Co-owners are presumed to be in constructive possession of property unless ouster is proven, impacting court fee valuation in partition suits.

JUDGMENT :

PRAYER: Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908, praying to set aside the Judgment and Decree dated July 16, 2020 made in A.S.No.24 of 2012 on the file of the Subordinate Court, Sankari, reversing the Judgment and Decree dated July 30, 2012 made in O.S.No.196 of 2010 on the file of the District Munsif Court. Sankari.

This Second Appeal is directed against the Judgment and Decree dated July 16, 2020 made in A.S.No.24 of 2012 by the ‘Subordinate Court, Sankari' [henceforth 'First Appellate Court'], reversing the Judgment and Decree dated July 30, 2012 passed in O.S.No.196 of 2010 by the 'District Munsif Court, Sankari' [henceforth 'Trial Court'].

2. For the sake of convenience, hereinafter, the parties will be referred to as per their array in the Original Suit.

Plaintiff’s case:

3. The Suit Properties originally belonged to one Angammal, wife of Chinnappa Gounder. She died leaving behind her two daughters, namely Periya Mallammal and Chinna Mallammal, as her legal heirs. Aforesaid Chinna Mallammal died issueless leaving behind her sister Periya Mallammal as her sole legal heir. Periya Mallammal died on December 7, 2009 leaving behind her husband - Marithoppai (Plaintiff) and her daughter Alamelu (1st Defendant), as her legal heirs. After the demise of the plaintiff’s wife - Periya Mallammal, the plaintiff and the 1st defendant are each entitled to half-a-share in the properties of Periya Mallammal viz., the Suit Properties. The plaintiff and the 1st defendant are jointly enjoying the Suit Properties without partition.

3.1. Due to some misunderstanding between the plaintiff and the 1st defendant, the 1st defendant executed a Power of Attorney in favour of the 2nd defendant in respect of the Suit Properties on March 31, 2010.

On the same day, the 2nd defendant sold the Suit Properties to the 1st defendant. The defendants have no right to create such documents including the share of the plaintiff. The said Sale Deed dated March 31, 2010 was created by the defendants themselves with a view to defeat and defraud the lawful rights of the plaintiff over the Suit Properties. Hence, the aforesaid Sale Deed will not bind the plaintiff. The plaintiff issued Legal Notice dated May 17, 2010 to the defendants through his Counsel seeking partition. After receiving the Legal Notice, the defendants issued a Reply Notice dated June 2, 2010, through their Counsel with false averments. Hence, the plaintiff filed the Suit for partition of Suit Properties into two equal shares and allotment of one such share in his favour.

Defendants' Case:

4. The defendants filed their Written Statement denying the averments made in the Plaint. The sum and substance of the Written Statement is that the Suit Properties are the absolute properties of Angammal, who is none other than the grandmother of the 1st defendant and wife of Chinnappa Gounder. She had two daughters, namely Periya Mallammal and Chinna Mallammal. Angammal executed a registered Will dated August 30, 1978, registered as Document No.24/1978 in the office of Sub-registrar, Jalagandapuram, bequeathing the Suit Properties in favour of her two daughters. The Will came into force after the demise of Angammal. Her daughter - Chinna Mallammal died issueless leaving behind her sister - Periya Mallammal. Thus, Periya Mallammal acquired the Suit Properties absolutely. Periya Mallammal died intestate leaving behind her daughter by name Alamelu (first defendant). After the demise of Periya Mallammal, the 1st defendant alone is the absolute owner of the Suit Properties.

4.1. The plaintiff is none other than the husband of Periya Mallammal. The plaintiff deserted and divorced his wife Periya Mallammal by way of caste custom () 45 years ago and married another woman. The plaintiff is not a dutiful husband of Periya Mallammal and father of the 1st defendant. After the death of Periya Mallammal, the plaintiff is living happily with one Palaniammal and they have two sons and one da