order dated 12.01.2007 made in CMP Nos. 8623 of 2006 and 6915 of 2006)
10. Lourdu Mary @ Vasantha
11. Jhansi Silveniya
12. Amalraj
13. Metilda Kalavathy
14. Ramani (RR10 to 14 were brought on record as LRs of the deceased second respondent as per order dated 12.01.2007 made in CMP Nos. 8623 of 2006 and 6915 of 2006) .. Respondents A.S. No. 573 of 1999
1. Lilly Theresa (died)
2. Mrs. Josephine Allen
3. Mrs. Loordes D'souza (Appellants 2 and 3 were brought on record as legal heirs of deceased 1st appellant as per Order dated 26.06.2008 made in CMP No. 8855 of 2006) .. Appellants Versus
1. M.L. Arockiyadass
2. M.L. Anthoni (died)
3. J. Augustine Rajan
4. J. Singh Rayan
5. J. Clara Josephine Henry
6. J. Francis Xavier
7. Mrs. Barbara
8. Loordhu Mary @ Vasantha
9. Jhansi Silveniya
10. Amalraj
11. Metilda Kalavathy
12. Ramani (RR8 to 12 were brought on record as LRs of the deceased second respondent as per order dated 26.06.2008 made in CMP Nos. 14565 to 14567 of 2005) .. Respondents A.S. No. 583 of 1999
1. J. Augustine Rajan
2. J. Singh Rayan
3. J. Clara Josephine Henry
4. J. Francis Xavier
5. Barbara .. Appellants Versus
1. M.L. Arokiyadhas
2. Mrs.Lilly Theresa (died)
3. M.L. Anthony (died)
4. Loorthumery @ Vasantha
5. Jhansi Silveniya
6. Amalraj
7. Metilda Kalavathy
8. Ramani (RR4 to 8 were brought on record as legal heirs of the deceased third respondent vide Order dated 23.6.2009 made in CMP Nos. 14836 to 14838/05)
9. Josephine Allen
10. Lourdes D'Souza (RR9 and 10 were brought on record as LRs of the deceased 2nd respondent as per order dated 07.10.2009 made in CMP No. 8622 of 2006) .. Respondents Appeals filed under Section 96 and Order XLI-A Rule (1) of the Code of Civil Procedure against the decree and judgment dated 27.02.1998 made in O.S. No. 2301 of 1996 on the file of the Second Additional Judge, City Civil Court, Madras.
All these appeals arise out of a common judgment dated 27.02.1998 made in O.S. No. 2301 of 1996 on the file of the Second Additional Judge, City Civil Court, Madras.
2. The Plaintiff in O.S. No. 2301 of 1996 is the appellant in A.S. No. 559 of 1999. The first defendant in that suit is the appellant in A.S. No. 573 of 1999. Since the first defendant died, pending appeal, her legal heirs were brought on record as appellants 2 and 3. Defendants 3 to 7 in the said suit are the appellants in A.S. No. 583 of 1999. The second defendant is the contesting respondent in all the appeals. Pending appeal, the second defendant died and his legal representatives were brought on record as respondents 10 to 14 in A.S. No. 559 of 1999; respondents 8 to 12 in A.S. No. 573 of 1999 and Respondents 4 to 8 in A.S. No. 583 of 1999.
3. For the sake of convenience, the parties shall be referred to as plaintiff and defendants, as they were arrayed before the court below.
4. The suit was filed by the plaintiff for partition on the ground that the property was originally purchased by Susai Mary Ammal, mother of the plaintiffs and defendants 1 and 2 and grand mother of defendants 3 to 7, way back in the year 1923. The said Susai Mary Ammal had four children namely Elizabeth, Anthoni, Arokiyadass and Lilly Theresa. The Plaintiff is the second son of Susai Mary Ammal, the first defendant is the daughter and the second defendant is the other son of Susai Mary Ammal. The defendants 3 to 7 are daughters of Elizabeth, one of the daughters of Susai Mary Ammal, and grand children of Susai Mary Ammal.
