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2012 DIGILAW 5009 (MAD)

Maria Arulayi v. Anthoniyal (Died)

2012-12-21

A.SELVAM

body2012
Judgment 1.Challenge in this second appeal is to the concurrent Judgments and decrees passed in Original Suit No.66 7 of 1993 by the Principal District Munsif Court, Padmanabhapuram and in Appeal Suit No.4 5 of 199 8 by the Sub Court, Padmanabhapuram. 2. The appellant herein as plaintiff has instituted Original Suit No.667 of 1993 on the file of the trial Court praying to pass a preliminary decree of partition with regard to her 1/3 share over the suit property, wherein the present respondents have been shown as defendants. 3. In the plaint it is averred that the suit property is originally belonged to Savarimuthu and he passed away leaving behind him, his two daughters namely plaintiff and second defendant herein and only son, who has been arrayed as first defendant. Prior to thirty years, marriage of the plaintiff has been performed and now she is living just ten Kilometres away from suit Village. The first defendant is nothing, but a confirmed bachelor. After the demise of father, the first defendant has been enjoying the suit property for himself and on behalf of the plaintiff and second defendant. Since the first defendant has had acted against the interest of the plaintiff, the present suit has been instituted so as to work out the share of the plaintiff. 4. In the written statement filed on the side of the defendants 3 and 4, it is averred that as per existing law in Travancore State, the plaintiff has been given attractive things at the time of performing her marriage. Now the plaintiff has been living in Balapallam Village. After the demise of father, the first defendant, the only legal heir of father, has enjoyed the suit property. It is false to say that the first defendant has been enjoying the suit property for himself and on behalf of the plaintiff and second defendant. The first defendant has paid kist to the Government exclusively in his name and patta for the suit property has been granted in his name. The possession and enjoyment of the first defendant is open to the plaintiff and second defendant. The plaintiff and second defendant are not sharers of the suit property. The first defendant has executed various sale deeds and some of the alienees have not been impleaded. The possession and enjoyment of the first defendant is open to the plaintiff and second defendant. The plaintiff and second defendant are not sharers of the suit property. The first defendant has executed various sale deeds and some of the alienees have not been impleaded. Since the first defendant has had ousted the plaintiff and second defendant from the enjoyment of the suit property and since the present suit has been instituted only in respect of the suit property without including other properties, the suit is liable to be dismissed on the ground of ouster and also on the ground of partial partition. 5. In the written statement filed on the side of the defendants 5 to 7, the very same averments made in the written statement filed on the side of the defendants 3 to 4, are averred. 6. On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has dismissed the suit on the grounds of ouster as well as partial partition. Against the Judgment and decree passed by the trial Court, the plaintiff as appellant has preferred Appeal Suit No.45 of 1998 on the file of the first appellate Court. 7. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal and thereby confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments and decrees passed by the Courts below, the present second appeal has been preferred at the instance of the plaintiff as appellant. 8. At the time of admitting the present second appeal, the following substantial question of law has been formulated for consideration: "Whether the finding of the Courts below that the purchasers have perfected title by adverse possession is sustainable in law?" 9. Before analysing the rival submissions made on either side, the Court has to narrate the following admitted facts. It is an admitted fact that the suit property is originally belonged to one Savarimuthu and he passed away in the year 1961 leaving behind him, the plaintiff and defendants 1 and 2 as his legal heirs. 10. Before analysing the rival submissions made on either side, the Court has to narrate the following admitted facts. It is an admitted fact that the suit property is originally belonged to one Savarimuthu and he passed away in the year 1961 leaving behind him, the plaintiff and defendants 1 and 2 as his legal heirs. 10. The consistent stand taken on the side of the plaintiff is that the plaintiff is one of the sisters of the first defendant and she got married prior to 30 years and now she is living along with her husband in a nearby Village and the first defendant has been enjoying the suit property for himself and also on behalf of the plaintiff and second defendant and since the first defendant has had acted against the interest of the plaintiff, the present suit has been instituted for the relief sought for in the plaint. 11. The definite stand taken on the side of the contesting defendants is that the suit property is originally belonged to Savarimuthu and he passed away in the year 1961 and after his demise the first defendant has had enjoyed the suit property as the sole heir of Savarimuthu and neither the plaintiff nor the second defendant has had claimed any right, title and interest over the suit property and since the first defendant has had ousted the plaintiff and second defendant from the suit property, the plaintiff is totally debarred from claiming share over the same and further the first defendant has sold some other properties and the same have not been included in the present suit, since the present suit is nothing, but a comprehensive suit for partition and therefore the same is bad for partition partition and altogether the present suit deserves to be dismissed. 