Madras High Court
(Through Video Conferencing) vs T.S.Usha ......1St on 27 June, 2022
Author: A.A.Nakkiran
Bench: A.A.Nakkiran
1 AS.No.986 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 04.02.2022
PRONOUNCED ON : 27..06.2022
CORAM:
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
AS.Nos.986 of 2014 and 33 of 2015
(Through Video Conferencing)
T.S.Sridhar .....Appellant
(in AS.986/2014)
Vs...
1. T.S.Usha ......1st Respondent
(In Both Appeals)
2. T.S.Ajay ....2nd Respondent
(in A.S.986/2014 and
Appellant-A.S.33/2015)
Prayer:- These Appeal Suits have been filed, under Order 41 Rule 1 read
with Section 96 of CPC, against the judgement and decree, dated
05.09.2014, made in O.S.No.5 of 2012, by the Principal District Court,
Krishnagiri.
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2 AS.No.986 of 2014
For Appellant : Mr.P.Mani
(In A.S.986/2014)
For Respondents : Mr.P.Satheeshkumar
(for Ms.Parimala-R1-AS.986/2014)
Mr.V.Nicholas
(for Karthikeyan-R2-AS.986/2014)
******
JUDGEMENT
These Appeal Suit have been filed, by the 2nd Defendant and the 1st Respondent, respectively, against the judgement and decree, dated 05.09.2014, made in OS.No.5 of 2012, by the Principal District Court, Krishnagiri.
2.The Plaintiff is the 1st Respondent in both the appeals. The Appellants are the Defendants 2 and 1 respectively. The suit was filed for partition of the suit A schedule properties into 9 equal shares and to allot one such share to the Plaintiff and to divide the suit "B" schedule properties into 3 equal shares and allot one such share to the plaintiff for separate possession of the same and also for declaration of the partition deed, dated 22.12.2003 entered into between the Defendants 1 and 2 in respect of 'B' 2/28 https://www.mhc.tn.gov.in/judis 3 AS.No.986 of 2014 schedule properties as null and void and not binding on the plaintiff and for permanent injunction restraining the defendants from alienating the suit properties or from creating any documents till legal partition is effected.
3.The case of the Plaintiff, in a nutshell, as set out, in the plaint is that the Plaintiff is the sister of the Defendants and they are the daughter and sons of late T.S.Subbraya Maniyagar. The suit 'A' schedule properties are the ancestral properties of T.S.Subbaraya Maniyagar and the suit 'B' schedule properties were purchased by him in 1945 wherein a Rice Mill has been installed for doing Rice Mill Business. He died on 17.04.1994 and his wife is also no more. Hence, being the legal heirs, the Plaintiff and the Defendants are entitled to 1/3 share each with respect to 'B' schedule property. The said Subbaraya Maniyagar and the Defendants each are entitled to 1/3 share in the A-Schedule properties. Thus, the Plaintiff is having 1/3rd share in his father's 1/3rd share i.e., 1/9th share in the 'A' schedule property and the Defendants each are entitled to 4/9 shares. The Defendants are managing the suit properties and used to provide the share of periodical profits to the Plaintiff for all these days and thus, they are deemed to be in joint possession of the same. In the month of November 3/28 https://www.mhc.tn.gov.in/judis 4 AS.No.986 of 2014 2010, when the Defendants admitted that they had created some gift deeds in favour of their wife and children with respect to the suit properties, the Plaintiff demanded for partition, but they postponed. On 27.12.2010, the Plaintiff came to know that the Defendants had created a bogus partition deed between them on 22.12.2003 in respect of the 'B' schedule properties without the consent of the plaintiff. Therefore, the Plaintiff demanded for partition repeatedly, but the Defendants wantonly postponed the same. Hence, 23.11.2011, the Plaintiff sent a legal notice, but the Defendants neither complied the legal notice nor sent any reply notice. Hence, the suit was filed, seeking the relief , as stated above.