5. According to the plaintiff, his mother Susai Mary Ammal died on 18.12.1940 intestate and after her death, her children, both sons and daughters, have been enjoying the property and they were in joint possession of the property. One of the daughters of Susai Mary Ammal,namely Elizabeth died in the year 1968 and their children are the defendants 3 to 7. The said Elizabeth, as head of the family, was managing the property for herself and on behalf of the other heirs of Late. Susai Mary Ammal, collecting rent from the tenants till her death in the year 1968. The Plaintiff contends that as legal heir of Susai Mary Ammal, he is entitled to 1/4 share in the property left by his mother. As all the legal heirs are living away, the second defendant had taken advantage of the same and was in possession of the property after the death of Elizabeth, collected rent from the tenants, appropriated the same for himself without accounting it to other co-sharers of the property.
6. According to the plaintiff, inspite of several attempts made by him for an amicable division of property, the second defendant, with an ulterior motive has not responded or come forward for an amicable partition. The second defendant has also constructed a house in the property and enjoying the same. The income derived out of the same is being enjoyed by the second defendant alone. Therefore, it is no longer possible to enjoy the property jointly, hence, the plaintiff has filed the suit for partition.
7. The Plaintiff would further contend that earlier, Elizabeth, mother of the defendants 3 to 7 filed O.S. No. 601 of 1967 for partition and claimed 1/4th share. Even though the suit was filed for partition, after her death, the suit could not be contested or continued and it was dismissed for default. According to the plaintiff, even after dismissal of the suit, no partition has taken place among the legal heirs and the property continued to be in joint possession of the plaintiff and other legal heirs of Susai Mary Ammal.
8. The first defendant filed written statement admitting the genealogy. The first defendant would specifically contend that after the death of Elizabeth, the second defendant was in possession of the property and collecting rents from the tenants without accounting it to the other legal heirs of Susai Mary Ammal, enjoying the income and appropriating it for his own benefits. It was contended by the first defendant that the plaintiff is entitled for 1/4th share in the suit property and equally, she is also entitled for 1/4th share and sought for partition of her share.
9. The second defendant filed written statement and contested the suit. The second defendant admitted the genealogy. According to the second defendant, the deceased Susai Mary Ammal was living alone with him and he only had taken care of her till her death on 18.12.1940. After her death, he alone was in possession and enjoyment of the suit property. There was no joint possession of the property by any other defendants. He claimed exclusive possession of the property. He contended that Elizabeth, one of the daughters of Susai Mary Ammal, never managed the property and she was never in possession or enjoying the property. He has been in continuous, open and uninterrupted possession for a period of more than 50 years, hence, the suit is barred by limitation.
10. It was specifically pleaded by the second defendant that even as per the admission of the plaintiff and other defendants, he has been collecting rents, appropriating the same without accounting it to other sharers as he has no legal obligation to pay the rent to any one. Furthermore, there is no need or necessity to divide the property and he is the sole owner of the property. The government tax and public charges in respect of the property are being paid by him and even the superstructure was built by him out of his own funds. As he was in continuous possession from 1940, nobody has any right, interest or title over the suit property.
11. The third defendant filed his written statement admitting the genealogy. The third defendant also contended that the plaintiff is entitled to 1/4th share and each of the defendants 3 to 7 are entitled to 1/20th share in the property. As far as the second defendant is concerned, he is in possession of the property and collecting the rent from the tenants without accounting it for other legal heirs and appropriating it for his own benefits.
12. The seventh defendant has filed written statement reiterating that the second defendant is in possession and enjoyment of the property, collecting rent from the tenants, appropriating it for his own benefit and not accounting it for the other legal heirs. He also claimed 1/20th share in the suit property.
13. The Plaintiff has filed a reply statement. In the reply, for the first time, the plaintiff contended that Elizabeth and the second defendant were collecting rent from the tenants for and on behalf of the other co-owners and legal heirs of Susai Mary Ammal as they were away in Madras. He further contended that the second defendant was in possession of the property with the permission of the plaintiff and other co-owners. In the reply, it was further stated that due to the wilful omission of the second defendant to pay any amount and also due to misappropriation of the money for his own benefit without the knowledge and consent of the other co-owners, the plaintiff was constrained to file the suit.
