Madras High Court
5 K.Lathadevi vs T.Porselvi on 26 September, 2023
A.S.No. 545 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.09.2023
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
A.S.No. 545 of 2022
and
C.M.P. No. 20372 of 2022
1 K.Saravanan,
S/o. P.Krishnan (late)
2 K.Malamani
W/o. P.Krishnan (late)
3 K.Tamilselvi
D/o. P.Krishnan (late)
4 K.Anitha
D/o. P.Krishnan (late)
5 K.Lathadevi
D/o. P.Krishnan (late) .. Appellants
Vs
T.Manjula (died)
Raja Selvam (died)
1. T.Porselvi
D/o. Thiruvenkadam (late)
1/17
https://www.mhc.tn.gov.in/judis
A.S.No. 545 of 2022
2 T.Ranjan Kumar
S/o. Thiruvenkadam (late)
3 Sweety,
W/o. T.Rajaselvam (late)
4 Sophiya
D/o. T.Rjaselvam (late)
5 Sinthiya
D/o. T.Rajaselvam (late)
6 Master Sachin
D/o. T.Rajaselvam (late)
Respondents 4 to 6 are rep. by their
mother and natural guardian Mrs. Sweety ... Respondents
PRAYER : Appeal Suit filed under Sec. 96 of Civil Procedure Code,
praying to set aside the judgment and decree in O.S.No.2439 of 2019
dated 01.07.2022 on the file of VII Addl. City Civil Judge, Chennai.
For Appellant : Mr.R.Singaaravelan,
Senior Advocate for
Mr. S.Kamadevan
For Respondents : Mr.G.Vijayakumar
2/17
https://www.mhc.tn.gov.in/judis
A.S.No. 545 of 2022
JUDGEMENT
The appellants herein are the defendants in the suit in O.S.No.2439
of 2019, on the file of VII Addl. City Civil Court, Chennai. Originally,
the said suit was filed in C.S.No. 634 of 2011 on the file of this court by
the deceased Manjula, as a plaintiff claiming her half share in the suit
property.
2. For the sake of convenience, parties are referred as per the
ranking in the suit.
3. The said suit was filed by deceased Manjula against defendants
1 to 5 claiming half share in the suit property stating that it is an ancestral
property of her family along with defendants. The defendants denied the
plaintiff's right stating that father of plaintiff viz., Raj was allotted with
some other property by way of oral partition and the same was sold by
him during his life time. The suit property was allotted to plaintiff
father's brother Krishnan. After his demise, as legal heirs of Krishnan, the
https://www.mhc.tn.gov.in/judis
A.S.No. 545 of 2022
defendants are enjoying the property, so the plaintiff has no right over the
suit property, besides she has also relinquished her share in the property
by receiving valid consideration, thereby they prayed to dismiss the suit.
4. Before the trial court, seven issues were framed. On the side of
plaintiff, she was examined as P.W.1 and the documents Ex.P1 to P6 were
marked. On the side of defendants, 1st defendant was examined as D.W.1
and other witnesses were examined as D.W.2 and D.W.3 and the
documents Ex.B1 to B9 were marked. On considering oral as well as
documentary evidence, the trial judge finally held that the alleged oral
partition pleaded by the defendants was neither proved nor they have
established that the plaintiff was ousted from the suit property, thereby
they failed to establish their defence. On the other hand, the plaintiff able
to prove that the suit property was enjoyed along with the defendants as a
joint family property without any division by metes and bounds. After the
demise of her father, she is claiming her father's share in the suit property
as his legal heir. Accordingly, she is entitled for half share in the property
and also the Release Deed dated 22.10.2020 declared as null and void as
https://www.mhc.tn.gov.in/judis
A.S.No. 545 of 2022
she prayed for along with other consequential reliefs, thereby the suit
was decreed, however, in respect of measne profit, no relief claimed by
the plaintiff. Aggrieved over the same, the defendants filed the present
appeal.
