Wuntakal Yalpi Chenabasavana Gowd Vs.
Rao Bahadur Ys. Mahabaleshwarappa & ANR [1954] Insc 45 (15 April 1954)
MUKHERJEA, B.K.
BOSE, VIVIAN HASAN, GHULAM AIYYAR, T.L.
VENKATARAMA
CITATION: 1954 AIR 337 1955 SCR 131
CITATOR INFO :
R 1971 SC1337 (17)
ACT:
Co-sharers--Joint property-Adverse possession
by a cosharer against another co-sharer-Ouster--Principles applicable thereto.
HEADNOTE:
Once it is hold that a possession of a
co-sharer has become adverse to the other cosharer as a result of ouster, the
mere assertion of his joint title by the dispossessed co-sharer would not
interrupt the running of adverse possession. He must actually and effectively
break up the exclusive possession of his co-sharer by re-entry upon the property
or by resuming possession in such manner as it was possible to do. It may also
check the running of time if the co-sharer who is in exclusive possession
acknowledges the title of his co-owner or discontinues his exclusive possession
of the property.
The fact that one co-sharer who bad allowed
himself to be dispossessed by another co-sharer as a result of ouster exhibited
later on his animus to treat the property as the joint property of himself and
his co-sharer cannot arrest the running of adverse possession in favour of the
cosharer. A mere mental act on the part of the person dispossessed
unaccompanied by any change of possession cannot affect the continuity of
adverse possession of the deseizor.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 89 of 1953.
132 Appeal from the Judgment and Decree dated
the 28th day of March, 1949, of the High Court of Judicature at Madras in
Appeal No. 654 of 1945, arising out of the Judgment and Decree dated the 23rd
day of July, 1945, of the Court of the District Judge, Bellary, in Original
Suit No. 17 of 1944.
K. S. Krishnaswami Iyengar (K. R. Chowdhury,
D. Gundu Rao, A. Rama Rao and Rajinder Narain, with him) for the appellant.
B.Somayya (M. V. Ganapathi and Ganpat Rai,
with him) for respondent No. 1.
1954. April 15. The Judgment of the Court was
delivered by MUKHERJEA J.-This appeal arises out of a suit, commenced by the
plaintiff respondent, in the Court of the District Judge of Bellary, being
Original Suit No. 17 of 1944, for establishment of his title to one-half share
of the land described in the schedule to the plaint and for recovery of
possession of the same after partition with defendant No. 1, who is the
appellant before us. The suit was dismissed by the trial Judge by his judgment
dated the 23rd of July, 1945. On an appeal being taken against that decision by
the plaintiff to the High Court of Madras, a Division Bench of the High -Court
by its judgment dated the 28th of March, 1949, allowed the appeal and reversed
the judgment of the trial Court., The defendant No. 1 has now come up on appeal
to this Court on the strength of a certificate granted by the High Court under
article 133 of the Constitution read with sections 109 and 1 10 of the Civil
Procedure Code.
To appreciate the contentions that have been
raised before us it may be necessary to give a short resume of the material
facts. The land in suit, which has an area of a little over 9 acres, was
admittedly the property of one Basappa who died some time before 1918, leaving
three daughters, to wit Paramma, Pompamma and Hampamma. Under a settlement
entered into with the immediate reversioner of Basappa which is evidenced by
two registered deeds-Exhibits P-2 and P-3-executed respectively in the years
1918 and 1919, the three sisters got about 15 to 16 acres of wet land 133 in
absolute right. Hampamma subsequently took away her onethird share in these
lands and we are not concerned with her any further in this litigation. Paramma
and Pompamma continued to enjoy the remaining two-thirds share of the property
and it is this two-thirds ,share comprising 9 acres 49 cents of wet land which
forms the subject-matter of the present suit. Pompamma married one Nagana Gowd
and after giving birth to two sons to wit Siddalingana and Chenabasavana, she
died in the year 1923. It is not disputed that her share in the lands mentioned
above devolved upon these two sons. After Pompamma's death, Nagana married
again and stayed with his second wife in his ancestral village, while these two
infant sons of Pompamma remained at village Kampli with Paramma, their mother's
sister, who reared them up as her own sons. On the 22nd June, 1923, Paramma
executed a deed of gift in favour of the two sons of her sister by which she
conveyed to the latter her own share in the. suit property. The result was that
the two sons of Pompamma got the entirety of the 9 acres 49 cents of land which
as owned jointly by their mother and their mother's sister Paramma.
