IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.04.2011 CORAM: THE HONOURABLE MR. JUSTICE R.SUBBIAH SECOND APPEAL NO.339 OF 1998 1. Arabia Bibi 2. Fathima Jinna 3. Asraf Unnisa 4. Barakat Unnisa ..Appellants/Defendants 1,3,5,7 ..vs.. 1. Sarbunnisa 2. Mumtaj Begum (died) 3. Packiri Mohammed 4. Arif 5. Amanullah 6. Jaheber Sadiq 7. Munaver Nissa 8. Fajunnisa (R5 to R8 were brought on record as LRs.of the deceased R2 vide order of Court dated 5.3.2001 in CMP No.10893/2000) ..Respondents/Plaintiffs and Defendants 2,4,6 Second Appeal under section 100 of Civil Procedure Code filed, against the judgment and decree dated 27.03.1997 made in A.S.No.9 of 1997 on the file of Additional District Court, Nagapattinam, Quid- e-Milleth District, confirming the judgment and decree dated 22.03.1996 in O.S.No.287 of 1991 on the file of Additional Sub Court, Mayiladuthurai. For Appellants : Mr.T.M.Hariharan For Respondents : Mr.S.Sounthar for R1 JUDGMENT This Second Appeal is directed against the judgment and decree dated 27.03.1997 passed by the learned Additional District Judge, Nagapattinam, in A.S.No.9 of 1997, whereby the judgment and decree passed by the learned Additional Subordinate Judge, Mayiladuthurai, dated 22.03.1996 in O.S.No.287 of 1991, were confirmed. https://hcservices.ecourts.gov.in/hcservices/ 2. The appellants are defendants 1, 3, 5 and 7; the 1st respondent is the plaintiff and respondents 2 to 4 are defendants 2, 4 6 and 8. Respondents 5 to 8 are the legal representatives of the deceased 2nd respondent/2nd defendant. To avoid confusion, the parties are hereinafter described as they were arrayed in the suit. 3. The plaintiff (1st respondent herein) filed the suit in O.S.No.287 of 1991 against the defendants, numbering 7, for declaration, partition and separate possession of her share in the suit properties and also for future profits. According to the plaintiff, her father Kamaludeen had two wives and she is the only child born in 1943 through the first wife, who died in 1944. Thereafter, Kamaludeen married the sister of the plaintiff's mother as his second wife, viz., Arabia Beevi, the 1st defendant and they have six children, who are defendants 2 to 7. Kamaludeen, during his lifetime, acquired lot of properties from his earnings and he celebrated the marriages of the plaintiff as well as the 2nd defendant and he died in 1963, leaving cash, jewellery of the plaintiff's mother, valuable movables, immovable properties etc. Soon after his death, his mother also passed away. So, the plaintiff and the defendants are the only legal heirs of the deceased Kamaludeen. 4. The plaintiff after her marriage settled at her husband's house at Kollumangudy and she often visited her father's house while he was alive. After his demise, the 1st defendant was managing all the properties and the plaintiff visited her father's house and she and her husband helped in performing the marriage of the 3rd defendant. Since the funds as well as the income from the estate of the 1st defendant was not adequate, the 1st defendant decided to sell a portion of about 2 acres and the plaintiff also consented for the same and from the sale proceeds, the marriages of other defendants were celebrated. Thereafter, the attitude of the 1st defendant began to change and she alienated some of the valuable properties of the estate without the consent and knowledge of the plaintiff. Hence, the plaintiff demanded partition of her share and though the 1st defendant accepted for the same, finally she has not complied with the demand. The 1st defendant is entitled to 1/8th or 9/72 share and the rest has to be divided between the plaintiff and other defendants. Hence, she filed the suit. 5. The case of the plaintiff was resisted by the defendants and filed a written statement stating that it is not correct to state that the plaintiff is in joint possession and enjoyment of the suit properties along with the other defendants. The plaintiff's marriage has been conducted at the heavy expenses from and out of the sale proceeds of the properties of the defendants. At the time of marriage, the properties worth more than her share have been sold since the family of her husband is affluent and very rich and as https://hcservices.ecourts.gov.in/hcservices/ such, she has no share to be claimed in the suit properties and she must be deemed to have relinquished her share. After marriage, the plaintiff developed a sort of superiority complex and on account of economic imbalance between her and the defendants, the plaintiff gradually lost her touch with the defendants' family and abandoned the properties and she has never been in participation of the rents and profits from