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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE N. V. BALASUBRAMANIAN & THE HONOURABLE MRS. JUSTICE R. BANUMATHI
Goundappa Gounder & Others - Appellant
Versus
Periammal (Died) & Others - Respondents
Ca.S. No. 226 of 1990 & C.M.P. No. 15683 of 2004
Decided On : 09 December 2004
Partition - Hindu Succession Act - 1956 - Exclusion of co-sharer - Adverse Possession - Ouster - [SELF-ACQUIRED PROPERTIES] - [HINDU SUCCESSION ACT, 1956, SECTION 6] - The court discussed the claim of partition of self-acquired properties under the Hindu Succession Act, 1956. It found that the suit properties were ancestral properties and not self-acquired by the deceased, thereby rejecting the plaintiff's claim. The court also analyzed the plea of ouster and adverse possession, emphasizing the elements necessary to establish ouster among co-owners and ultimately dismissing the appeal.
Fact of the Case:
The Plaintiff claimed partition of self-acquired properties under the Hindu Succession Act, 1956, alleging exclusion from possession and ouster by the Defendants. The Trial Court found the suit properties to be ancestral and rejected the claim. The Defendants appealed against the rejection of their plea of ouster and adverse possession.
Finding of the Court:
The Trial Court correctly found the suit properties to be ancestral, dismissing the Plaintiff's claim for partition. It also rejected the Defendants' plea of ouster and adverse possession, leading to the dismissal of the appeal.
Issues: The main issues revolved around the nature of the suit properties, the entitlement of the Plaintiff under the Hindu Succession Act, and the establishment of ouster and adverse possession by the Defendants.
Ratio Decidendi: The court emphasized that the suit properties were ancestral and not self-acquired, as claimed by the Plaintiff. It also highlighted the elements necessary to establish ouster among co-owners, ultimately rejecting the plea of ouster and adverse possession by the Defendants.
Final Decision: The appeal was dismissed, confirming the Trial Court's judgment and decree. No costs were awarded due to the circumstances and relationship of the parties.
R. BANUMATHI, J.
D-1, D-3 and D-4 in O.S. No. 80 of 1986 on the file of Subordinate Judge, Thiruppur are the Appellants. This Appeal is directed against the Judgment and Decree(dated 04.12.1989) of the Sub-Judge, Thiruppur in O.S. No. 80 of 1986, passing Preliminary Decree for partition of 1/9th share to the First Respondent / Plaintiff.
2. For convenience, parties would be referred to as they were arrayed in O.S. No. 80 of 1986 on the file of Sub-Court, Thiruppur.
3. For better understanding of the claim of the Plaintiff, firstly, it is necessary to refer to genealogy of the Parties:- Karuppa Gounder Palani Gounder Ramasamy Gounder (died on 22.12.1961) Periammal Goundappa Gounder Royappa Gounder Plaintiff/R-1 D-1/First Appellant died in 1971 represented by L.Rs. Wife-Pachiaymmal alias by L.Rs Mylathal D-2. Karupasamy Subramanian D-3 D-4 Case of the Plaintiff is that Father-Palani Gounder and Brother Ramasamy had no ancestral nucleus of properties; out of their separate, self-acquired funds, they purchased various properties. As per the partition, the Schedule mentioned properties were allotted to the share of Plaintiffs Father Palani Gounder. All these suit properties are the self-acquired properties of Palani Gounder. Palani Gounder died intestate on 22.12.1961.
As per the provisions of Hindu Succession Act, 1956, the Plaintiff and Defendants 1 and 2 have become entitled to a common 1/3rd share each in the suit properties and they are in joint possession of the same. While so, during last week of December 1985, the Plaintiff came to know that the Second Defendant has executed a Sale Deed dated 04.12.1985 in favour of Defendants 3 and 4 in respect of a common half share of the suit properties while she is entitled to only 1/3rd share thereon. The Sale is neither true nor valid nor binding on the Plaintiff. Claiming partition of 1/3rd share, the Plaintiff issued notice to the Defendants dated 18.12.1985 supplemented by another notice dated 30.12.1985, (Ex.A.5) calling upon them to effect the partition.
D-1, D-3 and D-4 have received the Notice; D-2 refused to receive the same. None of the Defendants have sent any reply. Hence, the Suit for partition by the Plaintiff claiming her 1/3rd share in the suit properties.
4. Denying the averments in the Plaint that the suit properties are self-acquired properties of Palani Gounder, D-1 has filed elaborate Written Statement, claiming that all the suit properties are the ancestral properties of his Father Palani Gounder. According to the Defendants, all the suit properties are ancestral properties and not self-acquisition by Palani Gounder and his Brother-Ramasamy Gounder. The source of income for Palani Gounder and his Brother was only Agriculture. Palani Gounder and his Brother Ramasamy Gounder have divided the properties as per the Partition dated 23.05.1934 and in the said partition, the suit properties were allotted to the share of Palani Gounder. Palani Gounder died intestate on 22.12.1961. After the death of Palani Gounder, D-1 and his Brother- Royappa Gounder alone were in possession and enjoyment of the suit properties, enjoying half share each.
They were in possession and enjoyment of the suit properties openly and continously from 22.12.1961 without any interruption and thereby, they have perfected their title to the suit properties by adverse possession and ouster.
The Plaintiff lost the title to the suit properties by ouster and adverse possession and hence, she is not entitled to the suit properties. The Plaintiff is bound by the Sale Deed dated 04.12.1985.
5. Reiterating the same averments in the Written Statement filed by D-1, D-3 has also filed the Written Statement. Contention of the Third and Fourth Defendant is that they have purchased half share from the Second Defendant for valid consideration by the Sale Deed dated 0 4.12.1985 and the Plaintiff is bound by the Sale Deed.
6. On the above pleadings, five issues were framed in the Trial Court. Issue No. 1 was frame
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