12. The Courts below have concurrently found that the plaintiff is not entitled to get the relief of partition on the grounds of alleged ouster and also on the ground of partial partition. 13. 12. The Courts below have concurrently found that the plaintiff is not entitled to get the relief of partition on the grounds of alleged ouster and also on the ground of partial partition. 13. The learned counsel appearing for the appellant/plaintiff has repeatedly contended that the erstwhile Travancore Christian Succession Act (2 of 1092) has been repealed by Part-B States (Laws) Act, 1951 and since the father of the plaintiff and defendants 1 and 2 has passed away in the year 1961 and immediately after his demise, the plaintiff and defendants 1 and 2 have become co-owners and since the first defendant has had acted against the interest of the plaintiff, the present suit has been instituted and the Courts below without considering the correct legal position have erroneously non-suited the plaintiff and therefore the concurrent Judgments and decrees passed by the Courts below are liable to be interfered with. 14. In support of his contention, he has drawn the attention of the Court to the decision in Mrs.Mary Roy, etc. v. State of Kerala and others reported in AIR 1986 Supreme Court 1011, wherein the Hon'ble Apex Court has held that the erstwhile Christian Act 2 of 1092 has been repealed by Part-B States (Laws) Act, 1951. The Hon'ble Apex Court has specifically held that the Indian Succession Act, 1925 would be applicable to Christians, who are living in the erstwhile Travancore State from 1st April, 1951. 15. In the instant case, the father of the plaintiff and defendants 1 and 2 by name Savarimuthu has passed away in the year 1961. Considering the decision rendered by the Hon'ble Apex Court and also considering the fact that the father of the plaintiff and defendants 1 and 2 has passed away in the year 1961, from the date of his demise, the plaintiff and defendants 1 and 2 have jointly succeeded the estate of the deceased. To put it otherwise, all of them have become co-owners. 16. It has already been pointed out that the Courts below have non-suited the plaintiff mainly on the grounds of ouster as well as partial partition. 17. Before considering the plea of ouster, the Court has to look into the plea of partial partition. 18. To put it otherwise, all of them have become co-owners. 16. It has already been pointed out that the Courts below have non-suited the plaintiff mainly on the grounds of ouster as well as partial partition. 17. Before considering the plea of ouster, the Court has to look into the plea of partial partition. 18. The learned counsel appearing for the contesting respondents/defendants have also equally contended that the father of the plaintiff and defendants 1 and 2 has passed away in the year 1961 and from the date of his death, the first defendant has started to enjoy the suit property and other properties as an absolute owner and in the instant case the plaintiff has been examined as P.W.I and her specific evidence is that only after the decision rendered by the Hon'ble Apex Court, in the year 1986 she has come to know that she is having right over the suit property and therefore the Court can very well come to a conclusion that the first defendant has had enjoyed the suit property by way of ousting both the plaintiff and second defendant and the Courts below after considering the evidence given by P. W. 1 and also plea of ouster pleaded on the side of the contesting defendants, have rightly non-suited the plaintiff and therefore the concurrent Judgments and decrees passed by the Courts below are not liable to be set aside. 19. At this juncture, the learned counsel appearing for the appellant/plaintiff as well as the learned counsel appearing for the respondents 7 to 9 have uniformly contended that in the present case, the contesting defendants are nothing, but alienees and they are not competent persons to say about the alleged ouster and further the first defendant is the only competent person to say about the said plea and the present suit has been instituted in the year 1993 and the first defendant has passed away in the year 1996 and till his demise he has not filed any written statement and under the said circumstances the plea of ouster raised on the side of the contesting defendants cannot be entertained and the Courts below without considering the fact that the first defendant has not filed any written statement, have erroneously non-suited the plaintiff on the ground of ouster and therefore the concurrent findings given by the Courts below with regard to ouster are erroneous. 20. As rightly pointed out on the side of the appellant/plaintiff as well as respondents 7 to 9, the contesting defendants are alienees of the first defendant. The present suit has been instituted in the year 1993. After lapse of three years, he passed away without filing written statement by way of putting forth the plea of ouster. Since the first defendant after demise of father, has become one of the co-owners of the suit property along with the plaintiff and second defendant, the first defendant is the only competent person to say about the alleged ouster. 21. It is an admitted fact that in the written statements filed on the side of the contesting defendants, it has been stated to the effect that after the demise of father, the first defendant has had enjoyed the suit property as the only heir of father. 