The defendant in the suit is the appellant herein. The appellant/ defendant and respondent/plaintiff are brother and sister. The suit was filed by the sister claiming 1/4 share in the suit properties on the premise that the suit properties were the joint family properties of the Hindu Undivided Family, of which the father of the parties herein and the appellant/defendant herein were the coparceners, each entitled to 1/2 share in their capacity as coparceners. By virtue of Section 6 Proviso, the respondent/ plaintiff has claimed to be entitled to an equal share along with her brother in the undivided interest of the father in the joint family property. Thus, she had claimed totally 1/4 share in the suit properties.
2. The appellant/defendant herein resisted the claim of the respondent/plaintiff herein contending that the respondent/plaintiff had been provided with sufficient seers at the time of her marriage and hence she was not entitled to any share in the suit properties. It was also contended therein that the respondent/plaintiff was ousted and the appellant/defendant was enjoying the suit properties openly denying the right of the respondent/plaintiff and for that reason also the respondent/plaintiff should be non-suited. It was also contended that in view of the fact that the respondent/plaintiff was ousted from the suit properties she could not be construed to be in joint possession of the properties.
3. Based on the above said pleadings, the Trial Court framed 3 issues as under:
"1) Whether the plaintiff is entitled to the relief of partition as prayed for?
2) Whether the defendant has perfected title to the suit properties against the plaintiff by ouster?
3) What is the relief?"
4. The parties proceeded with the trial, in which one witness was examined on each side. The plaintiff has been examined as the sole witness (PW1) on the side of the plaintiff and the defendant has been examined as the sole witness (DW1) on the side of the defendant. The respondent/plaintiff has filed a certified copy of a partition deed dated 23.06.1989, as the sole document (Ex.B1) on the side of the plaintiff, whereas the original of the said document has been marked as the sole document (Ex.B1) on the side of the defendant.
5. The learned trial Judge, after considering the pleadings and evidence, both oral and documentary, came to the conclusion that the plaintiff's claim was sustainable and the defendant's plea could not be accepted. Based on the conclusion, the learned trial Judge pronounced a judgement allowing the suit and granted a preliminary decree directing division of the suit properties into four equal shares and allotment of one such share to the respondent/plaintiff. Aggrieved by and challenging the same, the appellant/defendant has brought forth this appeal on various grounds set out in the memorandum of appeal.
6. The points that arise for consideration in this appeal are:
(1) Whether the contention of the appellant/defendant that the respondent/plaintiff is not entitled to claim any share in the family properties because she was provided with sufficient seers at the time of her marriage, is legally sustainable?
(2) Whether the respondent/plaintiff was ousted from the suit properties and thus lost her right to claim a share in the suit properties?;
and (3) Whether the partition effected under Ex.B1 is binding on the respondent/plaintiff.
7. It is not in dispute that the suit properties were the ancestral properties of the father of the appellant/defendant and respondent/plaintiff and that the appellant/defendant and his father Muthu Gounder were entitled to half-share in the suit properties as coparceners. It is also not in dispute that the father Muthu Gounder died on 18.05.1986. However in the plaint, the date of death has been provided as 18.05.1996. The same cannot be a correct one. The respondent/plaintiff was examined as PW-1 on 31.01.2002. In the chief examination, she has stated that her father died 18 years back. The same will take us to 1984. On the other hand, the appellant/defendant has given the date of death of Muthu Gounder as 18.05.1986. Therefore, this Court has to accept the contention of the learned counsel for the respondent that there was a typographical error in the date noted in the plaint wherein the year column was typed as 1996 instead of 1986. The learned counsel for the appellant/ defendant also concurs with the representation made by the learned counsel for the respondent/plaintiff. Apart from that, it is an admitted case of both parties that the father Muthu Gounder died prior to the amendment of Hindu Succession Act by the Tamil Nadu Amendment made under Act 1 of 1990. It is also not in dispute that Muthu Gounder died when the family was undivided.
8. The parties also agree that Muthu Gounder's wife was alive on the date of his death and hence his half-share in the joint family property should have devolved upon his wife, son and daughter equally. As the wife of Muthu Gounder (mother of the parties to the appeal) subsequently died intestate before filing of the suit, her 1/6 share devolved upon the plaintiff and defendant equally and thus the plaintiff become entitled to 1/6 + 1/12 = 1/4 share as legal heir of her father and mother. Similarly, the defendant became entitled to 3/4 share (1/2 as coparcener and 1/6 + 1/12 = 1/4 share as legal heir of his father and mother).
9. So far as the extent of share of the plaintiff and the defendant is concerned, there is no controversy between the parties. But the appellant/defendant has tried to non-suit the respondent/plaintiff by contending that she was not entitled to her share because she was provided with seers. Nowhere in the Hindu Succession Act or any other statute applicable to the parties it has been stated a daughter shall excluded from having a share in the property of her father or mother if she has been provided with seers at the time of her marriage. The trial court has rightly rejected the above said contention of the appellant/defendant as untenable. This Court finds no reason, whatsoever, to interfere with the said finding of the Trial Court.
10. The next contention of the appellant/defendant is that after the death of the father, there was a partition on 23.06.1989 under a registered partition deed marked as Ex.B1, whereunder the husband of the respondent/plaintiff signed as a party to the partition and that the said partition will evidence that the respondent/plaintiff was ousted from the suit properties. Admittedly, the respondent/plaintiff was not a signatory to the partition deed. Though the husband of the respondent/plaintiff was a signatory to the partition deed, there is no proof that he was authorised by the respondent/plaintiff to represent her in the partition arrangement by way of Power of Attorney or otherwise and by virtue of such power he entered into such a partition arrangement on behalf of the respondent/plaintiff. Even the recitals of the partition deed do not indicate that the husband of the respondent/plaintiff was authorised to represent her in the partition arrangement. Under such circumstances, by properly analysing the legal implications of the said document, the learned trial Judge has arrived at a right conclusion that the said partition deed is not binding upon the respondent herein/plaintiff. There is no ground, whatsoever, to interfere with the said findings also.
11. So far as the other contention of the appellant/defendant viz., ouster, is concerned, the above said partition deed Ex.B1, was executed on 23.06.1989. So, at the best, the possession of the respondent/plaintiff shall be construed to be adverse to the respondent/plaintiff only from the date of such partition deed. Exclusive possession of the defendant for a period less than the period of limitation, will not confer on him any title by adverse possession. Even in case of ouster, the person claiming ouster has to prove that the other person allegedly ousted has been excluded from enjoyment of the property for more than the period of limitation. The limitation in this regard is 12 years. The suit was filed on 16.10.1998. Therefore, the contention of the appellant/defendant that he has perfected title in respect of the share of the respondent/plaintiff also by ouster and adverse possession cannot be sustained and the same deserves to be rejected. The trial court has rightly held that the said plea of defendant is untenable. The above said finding of the trial court is also confirmed.
12. For all the reasons stated above, this court comes to the conclusion that there is no merit in the appeal and the same deserves to be dismissed. Accordingly, this appeal is dismissed. There shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.
gm