P. Kaliappa Gounder and Others vs Muthuswami Mudaliar

Nainar Sundaram, J.—This appeal arises out of a suit for partition. The defendants in the suit are the appellants. The respondent is the

plaintiff. The suit for partition had come to be filed by the plaintiff on the following basis. The suit properties of an extent of 14.25 acres in S. Nos.

371, 373 and 374 of Iluppanatham village originally belonged to two sets of owners, namely, one half to Vellayappa and the other half to

Angappa, the father of the plaintiff. The undivided interest of the branches of Vellayappa had been sold in favour of the defendants. For the sake of

convenient enjoyment the parties have been in possession of distinct portions. But there was no division by metes and bounds.

The defendants contested the suit stating in substance that there was in fact a partition arrangement entered into and effectuated several years

back and only as per the partition, the parties are in possession of specific portions deliniated by permanent ridges and further the defendants have

improved the portion in their occupation and have deepened the well at a cost of more than Rs. 20,000. The defendants also pleaded ouster and

perfection of title by adverse possession.

The plaintiff filed a reply statement contending that the well in S. No. 371 is a common well and that there has been no ouster as contended by

the defendants. The plaintiff denied that the defendants did improvements to the tune of Rs. 20,000.

On the basis of the pleadings put forth by the parties the court below formulated as many as ten issues as follows : -

Whether the plaintiff is entitled to claim partition on the basis of co-ownership of the properties?

Whether the defendants are in possession of any specific portions of properties as contended by them?

Whether the well in exclusive possession of the defendants is a common well as claimed by the plaintiff ?

Whether the well alleged to belong to the defendants have been deepened in the manner claimed in the written statement ?

Whether the claim of the plaintiff that he is in constructive possession of the entire suit property in spite of separate specific enjoyment of share is

true ?

Whether the suit is properly valued for the purposes of court-fee and jurisdiction ?

Whether the defendants have installed underground pipes as alleged in the written statement ?

Whether the plaintiff has any right in the disputed well ?

Whether there has been any ouster of the plaintiff as alleged ?

To what relief ?

The parties placed their evidence oral and documentary and that was the subject matter of assessment by the Court below and thereafter the

Court below on issue No. 1 held that. the plaintiff is entitled to claim partition on the basis of co-ownership of the properties; on issue No. 2 that

the defendants are in possession and enjoyment of the well and the extent north of the dividing UDHI 1; on issue No. 3 that though the well in the

northern portion is a common well, it has been in the possession and enjoyment of the defendants only; on issue No. 4, that the defendants have

deepened the well in the northern portion; on issue No. 5, that as between co-sharers the possession of one co-sharer in law is the possession of

all co-sharers and hence the claim of the plaintiff is sustainable; on issue No. 7, that the defendants have installed underground pipes as stated in

their written statement; on issue No. 8 that there being no partition by metes and bounds the plaintiff as well as the defendants have rights in both

the wells though it may be that the defendants are in possession and enjoyment of the northern well and the plaintiff is in possession and enjoyment

of the ''southern well; and on issue No. 9 that there has been no ouster of the plaintiff as claimed by the defendants. On issue No. 6, the Court

below has stated that the suit is properly valued as regards the court-fee and jurisdiction and answered the question in favour of the plaintiff. In the

result, the Court below held that the plaintiff is entitled to a partition of his half share in the suit properties as prayed for; that the plaintiff is in

possession and enjoyment of the southern portion as well as the well therein and the defendants are in possession and enjoyment of the northern

portion and the well therein and that the parties are entitled in equity to be in possession of That portion of the land and well in their respective

enjoyment and the equities will be worked out in the final decree proceedings. The Court below granted a preliminary decree in favour of the

plaintiff in the above terms. This appeal is directed against the judgment and decree of the Court below.

Before us, Mr. T. S. Subramanian, learned counsel for the defendants, appellants herein would state that there are very many clinching features

which, from the point of view of the learned counsel, would demonstrate beyond doubt that there was in fact an out and out partition as between

the parties and furthermore, the possession and enjoyment of the defendants to the exclusion of the plaintiff of the northern portion of the properties

was adverse to the plaintiff and there was ouster in law and on facts. We are obliged to examine these contentions in the light of the evidence

placed in the case.

