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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K. SAMPATH
Guruvammal and another
Versus
Subbiah Naicker and others
S.A.Nos. 104 of 1987 and 3 of 1989
Decided On : 24-09-1999
PARTITION - HINDU LAW - ORAL PARTITION - EVIDENCE - SEPARATE ENJOYMENT - MERE CONVENIENCE OF ENJOYMENT - NOT PROOF OF PARTITION - TRANSFER OF PATTA - NOT CONCLUSIVE EVIDENCE OF PARTITION - MUTATION ENTRIES - NO PRESUMPTIVE VALUE ON TITLE - REVENUE OFFICERS' DECISION ON TITLE - NOT CONCLUSIVE - SEPARATE POSSESSION FOR CONVENIENCE - NOT PARTITION - JOINT OWNERSHIP - NOT TURNED INTO OWNERSHIP IN SEVERALTY BY SEPARATE ENJOYMENT.
Fact of the Case:
Plaintiffs in O.S.No. 135 of 1976 and plaintiff in O.S.No. 350 of 1976 filed suits for declaration and injunction in respect of five items of properties. The defendants contested the suits claiming title to the properties. The trial court dismissed both the suits. On appeal, the lower appellate court also dismissed the appeals. The plaintiffs preferred second appeals.
Finding of the Court:
The court held that there was no evidence to prove that there was a completed partition between the brothers. The court also held that the separate enjoyment by the brothers did not by itself show that there was any completed partition between them. The court further held that the transfer of patta was not conclusive evidence of partition. The court also held that the mutation entries had no presumptive value on title. The court also held that the revenue officers' decision on title was not conclusive. The court also held that separate possession for convenience was not partition. The court also held that joint ownership was not turned into ownership in severalty by separate enjoyment.
Issues: 1. Whether there was a completed partition between the brothers? 2. Whether the separate enjoyment by the brothers showed that there was any completed partition between them? 3. Whether the transfer of patta was conclusive evidence of partition? 4. Whether the mutation entries had any presumptive value on title? 5. Whether the revenue officers' decision on title was conclusive? 6. Whether separate possession for convenience was partition? 7. Whether joint ownership was turned into ownership in severalty by separate enjoyment?
Ratio Decidendi: 1. Partition is a new status, and when it is brought about by the consensus of the members of a coparcenary they must intend that their condition as coparceners shall cease. It is not sufficient that they should alter the mode of holding their property. They must alter, the intend to alter, their title to it. They must cease to be joint owners, and become separate owners. 2. Mere convenience of enjoyment would not in any way prove the factum of any partition between the parties. 3. A Collector’s certificate in respect of immovable properties, affords no title or security as to ownership. 4. Entries in settlement records, although important evidence of matter recorded cannot be conclusive and that facts of partition or separation of shares is not a matter dealt with in such records. 5. Mutation proceedings is not a judicial proceeding and does not decide title and is no evidence of exclusion from property. 6. A definition of shares in khewats or other Revenue papers can be regarded as only a very slight indication of title. 7. Mutation of name in Revenue Records is not evidence of title, though it may be relevant for other purposes. 8. Mutation of a property in the Revenue records does not create or extinguish the title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. 9. Mutation entries do not convey or extinguish any title and those entries were relevant only for the purpose of collection of land revenue. 10. Revenue Officers in a patta proceedings may express their views on the question of title, but such expression of opinion or decision is not conclusive and it is only intended to support their decision for granting patta. Ultimately, it is the civil court which has to adjudicate the question as to whether the person claiming patta is the title-holder of the land. 11. Separate possession for the sake of convenience is no partition. 12. The fact of separate enjoyment of specified portions for making improvements over such portions and of obtaining loans will not turn joint ownership into ownership is severally and in specie in the eye of law.
Final Decision: The second appeal filed by the plaintiffs in O.S.No. 135 of 1976 was dismissed. The second appeal filed by the plaintiff in O.S.No. 350 of 1976 was also dismissed.
1. Plaintiffs 2 and 3 in O.S.No. 135 of 1976 on the file of the District Munsif, Kovilpatti are the appellants in Second Appeal No. 104 of 1987. The plaintiff in O.S.No. 350 of 1976 on the file of the District Munsif, Kovilpatti is the appellant in S.A.No. 3 of 1989.
.2. The suit in O.S.No. 135 of 1976 was filed by one Ramu Ammal against the respondents herein for declaration and injunction in respect of five items of properties. Pending suit she died and the present appellants who are respectively her daughter and grand daughter came on record as plaintiffs 2 and 3 and pursued the suit. The case as set out in the plaint was as follows:
.The suit properties originally belonged to the first respondent herein, the first defendant in the suit and his brother late Krishnaswamy Naicker. The two were divided brothers, the deceased first plaintiff was their mother. Krishnaswamy Naicker died leaving his mother as his only legal heir. The suit properties were allotted to the share of Krishnaswamy Naicker. He was in possession and enjoyment as his exclusive properties. Patta also stood in his name. After his death the first plaintiff as his sale heir was in enjoyment of those properties. The first respondent herein who had no semblance of right, interest or possession over the suit properties interfered with the possession of the first plaintiff. The second respondent the second defendant in the suit is the wife of the first respondent and respondents 3 to 6 defendants 3 to 6 were the close associates of the first respondent. They were giving out that they would interfere with the first plaintiffs possession and enjoyment of the suit properties and the suit was therefore necessitated.
.3. The first respondent filed a written statement and the same was adopted by the other respondents. There was no partition as alleged between the first respondent and his late brother Krishnaswamy Naicker. The suit properties were not purchased by the first respondent and Krishnaswamy Naicker. Items 1 and 2 of the plaint schedule originally belonged to the first plaintiff. She executed a gift settlement deed in favour of the first respondent and his brother Krishnaswamy and since then they enjoyed the said two items as joint tenants. Items 3 to 5 were jointly purchased in the names of the first respondent and Krishnaswamy Naicker. Even though they were jointly purchased the actual consideration affection for his younger brother he had included his name in the sale deeds. The first respondent and Krishnaswamy Naicker were entitled to a half share each in the schedule properties. They enjoyed the properties as joint tenants. After the marriage of the first respondent with the second respondent there were frequent quarrels among the women folk. With a view to avoid family quarrels and unnecessary complications there was a family arrangement entered into between the first respondent and Krishnaswamy Naicker in respect of the properties in the presence of mediators. As per the family arrangement the first respondent and late Krishnaswamy Naicker had lived in the separate house shown as 5th item in the plaint schedule. Items 1 to 4 were given for their enjoyment without any division. There was no partition as alleged. The kist was being paid as per the enjoyment. After the death of Krishnaswamy Naicker the first respondent alone was enjoying the suit properties. The plaintiffs never enjoyed the properties at any time. Respondents 2 to 6 had no interest or right in the suit properties. The value of the 5th item was more than Rs. 10,000. The Munsif Court at Kovilpatti had no jurisdiction to try the suit. The suit was therefore liable to be dismissed.
4. The other suit was filed by the first respondent against the second appellant in the other appeal, one Perumalswamy Naicker, Ramu Ammal and the plaintiff in O.S.No. 135 of 1976 and Sathurappa Naicker the 6th respondent and 6th defendant in O.S.No. 135 of 1976 alleging that the suit properties whi
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