P. Lakshmi Reddy Vs. L. Lakshmi Reddy
[1956] INSC 81 (5 December 1956)
JAGANNADHADAS, B.
SINHA, BHUVNESHWAR P.
IMAM, SYED JAFFER
CITATION: 1957 AIR 314 1957 SCR 195
ACT:
Adverse Possession-Possession of co-heir,
when adverseOuster-Possession of Receiver pendente lite, if can be tacked.
HEADNOTE:
V died an infant in 1927 and H, an agnatic
relation. filed a, suit for the recovery of the properties belonging to V which
were in the possession of third parties, on the ground that he was the sole
nearest male agnate entitled to all the properties. During the pendency of the
suit a Receiver was appointed for the properties in February, 1928. The suit
having been decreed H obtained possession of the properties from the Receiver
on January 20, 1930, and after his death in 1936, his nephew, the appellant,
got into possession as His heir. On October 23, 1941, the respondent brought
the present suit for the recovery of a one third share of the properties from
the appellant on the footing that he and his brother were agnatic relations of
V of the same degree as H, that all the three were equal co-heirs of V and that
H obtained the decree and got into possession on behalf of all the co-heirs.
The appellant resisted the suit and contended that the respondent lost his
right by the adverse possession of H and his successor and that for this
purpose not only the period from January 20, 1930, to October 23, 1941, was to
be counted, but also the prior period when the Receiver was in possession of
the properties during the pendency of H's suit. it was found that-the;
respondent's case that H obtained the decree and got possession, from the
Receiver on behalf of the other co-heirs was not true :
Held, that the respondent did not lose his
right by adverse possession. Even assuming that H's possession from January 20,
1930, was adverse and amounted to ouster of the other co-heirs, such adverse
possession was not adequate in time to displace the title of the respondent and
the period during which the Receiver was in possession could not be added,
because (1) the Receiver's 196 possession could not be tacked on to H's
possession, as a Receiver is an officer of the Court and is not the agent of
any party to the suit and notwithstanding that in law his possession is
ultimately treated as possession of the successful party on the termination of
the suit, he could not be considered as the agent of such party with' the
animus of claiming sole and exclusive title with the view to initiate adverse
possession ; and (2) during the time of the Receiver's possession the
respondent could not sue H, and limitation could not therefore run against him.
The possession of one co-heir is considered,
in law, as possession of all the co-heirs and in order to establish adverse
possession ouster of the non-possessing co-heir should be made out and as
between them there-must be evidence of open assertion of hostile title, coupled
with exclusive possession and enjoyment by one of them to the knowledge of the
other so as to constitute ouster.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 178 of 1955.
Appeal by special leave from the judgment and
decree dated December 3, 1951, of the High Court of Judicature at Madras in
Second Appeal No. 766 of 1947 against the decree dated November 19, 1946, of
the District Court of Anantapur in Appeal No. 130 of 1945 arising out of the
decree dated January 31, 1945, of the Court of Subordinate Judge, Anantapur, in
Original Suit No. 10 of 1944.
M. C. Setalvad, Attorney-General of India, P.
Ram Reddy, K. Sundararajan and M. S. K. Aiyangar, for the appellant.
C. K. Daphtary, Solicitor-General of India,
and K. R. Chaudhury, for the respondent.
1956. December 5. The Judgment of the Court
was delivered by JAGANNADHADAS J.-The plaintiff in the action out of which this
appeal arises brought a suit for declaration of his title to a one-third share
in the suit properties and for partition and recovery of that share. The suit
was dismissed as having been barred by limitation and adverse possession. On
appeal the District Judge reversed the decision and decreed the suit. The. High
Court maintained the decree of the District Judge on second appeal. Hence this
appeal before us on special 197 leave by the first defendant in the action, who
is the appellant before us. The main question that arises in the appeal is
whether the plaintiff has lost his right to a onethird, share in the suit
property by adverse possession.