Shortly after this gift was made,
Siddalingana, the elder son of Pompamma, died in the year 1924 and the
plaintiff's case is that his half-share in the disputed property devolved upon
his father Nagkna under the Hindu law of inheritance. It is admitted however
that Paramma continued to possess the entirety of the land on behalf of the
younger son Chenabasavana who is defendant No. 1 in the suit On the 25th
August, 1946, there was a lease deed Exhibit D-1, and its counter part Exhibit
D-2, executed by and between Paramma on the one hand and Nagana as the father
and guardian of the infant Chenabasavana on the other by which the infant
represented by his father purported to grant a lease of the entire property to
Paramma for a period of 12 years at a rental of Rs. 500 a year. Two rent
receipts passed by Nagana to Paramma in token of the receipt of rents, reserved
by this lease, on behalf of Chenabasavana have been proved in this case,
Exhibits D-4 and D4-1, and they are of the years 1927 and 1932 respectively.
134 It appears that in 1934 Nagana instituted
a suit as guardian of his infant son Chenabasavana in the Munsif's Court at
Hospet to recover a -sum of Rs. 500 as rent from Paramma on the basis of the
lease mentioned above. The suit was decreed ex parte and the decree was
discharged later on by a document Exhibit D-3, dated the 14th of November,
1934, executed by Nagana, which contains a recital that as Paramma had borrowed
much money to purchase lands for the minor, all future rents payable under the
lease were also to be considered as fully paid. It is in evidence and not
disputed, that near about this time Nagana became financially involved and on
the 27th of August, 1935, he executed a deed of mortgage by conditional sale in
respect of half-share of the disputed land in favour of defendant No. 2 to
secure an advance of Rs. 3,000. The document recites that the half-share of the
land which was kept as.
security devolved upon the mortgagor on the
death of his son Siddalingana and "that he was in possession of the same.
On the 16th July, 1936, Nagana sold the mortgaged property by,a deed of sale
(Exhibit P-6) to the mortgagee himself: or a consideration of Rs. 3,000 which
was the principal sum due under the mortgage. It is admitted that the purchaser
did not and could not obtain possession -of the property at any time since then
and on the 2nd May, 1944, he sold the property to the 'plaintiff by a
conveyance which is Exhibit P-1. On the 18th July, 1944, the plaintiff brought
the present suit against Chenabasavana as defendant No. I for recovery of a
demarcated half-share of the disputed property after partition with the latter
on the strength of the purchase mentioned above and his own vendor was
impleaded as defendant No. 2 in the suit.
The suit was contested by defendant No. 1 and
a number of pleas were taken by him in his written statement. The substantial
defence put forward was of a two-fold character.
It was contended in the first place that
under the deed of gift executed by Paramma in favour of defendant No. I and his
deceased brother Siddalingana, the donees became joint tenants with rights of
survivorship Consequently on the death of 135 Siddalingana his interest
devolved upon defendant No. 1 and not on his father. The other and the more
material defence raised was that the plaintiff's suit was barred, as he was
never in possession of the property and the defendant No. 1 acquired a good
title by adverse possession. Both these points were decided against the
plaintiff by the learned District Judge who tried the suit. It was held that
the deed of gift executed by Paramma conferred no right on Nagana as the heir
of his son and such rights if any were specifically disclaimed by Nagana by the
lease deed and also by the receipts which he granted to Paramma as the guardian
of his minor son. It was held further that the plaintiff's suit was bound to
fail as he or his predecessors were never in possession of the property within
12 years from the date of the suit. The plaintiff indeed was an alienee of a cotenant
but it was held that the ordinary rule of one coowner being presumed to hold on
behalf of the others could not apply to the present case., as Nagana disclaimed
his rights as a co-owner and purported to act only on behalf of his infant son
Chenabasavana whose exclusive title to the lands he definitely acknowledged. In
view of these findings the trial Judge dismissed the plaintiff's suit.
