Case Note & Summary
The appeal arises from a judgment and decree dated 28.02.2018 in O.S.No.65 of 2009 on the file of the Fast Track Mahila Court, Dindigul. The plaintiff, B.Kalavathi, filed the suit for partition seeking a 1/2 share in two items of suit properties, which were self-acquired by one Seenivasan. Seenivasan died intestate, leaving behind his wife Janaki (2nd defendant) and two daughters: the plaintiff and the 1st defendant (appellant). The 1st defendant was in possession of the properties. The trial court decreed partition and also awarded mesne profits at Rs.5,000 per month from the date of suit till delivery of possession. The 1st defendant appealed. The appellate court upheld the partition decree, confirming the plaintiff's 1/2 share. However, it set aside the award of mesne profits, holding that a co-owner in possession is not liable for mesne profits unless there is a specific finding of ouster or exclusive possession. The plaintiff failed to prove that the 1st defendant had ousted her or was in exclusive possession. The appeal was partly allowed, modifying the trial court's decree by deleting the mesne profits portion.
Headnote
A) Partition - Co-owner's Right - Self-acquired Property - The suit properties were self-acquired by Seenivasan, and after his death, his legal heirs (plaintiff and 1st defendant) became co-owners. The plaintiff sought 1/2 share. The trial court decreed partition. The appellate court upheld the partition decree, confirming the plaintiff's 1/2 share. (Paras 4-10) B) Mesne Profits - Co-owner in Possession - Liability - A co-owner in possession of joint property is not liable for mesne profits unless there is a clear finding of ouster or exclusive possession to the exclusion of other co-owners. The trial court awarded mesne profits without such finding. The appellate court set aside the mesne profits award, holding that the plaintiff failed to prove ouster or that the 1st defendant was in exclusive possession. (Paras 11-15) C) Evidence - Burden of Proof - Mesne Profits - The burden lies on the plaintiff to prove that the defendant co-owner is in exclusive possession and has ousted the plaintiff. In the absence of such evidence, no mesne profits can be awarded. (Paras 12-14)
Issue of Consideration
Whether the trial court was correct in decreeing partition and awarding mesne profits against the appellant/1st defendant?
Final Decision
Appeal partly allowed. The judgment and decree of the trial court dated 28.02.2018 in O.S.No.65 of 2009 is modified. The decree for partition is confirmed. The award of mesne profits is set aside. No costs.
Law Points
- Partition
- Mesne Profits
- Co-owner's liability
- Burden of proof
- Ouster
- Section 6 of Transfer of Property Act
- 1882
- Order XLI Rule 1 & 2 CPC
- Section 96 CPC
