The Madras High Court ruled that a brother cannot claim ouster or adverse possession against his sister merely by mutating revenue records or mortgaging family property, reaffirming that possession of one co-heir is presumed to be on behalf of all co-heirs.
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CHENNAI: The Madras High Court has delivered a ruling reaffirming the property rights of daughters, holding that a brother cannot claim ouster or adverse possession against his sister merely because revenue records stand in his name or because he mortgaged the family property.
Justice R. Sakthivel, allowing an appeal, ruled that possession of one co-heir is presumed to be possession on behalf of all co-heirs, unless there is a clear, open, and hostile denial of rights to the knowledge of the other co-owners.
The Court set aside the dismissal of a partition suit by the lower court and granted the daughter a half share in her father’s property, declaring a sale deed executed by her brother as not binding on her share.
Legal Issue
The core legal question before the Court was:
Does a daughter lose her right to ancestral property if her brother enjoys it exclusively, mutates revenue records in his name, and mortgages it after the father’s death?
The High Court answered this emphatically in the negative.
Background of the Case
The dispute relates to properties originally owned by Muthusamy Gounder, who died intestate in 1968. He was survived by his wife Perumayee, his son Palanisamy, and his daughter Sellammal. After the father’s death, the family continued to hold the properties jointly. Perumayee passed away on July 28, 2012, and soon thereafter, the son executed a sale deed dated October 15, 2012, conveying the entire suit property to a third party without the knowledge or consent of his sister. Claiming that the sale was illegal and that she continued to be a co-owner, the daughter filed a partition suit in 2013 seeking her lawful share.
However, the Trial Court dismissed the suit, holding that the properties were ancestral in nature, that the father had died before the 2005 amendment to the Hindu Succession Act, and that the brother had perfected title through long and exclusive possession.
Challenging this decision, the daughter preferred an appeal before the Madras High Court.
Arguments by the Brother
The brother resisted the claim on two main grounds:
1. Ouster and Adverse Possession
- The sister married in 1962 and left the family home.
- He claimed exclusive possession for decades.
- Revenue records were mutated in his name.
- He mortgaged the property multiple times.
- Hence, the sister’s rights were allegedly extinguished.
2. Ancestral Property Argument
- Since the property was ancestral and the father died before 2005, the daughter allegedly had no enforceable right.
High Court’s Analysis
1. Ouster Requires Clear Hostile Denial
The High Court reiterated the settled legal position laid down by the Supreme Court that mere long and exclusive possession by one co-heir does not amount to ouster of another co-heir. The Court held that acts such as mutation of patta, payment of kist, or mortgaging the property, by themselves, are insufficient to establish adverse possession against a co-owner.
For a plea of ouster to succeed, there must be a clear and open assertion of hostile title, continuous and exclusive possession, and, most importantly, a denial of the other co-heir’s rights brought to their knowledge. In the absence of such express and hostile denial, possession of one co-heir continues to be presumed in law as possession on behalf of all co-heirs.
The Court observed:
“In the absence of denial of the plaintiff’s rights, other co-heirs merely mortgaging the property and obtaining loan for their livelihood is not sufficient to disrupt the presumption of joint possession.”
2. Revenue Records Do Not Prove Exclusive Ownership
Justice Sakthivel noted the social reality of Indian agricultural families:
“It is quite natural for the revenue records to stand in the name of male heirs after the demise of the father.”
The Court held that:
- Patta and tax receipts in the brother’s name do not prove ouster
- There was no evidence that the sister was notified or that her rights were denied
3. Hindu Succession Act, 2005 Applies
The Trial Court’s finding that the father must be alive on September 9, 2005, was held to be legally erroneous.
Relying on Vineeta Sharma v. Rakesh Sharma (2020) 9 SCC 1, the Court clarified that a daughter becomes a coparcener by birth under the amended Hindu Succession Act and that the enforcement of her coparcenary rights does not depend on the father being alive on the date of the 2005 amendment, thereby making her right to ancestral property fully enforceable in law.
The Court ruled that:
- A bona fide purchaser’s plea is not available in a partition suit
- The sale deed executed by the brother cannot bind the sister’s share
- The sister can ignore the sale deed to the extent of her half share
The Madras High Court allowed the appeal, set aside the judgment and decree of the Trial Court, and passed a preliminary decree declaring the plaintiff entitled to a half share in the suit properties.
The Court further held that the sale deed dated October 15, 2012, executed by the brother in favour of the second defendant, would not bind the plaintiff’s half share. Taking into account the close family relationship between the parties, the Court made no order as to costs.
Case Title:
Sellammal vs. Palanisamy & Vadivel
Appeal Suit No. 712 of 2017
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