TaxTMI 
TaxTMI 
2020 (6) TMI 791
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....nnusamy, tenth defendant died during the pendency of the suit and therefore, his legal heirs were impleaded as D13 to D15 in the suit. The Plaintiffs are the legal heirs of Ramachandran. 4. Annasamy, Son of Govindasamy Naidu died leaving behind his legal heirs by name Dhanalakshmi, Kamalam (D-1), Duraisamy (D-2), A. Rajagopal (D-3), A. Dhamodaraswamy. Among the legal heirs of Annasamy, Dhanalakshmi and Dhamodaraswamy died even before the institution of the suit and therefore they are not arrayed as parties to the suit. The first defendant Kamalam died during the pendency of the suit and therefore her legal heirs were brought in as D-11 and D-12 respectively. Similarly, the second defendant Duraisamy died and his legal heirs were brought in as D-16 to D-18 in the suit. The defendants 4, 5 and 6 are the legal heirs of Dhamodarasamy, son of Annasamy. Dhanalakshmi, Daughter of Annasamy died even before institution of the suit and therefore her son by name Ravichandran was arrayed as seventh defendant in the suit. 5. For more clarity and better appreciation of the relationship of the parties to the suit, it must be stated that the plaintiffs and defendants are descendants of Guruvappa....
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....ning extent on those three survey fields measuring 10.44 ½ acres was jointly allotted to Govindasamy Naidu and Chinnama Naidu. 7. The Plaint proceeds to refer to the registered mortgage of the property purchased by Govindasamy Naidu and Chinnama Naidu on 05.04.1911 jointly by both the brothers in the name of one Thavasi Konar on 05.12.1911 in which the other co-purchaser Appasamy was an attestor. It has been specifically mentioned in the said document that the properties covered in the said mortgage deed are self-acquired properties of the said two brothers and the same was purchased in the name of one of the brothers by name Govindasamy Naidu. After redeeming the mortgage and asserting an ownership over the lands, the brothers have once again mortgaged their respective 1/4 share in the property in favour of one Ayyavu Konar, son of the earlier Mortgagee Thavasi Konar under a registered mortgage deed dated 03.03.1926. This mortgage was executed by the elder brother Govindasamy Naidu as well as the younger brother namely Chinnama Naidu. Thereafter, the younger brother Chinnama Naidu executed a registered mortgage on 13.09.1943 in favour of one Velliangiri Thevar in respect o....
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....n application in I.A. No. 195 of 2000 has been filed seeking to withdraw the suit with leave to file a separate partition suit on the same cause of action. The said application in I.A. No. 195 of 2000 was allowed on 28.03.2001 and the suit in O.S. No. 280 of 1994 was dismissed as withdrawn with liberty to file a fresh suit on the same cause of action. 11. It is the plea of the plaintiffs that Ramachandran, one of the sons of Chinnama Naidu continued to be in joint possession of the suit property along with his co-sharers which is evident from the Patta issued by Tahsildar on 27.06.2008. It is further pleaded that Ramachandran, father of the plaintiffs, made several attempts to partition the suit property with his brother Ponnusamy, however, he could not succeed in such attempt until his death in the year 2007. The Plaintiffs also made concerted efforts to divide the suit property into metes and bounds among the legal heirs. It is also stated that the suit property continued to be in possession jointly by the legal heirs of Govindasamy Naidu and Chinnama Naidu. At this stage, the plaintiffs received a notice dated 18.05.2010 from the Tahsildar, Sulur. The said notice was issued on ....
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....sly included in the revenue records. Earlier, Ramachandran, father of the plaintiffs filed a suit in O.S. No. 280 of 1994 for partition and separate possession of the suit property and it was dismissed. When the appeal as against the decree and judgment in O.S. No. 280 of 1994 was pending, the suit was withdrawn on 28.03.2001 with a liberty to file a fresh suit. But, Ramachandran, who withdrew the suit, did not file any fresh suit till his death in the year 2007. However, three years after the death of Ramachandran and nine years after withdrawal of the appeal against the Judgment and Decree passed in O.S. No. 280 of 1994, the instant suit has been filed for partition and separate possession by the legal heirs of Ramachandran. Therefore, the third defendant prayed for dismissal of the suit on the ground of limitation. 14. The defendants 7, 11 and 12 have also filed written statement contending inter alia that Chinnama Naidu did not contribute any amount for purchasing the suit property and the entire contribution was made only by Govindasamy Naidu. Therefore, the plaintiffs, who are descendants of Chinnama Naidu, have no right, interest or share in the suit property. The suit has ....