5. The learned counsel for defendants argue that the trial judge
failed to take note of the fact that already a oral partition was effected
between father of plaintiff and father of defendants and the same acted
upon and the property allotted to plaintiff's father was sold and sale
proceeds was utilised by himself alone. Therefore, there is no question of
joint family property available for partition and inspite of evidence to
that effect, the trial judge erroneously decreed the suit by allotting half
share in the suit property as such is totally erroneous one and liable to be
set aside. He would further argues that trial judge failed to take note of
the fact that after the death of her father, the plaintiff also sold some of
the property, which she inherited from her father vide sale deed dated
11.08.2008 and the same would probabilise the fact that already there
was a partition between her father and defendants' father. So, there is no
https://www.mhc.tn.gov.in/judis
A.S.No. 545 of 2022
ground for division of property. But, without appreciating the same, the
suit was decreed in favour of plaintiff as such is totally unfair and liable
to be set aside. The learned counsel would also submit that the plaintiff
got married in the year of 1972 and living with her family without
making any claim till the year of 2011. Therefore, the doctrine of ouster
would clearly applicable to the facts of the case, thereby, she is not
entitled to claim that she is in joint possession of the property, but the
trial judge erroneously disagreed with that view and decreed the suit in
favour of plaintiff, who was away from the property nearly for four
decades. Based upon all these grounds, the learned counsel for
defendants prays to set aside the findings of trial judge.
6. By way of reply, the learned counsel for plaintiff would submit
that there was no oral partition between plaintiff's father and defendants'
father as claimed by the defendants. On the other hand, both of them
enjoyed the property without any division by meats and bounds and after
the demise of plaintiff's father, as a legal heir, plaintiff name was entered
into mutation of revenue records, but without her knowledge, her name
https://www.mhc.tn.gov.in/judis
A.S.No. 545 of 2022
was deleted and the defendants themselves colluded together and created
a release deed executed by defendants 2 to 5 in favour of 1 st defendant, as
such in order to defeat the plaintiff's right over the property and the same
was not accepted by trial court. By considering the evidence on record,
the trial judge held that properties are joint family property, in which the
plaintiff is having half share, as such is sustainable under law. Hence,
they prayed to dismiss the appeal as no merits.
7. Heard and considered rival submissions made by learned
counsel for appellants as well as respondents and perused the records.
8. The point is to be decided whether the plaintiff has proved that
it is a joint family property, in which she is having half share? thereby the
settlement deed dated 22.10.2010 is not binding. Secondly, whether the
defendants established that the entire property belong to them as per oral
partition held in the family, thereby the plaintiff has no share in the suit
property.
https://www.mhc.tn.gov.in/judis
A.S.No. 545 of 2022
9. Originally, deceased plaintiff Manjula, who is daughter of Raj
and defendants are the legal heirs of one Krishnan, both Raj and Krishan
are brothers and they are sons of one Perumal and the suit property is an
ancestral property of the said Perumal, are the admitted facts. As a legal
heir of Perumal, plaintiff submits that her father Raj and her father's
brother Krishnan were in joint possession of ancestral property and they
have invested their earnings and developed the property. While so, on
08.12.1979, her father Raj died leaving behind her as his only legal heir,
since her mother Santhanam was already passed away. So also, her
father's brother died intestate in the year of 1992 leaving behind the
defendants as his legal heirs. After the said demise of both sharers, the
revenue records were mutated in the name of plaintiff and wife of the
said Krishnan and they were in joint possession and enjoyment of the suit
property. But, in the month of October 2010, the plaintiff came to now
that there was a sham and nominal release deed executed by the
defendants 2 to 5 in favour of 1st defendant in respect of entire suit
property as such is absolutely belong to them. Without her knowledge,
https://www.mhc.tn.gov.in/judis
A.S.No. 545 of 2022
the revenue records also mutated illegally as it stands in the name of 1 st
defendant. Hence, the necessity arose for them for filing a suit for
partition claiming half share in the suit property as it is a joint family
property. But, the defendants denied the plaintiff's claim that already oral
partition was effected between their father Krishnan and the plaintiff's
father Raj and the property allotted to Raj was sold during his life time
and this suit property was allotted to the share of Krishnan. After his
demise, they are enjoying the property absolutely. When the defendants
raised plea of oral partition, the burden is casted upon them to establish
that already properties were divided by way of oral partition.