22. It has already been pointed out that as per the decision rendered by the Hon'ble Apex Court, from 01.04.1951, the Christian of erstwhile Travancore State are entitled to invoke the provision of the Indian Succession Act, 1925. In the instant case, the father of the plaintiff and defendants 1 and 2 has passed away in the year 1961. Therefore immediately after the demise of father, the plaintiff and defendants 1 and 2 have become co-owners. Even assuming without conceding that the first defendant has had enjoyed the suit property and other properties as the only heir of the deceased father, it is not a mistake committed either by the plaintiff or by the second defendant. Further as rightly pointed out on the side of the appellant/plaintiff as well as respondents 7 to 9, the present contesting defendants are nothing, but alienees and they are not entitled to aver that the first defendant has had enjoyed the suit property as the only heir of his father by way of ousting the plaintiff and second defendant. 23. The learned counsel appearing for the appellant/plaintiff has meticulously drawn the attention of the Court to the decision in T.Anjappa and others v. Somalingappa and another reported in (2006)7 Supreme Court Cases 570, wherein the Hon'ble Apex%Court has held that a person claiming adverse possession, must clearly know the actual owner of the property. 24. 23. The learned counsel appearing for the appellant/plaintiff has meticulously drawn the attention of the Court to the decision in T.Anjappa and others v. Somalingappa and another reported in (2006)7 Supreme Court Cases 570, wherein the Hon'ble Apex%Court has held that a person claiming adverse possession, must clearly know the actual owner of the property. 24. In the instant case, on the side of the contesting defendants, father of the third defendant has been examined as D.W.I and he has given evidence to the effect that the plaintiff has got married prior to fifty years and from the date of her marriage, she has been living along with her husband and she has had never enjoyed the suit property along with the first defendant and under the said circumstances the plaintiff is not entitled to get the relief sought for in the plaint. 25. It has already been pointed out that the first defendant alone is the competent person to say about the mode of enjoyment as well as plea of ouster. In the instant case, the contesting defendants are nothing, but alienees and without knowing the definite stand of the first defendant in the form of written statement, the averments made in the written statements of the contesting defendants cannot be accepted. The Courts below without considering the aforesaid factual aspects, have erroneously non-suited the plaintiff on the ground of ouster. 26. Now the Court has to look into the other plea raised on the side of the contesting defendants. The other plea is that the first defendant has sold some other properties to third parties apart from the suit property and those properties have not been included in the present suit and therefore the present suit is bad for partial partition. 27. The learned counsel appearing for the contesting respondents/defendants have also advanced their arguments to the extent mentioned supra. 28. The learned counsel appearing for the respondents 7 to 9 has befittingly drawn the attention of the Court to the decision in Balakrishna Udayar and 3 others v. Chellammal and 9 others reported in 1998-2-L.W.414, wherein this Court held that in a suit for partition among co-owners, plea of partial partition cannot be pleaded. In the instant case, after the demise of father of the plaintiff and defendants 1 and 2, the plaintiff and defendants 1 and 2 have become co-owners. In the instant case, after the demise of father of the plaintiff and defendants 1 and 2, the plaintiff and defendants 1 and 2 have become co-owners. The contesting defendants have stepped into the shoes of the first defendant and therefore the plaintiff and defendants 1 and 2 are nothing, but co-owners of the suit property. Since the present suit has been instituted for the relief of partition amongst co-owners, the plea of partial partition is not entertainable as per the decision referred to supra. But the Courts below without considering the correct legal position, has also dismissed the present suit on the ground of partial partition. 29. It is seen from the records that the total extent of the suit property is 1 acre 55 cents. Out of 1 acre 55 cents, the contesting defendants have purchased only 66 cents. 30. It is an admitted fact that the first defendant has passed away as a bachelor leaving behind him, the plaintiff and second defendant as his legal heirs. Under the said circumstances, the plaintiff is entitled to get half share after deducting 1/3 out of the total extent of 1 acre 55 cents. In the light of the discussion made earlier, the concurrent Judgments and decrees passed by the Courts below are totally erroneous and further the substantial question of law settled in the present second appeal is really having substance and altogether the present second appeal deserves to be allowed. 31. In fine, this second appeal is allowed without costs and the concurrent Judgments and decrees passed by the Courts below are set aside. The plaintiff is entitled to get a preliminary decree of partition with regard to her half share after deducting 1/3 share out of total extent of the suit property (1 acre 55 cents) and to that extent the suit is decreed without cost. Consequently, connected Miscellaneous Petition is closed.