Two sisters sued their only brother for a one-third share each in their late parents’ properties, and won in both courts below. The Madras High Court has reversed that outcome, on two grounds that have nothing to do with a daughter’s undoubted right to inherit: as to the mother’s properties, decades of silence amounted to ouster; and as to the father’s, a Will had left them to his granddaughters, who were never made parties to the suit.
Chennai: The Madras High Court has set aside the concurrent decrees of two courts below that had granted two sisters a one-third share each in their parents’ properties in a suit for partition filed against their sole brother, holding the suit to be defeated by ouster in respect of one set of properties and bad for non-joinder of necessary parties in respect of the other [M. Pandiarajan v. Andal and Another].
Justice Dr G. Jayachandran, allowing the brother’s second appeal under Section 100 of the Code of Civil Procedure, set aside the trial court’s preliminary decree of partition and the first appellate court’s confirmation of it.
The dispute
The two sisters (the plaintiffs) and their brother (the defendant) are the children of parents who died intestate, the mother in 1991, leaving the properties in the ‘A’ schedule, and the father in 2009, leaving those in the ‘B’ schedule. After the father’s death, the sisters sought their one-third shares; the brother refused, and the suit for partition followed. The brother resisted the claim, relying on two Wills, one said to have been executed in 1953 by the maternal grandmother and another in 2005 by the father, and pleading, among other things, that the suit schedule was incorrect and that the sisters had been ousted.
Ouster as to the mother’s properties
On the ‘A’ schedule properties, which had belonged to the mother, the Court held that the sisters had lost their right to claim a share by reason of ouster. Although a co-owner’s possession is ordinarily possession on behalf of all co-owners, and mere non-participation in the enjoyment of the property does not amount to ouster, the Court noted that where a co-owner remains wholly inactive for a long period, the Court may, along with other circumstances, legitimately draw an inference of ouster. Here, the mother had died in 1991, but the sisters raised no claim to her properties until the notice of December 2009, a silence of nearly two decades, which, taken with the other circumstances, the Court held sufficient to hold them ousted from the mother’s properties.
The Court also noted the terms of the grandmother’s Will, under which the intention was that the properties devolve upon the daughter (the sisters’ mother) and thereafter upon the grandchildren, so that the properties, in any event, stood to be shared among a wider set of beneficiaries than the two sisters alone.
Non-joinder as to the father’s properties
On the ‘B’ schedule properties left by the father, the Court noted that the courts below had doubted the genuineness of the father’s 2005 Will, because the attesting witnesses had not deposed that the testator had signed the Will in their presence, having said only that the Will was brought to them already prepared and that they signed it. Under Section 68 of the Indian Evidence Act, at least one attesting witness must, where available, prove that the testator signed or affixed his mark in the presence of the attesting witnesses; on that footing, there was a lacuna in the proof of the Will’s execution.
Crucially, however, the Court held that even so, the suit was fatally defective for non-joinder of necessary parties. Under the father’s Will, properties had been given not only to the defendant but also to his granddaughters (the daughters of the parties), who were therefore necessary and proper parties to any partition suit in which the Will and those properties were in issue. The plaintiffs, though aware of the Will and its beneficiaries, had not impleaded the granddaughters; a partition decree passed in their absence, the Court held, could not stand. The finding that the Will was not proved could not cure the defect, since the very properties and beneficiaries were left out of the array of parties.
The Court further observed that the suit suffered from factual incorrectness, in that the schedule included properties not available for partition, some not owned by the parents, or already sold, and even properties standing in the names of the granddaughters, which reinforced the conclusion that the suit as framed could not be decreed.
Why it matters
The judgment is a reminder that a daughter’s, or sister’s, right to inherit, firmly established in law, is one thing, and the successful prosecution of a partition suit is another. A partition suit must be properly constituted: it must implead everyone with an interest in the properties sought to be divided, and it must correctly describe the properties available for partition. Where the persons to whom some of the properties have been given, here, the granddaughters named in the father’s Will, are left out, the suit is bad for non-joinder of necessary parties, and a decree passed without them cannot bind them or stand. The defect is not about the merits of anyone’s inheritance but about the frame of the suit.
The ruling on ouster is a caution of a different kind. Co-ownership is generous in its assumptions, one co-owner’s possession is treated as possession for all, and a share does not lapse merely because a co-owner does not actively enjoy the property. But prolonged and unexplained inaction is not costless: where a co-owner sleeps on the right for a very long time while others deal with the property, a court may infer ouster and decline the belated claim. The nearly two-decade gap between the mother’s death and the first assertion of a claim proved decisive on the mother’s properties.
Finally, the treatment of the father’s Will illustrates the discipline of proving a testament: Section 68 of the Evidence Act requires an attesting witness to speak to the testator having signed in the presence of the witnesses, and evidence that the witnesses merely signed a document brought to them, without witnessing the testator’s signature, leaves the execution unproved. In this case, though, that lacuna ultimately mattered less than the frame of the suit, which failed for want of necessary parties and for including properties that were not available to be partitioned. The setting aside of the decree leaves the parties to any properly constituted proceedings that may follow; given the sibling relationship, the Court made no order as to costs.
Case Title: M. Pandiarajan v. Andal and Another [S.A. No. 1093 of 2015]
Bench: Justice Dr G. Jayachandran, High Court of Judicature at Madras
Reserved: August 28, 2026 | Delivered: September 10, 2026
Appearances: Mr S. Nagarajan for the appellant; Mr S. Vigneshwaran, for Mr S. Arivazhagan, for the respondents.
Status: Second appeal allowed. Concurrent partition decrees set aside, the suit held defeated by ouster as to the mother’s properties and bad for non-joinder of necessary parties as to the father’s. No order as to costs.