K.Sankarammal vs S.Karuppi
2021 Latest Caselaw 12955 Mad

                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                 DATED: 02.07.2021

                                                      CORAM

                               THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                               S.A.(MD).No.672 of 2003
                     1. K.Sankarammal

                     2. K.Rajammal

                     3. R.Rajesh                                      ... Appellants

                                                          Vs
                     1. S.Karuppi

                     2. S.Shunmugaraj

                     3. S.Sundaravelu                                ... Respondents

Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, to set aside the decree and judgement passed on 26.09.2002 in A.S.No.44 of 2002 by the Hon'ble Sub-Judge, Sankarankoil, Tirunelveli District, revising the decree and judgement made in O.S.No.70 of 1999 on 19.06.2002 in favour of the appellant herein by the Additional District Munsiff, Sankarankoil thereby confirming decree and judgement made in favour of appellant herein O.S.No.70/99.

For Appellants : Mr.V.Ilanchezian For Respondents : Mr.M.P.Senthil for Antony Jesus For R1, R2 & R3 – No appearance.

https://www.mhc.tn.gov.in/judis/ JUDGMENT

The contesting defendants in O.S.No.70 of 1999, on the file of

Additional District Munsif Court, Sankarankoil are the appellants in this

Second Appeal. The suit was filed by the respondents 1 and 2 herein,

seeking the relief of partition and separate possession in respect of their

share in the suit property and for permanent injunction and also mandatory

injunction. The appellants herein filed their written statement, controverting

the plaint averments. The suit was dismissed by Judgement and decree dated

19.06.2002 by accepting the plea of ouster.

2. Aggrieved by the same, the plaintiffs filed A.S.No.44 of 2002

before the Sub Court, Sankarankoil. By the impugned judgment and decree

dated 26.09.2002, the appeal was partly allowed and a decree was passed in

favour of plaintiffs allotting one third share in the total extent of property.

Questioning the same, this Second Appeal came to be filed by the

defendants.

https://www.mhc.tn.gov.in/judis/

3.The Second Appeal was admitted on the following substantial

questions of law:

“ 1) Whether the non-taking into account and relying on crystal clear admission about the possession of the disputed land made by PW2 is not bad in law?

2) Whether the suit is not barred by limitation?”

4. Heard the learned counsel on either side.

5. It is not in dispute that the entire property that has been described

in the first schedule originally belongs to one Avudai Ammal. She had three

daughters namely, Valli, Madathi and Perumal Ammal. Each of the

daughters had 1/3rd share. Valli had conveyed her 1/3rd share in favour of

Madathi. This was on 20th May 1949. Madathi had two sons namely,

Subbaiya and Sundaravelu (3rd respondent herein). Subbaiya passed away in

the year 1965, leaving behind the plaintiffs, as his surviving legal heirs.

Perumal Ammal has a daughter by name Sankarammal, the first appellant

herein. Sankarammal had a son and a daughter. The daughter is the second

appellant herein namely, Rajammal. The third appellant is the son-in-law of

the Sankarammal. Sundaravelu, the 3rd respondent herein, conveyed 2/3rd

https://www.mhc.tn.gov.in/judis/ share in the suit property in favour of Sankarammal in the year 1980 vide

Ex.A2/Ex.P1, dated 13.04.1980, Sankarammal in turn sold the property in

favour of her son-in-law, the third appellant herein.

6. According to the appellants, they had 1/3 rd share of the property

originally and by purchase of the remaining 2/3rd share from Sundaravelu

under Ex.A2, they became the absolute owners of the entire property.

Based on the same, the third appellant had approached the local body and

got permission for putting up a building (Ex.B7). Thereafter, the present

dispute arose.

7. The stand of the plaintiffs was that they never parted with or

alienated or relinquised their 1/3rd share in the property, which they were

entitled to by virtue of being the legal heirs (wife and son) of Subbaiya, one

of the sons of Madathi. On the other hand, the defendants' plead that there

was a oral partition in the Madathi Branch in the year 1966, whereby, the

plaintiffs had given up their one third share in favour of Sundaravelu, who

sold two third share in the suit property in favour of Sankarammal by way of

https://www.mhc.tn.gov.in/judis/ registered sale deed. No objection was raised by the plaintiffs. It is on this

basis, the plea of ouster, has been projected by the defendants.

8. The learned counsel for the appellants would point out that even

though Subbaiya passed away in the year 1965, the claim for partition was

made only in the year 1999. The belated nature of demand is sufficient to

establish the plea of ouster. According to the learned counsel, this plea was

rightly accepted by the trial Court and the same deserves to be restored.

9. I cannot sustain the said submission of the learned counsel for the

appellant. Plea of ouster has to be specifically pleaded and established. The

principles relating to inter-se rights and liabilities of co-sharers have been

set out by the Supreme Court in Jai Singh Vs Gurmej Singh in

(2009)15SCC747 in the following terms.

“7. (1) A co-owner has an interest in the whole property and also in every parcel of it.

(2) Possession of joint property by one co-owner is in

https://www.mhc.tn.gov.in/judis/ the eye of law, possession of all even if all but one are actually out of possession.

(3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.

(4) The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co-owner must not only be exclusive but also hostile to the knowledge of the other as, when a co-owner openly asserts his own title and denies, that of the other.

(5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment.

(6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners.

(7) Where a co-owner is in possession of separate parcels under an arrangement consented by the other co- owners, it is not open to any body to disturb the arrangement without the consent of others except by filing a suit for partition.”

https://www.mhc.tn.gov.in/judis/

10. Thus applying the aforesaid principles, I have to conclude that the

plea of ouster has not at all been established by Ex.A2, the sale deed

executed by D4 Sundaravelu in favour of Sankarammal, there is no plea

regarding oral partition said to have taken place in the year 1966. Merely

because Ex.A2 was registered, that would not constitute notice to the

general public. The plaintiffs of course resided in the same locality. But

there is no plea that what had happened between D4 Sundaravelu and

Sankarammal was within their knowledge. If the plaintiffs had attested

Ex.A2, definitely, they can be imputed with knowledge and the plea of

ouster could have been sustained. There is nothing on record to show that

the plaintiffs had knowledge about the conveying of 2/3rd share by

Sundaravelu in favour of Sankarammal in the year 1980. When Sundaravelu

had only 1/3rd share in the suit property, he could not have conveyed 2/3rd

share in favour of Sankarammal. Therefore, the First Appellate Court rightly

upheld the rights of Subbaiya Branch. I do not find any ground to interfere

with the impugned judgement passed by the First Appellate Court. The

substantial questions of law are answered against appellants and the appeal

is dismissed.

https://www.mhc.tn.gov.in/judis/

11. It is stated by the learned counsel for the appellants that a house

has been put up by the third appellant. When final decree is passed,

equitable considerations shall be borne in mind, so that the construction

already put up is not demolished. It goes without saying that plaintffs will

have to be appropriately compensated.

12. With these observations, this Second Appeal stands dismissed. No

costs.

                                                                                          02.07.2021

                     Index : Yes / No
                     Internet     : Yes/ No
                     kmm

                     To:

1. The Additional District Munsiff, Sankarankoil.

2. The Hon'ble Sub-Judge, Sankarankoil, Tirunelveli District.

https://www.mhc.tn.gov.in/judis/ G.R.SWAMINATHAN,J.

kmm

S.A.(MD).No.672 of 2003

02.07.2021

https://www.mhc.tn.gov.in/judis/