Rajalakshmi Ammal (Died) vs Navamani (Died) on 9 March, 2011

[Cites 19, Cited by 0]

Madras High Court

Rajalakshmi Ammal (Died) vs Navamani (Died) on 9 March, 2011

Author: R.Mala

Bench: R.Mala

       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:  09-03-2011

CORAM:

THE HONOURABLE MS.JUSTICE R.MALA

Appeal Suit (First Appeal) No.207 of 2010
& M.P.Nos.1 of 2010 and 1 of 2011

1. Rajalakshmi Ammal (died)
2. Rajaraman
3. Jayachandran
4. Mythili
5. K.Geetha 					            .. Appellants/defendants
Vs.
1. Navamani (died)
2. Ramachandran
3. Balachandran
4. Chandrasekaran
5. Malarvizhi  					  .. Respondents/plaintiffs
	Appeal Suit (First Appeal) against the judgment and decree dated 27.6.2008 in O.S.No.32 of 2004 on the file of the Principal District Court, Villupuram District, Villupuram.
		For appellants  : Mr.T.Sathiamoorthy
		For respondents: R-1 died
				       Mr.N.Suresh for RR-2 to 5
JUDGMENT

The First Appeal is filed against the judgment and decree dated 27.6.2008 in O.S.No.32 of 2004 on the file of the Principal District Court, Villupuram District, Villupuram.

2. The averments in the plaint are as follows:

(a) The first plaintiff is the second wife of T.N.Venkatapathi Reddiyar and out of the lawful wedlock, three sons and a daughter were born to them and they are the plaintiffs 2 to 4 and the fifth plaintiff. The first defendant is the first wife of the deceased Venkatapathi Reddiyar and the defendants 2 and 3 are their sons and the fourth defendant is their daughter. The fifth defendant-Malarvizhi, is the daughter of pre-deceased daughter of Rajalakshmi and Venkatapathi Reddiar, i.e. one Sarojini Ammal and the fifth defendant succeeded to her estate. The said Venkatapathy Reddiar died on 11.9.1966, leaving behind the plaintiffs and the defendants to succeed to the estate. Both the branches are entitled to equal half share in the properties.

(b) After the death of the said Venkatapathy Reddiar, the dispute arose between the parties. The defendants filed a suit for declaration of title of A schedule properties herein, as if the entire properties belong to them, i.e. in O.S.No.94 of 1975 on the file of the Subordinate Judge's Court, Cuddalore. After contest, the trial Court granted decree in favour of the plaintiffs, subject to some rights of the plaintiffs 2 to 5 herein. Against the said decree, the plaintiffs and the defendants have filed separate First Appeals, in A.S.No.112 of 1978 and A.S.No.127 of 1978 on the file of the District Court, Cuddalore. The First Appeals filed by the defendants in A.S.No.112 of 1978 was dismissed and the First Appeal filed by the plaintiffs in A.S.No.127 of 1978 was allowed, against which, the defendants herein filed Second Appeal in S.A.No.1310 of 1981 before this Court, which was dismissed, holding that the marriage between the first plaintiff and the deceased Venkatapathy Reddiar is valid and the children born to them, namely the plaintiffs 2 to 5 are born through a valid marriage. In paragraph 39 of the judgment, this Court observed that, "the defendants are held to be legally entitled to share in the joint family properties and the plaintiffs (defendants herein) are not entitled to claim either the declaration of their exclusive title or the relief of injunction. The plaintiffs and defendants are jointly entitled to the suit properties and other properties of the family."

(c) The suit properties are described in the plaint as Items 1 to 11 in A schedule properties, Items 1 to 3 in B schedule properties and other properties of the joint family of the plaintiffs and defendants. The plaintiffs are entitled to half share in the properties.

(d) If the defendants are not able to deliver half share in B schedule properties, they should be liable in the value of half of B schedule properties. In item-11 of A schedule properties, there was a big mango grove, containing 50 mango trees not less than 35 years. The defendants herein without any manner of right, cut and carried away the trees worth not less than Rs.1 lakh and so, the plaintiffs are entitled to get Rs.50,000/- towards their half share on the same and the same is described as C schedule properties.

(e) The Second Appeal in S.A.No.1310 of 1981 was filed by the defendants, in which the plaintiffs obtained an order of injunction in C.M.P.No.1943 of 1981 in S.A.No.1310 of 1981. They have filed a petition to vacate the interim order of injunction, and in that application, the defendants herein gave an undertaking before the High Court that they would not cut the trees, in C.M.P.No.3926 of 1985. Inspite of the said undertaking given by the defendants, they have cut and carried away the trees through one Pattusamy Mudaliar, who also filed O.S.No.283 of 1985 on the file of the District Munsif Court, Villupuram, which was dismissed, against which, First Appeal was filed, which was also dismissed.

(f) The plaintiffs herein issued notice on 25.2.2000, claiming partition of half share in the suit properties. The defendants have given reply on 15.4.2000, containing false allegations. Hence, the plaintiffs were constrained to file the present suit for partition and separate possession of half share in A, B and C schedule properties and to direct the defendants to pay mesne profits and for costs.

3. The gist and essence of the written statement filed by the second defendant, adopted by other defendants, are as follows:

(a) The first plaintiff was only concubine of Venkatapathy Reddiar. The plaintiffs 2 to 5 are their illegitimate children. The plaintiffs and the defendants did not constitute a Hindu joint family and the plaintiffs were not in joint possession of the suit properties.

(b) Venkatapathy Reddiar, out of his infatuation towards the first plaintiff, transferred more than 7 acres of his valuable ancestral wet lands and also a tiled house, under several sale deeds without receiving any consideration for maintaining her and her children till his lifetime. The transfers made in favour of the first plaintiff are nominal and were not intended to clothe the first plaintiff with any title to the properties.

(c) The first defendant being a rustic woman with little education, was completely dependant upon her husband Venkatapathy Reddiar and hence, she could not resist the pressure and compulsion of her husband to execute the signed sale deed in favour of the first plaintiff in respect of the tiled house, which is her Sridhana property got from her parents. The plaintiffs are enjoying the above mentioned properties. Venkatapathy Reddiar died on 11.9.1966. The defendants have openly denied their claim on the alleged right of the plaintiffs in the share of the properties and have asserted their own hostile adverse title to the properties of Venkatapathy Reddiar to the full knowledge of the plaintiffs.