14. Based on the above pleadings, the parties went for trial, let in oral and documentary evidence. On behalf of the Plaintiff, the Plaintiff examined himself as PW1 and one Mr. Locas as PW2 and marked Exs. A1 to A20. On behalf of the defendants, the first and second defendant examined themselves as DW1 and DW2 respectively and marked Exs. B1 to B81. The court below, taking into consideration of the pleadings, oral and documentary evidence on both sides, dismissed the suit on the ground that the suit is barred by limitation and the plaintiff is not entitled to any share in the property. Aggrieved by the same, the present appeal suits have been filed.
15. Heard the counsel for both sides. The ony contention raised in these appeals by all the parties concerned is whether the suit for partition is maintainable and whether it is not barred by limitation. Therefore, the point for consideration in these appeals is whether the suit is maintainable and not barred by limitation.
16. The learned counsel for the appellants jointly argued that the earlier suit in O.S. No. 601 of 1967 was filed by the mother of the defendants 3 to 7 namely Elizabeth would clearly prove the claim of the plaintiff. Their main contention was in the earlier suit filed for partition, Arokiyadass, (plaintiff in the present suit) and Antony (second defendant in the presentsuit) have filed joint written statement and stated in para-6 that "These defendants submit that they along with the plaintiff and the third defendant were in the position of co-owners with regard to all the properties existing at the death of their mother." Further, in Para-8 of the said written statement, it was stated that "....they along with the third defendant are in law and justice entitled to the whole of the properties in the schedule of the plaint and that the plaintiff who has already taken more than the value of the share cannot claim a share in them or claim a partition thereof." Therefore, when the defendants themselves in the earlier suit have categorically admitted that the property was owned by them and enjoyed by them as co-owners, the court below ought not to have dismissed the present suit. Further, the said suit in O.S. No. 601 of 1967 having been dismissed on the death of Elizabeth and the properties having not been partitioned, even after the death of Elizabeth, they continued to be in possession and enjoyment of the property as co-owners and as co-owners, they are entitled to seek for partition. Therefore, in the present suit, the contesting second defendant cannot have any defence at all inasmuch as there was an admission in the earlier written statement in a previous suit between the same parties, accepting the right of the predecessors of the defendants 3 to 7. Therefore, this admission in the earlier written statement is vital from which it can be concluded that the suit for partition has got to be decreed. Further, there cannot be any question of limitation inasmuch as the properties are owned by all co-owners and enjoyed by all of them. Even though there cannot be a co-parcenary right, since the properties are owned jointly, the parties can only be called as co-owners. Then, the position cannot be construed as against them even though it was admitted that possession of the property was with the second defendant. Furthermore, change of records in the municipality, payment of tax, enjoyment of property by collecting rent by itself would not tantamount to ouster or adverse possession. The dismissal of the earlier suit in O.S. No.601 of 1967 for default would not render the present suit as time barred inasmuch as the earlier suit was dismissed for abatement on the death of the plaintiff Elizabeth. Therefore, the plaintiff in the suit as well as the defendants 1, 3 to 7 would only contend that the property is liable for partition and they are entitled for a share, which was not properly appreciated by the court below.
17. Contra, the learned counsel for the contesting second defendant would specifically bring to the notice of this Court the pleadings of the parties in the earlier suit as well as the present suit and contend that in O.S. No. 601 of 1967, Elizabeth, mother of the defendants 3 to 7, in Para No.9, had categorically admitted that "Recently the first respondent-defendant has been unlawfully and without any legal sanction and unwarrantedly has beencollecting the rent accruing from the said property, the superstructures over the said property having been repaired and renewed by the petitioner-plaintiff whenever required, as the petitioner-plaintiff is the eldest of the children of the said Susai Mary Ammal."
