fade from memory. Had it been a Will, it would be acceptable that it was known only to the testator, that the beneficiary was not aware of the same and that it surfaced only after the testator’s demise. But the same cannot be said in the case of a Hiba. If really the alleged Hiba is a genuine and valid one, then the first defendant would have accepted the Hiba and obtained possession of the Suit Property, and in such a case she cannot contend that the transaction faded out of memory or she by oversight or inadvertence failed to inform her Counsel about the same at the time of filing written statement. Under normal circumstances, no prudent person would miss mentioning a Hiba in their favour while briefing their Counsel. If there are any exceptional circumstances, the same has to be pleaded and proved, which is not the case here. Hence, this Court is of the view that the plea of Hiba contained in the additional written statement sought to be filed is an afterthought. A subsequent pleading withdrawing earlier admission made in the pleadings is not valid and cannot be permitted. Hence, the Trial Court was right in dismissing the Interlocutory Application in I.A.No.1 of 2015 in the Original Suit. Point No.(i) is answered accordingly in favour of plaintiff and against the defendants. Point No.(ii) 18. A subsequent pleading withdrawing earlier admission made in the pleadings is not valid and cannot be permitted. Hence, the Trial Court was right in dismissing the Interlocutory Application in I.A.No.1 of 2015 in the Original Suit. Point No.(i) is answered accordingly in favour of plaintiff and against the defendants. Point No.(ii) 18. As regards Point No.(ii), Ms.D.Sathya would contend that during trial, D.W.1 / first defendant in her chief affidavit filed a Hiba Deed dated August 21, 2003 executed by Samsudeen in favour of her. One of the attesting witness to the said document - A.Mohamed Iqbal was examined as D.W.2. The plaintiff side objected to mark the said document by citing that the document is an unregistered document and that in- praesenti rights have been created through the unregistered Hiba Deed. The Trial Court in the deposition of D.W.1 itself, observed that the validity of the said Hiba Deed would be considered at the time of Judgment. In its Judgment the Trial Court noted that the said document is an unregistered one and that the evidence of D.W.2 is not sufficient to prove Hiba Deed and accordingly, rejected the same. By referring to the Judgment of Hon'ble Supreme Court in Mansoor Saheb -vs- Salima , reported in 2024 SCC OnLine SC 3809 , she would contend that the Trial Court failed to consider that in Mohameddan law, Hiba is not required to be in writing and consequently, need not be necessarily registered under the Registration Act, 1908. On that ground also, the finding of the Trial Court is liable to be set aside, and the matter is liable to be remanded to the Trial Court for marking the said Hiba Deed. 19. Per contra, Mr.P.Valliappan would submit that in Mohameddan law, gift by a Mohameddan need not be in writing and consequentially need not be registered. But the three essentials elements (already stated supra) of a Hiba are necessary. In this case, D.W.2 is none other than the nephew of first defendant residing in Manaparai Taluk of Trichy District and the Suit Property is in Ariyalur District. His evidence is contrary to the recitals found in the alleged Hiba Deed dated August 21, 2003. But the three essentials elements (already stated supra) of a Hiba are necessary. In this case, D.W.2 is none other than the nephew of first defendant residing in Manaparai Taluk of Trichy District and the Suit Property is in Ariyalur District. His evidence is contrary to the recitals found in the alleged Hiba Deed dated August 21, 2003. Further, D.W.1 herself has stated that only on August 21, 2003 the gift was made in her favour but D.W.2 has improved the same by deposing that the gift was made orally prior to the Hiba Deed and for the sake of having it in writing, the Hiba Deed was executed on August 21, 2003. Hence the evidence of P.W.2 is not trustworthy and not believable. The Trial Court rightly recorded a finding that the Hiba Deed was not proved. 