Merely Mortgaging Property Not Sufficient To Disrupt Presumption Of Joint Possession By Co-Heirs: Madras High Court

The Madras High Court held that merely mortgaging the property is not sufficient to disrupt the presumption of joint possession by co-heirs/co-owners.

The Court held thus in an Appeal filed under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908 (CPC), praying to set aside the Judgment and Decree passed by the Additional District Court.

A Single Bench of Justice R. Sakthivel 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 Bench remarked that 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.

Advocate S. Saravana Kumar appeared for the Appellant, while Advocates T.L. Thirumalaisamy and R. Poornima appeared for the Respondents.

Case Background

The Plaintiff’s case was that the Plaintiff was the sister of the First Defendant and Second Defendant was the purchaser of the Suit Properties from the First Defendant vide Sale Deed dated October 15, 2012. The Suit Properties belonged to the father of Plaintiff and First Defendant, namely one Muthusamy Gounder, as his self-acquired properties by virtue of a Sale Deed dated September 7, 1940. Father Muthusamy Gounder passed away intestate in or about 1968, leaving behind his wife - Perumayee, the Plaintiff and the First Defendant as his legal heirs. The Plaintiff, First Defendant, and their mother were in joint possession and enjoyment of the Suit Properties. While so, mother Perumayee passed away intestate on July 28, 2012. After the demise of Perumayee, the Plaintiff and the First Defendant were in continuous possession and enjoyment of the Suit properties. Thus, the Plaintiff was a co-heir / co-owner entitled to ½ share in the suit properties.

With a view to defeat and defraud the Plaintiff's lawful right over the suit properties, on October 15, 2012, the First Defendant executed a Sale Deed in favour of the Second Defendant in respect of the entire Suit Properties without the consent and knowledge of the Plaintiff, for a sale consideration of Rs. 8,50,000/-. Though the Second Defendant acquired the Suit Properties from the First Defendant, till date he did not take possession thereof. On coming to know about the execution of the Sale Deed, the Plaintiff approached the First Defendant for partition of the Suit properties. However, the First Defendant refused to do so. Therefore, the Plaintiff issued a legal notice dated December 17, 2012 to the First Defendant seeking partition. The First Defendant received the notice and did not come forward to partition the Suit Properties till date. Hence the Suit for partition and declaration that the Sale Deed dated October 15, 2012 executed in favour of the Second Defendant as null and void.

Court’s Observations

The High Court in view of the facts and circumstances of the case, noted, “It is highly probable that Ex-B.5 and Ex-B.7 stand in the name of first defendant only in that manner. Even while assuming that the plaintiff was excluded and that is why Ex-B.5 and Ex B.7 did not have the plaintiff's name, in such a scenario, mother - Perumayee's name ought to have been there. But that is not the case here.”

The Court said that there is no evidence available on record to show that the First Defendant's name was mutated in Patta after giving due notice to the Plaintiff.

“In the absence of notice and given the societal norms, 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 added.

The Court further observed that unless the First Defendant establishes that he is in possession and enjoyment of the Suit Properties denying the Plaintiff's rights over it, in an open and express manner to the notice of the Plaintiff, he cannot succeed the plea of ouster and adverse possession.

“There seems to be no such denial in this case, that too, to the notice of the plaintiff. Moreover, 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 - Muthusamy Gounder or mother - Perumayee could have very well executed a Will in favour of the first defendant alone in respect of their shares in the suit properties. But that is not the case here", it remarked.

Conclusion

The Court also said that the Trial Court rightly found that the Suit Properties are ancestral Properties; however, its finding that the father should be alive on September 9, 2005 for the daughter to be able to enforce her co parcenery right is erroneous and hence, its Judgment and Decree are liable to be interfered with by the Court.

“Plaintiff is entitled to ½ share in the Suit Properties. A preliminary decree is passed in favour of the Plaintiff to the aforesaid extent. … The Sale Deed dated October 15, 2012 registered as Document No.2160 of 2012 on the file of Sub-Registrar, Velagoundampatti stands in the name of the second Defendant would not bind the Plaintiff and her right (½ share) over the Suit Properties”, it concluded.

Accordingly, the High Court allowed the Appeal and set aside the Trial Court’s Judgment.

Cause Title- Sellammal v. Palanisamy & Anr. (Neutral Citation: 2025:MHC:2828)

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