High Court · 2025

A.S.(MD)No.160 of 2008BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTRESERVED ON : 19.06.2025 DELIVERED ON : 11.09.2025CORAMTHE HON'BLE MR.JUSTICE K.K.RAMAKRISHNANA.S.(MD)No.160 of 2008and M.P.(MD).Nos.1 & 2 of 2008S.Murugesan... Appellant/1st DefendantVs. 1.C.Banumathi2.Rajam... Respondents/Plaintiffs3.Madasamy Chettiar4.S.P.Subbiah Chettiar5.Aryyappan Moopan6.Sudalaiandi Chettiar... Respondents/Defendants 2 to 5PRAYER : Appeal Suit has been filed under Section 96 of the Civil Procedure Code, to set aside the Judgment and Decree, dated 27.11.2006 in O.S.No.9 of 2005 on the file of the I Additional District Judge, Tirunelveli, decreeing the suit in O.S.No.9 of 2005. For Appellant : Mr.L.Gangai Amaran For Respondents : Mr.V.Ragendran for R1 & R2 R3 to R6 – Given Up1/12 https://www.mhc.tn.gov.in/judis A.S.(MD)No.160 of 2008JUDGMENTThe first defendant in O.S.No.9 of 2005 on the file of I Additional District Judge, Tirunelveli, has filed this appeal, challenging the decree for partition granted against him in the suit filed by his sisters namely the respondents 1 and 2 claiming 1/3rd share in the suit schedule mentioned property with mesne profit.2.For the sake of convenience and clarity of facts, the parties shall be referred to as per the status/position in the suit.3.The plaintiffs are the daughters of one Shanmugavel and Piramu ammal. The first defendant is the brother of the plaintiffs. The suit schedule property is a building. The remaining defendants are the tenants of the premises. The property originally belonged to Irulayee Ammal namely the grandmother of the plaintiffs and their grandfather is Chappani Masthiri. Their only son was Shanmugavel, father of the plaintiffs. Shanmugavel married Piramu ammal and the plaintiffs 1 and 2 and the first defendant are the legal heirs of the Shanmugavel and Piramu ammal. Irulayeeammal died intestate and hence, their only son 2/12 https://www.mhc.tn.gov.in/judis A.S.(MD)No.160 of 2008Shanmugavel inherited the properties and enjoyed the same. He married Piramu ammal. The plaintiffs and the first defendant are their children. Shanmugavel predeceased and Piramu ammal enjoyed the properties till the year 2000. Thereafter, she died. Subsequently, the plaintiffs namely the sisters of the first defendant demanded partition and the first defendant refused to give their share. Therefore, they filed the present suit for partition claiming 1/3 share with mense profits.4.The first defendant has filed the written statement stating that the property belonged to Chappani Masthiri. He was enjoying the property from time immemorial. The plaintiffs have no right over the suit schedule properties and as a sole coparcener he is entitled for the entire property and the plaintiffs were ousted from the suit scheduled property. The first defendant is enjoying the property individually and independently and hence the suit is barred by limitation and the plaintiffs even if they have any right, they are disentitle by ouster.5.The learned trial Judge framed necessary issues and conducted the trial .3/12 https://www.mhc.tn.gov.in/judis A.S.(MD)No.160 of 20086. To prove their case, on the side of the plaintiffs, first plaintiff was examined as PW1 and Exs.A1 to A13 were marked. On the side of the defendant, the first defendant himself was examined as DW1 and DW2 was examined and Exs.B1 and B2 were marked.7.The trial Judge decreed the suit holding that even if the property belonged to Chappani Masthiri, the plaintiffs are entitled for 1/3 shares, in view of the failure on the part of the first defendant to prove partition through the registered partition as mandated under the Hindu Succession Act (Amendment) 2005. Even otherwise Irulayeeammal's properties devolved upon Shanmugavel and in that case also they are entitled for 1/3 share. So far as the ouster plea is concerned the learned trial Judge rejected the plea of ouster holding that Piramu ammal was the one of the legal heirs, who enjoyed the property till the date of her death i.e., upto 2000. Therefore, there was no partial ouster against the remaining co-sharer and hence, he negatived the plea of ouster.8.Challenging the findings made by the trial Judge, the first defendant has preferred this appeal.4/12 https://www.mhc.tn.gov.in/judis A.S.(MD)No.160 of 20089.The learned counsel for the appellant would fairly submit that in view of the development of law and as per the Hon'ble Supreme Court's Judgment in the case of Vineeta Sharma vs Rakesh Sharma, reported in AIR 2020 SC 3717, the learned trial Judge's finding applicability of the Amendment Act 2005 is correct.10.The learned counsel for the appellant would submit that in view of the specific plea of ouster, the learned trial Judge's finding in para 9 is not correct. When the first defendant established the necessary ingredients of the ouster, the learned trial Judge has not properly addressed the said issues. The learned Judge failed to consider that the first defendant enjoyed the properties independently and also ousted the plaintiffs 1 & 2 for the statutory period from the enjoyment and hence, he prayed to dismiss the suit on the ground of ouster. He also submitted that the suit is also barred by limitation.11.The learned counsel for the respondents would submit that the learned trial Judge clearly considered the ouster plea and applied the principle that there was no applicability of the ouster to the one of the co-5/12 https://www.mhc.tn.gov.in/judis A.S.