Before we do the analysis of factual materials, we would like to recapitulate the concept of ''partition'' of a joint family. The joint ownership of a

thing is the right of two or more persons to possess and use it to the exclusion of others; and the thing, with regard to which there is the joint

ownership, is called ''the joint property''. In this joint property, the joint owners do not own anything in specie and every joint owner has got right,

title and interest over every piece and parcel of the joint property, subject to the qualification that the quantum of his share in the whole property

stands defined in theory and not on ground. Though joint owners may be content with owning lands in common, yet, subsequently one joint owner

or some joint owners may conceive the idea of owning the property referable to his or their share for himself or for themselves to the exclusion of

the other or the others. This is the reason which motivates the move to get joint property partitioned. The legal term ''partition'' is applied to the

division of lands or properties belonging to joint owners and the allotments amongst them of the parts referable to their shares so as to put an end

to community ownership or joint ownership. Mayne says-

In England ownership as a rule is single, independent and unrestricted. In India on the contrary, joint ownership is the rule and will be presumed to

exist until the contrary is proved.

While individual property appears to be the rule in the West, corporate property appears to be the rule in the East. Though passage of time and

change of notions have shaken up this concept both in theory and in practice, yet, in our country and in particular in rural areas, joint ownership is

allowed to persist by sufferance of custom and convenience until the bone of contention crops on.

Partition is the intentional severance of the joint ownership by an unequivocal expression of an intention to bring out severance in the eye of law

and further implementing it by actual division by metes and bounds. What was held in common as a single property gets converted into a holding in

severalty and in specie. Joint ownership turns into ownership in severalty and in specie. It is true that ''partition'' is not a transfer. But there must be

the element of conversion as the joint ownership into ownership in severalty and in specie. Therefore, the essence of partition is that the joint

ownership is put an end to and the joint owners come to hold the property in severalty and each in his own individual right. In this country, it is

common that not only coparceners of a joint Hindu family but also individuals join or continue together to own property in common. If this common

ownership is to be put an end to not only in theory but also in practice, there must be primarily severance of the joint ownership in the eye of law,

followed up by actual physical division. We make it clear that in the present case, we are not concerned with the concept of a bare unequivocal

expression of an intention to separate to bring about a division in status in a joint Hindu family. It is not unusual for parties holding properties jointly

or in common to have separate enjoyment of portions for the sake of sheer convenience. But such separate enjoyment of convenience cannot be

equated to partition in the eye of law and in fact, so as to say that the joint ownership has been put an end to and in its place ownership in severalty

or in specie has come into existence. Separate enjoyment for the sake of convenience is one thing and partition in the eye of law is another. The

latter carried with it the legal incidents of mutating the joint ownership. The latter has to pass through and satisfy a more rigorous test in law and on

facts.

Keeping in mind the above principle, when we examine the present case, we are not able to subscribe our support to the case of the defendants

that there was in fact a partition or a division of the common properties as between the parties in the eye of law. The features which Mr. T. S.

Subramanian, learned counsel for the defendants, brings to our notice are not adequate in law to support the theory of ''partition''. Learned counsel

would state that the parties are admittedly in possession of different portions; the plaintiff in possession of the southern portion and the defendants

in possession of the northern portion. Learned counsel further states that the defendants have deepened the well in their portion and have put up. a

motor pump set and there is also an underground pipe line in their portion, which exclusively serves the requirements of the defendants and this is

the finding of fact rendered by the Court below. Learned counsel would also urge that on the basis of certificate of ownership, the parties, both the

plaintiff and the defendants, have obtained loans for the purpose of deepening the wells in the portions in their enjoyment. In our view, these

features are not unusual even in the case of common ownership in the eye of law along with separate enjoyment of specified portions for the sake

of convenience. They could be in consonane with the admitted enjoyment of separate portions by the parties, explained by the plaintiff as one for

the sake of convenience. We could not spell out that the joint ownership as such was put an end to and in its place the ownership in severalty and

in specie came into existence. The title of the defendants to the undivided share in the suit properties is derived under several deeds of sale. In all

these documents what the defendants acquired is described as only an undivided share. If in fact, there was a division and consequently a separate

ownership long prior to these alienations, as claimed by the defendants, the parties would not have omitted to make a specific reference to the

same. Such a recital which is not only a natural one but also an absolutely necessary one, is conspicuously absent in all the title deeds under which

the defendants claim right to the suit properties. Admittedly there was no mutation and no separate payment of kist. None of the documents relied

on by the defendants reflects. or speaks about division at all.