Thereupon the plaintiff took an appeal
against this -decision to the High Court of Madras and the appeal was heard by
a Division Bench consisting of Rajamannar C.J. and Balakrishna Ayyar J. The
learned Judges held, differing from the trial Court, that the two sons of
Pompamma took their shares in their mother's property which devolved upon them
by inheritance, its well as in the property which they obtained under the deed
of gift executed in their favour by Paramma, as tenants in common and not as
joint tenants and consequently on the death of Siddalingana his interest vested
in his father Nagana and not in his brother, the defendant No. I. On the other
question the High Court held that though.Nagana by his acts and conduct in
connection with the execution of the lease deed did exhibit an animus to hold
the property solely on behalf of Chenabasavana to the exclusion of himself, yet
this animus did not last beyond 1935 when he 136 asserted his own right as a
co-sharer to half-shire of theplaint property by executing the mortgage deed in
favour of defendant No. 2. In these circumstances it was held that the
defendant No. 1 did not acquire title by adverse possession and the plaintiff
was entitled to succeed. The defendant No. 1 has now come up on appeal to this
Court.
Mr. Ayyangar appearing in support of the
appeal has not pressed before us the contention that was raised on behalf of
his client in the Courts below, that as the two brothers took the property as
joint tenants and not as tenants in common, the interest of Siddalingana passed
on his death to his brother, the defendant No. 1, and not to Nagana. We must
take it therefore that after the death of Siddalingana, Nagana became a
co-owner of the disputed property with his minor son Chenabasavana. As the
plaintiff purports to derive his title from Nagana, he can be said to have
established his title as a co-owner with defendant No. I and this being the
position, the presumption of law would be that the possession of one co-owner
was on behalf of the other also unless actual ouster was proved. To defeat the
claims of the plaintiff therefore it is incumbent upon defendant No. I to prove
that he held the property adversely to his co-owner -for the statutory period.
The peculiarity of the present cage is that here the joint owners of the
property were the father and his infant son, of whom the father himself was the
guardian and th e infant could not act in law except through the guardian.
It is conceded on behalf of the appellant
that the mere fact that the father did not participate in the profits of the
property which was left to the management of Paramrna on behalf of the infant
could not by itself make the possession of the son adverse to his father. But
the acts and conduct of the father in connection with the lease deed of 1926
and the subsequent granting of receipts in terms thereof undoubtedly point to
something more than mere nonparticipation in the enjoyment of profits of the
property on absence of objection to the exclusive enjoyment there of by Paramma
on behalf of the infant, In granting the 137 lease on behalf of the infant the
father definitely asserted the exclusive title of his son to the property and
by implication denied his own rights as a co-owner thereto. In law the
possession of the lessee is the possession of the lessor and consequently ever
since 1926 when Paramma began to possess the property as a lessee in terms of
the ease deed, her possession in law was the possession of the infant alone to
the exclusion of Nagana, the father. The fact that Nagana consented to such
exclusion is immaterial. There can be in law, under certain circumstances,
adverse possession with the consent of the true owner. A common illustration of
this rule is furnished 'by the class of cases where the legal owner of a
property transfers the same to another without the requisite legal formalities
and though the transferee does not acquire a legal title to it by the transfer,
yet if he gets possession of the property though with the consent of the
transferor that possession becomes adverse to the owner and if continued for
the statutory period creates a title in him. We are not satisfied from the
materials in this case that Nagana was ignorant of his rights as heir of his
deceased son when he executed the lease in the year 1926., But even if he was,
as the exclusive possession of the infant was exercised with the full knowledge
and consent of the father who openly acknowledged the title of his son, such
possession could not but be adverse to the father. The learned Judges of the
High Court seem to be of the opinion that the possession of the minor could be
regarded as adverse from the date of the execution of the lease, as the father
by being a party to the said document, did exhibit an animus to possess the
common property on behalf of the minor alone to the exclusion of himself. But
according to the learned Judges this animus ceased as soon as Nagana executed
the mortgage deed in 1935, asserting his right as, joint owner of the property
in dispute and the adverse possession of the son forthwith came to an end. With
this view we are unable to agree.