4.The case of the 1st Defendant, in a nutshell, as set out in the written statement, is that she is not in joint family and she is ouster from the Defendant's family for the last 38 years. The 'A' schedule properties are the ancestral properties of their father. The suit 'B' schedule properties were purchased by the Subbaraya Maniyagar through the income derived from the suit 'A' schedule properties and except the agricultural work, the said Subbaraya Maniyagar did not do any business. So, both 'A' and 'B' schedule properties were the ancestral joint family properties of the Defendants and 4/28 https://www.mhc.tn.gov.in/judis 5 AS.No.986 of 2014 the same was admitted by the Plaintiff in her legal notice and she is also not at all a member of the joint family as per Hindu Succession Act 1956. Thus, she is not entitled to the benefits of the Hindu Succession (Amendment) Act. T.S.Subbaraya Maniyagar died on 17.04.1994 i.e., prior to the commencement of Amended Act. 39/2005. So, the Plaintiff cannot be a joint family member of the Defendants' family. It is true that, after the death of Subbaraya Maniyagar, the Plaintiff is entitled to 1/9 th share in the suit 'A' and 'B' schedule properties, but she has not demanded partition for all these 18 years. The Defendants alone are in joint possession of the suit properties and they are not paying any profit to the Plaintiff as alleged till 22.12.2003. The Defendants effected registered partition between themselves with the knowledge of the Plaintiff on 22.12.2003 and from that day, they are in separate possession of their respective shares and the Plaintiff cannot question the said partition deed, which had taken place before 20.12.2004 among the male members of Hindu Undivided Joint family and so, the female members cannot question the same. The suit for partition at this stage is barred by Limitation under Article 110 of Limitation Act. The Defendants executed gift deeds in favour of their wife and children with the knowledge of the Plaintiff only. The 1st Defendant executed two gift deeds 5/28 https://www.mhc.tn.gov.in/judis 6 AS.No.986 of 2014 in favour of T.S.Amsalakshmi and T.S.A.Ashok Chakravarthi on 12.12.2008. Further, subsequent to the partition, the 1st Defendant had constructed a new house in his share in S.No.496/61 with the knowledge of Plaintiff. The Plaintiff has not demanded any partition, but she sent a legal notice on 23.11.2011. There is no cause of action and the Plaintiff is not entitled to any of the reliefs prayed for and so, the suit is liable to be dismissed.
5. The case of the 2nd Defendant, in a nutshell, as set out in the written statement, is that the 2nd Defendant adopted some of the averments of the written statement filed by the 1st Defendant. The 'A' schedule properties are the ancestral properties of the father of Defendants and Plaintiff viz., Subbaraya Maniyagar. The 'B' schedule properties were purchased by him by selling the house and some of the ancestral lands at Thimmapuram and so, the 'B' schedule properties were the joint family properties of T.S.Subbaraya Maniyagar and the Defendants. The Plaintiff also admitted the same in her legal notice dated 23.11.2011 and thus, the Plaintiff is entitled to 1/9 share in the entire suit properties 'A' and 'B', but she lost the same on account of ouster and adverse possession of the 6/28 https://www.mhc.tn.gov.in/judis 7 AS.No.986 of 2014 Defendants. The 'A' schedule suit properties have been in possession and enjoyment of third parties, who claim title to 'A' schedule suit lands since the year 1980. The Defendants did not include the same in the partition deed, dated 22.12.2003 with an understanding that the 'A' schedule suit properties can be partitioned at a later point of time. The 2nd Defendant executed a registered gift deed in favour of his wife on 17.04.2008 and the same was cancelled on 03.02.2010 by executing a registered deed of cancellation of the gift deed. The Plaintiff has not demanded partition and she only issued a legal notice on 23.11.2011. The Plaintiff has not valued the suit properly. As the Plaintiff is out of possession of the suit properties, she should have valued the suit under Section 37(1) of Tamil Nadu Court Fees Act and paid huge court fees in respect of the 'B' schedule suit property. So, the Plaintiff is to be directed to pay court fees of Rs.1,50,000/- in respect of her alleged 1/3 share in the 'B' schedule property. The 2nd Defendant had made vast improvements in the portion allotted to his share. He raised loan amount to the tune of Rs.5,00,000/- from Indian Bank, Kaveripattinam and spent the same for expansion of the Rice Mill and he also spent more than Rs.30,00,000/- for expansion of the Rice Mill. He is paying building tax, house tax, etc., in respect of his shares. Even if the 7/28 https://www.mhc.tn.gov.in/judis 8 AS.No.986 of 2014 Plaintiff is able to prove her right to partition of her 1/9 share in the suit properties, still the 2nd Defendant is entitled to claim equities in respect of the improvements made by him to the tune of Rs.35,00,000/-. There is no cause of action. Hence, the suit is liable to be dismissed with cost.
