Madras High Court
Vellapandian @ Thanga Arumugasamy ... vs Duraiappan (Died) ...1St on 9 March, 2020
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON 23.12.2021
DELIVERED ON 27.01.2022
CORAM :
THE HONOURABLE MRS.JUSTICE S.ANANTHI
A.S.(MD).No. 139 of 2009
Vellapandian @ Thanga Arumugasamy Nayakkar
...Appellant/1st Defendant
Vs.
1.Duraiappan (died) ...1st Respondent/Plaintiff
2.Vellimalai Pandiyan @ Kamayasamy Nayakkar
3.Sivashanmuga Kamaya Naicker
4.Ravichandran
5.Rajammal
6.Vidyavathi
7.Srimathi ...R-2 to R-7/D-2 to D-7
8.Maarikanpandian(died)
9.Ramaraja
10.Lakshmuraja
11.Anantharajan(died)
12.Inbavalli
13.Kalarani
14.Thilagarani
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15.M.Vimala
16.M.Nirmala
17.M.Sakkesh
[R-8 to R-13 are brought on record as LRs of deceased R-1 vide Court order,
dated 09.03.2020]
[R-14 to R-17 are brought on record as LRs of the deceased R-8 vide Court
order, dated 08.04.2021.] ...R-8 to R-17
PRAYER: Appeal Suit filed under Section 96 of Civil Procedure Code, to
call for the records and set aside the Judgment and Decree, dated 29.12.2005
in O.S.No.248 of 2004 on the file of the learned Additional District and
Sessions Judge [Fast Track Court], Dindigul and allow this appeal with
Costs.
For Appellant :Mr.H.Lakshmi Shankar
For R-9, R-10
& R-12 to R-17 :Mr.D.P.Sundararaj
ORDER
This Appeal Suit has been filed to set aside the Judgment and Decree, dated 29.12.2005 in O.S.No.248 of 2004 passed by the learned Additional District and Sessions Judge [Fast Track Court], Dindigul.
2.The deceased Duraikaruppan/1st respondent herein/plaintiff had filed a suit in O.S.No.248 of 2004 on the file of the learned Additional District and https://www.mhc.tn.gov.in/judis 3 Sessions Judge [Fast Track Court], Dindigul, for partition of 1/3rd share in the suit properties.
3.The case of the 1st respondent/plaintiff is that originally, the suit properties were belonged to one Kathirvelsamy Naicker and he died 15 years before leaving one daughter and two sons and the 1st respondent/plaintiff is the daughter. The appellant/1st defendant is the second son and the R-2 & R-3 herein are sons of another son. After the death of Kathirvelsamy/plaintiff, the R-2 to R-4/1st to 3rd defendants have possessed the properties and jointly enjoyed the same. 'A' & 'B' schedule properties are belonged to the father of the 1st respondent/plaintiff and hence, she has filed a suit for partition.
4.In the said suit, the appellant herein/1st defendant has filed a written statement and the 2nd and 3rd respondents/D-2 and D-3 have adopted the counter statement of the appellant/1st defendant and denied the rights of the 1st respondent/plaintiff. They have stated that, already the suit properties were partitioned in the year 1986. The 1st respondent/plaintiff got married before 30 years and therefore, she has no rights in the suit schedule properties and her rights were ousted.
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5.The Court below has passed Judgment and preliminary decree in favour of the 1st respondent herein/plaintiff in O.S.No.248 of 2004 regarding the 1/3rd share. Aggrieved by the Judgment and Decree, the appellant/1 st defendant is before this Court.
6.Heard on either side. Perused the material documents available on record.
7.The point for determination is that, Whether the rights of the 1st respondent/plaintiff is ousted as alleged by the appellant/1st defendant?
8.It is an admitted fact that the suit schedule properties are belonged to one Kathirvelsamy. The relationship between the parties are also admitted. The said Kathirvelsamy died in the year 1972 as per the written statement, but, no death certificate was filed. As per plaint, he died 15 years before from the date of filing of the suit. The 1 st respondent/plaintiff has also not filed death certificate.
