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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
N. SATHISH KUMAR, J.
S.M. Irudayam (died) & Others - Appellant
Versus
Gnaniah (died) & Others - Respondent
Case No : S.A. No. 18 of 2000
Decided On : 12-02-2021
oral partition - property dispute - Section 47 of the Transfer of Property Act - The court discussed the legal provisions under Section 47 of the Transfer of Property Act, which defines the transfer of shares among co-owners of immovable property. The court emphasized that in the absence of established oral partition, co-owners have equal shares in the property, and a transfer by one co-owner only affects their share, not the entire property.
Fact of the Case:
The suit was filed for declaration and recovery of possession of a property based on an alleged oral partition in 1951. The plaintiff claimed exclusive possession and enjoyment of the property, while the defendants denied the oral partition and asserted their rights to the property.
Finding of the Court:
The court found that the plaintiff failed to prove the alleged oral partition and, therefore, was not entitled to the entire property. The court held that the plaintiff's vendor and the first defendant had equal shares in the property, and the plaintiff was only entitled to seek partition and separate possession of his share.
Issues: The main issues were whether the plaintiff was entitled to the relief of declaration and possession, and whether the alleged oral partition was proven.
Ratio Decidendi: The court emphasized that the burden of proving oral partition lies on the party claiming it. In the absence of established oral partition, co-owners have equal shares in the property, as per Section 47 of the Transfer of Property Act.
Final Decision: The second appeal was allowed, the judgment of the first appellate Court was set aside, and the decree and judgment of the trial Court were confirmed.
JUDGMENT :
Prayer: This Second Appeal is filed under Section 100 of the Civil Procedure Code, against the judgment and decree dated 05.10.1999 made in A.S.No.20 of 1997 on the file of the Principal Subordinate Judge, Tirunelveli reversing the judgment and decree dated 24.09.1996 made in O.S.No.611 of 1990 on the file of the District Munsif Court, Valliyoor.
1. Aggrieved over the judgment of the First Appellate Court reversing the decree and judgment of the trial Court dismissing the suit for declaration and recovery of possession in O.S.611 of 1990, the present second appeal is filed.
2. For the sake of convenience, the parties are referred to herein, as per their rank before the Trial Court.
3. The brief facts, leading to the filing of this Appeal Suit, are as follows:
(ii) Joseph Nadar and the first defendant effected oral partition on 25.04.1951 in respect of the properties of their father. As a result, Joseph Nadar/vendor of the plaintiff was allotted with the first schedule property. Ever since the date of oral partition, he was in exclusive possession and enjoyment of the first schedule property. Several mortgage deeds have been executed by him and then the same was redeemed by him. On 19.03.1957, the said Jospeh Nadar sold the first schedule property to one Antony Savarimuthu Nadar by a registered sale deed for a valuable consideration. After the purchase of the property on 13.07.1966 from Antony Savarimuthu, on 24.08.1966, the said Joseph Nadar sold the property to one Aruldason, who is none other than the brother of the plaintiff. Again he has repurchased the same by a registered sale deed dated 11.12.1972 and on the very same day, he has executed a mortgage deed in favour of one Nambi Nadar. Thereafter, the said Joseph Nadar executed a registered Othi deed in favour of Nambi Nadar on 30.08.1977 in respect of the first schedule property for a period of three years.
(iii) While the said Othi deed was in force, the said Joseph Nadar has executed a registered sale deed in favour of the plaintiff on 18.10.1977 for a valid consideration of Rs.1,000/-. In the sale deed also, it has been mentioned that the mortgage and Othi deeds executed in favour of Nambi Nadar has been discharged by the plaintiff. Accordingly, the plaintiff has become an absolute owner of the property and he is possession and enjoyment of the property from the date of purchase from Joseph Nadar. Electricity connection was obtained by the then owner Aruldason, brother of the plaintiff.
(iv) The first defendant is an influential person and in order to grab the property, the defendants and their henchmen attempted to trespass into the property on 08.04.1990. Therefore, the plaintiff has filed a suit in O.S.No.278 of 1990 seeking permanent injunction and obtained an interim order. In the above suit, the first defendant took a stand that he is the owner of the northern half portion of the first schedule property, while admitting that the southern half portion of the first schedule property belonged to the plaintiff. Taking advantage of the soft nature of the plaintiff, the first defendant entered into the property in a forcible manner and arranged the second and third defendants to be in possession and enjoyment of the II schedule property in the month of Ma
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