The property in suit belonged to one Venkata
Reddy. He died an infant on Augutst 25, 1927. At that time, the properties were
in the possession of the matemal uncles of the father of the deceased Venkata
Reddy. One Hanimi Reddy, an agnatic relation of Venkata Reddy, filed a suit
O.S. No. 26 of 1927 for recovery of the properties from 'the said matemal
uncles and obtained a decree therein on March 15, 1929. A Receiver was
appointed for the properties in February, 1928, during the pendency of the suit
and presumably the properties were in his possession. This appears from the
decree which shows that it directed the Receiver to deliver possession to the
successful plaintiff in that suit' Hanimi Reddy obtained actual possession of
these properties on January 20, 1930, and continued in possession till he died
on August 16, 1936.
The first defendant in the present action who
is the appellant before us is a son of the brother of Hanimi Reddy and came
into possession of all the properties as Hanimi Reddy's heir. The respondent
before us is the plaintiff.
The present suit was brought on the
allegation that the plaintiff and the second defendant in the suit, his
brother, were agnatic relations of VenkataReddy, of the same degree as Hanimi
Reddy and that all the three were equal co-heirs of Venkata Reddy and succeeded
to his properties, as such-on his death. It was alleged that though Hanimi
Reddy filed the prior suit and obtained possession of the properties
thereunder, he did so as one of the do-heirs, with the consent of the plaintiff
and the second defendant and that he was enjoying the properties jointly with
the plaintiff and his brother as tenants-in-common but that the first
defendant, who came into possession on the death of Hanimi Reddy denied the
title of the plaintiff and his brother in or about the year 1940. The plaint in
the present action was filed originally in the District Munsif s Court on
October 23, 1941, and was ordered 198 to be returned for presentation; to the
District Judge's Court on November 30, 1942. It was actually re-presented in
that Court on December 2, 1942. One of the questions raised in the suit was
that the, suit was, barred by limitation on the ground that it must be taken to
have been instituted not on October(23, [1941], but on December 2, 1942. This
plea was upheld by the trial Court. On first -appeal-the District Judge held
that the plaintiff is entitled to the benefit of a. 14 of the Limitation Act
and that the suit must be taken as havingbeen instituted on October 23, 19419
and is; therefore, in time. He accordingly decreed, the suit. In the -High
Court the question as to whether the plaintiff was entitled to the benefit of.
14 of the, Limitation Act, though raised, was not finally decided. It was held
that the possession of Hanimi Reddy was not adverse to the plaintiff and that
accordingly he was entitled to the decree as prayed for. The question as to the
nonavailability of the benefit of s. 14 of the Limitation Act to the plaintiff
in the present suit has not been, urged before us andthe finding of the
District Judge that the plaint must be taken to have been validly presented on
October 23, 1941, stands. That date must, therefore, be taken to be the
commencement of the action for the purposes of this appeal. It will be noticed
that this date is more than fourteen years from the date when the succession
opened to the properties of Venkata Reddy on August 25, 1927, but is less than
twelve years after Hanimi Reddy obtained actual possession in execution of his
decree on January 20, 1930.
The contention of the learned Attomey-General
for the appellant first defendant is that the possession of Hanimi Reddy was
adverse, that the plaintiff as well as the second defendant lost their right by
the adverse possession of Hanimi Reddy and his successor, the first defendant,
and that for this purpose not only the period from January 20, 1930, up to
October 23, 1941, is to be counted but also the prior period during the
pendency of Hanimi Reddy's suit when the Receiver was in possession of the suit
properties. It is the. validity of 199 these two parts of the argument which has
to be considered.
