CASE NO.:
Appeal (civil) 4357-4358 of 2000
PETITIONER:
Govindammal
RESPONDENT:
R.Perumal Chettiar & Ors
DATE OF JUDGMENT: 19/10/2006
BENCH:
A.K.MATHUR & ALTAMAS KABIR
JUDGMENT:
J U D G M E N T
A.K.MATHUR,J.
These appeals are directed against the judgment and order
dated 30.12.1998 passed by learned Single Judge of the Madras
High Court in Second Appeal No.2253 of 1986 and Second Appeal
Nos.145 & 146 of 1988.
Brief facts giving rise to the present appeals are that
the plaintiff filed a suit being O.S.No.409 of 1981 for partition and
separate possession and also claimed for rendition of accounts.
The
plaintiff is the second wife of Raju Naidu.
Raju Naidu married
Rajakanthammal as his first wife and she died in or about 1946
leaving behind the defendant Nos. 1 & 2 as their sons and one
daughter by name Saraswathi.
After the death of his wife, Raju
Naidu married second time to the plaintiff as the second wife.
There
was no issue from the second wife.
Raju Naidu died intestate in 1954
and
on his death
the plaintiff and defendant Nos. 1 & 2 were the legal
heirs to inherit the properties of Raju Naidu.
'B' schedule properties
are the separate and self acquired properties of Raju Naidu.
It is
alleged that
the plaintiff and Defendant Nos.1 & 2 lived amicably for
sometime.
Afterwards,
the plaintiff started living separately and
Defendant Nos.1 & 2 were giving her share of income from the
properties.
She demanded partition of the properties.
It was
promised by both the sons of Raju Naidu and step sons of the plaintiff
but without any result.
One year before filing of the present suit,
Defendant Nos.1 & 2 started acting against the interest of the plaintiff
and they stopped giving the income to the plaintiff.
Then they
alienated item Nos. 3 to 8 of the scheduled properties to Defendant
No.3 and further to Defendant No.4 the entire 'B' & 'C' schedule
properties under the pretext of the decree in O.S.No.101 of 1967 and
O.S.No.247 of 1970 against Defendant Nos.1 & 2.
The plaintiff was
not a party to these two suits and therefore that decree was not
binding on her.
It is alleged that a notice was sent for the first time
for partition of the properties sometime in 1979 which was replied by
the defendants.
It is alleged that a reply was sent by the defendant
No.1 to the plaintiff wherein it was stated that the allegations are
false and item No.2 has been purchased recently by the defendant
No.1 out of the sale proceeds got by him by selling item Nos.3 to 8 in
favour of Defendant No.3. Item No.2 also belonged to the joint
family.
It was also alleged that at the time of marriage, Raju Naidu
had already executed a registered settlement deed dated 17.4.1947
and in that 38 cents were given to the plaintiff and the plaintiff
remained in peaceful possession of the 'C' schedule properties.
Thereafter,
when the suit was filed the defendant No.1 filed a written
statement and in that it was alleged that the plaintiff does not have
any share in the property and 'C' schedule property was already
settled in her favour.
A panchayat was also convened and
arrangement was made that 'C' scheduled property would remain
with her and she would not claim any share in the property.
It is also
alleged that Defendant No.1 maintained the defendant No.2 and
their sister and gave her in marriage.
After the death of her husband,
she and her minor son are still maintained.
It is also alleged that sale
deed in favour of defendant No.3 was executed by defendant No.1 to
meet the debts to the extent of Rs.40,000 by way of promissory notes
and simple mortgages.
As such, the suit filed by the plaintiff was
barred by law.
Defendant No.;2 also contested the suit and even
challenged the marriage of the plaintiff with Raju Naidu.
It is alleged
that after the death of Raju Naidu only two sons became the sole
owners by way of survivorship.
It is alleged that he has sold
undivided half of the properties for valid consideration.
Defendant
No.3 was a purchaser and he contested the suit and submitted that
the suit was not maintainable without the prayer for cancellation of
the two sale deeds and he also took the plea of limitation.
Defendant
No.4 being another purchaser of the property, took the plea that the
plaintiff only lived with the deceased Raju Naidu for few months and
she left on her own and went to her parents' house.