10. Admittedly, in the written statement, the defendants have not
stated that the date on which, oral partition was effected in their family
nor they mentioned who are the panchayatars with whom the properties
were orally divided. Even before the trial court, the defendants not
examined any panchayatar to establish that oral partition was already
effected in the family, on the other hand, as rightly pointed out by learned
counsel for plaintiff, Ex.D1 Sale deed dated 04.02.1964 exhibited by
https://www.mhc.tn.gov.in/judis
A.S.No. 545 of 2022
Perumal's sons viz., Raj and Krishnan in favour of one Kaliannan,
wherein the recitals reads as follows :-
“moapy; fz;l brhj;J fhyk; brd;w v';fs; jfg;gdhh; btUkhs; vd;gth;
ngUf;F rh;fhhpy; $hhp bra;J gl;lh bfhLj;J ehsJ tiuapy; j';fSila
RthjPd mDgtj;jpypUf;Fk; moapy; fz;l brhj;ij v';fs; FLk;g
brytpw;fhf ehsJ njjpay; epr;rapj;j U:/700-? (vGj;jhy; U:gha; vGE}W
kl;Lk; eh';fs; j';fsplj;jpy; buhf;fkhf bgw;Wf; bfhz;L moapy; fz;l
brhj;ij ,d;W njjpapy; eh';fs; j';fs; RthjPdk; bra;Jtpl;nlhk;/
Mifahy;. ,d;W njjp Kjy; moapy; fz;l brhj;ij eh';fns ifg;gw;wpf;
bfhz;L tpj;bjhj; jhthjp tpf;fpiua';fSf;F chpj;jha; mjpYs;s kutil
$y gh&hzk; g[j;jpu bgsj;jpu ghuk;ghpakha; rfy Rje;jpu';fSld; Mz;L
mDgtpj;Jf; bfhs;s fltPuhft[k.; mDgtpf;Fk; ,lk; fyd; ,y;iy fyd;
cz;lhdhy; eh';fns Kd;dpd;W v';fs; brhe;j bghUshy; fyd;
jPh;j;Jf;bfhLf;f flnthdhft[k/;
,e;jg;gof;F eh';fs; Vnfhgpj;J rk;;kjpj;J vGjpf; bfhLj;j
tpf;fpiuag; gj;jpuk;”
So, the recitals of Ex.B1 document would clearly establish that in the
year of 1964, both plaintiff and defendants' father enjoyed the property
jointly and sold the same to third party for a valid consideration. Even
during the evidence, D.W.1 deposed that he was not aware whether any
witness to the oral partition took place between his father and plaintiff's
father. So, the evidence of D.W.1 as well as Ex.B1 not established that
https://www.mhc.tn.gov.in/judis
A.S.No. 545 of 2022
there was a oral partition effected among the family members of plaintiff
and defendants. Therefore, the defendants failed to establish the oral
partition, which was already effected in the family and the same was
rightly concluded by the trial judge while deciding the issue No.4, which
needs no interference by this court. Therefore, the defendants have not
proved that already there was a oral partition effected in the family.
11. The defendants have denied the plaintiff's claim stating that the
plaintiff was ousted from the property, as she got married in the year of
1972 and thereafter, she has not made any claim over the property till
filing of the suit, thereby she was not in joint possession of the property.
According to plaintiff, after the death of her father, in the revenue
records, her name along with 2nd defendant was incorporated. But,
without her knowledge, her name was deleted from the revenue records
in the year of 2000 by the defendants and then they have created a release
deed among themselves. Before the trial court, the plaintiff marked the
GRS Book dated 05.07.2013 issued under RTI Act as Ex.A5 and as per
the records, the property was jointly in the name of both plaintiff and 1st
https://www.mhc.tn.gov.in/judis
A.S.No. 545 of 2022
defendant's mother, through which, the plaintiff able to establish that
after demise of her father, her name was mutated in the revenue records
pertaining to the suit property. The tax certificate Ex.A7 also reveal that
the property was assessed in the name of plaintiff and the 1st defendant.