18. Originally, the suit was filed as a pauper on 19.03.1965 and subsequently the prayer for filing the suit as a pauper suit was allowed and the suit was numbered as O.S. No. 601 of 1967. As per the pleadings, the plaintiff in the suit has categorically stated that right from 1965, the first defendant therein (second defendant in the present suit), without any legal right have been collecting the rent against the interest of the other co-sharer, appropriating the rental amount for his own benefits and not accounting it for the other sharers. This pleading would denote that from the date of filing of the said suit namely 19.03.1965, the first defendant therein namely Anthony has been collecting the rent and doing acts which are detrimental to the interest of the other co-sharers. The wordings used in the said suit in O.S.No. 601 of 1967 is to the effect that the first defendant Anthony is "unlawfully and without any legal sanction and unwarrantedly has been collecting the rent accruing from the said property" which would indicate that the second defendant in the present suit is acting against the interest of the other co-sharers, without their permission and will. Furthermore, the second defendant in the present suit is enjoying the property with full animus as absolute owner of the property. He was also not accounting for the rent collected from the tenants and appropriating it for his own benefits. This factual admission in the earlier suit denotes that from 1965, the parties were on logger heads. They knew very well they are not enjoying the property jointly. Once the earlier suit in O.S. No. 601 of 1967 was dismissed for default, even in the year 1969, atleast within 12 years either from 1965, the date of institution of O.S. No. 601 of 1967, or from 1969, the date of dismissal of the suit, either of the co-owners ought to have filed a suit seeking for partition but the same was not done.
19. In the present suit, the plaintiff examined himself as PW1. In Para No.4 of the plaint, it was stated that Susai Mary Ammal was collecting the rent from the tenants till her death in 1968 whereas she died in the year 1940 as per the pleadings of the parties and it was Elizabeth, who died in the year 1968. The learned counsel for the plaintiff fairly admitted that such an error has crept in the plaint and it was due to typeographical error.
20. In Para No.5 of the plaint, it was stated that "Since all legal heirs were living away, the second defendant took advantage of the situation and took possession of the plaint schedule property after the death of Mrs. Elizabeth and has been collecting rents from the tenants and appropriating the same for himself without accounting to the co-sharers of the property." Similarly, in Para No.6, it was stated that "...The second defendant, with an ulterior motive has not responded to the requests of the legal heirs, and he has not chosen to give an account of the rents collected by him from 1968 onwards. The second defendant has also constructed the building out of the income derived from the plaint schedule property. The Plaintiff submits that the parties herein find it inconvenient to enjoy the property incommon and continuation of the joint possession of the property is no longer advantageous and beneficial to the parties herein besides it causes hardship."
21. The first defendant has filed a written statement wherein in Para No.2, it was contended that "After the death, the second defendant was in possession of the property and collecting the rent from the tenants without accounting it to the legal heris of Mrs. Susai Mariammal without accounting the income derived the second defendant appropriated it for his own benefits." Similarly, the defendants 3 to 6 have jointly filed a written statement wherein in Para No.3, it was stated that "....the second defendant was in possession of the property, and collecting rents from the tenants without accounting it to the legal heirs of Mrs. Susai mariammal. Without accounting the income derivedfrom the property, the second defendant appropriated them for his own benefit." Similarly, the seventh defendant has filed a written statement wherein also, it was stated in para-3 that ".....the second defendant was in possession of the property, and collecting rents from the tenants without accounting it to the legal heirs of Mrs. Susai mariammal. Without accounting the income derived from the property, the second defendant appropriated them for his own benefit."
22. From the reading of admitted statement made by the parties, who are the appellants in all the above three appeals, it is clear that they all admit that the second defendant in the suit was in possession and enjoyment of the property atleast from 1965 and he failed to account for the rents, failed to pay the amout to the other legal heirs and he has been enjoying the proceeds for his own benefit without any consent or sanction of the others. Such an act of the second defendant is adverse to the interest of the others. When once the earlier suit in O.S. No. 601 of 1967 was dismissed, at least the other legal heirs ought to have taken steps within 12 year from that date to seek for partition and asserted their right, whereas they have not done so. They have not taken any steps to object the possesion of the second defendant and also for effecting transfer of his name in the revenue records, payment of tax and other statutory dues made by him. This clearly prove that the adverse possession of the second defendant was never questioned by the other legal heirs of Susai Mary Ammal. Such an inaction on the part of the plaintiff and other co-sharers all these years from 1965 or 1968, till 1996, is clearly an act by which they have failed to question the adverse possession of the second defendant and therefore they are not entitled to the relief of partition.