6. Based on the pleadings of the parties, the following issues were framed by the Trial Court:-
1. Whether, the 'B' schedule properties is the self acquired properties of the father of the Plaintiff and the Defendants?
2. Whether the suit is barred by Limitation?
3. Whether the right of the Plaintiff having 1/9 share is barred by the plea of ouster?
4. Whether the Plaintiff is entitled to get 1/9 share in 'A' schedule properties and 1/3 share in 'B' schedule properties?
5. Whether, the Plaintiff is entitled to get the decree of declaration that the partition deed dated 22.12.2003 is not valid?
6. Whether the Plaintiff is entitled to get the relief of permanent injunction as prayed for?
7. To what other reliefs, the Plaintiff is entitle to?8/28
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7. Before the Trial Court, on the side of the Plaintiff, Ex.A1 to Ex.A6 were marked and PW.1 was examined. On the side of the Defendants, Ex.B1 to Ex.B12 were marked and DW.1 and DW.2 were examined. The Trial Court had decreed the suit in favour of the plaintiff. Aggrieved against the same, these Appeal Suits have been filed by the Defendants 2 and 1 respectively.
8. The learned Counsel for both the appellants would submit that the 1st respondent being the plaintiff filed the suit in O.S. No.5 of 2012 before the Principal District Court, Krishnagiri, for partition and separate possession. She claimed 1/9th share in "A" Schedule property as it is Ancestral property and 1/3rd in "B" schedule property as it is self acquired property of her father. As the plaintiff/1st respondent herein got married in the year 1974, she cannot claim her share as per 1/90 of amended Hindu Succession Act and their father died in the 1994, the plaintiff/1st respondent herein cannot be a co-sharer as per Act 39/2005.
9. It has been further submitted by the learned counsel for the appellants that the plaintiff/1st respondent herein got certain properties in 9/28 https://www.mhc.tn.gov.in/judis 10 AS.No.986 of 2014 the Partition Deed dated 17.11.1976 and she has not filed any document to prove that the share of income from the suit properties was given by the appellants. The 1st respondent has lost her share by principal of ouster and adverse possession of the appellants.
10. The learned counsel for the appellants would submit that in the year 2003 itself, both the appellants partitioned the Ancestral Joint Family Property. After that they are in possession and enjoyment of the same for the past 18 years. During that time, she never claimed any partition in the suit properties. So, the suit is barred by limitation under Article 110 of Limitation Act. After ouster of the plaintiff/1st respondent herein, they got right by adverse possession. After the demise of their father in the year 1994, the 1st respondent never claimed any partition in the suit A and B Schedule properties. Ex.P4-Patta also stands in the name of one of the appellant namely Mr. T.S. Sridar. The appellants are enjoying the properties excluding her. The plaintiff/1st respondent herein has filed the suit without considering the Revenue records stands in the name of one of the appellant.
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11. The learned counsel appearing for both appellants has relied on the decisions in the case "D.V. Jaganathan And Five Others vs P.R. Srinivasan And Five Others" reported in 1999(III) CTC 263 wherein it has been observed as follows:
"30. Though the burden of proving ouster and adverse possession is on the parties who plead so, it is also necessary to consider as to whether there is any evidence on the side of the plaintiffs to dispute or to discredit the evidence on the side of the first defendant."
12. The learned counsel has further relied on the following decisions in the case "Lakshmiammal Vs. C.P. Nanjappan" reported in 2000(III) CTC 29 wherein it has been held as follows:
14. The finding regarding adverse possession by the appellate Court is further more dismal and shocking. It is true that in the case of claim of adverse possession as against co-
owner ouster has to be pleaded and specific and clear evidence has to be let in and the co-owner in possession has to prove his exclusive possession and title to the knowledge of the other co-owners.
16. All the above mentioned decisions undoubtedly lay down the following well accepted propositions:-
(a) There should be a pleading of ouster and it would not be 11/28 https://www.mhc.tn.gov.in/judis 12 AS.No.986 of 2014 sufficient to show that one co-owner was in separate possession of the property and another co-owner was out of possession.
(b) The possession should be open with assertion of hostile title and to the knowledge of the co-owner.
(c) Adverse possession will commence only from the the date of ouster..