It was also
alleged that his son Mahendran has purchased Door No.8-A and 8-
B in Kutchery Road for a valid consideration of Rs.26,000/- from
defendant No.2.
It is also alleged that he has also filed a suit being
OS No.416 of 1981 for allotment of share.
So far as 'A' schedule properties are concerned, only
partial relief has been given to plaintiff with regard to 'A' schedule
properties.
We are primarily concerned with 'B' scheduled properties.
The trial court initially framed 10 issues and 7 additional issues were
framed in OS 409 of 1981 and 11 issues were framed with regard to
OS 416 of 1981.
Both the suits were tried together as there was
common evidence in both the suits.
Large number of documents
were filed by both the sides.
The trial court after hearing the parties,
dismissed OS No.409 of 1981 and passed a preliminary decree for
partition and separate possession of plaintiff's half share in the suit
'A' schedule property in OS No.416 of 1981.
Aggrieved against this
order defendant No.1 preferred an appeal being AS No.55 of 1984
and the plaintiff also preferred an appeal being AS No.244 of 1984
on the file of the District Judge.
The appeal of the plaintiff with regard
to OSNo.409 of 1981 was allowed and
the judgment and decree was
set aside and a preliminary decree was passed for partition and
separate possession of plaintiff's 1/3rd share in the properties
mentioned in 'B' schedule and
further directed defendant Nos. 1 to 3
to render accounts in respect of items 3 to 8 of plaint 'B' schedule
properties and
directed defendant Nos. 1 and 2 to render accounts
in respect of the income from items 1 and 2 of the plaint 'B' schedule
properties from the date of the suit and
further directed Defendant
No.4 to render accounts in respect of the income from the portion of
item 1 of 'B' schedule property from the date of purchase.
Defendant
No.1's appeal being AS No.55 of 1984 was also allowed and
the
judgement and decree in OS 416 of 1981 was modified to the effect
that the plaintiff was entitled to the share of Thambaiyan
the 2nd
defendant in the plaint 'A' schedule property and
that the suit for
partition was dismissed in view of the suit for general partition in OS
No.409 of 1981was decreed.
Aggrieved against these two orders,
three second appeals were preferred before the High Court. In
Second Appeal No.2253 of 1986 the following substantial questions
of law was framed.
" Whether the plaintiff's claim was not
barred by limitation by exclusion and ouster and
defendants 1 and 2 in the suit had not acquired title
to the suit properties by adverse possession ?"
In Second Appeal Nos. 145 and 146 of 1988, the following substantial
questions of law were framed.
" (1) Whether the Lower Appellate Court is
right in negativing the claim of the defendants that
they had acquired title by adverse possession ?
(2) Whether the Lower Appellate Court was
right in overlooking that the plaintiff had been
excluded even before the coming into force of Act 30
of 1956 and had thereby lost her right by exclusion
and ouster ?
(3) Whether the Lower Appellate Court
was right in omitting to note the suit instituted 12
years after the issue of notice under Ex.B 3 dated
2.11.1955 admitting ouster and dispossession is
barred by limitation and the relief of partition would
not be available ?"
In fact, the basic question for our consideration in the present
appeals is
whether the plaintiff is entitled to 1/3rd share in the
properties or not ?
In this connection, the question with regard to the
adverse possession which was specifically argued has to be dealt
with and
whether the plaintiff lost her right for 1/3rd share in the
properties of Raju Naidu because of adverse possession or not ?
In
case, the plea of the defendants succeeds and that she has lost her
right to claim 1/3rd share in the properties of Raju Naidu because of
adverse possession then in that case, nothing survives in the present
appeals before us.
Many pleas were taken like the marriage of the plaintiff
with deceased Raju Naidu was not valid and it was rejected outright.
The plain case is that the plaintiff filed a suit for separate possession
and rendition of accounts of the properties being the wife of
deceased Raju Naidu.
The plea of the defendants was that they are
the only legal heirs of the deceased Raju Naidu and they have dealt
with the properties subsequently by mortgaging the same and they
have enjoyed the properties to the knowledge of the plaintiff openly
for more than the statutory period and whatever right she had stood
extinguished.