(d) Even in prior litigations and connected appeals, the defendants have openly denied the status of the plaintiffs and claimed title and have asserted their own legal and absolute title to the properties in question. The suit is barred by limitation. They have to file the suit within 12 years from 11.9.1966 when Venkatapathy Reddiar died and succession was open. The suit is barred by limitation and by adverse possession against the ouster of the plaintiffs by the defendants who have been in open and uninterrupted and continuous possession and enjoyment of the properties in overt assertion of their own hostile title as against the plaintiffs eversince 11.9.1966.

(e) The pendency of the previous litigation will not have any legal effect of arresting the running of time against the plaintiffs and will not interrupt the adverse possession and ouster by the defendants as against the plaintiffs. The judgment of this Court will not give rise to any fresh cause of action and will not revive the still-born claim of the plaintiffs after 33 long years and more when the defendants have been in exclusive possession and enjoyment of the suit properties in their own right.

(f) The properties mentioned in C schedule, i.e. the mango grove and the mango trees were planted and reared by Pattusamy Mudaliar, who sold away the standing trees to one Narayanasamy Gounder of Kadathur for Rs.6,000/- under the sale deed dated 18.3.1985. Immediately, after the said purchase, Narayanasamy Gounder felled down the trees and took away the same. The defendants had nothing to do with the drawing or rearing of the mango trees. The said Pattusamy is not the proxy of the defendants. The defendants never cut and carried away all those trees. The plaintiffs' claim of Rs.50,000/- as damages/compensation, is untenable. If the plaintiffs have any subsisting right in respect of the mango grove, they should work out their remedy if any, against the said Pattusamy Mudaliar, the mortgagee and his vendee Narayanasamy Gounder who cut and carried away those trees even as early as in 1985. It is also time barred.

(g) The third defendant and his junior paternal uncles who are all the 11 co-sharers of the vacant site in R.S.Nos.614, 616 and 646/6, jointly sold away the said site to a third party and it is the said purchaser who formed out the house plots and disposed of them to third parties. The defendants have nothing to do with the formation of the house plots or with the different sales thereof. The plaintiffs should work out their remedy if any, against the paternal uncles of the second and third defendants. Their vendees and their successor-in-interest are necessary parties and hence, the suit is bad for non-joinder of necessary parties .

(h) All the properties are not included in the present plaint and so, the suit is bad for partial partition. During the lifetime of Venkatapathy Reddiar, he incurred several debts to the tune of Rs.67,000/- during his lifetime for his lavish spending for the plaintiffs and for meeting the frequent demands of the first plaintiff, who robbed him of his monies and properties.

(i) The deceased Venkatapathy Reddiar executed the 'bogiyam deed' in favour of Pattusamy and he also borrowed money on promissory notes, and also the hand loan from Munusamy of Melakondai. The second and third defendants alone discharged those debts after the lifetime of Venkatapathy Reddiar. If at all, the plaintiffs are entitled to half share in the properties in question, as wrongly claimed by them, they are also bound to c contribute the share of the liabilities as detailed above.

(j) The Court fee paid is not correct. The plaintiffs are not entitled to any share in the properties. The suit ought to have been valued under Section 37(1) of the Tamil Nadu Court Fees and Suits Valuation Act and not under Section 37(2) of the Act. The suit is barred by limitation and the defendants prayed for dismissal of the suit with exemplary costs of Rs.5,000/-.

4. The trial Court, after considering the averments in the plaint and in the written statement, and after hearing the arguments of both the counsel, framed six issues for consideration and after considering the oral evidence of P.W.1 and D.Ws.1 to 6 and the documentary evidence of Exs.A-1 to A-14 and Exs.B-1 to B-57, granted preliminary decree of partition, i.e. half share in A and B schedule properties and Rs.50,000/- as compensation in respect of C schedule properties and with costs, and the plaintiffs were directed to file separate petition under Order 20 Rule 18 CPC regarding future mesne profits. Challenging the judgment and decree of the trial Court, the defendants 2 to 5 have come forward with the present First Appeal.

5. After hearing the arguments of both sides, this Court frames the following points for determination in this First Appeal:

(i) Whether the trial Court is correct in rejecting the plea of the appellants/defendants 2 to 5 that they have prescribed title by adverse possession by ouster ?

(ii) Whether the suit is barred by limitation ?

(iii) Whether the suit is bad for partial partition ?

(iv) Whether B schedule properties are available for partition ?

(v) Whether the trial Court is correct in awarding Rs.50,000/- as damages/compensation as claimed in C schedule ?

(vi) Whether the trial Court is correct in rejecting the debts borrowed by Venkatapathy Reddiar ?

(vii) Whether the Court Fee paid under Section 37(2) of the Tamil Nadu Court Fees and Suits Valuation Act, is correct ?

(viii) Whether the judgment and decree of the trial Court are sustainable ? and

(ix) To what relief the appellants/defendants 2 to 5 are entitled to ?

6. The appellants/defendants 2 to 5 and the respondents/plaintiffs 2 to 5, are the legal heirs of the deceased Venkatapathy Reddiar. The appellants/defendants 2 to 5 are the children born through the first wife of the deceased Venkatapathy Reddiar, namely Rajalakshmi Ammal (deceased first defendant) and the respondents/plaintiffs 2 to 5 are the children born through the second wife of the deceased Venkatapathy Reddiar, namely Navamani (deceased first plaintiff). The properties are ancestral properties of Venkatapathy Reddiar. The appellants/defendants 2 to 5, disputed the status of the respondents/plaintiff 2 to 5. In the Second Appeal judgment, as per Ex.A-4, dated 5.12.1990 in S.A.No.1310 of 1981, the legal status of the respondents/plaintiffs 2 to 5 was declared by this Court and so, immediately they filed the present suit for partition. The trial Court decreed the suit as prayed for, against which, the present First Appeal has been preferred by the defendants 2 to 5.

7. Learned counsel appearing for the appellants/defendants 2 to 5 submitted that the appellants have prescribed title by adverse possession by ouster. In Ex.B-48, dated 4.11.1974, the respondents/plaintiffs 2 to 5 demanded partition and half share in the suit properties and reply had been issued under Ex.B-49 on 12.11.1974. Subsequently, the suit had been filed and so, the respondents/plaintiffs 2 to 5 were out of possession even as per the admission made on 4.11.1974. The present suit was filed on 4.9.2000 and so, the defendants have prescribed title by adverse possession by ouster.