the suit lands. The 1st defendant has not only been in exclusive possession and absolute enjoyment of the properties but there has also been in open and unequivocal denial of the title of the plaintiff in respect of the suit properties. In fact, the 1st defendant had alienated an extent of 0.90 cents of nanja lands in R.S.No.253/7B and another extent of 0.96 cents of nanja lands included in the suit properties in utter exclusion and without reference to the plaintiff under a sale deed dated 23.12.1974 to meet the marriage expenses of the 5th defendant. Though the plaintiff was also aware of the said alienation, she never raised any objection and as such, she has no right to the said properties. Apart from that, some of the items of the suit lands have been leased out by the 1st defendant to the tenant and thereafter, they have been surrendered to her by the tenant in 1967, which show that the 1st defendant has been exclusively dealing with the properties without reference to the plaintiff. Though Kamaludeen died in 1963, the plaintiff filed the present suit after 25 years, claiming partition. Moreover, the recent spurt in the value of the suit properties, which were considered worthless decades ago, has led the plaintiff to file the suit contrary to her earlier abandonment of her right of a share. Even if the plaintiff had any such right, the same has been extinguished by ouster. Hence, they prayed for the dismissal of the suit. 6. On the said pleadings, the trial court framed necessary issues and on the side of the plaintiff, she examined herself as P.W.1 besides examining one Mohammed Rabi as P.W.2 and marked five documents as Exs.A-1 to A-5 and on the side of the defendants, the 1st defendant examined herself as D.W.1 besides examining one Kaliyamoorthy as D.W.2 and marked 23 documents as Exs.B-1 to B-23. The trial court, after considering the entire evidence on record, both oral and documentary, had granted a preliminary decree for partition and separate possession and directed the plaintiff to take separate proceedings with regard to future profits. Challenging the said finding, defendants 1, 3 , 5 and 7 filed A.S.No.9 of 1997 on the file of Additional District Court, Nagapattinam, wherein the appeal was dismissed by confirming the judgment and decree of the trial court. Against which, the said defendants filed the present second appeal. During pendency of the second appeal, the 3rd defendant, one of the daughters of the 1st defendant died, and her legal heirs were brought on record as respondents 5 to 8. 7. At the time of admission of the second appeal, this Court has framed the following substantial questions of law for consideration: https://hcservices.ecourts.gov.in/hcservices/ (1) Whether the courts below are right in concluding that the 1st respondent has not been ousted from joint ownership and enjoyment ? (2) Whether the suit filed is in time ? 8. Learned Counsel for defendants 1, 3, 5 and 7 (appellants) submitted that the 1st respondent/plaintiff, after her marriage, lost her touch with the defendants' family and she abandoned them as well as the properties. There are two items of properties in the suit schedule. The first item consists 8 items of properties and the second item consists 2 items. The defendants have alienated 0.90 cents of nanja land in R.S.No.253/7B and another extent of 0.96 of nanja land in the suit properties without reference to the plaintiff by the sale deeds dated 22.06.1968 and 23.12.1974. Though the plaintiff had stated in the plaint that she gave consent for alienating the property under Ex.B-1 under the sale deed dated 22.06.1968, a perusal of Ex.B-1 would show that the plaintiff is not a party to that document and absolutely there is no signature of the plaintiff to show that she has given consent to sell the said property by the 1st defendant. Similarly, the plaintiff had stated that by Ex.B-2 dated 23.12.1974, the 1st defendant had sold 0.96 cents of nanja land and she was not aware of the said transaction. The said statement of the plaintiff cannot be believed because after sale, the possession went into the hands of purchaser. Though the sale took place in the year 1974, the suit was filed in the year 1991. Therefore, the plaintiff's statement that she was not aware of the sale for such a long period cannot be accepted. On the other hand, it is clear from Exs.B-1 and B-2 that the plaintiff had allowed the defendants to sell the property without reference to her and that she had been clearly ousted from the enjoyment of the properties and as such, she has lost her right by reason of open assertion of hostile title coupled with exclusive possession and enjoyment of the suit properties by the defendants to the knowledge of the plaintiff. 