The Madras High Court has ruled that a brother cannot claim “ouster” or adverse possession against his sister merely because revenue records stand in his name or because he mortgaged the family property. Asserting that possession by one co-heir is presumed to be on behalf of all co-heirs, the Court set aside a lower court’s dismissal and granted a daughter a half share in her father’s property, declaring a sale deed executed by her brother as not binding on her share.
The legal issue before the Court was whether a daughter loses her right to ancestral property if her brother enjoys it exclusively, mutates revenue records in his name, and mortgages it after the father’s death. The Appeal Suit (Sellammal vs. Palanisamy & Anr.) challenged the judgment of the Additional District Court, Namakkal, which had dismissed the plaintiff’s suit for partition.
Justice R. Sakthivel, presiding over the case, allowed the appeal, holding that long possession by the brother does not amount to ouster unless there is a clear, hostile assertion of title denying the sister’s right to her knowledge.
Background of the Case
The dispute pertains to properties originally belonging to Muthusamy Gounder, the father of the appellant (Sellammal) and the first respondent (Palanisamy). Muthusamy Gounder passed away intestate in 1968, leaving behind his wife Perumayee (who died in 2012), his son, and his daughter.
The plaintiff, Sellammal, filed a suit (O.S. No. 2 of 2013) seeking partition and separate possession of her half share. She alleged that her brother (Defendant 1) and mother were in joint possession of the suit properties after her father’s death. However, on October 15, 2012, shortly after the mother’s death, the first defendant executed a Sale Deed in favor of the second defendant (Vadivel) for the entire property without her consent.
The Trial Court dismissed the suit in 2017, concluding that the plaintiff was not entitled to partition. The lower court reasoned that the properties were ancestral and, since the father died in 1968 (before the 2005 amendment to the Hindu Succession Act), the plaintiff could not claim a right. It also accepted the defendant’s plea regarding long possession. Aggrieved, Sellammal moved the High Court.
Arguments of the Parties
The Appellant/Plaintiff argued that as a legal heir of Muthusamy Gounder, she was a co-owner entitled to an equal share. She contended that the sale deed executed by her brother in 2012 was fraudulent and void to the extent of her share. She asserted that the possession of the property by her brother and mother was on behalf of the entire family, including herself.
The Respondents/Defendants opposed the claim on two primary grounds:
- Ouster and Adverse Possession: They argued that the plaintiff had married in 1962 and left the family home. Since then, she never participated in the enjoyment of the property. The first defendant claimed he had been in exclusive possession for over statutory period, paying taxes and even mortgaging the property multiple times, thus ousting the plaintiff.
- Ancestral Nature: They maintained the property was ancestral and the plaintiff had lost her rights due to her marriage and long absence. The second defendant claimed to be a bona fide purchaser for value.
Court’s Analysis
Justice R. Sakthivel examined the evidence, specifically the claim of ouster. The Court reiterated the settled legal principle that possession of one co-heir is deemed to be possession on behalf of all co-heirs unless there is proof of “ouster”—a hostile assertion of exclusive title to the knowledge of the other co-owners.
Addressing the defendant’s reliance on revenue records and mortgage deeds, the Court observed:
“In the absence of denial of the plaintiff’s rights, other co-heirs / co-owners merely mortgaging the property and obtaining loan for their livelihood, is not sufficient to disrupt the presumption of joint possession by co-heirs / co-owners.”
The Court further noted the societal context in agricultural families:
“In Indian society, that too in agricultural families, it is quite natural for the revenue records to stand in the name of the male heirs after the demise of the father… Merely because Patta and Kist Receipts stand in the name of defendant, and because the plaintiff did not raise any objection for the same, the presumption of joint possession of a co-owner cannot be dislodged.”
The Court found that the defendants failed to prove that they had denied the plaintiff’s title to her knowledge prior to the litigation. Consequently, the plea of adverse possession failed.
Regarding the Trial Court’s finding on the Hindu Succession Act, the High Court held that the lower court erred in ruling that the father had to be alive on September 9, 2005, for the daughter to enforce her rights. Citing the correct legal position, the High Court confirmed the plaintiff’s entitlement to a share in the ancestral property.
Decision
The High Court set aside the Judgment and Decree of the Additional District Court, Namakkal. The Court passed the following orders:
- The Appeal Suit is allowed.
- A preliminary decree is passed declaring the plaintiff (Sellammal) entitled to a half share in the suit properties.
- The Sale Deed dated October 15, 2012, executed by the brother in favor of the second defendant, is declared not binding on the plaintiff’s half share.
- Considering the relationship between the parties, no order was made as to costs.
Case Details:
- Case Title: Sellammal vs. Palanisamy & Vadivel
- Case Number: Appeal Suit No. 712 of 2017
- Coram: Justice R. Sakthivel
