A co-sharer’s partition claim remains maintainable while property remains undivided absent proven ouster.

The appellant/plaintiff and late Muthusamy, the husband of Respondent No.1, were the daughter and son of Kaluvadi Asari and Lakshmiammal. Lakshmiammal purchased the suit property, comprising land and buildings, under a registered sale deed dated 4 October 1957. She died intestate on 13 March 1987. Her husband, Kaluvadi Asari, subsequently executed a registered Will dated 15 July 1992, referring to the suit property and stating that the plaintiff, Muthusamy and the testator were each entitled to a one-third share. Kaluvadi Asari died on 16 May 1994.

The plaintiff claimed that the property was Lakshmiammal’s exclusive property and that, after succession opened and the father’s share devolved under the Will, she became entitled to one-half share. She sought partition, permanent injunction against alienation, and a mandatory injunction directing the tenants to deposit one-half of the rent.

The defendants contended that the plaintiff had accepted the Will, alienated property allotted to her under it, and was therefore estopped from claiming any further share. They also pleaded that the suit, filed in 2020 after a 2007 denial of her claim, was barred by limitation.

The IV Additional District Court, Madurai dismissed the suit on the grounds of estoppel and limitation by judgment dated 24 October 2024. The plaintiff preferred the present first appeal under Section 96 of the Code of Civil Procedure.

Whether Kaluvadi Asari had authority to execute the Will in respect of the entirety of the suit property, when the property originally belonged to Lakshmiammal.

Whether the plaintiff was estopped from claiming a share in the suit property by accepting the Will and alienating another property allotted under it.

Whether the suit for partition was barred by limitation due to the plaintiff’s earlier notice and the defendants’ repudiation of her claim in 2007.

Whether the plaintiff was entitled to a one-half share in the suit property.

Whether the trial Court’s judgment and decree dismissing the suit were legally sustainable.

The Court applied the principles of succession under the Hindu Succession Act, holding that Lakshmiammal’s separate property devolved upon her husband, son and daughter in equal shares upon her intestate death.

A person cannot transfer a better or larger title than he possesses—nemo dat quod non habet—and, consequently, Kaluvadi Asari could not bequeath the entire property when he held only a one-third share.

Estoppel under Section 115 of the Indian Evidence Act, 1872, corresponding to Section 121 of the Bharatiya Sakshya Adhiniyam, 2023, requires conduct or representation on which the other party relied to his detriment; mere acceptance of a Will or alienation of a different property does not establish release of the claimant’s share.

The Court relied on Elumalai @ Venkatesan v. M. Kamala, 2023 SAR (Civ) 283, concerning the inability of a document to transfer rights beyond those possessed by its executant.

On limitation, it applied the principle in Vidya Devi v. Prem Prakash, AIR 1995 SC 1789, and the decisions in Renuka v. A. Kamalam, 2020 (6) CTC 657, and Chenniappan v. Nanjammal, A.S.No.453 of 2023, that the right to seek partition is a continuing right arising from subsisting co-ownership, subject to a proved case of ouster or adverse possession.

The Court distinguished the defendants’ reliance on Emperuman v. Rangarajan, 2017 (1) LW 562.

The Court found that Ex.A.1 established Lakshmiammal’s purchase and ownership of the suit property, while the recitals in Ex.A.2 Will themselves recognised that the property had been purchased from her income and savings and that the parties held equal one-third interests.

Since Kaluvadi Asari held only one-third, his Will could operate only to the extent of his own interest and could not extinguish the plaintiff’s pre-existing share.

The plaintiff’s sale of another property allotted to her under the Will did not amount to acceptance of a disposition of the suit property or execution of a release deed. No release or family arrangement concerning the suit property was proved, and the plaintiff continued to reside there, which negatived ouster and supported her continued co-ownership.

The Court further held that the 2007 repudiation did not, by itself, defeat a partition claim because the plaintiff remained in possession and the property continued to be undivided; the cause of action for partition therefore remained continuing.

As the property was available as vacant land measuring approximately 10½ cents, the plaintiff could be allotted one-half, namely approximately 5¼ cents, in final partition proceedings.

The trial Court’s judgment and decree dated 24 October 2024 were set aside.

The plaintiff was held not estopped from claiming her share, and the suit was held not to be barred by limitation.

The relief of mandatory injunction against the tenants was not granted because the underlying construction and tenancy arrangement had become infructuous after demolition of the buildings.

No order as to costs was made, and the connected miscellaneous petitions were closed.