20. This Court has considered both sides submissions in this regard. The defendants’ side furnished the photocopy of the Hiba Deed dated August 21, 2003 for perusal in the Open Court. This Court has perused the same. The said Hiba Deed is an unregistered one executed before a Notary Public at Trichy on August 21, 2003. It is apposite to extract the relevant portion from the Hiba Deed hereunder: 21. The Suit Property has been allegedly gifted through the said unregistered Hiba Deed, which means rights are created in-praesenti. In general, as per Sections 122 and 123 under Chapter VII of the Transfer of Property Act, 1882 , Gift can be effected only through registered instrument when it comes to immovable properties. But Section 129 thereof, carves out an exception to the same in case of a Hiba by a Mohameddan. At this juncture, it is worthwhile to refer to the Judgment of Hon'ble Supreme Court in Hafeeza Bibi -vs- Shaikh Farid , reported in (2014) 10 SCC 459 , wherein the Hon'ble Supreme Court after referring to Mulla’s Principles of Mohameddan Law (19 th edition), has held in Paragraph No.27 as follows: '27.In our opinion, merely because the gift is reduced to writing by a Mohammadan instead of it having been made orally, such writing does not become a formal document or instrument of gift. When a gift could be made by Mohammadan orally, its nature and character is not changed because of it having been made by a written document. When a gift could be made by Mohammadan orally, its nature and character is not changed because of it having been made by a written document. What is important for a valid gift under Mohammadan Law is that three essential requisites must be fulfilled. The form is immaterial. If all the three essential requisites are satisfied constituting valid gift, the transaction of gift would not be rendered invalid because it has been written on a plain piece of paper. The distinction that if a written deed of gift recites the factum of prior gift then such deed is not required to be registered but when the writing is contemporaneous with the making of the gift, it must be registered, is inappropriate and does not seem to us to be in conformity with the rule of gifts in Mohammadan Law. ' 21.1. Further, the Hon'ble Supreme Court in Rasheeda Khatoon -vs- Ashiq Ali , reported in 2014 (10) SCC 459 , upon referring to Hafeeza Bibi’s Case , has reiterated that registration of a Hiba Deed is not necessary. Now it is clear that an unregistered Hiba Deed is admissible and valid, provided the three essentials of Hiba are satisfied. 22. As regards the essentials of a Hiba, this Court deems fit to refer to Section 149 of the Principles of Mohameddan Law by Mulla (21 st edition), which reads thus: ' Section 149. The three essentials of a gift. It is essential to the validity of a gift that there should be (1) a declaration of gift by the donor, (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150. If these conditions are complied with, the gift is complete.' 23. Further, delivery of possession is a vital element among the three essentials of a Hiba. This Court also deems fit to refer to the Outlines of Mohameddan Law by Asaf.A.A.Fyzee (Oxford University Press, 5 th edition), whereof in Page No.190, it has been thus: 'The general principle is that possession must be handed over. To this rule there are certain qualifications and exceptions. This Court also deems fit to refer to the Outlines of Mohameddan Law by Asaf.A.A.Fyzee (Oxford University Press, 5 th edition), whereof in Page No.190, it has been thus: 'The general principle is that possession must be handed over. To this rule there are certain qualifications and exceptions. Transfer of possession is not necessary; (a)Where the donor and the donee reside in the same house; (b)Where the gift is from the husband to the wife or vice versa; (c)Where the father or the mother makes a gift to a child; (d)Where a guardian makes a gift to the ward; (e)Where a gift is made to a bailee in possession; (f)Where the Fatimi law is applicable. Where the donor and the donee reside in the same house the donor can complete the gift without physical transfer of possession; but there must be the unequivocal manifestation by the donor of an intention to transfer exclusive possession to the donee.' 24. In this case, the defendants failed to plead and prove the three essentials of a Hiba, without which a Hiba is not valid. The evidence of D.W.1 and D.W.2 does not satisfactorily establish the three essentials of Hiba Deed dated August 21, 2003. Even while assuming that the Hiba is true, in such a scenario, no common prudent person would have omitted to plead about the same in the written statement and it is highly improbable for them to forget it. No one would forget a Gift executed in their favour as elaborated above. Moreover, it is the first defendant who has verified and signed the written statement. Hence, she cannot take such a stand. For the first time, the plea of Hiba was introduced after the commencement of trial by way of subsequent pleadings under Order VIII Rule 9 of CPC. As rightly contended by Mr. Valliappan, the alleged Hiba Deed is an afterthought and not proved. The Trial Court rightly rejected the same. This Court finds no infirmity with the rejection and the said finding of the Trial Court warrants no interference. Point No.(ii) is answered accordingly in favour of plaintiff and against the defendants. Point Nos.(iii), (iv) & (v) 25. Ms.D.Sathya would vehemently contend that during his lifetime, father – Samsudeen was running a readymade cloth retail shop in the name and style of 'Priya's Readymade Shop', which had a great reputation and goodwill. Point No.