8. Another limb of argument advanced by learned counsel appearing for the appellants/defendants 2 to 5 is that the properties were purchased in the name of the deceased first plaintiff Navamani and she has purchased some properties under Ex.B-3, dated 4.4.1958, Ex.B-6 dated 6.1.1958 and Ex.B-7 dated 29.1.1959. These properties were not included and it was also the joint family properties and hence, the suit is bad for partial partition.

9. Learned counsel for the appellants/defendants 2 to 5 further submitted that the respondents/plaintiffs 2 to 5 valued the properties and paid the Court Fees as per Section 37(2) of the Tamil Nadu Court Fees and Suits Valuation Act and admittedly, as per the version under Ex.B-48, dated 4.11.1974, the plaintiffs are out of possession and so, the plaintiffs ought to have valued the suit under Section 37(1) of the said Act.

10. The learned counsel appearing for the appellants/defendants 2 to 5 further stated that B schedule properties do not belong to Venkatapathy Reddiar alone and they are joint family properties of the deceased Venkatapathy Reddiar and his cousin and so they have been given power to plot out the properties and sell the same to different persons and to the cousins, and the junior paternal uncle of the appellants/defendants 2 to 5 were not impleaded as parties and so, the respondents/plaintiffs 2 to 5 are not entitled to any share in the properties.

11. Learned counsel appearing for the appellants/defendants 2 to 5 further submitted that C schedule properties are claimed by way of damages for cutting and carrying away 52 mango trees in Item 11 of A schedule properties and it was planted by one Pattusamy who filed the suit earlier and so, the amount claimed is very excessive. The trial Court has not considered this factum.

12. Relying on the said contentions, learned counsel appearing for the appellants/defendants 2 to 5 prayed for allowing the First Appeal and dismissing the suit. To substantiate his contentions, he relied on various decisions.

13. Repudiating the said contentions, learned counsel appearing for the respondents/plaintiffs 2 to 5 submitted that admittedly, the suit properties are A schedule properties of ancestral properties and joint family properties of the deceased Venkatapathy Reddiar. He got the same under partition. The cause of action of the suit arose only on the dismissal of the Second Appeal as found in Ex.A-4, dated 5.12.1990 and the present suit had been filed within 12 years, i.e. on 4.9.2000 and hence, the appellants/defendants 2 to 5 have not prescribed title by adverse possession by ouster. Under Ex.A-4, in paragraph 39 of the judgment of this Court in S.A.No.1310 of 1981, a declaration had been given in favour of both the plaintiffs and the defendants in the present case and hence, there is cause of action and the status of the respondents/plaintiffs 2 to 5 had been declared only on 5.12.1990 as per Ex.A-4 judgment, and the right to sue accrues only from that date and so, the suit is not barred by limitation. Furthermore, the appellants/defendants 2 to 5 have not admitted the share in the suit properties and they are not enjoying the same hostile to the interest of the respondents/plaintiffs 2 to 5. The trial Court is correct in holding that the respondents/plaintiffs 2 to 5 have not prescribed title by adverse possession by ouster.

14. Learned counsel appearing for the respondents/plaintiffs 2 to 5, further stated that Exs.B-3, B-6 and B-7 came into existence respectively in 1958 and 1959 and in such circumstances, so far, the parties have not challenged those sale deeds Exs.B-3, B-6 and B-7 within 12 years from the date of alienation, because Ex.B-2 dated 25.10.1960 was executed by Venkatapathy Reddiar, the father of both parties in favour of the deceased first plaintiff, Ex.B-3 dated 4.4.1958 was executed by the deceased first defendant in favour of the deceased first plaintiff, the mother of the appellants/defendants 2 to 5 and Ex.B-6 dated 6.1.1958 was executed by the deceased Venkatapathy Reddiar in favour of the deceased first plaintiff, and all these have been executed on behalf of the minor children and in such circumstances, the parties have not challenged the same, and so, they are not the ancestral properties and it is only separate properties and self-acquired properties of the deceased first plaintiff and therefore, the suit is not bad for partial partition. Learned counsel appearing for the respondents/plaintiffs 2 to 5 further submitted that it is true that B schedule properties and other adjacent properties have been sold after obtaining sanction for the lay-out by 11 persons. He fairly conceded that the purchasers of the lay-out of the plots have not been impleaded.

15. Learned counsel appearing for the respondents/plaintiffs 2 to 5, further stated that as per the judgment of this Court as seen from Ex.A-4, the declaration had been granted in favour of both the appellants/defendants 2 to 5 and the respondents/plaintiffs 2 to 5 and so, they are the co-owners and the possession of one co-owner is the possession on behalf of the other co-owners and since the appellants/defendants 2 to 5 are in possession and enjoyment of the properties, it is deemed as joint possession of the respondents/plaintiffs 2 to 4 and so, the suit has been properly valued under Section 37(2) of the Tamil Nadu Court Fees and Suits Valuation Act, and the same does not warrant any interference by this Court.

16. Learned counsel appearing for the respondents/plaintiffs 2 to 5 further contended that in A schedule properties, in item 11, there are 52 mango trees, which are about 35 years old, and even though injunction has been granted, they have cut and carried away the same and so, the value is more than Rs.1 lakh, but they are claiming only Rs.50,000/- being the half of the share. Pattusamy earlier filed the suit in O.S.No.283 of 1985 in respect of the properties and the suit had been dismissed as seen from Ex.A-12 and the suit register extract had been marked as Ex.A-13 and so, the trial Court considered all these aspects in proper circumspection and granted a decree, and hence, he prayed for dismissal of the First Appeal.

Points (i) and (ii):

17. Admittedly, the suit properties belong to Venkatapathy Reddiar. His first wife is the deceased first plaintiff Rajalakshmi and the second wife is the deceased first defendant Navamani and both of their children are as shown in the following genealogy:-

Venkatapathy Reddiar | (died on 11.9.1966) |----------------------------|----------------------------------| = = first wife Rajalakshmi Ammal second wife Navamani (deceased first defendant) (deceased first plaintiff) | | |---------| ---- -------|--------------| | ----------|--------|---------------| Rama Bala Chandra Sarojini Ammal Rajaraman Jaya Mythili Geetha chandran chandran sekaran | chandran P2/R2 P3/R3 P4/R4 | D2/A2 D3/A3 D4/A4 D5/A5 Malarvizhi (daughter) |P5 (R5)

18. During the pendency of the suit, both the wives, namely Navamani, the deceased first plaintiff (first wife) and Rajalakshmi Ammal, the deceased first defendant (second wife) died.

