Madras High Court

Mrs.Bhuneswari vs Mrs.Ramamirtham on 23 November, 2023

                                                                                S.A.No.626 of 2017

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 23.11.2023

                                                         CORAM

                                  THE HONOURABLE MR. JUSTICE S.SOUNTHAR

                                                     S.A.No. 626 of 2017
                                                             and
                                                   C.M.P.No.15552 of 2017

              V.Thangavelu(died)

              1.Mrs.Bhuneswari
              2.Mrs.Sabineeswari
              3.Mr.Jaganmohan
              4.Mrs.Amudha                                                      ...Appellants
                                                            Vs.

              1.Mrs.Ramamirtham
              2.Mrs.Bhavani
              3.Mrs.Kasthuri
              4.Mr.R.K.P.Viswanathan
              5.Mrs.Panimalar                                                       ...Respondents


              PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code,
              against the judgment and decree dated 06.04.2017 in A.S.No.24 of 2015 on the
              file of the District and Sessions Court, Thiruvarur reversing in O.S.No.44 of
              2009 on the file of the Sub-Court, Manargudi, dated 29.04.2015.



                                  For Appellants            : Mr.K.M.Subrahmaniam



https://www.mhc.tn.gov.in/judis
              1/13
                                                                                  S.A.No.626 of 2017


                                  For Respondent 1       : Mr.B.Ramamoorthy

                                  For Respondent 2 & 3   : Mr.M.Mohamed Hasain

                                  For Respondent 4 &5    : No appearance


                                                     JUDGEMENT

The unsuccessful defendants 4, 5, 6 (children of deceased 1st defendant)

and one of the legal representatives of the deceased 1st defendant are the

appellants. The 1st respondent herein/plaintiff filed a suit for partition claiming

1/4th share. The suit was dismissed by the Trial Court. The appeal filed by the 1st

respondent/plaintiff was allowed by the First Appellate Court and the

preliminary decree for partition of 1/4th share was granted. Aggrieved by the

same, the appellants have come before this Court by way of second appeal.

2. According to the 1st respondent/plaintiff, the suit properties originally

belonged to her father namely Veerappan. The defendants 1 to 3 in the suit are

her brothers and sisters. The defendants 4 to 6 are children of 1 st defendant who

died subsequently. The defendants 7 and 8 are purchasers of the portion of the

suit property from deceased 1st defendant. The 1st defendant died pending first

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

appeal and hence, his wife one Amudha was brought on record as 9th respondent

in the first appeal. According to the 1st respondent/plaintiff, her father

Veerappan died 20 years back and his wife Kunjammal died on 10.12.2004.

After the death of Veerappan and Kunjammal, the plaintiff and defendants 1 to 3

are entitled to 1/4th share each in the suit property. The plaintiff issued a pre-suit

notice calling for partition and the 1st defendant failed to respond favourably and

hence, she was constrained to file a suit for partition.

3. The defendants 2 and 3 filed a written statement submitting to the

decree. The 1st defendant, brother of plaintiff alone contested the suit by raising

plea of ouster. It was his specific case that after the death of Veerappan in the

year 1979, he had been in possession and enjoyment of the suit property

exclusively and hence, the plaintiff and defendants 2 and 3 were ousted from

enjoyment of the suit property for more than statutory period. He further

claimed that the items 11 and 14 are leasehold properties in his name and the

plaintiff was not entitled to any share in the said properties. It was also claimed

that item 8, 10, 12 and 13 were assigned in the name of 1st defendant and hence,

plaintiff was not entitled to claim any share. On this pleadings, the 1st defendant

sought for dismissal of the suit.

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

4. Before the Trial Court, the plaintiff was examined as P.W.1 and 13

documents were marked on her side as Ex.A1 to Ex.A13. The defendants 1, 4, 7

and 8 were examined as D.W.1 to D.W.4 and 14 documents were marked on

behalf of 1st defendant as Ex.B1 to Ex.B14. A notice issued by the plaintiff to 7 th

and 8th defendants was marked as Ex.C1.

5. The Trial Court, on appreciation of oral and documentary evidence

available on record, came to the conclusion that 1 st defendant succeeded in

proving his plea of ouster and consequently dismissed the suit. Aggrieved by the

same, the plaintiff preferred an appeal in A.S.No.24 of 2015 on the file of

District and Sessions Court, Thiruvarur. The First Appellate Court, on pre-

appreciation of evidence available on record, came to the conclusion that 1st

defendant failed to prove his plea of ouster and the plaintiff was entitled to 1/4th

share in suit item 1 to 5, 7 and 9. Aggrieved by the said judgment and decree,

the legal heirs of deceased 1st defendant have before this Court by way of second

appeal.

6. At the time of admission, this Court formulated the following

substantial questions of law vide order dated 26.10.2017 and the same reads as

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

follows:-

1.Whether in law the Lower Appellate Court was right in holding that the father of the plaintiff died in the year 1979 and after lapse of 30 years the plaintiff is entitled for partition rights under the ouster of claim is proved by the defendants No.1?

2. Whether the first Appellate Court was right that the plaintiff is holding the joint possession by virtue of the mother of the plaintiff died in the year 2004 as per the partition act?