(d) The single circumstance of either mutation of records, or payment of taxes, non-participation in the rents or in management of the properties, appro-priation of income etc., each of these facts will not by itself establish ouster or adverse, possession as against co-owner. But the cumulative effect of the circumstances have to be properly weighed.
17. I had occasion to deal with a similar issue, and recently reported in Jaganathan & 5 others v.
P.R.Srinivasan & 5 others, . In that case, one of the issues which arose for consideration was as to whether mutation of revenue records or payment of taxes etc. would be a conclusive proof of ouster and adverse possession. After referring to various decisions, I have held that mutation of revenue records, payment of taxes, long possession of properties, management of the property, appropriation of the income, the other sharers being out of possession of the property etc., each of such act by a co-owner by itself may not be sufficient to 12/28 https://www.mhc.tn.gov.in/judis 13 AS.No.986 of 2014 establish ouster or open assertion of adverse title as against another co-owner, but if most of these features are present the cumulative effect of the various pieces of evidence should ultimately weigh in rendering the verdict.
18. In the present case, defendants 1 to 3 have pleaded ouster. In paragraph No.7 of the written statement, it was contended that Dasai Gowder was in possession of the property eversince 1948 in his own right to the exclusion of the plaintiff and Ponniah Rajan to their knowledge. It has to be seen as to whether the defendants have let in proper evidence or not to prove such ouster and adverse possession.
19. In the present case, according to learned Senior counsel for the appellants, the following circumstances clearly indicate ouster and adverse possession.
(i) Mutation of Municipal and Revenue records.
(ii) Payment of property tax and water tax at least from 1958.
(iii) Subsequent dealing of the property by partition in the family of Dasai Gowder by including the suit property.
(iv) The property included in the Wealth Tax assessment and Urban Land Tax assessment of Dasai Gowder.
(v) The property let out for tenants and rents collected by 13/28 https://www.mhc.tn.gov.in/judis 14 AS.No.986 of 2014 Dasai Gowder.
(vi) In spite of long-standing enmity between the parties, no objection was raised either by the plaintiff or defendants 4 and 5 about Dasai Gowder's possession and enjoyment or the mutation of the revenue records.
There was also no expression or assertion of any right to any share in the income of the property at any time. In fact, Dasai Gowder died in the year 1976 and the suit was filed in the year 1981.
vii) The plaintiff's admission that the property has not been shown either in his Wealth Tax assessment or Urban Land Tax return.
13. On contrary, the learned counsel for the 1st respondent would submit that Late T.S. Subbaraya Maniyagar has one daughter namely plaintiff and two sons who are the appellants herein. After the demise of her father in the year 1994, the share of the properties has to be divided among his daughter and sons. Further, the properties that are covered under the Partition Deed dated 12.11.1976, (Ex.B1) have nothing to do with the suit properties. Without the knowledge of the plaintiff/1 st respondent herein, the defendants/appellants herein have divided the properties between themselves on 22.12.2003. Hence, the 1st respondent/plaintiff challenged 14/28 https://www.mhc.tn.gov.in/judis 15 AS.No.986 of 2014 the same before the Trial Court. After perusal of oral and documentary evidence, the Trial Court came to proper conclusion and rightly granted the relief to the plaintiff/1st respondent herein and accordingly the suit was decreed as prayed for. Hence, the present First Appeal is not sustainable in law and on facts. Hence, the same is liable to be dismissed.
14. The learned counsel for the 1st respondent has relied on the the Judgment in the case "P.Subramanian @ Subbiah vs M.Manohar" in S.A.(MD) No.168 of 2020 passed by this Court on 01.03.2021 wherein it has been observed as follows:
"8.The ingredients of ouster are very well settled. Mere proof of non enjoyment of the property would not result in ouster. The parties, being co- owners better proof is required to show exclusive enjoyment and assertion of hostile title to the knowledge of other co-owner. Unless the same is established, I do not think that it can be said that a co-owner has ousted the other co-owner from the enjoyment of the property, so that he can prevent the other co-owner from claiming a share over the property. "
15. The learned counsel for the 1st respondent has further relied on the case in K.Sankarammal vs S.Karuppi in S.A. (MD) No.672 of 2003 15/28 https://www.mhc.tn.gov.in/judis 16 AS.No.986 of 2014 passed by this Court on 02.07.2021 wherein it has been held as follows:
......