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....cause of action. Therefore, the present suit filed by the legal heirs of Ramachandran is barred by limitation. 18. Though all the issues framed by the trial court were answered in favour of the plaintiffs, the suit was dismissed by the trial court on the ground of limitation in filing the suit. Assailing the validity of such judgment and decree passed by the trial court on 21.11.2017 in O.S. No. 534 of 2010, the plaintiffs are before us with this appeal. 19. At the outset, the learned counsel for the respondents/defendants submits that even though the trial court decided most of the issues in favour of the plaintiffs, ultimately, the suit was dismissed only on the ground of limitation, hence, the respondents/defendants are entitled to make their submission before this Court in respect of all the issues decided by the trial court, in the present appeal filed by the appellants/plaintiffs as provided under Order 41 Rule 33 of Code of Civil Procedure. Accepting such submission of the counsel for the respondents, we proceeded to hear the counsel for the parties. 20. The learned counsel appearing for the appellants would vehemently contend that under Ex. A1, sale deed dated 05.04.1911....
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....brother Chinnama Naidu in respect of 1/8 share in the suit property Further, Ex. B15 is a registered document and it is sufficient to prove the title of Chinnamma Naidu. While so, in the written statement filed by the defendants 2 to 9 and 11, 12, 16 and 18, they have contended that Chinnama Naidu has not contributed anything for purchasing the suit property. Such a plea in the written statement need not be considered inasmuch as Ex. A2 was executed atleast eight decades before the birth of the defendants and a century prior to institution of the suit in the year 2010. Therefore, the defendants cannot have any personal knowledge about the contribution made by their grandfather-Chinnama Naidu and it has to be inferred only from the recitals contained in the documents and other attendant facts and circumstances of the case. 22. The learned counsel for the appellants proceeded to contend that on 03.03.1926, Govindasamy Naicker executed a mortgage deed in favour of Ayyavoo Konar, under Ex. B15. On the same day, under Ex. A5, Chinnama Naidu has executed a registered mortgage deed in favour of the very same Ayyavoo Konar for the purpose of discharging the balance debt payable by him und....
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....a Naidu and the mortgage deed under Ex. A2 was executed to discharge the past debt. Therefore a conjoint reading of Exs. A1, A2, A5 and B15 would only go to show that Chinnama Naidu had equally contributed for purchasing the suit property along with his brother Govindasamy Naidu. The defendants also did not let in any contra evidence to disprove the recitals contained under Ex. A1, A2, A5 and B15 and therefore, the trial court has also, by and large, accepted these recitals to conclude that the suit property was jointly purchased by Govindasamy Naidu and Chinnama Naidu, which was also not assailed by the defendants by filing any cross-appeal. 24. Yet another submission of the counsel for the appellants is that before the trial court, one of the defences raised by the defendants/respondents herein is that the suit claim is barred under the Prohibition of Benami Property Transactions Act, 1988 and on that ground the suit is liable to be dismissed. According to the learned counsel for the appellants, such a contention raised by the respondents/defendants is contrary to Section 2(9), (ii)(iv) of the amended Act (Amended Act, 2016). In this case, Govindasamy Naidu and Chinnama Naidu ha....
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....was filed to withdraw the suit with liberty to file a fresh suit on the same cause of action. Accordingly, granting liberty to file a fresh suit on the same cause of action, the appeal in A.S. No. 188 of 1999 was dismissed as withdrawn on 28.07.2001. However, after withdrawing the appeal, Ramachandran did not file any fresh suit until his death. Rather, he persuaded all the legal heirs and attempted to find out an amicable resolution of the dispute. The fact remains that till his death, Ramachandran was in joint possession of the suit property and after his death, the plaintiffs continued to remain in joint possession of the suit property along with the defendants, which is evident from Exs. A24 and A25, Patta and Adangal Extract filed by the plaintiffs/appellants. It is also submitted that at no point of time, the defendants/respondents herein disputed the joint possession of the suit property by the appellants and that is the reason why a petition dated 19.10.2009 was given by the defendants 2 and 3, who are sons of Annasamy to the Tahsildar to remove the name of Ramachandran in the joint patta. The said Petition was given by suppressing the fact that Ramachandran died on 10.06.2....