9. The learned counsel for defendants 1, 3, 5 and 7 further submitted that the plaintiff cannot deny the knowledge of the registration of the sale deed. It is the basic principle of law that the registration of the document is a notice to the entire world. Therefore, the knowledge of the plaintiff with regard to the sale of the property by the defendants has to be taken into consideration from the date of registration. Since, with the knowledge of the plaintiff, the defendants were going on selling the property of Kamaludeen, the animus of the plaintiff is apparent that she has abandoned her right if any in the suit properties. Therefore, even if she had any such right, the same has been extinguished by ouster and, as such, the plaintiff is not entitled for partition. In support of the submissions, the learned counsel has relied upon the decision https://hcservices.ecourts.gov.in/hcservices/ reported in T.P.R.PALANIA PILLAI v. AMJATH IBRAHIM ROWTHER (1942) 55 LW 532 (2); VALLIAMMAI ACHI vs. VELU SERVAI (74 L.W.742), ANJANABAI .vs. JASWANTIBAI & OTHERS (CDJ 1992 BHC 026), VIDYADEVI .vs. PREM PRAKASH AND OTHERS ((1995) 4 SCC 496), R.RAVICHANDRAN .vs. THE STATE OF TAMIL NADU (2002-2-L.W.590) and AYEESHA BIBI .vs. S.MOHAMED IBRAHIM AND OTHERS (2002(4) CTC 545). 10. Combating the said submissions, the learned counsel for the plaintiff (the 1st respondent) would submit that the the plaintiff has admitted that the property under Ex.B-1 dated 22.06.1968 was sold only with her consent. Since it was sold with her consent, she has not included the said property in the schedule of the plaint. Therefore, it is incorrect to state that the plaintiff had allowed the defendants to sell the property without reference to her. So far as the property sold under Ex.B-2 is concerned, the plaintiff came to know about the same only seven years prior to the filing of the suit. Since the property was sold within the family i.e. to the husband of the 2nd defendant, she was not in a position to know about the same much earlier. Therefore, it is incorrect to state that by her conduct, the plaintiff had abandoned her right in the properties. 11. The learned counsel for the plaintiff further submitted that since the document has been registered, it does not mean that it is a notice to the entire world and on the other hand, it is only a constructive notice to a person, who subsequently acquired the property or interest or any part thereof. Since the registration is a notice to the subsequent purchaser, it cannot be said that registration is a notice to the co-owner also. In the instant case, the evidence on record would show that the plaintiff came to know about the sale of the property under Ex.B-2 only seven years prior to the suit and thereafter, she filed the suit for partition and hence, the question of ouster will not arise. Only if the property is sold to a stranger to the knowledge of other co-owner and in spite of that, the co-owner kept quiet, then only the application of the principle of ouster would arise. In the instant case, the property was not sold to a stranger, but within the family members. In support of the submissions, the learned counsel has also relied on the decisions reported in MOHAMMED ISMAIL ..vs.. KHADIRSA ROWTHER ((1982) 95 L.W.609), HEMAJI WAGHAJI JAT .vs. BHIKHABHAI KHENGARBHAI HARIJAN ((2009) 16 SCC 517) and BONDER AND ANOTHER .VS. HEM SINGH (DEAD) BY LRS. ((2009) 12 SCC 310). https://hcservices.ecourts.gov.in/hcservices/ 12. This Court has carefully considered the submissions of learned counsel for the parties and perused the records. 13. Basing upon the divergent submissions made by either counsel, the Court has to look into as to, (1) Whether the right of the plaintiff in the suit properties has been extinguished by ouster ? (2) Since the 1st defendant has been in exclusive enjoyment of the properties for a long a period, whether the plaintiff has lost her right by reason of open assertion of hostile title coupled with exclusive possession and enjoyment of the suit properties by the defendants ? 14. With regard to the first question, it is the submission of the learned counsel for the appellants that the plaintiff has lost her touch with the defendants' family after her marriage and at the time of marriage, the properties worth more than the share of the plaintiff have been sold and her marriage was celebrated to her satisfaction. Moreover, two properties, one measuring 0.90 cents of nanja lands in R.S.No.253/7B and another land measuring to an extent of 0.96 cents of nanja lands which are included in the suit properties were sold under Exs.B-1 and B-2 in the years 1968 and 1974 respectively. It is further subsmitted that these properties were sold in utter exclusion and without reference to the plaintiff and, therefore, the conduct of the plaintiff, by allowing the defendants to sell the property without reference to her, would establish the animus of the plaintiff that she had abandoned her right in the suit properties. Hence, by applying the principle of ouster, the suit filed for partition ought to have been dismissed by the courts below. 