With the help of these documents, the plaintiff able to establish that she
was in joint possession along with 1st defendant's mother. Therefore,
though she got married, after the demise of her father, the plaintiff, as a
co-sharer deemed to be joint possession of property and the same was
established through these documents by the plaintiff. Hence, the plea of
ouster claimed by the defendants is unsustainable and the same was
rightly observed by the trial judge, besides the defendants also claimed
right over the property based on adverse possession, but the defendants
not proved the fact that when his possession became adverse to the
plaintiff. It is a settled preposition that mere long possession is not
enough to constitute adverse possession and the possession must be
coupled with animus possidends. For that, the following ratio laid down
in the referred cases relied on by the plaintiff is squarely applicable to the
facts of the present case, which reads as follows :-
https://www.mhc.tn.gov.in/judis
A.S.No. 545 of 2022
“In the case of Annakili vs. A. Vedanayagam and others
reported in 2008 (1) CTC P 329 at P.336 para 22
Claim by adverse possession has to elements: (1) the
possession of the defendant should become adverse to the
plaintiff; and (2) the defendant must continue to remain in
possession for a period of 12 years thereafter. Animus
Possidendi as is will known is a requisite ingredient of
adverse possession. It is now a well settled principle of law
that mere possession of the land would not ripen into
possessory title for the said purpose. Possession must have
animus possidendi must be shown to exist, but the same
must be shown to exist at the period prescribed under the
Limitation Act. Mere long possession, it is trite, for a period
of more than 12 years without anything more do not ripen
into a title”
In the case of Veerasekaran and another vs. Devarasu
reported in 2008 (7) MLJ 275
“Adverse possession – claim of – Ingredients to be
satisfied – A person who claims adverse possession must
definitely allege and prove
(a) how and when adverse possession commenced
(b) what was the nature of his possession and
https://www.mhc.tn.gov.in/judis
A.S.No. 545 of 2022
(c) Whether the fact of his adverse possession was
known to the real owner.
Question of Adverse possession is one of fact – A person
claiming adverse possession must establish the same by
unequivocal evidence – long possession is not adverse
possession - No evidence to prove adverse possession in the
present case – Plaintiff cannot succeed in the plea of
adverse possession.”
So also, the plea of limitation claimed by the defendants also
unsustainable for the reason that the plaintiff herein proved that she is in
joint constructive possession of property along with defendants. When
she felt inconvenience, she filed a suit. So, the plea of adverse possession
would not arise as rightly held by the trial judge. According to the
plaintiff, the defendants failed to establish that the properties are orally
divided nor they proved that by other means of share and adverse
possession, they are entitled for the entire suit property. Accordingly, the
second issue is answered.
https://www.mhc.tn.gov.in/judis
A.S.No. 545 of 2022
12. Moreover, when the defendants failed to prove that the suit
property was allotted to their share by way of oral partition, on the other
hand, the plaintiff able to establish that it is a ancestral joint family
property, which was enjoyed in common by her father and after his
demise, she enjoyed along with other co-sharers and other legal heirs of
her father's brother Krishnan, she is entitled for half share in the suit
property, thereby the findings of trial judge is sustainable one.
Accordingly, the first issue is answered. The plaintiff also proved that it
is a joint family property, thereby the release deed executed by
defendants 2 to 5 in favour of 1st defendant on 22.10.2010 as such is
absolute property of them and the same is liable to be declared as null
and void and not binding the plaintiff. Accordingly, this appeal suit is
dismissed as no merits and the findings of trial judge in O.S.No. 2439 of
2019 is confirmed. Thus, the plaintiff is entitled for half share in the suit
property, thereby preliminary decree is passed. Secondly, Release deed
dated 22.10.2010 is declared as null and void and the same is not binding
https://www.mhc.tn.gov.in/judis
A.S.No. 545 of 2022
the plaintiff. The Sub-Registrar is directed to take steps to record the
cancellation of Release Deed dated 22.10.2010. Furthermore, the plaintiff
is directed to work out for her measne by filing separate proceedings. No
costs. Consequently, connected Civil Miscellaneous Petition is closed.
26.09.2023
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
rpp
To
VII Addl. City Civil Court,,
Chennai.
https://www.mhc.tn.gov.in/judis
A.S.No. 545 of 2022
T.V.THAMILSELVI, J.
rpp
A.S.No. 545 of 2022
26.09.2023
https://www.mhc.tn.gov.in/judis