9.During the evidence of P.W.1, she has admitted that her grandfather died 15 years before and she got married 50 years before. Her father also https://www.mhc.tn.gov.in/judis 5 died 25 years back and she has also admitted that her father may died in the year 1972.
10.Only, the 1st respondent/plaintiff has to prove the case that she has jointly enjoyed the properties in common, but, no proof has been filed by the her for possession. Further, the contesting parties before the Court below have pleaded that the rights of the 1st respondent/plaintiff was ousted. Therefore, it is a bounden duty of the 1st respondent/plaintiff to prove the joint possession.
11.On the other hand, the contesting respondents herein have possessed separate Patta from the year 1985. But, the 1st respondent/plaintiff has filed the suit only in the year 2004.
12.The plaintiff has relied upon the Judgment reported in 2020-5-LW-300, Vineeta Sharma Vs. Rakesh Sharma & Ors. The Hon'ble Supreme Court has held as follows:
“129.Resultantly, we answer the reference as under:
(i).The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or https://www.mhc.tn.gov.in/judis 6 after amendment in the same manner as son with same rights and liabilities.
(ii).The rights can be claimed by the daughter born earlier with effect from 09.09.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.
(iii)Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 09.09.2005.
(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener. When he was survived y a female heir, of Class-I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
(v)In view of the rigor of provisions of Explanation to Section 6(5), a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a Court. However, in https://www.mhc.tn.gov.in/judis exceptional cases where plea of oral partition is 7 supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected out-rightly.” There is no doubt that daughter has also got right by birth. But, she has to exercise her right within the time stipulated by the Law.
13.The 1st respondent/plaintiff got married 50 years back. Even during the life time of her father, she has not enjoyed the properties in joint possession. After the death of her father, even as per her case, he died 15 years back, she has not claimed any rights. Joint possession has also not proved, but, she has residing in a nearby place.
14.Separate Patta also stands in the name of the defendants, from the year 1985.
15.In the Judgment reported in C.A.No.1858 – 1859 of 2016 in the case of Nagabhushanammal (D) Vs. C.Chandikeswaralingam, the Hon'ble Supreme Court held as follows:
“4.Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam https://www.mhc.tn.gov.in/judis nec precario. [See Secretary of State for India V. 8 Debendra Lal Khan (1993) LR611A 78, 82]. The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. (See Radhamoni Debi V. Collector of Khulna (1900) LR 27 IA 136, 140]). But it is well-settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title the co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. (See Cores V. Appuhamy [(1912) AC 230)]. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. This does not necessarily mean that there must be an express demand by one and denial by the other. This Court in Vidya Devi V. Prem Prakash (7) held that : 28. Ouster does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it https://www.mhc.tn.gov.in/judis is coupled with all other ingredients required to 9 constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (I) declaration of hostile aimus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner.”
16.There is no oral and documentary evidence on the side of the 1st respondent/plaintiff to prove her possession and enjoyment of the suit schedule properties along with R-2 to R-4/D-1 to D-3. Beyond the statutory period, R-2 to R-4/D-1 to D-3 enjoyed the properties exclusion of the 1st respondent/plaintiff and hence, her rights were ousted.
17.Finally, this Appeal Suit is allowed by setting aside the Judgment and Decree, dated 29.12.2005 in O.S.No.248 of 2004 passed by the learned Additional District and Sessions Judge [Fast Track Court], Dindigul. No Costs.
Index :Yes/No 27.01.2022
Internet:Yes/No
ksa
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Note:In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the Advocate/litigant concerned. To The Additional District and Sessions Judge [Fast Track Court], Dindigul.
https://www.mhc.tn.gov.in/judis 11 S.ANANTHI, J.
ksa Order made in A.S.(MD).No. 139 of 2009 27.01.2022 https://www.mhc.tn.gov.in/judis