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....pellant therefore prayed for setting aside the judgment and decree of the trial court and to allow this appeal. 26. Per contra, the learned counsel for the first respondent would contend that earlier, Ramachandran had filed the suit in O.S. No. 280 of 1994 for partition and it was dismissed on 17.08.1998. The said suit was filed by him after issuing a notice dated 07.03.1994 calling upon all the legal heirs to come for partition of the suit property, amicably. A reply notice dated 17.03.1994 was issued thereto by specifically denying the title of Ramachandran over the suit property. While so, Ramachandran has filed the suit only for partition without getting his title declared by seeking a declaratory relief. An appeal there against was filed in A.S. No. 188 of 1999. During the pendency of the appeal, Ramachandran filed an application to withdraw the suit with liberty to file a fresh suit on the same cause of action. However, no such suit was filed by Ramachandran till his death on 10.06.2007. Even the present suit was filed by the plaintiffs without a prayer for declaration of their title. Further, the present suit was filed on 07.07.2010 beyond three years from the date of death....
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....ssion does not create a title; the logical corollary whereof would be that an admission of a party would not lead to relinquishment of his right therein, if he has otherwise acquired a title in the property. 28. The learned counsel for the first respondent would further contend that the suit for partition without a prayer for declaration of title is not maintainable. In fact, the only pleading in the plaint was joint possession of the suit property by Govindasamy Naidu and Chinnama Naidu, which will not confer any right, title or interest in the suit property in favour of Ramachandran. To avoid filing a suit for declaration of title, which is barred by limitation, the appellants have deliberately filed the suit with a prayer for partition and separate possession. A suit for partition was already filed by the father of the plaintiffs Ramachandran and it was dismissed. As against which an appeal was filed and during the pendency of the appeal, an application was filed to withdraw the suit to file a fresh suit on the same cause of action. However, no such suit was filed till the death of Ramachandran. Therefore, the present suit filed by the plaintiffs is not maintainable since it is....
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....he appellant is seeking to have the document avoided or cancelled, necessarily, a declaration has to be given by the court in that behalf. Until the document is avoided or cancelled by proper declaration, the duly registered document remains valid and binds the parties. So, the suit necessarily has to be laid within three years from the date when the cause of action had occurred. Since the cause of action had arisen on 29.01.1947, the date on which the sale deed was executed and registered and the suit was filed on 30.07.1966, the suit is hopelessly barred by limitation. The courts below, therefore, were right in dismissing the suit. The appeal is accordingly dismissed with costs." 29. By placing reliance on the above decision, the learned counsel for the first respondent would contend that once cause of action is set in motion, as in the present case on hand, in the year 1994 when Ramachandran filed a suit for partition, it ought to have been filed within three years from the date of denial of title by the defendants. However, the present suit is filed after a decade on 07.07.2010 and therefore, the suit is hopelessly barred by limitation. In this context, the learned counsel for....
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....pect of the suit property have been executed jointly by Govindasamy Naidu and Chinnamma Naidu to indicate that the suit property was purchased by them jointly with equal contribution and they were in joint possession of the suit property. However, there was no specific plea of the joint title or fiduciary capacity in the plaint. This is more so that the third defendant, in his written statement, raised a specific plea denying the title in favour of the plaintiffs and their predecessors. In fact, after a written statement was filed denying the title of the plaintiffs, the plaintiffs have taken out an application in I.A. No. 3 of 2012 in O.S. No. 534 of 2010 for amendment of the plaint to introduce the plea that the suit property was a joint family property, but such an application was dismissed by the trial court. Aggrieved by the same, the plaintiffs have filed CRP (PD) No. 986 of 2013 before this Court and it was also dismissed on 27.01.2015 with an observation that it is open to the plaintiffs to file a reply statement with respect to the plea of applicability of Section 4 of the Benami Transactions (Prohibition) Act, 1988. Thus, the plea with respect to fiduciary capacity has no....
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....32. The learned counsel for the first respondent would also contend that Sections 81, 82 and 94 of the Indian Trust Act, 1882, which have been repealed by the Benami Act, specifically provides for the person in whose name the property is transferred for consideration provided by another to be holding the said property for the benefit of the other. In this case, the very plea of contribution of amount by Chinnamma Naidu for purchasing the suit property under Ex. A1 demolishes the plea of fiduciary capacity. Further, in view of Sections 81, 82 and 94 of the Indian Trust Act, 1882, the concept of trusteeship or fiduciary capacity as was the position prior to 1988, after repeal of Sections 81, 82 and 94 of the Indian Trust Act, it is only those instances of fiduciary capacity such as property of partnership firm or any other person notified by the Central Government, such a plea can be raised. In this case, Govindasamy Naidu purchased the suit property in his own name and therefore, it can be inferred that the suit property stands exclusively in his name and there is nothing to infer that he acted as a trustee or in a fiduciary capacity to hold the suit property for and on behalf of hi....