19. After the death of the deceased Venkatapathy Reddiar on 11.9.1966, since the appellants/defendants 2 to 5 have not given any share to the respondents/plaintiffs 2 to 5 and hence, the plaintiffs have issued notice to the defendant(s) under Ex.B-48 on 4.11.1974. The defendants have replied under Ex.B-49 on 12.11.1974. Immediately, the appellants/defendants 2 to 5 filed a suit in O.S.No.94 of 1975 on the file of the Sub-Court, Cuddalore. The judgment in that suit was passed under Ex.A-1 on 25.11.1977, as per which, the suit had been decreed in favour of the plaintiffs therein (the appellants herein), declaring title to the suit properties, subject to the rights of the defendants therein (the respondents herein) in the share of their father and injunction was granted restraining the defendants till the rights are worked out in the partition suit, and as against the said decree in Ex.A-1, the defendants therein filed A.S.No.112 of 1978 and the plaintiffs therein filed A.S.No.127 of 1978, and after contest, A.S.No.112 of 1978 was dismissed and A.S.No.127 of 1978 was allowed, holding that the marriage between the deceased first plaintiff Navamani and Venkatapathy Reddiar is valid and a finding has also been given that the defendants therein (respondents/plaintiffs herein) will be entitled only to succeed to the share of their father in the ancestral properties . In the result, the plaintiffs herein were not entitled to absolute right in the suit properties and the defendants herein will have share in the properties, as the heirs of Venkatapathy Reddiar, and against the said judgment in the First Appeal, a Second Appeal was preferred before this Court in S.A.No.1310 of 1981, which has also been dismissed, as seen from Ex.A-4, dated 5.12.1990, and in paragraph 39 of the judgment in the Second Appeal, it was specifically mentioned as follows:

"39. In the result, the defendants are held to be legally entitled to shares in the joint family properties. The plaintiffs are not entitled to claim either the declaration of their exclusive title or the relief of injunction. The plaintiffs and defendants are jointly entitled to the suit properties and other properties of the family."

20. So, a declaration has been given and the plaintiffs and the defendants are stated to be jointly entitled to the suit properties and the other properties of the family.

21. Before the trial Court, the appellants/defendants 2 to 5 raised a defence that it is only passing and casual remarks while pronouncing the judgment in Second Appeal, and it is "obiter dicta" of the Court. The trial Court, after considering the same, came to the conclusion that they were neither passing remarks nor comments. As per Ex.A-4, two questions arose mainly before the Court below as to whether the defendants were Hindus and whether there was a valid marriage between the deceased Venkatapathy Reddiar and the deceased first defendant (second wife). In the said Second Appeal, it was decided in paragraph 37 of the judgment, that, "... Hence, the marriage between the first defendant and Venkatapahy was valid in Hindu Law and it was not invalidated by the Christian Marriage Act". So, the marriage between the deceased Venkatapahy Reddiar and the deceased first plaintiff Navamani, has been declared as valid. As per paragraph 39 of the judgment in Second Appeal (Ex.A-4), a declaration has been given in favour of both the plaintiffs and the defendants and in paragraph 39, it was specifically mentioned that the plaintiffs and defendants are jointly entitled to the suit properties and the other properties of the family. Therefore, their status had been declared only on 5.12.1990 (judgment in Second Appeal). Hence, the cause of action arose for filing the present suit on 5.12.1990. The present suit had been filed on 4.9.2000 and so, it has been filed within 12 years from the date of pronouncement of the judgment in the Second Appeal and declaration of the status under Ex.A-4, dated 5.12.1990. Therefore, it has to be held that the suit is not barred by limitation.

22. Learned counsel appearing for the respondents/plaintiffs 2 to 5 took me through the written statement filed by the defendants in the present suit. In paragraphs 2 and 4, it is stated as follows:

"2. This defendant submits that the first plaintiff was only a concubine of his father, late Venkatapathi Reddiar, and the plaintiffs 2 to 5 are their illegitimate children. The 1st plaintiff was a Nurse-maid by profession and she lured and enticed away Venkatapathy Reddiar by her free and easy morals and manners. The plaintiffs and the defendants did not constitute a joint Hindu family and the plaintiffs were never in joint possession of the suit properties."

"4. ... .... Even in the prior litigations and the connected appeals, the defendants have openly denied the plaintiff's status and claim of title and have asserted their own legal and absolute title to the properties in question. If at all the plaintiffs have had any share in those properties, they should have filed the suit for partition within 12 years from 11.9.1966 when Venkatapathy Reddiar died and succession opened. Therefore the present claims of the plaintiffs to half share in the suit properties are stale and barred by limitation and by adverse possession against and ouster of the plaintiffs by the defendants who have been in open, uninterrupted and continuous possession and enjoyment of those properties in overt asserting of their own hostile title as against the plaintiffs ever since 11.9.1966. ... ..."

Even in the suit before the trial Court, the appellants/defendants 2 to 5 have denied the legal status of the respondents/plaintiffs 2 to 5 and they do not admit that the respondents/plaintiffs 2 to 5 are the co-owners. So, adverse to the interest of the other co-owner, the appellants/defendants 2 to 5 are in possession and enjoyment of the properties, openly, continuously and without interruption for more than the statutory period, which does not arise. So, the ingredients of adverse possession has not been proved by the appellants/defendants 2 to 5.

23. It is true that the respondents/plaintiffs 2 to 5 are in possession for more than 30 years from 11.9.1966 onwards being the date of death of Venkatapathy Reddiar. After the death of their father Venkatapathy Reddiar, their possession is not hostile against the respondents/plaintiffs 2 to 5.

24. Learned counsel appearing for the respondents/plaintiffs 2 to 5 that it is the duty of the appellants/defendants 2 to 5 who pleaded adverse possession by ouster and the burden is heavily upon the person who pleaded adverse possession by ouster.

25. First of all, they have to admit the co-ownership and then only, the appellants/defendants 2 to 5 have to assert their title hostile to the co-owner, openly, continuously and uninterruptedly for more than 12 years. Admittedly, the appellants/defendants 2 to 5 have not admitted the legal status of the respondents/plaintiffs 2 to 5. The ingredients of the law of adverse possession has not been made out.