23. It was contended by the second defendant that the property was purchased by Susai Mary Ammal way back in the year 1923 and she died in the year 1940 and thereafter, he was in possession and enjoyment of the property. Such a stand was also taken by the second defendant by filing written statement in the earlier suit in O.S. No. 601 of 1967. After the date of death of Susai Mary Ammal, in 1940, the second defendant continued his possession and from that date till the date of filing the present suit being O.S. No. 2301 of 1996, the second defendant was in possession for over 56 years and if the date of filing of O.S. No. 601 of 1967 (suit filed in the year 1965) is considered, the second defendant was in possession of more than 31 years. If the date of dismissal of O.S. No. 601 of 1967, in the year 1968 is considered, the second defendant was in possession of the suit property for more than 28 years. Therefore, it can be concluded that the possession of the second defendant over the property is adverse to the interest of the other legal heirs of Susai Mary Ammal. Under those circumstances, the present suit for partition is clearly barred. The Plaintiff and other defendants 1, 3 to 7 have not established their right over the property as co-sharers.
24. The parties to the suit are Christian and they cannot plead co-parcenary rights as in the case of Hindus. The right of co-owner is different from Coparcenary rights. The right of co-owner can be asserted based on the possession of the property by the other co-owner for and on behalf of all theco-owners as long as he continued to be in possession with the consent and knowledge of the other co-owners. Whereas, even as per the admission in the pleadings in the earlier suit in O.S. No. 601 of 1967, one co-owner categorically states that the second defendant herein is enjoying the property against their interest, illegally, without sanction. This would categorically indicate the possession of the second defendant right from the beginning, which is adverse to the interest of the others. Therefore, the other co-owners cannot contend that they are joint owners or co-owners or in joint possession of the property with the second defendant. Once there is no joint possession, the question of limitation would definitely come in. In any event, as discussed earlier, the suit is clearly barred by limitation. Any amount of evidence, at this stage to say that the parties were in joint possession cannot be accepted. Therefore, I hold that the court below has rightly concluded that the suit is not maintainable and it is barred by limitation.
25. PW1 in his evidence has admitted that VERNACULAR (TAMIL) PORTION DELETED
26. DW1 in his Chief-examination has admitted that VERNACULAR (TAMIL) PORTION DELETED
27. DW2 in his evidence has stated that VERNACULAR (TAMIL) PORTION DELETED
28. As per the evidence available on record, it is clear that in the year 1971, in respect of other properties, the parties have divided it among themselves and enjoying them separately. Even taking into consideration that from 1971 the parties have not been in joint possession of the suit property and also not partitioned the property among themselves, atleast from 1971, within 12 years, the suit ought to have been filed, but the same was not done in the present case. The fact that the parties are all residing separately from 1971 would make it clear that the claim of joint possession is nullified. Merely because in the earlier suit in O.S. No. 601 of 1967 the second defendant, along with the first defendant has stated that they are enjoying the property jointly, it cannot be considered to hold that there was a joint possession among the parties. When there is a clear admission on the part of the parties that the second defendant is in possession of the property, which is detrimental to their interest, the question of joint possession projected in the suit is invalid.
29. The documentary evidence Exs. B1 to B81 indicate that right from 1962, the second defendant is paying property tax, paying necessary taxes and charges and enjoying the property absolutely as his own. Therefore also, the finding of the court below that the possession of the second defendant over the property is adverse to the interest of the plaintiff and other defendants is sustainable and legally valid. I do not find any justifiable reasons to interfere with the well considered decree and judgment of the court below.
30. In the result, the appeals fail and they are dismissed. No costs.
rsh To The Second Additional Judge City Civil Court, Madras