(ii) is answered accordingly in favour of plaintiff and against the defendants. Point Nos.(iii), (iv) & (v) 25. Ms.D.Sathya would vehemently contend that during his lifetime, father – Samsudeen was running a readymade cloth retail shop in the name and style of 'Priya's Readymade Shop', which had a great reputation and goodwill. Samsudeen passed away leaving behind stock worth more than Rs.10,00,000/- in the said shop. Upon his demise, the said business was taken over by the plaintiff and he renamed it as 'Sumangali Readymade Shop'. The defendants in their written statement in Paragraph Nos.3 to 5 have categorically pleaded that the said business must be included in partition and its non-joinder renders the Suit bad for partial partition. Further, she would reiterate the defendants’ averments qua family arrangement and loan found in the pleadings. 26. In response, Mr.Valliappan would invite the attention of this Court to the cross-examination of D.W.1 and contend that father – Samsudeen was running only Peas Shop and not a clothes shop, which also was closed in 2003. The defendants did not produce any document to show that Samsudeen left behind the counter-claim property for his legal heirs. The counter-claim property i.e., 'Sumangali Readymade Shop' was started by the plaintiff out of his own exertions and the support of his father-in-law in 2006. Hence, the Suit is not bad for partial partition, and the defendants are not entitled for partition in the counter-claim property. 27. As regards the plea of partial partition, the defendants by way of counter-claim, sought for partition of the counter-claim property which according to the defendants is the shop left behind by their father. By way of the counter-claim, the defendants in effect have brought the property into the Suit for partition. Hence, the plea of partial partition pales into insignificance. 28. As far as the Suit Property is concerned, the defendants took four defences. One is the family arrangement whereby the plaintiff allegedly undertook to not to seek any share in any of the remaining properties. The same is not proved. Second is the defence of partial partition which has paled into insignificance as stated above. Third is the plea of Hiba, which also as stated supra, was sought to be introduced after the commencement of trial as an afterthought and the same was not proved. The same is not proved. Second is the defence of partial partition which has paled into insignificance as stated above. Third is the plea of Hiba, which also as stated supra, was sought to be introduced after the commencement of trial as an afterthought and the same was not proved. Fourth defence is that the plaintiff mortgaged the Suit Property and utilised the entire loan amount for his own needs. The mortgage is admitted. The question is whether the plaintiff utilised the entire loan amount for himself as contended by the defendants. There is no evidence available on record to prove that the plaintiff utilised the entire amount for himself and hence, in the eyes of law, all co-owners are liable for the debt. Thus, all the defences of the defendants against the plaintiff claiming partition of the Suit Property, have failed. 29. Admittedly, the Suit Property and more extent of property was purchased by Samsudeen vide Ex-A.1 – Sale Deed. He passed away on September 24, 2003 leaving behind the plaintiff and the defendants. As per the law applicable to the parties viz., Mohameddan law, the first defendant qua wife of Samsudeen is entitled to 1/8 share [which is equal to 4/32] in the Suit Property, the plaintiff qua male heir is entitled to 2 share in the remaining 7/8 share [7/8 X 2/4 = 14/32] and the defendants 2 and 3 are each entitled to one share in the remaining 7/8 share [7/8 X 1/4 = 7 / 32 (each)]. As far as the liabilities are concerned, the parties are liable proportionate to their shares as stated above. The Trial Court rightly decreed the Suit for partition and there is no need to interfere with the same. 30. As far as the counter-claim property is concerned, it is true that the defendants have not filed any document to show that Samsudeen was running 'Priya's Readymade Shop' and passed away leaving behind the said business. But the plaintiff in his reply statement contends that Samsudeen was running a business which he closed in 2003 on account of his poor health and that thereafter, in 2006, he found Sumangali Readymades. In short, he contends that 'Sumangali Readymade Shop' have nothing to do with the Samsudeen’s business. The plaintiff has evasively not specified the name of the shop or the nature of the business. In short, he contends that 'Sumangali Readymade Shop' have nothing to do with the Samsudeen’s business. The plaintiff has evasively not specified the name of the shop or the nature of the business. Later, during the cross-examination of D.W.1, the plaintiff’s side suggested that Samsudeen was