26. Now, it is appropriate to consider the decisions relied on by learned counsel for both parties. Learned counsel appearing for the appellants/defendants 2 to 5 relied on the following decisions:

(a) AIR 1968 Madras 83 (Ameer Bibi Vs. Chinnammal and another) "3. .... The starting point of limitation is when possession becomes adverse. Possession is generally adverse, it is the indicia of title. But where the parties are co-owners, there is unity of possession, possession of a co-owner is possession of all the co-owners and for possession to become adverse, there must be something more than mere exclusive occupation by one of the co-owners. This exclusive occupation by one of the co-owners, with added features which, would amount to adverse possession is termed ouster. The character of possession that would bar a co-owner must be such that one can infer from it an intention by the co-owner in occupation to keep out the other co-owners in assertion of exclusive and hostile title in himself to the property."

"4. .... Again in P.Lakshmi Reddi Vs. L.Lakshmi Reddi, AIR 1957 SC 314, at p.318 the principle is enunciated thus:-

"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 co-heir in possession cannot render his possession id-verse 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."

(b) 1955 (1) SCR 131 = AIR 1954 SC 337 (Wuntakal Yaipi Chenabasavana Gowd Vs. Rao Bahadur):

"9. Once it is held that the possession of a co-sharer has become adverse to the other co-sharer as a result of ouster, the mere assertion of his joint title by the dispossessed co-sharer would not interrupt the running of adverse possession. He must actually and effectively break up the exclusive possession of his co-sharer by re-entry upon the property or by resuming possession in such manner as it was possible to do. It may also check the running of time if the co-shaere who is in exclusive possession acknowledges the title of his co-owner or discontinues his exclusive possession of the property. ...."

"6. At this stage, it is important to bear in mind that partition is really a process by which a joint enjoyment of the property is transformed into an enjoyment severally. In the case of partition, each co-sharer has an antecedent title and, therefore, there is no conferment of a new title. (See Mulla: Transfer of Property Act, 9th Edn., P.77). In the circumstances, the appellants cannot be heard to say that they became the owners of the property only when the partition deed was executed on 29.11.1965. Lastly, the facts abovementioned show that the appellants had asserted not only their own possession, they had also asserted the possession of Prahladji (husband of Appellant 1 and father of the remaining appellants) prior to his death. In the case of Hanamgowda Shidgowda Patil Vs. Irgowda Shivgowda PatilI (AIR 1925 Bom 9 : 26 Bom LR 829) it has been held that in cases of adverse possession, the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but it commences from the date when the defendants' possession became adverse. Therefore, in the present case, the starting point of limitation for adverse possession cannot be taken as 29.11.1965 and one has to take the date when the respondents' possession became adverse. ..."

(d) 2007 (2) CTC 838(SC) (Des Raj Vs. Bhagat Ram (dead) by LRs.):

"25. Mere assertion of title by itself may not be sufficient unless the plaintiff proves animus possidendi. But the intention on the part of the plaintiff to possess the properties in Suit exclusively and not for and on behalf of other co-owner also is evident from the fact that the defendants-appellants themselves had earlier filed two Suits. Such Suits were filed for partition. In those Suits the defendants-appellants claimed themselves to be co-owners of the plaintiff. A bare perusal of the judgments of the Courts below clearly demonstrates that the plaintiff had even therein asserted hostile title claiming ownership in himself. The claim of hostile title by the plaintiff over the Suit land, therefore, was, thus, known to the appellants. They allowed the first Suit to be dismissed in the year 1977. Another Suit was filed in the year 1978 which again was dismissed in the year 1984. It may be true, as has been contended on behalf of the appellants before the Courts below, that a co-owner can bring about successive Suits for partition as the cause of action therefor would be continuous one. But, it is equally well-settled that pendency of a Suit does not stop running of 'limitation'. The very fact that the defendants despite the purported entry made in the revenue settlement record of rights in the year 1953 allowed the plaintiff to possess the same exclusively and had not succeeded in their attempt to possess the properties in Village Samleu and/or otherwise enjoy the usufruct thereof, clearly go to show that even prior to institution of the said Suit the plaintiff-respondent had been in hostile possession thereof."

(e) AIR 1970 Madras 411 (Sabura Ammal and others Vs. Ali Mohamed Nachiar and others):

"The possession of a co-heir or co-sharer (particularly Mahomedan) must be presumed to be that of the other co-sharer and the onus lies on the co-sharer who claims to have perfected title by adverse possession to establish his claim. A party who sets up a hostile title to the exclusion of other co-heirs must be definite and unequivocal in his assertions. But when the assertions are in the nature of "hide and seek", mutually contradictory and merely intended for the purpose of taking a tactical advantage out of a litigious situation, it cannot be considered as an assertion of a hostile title adequate for the purpose of becoming the starting point in the acquisition of title by adverse possession against other co-sharers."

(f) 1957 SCR 195 = AIR 1957 SC 314 (P.Lakshmi Reddy Vs. L.Lakshmi Reddy):

"7. The matter may be looked at from another point of view. It is well-settled that limitation cannot begin to run against a person unless at the time that person is legally in a position to vindicate his title by action. In. Mitra's Tagore Law Lectures on Limitation and Prescription (6th Ed.) Vol.1, Lecture VI, at p. 159, quoting from Angell on Limitation, this Principle is stated in the following terms:

"An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right, either under an openly avowed claim, or under a constructive claim (arising from the acts and circumstances attending the appropriation), to hold the land against him (sic) who was in possession. (Angell, Sections 390 and 398). It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession."

Consonant with this principle the commencement of adverse possession, in favour of a person, implies that person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until he obtains actual possession with the requisite animus. In the leading case of Agency Company Vs. Short ( (1888) 13 AC 793) the Privy Council points out that there is discontinuance of adverse possession when possession has been abandoned and gives as the reason therefor, at p. 798, as follows:

" There is no one against whom he (the rightful owner) can bring his action."

It is clearly implied therein that adverse possession cannot commence without actual possession which can furnish cause of action. This principle has been also.explained in Dwijendra Narain Roy Vs. Joges Chandra De (AIR 1924 Cal.600 at p. 609) by Mookerjee J. as follows :

"The substance of the matter is that time runs when the cause of action accrues, and a cause of action accrues, when there is in existence a person who can sue and another who can be sued. ...... The cause of action arises when and only when the aggrieved party has the right to apply to the proper tribunals for relief. The statute (of limitation) does not attach to a claim for which there is as yet no right of action and does not run against a right for which there is no corresponding remedy or for which judgment cannot be obtained. Consequently the true test to determine when a cause of action has accrued is to ascertain the time when plaintiff could first have maintained his action to a successful result."

