The court affirmed that co-owners retain rights unless clear ouster is proven, and limitation laws do not apply to partition claims under the Hindu Succession Act.

JUDGMENT :

R. SAKTHIVEL, J.

Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, 1908 praying to set aside the Judgment and Decree made in A.S. No. 22 of 2016 on the file of the 3rd Additional District & Sessions Judge, Gobichettipalayam, Erode District, dated 25.07.2017 confirming the Judgment and Decree passed in O.S. No. 51 of 2012 on the file of the Subordinate Judge, Gobichettipalayam, Erode District, dated 09.06.2016.

1. This Second Appeal is directed against the Judgment and Decree dated July 25, 2017 passed in A.S. No. 22 of 2016 by the ‘learned 3rd Additional District and Sessions Judge, Gobichettipalayam, Erode District’ [henceforth ‘First Appellate Court’ for brevity and convenience] confirming the Judgment and Decree dated June 9, 2016 passed in O.S. No. 51 of 2012 by the ‘learned Subordinate Judge, Gobichettipalayam, Erode District’ [henceforth ‘Trial Court’ for brevity and convenience].

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 plaintiff - Ramayal is the wife of one Nanjappa Gounder. They have two sons from their marriage, namely N. Chandrasekaran and N. Moorthy. The 1st defendant is none other than the wife of N. Moorthy. The 2nd defendant - Jayashree @ Govindammal is the daughter born to the couple, N. Moorthy and 1st defendant.

4. The case of the plaintiff is that the Suit Properties are originally ancestral properties allotted to N. Moorthy through Partition Deed dated March 12, 1997. N. Moorthy died intestate on August 14, 1998 leaving behind the defendants and plaintiff as his legal heirs. Till date the plaintiff is residing in a House Property which forms a part of the 2nd item of the Suit Properties. After the demise of N. Moorthy, the defendants filed a Suit in ‘O.S. No. 388 of 2006’ (henceforth ‘earlier Suit’) against the plaintiff, plaintiff’s husband and plaintiff’s another son - N. Chandrasekaran, suppressing material facts, seeking permanent injunction with respect to Suit Properties herein, and obtained permanent injunction in their favour. The same would not affect the rights of the plaintiff in the Suit Properties since the plaintiff as a co-owner is entitled to 1/3 share in the Suit Properties as per Section 8 of the Hindu Succession Act, 1956 [‘H.S. Act’ for short]. The plaintiff caused a legal notice dated March 31, 2012 to the defendants seeking partition of her share. In turn, the first defendant caused a legal notice dated April 12, 2012, calling upon the plaintiff and her another son - N. Chandrasekaran to handover vacant possession of the aforementioned House Property. Hence, the plaintiff filed the Original Suit seeking 1/3 share in the Suit properties.

5. The 1st defendant filed a written statement for herself and on behalf of then minor 2nd defendant wherein she admitted that the Suit Properties are ancestral properties allotted to N. Moorthy vide Partition Deed dated March 12, 1997.

6. The case of the defendants is that after the demise of N. Moorthy, the 1st defendant filed the earlier Suit against the plaintiff, plaintiff’s husband and plaintiff’s first son – N. Chandrasekaran seeking permanent injunction. After full trial, the said Suit was decreed, and the plaintiff herein was thereby injuncted from entering the Suit properties. Further stated that, in the Judgment and Decree passed in the earlier Suit, a finding has been specifically recorded that the defendants are alone in possession and enjoyment of the Suit Properties since the demise of N. Moorthy. Further, the plaintiff has been ousted from the Suit Properties after the demise of N. Moorthy. Hence, the plaintiff is not entitled to seek partition and/or other reliefs. Further, the Suit is barred by limitation.

Trial Court and First Appellate Court:

7. The Trial Court as well as the First Appellate Court, concurrently held that the Suit properties were ancestral properties in the hands of N. Moorthy. Hence, the 2nd defe