Madras High Court: In an appeal suit for partition of ancestral properties, a Single Judge Bench of R. Sakthivel, J., held that the daughter is entitled to ½ share under the Hindu Succession Act, 1956 (‘Hindu Succession Act’). The Court clarified that the father’s presence on 09-09-2005 is not a prerequisite for enforcement of co-parcenery rights under the Hindu Succession (Amendment) Act, 2005 (‘2005 Amendment’). Rejecting the defendants’ plea of ouster and adverse possession, the Court observed that mere mutation of records or creation of mortgages cannot dislodge the presumption of joint possession among co-owners. Consequently, the Trial Court’s dismissal was set aside and the appeal allowed, with a preliminary decree recognising the plaintiff’s ½ share in the suit properties.
Background:
The dispute arose from properties originally purchased in 1940 by the father, who passed away intestate in 1968, leaving behind his wife, son, and daughter. The mother also passed away intestate in 2012. The plaintiff claimed co-heirship and entitlement to ½ share in the suit properties, alleging that the sale deed executed in 2012 by the Defendant 1 in favour of the Defendant 2 was fraudulent and void.
The defendants contended that the properties were ancestral, purchased from joint family income, and that the plaintiff had been ousted since her marriage in 1962. They argued that revenue records, patta, kist receipts, and mortgage deeds showed exclusive possession by the first defendant, thereby perfecting title by ouster and adverse possession. The second defendant further claimed to be a bona fide purchaser for value without notice.
The plaintiff relied on the sale deed of 1940 to argue that the properties were self-acquired and that succession under the Hindu Succession Act entitled her to a share. However, the defendants relied on documents showing mutation of records, mortgages, and loans to argue ouster and adverse possession.
Analysis and Decision:
The Court emphasised that before the 1940 purchase, the father had ancestral properties, and in the absence of other sources of income, the suit properties must be treated as ancestral. The Court noted that ouster requires exclusive, long, open, and uninterrupted possession coupled with hostile animus to the knowledge of the co-owner. It was further observed that mere mutation of records, payment of taxes, or mortgages are not sufficient to establish ouster.
On ouster, the Court emphasised that there can be no straight jacket or one size fits all formula for its proof, since it must necessarily vary with the unique facts and circumstances of each case. The Court observed that, from a broader perspective, certain essential ingredients must be present to establish ouster: (i) exclusive, long, open and uninterrupted possession and enjoyment, (ii) possession that is hostile to the rights of the co-owner alleged to be ousted, and (iii) such possession and hostility being to the knowledge of the co-owner.
The Court observed that merely because Patta and Kist Receipts stand in the name of first defendant, and merely because the plaintiff did not raise any objection for the same, the presumption of joint possession of a co-owner cannot be dislodged and it could not be taken to say that the first defendant possessed sufficient animus to exclude and oust the plaintiff.
It was further emphasised that if really there was intention to exclude the plaintiff from the joint family and oust her from the Suit Properties on account of her marriage against the will of the family, then father or mother could have very well executed a will in favour of the Defendant 1 alone in respect of their shares in the suit properties.
On limitation, the Court highlighted that the Supreme Court in Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1 has clearly held that father need not be alive as on 09-09-2005 for the enforcement of the daughter’s co-parcenery rights. Hence, the plea of limitation under Article 110 of the Limitation Act, 1963 is also not available to the first defendant.
The Court held that since the matter was a suit for partition, the plea of bona fide purchaser was not available to the second defendant. Accordingly, the sale deed dated 15-10-2012 would not bind the plaintiff or affect her half share in the suit properties.
The Court allowed the appeal, set aside the Trial Court’s decree, and passed a preliminary decree granting the plaintiff a ½ share. It further clarified that the 2012 sale deed would not prejudice the plaintiff’s rights and directed that there be no order as to costs.
[Sellammal v. Palanisamy, Appeal Suit No. 712 of 2017, decided on 11-12-2025]
Advocates who appeared in this case :
For the Appellant: S. Saravana Kumar
For the Respondents: T.L. Thirumalaisamy, R. Poornima