IMPORTANT POINT
Simply long possession is not a factor to oust a co-sharer on ground of adverse possession but something more positive is required to be done. There must be a hostile open possession denial and repudiation of the rights of other co-owners and this denial or repudiation must be brought home to the co-owners.

Headnote:HINDU LAW—Hindu Succession Act, 1956—Sections 6, 8, 14—Legally wedded wife—Right to claim partition and share in the property—It cannot be defeated by plea of ouster or adverse possession—Plaintiff is second wife of original owner ‘R’—‘R’ died intestate in 1954 and on his death the plaintiff and defendants 1 and 2, two sons from first wife, were the legal heirs to inherit his properties—Plaintiff demanded partition of properties after the death of her husband—Allegations that sale deed in favour of defendant 3 was executed by defendants 1 and 2—She gave notice in 1955—However, no suit was filed till 1979—Whether High Court was justified in holding that her right in the properties got extinguished because of adverse possession—(No)—In order to oust one of the co-sharers only basis of so called notice it cannot be deemed to be sufficient to come to a conclusion of adverse possession or extinguishing her rights.
       Held : There is no denial that she was the legally married wife of the deceased. This has been proved, established and accepted by all the three courts despite the fact that the plea of falsity of the marriage was raised by the step sons. Once it is established that she was the legally married wife of Raju Naidu she automatically she claims her share in the property from the estate of Raju Naidu by way of survivorship. Just because a notice was issued and she did not pursue the same that does not extinguish the claim of the plaintiff thereby giving a handle in the hands of the step sons by way of adverse possession. In order to prove adverse possession something more is required. Once it is accepted that she was the legally married wife of Raju Naidu then her right to claim partition and share in the property stands out and that cannot be defeated by the plea of ouster or adverse possession. In order to oust by way of adverse possession, one has to lead definite evidence to show that to the hostile interest of the party that a person is holding possession and how that can be proved will depend on facts of each case. In the present case, it is the widow who has been thrown out and she has been moving from pillar to post. The relief cannot be denied to her just because she sent notice claiming partition of the properties and she did not file any suit thereafter and the steps sons where holding the properties adversely and hostile to her knowledge. It was the joint property of Raju Naidu and it shall devolve by way of survivorship i.e. two sons and his wife as the daughter has already given up her share in the property. Therefore, in order to oust one of the co-sharers only on the basis of the so called notice cannot be deemed to be sufficient to come to a conclusion of adverse possession or extinguishing her rights.(Para 7)
       No hard and fast rule can be laid down from which it can be inferred that any co-sharer has ousted his co-sharer. That will depend upon facts of each case. Simply long possession is not a factor to oust a co-sharer but something more positive is required to be done. There must be a hostile open possession denial and repudiation of the rights of other co-owners and this denial or repudiation must brought home to the co-owners. Simply because a co-sharer gave notice claiming partition of the suit properties and possession and did not pursue the matter further, that will not be sufficient to show that the co-sharer has lost his/her right. In the present case, it is only when ‘B’ schedule property was being sold by two brothers then alone the plaintiff woke up to realise that the step sons were not interested to give her share in the property and she rushed to file the suit. Therefore, by no stretch of imagination it can be inferred in the present case that the plaintiff had lost her right to claim partition and share in the property. (Para 7)

JUDGMENT

A.K. Mathur, J.—These appeals are directed against the judgment and order dated 30.12.1998 passed by learned Single Judge of the Madras High Court in Second Appeal No.2253 of 1986 and Second Appeal Nos.145 & 146 of 1988.

2. Brief facts giving rise to the present appeals are that the plaintiff filed a suit being O.S.No.409 of 1981 for partition and separate possession and also claimed for rendition of accounts. The plaintiff is the second wife of Raju Naidu. Raju Naidu married Rajakanthammal as his first wife and she died in or about 1946 leaving behind the defendant Nos. 1 & 2 as their sons and one daughter by name Saraswathi. After the death of his wife, Raju Naidu married second time to the plaintiff as the second wife. There was no issue from the second wife. Raju Naidu died intestate in 1954 and on his death the plaintiff and defendant Nos. 1 & 2 were the legal heirs to inherit the properties of Raju Naidu. ‘B’ schedule properties are the separate and self acquired properties of Raju Naidu. It is alleged that the plaintiff and Defendant Nos.1 & 2 lived amicably for sometime. Afterwards, the plaintiff started living separately and Defendant Nos.1 & 2 were giving her share of income from the properties. She demanded partition of the properties. It was promised by both the sons of Raju Naidu and step sons of the plaintiff but without any result. One year before filing of the present suit, Defendant Nos.1 & 2 started acting against the interest of the plaintiff and they stopped giving the income to the plaintiff. Then they alienated item Nos. 3 to 8 of the scheduled properties to Defendant No.3 and further to Defendant No.4 the entire ‘B’ & ‘C’ schedule properties under the pretext of the decree in O.S.No.101 of 1967 and O.S.No.247 of 1970 against Defendant Nos.1 & 2. The plaintiff was not a party to these two suits and therefore that decree was not binding on her. It is alleged that a notice was sent for the first time for partition of the properties sometime in 1979 which was replied by the defendants. It is alleged that a reply was sent by the defendant No.1 to the plaintiff wherein it was stated that the allegations are false and item No.2 has been purchased recently by the defendant No.1 out of the sale proceeds got by him by selling item Nos.3 to 8 in favour of Defendant No.3. Item No.2 also belonged to the joint family. It was also alleged that at the time of marriage, Raju Naidu had already executed a registered settlement deed dated 17.4.1947 and in that 38 cents were given to the plaintiff and the plaintiff remained in peaceful possession of the ‘C’ schedule properties. Thereafter, when the suit was filed the defendant No.1 filed a written statement and in that it was alleged that the plaintiff does not have any share in the property and ‘C’ schedule property was already settled in her favour. A panchayat was also convened and arrangement was made that ‘C’ scheduled property would remain with her and she would not claim any share in the property. It is also alleged that Defendant No.1 maintained the defendant No.2 and their sister and gave her in marriage. After the death of her husband, she and her minor son are still maintained. It is also alleged that sale deed in favour of defendant No.3 was executed by defendant No.1 to meet the debts to the extent of Rs.40,000 by way of promissory notes and simple mortgages. As such, the suit filed by the plaintiff was barred by law. Defendant No.2 also contested the suit and even challenged the marriage of the plaintiff with Raju Naidu. It is alleged that after the death of Raju Naidu only two sons became the sole owners by way of survivorship. It is alleged that he has sold undivided half of the properties for valid consideration. Defendant No.3 was a purchaser and he contested the suit and submitted that the suit was not maintainable without the prayer for cancellation of the two sale deeds and he also took the plea of limitation. Defendant No.4

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2006 Supreme(SC) 977

Cases Referred (3)