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 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.
16/28 https://www.mhc.tn.gov.in/judis 17 AS.No.986 of 2014 (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.”
16. The learned counsel for the 1st respondent has relied on the Judgment in the case "Mariammal vs Muthukumara Thevar(Died)" in S.A.(MD) No.649 of 2012 passed by this Court on 24.08.2021 wherein it has been observed as follows:
10.....the Court has to be very careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained and not otherwise. The Hon'ble Apex Court reiterated that the plea of 17/28 https://www.mhc.tn.gov.in/judis 18 AS.No.986 of 2014 oral partition without any contemporaneous public document needs rejection at all costs. It can be accepted only in exceptionally good cases, where partition is proved conclusively. Applying the aforesaid ratio, I hold that the defence of oral partition projected by the defendants has not at all been established. Merely because the defendants have been enjoying the suit properties, that would not mean that the plaintiffs' rights stood extinguished. The Hon'ble Supreme Court has again and again held that if the possession of the property is with one co-sharer, it is deemed to be on behalf of https://www.mhc.tn.gov.in/judis/ 8 S.A.(MD)NO.649 OF 2012 the other co-sharers also. It has also been held that reflection of the name of one co-sharer in the revenue records would not amount to ouster."
17. In this case P.W.1 deposed that the defendants are brothers. "A" schedule property is the ancestral property of her father and "B" schedule property is self acquired property of her father. Therefore, the defendants are each entitled to 1/3rd share and she is entitled to 1/3rd share of the property. She is entitled to 1/3rd share of B schedule property since it is self acquired property of her father and 1/9th share in the A schedule property since it is ancestral property of her father which devolved upon between the defendants and plaintiff. She further states that she only 18/28 https://www.mhc.tn.gov.in/judis 19 AS.No.986 of 2014 allowed the defendants to manage the properties and the defendants are giving the benefit arrived from the suit properties. She further stated that in the year 2010, she came to know that the defendants have created some documents with regard to the suit properties in their children and wife favour respectively. On 27.12.2010, she verified in the Sub-Registrar Officer concerned and later she learned on 22.12.2003, the defendants have executed a partition Deed dated 22.12.2003 among themselves. Hence, she demanded the partition in the suit properties. As the defendants have refused to effect the partition as sought for, she sent a legal notice dated 23.11.2011. But, they neither complied with the notice nor sent any reply.
18. In this case, D.W.1 deposed that the A & B schedule properties are ancestral properties. The plaintiff has been provided with the cash Jewels and lands more than enough. Therefore, she has not demanded for partition for the past 19 years after demise of their father since no necessity arises to the plaintiff to claim her share.
19.It has been further stated that the plaintiff/1st respondent herein got married 39 years back and she had been given a share of 6-1/2 acres of 19/28 https://www.mhc.tn.gov.in/judis 20 AS.No.986 of 2014 land in the ancestral property at Thimmapuram by way of partition deed dated 17.11.1976. He further stated that with the knowledge of the plaintiff, myself, my brother are enjoying the said suit properties. Further he deposed that as per advise of the plaintiff, my self and the 2nd defendant partitioned the suit on 22.12.2020. After that I constructed the House in the B Schedule property and enjoying it as a separate property. It has been further stated that he has given his share in the "B" schedule property to her children 5 years ago by way of Gift Deed. After demise of her father myself and 2nd defendant are enjoying the properties and divided the properties under partition deed in the year 2003. With the knowledge of the plaintiff, the defendants are enjoying the suit properties, however, with the instigation of others, the plaintiff demanded the partition in the suit properties. As far as "A" Schedule property is concerned, as it has been given to poor agriculturist cultivating the land by his Father, we do not have any title and right and interest in the aforesaid property. The suit filed by the plaintiff is for barred by limitation.
20. In this case, D.W.2 deposed that by birth, the defendants and their father got 1/3rd share each in “A” Schedule properties. The plaintiff 20/28 https://www.mhc.tn.gov.in/judis 21 AS.No.986 of 2014 got married in the year 1974. So, she is not entitled to any share as a coparcener as per the State Act, 1/1990 and Central Act 39/2005. He further stated that B schedule property are belonging to the defendants and their father alone. Therefore, they got 1/3rd share each. He further stated that his father sold the ancestral property and from that income, his father purchased "B" schedule property. Therefore, "B" schedule properties are not self acquired property of his father. The plaintiff lost her share by the principal of Ouster. The defendants have their share by adverse possession also. He further stated that they are in continuously possession and enjoyment of the same for more than 12 years. It is false to state that the plaintiff known about the partition between defendants only during the month of November in the year 2010. It is also false to state that the plaintiff questioned the partition deed executed between defendants.