Once it is held that the, possession of a
co-sharer has become adverse to the other co-sharer as a result of ouster, the
mere assertion of his joint title by the 138 dispossessed co-sharer would not
interrupt the running of adverse possession. He must actually and effectively
break up the exclusive possession of his co-sharer by re-entry upon the
property or by resuming possession in such manner as it was possible to do. It
may also check the running of time if the co-sharer who is in exclusive
possession acknowledges the title of his co owner or discontinues his exclusive
possession of the property. On the materials on the record, none of these
things seems to have been proved in the present case. Resumption of physical
possession or re-entry upon the property was absolutely out of the question, as
the property was in the possession of a lessee.
The lease, it should be noted, was executed
in 1926 and we have two rent receipts of the years 1927 and 1932 respectively
by v which Nagana acknowledged receipt of rents on behalf of his infant son in
terms of the lease deed. The rent suit in 1934 was also brought by him in his capacity
as guardian of defendant No. 1 and the document Exhibit D-3 by which the decree
in that suit was discharged and a receipt was given in advance for all the
subsequent rents point definitely to the conclusion that the entire rent for
the whole period of 12 years was paid to and was accepted on behalf of
Chenabasavana and Nagana neither received any portion of it nor laid any claim
to the same. During the whole period of the lease and up to the present day the
minor is admittedly in possession of the property and no act or conduct on his
part has been proved either within the period of limitation or even after that
which might be regarded as an acknowledgment of the title of his father as
co-owner.
In our opinion the fact that the father who
had allowed himself to be dispossessed by his son exhibited later on his animus
to treat the property as the joint property of himself and his son cannot
arrest the running of adverse possession in favour of the son. A mere mental
act on the part of the person dispossessed unaccompanied by any change of
possession cannot affect the continuity of adverse possession of the deseizor.
The view taken by the High Court probably
rests on the supposition that as, it was the father, who, acting 139 on behalf
of his son, asserted the exclusive title of the son to the property in denial
of his own rights, it was open to the father again if he so chose to resile
from that position and make a fresh declaration that property was not the sole
property of the son but belonged to him as well;
and this subsequent act would annul the
consequences of his previous act. This reasoning does not appear to us to be
sound. The father's acts in connection with the lease were entirely in his
capacity as guardian of his son. In the eye of the law they were the acts of
the son, but the creation of the mortage in 1935 was not the act of the father
on behalf of his son, it was the personal act of the father himself qua
co-proprietor of the son and the interest of one being adverse to the other such
acts could not be held to be acts of the son performed through the father. It
is extremely doubtful whether qua guardian the father could make such
declaration at all. Any change of intention on the part of the guardian can be
brought home to the minor through the guardian alone and the minor can react to
it again only through the guardian. It may be proper in such cases for the
father to renounce his guardianship before he could assert any right of his own
against his ward; but it is not necessary for us to go into that question, as
the mortgage in this case was made by the father no I t as guardian of the
minor at all. It was no more than a declaration, by a person who was
dispossessed by his cosharer, of his joint title to the property and as has
been already pointed out, as it did not involve any change of possession it did
not affect the adverse possession of the deseizor. In our opinion therefore the
view taken by the learned Judges of the High Court is not proper and cannot be
sustained. The result is that the appeal is allowed; the ,judgment and decree
of the High Court are set aside and those of the District Judge restored. The
appellant will have his costs in all the Courts.
Appeal allowed.
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