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....e and tradition, in the absence of the father, the eldest male member of the family takes a predominant and leading role in the family and all the functions in the family used to be performed at the behest of such elderly male member. True to such custom, the sale deed dated 05.04.1911, Ex. A1 was registered in the name of Govindasamy Naidu, even though Chinnamma Naidu has equally contributed for purchasing the suit property. The tenth defendant also in his written statement admitted that the contribution made by Chinnamma Naidu could be evident from Ex. A2, Mortgage deed dated 05.12.1911 as also Ex. A5 dated 03.03.1926 in favour of Ayyavoo Konar, Son of Thavasi Konar. By inviting our attention to the written statement filed by the tenth defendant, it was contended that Ex. A6 dated 13.09.1943 executed by Chinnamma Naidu in favour of one Velliangiri Thevar further strengthens the title of the suit property in favour of Chinnamma Naidu. It is also stated that Govindasamy Naidu, ever since the purchase of the suit property was in joint ownership and possession along with his younger brother Chinnamma Naidu. For about 37 years from the date of purchase of the suit property, certain mo....
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....also admitted in her evidence that the suit properties are not in joint possession of the plaintiffs and defendants. Therefore, when it is admitted by PW1 that the plaintiffs are not in joint possession, the Court fee payable is under Section 37(1) of the Tamil Nadu Court Fee and Suit Valuation Act. However, the suit has been valued under Section 37(2) and 27(c) of the Tamil Nadu Court Fee and Suit Valuation Act by raising a plea that the plaintiffs are in joint possession of the suit property. Therefore, the suit has not been properly valued and on that ground, the suit is liable to be dismissed. The plea of co-sharer deemed to be in joint possession of the suit properties would arise only if the plaintiffs prove that they are in joint possession of the suit property. In this case, as mentioned above, PW1 in her deposition had categorically admitted that the plaintiffs are not in joint possession of the suit property, therefore, the suit, as filed by the plaintiffs, is not maintainable. 36. According to the learned counsel for the respondents 10 to 12, the descendants of Govindasamy Naidu namely Anna Samy Naidu and his sons who are arrayed as D1 to D3 in the suit have sold their ....
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....r partition and separate possession has to be rejected since the plaintiffs were ousted from co-ownership for more than 33 years. The trial court has failed to consider this aspect and erroneously concluded that the plaintiffs were in joint possession of the suit properties and the plea of ouster will not arise in this case. Such a finding of the trial court is unsustainable and it is liable to be set aside even though it has not been assailed by filing a cross-appeal. The learned counsel for the respondents 10 to 12 therefore prayed for dismissal of the appeal on the ground of ouster. 38. The learned counsel for the 14th respondent would contend that the plaintiffs have filed the suit on the ground that they are in joint possession of the suit property. The plaintiffs have also raised the plea that the suit property was held in a fiduciary capacity by Govindasamy Naidu for and on behalf of Chinnamma Naidu. However, the plaintiffs have miserably failed to prove the averments raised in the plaint. In fact, PW1 has categorically admitted that the plaintiffs were never in joint possession of the suit property. The trial court, taking note of the above admission of PW1, dismissed thei....
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....g the appeal. 40. We have heard the counsel for the parties at some length and have carefully gone through the materials placed. As we have dealt with the factual matrix of the case at some required length, we refrain ourselves from dealing with the facts of the case any further. However, certain facts which are absolutely necessary alone are dealt with hereunder for the purpose of adjudicating this appeal. 41. Having considered the contentions urged on behalf of the counsel on either side, for the purpose of disposal of this appeal, the following points are required to be dealt with and they are:- (i) Whether Govindasamy Naidu alone was having half share in the land covered under the sale deed dated 05.04.1911, Ex. A1 or Govindasamy Naidu and Chinnasamy Naidu are having equal right, interest and title in the half share of the property covered under Ex. A1 dated 05.04.1911? (ii) Whether Govindasamy Naidu was holding the share of his brother Chinnamma Naidu in his fiduciary capacity? (iii) Whether the suit transaction is hit by the provisions of Benami Transaction Act? (iv) Whether the claim of the appellants for partition and separate possession is....