7. The learned counsel for the appellants submitted that P.W.1 during the

course of cross-examination clearly admitted that 1st defendant has been paying

kist to the suit property and she had no knowledge about four boundaries of the

suit property. Therefore, it is the contention of the learned counsel that plaintiff

never enjoyed the suit properties subsequent to the death of father Veerappan

and hence, she is deemed to be ousted from enjoyment of the suit properties on

the death of her father. The learned counsel further submitted that plaintiff failed

to produce any evidence to show that she contributed for cultivation of the suit

properties and she exercised any right over the suit properties for the past 30

years. Therefore, in the light of admission made by P.W.1, the Trial Court rightly

came to the conclusion that plea of ouster was established by 1 st defendant and

the same has been reversed by the First Appellate Court without any justifiable

reason. Therefore, the learned counsel requested the Court to set aside the

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

findings of the First Appellate Court and allow the second appeal.

8. The learned counsel for the 1st respondent/plaintiff submitted that

merely because a co-owner is in possession of the suit properties, it cannot be

presumed that the other co-owners are ousted from the property. The learned

counsel submitted that the possession of one of the co-sharers is also for the

benefit of other co-sharers. Therefore, unless the hostile possession was

established by the person who pleaded ouster, the First Appellate Court is

justified in granting a decree for partition. In support of his contentions, the

learned counsel for the 1st respondent relied upon the judgment of this Court in

the case of Chenniappan Vs Valliammal and others reported in CDJ 2019

MHC 5698.

9. From the evidence available on record, it is clear that the father of the

parties namely Veerappan died in the year 1979 and his wife died in the year

2004. It is also not in dispute that after death of father, the 1st defendant has been

in possession and enjoyment of the suit property. In fact, in his written statement

itself the 1st defendant admitted that after death of his father in the year 1979, he

was compelled to look after the family affairs in his capacity as a senior most

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

member of the family. Therefore, it is clear even from the pleadings of 1st

defendant that after death of father, he looked after the family and the suit

property has been in his enjoyment in his capacity as a senior most member of

the family. Merely because one of the co-owners, being a senior most male

member, is in possession of the family properties, the Court cannot come to the

conclusion that his possession is exclusive and to the detriment of other co-

sharers. In this regard, it would be appropriate to quote the observations of this

Court in the case law cited above Chenniappan Vs Valliammal and others

reported in CDJ 2019 MHC 5698. The relevant observation reads as follows:-

“24. On the question of applicability of Article 110 of the Limitation Act, I find that the said Article will not apply to the case on hand. It would apply only to the suit for partition filed by a member who has been excluded from possession or enjoyment of the joint family property and Article 110 of Limitation Act reads as follows:

                           S.No( Description of Suit            Period of       Time from
                           Article                              Limitation      which period
                           )                                                    begins to run
                           110        By a person excluded Twelve years         When      the
                                      from a joint-family                       exclusion
                                      property to enforce a                     becomes
                                      right to share therein                    known to the
                                                                                plaintiff


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





                                        25. A reading of the said Article would show that

the commencement of period of limitation is when the exclusion becomes known to the suing coparcener/the plaintiff. Therefore, when the defendant seeks protection under Article 110 of Limitation Act, he has to establish that the suing co-sharer was excluded from the enjoyment of the properties to his knowledge. It is settled law that possession of one co-sharer is on behalf of the other Co- sharers. If the Co-sharer in possession, raises the plea ouster or the bar under Article 110 of the Limitation Act, it is incumbent on such co-sharer to prove that the exclusion was to the knowledge of the other co-sharers. Unfortunately, I find total lack of evidence on the side of the defendant in this regard. Further, Mr.N.Manokaran, learned counsel for the appellant would contend that the very fact that the appellant/1st defendant had made improvements would show that the plaintiffs were not in possession of the properties atleast from 1969 to 2003. It would also demonstrate that they were aware of exclusion. I am unable to agree with the said submission of the learned counsel, since inference of the exclusion is not possible. Exclusion should be proved by tangible evidence. One cannot infer exclusion from enjoyment of the co-sharers in as much as the law is well settled to the effect that one co-sharer's possession is referable to all https://www.mhc.tn.gov.in/judis

the co-sharers. If the Co-sharer had done certain improvements in the property with or without knowledge of all the co-sharers, that by itself, will not enable the court to infer knowledge of exclusion on the plaintiff.

26. Unfortunately, the attention of the learned trial Judge was not drawn to the earlier judgments of this Court, which deal with ouster. As regards ouster, however long the possession may be, the same will not confer absolute right on the co-sharer in possession. Strong evidence is required to show the exclusion”.(emphasis supplied)

10. A reading of the above judgment would make it clear that possession

of one of the co-sharers is not only for himself but also for the benefit of other

co-sharers. In case, where a co-sharer pleads his possession is exclusive and to

the detriment of other co-sharers, he has to lead concrete and cogent evidence to

show his hostile possession for more than statutory period. In the case on hand,

the 1st defendant even in his pleading admitted that after death of father, the

responsibility of looking after the family fell on his shoulders and in that

capacity, he had enjoyed the property. Therefore, it cannot be presumed his

continuous enjoyment of the suit property after death of father would amount to

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

hostile enjoyment with an intention to exclude the other co-sharers. Therefore, I

do not find anything to interfere with the findings rendered by the First

Appellate Court that the deceased 1st defendant failed to prove his plea of ouster

by any cogent evidence.

11. In view of the discussion made earlier earlier, the substantial question

of laws framed at the time of admission are answered against the appellants.

12. Accordingly, the second appeal stands dismissed.

a) by affirming the judgment and decree dated 06.04.2017 in A.S.No.24

of 2015 on the file of the District and Sessions Court, Thiruvarur reversing the

judgment and decree dated 29.04.2015 in O.S.No.44 of 2009 on the file of the

Sub-Court, Manargudi.