In order to settle the issue, 38 cents of land was settled
in her favour way back in 1947 and a panchayat was also convened
and she felt satisfied and did not claim any right in 'B' schedule
properties from 1955.
It was also pointed out that on 2.11.1955
through a counsel the plaintiff got a notice issued demanding
partition and her share but she did not take any steps.
Therefore,
they are enjoying the properties hostile to the interest of the plaintiff.
Therefore, they took the plea of adverse possession also.
So far as 'B' schedule properties is concerned, the
findings of the courts below are that the suit properties are the self
acquired properties of Raju Naidu and it is not ancestral property.
Therefore, the plaintiff was entitled to her 1/3rd share in all the
properties.
The plaintiff in order to substantiate her claim made oral
as well as documentary evidence.
At the same time, the defendants
also led evidence to prove that the plaintiff's right in the properties
stood extinguished on account of adverse possession.
The defendants in order to oust the claim of the plaintiff
took definite plea of adverse possession hostile to the interest of the
plaintiff to her knowledge and led evidence to show that a notice was
sent by the plaintiff on 2.11.1955 in which she claimed that she was
not given any income from the properties of Raju Naidu.
Though the
plaintiff appeared in the witness box as P.W.1, she denied to have
sent any such notice.
It is alleged that the notice was sent through
the Advocate but no such advocate was produced by the defendants.
However, the defendants sent a reply to that notice.
But the original
notice alleged to have been sent by the plaintiff was produced as
Ex.B 3 but no advocate was produced to prove that notice.
P.W.1 has
categorically denied to have sent any such notice and she also
deposed that after the death of her husband, Raju Naidu, she was
thrown out of the house.
Though after the death of her husband, for
some time she was given income from the properties but thereafter
the defendants stopped payment of the income arising out of the
properties.
She also admitted that some of the properties were
usufructuary mortgage.
After some time she came to know that
certain properties were being sold.
Therefore, she woke up in 1979
and filed the present suit.
Unfortunately, the plea of the defendants
succeeded before the High Court that the notice, Ex.B 3 was given
in 1955 and no suit was filed till 1979.
Therefore, the High Court took
the view that her right in the properties got extinguished because of
adverse possession as she gave notice in 1955 and did not take
possession of the properties till 1979.
Therefore, it was apparent that
the possession by Defendant No.3 was hostile to her interest.
We
regret to say that this finding arrived at does not appear to be correct
one.
In fact after filing of the suit the notice, Ex.B 3 which she did not
pursue any further, her right cannot be extinguished.
Though she
has denied issuance of such notice through Advocate but that is not
sufficient to defeat the claim of the widow.
This was only an
infructuous circumstance that when she was thrown out of the
house she could not pursue her legal remedy by filing the suit but
when she found that the properties were being sold by the step sons,
and it came to her knowledge, therefore, she woke up to file the suit
for asserting her claim.
There is no denial that she was the legally
married wife of the deceased. This has been proved, established and
accepted by all the three courts despite the fact that the plea of
falsity of the marriage was raised by the step sons.
Once it is
established that she was the legally married wife of Raju Naidu she
automatically she claims her share in the property from the estate of
Raju Naidu by way of survivorship.
Just because a notice was issued
and she did not pursue the same that does not extinguish the claim
of the plaintiff thereby giving a handle in the hands of the step sons
by way of adverse possession.
In order to prove adverse possession
something more is required.
Once it is accepted that she was the
legally married wife of Raju Naidu then her right to claim partition and
share in the property stands out and that cannot be defeated by the
plea of ouster or adverse possession.
In order to oust by way of
adverse possession, one has to lead definite evidence to show that
to the hostile interest of the party that a person is holding possession
and how that can be proved will depend on facts of each case. In
the present case,
it is the widow who has been thrown out and she
has been moving from pillar to post.
The relief cannot be denied to
her just because she sent notice claiming partition of the properties
and she did not file any suit thereafter and the steps sons where
holding the properties adversely and hostile to her knowledge. It
was the joint property of Raju Naidu and it shall devolve by way of
survivorship i.e. two sons and his wife as the daughter has already
given up her share in the property.
