Whether suit for partition can be defeated by defence of ous


Whether suit for partition can be defeated by defence of ouster of co-owner?

 
Ouster is a weak defense in a suit for partition of familyproperty and it is strong if the defendant is able to establish
consistent and open assertion of denial of title, long and
uninterrupted possession and exercise of right of exclusive
ownership openly and to the knowledge of the other co-owner.
 This court in Syed Shah Ghulam Ghouse Mohiuddin
and others v. Syed Shah Ahmed Mohiuddin Kamisul
Quadri and Ors (1971) 1 SCC 597
 held that possession of one co-owner is
presumed to be on behalf of all co-owners unless it is
established that the possession of the co-owner is in denial of
title of co-owners and the possession is in hostility to co-owners
by exclusion of them. It was further held that there has to be
open denial of title to the parties who are entitled to it by
excluding and ousting them.
22. A three judge bench of this court in P.Lakshmi Reddy v.
R.Lakshmi Reddy AIR 1957 SC 1789
, while examining the necessary conditions
for applicability of doctrine of ouster to the shares of coowners,
held as follows:
“4. Now, the ordinary classical requirement of
adverse possession is that it should be nec vi
nec clam nec precario. (See Secretary of State
for India v. Debendra Lal Khan [ (1933) LR 61 IA
78, 82] ). The possession required must be
adequate in continuity, in publicity and in extent
to show that it is possession adverse to the
competitor. (See Radhamoni Debi v. Collector of
Khulna [ (1900) LR 27 IA 136, 140] ). But it is
well-settled that in order to establish adverse
possession of one co-heir as against another it is
not enough to show that one out of them is in
sole possession and enjoyment of the profits of
the properties. Ouster of the non-possessing coheir
by the co-heir in possession who claims his
possession to be adverse, should be made out.
The possession of one co-heir is considered, in
law, as possession of all the co-heirs. When one
co-heir is found to be in possession of the
properties it is presumed to be on the basis of
joint title. The co-heir in possession cannot
render his possession adverse to the other coheir
not in possession merely by any secret
hostile animus on his own part in derogation of
the other co-heir's title.
(See Cores v. Appuhamy [(1912) AC 230)]. It is
a settled rule of law that as between co-heirs
there must be evidence of open assertion of
hostile title, coupled with exclusive possession
and enjoyment by one of them to the knowledge
of the other so as to constitute ouster. This does
not necessarily mean that there must be an
express demand by one and denial by the
other.”
23. This Court in Vidya Devi v. Prem Prakash

(1995) 4 SCC 496 held that:
“28. ‘Ouster’ does not mean actual driving out of
the co-sharer from the property. It will, however,
not be complete unless it is coupled with all other
ingredients required to constitute adverse
possession. Broadly speaking, three elements are
necessary for establishing the plea of ouster in the
case of co-owner. They are (i) declaration of
hostile animus, (ii) long and uninterrupted
possession of the person pleading ouster, and (iii)
exercise of right of exclusive ownership openly
and to the knowledge of other co-owner. Thus, a
co-owner, can under law, claim title by adverse
possession against another co-owner who can, of
course, file appropriate suit including suit for joint
possession within time rescribed by law.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 1858-1859 OF 2016
(Arising from S.L.P. (C) Nos. 10449-10450/2009)
NAGABHUSHANAMMAL (D) BY LRS. … APPELLANT (S)
VERSUS
C. CHANDIKESWARALINGAM … RESPONDENT (S)
Citation;(2016) 4 SCC434
Dated;February 26, 2016.
 

http://www.lawweb.in/2016/05/ouster-of-one-co-owner-is-weak-defense.html#more

 
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Advocate

Yes I am of the same view expressed above
 
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Advocate

Yes I am of the same view expressed above
 
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Advocate

An informative article and judgment, thanks to the author.

 
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