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2023 Supreme(Online)(KER) 8089
HIGH COURT OF KERALA
BASANT BALAJI, J
ANNAMMA – Appellant
Versus
POTHEN THRESSIAMMA – Respondent
AS 325 2001
SMT.PREETHY KARUNAKARAN, SRI.JAYKAR.K.S., SRI.T.KRISHNANUNNI SR., SMT.M.R.MINI, SMT.MEENA.A., SRI.R.RAJESH KORMATH, SRI.RAHUL VARMA, SRI.V.S.ROBIN, SMT.SANJANA R.NAIR, SRI.K.I.MAYANKUTTY MATHER, MATHEW SKARIA, SRI.V.J.JOSEPH, ADV.COMMNR, SRI.GEORGE CHERIAN SR., SRI.K.J.JOSEMON, SMT.MINI ELIZABETH GEORGE, SRI.P.RAHUL, SRI.VARGHESE P.THOMAS
A female heir retains her right to inherit parental property despite streedhanam; establishing adverse possession against a co-heir requires clear demonstration of ouster and hostile possession.
Headnote:
Partition - Partition of Family Property - Indian Succession Act, 1925 - Sections 1, 2; Limitation Act, 1963 - Article 65 - Court highlighted that female heirs retain rights to parental property regardless of streedhanam and established the necessity of proving adverse possession and ouster with clear evidence for co-heirs.
Fact of the Case:
The plaintiff sought partition of a property inherited from her deceased father, contested by her brother and his family, who claimed she had no rights due to previous agreements and adverse possession. A partition deed executed without her knowledge was a key issue.
Finding of the Court:
The trial court found that the plaintiff had a valid claim to the property and that the defendants failed to adequately prove their defense of adverse possession and ouster, thus granting her the partition and share in the property.
Issues: Whether the plaintiff was entitled to a share in the property and whether the defendants had established claims of adverse possession and ouster against her.
Ratio Decidendi: A co-owner cannot claim adverse possession against another co-owner unless there is clear evidence of ouster and hostile claim of ownership; the court reaffirmed a female heir's right to inheritance under the Indian Succession Act.
Final Decision: The Appeal is dismissed.
JUDGMENT
(Dated this the 13th day of October 2023)
The appellants are defendants Nos.5 and 6 and the legal heirs of the first defendant in O.S.702/1994 on the files of the Additional Sub Court, Kottayam. The suit was filed for partition and to set aside the partition deed No.2716/1981 and to ignore all subsequent documents in respect of the plaint schedule property. A prayer for injunction was also sought in the plaint.
(The parties are referred to as they appeared before the court below)
2. The brief facts necessary for the disposal of this appeal are as follows:-
The plaint schedule property originally belonged to Thomas Mathai, the father of the plaintiff, the first defendant, and another son of late Thomas. 5th defendant is the wife of Thomas, who was the brother of the plaintiff. Defendant Nos.2 to 4 and 6 are his children. Thomas Mathai got the property as per partition deed No.1095 ME and the sale deed of 1102 ME. He died on 12.9.1962. His wife Aleyamma died on 18.12.1971. After the death of the parents of the plaintiff, the plaintiff, 1st defendant and Thomas, have 1/3rd in the property. Defendants No.7 to 11 are persons having some interest in the plaint schedule under defendant Nos.1 to 6. The plaintiff was residing in the marital house with her children. In 1990, when the plaintiff needed money for the expenses of her daughter's marriage , she took a loan from Urban Co-operative Bank. When the creditors of the plaintiff demanded the money back, she met the defendants and requested for partition and allotment of her 1/3rd share. Though they promised to purchase the share of the plaintiff within one year, they did not do it, and thereafter on 4.7.1994, the plaintiff again met defendants Nos.1 to 6 and reminded them of their promise. At that point, they refused to give the share to the plaintiff, stating that there were documents to support the claim. On 9.8.1994, the plaintiff understood that the 1st defendant and his brother Thomas created a partition deed on 22.8.1981 partitioning the plaint schedule property among themselves without giving share to the plaintiff. In the document itself, there is a mention of a suit as O.S. No.21 of 1971 for partitioning the property. The plaintiff was not a party to the suit, and she had no knowledge about it and therefore, it was not binding on her. Defendants Nos.1 to 6 created fraudulent documents in favour of defendants Nos.7 to 11. They have no right to execute such documents. Therefore, the plaintiff prayed for partitioning the plaint schedule properties and allotting 1/3 shares. A further prayer was also sought for setting aside the partition deed No.2716 of 1981 and to ignore/avoid all documents created regarding the plaint schedule properties. Thereafter, the plaintiff sought further prayer for mesne profits at the rate of Rs.2,500/- per annum. A prohibitory injunction restraining from committing waste, alienating the property, erecting any building, and cutting down any tree was also played in the plaint.
3. The 1st defendant filed a written statement. It was contended that after the death of the parents of the plaintiff, 1st defendant and Thomas never possessed the properties jointly as claimed by the plaintiff. The plaintiff had no possession over the plaint schedule properties. On the death of Thomas Mathai, the properties devolved upon succession on the first defendant and brother Thomas alone subject to the right of the life estate of mother Aleyamma. On her death, the first defendant and Thomas got absolute rights over the property. The plaintiff was married on 22.2.1943, and at that time, the father of the plaintiff gave streedhanam to her including gold and cash, as she was the only daughter. After receiving streedhanam from the father, the plaintiff has no further right over her parents’ properties.
4. The 1st defendant filed O.S.No.21 of 1971 before the Munsiff’s court Changanacherry against Thomas for partition of properties. The suit was decreed, the appeal filed
