Back
MADRAS HIGH COURT
R. RAYAPPAN (DIED) – Appellant
Versus
RAJAMMAL (DIED) – Respondent
AS 189 2017
PARTITION - OUSTER - LIMITATION - Adverse possession - Exclusion from possession - Mere exclusion from possession will not be sufficient, there must be something more than mere exclusion from possession. In order to constitute ouster, proof of something more than mere exclusive possession and exclusive receipt of income is required. Along with exclusive possession there must be an ouster, a hostile, open denial and an open repudiation of the other co-owner's right to the latter's knowledge. The co-owner in exclusive possession cannot render his possession adverse to the other co-owner merely by any secret, hostile animus on his own part in derogation of other co-owner's title. Registration of a partition deed in the Office of the Sub-Registrar concerned would amount to notice, to all concerned, of an assertion of title under Explanation 1 to Section 3 of the Transfer of Property Act. The limitation for a suit for partition by a person excluded from a joint family property to enforce a right to share therein is twelve years from when the exclusion becomes known to the plaintiff under Article 110 of the Limitation Act.
Fact of the Case:
The plaintiffs, who are daughters and grand daughters of Rangaiya Gowder, filed a suit for partition and separate possession of their 2/3rd share in the suit properties against his only son, his children and the tenants. The defendants resisted the suit, contending that the plaintiffs are not entitled to any share in the suit properties in as much as the defendants have prescribed their title by ouster. It was contended that the father of the 1st defendant, Rangaiya @ Rangappa Gowder died even in the year 1955 and hence, the 1st defendant alone is entitled to the entire suit properties and his daughters will not get any right over the properties.
Finding of the Court:
The Court found that the plaintiffs were excluded from possession for a considerable length of time from which, it can conveniently presume ouster. The Court also found that the suit was barred by limitation as the plaintiffs had knowledge of their exclusion from the enjoyment of the properties from the date of registration of the partition deed, which was more than 12 years prior to the filing of the suit.
Issues: 1) Whether the plaintiffs have been ousted from enjoyment of the property for over a long period so as to deny them the right to seek partition.2) Whether the suit cannot be said to be barred by limitation under Article 110 of the Limitation Act.
Ratio Decidendi: 1) In order to constitute ouster, proof of something more than mere exclusive possession and exclusive receipt of income is required. Along with exclusive possession there must be an ouster, a hostile, open denial and an open repudiation of the other co-owner's right to the latter's knowledge.2) Registration of a partition deed in the Office of the Sub-Registrar concerned would amount to notice, to all concerned, of an assertion of title under Explanation 1 to Section 3 of the Transfer of Property Act.3) The limitation for a suit for partition by a person excluded from a joint family property to enforce a right to share therein is twelve years from when the exclusion becomes known to the plaintiff under Article 110 of the Limitation Act.
Final Decision: The Appeal was allowed, and the suit in O.S.No.66 of 2012 was dismissed.
J U D G M E N T
(Judgment of the Court was made by R.SUBRAMANIAN, J.)
The defendants in O.S.No.66 of 2012, who had suffered a decree for partition and separate possession of the plaintiffs' 2/3rd share in the suit properties are on appeal.
2.Originally, the suit was laid by the three plaintiffs, who are daughters and grand daughters of Rangaiya Gowder @ Rangappa Gowder against his only son, his children and the tenants. The geneology is as follows:-
Rangappa Gowder @ Rangae Gowder (died)
S/o. late Kara Gowder |
____________________________________________________
| | | |
R.Rayappan Smt.Subby Smt.Rajammal Smt.Marammal (Ist Deft) Subbammal (died) (Ist Plaintiff) (died)
| |
_______________________________ ______________ | | | | | |
R.Ayyasamy Smt.Rojammal Manonmani Lalitha Padmavathy Padma (2nd Deft) (3rd Deft) (4th Deft) (2nd Plaintiff) (3rd Plaintiff)
(died)
|
__________________ | |
R.Velusamy V.Moorthy(P5)
(4th plaintiff) (5th plaintiff)
3.Upon the death of the 2nd plaintiff / Lalitha, her heirs were impleaded as plaintiffs 4 and 5. The plaintiffs would claim that the suit properties originally belonged to one Rangappa Gowder @ Rangae Gowder, son of Kara Gowder, who died before 1955 leaving behind his only son Rangaiya Gowder @ Rangappa Gowder, who also died some time in early 1970s. The said Rangaiya Gowder died leaving behind one son namely, Rayappan / 1st defendant in the suit, three daughters namely, Subby Subbammal, Rajammal and Marammal. The Subby Subbammal is stated to have died without issues. Marammal had died leaving behind the plaintiffs 2 and 3 during the pendency of the suit. Since the 2nd plaintiff / Lalitha died pending suit, her husband and son were brought on record as plaintiffs 4 and 5. Contending that the suit properties belonged to Rangaiya Gowder, who died some time in early 1970s, the plaintiffs as daughters and the children of Marammal, another daughter, claimed 2/3rd share in the properties.
4..The suit was resisted by the defendants 1 to 4, who are son of Rangaiya Gowder @ Rangappa Gowder and his children, contending that the plaintiffs are not entitled to any share in the suit properties in as much as the defendants have prescribed their title by ouster. It was contended that the father of the 1st defendant, Rangaiya @ Rangappa Gowder died even in the year 1955 and hence, the 1st defendant alone is entitled to the entire suit properties and his daughters will not get any right over the properties. It was also contended that the defendants have been in open hostile exclusive possession of the properties for over 57 years and they have also effected improvements by constructing several houses in the suit properties and they have been enjoying the same by letting out the same to the exclusion of the plaintiffs. It was also contended that they had entered into a partition on 15.02.1995 effecting a division of some other properties that were left behind by Rangappa @ Rangae Gowder and therefore, this action of entering into a partition as between the defendants themselves would demonstrate that the plaintiffs were excluded from enjoyment of the properties and the same would constitute ouster.
5.On the above contentions, the defendants sought for dismissal of the suit. The 1st defendant died pending suit and the other defendants, who are his legal heirs were already on record. His wife, Rajammal was impleaded as 8th defendant. On the above pleadings, the learned Trial Judge framed the following issues:-
i) Whether the plaintiffs are entitled to any right in the suit properties.
ii) Whether the plaintiffs are in joint possession and enjoyment of the properties.
iii) Whether the Court fee paid in the suit is correct.
6.At trial, P.W.1 and P.W.2 were examined on the side of the plaintiffs. P.W.1 is the 1st plaintiff and the P.W.2 is the 3rd plaintiff and Exs.A1 to A19 were marked. On the side of the defendants, D.W.1 to D.W.3 wre examined and Exs.B1 to B15 were marked. The 2nd defendant was examined as D.W.1 and one Tmt.Manonmani
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