In the present case, the co-heirs out of possession such as the plaintiff and the second defendant were not obliged to bring a suit for possession against Hanimi Reddy until such time as Hanimi Reddy obtained actual possession. Indeed during the time when the Receiver was in possession, obviously, they could not sue him for possession to vindicate their title. Nor were they obliged during that time to file a futile suit for possession either against Hanimi Reddy or against the defendants in Hanimi Reddy's suit when neither of them was in possession. It appears to us, therefore, that the adverse possession of Hanimi Reddy, if any, as against his co-heirs could not commence when the Receiver was in possession."

27. Learned counsel for the respondents/plaintiffs 2 to 5 relied on the following decisions:

(a) AIR 1965 Madras 200 (Marudanayagam Pillai Vs. Sola Pillai (died) and others) :

"It is settled law that lapse of time is never in itself a bar to partition and the statute of limitation will operate from the time the party is excluded from his share and such exclusion became known to him. There can be no exclusion without a denial of the coparcener's right to a share and such denial may be express or implied. When partition is demanded and refused, or if the coparcener is expelled from the joint family, that would be clear exclusion. Once the party establishes his claim to a share in the joint family properties by showing that the family was joint and that he was a coparcener entitled to a share in its properties, the onus is on opposite party to establish exclusion to the coparcener's knowledge for over 12 years prior to the suit for partition."

(b) 1980 (1) MLJ 432 (Karunai Ammal Vs. Karuppa Gounder) ( Madras High Court):

"In the case of a co-owner mere possession however long it might be, could not constitute adverse possession. Equally mere non-participation in the income would not lead to automatic conclusion of ouster. Possession must be over the statutory period and there must be a clear ouster to the knowledge of the co-owner or co-heir against whom adverse possession is pleaded."

"5. The defendants 2 to 7 being the co-sharers cannot succeed in claiming absolute title by adverse possession unless it is established by convincing evidence that there had been ouster of the respondent No.1, an admitted co-sharer from the disputed property. In the case of a co-sharer, mere exercise of possession as of right, cannot make out a case of ouster of co-sharer and consequential exercise of adverse possession by the other co-sharer so that ultimately the title of the ousted co-sharer is extinguished on account of adverse possession for the prescribed period."

(d) 2002 (4) LW 300 (Marappa Gounder (deceased) and others Vs. Ramalingam (deceased) and others): (Madras High Court):

It is well settled that a party can plead adverse possession only when he admits that another person has got title.

In the case of a co-owner, mere possession however long it might be, would not constitute adverse possession. The possession must be over the statutory period and there must be clear ouster to the knowledge of the co-owner against whom the adverse possession is pleaded. When a co-owner is in possession of the property, the law presumed that he is representing for the other co-owners and the possession of one is considered to be the possession of all. Where one co-owner pleads adverse possession against another, then, it is not enough to show that one out of them is in sole possession. It is the well settled rule of law as between the co-owners that there must be open assertion of hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to construe ouster in order to make out a case of ouster against the other co-owner.

It is settled principle that as between the co-owners, there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment of one of them to the knowledge of the other, so as to constitute ouster. The burden of making out ouster is on the person claiming to displace the lawful title of the co-owner by his adverse possession.

The person pleading adverse possession has no equity in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all the facts to establish his adverse possession. The party pleading adverse possession must state with sufficient clarity as to from when his adverse possession commences and the nature of his possession. Adverse possession means a hostile assertion, i.e., the possession which is expressly or impliedly in denial of title to the true owner. In other words, the person who bases his title by adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to the denial of his property to the claim.

When the co-owners are close relations, something more is to be proved to prescribe title by adverse possession, than a case between two strangers. Animus to hold the property against the relations must be brought to their notice.

The law also recognises acquisition of property only through lawful means. But exception is given where there is acquisition of title by prescription. Being an exception, it is for the person claiming it to prove to the satisfaction of the Court that there was hostile title and the person remained silent even after knowing hostility. The plea about the hostility or animus is absolutely necessary. What was the adverse character and when it started are only within the personal knowledge of the person claiming it. He alone can plead his possession from a particular date and claim that it was adverse. Article 65 of the Limitation Act provides for recovery of possession on the basis of title, 12 years from the date on which the adverse possession began. So, a definite date is required to claim adverse possession.

There should a pleading of ouster and it would not be sufficient to show that one co-owner was in separate possession of the property and another co-owner was out of possession.

The possession should be open with the assertion of hostile title and to the knowledge of the co-owner.

The adverse possession will commence only from the date of ouster.

Single circumstance of payment of taxes or mutation of records, would not by itself, establish ouster or adverse possession as against the co-owner.

The cumulative effect of the circumstances has to be properly weighed."

(e) AIR 2005 Madras 193 (L.H.Vidyapoornam Vs. L.H.Padmavathy):

"18. Similarly, the next contention put forth by the defendants to the effect that the plaintiff is not entitled to maintain the suit as she was not in joint possession of any of the property mentioned in the plaint schedules can have no bearing on the issue for the simple reason that even as per the admitted case of the defendants, the father Harikrishnan died intestate leaving behind his self-acquired property, namely, item No.1 to the plaint 'A' schedule and therefore it follows that the plaintiff should be presumed to have been in joint possession of the said item till the property is divided by metes and bounds in accordance with the rights of the parties entitled to succeed to the property. In any view of the matter, since the plaintiff claims a share in all the items of the schedule mentioned properties dehors the alleged Will dated 30.10.1986 executed by Kamalammal, she should be presumed notionally that she has been in possession and enjoyment of the joint family properties along with other members. ..."

28. Considering the above citations, since the present suit is between co-owners, as per law, the possession of one co-owner is deemed to be the possession of the other co-owner. The appellants/defendants 2 to 5, even now at the time of filing the suit, have not accepted that the respondents/plaintiffs 2 and 5 are the co-owners, and knowing that, after admitting the legal status of the respondents/plaintiffs 2 to 5 adverse to the interest of the hostile of their status, the appellants/defendants 2 to 5 are in possession and enjoyment of the suit properties to the knowledge of the co-owners, i.e. the respondents/plaintiffs 2 to 5, openly, continuously and uninterruptedly for more than the statutory period, after asserting their title to the suit properties.