15. On the contrary, it is the submission of the learned counsel for the plaintiff that only with her consent, one of the properties was sold in the year 1968 for the performance of the marriage of one of the daughters of the 1st defendant, and, therefore, the principle of ouster could not be applied relying upon the sale deed marked as Ex.B-1. With regard to the next document Ex.B-2, it is the contention of the plaintiff that since by virtue of the said document, the property was sold within the family members i.e.to the husband of the 2nd defendant and only in those circumstances, she was not in a position to know the transaction and she came to know about the sale only seven years prior to the filing of the suit and thereafter, she filed the suit. 16. The learned counsel for defendants 1, 3, 5 and 7, by inviting the attention of this Court to Ex.B-1 sale deed dated 22.06.1968, submitted that in the said sale deed, there is no signature of the plaintiff and hence, the case put forth by the plaintiff that she had given consent to sell the property could not be accepted. On the https://hcservices.ecourts.gov.in/hcservices/ other hand, the said document shows that the plaintiff had allowed the defendants to sell the property without reference to her. But on going through the pleadings of the plaintiff, I find that it is the definite case of the plaintiff that only on her consent, the property was sold under Ex.B-1. P.W.1, in her cross examination, had stated that she had also signed the document, but, as contended by the learned counsel for the appellants, there is no signature of the plaintiff in Ex.B-1. It is to be noted that though there is no signature in Ex.B-1, the very factum that the plaintiff has not included the said property in the suit schedule, would support her case that only on her concurrence, the property ought to have been sold. 17. So far as the property sold under Ex.B-2 is concerned, the case of the plaintiff that since the said property was sold within the family members i.e. the husband of the 2nd defendant, the plaintiff was not in a position to know about the said sale and she came to know the same only seven years prior to the filing of the suit, cannot be negatived. Now it is the submission of the learned counsel for defendants 1, 3, 5 and 7 in this appeal that irrespective of the case put forth by the defendants with regard to the plaintiff's knowledge about the sale by the defendants, under law, knowledge with regard to the sale has to be taken into consideration from the date of registration since the registration of the document is a notice to the entire world. Though the sale took place under Exs.B-1 and B-2 in the years 1968 and 1974 respectively, she had filed the suit only in the year 1991. Therefore, since she had kept quiet from the date of registration of the sale nearly for a period of 22 years, it is apparent that by allowing the defendants to sell the property, she waived her right, if any, in the suit properties. Moreover, by open assertion of hostile title coupled with exclusive possession and enjoyment of the suit properties by the defendants denying the title of the plaintiff, the defendants had prescribed title over the suit properties. It would be appropriate at this stage to rely on the judgments relied on by defendants 1, 3, 5 and 7. In (1942) 55 LW 532 (2), a Full Bench of this Court has held as follows: "In Sheik Abdul Gafur v. Ashamath Bibi, a Bench of this Court (Seshagiri Aiyar and Moore, JJ.) held that possession of an alienee from one of several co-tenants becomes adverse as against the other co-tenants from the moment of the entry into-possession by the alienee. This judgment was based on the decisions of this Court in Secretary of State v. Vira Rayan (1885) I.L.R. 9 Mad. 175. and Muthusami v. Ramakrishnal (1889) I.L.R. 12 Mad. 292. and the judgment of the Full Bench of the Bombay High Court which decided Bhavrao v. Rakhmin (1898) I.L.R. 23 Bom. 137 (F.B.). and the judgment of the Bench of the Calcutta High Court which decided Jogendra Nath Rai v. Baladeo Das (1907) I.L.R. 35 Cal. 961. In Secretary of State https://hcservices.ecourts.gov.in/hcservices/ v. Vira Rayan, (1885) I.L.R. 