It will be convenient to consider in the
first instance whether or not the possession ofHanimi Reddy from January 20,
1930, up to the date of his death in 1936 was adverse to his co-heirs. The
:facts relevant for this purpose are the following. At the date when Venkata
Reddy died his properties were in the custody of the two maternal uncles of his
father. Hanimi Reddy filed his suit on the allegation, as already stated above,
that he was the nearest agnatic relation alive of the deceased minor Venkata
Reddy and as his next rightful heir to succeed to all the estate, movable and
immovable, of the said minor, set forth in the schedules thereto. He appended a
genealogical tree to his plaint which showed his relationship to Venkata Reddy
through a common ancestor and showed only the two lines of himself and Venkata
Reddy. Plaintiff and the second defendant belong to another line emanating from
the same common ancestor but that line was not shown and the plaintiff and
second defendant were ignored. The first defendant in the present suit did not
admit the relationship of plaintiff and second defendant in his written
statement. He disputed that the father of the plaintiff and second defendant
was descended from the common ancestor either by birth or by adoption, as shown
in the genealogical table attached to the present plaint. It is possible that
this may have been the reason for Hanimi Reddy ignoring the plaintiff and the
second defendant in-his suit. However this may be, at the trial in this suit it
was admitted that the plaintiff and the second defendant are the agnatic
relations of Venkata Reddy of the same degree as Hanimi Reddy. The defendants
in the earlier suit who were in possession on that date claimed to retain
possession on behalf of an alleged illatom sonin-law (of Venkata Reddy's
father) a son of the second defendant therein. It may be mentioned that in that
part of the country (Andhra) an illatom son-in-law is a boy incorporated into
the family with a view to give a daughter in marriage and is customarily
recognised as an heir in the absence of a natural-born son, This 200 claim
appears to have been negatived and the suit was decreed. During the pendency of
the suit a Receiver was appointed in February, 1928. He presumably took
possession though the date of his taking possession is not on the record. The
decree in that suit dated March 15, 1929, is as follows:
"This Court doth order and decree that
plaintiff do recover possession of immovable property and movables in the
possession of the Receiver." It is in the evidence of the first defendant
himself as D.W.
I that the properties, were taken possession
of by Hanimi Reddy on January 20, 1930. The plaintiff examined himself as P.W.
1 to substantiate the case as set out in his plaint that he and the second
defendant and Hanimi Reddy were enjoying the properties jointly as tenants in
common. The relevant portion of his evidence is as follows:
"Annu Reddy (Hanimi Reddy) uncle of
defendant " and myself filed 0. S. No. 26 of 1927, District Court,
Anantapur-same as O.S. No. 24 of 1928, Sub-Court, Anantapur-for the properties
of the deceased Venkata Reddy. As Hanimi Reddy was the eldest member, he was
attending to the conduct of that suit. I was also coming to Court along with
him. The suit ended in our favour. Hanimi Reddy took possession through Court
after the decree in the year 1930. Since then both Hanimi Reddy and myself have
been in joint possession and enjoyment of the same." In cross-examination
he said as follows:
"I told Hanimi Reddy that I would also
join him as a party in O.S. 24 of 1928. He said there was no need for me to
join and that he would give my share to me.................
I did nut file any application to be
impleaded as a defendant................. I have nothing in writing to show
that Hanimi Reddy was giving me any produce from the suit lands." The
first defendant filed the plaint, judgment and decree in Hanimi Reddy's suit as
also pattas, cist receipts and lease deeds taken by Hanimi Reddy in his time. With
reference to this evidence the trial Court found as follows;
201 "The documents filed on behalf of
the first defendant completely establish that Hanimi Reddy filed the suit in
his individual capacity and obtained possession thereof. There is nothing to
indicate that either the plaintiff or the second defendant took any interest in
those proceedings................. There is no evidence of Hanimi Reddy having
given any produce to the plaintiff or to the second defendant.............. The
plaintiff and the second defendant have been excluded from participation of
profits to their knowledge since 1930." The learned District Judge found
on appeal (when the same was remanded to him for a finding by the High Court)
as follows:
"I have no hesitation in holding that
the plaintiff had nothing to do with the institution or conduct of the suit S.
