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MADRAS HIGH COURT
MUTHULAKSHMI AMMAL – Appellant
Versus
KANNAIAN – Respondent
SA 742 2021
PARTITION - PARTIAL PARTITION - SUIT FOR PARTITION - INCLUSION OF PROPERTIES - ORAL GIFT - OUSTER - PLEA OF OUSTER - PROOF - INGREDIENTS - ADVERSE POSSESSION - KNOWLEDGE OF CO-OWNERS - SALE DEED - DESCRIPTION OF PROPERTY - ADMISSION OF JOINT OWNERSHIP - RELATIONSHIP BETWEEN PARTIES - COSTS.1. A suit for partition should ordinarily embrace all joint properties. However, this is not an inelastic rule and admits of exceptions. A suit for partial partition may be confined to a division of property which is available at the time for an actual division and not merely for a division of status.2. To establish the plea of ouster in the case of a co-owner, the following ingredients should be established:(i) There must be a declaration that a person in occupation in his own right is hostile to that of the other co-owners and the other co-owner has knowledge of the same.(ii) There must be a long and interrupted possession of the person pleading ouster.(iii) Such exercise should be open and to the knowledge of the co-owners.3. The possession of a co-owner, however long it is, can only be constituted as a possession for and on behalf of the other co-owners. In order to prove otherwise, the person setting up a plea of ouster has to plead ouster and should also plead as to the date from which his possession has become adverse/hostile to that of the other co-owners.
Fact of the Case:
The plaintiffs filed a suit for partition and separate possession of their 4/5th share in the suit properties. The first defendant, the brother of the plaintiffs, contended that the father had orally gifted the properties to him and that he had been in exclusive possession and enjoyment of the properties exercising rights as its exclusive owner. He also pleaded limitation and partial partition.
Finding of the Court:
The Court held that the suit was not barred by limitation since the first defendant's possession of the property was construed to be in his capacity as a co-owner for and on behalf of other sharers as well. With reference to the issue of partial partition, the Court relied on the judgment of the Hon'ble Supreme Court in B.R.Patil vs. Tulsa Y.Sawkar and Others, where it was held that the principle that every suit for partition should include all the properties is not an inelastic rule, where the properties are not available for partition on account of a sale towards the stranger who has no interest in the family partition then if such properties are not included, the suit is not hit by partial partition.
Issues: 1. Whether the Courts below are correct in law in dismissing the suit on the ground of partial partition?2. Whether the lower appellate Court is correct in law in dismissing the appeal by holding that the first defendant has proved ouster, especially when there is no pleading to this effect?
Ratio Decidendi: 1. The suit filed for the remaining properties of late Ramanajam is not hit by partial partition.2. To establish the plea of ouster in the case of a co-owner, the following ingredients should be established:(i) There must be a declaration that a person in occupation in his own right is hostile to that of the other co-owners and the other co-owner has knowledge of the same.(ii) There must be a long and interrupted possession of the person pleading ouster.(iii) Such exercise should be open and to the knowledge of the co-owners.
Final Decision: The second appeal is allowed and the judgment and decree of both the Courts below are set aside. The suit is decreed as prayed for. However, considering the relationship between the parties, there shall be no order as to costs.
S.A.No.742 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.12.2023
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.742 of 2021
1. Muthulakshmi Ammal
2. Rani @ Selvarani
3. Chandra
4. Andal
…Appellants
Vs
1. Kannaian
2. The Sub Registrar,
Kurinjipadi,
Kurinjipadi Sub Registrar Office,
Kurinjipadi.
3. The District Registrar,
District Registrar Office,
Thirupapuliyur,
Cuddalore
...Respondents
Prayer: Appeal Suit is filed under Section 100 of C.P.C against the
Judgement and Decree dated 24.06.2019 made in A.S.No.14 of 2016
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S.A.No.742 of 2021
on the file of the Principal District Judge, Cuddalore, confirming the
judgment and decree dated 01.12.2015 made in O.S.No.165 of 2013
on the file of the Principal Subordinate Judge, Cuddalore.
For Appellants : Mr.P.Dinesh Kumar
For Respondent-1:Ms.R.Meenal
For Respondents
2 and 3
: Ms.B.Tamilnidhi,
Additional Government Pleader
JUDGMENT
The plaintiffs are the appellants before this Court. The facts are
set out herein below with the parties being referred to in the same
ranking as before the trial Court.
2. The plaintiffs had filed the suit O.S.No.165 of 2013 on the
file of the Subordinate Judge, Cuddalore seeking partition and
separate possession of their 4/5th share in the suit properties and for
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S.A.No.742 of 2021
mesne profits and also for a permanent injunction restraining the first
defendant from alienating or encumbering the suit properties in any
manner and defendants 2 and 3 from registering any document that is
executed by the first defendant without including the plaintiffs in
respect of the suit properties.
3. It is the case of the plaintiffs that the first defendant and
themselves are brother and sisters and children of one Ramanujam
and Thulasi Ammal, who died in 1966 and 2004 respectively. The
first defendant is the only son and the eldest member of the family.
After the death of the parents, the plaintiffs had married and were
living in their matrimonial homes. The suit properties and another
site measuring 600 sq.ft in Old. S.No.379/4 corresponding to new
S.No.497 /2 and 9 belonged to their father, Ramanujam. On his
death, it devolved on their mother, the plaintiffs and the first
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S.A.No.742 of 2021
defendant. The second plaintiff had lost her husband at a very young
age and had therefore returned to her parental home. The mother
Thulasi Ammal, with the consent of the other children, had settled an
extent of 600 sq.ft in favour of the second plaintiff under a settlement
deed dated 30.11.1982 and on the same day, the possession was also
handed over to the second plaintiff, who in turn had sold the same to
one Abbas under a Sale deed dated 22.10.2013. Thereafter, the first
defendant has filed O.S.No.133 of 2013 before the I Additional
Subordinate Court, Cuddalore, in respect of this property and the same
is pending. The other properties of Ramanujam devolved upon Thulasi
Ammal, the plaintiffs and the first defendant with each of them
enjoying a 1/6th share. On the death of Thulasi Ammal, her 1/6th share
devolved on her children, the plaintiffs and the first defendant equally.
4. The plaintiffs would submit that since they were living in
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S.A.No.742 of 2021
their matrimonial home, the first defendant being the eldest member
of the family was in possession of the properties as a co-owner for
himself and on behalf of the plaintiffs. It is therefore deemed that the
plaintiffs are in joint possession of the properties. The plaintiffs
would submit that they have been demanding partition, but the first
defendant has been evading the same. The first defendant had
attempted to sell a portion of the suit properties on 01.12.2013
without the knowledge and consent of the plaintiffs and the
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