29. In the present case, the respondents/plaintiffs 2 to 5 are admittedly the children of the deceased Venkatapathy Reddiar through the second wife, namely Navamani, the deceased first plaintiff. After the death of the said Venkatapathy Reddiar, the respondents/plaintiffs 2 to 5 have issued notice under Ex.B-48, dated 4.11.1974, claiming share in the suit properties, and the defendants have given reply under Ex.B-49, dated 12.11.1974 and denied their status. Immediately, the appellants/defendants 2 to 5 themselves have filed the suit for declaration of title and for injunction against the respondents/plaintiffs 2 to 5 herein, which was partly decreed, as evidenced by the judgment as per Ex.A-1, dated 25.11.1977 in O.S.No.94 of 1975, and challenging the said judgment in O.S.No.94 of 1975, the appellants herein preferred A.S.No.112 of 1978 and the respondents herein preferred A.S.No.127 of 1978, which was allowed and A.S.No.112 of 1978 was dismissed, against which, they preferred S.A.No.1310 of 1981, which has been dismissed as seen from Ex.A-4 judgment, dated 5.12.1990 and in paragraph 39 therein, it was specifically mentioned that both the plaintiffs and defendants herein are jointly entitled to the suit properties and other properties of the deceased Venkatapathy Reddiar and their family and so, the legal status of the respondents/plaintiffs 2 to 5 had been declared only on 5.12.1990 in Ex.A-4 judgment. Admittedly, no Letters Patent Appeal was filed before this Court or the Special Leave Petition was filed before the Supreme Court, and the said judgment has become final and thus, as per Ex.A-4 judgment, both the parties herein, i.e. the appellants and respondents are jointly entitled to the ancestral properties of the joint family and other properties of the deceased Venkatapathy Reddiar. On 25.2.2000, in Ex.A-8, the plaintiffs issued notice to the defendants and they also received reply from them in Ex.A-9, dated 20.3.2000 and sought for 15 days for giving a detailed reply and further reply in Ex.A-10 dated 15.4.2000 was given and thereafter, the respondents herein filed the suit for partition claiming half share in the properties.

30. So, as per the decision rendered in Ex.A-4, dated 5.12.1990, they have filed the suit within 12 years, and hence, the possession of the appellants/defendants 2 to 5 will not be adverse to the interest of the respondents/plaintiffs 2 to 5, and therefore, the appellants have not proved the ingredients of the adverse possession by ouster, and have also not prescribed title by adverse possession by ouster. The trial Court considered these aspects in proper perspective and came to the correct conclusion that the appellants/defendants 2 to 5 have not prescribed title by adverse possession by ouster. Points (i) and (ii) are answered accordingly.

31. Point (iii):

Learned counsel appearing for the appellants/defendants 2 to 5 submitted that some of the properties purchased by the deceased first plaintiff Navamani from the deceased first defendant Rajalakshmi Ammal and Venkatapathy Reddiar, and the parties concerned were not impleaded in the case and so, the suit is bad for partial partition. He further submitted that the deceased first plaintiff Navamani has no independent income to purchase the properties in her own name. Exs.B-2, B-3 and B-6 have been given without any consideration, to maintain the status of the deceased first plaintiff Navamani and their children and these documents have been executed in her favour and it is also admittedly the joint family properties, and hence, it is available for partition.

32. In the written statement in paragraph 2 itself, the defendants stated that the said Navamani was a Nurse by profession. P.W.1 in his evidence stated that his mother did milk vending business and thereby earned the money and purchased the properties. Furthermore, it is pertinent to note that Exs.B-2, B-3 and B-6 have been purchased by the said Navamani from Venkatapathy Reddiar and the father of the appellants/defendants 2 to 5 executed the sale deeds on behalf of the appellants/defendants 2 to 5 also, and those documents are even prior to 1960 and till now, these documents have not been challenged. In such circumstances, the parties are estopped from questioning those documents. As per those documents, the deceased first plaintiff Navamani is the owner of those properties mentioned in those documents, and these properties are not joint family properties of Venkatapathy Reddiar and therefore, I am of the view that the suit is not bad for partial partition. Point (iii) is answered accordingly.

33. Point (iv):

Learned counsel appearing for the appellants/defendants 2 to 5 submitted that B schedule properties were not absolutely belonging to their father Venkatapathy Reddiar and that his cousin brothers are also having share on the same and they have plotted out the properties and sold the same in favour of third parties, who have not been impleaded and theri father's cousin brothers were also not impleaded as parties. Therefore, B schedule properties are not available with the family and hence, they are not entitled to share in B schedule properties.

34. During the arguments, learned counsel appearing for the respondents/plaintiffs 2 to 5 fairly conceded that it is true that the properties were sold after laying out the same and now that the third parties are in possession of the properties.

35. Admittedly, the third parties who are in possession of B schedule properties, were not impleaded. Furthermore, Exs.B-54, B-55 and B-56 have clearly proved that 11 persons jointly executed the sale deed in favour of Vikravandi Co-operative Milk Society Limited, Perumal Reddiar and Muthukrishnan Reddiar respectively, but those persons were not impleaded as parties to the present suit. In such circumstances, there is no evidence to show that the properties are available in the hands of the appellants/defendants 2 to 5 as joint family properties and hence, I am of the view that B schedule properties are not available with the family. B schedule properties were already plotted out by way of lay out and were sold and the third parties who are in possession of those properties, were not impleaded as parties to the present suit. Therefore, I am of the opinion that B schedule properties are not available for partition. The respondents/plaintiffs 2 to 5 are not entitled to share in B schedule properties. Point (iv) is answered accordingly.

36. Point (v):

Learned counsel appearing for the appellants/defendants 2 to 5 submitted that in item 11 of A schedule properties, there were 52 mango trees and that had been planted and reared by one Pattusamy who cut and carried away and sold the same and therefore, the appellants/defendants 2 to 5 have nothing to do with the same and therefore, the trial Court committed error in granting compensation of Rs.50,000/- for the value of the mango trees.