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....8 share in the property covered under Ex. A1 for the purpose of discharging the balance debt payable under Ex. A2 and directed Ayyavoo Konar to adjust the same towards discharge of his share of earlier mortgage debt under Ex. A2. Ex. B15 and Ex. A5 are registered as document Nos. 400 and 401 of 1926. Similarly, the plaintiffs also relied on Ex. A6 dated 13.09.1943 executed by Chinnamma Naidu in favour of one Velliangiri mortgaging his share in the suit property. Yet another mortgage deed under Ex. A7 dated 20.07.1951 executed by Chinnamma Naidu in favour of Pattanam Palanokku Co-operative Society was also relied on by the plaintiffs to prove his title in respect of his share in the property covered under Ex. A1. Further, the plaintiffs relied on Exs. A3, by which the co-purchaser of half of the property under Ex. A1 namely Appa Naicker sold his half share in favour of one Venkatasamy, who, in turn, sold the same under Ex. A4, sale deed dated 28.01.1977 to one Periyan Konar. Therefore, under Ex. A10, Patta, the name of Periyan Konar was shown as joint-pattadhar along with Govindasamy Naidu and Chinnamma Naidu. By placing reliance on Exs. A2, A3, A4, A5, A6, A7 and Ex. B15, it was co....
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....indasamy Naidu. If really the suit property was purchased wholly out of the contributions of Govindasamy Naidu, he would not have permitted his brother to assume ownership by executing the subsequent mortgage deeds. In fact, as per the recitals under Ex. A1, out of the total sale price of Rs. 5,900/- the vendor directed the purchaser Govindasamy Naidu to discharge the balance amount of Rs. 3,401.10 payable to Thirumalaiswamy Iyengar towards mortgage debt. Therefore, under Ex. A2, both the brothers jointly mortgaged the suit property in favour of Thavasi Konar by indicating that the property is their self-acquired property. The words contained under Ex. A2 to the effect that would only indicate that the property covered under Ex. A1 was jointly purchased by both the brothers Govindasamy Naidu and Chinnamma Naidu by equal contribution. Otherwise, there is no necessity to indicate the words (for us) in Ex. A2. These recitals do expressly indicate that the property under Ex. A1 was jointly purchased by Govindasamy Naidu along with his brother Chinnamma Naidu with equal contribution. Even though there is no evidence to show the quantum of contribution made by Chinnama Naidu for purchas....
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....ts with respect to the bar under the Prohibition of Benami Property Transactions Act, 1988, it is to be observed that the appellants/plaintiffs did not raise any pleading with respect to fiduciary relationship between the brothers Govindasamy Naidu and Chinnamma Naidu in the plaint. However, when the defendants filed written statement and pleaded the inadequacy of pleadings in the plaint with respect to the fiduciary relationship between the brothers Govindasamy Naidu and Chinnamma Naidu, the plaintiffs have unsuccessfully attempted to amend the plaint. The application filed by the plaintiffs under Order VII Rule 17 of CPC in I.A. No. 3 of 2012 in O.S. No. 534 of 2010 for amendment was dismissed by the trial court. Aggrieved by the same, the plaintiffs have filed CRP (PD) No. 986 of 2013 before this Court and it was also dismissed on 27.01.2015 with an observation that it is open to the plaintiffs to file a reply statement with respect to the plea of applicability of Section 4 of the Benami Transactions (Prohibition) Act, 1988. Accordingly, a reply statement was filed by the plaintiffs specifically contending that both the brothers have jointly contributed for purchasing the suit p....
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....nancy rights should have as a matter of course devolved upon her legal heirs that would include the husband of the deceased and her children (parties to this appeal). Even so, the reason why the property was transferred in the name of the appellant was the fact that the Corporation desired such transfer to be made in the name of one individual rather than several individuals who may have succeeded to the tenancy rights. A specific averment to that effect was made by plaintiffs-respondents in para 7 of the plaint which was not disputed by the appellant in the written statement filed by him. It is therefore, reasonable to assume that transfer of rights in favour of the appellant was not because the others had abandoned their rights but because the Corporation required the transfer to be in favour of individual presumably to avoid procedural complications in enforcing rights and duties qua in property at a later stage. It is on that touchstone equally reasonable to assume that the other legal representatives of the deceased-tenant neither gave up their tenancy rights in the property nor did they give up the benefits that would flow to them as legal heirs of the deceased tenant consequ....