Coming to the oral evidence, we find that P. W. 2 is one of the vendors to the defendants, as per Ex. B-7. His evidence requires extraction as

follows : (Matter in vernacular omitted- Ed.)

His evidence clearly shows that he sold only an undivided share in the common properties; there was no division and the ridges were put up only

for flow of water. The first defendant, examined as D. W. 1, has deposed that he purchased only an undivided share; he did not apply for sub-

division; he could not give the measurements of the properties in his enjoyment and he could not say, how much extent he purchased. Consciously,

he referred to the boundaries in the following terms, meaning thereby that there is only bare enjoyment of the lands :

(Matter in vernacular omitted- Ed.)

He did not say (Matter in vernacular omitted- Ed.) meaning thereby that the lands were allotted to him in any division.

The plaintiff was examined as P. W. I and he has stated that until the demise of his father, Anngappa, the joint owners were giving the lands on

lease jointly and were dividing the income as beteen themselves and only recently separate service connections for the wells have been obtained

both by himself -the plaintiff as well as by defendants 1 and 2. Raising of loans on the basis of certificates of ownership for deepening the well is of

no legal consequence at all because admittedly the parties are owners - not individual and separate owners in specie, but joint owners in the

enjoyment of specified portions. The defendants could not even give the time at which the alleged partition took place. The fact of enjoyment of

specified portions of making improvements over such portions and of obtaining loans will not lead to the inference that there was a severance of the

joint ownership and it was converted into ownership in severalty and in specie in the eye of law. Significantly the defendants did not care to

examine, for reasons best known to them, any of their other vendors to prove the factum of division. Their vendor as per Ex. B-7, has been

examined on the side of the plaintiff as P. W. 2, and he has deposed against the theory of division.

Mr. T. S. Subramaniam learned counsel for the defendants would place reliance on the pronouncement of a Bench of this Court in Ibramsa

Rowther and Others Vs. Sk. Meerasa Rowther and Others, , for the proposition that long possession and enjoyment of separate portions by the

parties must lead to the inference of ouster. The Bench, consisting of Ramamurthi and Maharajan, JJ. only reiterated the proposition that if the

other circumstances agree, the Courts in appropriate cases, may legitimately infer from exclusive possession for a considerable length of time that

the other co owner has been excluded to his knowledge and that title has been denied and repudiated by the hostile assertion of the co-owner in

possession. The facts of that case, as discussed in the judgment of the Bench, disclose that there were separate items of lands in a particular village,

some of which were alienated by the party in possession and further there was an admission in an earlier litigation by the plaintiff of a family

arrangement and partition, and these, amongst other circumstances were taken note of by the Bench as abundant circumstance concurring to

support the presumption of ouster, taking along with exclusive possession for a considerable length of time. Significantly in the present case, we do

not face any other circumstance concurring with and supporting the theory of ouster on the basis of exclusive possession for a considerable length

of time.

Hence, in our view, no support could be derived from the ratio of the Bench for the present case, because the facts here are different and do

not come any way near the facts dealt with by the Bench. The features discussed by us above oblige us to reject the case of partition put forth by

the defendants and the Court below has correctly approached and assessed this aspect of the matter.

Accordingly, the appeal fails and the same is dismissed. But, in the circumstances, of the case, we make no order as to costs.

We find that to work out equities on the basis of separate enjoyment of specified portions, the Court below has already directed that, that has

to be done only in the final decree proceedings. This direction is perfectly in order and that is the appropriate stage at which investigation over this

aspect could be conveniently done.

Appeal dismissed.