No. 24 of 1928 on the file of the Sub Court of Anantapur, and that he never had
any actual joint enjoyment of suit properties with the late D. Hanimi Reddy or
the first defendant." He has not given a finding as to whether the nonparticipation
of the profits by the plaintiff and the second defendant was in the nature of
exclusion to their knowledge.
But there are some admitted and relevant
facts brought out in evidence which are significant. The present evidence as
well 'as the' plaint in the earlier suit of 1927 show clearly that all the
parties including Hanimi Reddy were residents of village Mamuduru. All the suit
properties are situated in that village itself; as appears from the schedules
to the plaint in the earlier suit. Hanimi Reddy and the plaintiff were fairly
closely related as appears from the plaintiff's admission as follows:
"My brother-in-law who is also the
nephew -of Hanimi Reddy was staying with Hanimi Reddy. My father-in-law and
defendant No. 1's father-in-law is the same." On these facts the question
that arises is whether, in law, the possession of Hanimi Reddy from January,
20, 1930, onwards was adverse to the plaintiff and the second defendant.
26 202 Now, the ordinary classical
requirement of adverse possession is that it should be nec vi nec clam nec precario.
(See Secretary of State for India v. Debendra Lal Khan(1)). The possession
required must be adequate in continuity, in publicity and in extent to show
that it is possession adverse to the competitor. (Se(,, Radhamoni Debi v.
Collector of Khulna(2)). But it is well-settled that in order. to establish
adverse possession of one co-heir as against another it is not enough to show
that one out of them is in sole possession and enjoyment of the profits of the
properties. Ouster of the non-possessing co-heir by the co-heir in possession,
who claims his possession to be.
adverse, should be made out. The possession
of one co-heir is considered, in law, as possession of all the co-heirs.
When one co-heir is found to be in possession
of the properties it is presumed to be on the basis of joint title.
The coheir in possession cannot render his
possession adverse to the other co-heir not in possession merely by any secret
hostile animus on his own part in derogation of the other co-heir's title. (See
Corea v. Appuhamy(3)). It is a settled rule of law that as between co-heirs
there must be evidence of open assertion of hostile title, coupled with
exclusive possession and enjoyment by one of them to the knowledge of the other
so as to constitute ouster. This does not necessarily mean that there must be
an express demand by one and denial by the other. There are cases which have
held that adverse possession and ouster can be inferred when one co-heir takes
and maintains notorious exclusive possession in assertion of hostile title and
continues in such possession for a very considerable time and the excluded
heir' takes no steps to vindicate his title. Whether that line of cases is
right or wrong we need not pause to consider. It is sufficient to notice that
the Privy Council in N. Varada Pillai v. Jeevarathnammal(4) q uotes, apparently
with approval, a passage from Culley v.
Deod Taylerson(5) which indicates that such a
situation may Tell lead to an inference of (1) [1933] L.R. 6i I.A. 78, 82.
(2) [1900] L.R. 27 I.A. 136, 140.
(3) [1912] A.C. 230.
(4) A.I.R. 1919 P.C. 44, 47.
(5) 3 P. & D. 539; 52 R.R. 566.
203 ouster "if other circumstances
concur". (See also Govindrao v. Rajabai(1)). It may be further mentioned
that it is well-settled that the burden of making out ouster is on the person
claiming to displace the lawful title of a co-heir by his adverse possession.
In the present case there can be no doubt that
Hanimi Reddy obtained sole possession of the suit properties after the death of
Venkata Reddy on the basis of an action against third parties in which he
claimed to be the sole nearest male agnate having title to all the properties.
After obtaining possession he was in continuous and undisputed possession of
the properties till his death enjoying all the profits thereof. No doubt in an
ordinary case such possession and enjoyment has to be attributed to his lawful
title, he being one of the co-heirs. But the plaint in the suit of 1927 and the
decree therein render it reasonably clear that he filed the suit and obtained
possession on the basis of his having exclusive title ignoring his coheirs.