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....samy Naidu, who holds the suit property in a fiduciary capacity. The Plaintiffs have also contended that as per the then prevailing custom and tradition, a property will be purchased in the name of the elder even if the younger had also contributed for purchasing the property. This would indicate that Chinnamma Naidu had reposed faith, trust and confidence upon his elder brother Govindasamy Naidu in whose name the sale deed under Ex. A1 stood. Until the death of Govindasamy Naidu and Chinnamma Naidu, there was no partition among them in respect of the suit property. However, for all practical purpose, the suit property was enjoyed jointly by Govindasamy Naidu and Chinnamma Naidu and that is the reason why the revenue records stood mutated in the joint name of Govindasamy Naidu and Chinnamma Naidu under Ex. A10. Having regard to the fact that Ex. A1 in this case emanated during the year 1911 and the custom, tradition and belief practiced in those days, we are of the view that Chinnamma Naidu reposed absolute faith and trust towards his elder brother Govindasamy Naidu and Govindasamy Naidu, true to such faith and confidence reposed on him, had held the suit property in a fiduciary ca....
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....of Benami Transaction Act. Accordingly, we answer point Nos. 2 and 3 also in favour of the appellants/plaintiffs. Point No. 4:- 50. The father of the plaintiffs Ramachandran has admittedly filed a suit in O.S. No. 280 of 1994 for partition. On notice, the defendants in the suit have filed an application under Order VII Rule 11 of CPC to reject the plaint on the ground that the plaint did not disclose a cause of action. The trial court, accepting the averments made in the application under Order VII Rule 11 of CPC rejected the plaint. As against the order of rejection of the plaint, the said Ramachandran filed A.S. No. 188 of 1999 before the Additional District Court, Coimbatore. During the pendency of the appeal, Ramachandran/appellant therein himself filed an application seeking withdrawal of the suit with liberty to file a fresh suit on the same cause of action. The appellate court granted such permission on 28.07.2001, however, till his death on 10.06.2007, Ramachandran did not file any fresh suit. It is contended on behalf of the plaintiffs that Ramachandran thought it fit not to file any fresh suit among the legal heirs, instead, he resorted to effect an amicable partition a....
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....bmission, the learned counsel relied on the decision of the Division Bench of this Court in the case of Pothukutchi Appa Rao vs. Secretary of State reported in (1938) 47 L.W. 438 : AIR 1938 Madras 193 wherein it has been held as follows:- "33. The legal position may be briefly stated thus:-The right to sue under Article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however, ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right. 52. Countering this submission, the learned counsel appearing for the respective respondents would contend that Ramachandran, having withdrawn the appeal filed by him on 28.07.2001, ought to have filed a fresh suit within three years, but he did not do so. Further, the plaintiffs have filed the present suit for the very same relief of partition without a prayer fo....
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....fendants 2 and 3, a notice dated 18.05.2010 was received from the Tahsildar to participate in an enquiry to be conducted, to enquire as to why the name of their father Ramachandran be not removed from the revenue records in respect of the suit property. As all the efforts made by the plaintiffs were demolished by reason of the application submitted by the defendants 2 and 3 for removal of the name of their father from the revenue records, the plaintiffs have decided to file a suit for partition as it is no longer possible to effect an amicable settlement of the division of the property among the legal heirs. It is the notice dated 18.05.2010 received by the plaintiffs, which prompted them to file the suit for partition, otherwise, they would have not filed the suit, rather, continued their attempts to effect an amicable division of the properties among the legal heirs. However, on receipt of the notice dated 18.05.2010 which had an imminent possibility of jeopardising their right and interest in the suit property, they have decided to file the suit. Therefore, the cause of action for the present suit is the notice dated 18.05.2010 issued by the Tahsildar, Sulur on the basis of an a....
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....80 of 1994 filed by the father of the plaintiffs as the cause of action for both the suits are basically different. When the cause of action for the plaintiffs to file the instant suit in O.S. No. 534 of 2010 springs from and out of the notice dated 18.05.2010 issued by the Tahsildar, Sulur, we are of the view that the suit for partition, as filed by the plaintiffs, is well within the period of limitation. We could also see from the plaint averments that the plaintiffs have categorically asserted that they are in joint possession of the suit property along with the defendants. This is also evident from the fact that the name of the father of the plaintiffs Ramachandran is reflected in the revenue records in respect of the suit property, indicating that the plaintiffs, who are legal heirs of Ramachandran, continue to remain in possession of the suit property. Even otherwise, in a suit for partition, the possession of one of the co-parceners is for and on behalf of the other. The cause of action for filing a suit for partition is recurring one. As long as the relationship of co-ownership subsists, the right to seek partition continues. Even if one of the co-owners files a suit and su....