running Peas Shop. Pleadings have to be specific and cannot be evasive. Evasive pleadings cannot be permitted to be used in their favour at a later point of time. Interestingly, the plaintiff in the cause title of the plaint, has mentioned the address of first defendant and third defendant, as 'Sumangali Javuli Store, Kunnam, Kunnam Taluk, Perambalur District', which he claims to be his self-acquired property. From the conjoint reading of the written statement as well as the reply statement, it could only be inferred that the plaintiff had admitted that Samsudeen was running a readymade clothes retail shop. When the plaintiff has admitted that the father was running a readymade cloth retail shop, the defendants have discharged their initial burden and the onus shifts onto the plaintiff to prove that 'Sumangali Readymade Shop' is different from the Samsudeen’s 'Priya's Readymade Shop'. The plaintiff has to prove that he started 'Sumangali Readymade Shop' in the year 2006 out of his own exertions. There is no evidence available on record to prove the same. Hence, this Court is of the view that the plaintiff has failed to discharge the onus upon him. In these circumstances, counter-claim property can only be considered as a property left behind by Samsudeen and consequently, the parties being his legal heirs are entitled for partition in the same. As per Mohameddan law, the first defendant is entitled to 1/8 share, and in the remaining 7/8 share, the plaintiff is entitled to 2 shares and the defendants 2 and 3 are each entitled to one share. The Trial Court ought to have decreed the counter-claim as well. Point Nos.(iii), (iv) and (v) are answered accordingly. 31. Upon perusing the Judgment and Decree of the Trial Court, this Court noticed a technical error on the part of the Trial Court. The Trial Court ought to have decreed the counter-claim as well. Point Nos.(iii), (iv) and (v) are answered accordingly. 31. Upon perusing the Judgment and Decree of the Trial Court, this Court noticed a technical error on the part of the Trial Court. As per Order VIII Rule 6-A of CPC, a counter-claim has the same effect as a counter- Suit and be treated as a plaint, which means the Trial Court ought to either have drawn separate Decrees for the Original Suit and the counter- claim, or at least incorporated the particulars of counter-claim along with description of counter-claim property in the Decree for the Original Suit, making it a joint Decree. The Trial Court has failed to do so. 32. Before parting, this Court deems fit to observe here that the plaintiff is residing elsewhere from the Suit Property and is looking after the counter-claim property, while the defendants are residing in the Suit Property. In the interest of Justice, this Court orders that the plaintiff, his persons, or people claiming through him shall not interfere with the peaceful possession and enjoyment of the Suit Property by the defendants and similarly, the defendants, their persons or people claiming through them, shall not interfere with the plaintiff’s peaceful possession and enjoyment of the counter-claim property, until their determined rights are worked out under Order XX Rule 18 of CPC i.e., until final partition. CONCLUSION: 33. Resultantly, the Appeal Suit in A.S.No.223 of 2017 stands dismissed, and that in A.S.No.224 of 2017 is allowed. The Judgment and Decree of the Trial Court is set aside qua counter- claim and modified in the following terms: (a) The first defendant is entitled to 4/32 share, the plaintiff is entitled to 14/32 share, and the defendants 2 and 3 are each entitled to 7/32 share in the Suit Property as well as the counter- claim property. They are also liable to discharge the liabilities, if any, in a proportionate manner. (b) The plaintiff is entitled to receive accounts, if any, in respect of the Suit Property and similarly the defendants are entitled to receive accounts in respect of the counter-claim property from the plaintiff, under Order XX Rule 18 of CPC. (c) To that effect, a Preliminary Decree is passed. (d) The Decree shall contain particulars of the counter-claim and the description of the counter-claim property as well. (c) To that effect, a Preliminary Decree is passed. (d) The Decree shall contain particulars of the counter-claim and the description of the counter-claim property as well. (e) In the interest of Justice, this Court orders that the plaintiff, his persons, or people claiming through him shall not interfere with the peaceful possession and enjoyment of the Suit Property by the defendants and similarly, the defendants, their persons or people claiming through them, shall not interfere with the plaintiff’s peaceful possession and enjoyment of the counter-claim property, until their determined rights are worked out under Order XX Rule 18 of CPC i.e., until final partition. 33.1. Considering the relationship between the parties, there shall be no order as to costs.