37. Learned counsel appearing for the respondents/plaintiffs 2 to 5 submitted that the plaintiffs have obtained the order of injunction under Ex.A-14 in S.A.No.1310 of 1981 for cutting and carrying away the mango trees. He further submitted that the said Pattusamy who has filed the suit in O.S.No.283 of 1985 against the deceased first plaintiff Navamani, the second wife of the deceased Venkatapathy Reddiar and the deceased first defendant, the first wife of the said deceased and the second defendant herein, for injunction and the said suit in O.S.No.283 of 1985 had been dismissed as evidenced by Ex.A-12 judgment copy and Ex.A-13 is the suit register extract in O.S.No.283 of 1985 and these have clearly proved that Pattusamy is not the person who planted and reared the mango trees. The trial Court considered this aspect and rightly granted the relief of compensation and hence, he prayed for dismissal of the present First Appeal.

38. At this juncture, it is appropriate to consider the evidence of D.W.6 Aathiveera Reddiar, who in his evidence stated that the said Pattusamy Mudaliar was in possession and enjoyment of the mango grove, and in his evidence, he fairly stated that he does not know about the mango grove. His evidence is in no way helpful to the case of the appellants/defendants 2 to 5.

39. D.W.2 in his evidence denied the suggestion that the value of the mango trees is more than Rs.1 lakh. He further stated that they have borrowed some amount from Pattusamy. In his cross-examination, D.W.2 fairly conceded that the respondents/plaintiffs 2 to 5 obtained the stay order from cutting and carrying away the trees. So, there is no evidence to show as to what is the value of the mango trees. Considering the same, as per the evidence of D.W.2, there were 52 mango trees which were 35 years old approximately, and the value of those trees would have been more than Rs.1 lakh and since there is no contra evidence by the respondents/plaintiffs 2 to 5, I do not find any merit in the argument advanced by learned counsel for the appellants/defendants 2 to 5. The trial Court is correct in awarding compensation of Rs.50,000/- to the respondents/plaintiffs 2 to 5, which is correct and fair and proper and does not warrant any interference by this Court. Issue No.(v) is answered accordingly.

40. Point (vi):

Learned counsel appearing for the appellants/defendants 2 to 5 submitted that in the written statement itself, they have furnished the details of the amount borrowed by Venkatapathy Reddiar during his lifetime and the person who sought for a share in the estate is also liable to take share in the liabilities. The trial Court has not considered this aspect and hence, he prayed for fastening the liabilities upon the respondents/plaintiffs 2 to 5 also in respect of the debts borrowed by Venkatapathy Reddiar.

41. Learned counsel appearing for the respondents/plaintiffs 2 to 5 submitted that the said Venkatapathy Reddiar died on 11.9.1966 and from that date onwards, the appellants/defendants 2 to 5 are in possession and enjoyment of the properties. If the said Venkatapathy Reddiar borrowed debts, that can be time barred and so, the plaintiffs are not liable to pay the amount. He further submitted that the appellants/defendants 2 to 5 are in possession and enjoyment of the entire properties and they have enjoyed the fruits from and out of the properties and have repaid the debts only out of the income from the properties and so, there is no liability for the family. The trial Court considered this aspect in paragraph 26 of the judgment and hence he prayed for dismissal of the First Appeal.

42. Considering the rival submissions made by both sides, it is seen that the appellants/defendants 2 to 5 filed Exs.B-8 to B-14 to show that the deceased Venkatapathy Reddiar borrowed money and those debts have been discharged. Venkatapathy Reddiar died on 11.9.1966 and to prove the debts, D.W.3 Muthukrishan, D.W.4 Bakthavatchalam, D.W.5 Kannusami and D.W.6 Aathiveera Reddiar, were examined and all the debts have been discharged and as on today, there is no liability in respect of borrowings made by Venkatapathy Reddiar. In such circumstances, I am of the view that the trial Court is correct in holding that there is no liability debts borrowed by the said Venkatapathy Reddiar and there is no debts due even today. Furthermore, it is pertinent to note that the appellants/defendants 2 to 5 are enjoying the fruits of the properties and they are liable to discharge the same out of the income from the joint family properties and since they have discharged the same, there is no debt due. Hence, I do not find any merit in the argument advanced by learned counsel for the appellants/defendants 2 to 5 in this regard. Therefore, I am of the view that the trial Court is correct in holding that the respondents/plaintiffs 2 to 5 are not liable to pay any share in the debts borrowed by the deceased Venkatapathy Reddiar. Point No.(vi), is answered accordingly.

43. Point No.(vii):

Learned counsel for the appellants/defendants 2 to 5 submitted that admittedly, as per Ex.B-48 notice issued by the plaintiffs, the respondents/plaintiffs 2 to 5 are not in possession of the suit properties and they have filed the present suit for partition, and so, they have to pay the Court Fee by valuing the suit under Section 37(1) of the Tamil Nadu Court Fees and Suits Valuation Act, but they have valued the suit and paid Court Fee only as per Section 37(2) of the Act, which is not correct.

44. Per contra, learned counsel for the respondents/plaintiffs 2 to 5 submitted that the suit has been filed by the co-owners against the other co-owners, and hence, the Court Fee paid under Section 37(2) of the Act is justified.

45. It is well settled principle of law that possession of one co-owner is the possession of the other co-owner, and since the appellants/defendants 2 to 5 are in possession and enjoyment of the suit properties, it is deemed that the respondents/plaintiffs 2 to 5 are in possession of the suit properties, and so, they have correctly valued the suit properties under Section 37(2) of the Act, which is correct. Point No.(vii) is answered accordingly.

46. Points (viii) and (ix):

In view of the answers given to Point Nos.(i) to (vii), the trial Court's judgment and decree in respect of A and C schedule properties are confirmed and B schedule properties are not available for partition. The respondents/plaintiffs 2 to 5 are not entitled to share in the B schedule properties. The judgment and decree of the trial Court in respect of A and C schedule properties are sustainable. The appellants/defendants 2 to 5 are accordingly entitled to relief in those properties. Points (viii) and (ix) are answered accordingly.

47. For the foregoing reasonings:

(a) The First Appeal is partly allowed.

(b) The judgment and decree of the trial Court are modified and in the suit, there shall be a preliminary decree of partition in respect of A and C schedule properties and in respect of B schedule properties, the suit is dismissed.

(c) The plaintiffs 2 to 5 are entitled to compensation of Rs.50,000/- as ordered by the trial Court in respect of C schedule properties.

(d) Considering the relationship between the parties, they are directed to bear their own costs.

(e) The Miscellaneous Petitions are closed.

cs To

1. The Principal District Judge, Villupuram District, Villupuram.

2. Record Keeper, V.R. Section, High Court, Madras

Legal Document View

Unlock Advanced Research with PRISMAI

Madras High Court