It is urged that knowledge of the assertion
of such exclusive title averred in a plaint cannot be imputed to other co-heirs
who are not parties to the suit. But in this case it is not difficult on the
evidence to ,say that the plaintiff and the second defendant must have been
fully aware, at the time, of the nature of the claim made by Hanimi Reddy in
the prior litigation and on the basis of which he obtained possession. That
knowledge is implicit in the very case that they have put forward in the
present plaint. Their case is that the prior suit was brought by Hanimi Reddy
with the consent of the plaintiff and the second defendant and on their behalf.
No doubt that specific case has been found against them and that finding is yes
judicata between the parties. But there is no reason why the admission as to
the knowledge of the nature of the litigation and the contents of the plaint
which such a case necessarily implies should not be attributed at least to the
present plaintiff. It appears reasonable to think that the plaintiff being
unable to explain his inaction for over fourteen years after the death of
Venkata Reddy has been constrained to put (1) A. I. R. 1931 P.C. 48.
204 forward a false case that the prior suit
by Hanimi Reddy was with his consent and on his behalf. It is significant that
the plaintiff has remained silent with out asserting his right during Hanimi
Reddy's lifetime, and comes forward with this suit after his death, rendering
it difficult to ascertain whether the fact of Hanimi Reddy completely ignoring
the existence of the plaintiff and the second defendant as co-heirs was not in
denial of their relationship and consequently of their title as co-heirs to
their knowledge. The fact that even so late as in the written statement of the
first defendant relationship is denied may be indicative as to why Hanimi Reddy
ignored the plaintiff and the second defendant and why they remained silent.
The learned Judges of the High Court thought that there was nothing to show
that Hanimi Reddy was aware that plaintiff and second defendant had any rights
in the properties as co-heirs. This assumption is contrary to the admission of
mutual knowledge of each other's rights implicit in the plaintiff's case that
Hanimi Reddy brought his suit with the consent of the plaintiff. In such
circumstances and especially having regard to the fact that both the plaintiff
and Hanimi Reddy were living in the same village and the plaintiff has put
forward a false explanation to account for' his inaction, a Court of fact might
well have inferred ouster. Sitting on an appeal in special leave, however, we
do not feel it desirable to decide the case on this ground. We, therefore,
proceed to consider the further question that arises in the case, viz., whether
the Receiver's possession can be tacked on to Hanimi Reddy's possession, on the
assumption that Hanimi Reddy's possession on and from January 209 1940, was
adverse to the plaintiff.
The learned Attorney-General urges that prior
possession of the Receiver pending the suit must be treated as possession on
behalf of Hanimi Reddy with the animus of claming sole and exclusive title
disclosed in his plaint. In support of this contention he relies on the
well-known legal principle that when a Court takes possession of properties
through its Receiver, such Receiver's possession is that of all the 205 parties
to the action according to their titles. (See Kerr on Receivers, 12th Ed., p.
153). In Woodroffe on the Law relating to Receivers (4th Ed.) at p. 63 the
legal position is stated as follows:
" The Receiver being the officer of the
Court from which he derives his appointment, his possession is exclusively the
possession of the Court, the property being regarded as in the custody of the
law, in gremio legis, for the benefit of whoever may be ultimately determined
to be entitled thereto." But does this doctrine enable a person who was
not previously in possession of the suit properties, to claim that the Receiver
must be deemed to have taken possession adversely to the true owner, on his
behalf, merely because he ultimately succeeds in getting a decree for
possession against the defendant therein who was previously in possession
without title. A 'Receiver is an officer of the Court and is not a particular
agent of any party to the suit, notwithstanding that in law his possession is
ultimately, treated as possession of the successful party on the termination of
the suit. To treat such Receiver as plaintiff's agent for the purpose of
initiating adverse possession by the plaintiff would be to impute wrong-doing
to the Court and its officers. The doctrine of Receiver's possession being that
of the successful party cannot, in our opinion, be pushed to the extent of
enabling a person who was initially out of possession to claim the tacking on
of Receiver's possession to his subsequent adverse possession.
