The amendment of co-parcenery rights retroactive effects and joint possession presumption prevent claims of ouster without substantial evidence.

JUDGMENT :

R. SAKTHIVEL, J.

1. Feeling aggrieved by the Judgment and Decree dated August 21, 2017 passed in O.S.No.2 of 2013 by 'the Additional District Court, Namakkal' ['Trial Court' for brevity], the plaintiff therein has filed this Appeal Suit under Section 96 read with Order XLI Rule 1 of 'the Code of Civil Procedure, 1908' ['CPC' for short].

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 is the sister of the first defendant. Second defendant is the purchaser of the Suit Properties from the first defendant vide Sale Deed dated October 15, 2012. The Suit Properties belonged to the father of plaintiff and first defendant, namely one Muthusamy Gounder, as his self-acquired properties by virtue of a Sale Deed dated September 7, 1940. Father Muthusamy Gounder passed away intestate in or about 1968, leaving behind his wife - Perumayee, the plaintiff and the first defendant as his legal heirs. The plaintiff, first defendant and their mother were in joint possession and enjoyment of the Suit Properties.

3.1. While so, mother Perumayee passed away intestate on July 28, 2012. After the demise of Perumayee, the plaintiff and the first defendant are in continuous possession and enjoyment of the Suit properties. Thus, the plaintiff is a co-heir / co-owner entitled to ½ share in the suit properties.

3.2. With a view to defeat and defraud the plaintiff's lawful right over the suit properties, on October 15, 2012, the first defendant executed a Sale Deed in favour of the second defendant in respect of the entire Suit Properties without the consent and knowledge of the plaintiff, for a sale consideration of Rs.8,50,000/-. Though the second defendant acquired the Suit Properties from the first defendant, till date he did not take possession thereof. On coming to know about the execution of the Sale Deed, the plaintiff approached the first defendant for partition of the Suit properties. However, the first defendant refused to do so.

3.3. Therefore, the plaintiff issued a legal notice dated December 17, 2012 to the first defendant seeking partition. The first defendant received the notice and did not come forward to partition the Suit Properties till date. Hence the Suit for partition and declaration that the Sale Deed dated October 15, 2012 executed in favour of the second defendant as null and void.

FIRST DEFENDANT'S CASE

4. The first defendant filed a written statement. He admitted the relationship between the parties as stated in the plaint. He contended that the Suit Properties are ancestral properties. Father Muthusamy Gounder owned ancestral properties at Thindamangalam Village. From and out of the income derived therefrom, the Suit Properties were purchased vide Sale Deed dated September 7, 1940 in his name and enjoyed by Muthusamy Gounder and the first defendant as ancestral properties. In 1959, the Thindamangalam property was sold off by Muthusamy Gounder and first defendant. In 1962, Plaintiff entered into a love marriage against the wish of the family and since then, the plaintiff no longer remained a joint family member. Father Muthusamy Gounder passed away in 1968 and since then, the first defendant alone has been enjoying the Suit Properties as his own by ousting the plaintiff. Revenue records were mutated in the name of first defendant. The plaintiff was never in joint possession and enjoyment of the suit properties. Mother Perumaiyee passed away in 2012. After her marriage, the plaintiff never visited her parents and failed to even attend their final rites. The Court Fee paid under Section 37 (2) of 'the Tamil Nadu Court-Fee and Suits Valuation Act, 1955 ' ['T.N.C.F. Act' for short] is incorrect. On October 15, 2012, the first defendant sold the Suit Pro