Therefore, in order to oust one of
the co-sharers only on the basis of the so called notice cannot be
deemed to be sufficient to come to a conclusion of adverse
possession or extinguishing her rights.
In this connection, our
attention has been invited to an earliest decision in the case of Hardit
Singh & Ors. V. Gurmukh Singh & Ors. [ AIR 1918 PC 1] wherein it
has been held as under :
" If by exclusive possession of joint estate is
meant that
one member of the joint family alone
occupies it,
that by itself affords no evidence of
exclusion of other interested members of the family.
Uninterrupted sole possession of such property,
without more ,
must be referred to the lawful title
possessed by the joint holder to use the joint estate,
and cannot be regarded as an assertion of a right to
hold it as separate,
so as to assert an adverse claim
against other interested members.
If possession may
be either lawful or unlawful,
in the absence of
evidence, it must be assumed to be the former.
The
evidence of actual user is not sufficient to establish
abandonment or exclusion."
Similarly, our attention was invited to a decision in the case of Varada
Pillai & Anr. V. Jeevarathnammal [ ILR Madras (Vol.43) 244]. In that
case, their Lordships quoted the earlier decision referring to
English
rule with regard to possession of several co-parceners,
joint tenants
or tenants-in-common with the possession of others so as to prevent
limitation affecting them.
In the case of Cully v. Deo [ (1840) 11 ad. &
E.1008] their Lordships observed as follows :
" Generally speaking,
one tenant-in- common
cannot maintain an ejectment against another tenant-
in-common,
because the possession of one tenant-
in-common is the possession of the other, and,
to
enable the party complaining to maintain an
ejectment,
there must be an ouster of the party
complaining.
But, where the claimant, tenant-in-
common, has not been in the participation of the
rents and profits for a considerable length of time,
and other circumstances concur, the Judge will direct
the jury to take into consideration whether they will
presume that there has been an ouster:.
And , if
the jury find an ouster, then the right of the lessor of
the plaintiff to an undivided share will be decided
exactly in the same way as if he had brought his
ejectment for an entirety."
In the case of
Mohaideen Abdul Kadir & Ors. V. Mohammad
Mahaideen Umma & Ors. reported in ILR [1970] 2 Mad. 636 their
Lordships held that
no hard and fast rule can be laid down.
But the
following relevant factors may be taken into consideration :
(i) exclusive possession and perception of profits for well over the
period prescribed by the law of limitation ;
(ii) dealings by the party in
possession treating the properties as exclusively belonging to him;
(iii) the means of the excluded co-sharer of knowing that his title has
been denied by the co-owner in possession.
There may be cases,
where, owing to long lapse of time,
it may not be possible for the co-
owner in possession to adduce evidence
as to when the ouster
commenced and how it was brought home to the knowledge of the
excluded co-owner.
In such a case the law will presume ouster as an
explanation of the long peaceful possession of the co-owner in
possession.
In order to maintain the person in such possession the
law presumes a lawful origin of the possession.
Therefore, no hard
and fast rule can be laid down from which it can be inferred that any
co-sharer has ousted his co-sharer.
That will depend upon facts of
each case. Simply long possession is not a factor to oust a co-sharer
but something more positive is required to be done.
There must be a
hostile open possession denial and repudiation of the rights of other
co-owners and this denial or repudiation must brought home to the
co-owners.
Simply because a co-sharer gave notice claiming
partition of the suit properties and possession and did not pursue
the matter further, that will not be sufficient to show that the co-sharer
has lost his/her right. In the present case, it is only when 'B' schedule
property was being sold by two brothers then alone the plaintiff woke
up to realise that the step sons were not interested to give her share
in the property and she rushed to file the suit. Therefore, by no
stretch of imagination it can be inferred in the present case that the
plaintiff had lost her right to claim partition and share in the property.
In the case of Vidya Devi alias Vidya vati (dead) by LRs v.
Prem Prakash & Ors. reported in (1995) 4 SCC 496
the question
was
whether the plea of acquisition of title by adverse possession
was available to the co-bhumidhar or not.