The position may conceivably be different
where the defendant in the suit was previously in adverse possession against
the real owner and the Receiver has taken possession from him and restores it
back to him on the successful termination of the suit in his favour. In such a
case the question that would arise would be different, viz., whether the
interim possession of the Receiver would be a; discontinuance or abandonment of
possession or interrupt ion of the adverse possession. We are not concerned
with it in this case and express no opinion on it.
The matter may be looked at from another
point of view. It is well-settled that limitation cannot begin 206 to run
against a person unless at the time that person is legally in a position to
vindicate his title by action. In. Mitra's Tagore Law Lectures on Limitation
and Prescription (6th Ed.) Vol.1, Lecture VI, at p. 159, quoting from Angell on
Limitation, this Principle is stated in the following terms:
" An adverse holding is an actual and
exclusive appropriation of land commenced and continued under a claim of right,
either under an openly avowed claim, or under a constructive claim (arising
from the acts and circumstances attending the appropriation), to hold the land
against him who was in possession. (Angell, sections 390 and 398). It is the
intention to claim adversely accompanied by such an invasion of the rights of
the opposite party as gives him a cause of action which constitutes adverse
possession." Consonant with this principle the commencement of adverse
possession, in favour of a person, implies that person is in actual possession,
at the time, with a notorious hostile claim of exclusive title, to repel which,
the true owner would then be in a position to maintain an action. It would
follow that whatever may be the animus or intention of a person wanting to
acquire title by adverse possession his adverse possession cannot commence
until he obtains actual possession with the requisite animus. In the leading
case of Agency Company v. Short(1) the Privy Council points out that there is
discontinuance of adverse possession when possession has been abandoned and
gives as the reason there for, at p. 798, as follows:
" There is no one against whom he (the
rightful owner) can bring his action." It is clearly implied therein that
adverse possession cannot commence without actual possession which can furnish
cause of action. This principle has been also explained in Dwijendra Narain Roy
v. Joges Chandra De(2) at p. 609 by Mookerjee J. as follows :
The substance of the matter is that time runs
when the cause of action accrues, and a. cause of action accrues, when there is
in existence a person who can (1) (1888) 13 App. Cas. 793.
(2) A.I.R. 1924 Cal. 6oo, 207 sue and another
who can be sued....... The cause of action arises when and only when the
aggrieved party has the right to apply to the proper tribunals for relief. The
statute (of limitation) does not attach to a claim for which there is as yet no
right of action and does not run against a right for which there is no
corresponding remedy or for which judgment cannot be obtained. Consequently the
true test to determine when a cause of action has accrued is to ascertain the
time when plaintiff could first have maintained his action to a successful
result." In the present case, the co-heirs out of possession such as the
plaintiff and the second defendant were not obliged to bring a suit for
possession against Hanimi Reddy until such time as Hanimi Reddy obtained actual
possession. Indeed during the time when the Receiver was in possession,
obviously, they could not sue him for possession to vindicate their title. Nor
were they obliged during that time to file a futile suit for possession either
against Hanimi Reddy or against the defendants in Hanimi Reddy's suit when
neither of them was in possession. It appears to us, therefore, that the
adverse possession of Hanimi Reddy, if any, as against his co-heirs could not
commence when the Receiver was in possession. It follows that assuming that the
possession of Hanimi Reddy from January 20, 1930, was in fact adverse and
amounted to ouster of the co-heirs such adverse possession was not adequate in
time by October 23, 1941, the date of suit, to displace the title of the
plaintiff. It follows that the plaintiff respondent before us is entitled to
the decree which he has obtained and that the decision of the High Court is, in
our view, correct, though on different grounds. It may be mentioned that
objection has been raised on behalf of the respondents before us that the
question" of tacking on Receiver's possession was not in issue in the
lower Courts and should not be allowed to be raised here. In the view we have
taken it is unnecessary to deal with this objection.
In the result the appeal is dismissed with
costs.
Appeal dismissed.
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