9 Mad. 175. Turner, C.J. and Muttuswami Aiyar, J., held that the ignorance of the owner would not prevent the accrual of title by prescription and in Muttusami v. Ramakrishna (1889) I.L.R. 12 Mad. Muttuswami Aiyar, J., sitting with Wilkinson, J., held that the contention that the possession of one coparcener was the possession of all for purposes of limitation could have no application as between a purchaser from one coparcener and the other-members of the family. The plaintiffs in that case were members of a joint Hindu family, who alleged that there had been a partition and a sale to them by the other members of a share in the family properties more than twelve years before the suit, and they claimed to eject a more recent purchaser. The plaintiffs did not prove that there had been a partition and it was held that the suit was barred. Decisions of this Court to the same effect were given in Linga Munisami Reddi v. Govindaswami Naicken (1921) 42 M.L.J. 364. and Palaniappa Chetty v. Raman Chetty (1933) 39 L.W. 161. In the Bombay case, Bhavrao v. Bakhmin (1898) I.L.R. 23 Bom. 137 (F.B.). the question was asked what was the purchaser's position with reference to a coparcener's vendor or mortgagor and the answer given was: "As he enters, as owner and in right of his conveyance, his possession is adverse to them also. In the eye of the law, all the coparceners, though for the sake of convenience they may be in separate possession of portions of the joint estate, are the owners of the whole estate including the alienated portion. It may be and indeed is the case that such a purchaser by his purchase does not get a good title to the land conveyed to him by a single coparcener, but only the qualified right laid down in Pandrang v. Bhaskar (1871) 11 Bom.H.C.R. 72. and he is liable under some circumstances even to be evicted if the coparceners take the requisite steps within the statutory period. Nevertheless his exclusive possession does not on that account cease to be adverse. He, entering as owner, his possession must, we think, necessarily be adverse to the true owners. Adverse possession depends upon the claim or title under which the possessor holds and not upon a consideration of the question in whom the true ownership is vested whether in a single person or in many jointly". With these observations we find ourselves in complete agreement". https://hcservices.ecourts.gov.in/hcservices/ 18. In 1974 L.W.742 (supra), a Division Bench of this Court has held as follows: "Mr. Natesan who appeared for the respondents referred to us the decision reported in Chennabasavaq Gowd v. Mahabaleswarappa (1954) 1 M.L.J. 714 : (1954) S.C.J. 475 : 1 S.C.R. 131 (S.C.). In that case the father and his infant son were entitled as co-owners to a particular item of property. The father so conducted himself as to show that the property belonged solely to his infant son. Indeed he executed a lease of the entire property for a period of 12 years describing it as the property of his minor son alone. The Supreme Court held that in granting the lease on behalf of the infant, the father definitely asserted exclusive title of his son to the property by implication and denied his own rights as co-owner thereof. The possession of the lessee was, therefore, held to be possession of the minor son; that amounting to an ouster, it was held that the father lost title to his half share. In that case there was something more than mere exclusive enjoyment by a co-owner of the entirety of the property. There was an alienation by way of lease of the property in favour of a stranger, an open repudiation of the co-sharer's title. The probative value of that alienation was that to the knowledge of the other co-sharer there was a denial of his title by the alienating co-sharer. That would, in law, amount to an ouster. In the present case there has been no such alienation of the property except within 12 years of the present suit. The suit itself was filed within five years of the alienation. No question of ouster amounting to adverse possession by the alienee for the statutory period does at all arise in the present case". 19. In CDJ 1992 BHC 026 (supra), the Bombay High Court has held as follows: "23. The purchasers (the defendants) on the other hand rely upon the Full Bench decision of this Court in Bhavrao v. Rakhmin, (1899) 1LR 23 Bom, 137. Where coparceners have alienated their shares in the joint family property by sale and mortgage and the alienees have been in possession for more than 12 years, a claim for partition, as against such alienees, is barred by limitation under Article 144 of the Limitation Act. We have extracted the relevant portion as under : "What,