In that context, their
Lordships held that
when no period of limitation is fixed for filing a suit
for partition by a co-bhumidhar against his other co-bhumidhars in
respect of a joint holding,
the question of the other co-bhumidhar
acquiring his title to such holding by adverse possession for over 12
years can never arise.
It was further observed that if that be so,
such plea of perfection of title by adverse possession of a holding by
a co-bhumidhar against his other co-bhumidhar as defence in the
latter's suit for partition can be of no legal consequence.
In the case of Mohammad Baqar & Ors. V. Naim-un-Nisa
Bibi & Ors. reported in AIR 1956 SC 548 it was observed
that under
the law possession of one co-sharer is possession of all co-sharers, it
cannot be adverse to them, unless there is a denial of their right to
their knowledge by the person in possession and exclusion and
ouster following thereon for the statutory period.
There can be no
question of ouster, if there is participation in the profits to any
degree.
In the case of Md. Mohammad Ali (dead) by LRs v.
Jagadish Kalita & Ors. reported in (2004) 1 SCC 271
this Court
examined a series of decisions on the question of adverse
possession and after extracting the legal propositions from various
decisions, their Lordships concluded that long and continuous
possession by itself, it is trite, would not constitute adverse
possession. Even non-participation in the rent and profits of the land
to a co-sharer does not amount to ouster so as to give title by
prescription. A co-sharer, as is well settled, becomes a constructive
trustee of other co-sharer and the right of a person or his
predecessors-in-interest is deemed to have been protected by the
trustees.
As against this, our attention was also invited to a
decision in the case of T.P.R.Palania Pillai & Ors. V. Amjath Ibrahim
Rowther & Anr. reported in AIR 1942 Madras 622,
their Lordships
observed that
in order to constitute adverse possession, the
possession must be adequate in continuity, in publicity and in extent
to show that it is possession adverse to the competitor.
Therefore, in
cases of adverse possession also their Lordships have said that the
possession should be for longer period and it is known to the
competitor that it is held adverse to his knowledge.
Their Lordships
further held that
in cases of usufructuary mortgage granted by one of
several co-sharers if a person remains in possession of the land and
cultivates it for years, the requirement of continuity, publicity and
extent for adverse possession are fully complied with.
But that is not
the case here.
In the case of Nirmal Chandra Das and Ors. V. Mohitosh
Das & Ors. reported in AIR 1936 Calcutta 106
their Lordships
observed that in order to succeed on the ground of ouster,
the person
setting up ouster is bound to show that he did set up an adverse or
independent title during the period which was beyond the statutory
period of 12 years. Their Lordships further observed that there can be
no adverse possession by one co-sharer as against others until there
is an ouster or exclusion; and the possession of a co-sharer becomes
adverse to the other co-sharer from the moment there is ouster.
Therefore, what is ouster and what is adverse to the interest of the
claimant depends upon each case. In this case, a plea was raised
that certain properties were usufructuary mortgage. But that was not
in a manner to show that these properties are adverse to the interest
of the plaintiff. It was only when 'B' schedule properties were sought
to be sold and it came to the knowledge of the plaintiff that her step
sons were not interested in partition of the property and giving her
share, she filed the suit in the year 1979. Therefore, for the first time
in 1979 she came to know that adverse possession is being sought to
be established and her interest in 'B' schedule properties is sought to
be sold by her step sons. But in any case, just because she gave a
notice and she did not pursue the same, on that basis no adverse
inference can be drawn and she cannot be ousted on that count by
way of adverse possession.
As a result of our above discussion, we are opinion that
the view taken by the learned Single Judge of the High Court of
Madras in dismissing the suit of the plaintiff ( O.S.No.409 of 1981) is
not correct and the said order is set aside. Hence, this appeal is
allowed. The plaintiff is entitled to her 1/3rd share in the 'B' schedule
properties being the widow of Raju Naidu and she is also entitled to
rendition of accounts.
So far as O.S.No.416 of 1981 is concerned, we need not go
into detail on the findings of fact recorded by the courts below.
However, we make it clear that Govindammal being the second wife
of late Raju Naidu will have her share in the 'A' schedule properties
also. The appeal is accordingly disposed of. No order as to costs.