21.He further stated that as for as "B" schedule property is concerned, by way of Registered partition deed dated 22.12.2003, "B" Schedule properties were divided between them. After the partition Deed respective shares in the "B" schedule property was enjoyed by them with the knowledge of the plaintiff. It is true that he executed a gift deed in favour of 21/28 https://www.mhc.tn.gov.in/judis 22 AS.No.986 of 2014 his wife name on 03.02.2010. Later, he cancelled the same. While the plaintiff never demanded the partition in the suit properties, she sent a legal notice on 23.11.2011. Hence, the defendants did not choose to send any reply notice. The suit is barred by limitation.
22. Heard the learned counsel for both the appellants and the learned counsel for the 1st respondent.
23. On a perusal of the records, it is not in dispute that, the plaintiff is the sister of the defendants and they are the daughter and sons of late T.S. Subbaraya Maniyagar. It is also not in dispute that, the suit “A” Schedule properties are ancestral properties of the father of the parties viz. T.S. Subbaraya Maniyagar. Though, the plaintiff in her plaint has specifically stated that, “B” schedule property is the self acquired property of her father Subbaraya Maniyagar from his income in business, the plaintiff admitted in the written argument submitted by her that “B” schedule property is also an ancestral property. It is also not in dispute that, the father of the parties Subbarya Maniyagar died in the year 1994. The plaintiff has got married in the year 1974.
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24. The contention of the defendants is that the plaintiff got married in the year 1974 by receiving ornaments of diamond, Gold and Silver and 6.5 acres of land by registered partition deed and also she got the property from their father purchased in her name. So, she has no right, title and interest to claim partition in the suit properties and as she is not a coparcener, she cannot claim any shares.
25. On a perusal of P.W.1 deposition in her cross examination, it reveals that certain properties were partitioned between the plaintiff and the defendants.
“P.W.1 deposed in her cross examination that “17.11.1976- e; njjp ehDk; vd;Dila ,uz;L jk;gpfSk; nrh;e;J vd; ghl;o bfhLj;j epyj;ij ghfg;gpuptpid bra;Jb; fhz;nlhk;/” and in the deposition of D.W.1, the 1st defendant deposed in his cross examination that “j';fKj;jk;khs; bfhLj;j brhj;Jf;fis ghfgphptpidapy; bfhLj;Js;s brhj;Jf;fs; ,e;j tHf;fpy; ,y;iy/” //////// j';fKj;jk;khs; jhdkhf bfhLj;j brhj;jpy; 6?1-2 Vf;fh; bfhLj;Js;sjhf jtwhf brhy;fpnwd; vd;Wk;/ 5 Vf;fu; 47 brd;l; jhd; vd;why; Rkhuhf 6?1-2 Vf;fh; vd;W brhy;ypa[sn; sd;/” 23/28 https://www.mhc.tn.gov.in/judis 24 AS.No.986 of 2014
26. Further, in the deposition of D.W.2, the 2nd defendant deposed that “on 12.11.1976-e; njjpapy; xU ghfg;gpuptpid Vw;gLj;jpf;bfhz;nlhk; vd;Wk; me;j brhj;J v';fs; Juj;J brhe;jkhd j';fKj;jk;khSf;F ghj;jpag;gl;l brhj;J vd;W brhd;dhy; rupjhd;/” In view of the aforesaid deposition, it is clearly proves that the share already allotted to the plaintiff is not their father of the property.