(MD)No.160 of 2008owner alone. When the Piramu ammal is the legal heir of Shanmugavel and they are entitled to the share even assuming that the Shanmugavel is sole coparcener, in view of the death of the Shanmugavel, Piramu ammal got the property as a legal heir as per Section 8 of the Hindu Succession Act and she also was enjoying the property along with the co-sharer till 2000. In view of the above said circumstances, without any evidence to prove the independent enjoyment of the property with necessary ingredients of the principle of the ouster, it was rightly rejected by the learned trial Judge and hence, he seeks to dismiss the appeal.12.This Court considered the rival submissions and perused the records and also precedents relied upon by them and framed the following point for consideration.1.Whether the plea of the ouster raised by the first defendant was correctly addressed by the learned trial Judge?13.Upon perusal of the impugned judgment and the evidence on record, it is clear that Chappani Masthiri married Irulayee ammal and through their marriage Shanmugavel was born. Shanmugavel married Piramu ammal. Shanmugavel and Piramu ammal got three children 6/12 https://www.mhc.tn.gov.in/judis A.S.(MD)No.160 of 2008namely, plaintiffs and the first defendant. Chappani Masthiri predeceased Irulayee ammal and Irulayee ammal died around the year 1973. Piramu ammal died in the year 2000. Whether the property belongs to either Chappani Masthiri or Irulayee ammal has no significance in view of the Hindu Succession Amendment Act, 2005. If it is Chappani Masthiri's property, the plaintiffs 1 and 2 also have the same right equal with the first defendant. If this property is Irulayee ammal's property, Shanmugavel is only the legal heir of the Irulayee mmal. Shanmugavel predeceased Piramu ammal. Therefore Piramu ammal, plaintiffs and the first defendant are the legal heirs of Shanmugavel and they are entitled for the equal share. Piramu ammal died intestate in the year 2000. Hence, the remaining legal heirs are the plaintiffs and the first defendant. Therefore, in all aspect the plaintiffs are entitled for 1/3 share each. Therefore, the learned trial Judge correctly determined the entitlement of 1/3 share. The said principle was elaborated by the Hon'ble Supreme Court in the Vineetha Sharma's Case.14.Since the appellant's counsel fairly admitted the above legal provision, this Court is not going further into the above said aspect.7/12 https://www.mhc.tn.gov.in/judis A.S.(MD)No.160 of 200815.As far as the plea of ouster is concerned, 'Ouster' is defined as follows in the case of Vidya Devi v. Prem Prakash, reported in (1995) 4 SCC 496“28.‘Ouster’ does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.”16. The Learned trial Judge in para 9 of the judgment has made a discussion about the plea of Ouster as follows:“9.One of the defence of the first defendant is that he had perfected absolute title by ouster. But, his mother Piramu Ammal had died only in October 2000. Till her death she was also entitled to a share in the suit property. There is no case that she too was ousted. Can 8/12 https://www.mhc.tn.gov.in/judis A.S.(MD)No.160 of 2008there be a selective ouster of some sharers in an undivided property? The answer to this question is in the negative and consequently, this Court holds, the plaintiffs are entitled to 1/3 share each in the suit property. It is settled law that possession by one co-owner is possession for all. Necessarily the plaintiffs are held to be in joint possession with the first defendant. Therefore, the Court fee is correctly paid. Issues 1 to 3 are answered in favour of the plaintiffs.”17. In this case, this Courts finds no evidence either oral or documentary evidence to accept the plea of ouster raised by the first defendant. Till the death of Piramu ammal, mother of the first defendant, also has collected the rent as one of the co-sharer, apart from the first defendant. It is settled principle that the possession of a co-sharer is in law, treated as possession of all the co-sharers. Ouster of the co-sharer must be evidenced by title coupled by exclusive possession and enjoyment of one of them to the knowledge of others. There was no question of partial ouster. Piramu ammal had participated in the collection of the rent and the plea of the first defendant that the application of ouster against the plaintiffs is misconceived and the same was correctly considered by the Learned trial Judge in para 11 with 9/12 https://www.mhc.tn.gov.in/judis A.S.(MD)No.160 of 2008specific finding that there was no partial ouster against some of the co-sharers. Hence, this Court finds no merits in the appeal and in the submissions of the learned counsel for the appellant to accept the plea of ouster. Therefore, this Court finds no merit in the appeal. The appeal is liable to be dismissed. 18. Accordingly, this appeal suit is dismissed. The Judgment and Decree, dated 27.11.2006, passed by the learned I Additional District Judge, Tirunelveli, in O.S.No.9 of 2005, is hereby confirmed. There shall be no order as to costs. Consequently, connected civil miscellaneous petitions are closed. 11.09.2025Index :Yes / NoInternet :Yes / NoTM10/12 https://www.mhc.tn.gov.in/judis A.S.(MD)No.160 of 2008To1.The I Additional District Judge, Tirunelveli.2.The Section Officer, E.R.Section/V.R.Section, Madurai Bench of Madras High Court, Madurai.11/12 https://www.mhc.tn.gov.in/judis A.S.(MD)No.160 of 2008K.K.RAMAKRISHNAN ,J. TMA.S.(MD)No.160 of 2008 11.09.202512/12