27. In this case, a perusal of Ex.A5, it is mentioned that “A” kw;Wk; “ B;” brl;a{y; brhj;Jf;fs; ,e;J Tl;Lf; FLk;g bghJ brhj;Jf;fshf ,Ue;J tUfpwJ/ Further, D.W.2 deposed in his cross examination that tHf;Fiu m kw;Wk; M gl;oif brhj;Jf;fs; midj;Jk; vd; jfg;gdhhpd; Tl;Lf; FLk;g brhj;Jf;fshfj;jhd; ,Ue;J te;jJ/ So, it is proved that the suit properties are ancestral properties of Hindu Undivided Joint Family Property. At the same time, D.W.1 in his cross examination has stated as below:
“tHf;Fiu brhj;jpy; m gl;oif brhj;J gpJuh$;$pj brhj;J vd;Wk; gp gl;oif vd; jfg;gdhUf;F Rauh$$pjkha; ghj;jpag;gl;l brhj;J vd;why; midj;J brhj;JfSnk gpJuh$;$pj brhj;Jf;fs;jhd;/” In this case, the defendants stated 24/28 https://www.mhc.tn.gov.in/judis 25 AS.No.986 of 2014 that both A schedule and B Schedule properties are ancestral Joint Family Property.
28. It is also to be noted from the deposition of D.W.2 who deposed in his chief examination that “Rg;guha kzpafhu; 17.04.1994-y; ,we;J tpll; hu; vd;gJ rupjhd;/ rl;lg;go jhth A brl;a{y; brhj;Jf;fspy; mtUf;F ghj;jpag;gl;oUe;j 1/-3 g';if mtUila thhpRFfshd thjpa[k; gpujpthjpfshd eh';;fSk; mile;njhk;/ me;j tifapy; jhth A brl;a{y; brhj;Jf;fs; kw;Wk; B brl;a{y; brhj;Jf;fspy; thjp 1-9 g';F kl;Lnk bgw;whu; vdf;Fk; vd; mz;zDf;Fk; jyh 4-9 g';F fpilj;jJ/ Mdhy; rl;lgo thjp bgw;w me;j 1-9 g';ifa[k; mth; Ouster mog;gilapy; ,He;Jtpl;lhu; vd;gJ kwf;f Koahj r';fjpahFk;/”.So, it is admitted by him that the plaintiff is entitled to share in the property.
29. Further, he deposed in his chief examination that “1994-tUlk; nk khjj;jpypUe;nj thjpaplk; ehDk; vd; mz;zDk; jhth brhj;jf;fspy; thjpf;F g';F fpilahbjd;W Twp te;njhk;. nkYk; jhth brhj;jf;fis vd; je;ij ,we;j gpd;g[ ehDk; vd; mz;zDk; kl;Lk; RthjPdk; mile;J mDgtpj;J te;njhk;. thjpia eh';fs; mDgtpf;f tpltpy;iy. thjpa[k; v';fSld; jhth brhj;Jf;fis 25/28 https://www.mhc.tn.gov.in/judis 26 AS.No.986 of 2014 Tl;lhf vf;fhyj;jpYk; mDgtpjj; J fpilahJ/” Hence, the plea of the ouster cannot be raised against the co-sharer. There is no clear evidence to show that the defendants perfected the title over the property by way of adverse possession. In this case, the defendants have failed to prove the case.
30. Further, D.W.2 deposed in his cross examination that “mg;gh fhupaj;jpd; nghJ brhj;jpy; g';F nfl;lhh; fpilahJ vd;W brhy;yptpln; lhk;/”Hence, it is clearly proved that the plaintiff has claimed her share by way of the partition in the suit "A" and "B" schedule properties but only the defendants have refused to give her share.
31. In view of the above, the Lower Court after perusal of the records and oral and documentary evidence came to the proper conclusion holding that the plaintiff is entitled to get 1/9 share in the A & B Schedule suit properties and the suit is decreed as far as the relief of Declaration and Permanent Injunction as prayed for. Hence, no interference is warranted against the Judgement and Decree dated 05.09.2014 passed by the Lower Court. Therefore, these Appeals filed by the defendants are liable to be dismissed.
26/28 https://www.mhc.tn.gov.in/judis 27 AS.No.986 of 2014
32. In the result, these appeals are dismissed. No costs.
27.06.2022 Index:Yes/No Web:Yes/No Speaking/Non Speaking Lbm To
1. The Principal District Court, Krishnagiri
2. The Record Keeper, VR Section, Madras High Court 27/28 https://www.mhc.tn.gov.in/judis 28 AS.No.986 of 2014 A.A.NAKKIRAN, J.
Lbm Pre-Delivery Judgement in AS.Nos.986 of 2014 and 33 of 2015 27.06.2022 28/28 https://www.mhc.tn.gov.in/judis