{"id":176069,"date":"1954-04-15T00:00:00","date_gmt":"1954-04-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/wuntakal-yalpi-chenabasavana-vs-rao-bahadur-y-mahabaleshwarappa-on-15-april-1954"},"modified":"2017-02-10T16:11:32","modified_gmt":"2017-02-10T10:41:32","slug":"wuntakal-yalpi-chenabasavana-vs-rao-bahadur-y-mahabaleshwarappa-on-15-april-1954","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/wuntakal-yalpi-chenabasavana-vs-rao-bahadur-y-mahabaleshwarappa-on-15-april-1954","title":{"rendered":"Wuntakal Yalpi Chenabasavana … vs Rao Bahadur Y. Mahabaleshwarappa … on 15 April, 1954"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Wuntakal Yalpi Chenabasavana … vs Rao Bahadur Y. Mahabaleshwarappa … on 15 April, 1954<\/div>\n
Equivalent citations: 1954 AIR 337, \t\t 1955 SCR 131<\/div>\n
Author: B Mukherjea<\/div>\n
Bench: Mukherjea, B.K.<\/div>\n
           PETITIONER:\nWUNTAKAL YALPI CHENABASAVANA GOWD\n\n\tVs.\n\nRESPONDENT:\nRAO BAHADUR Y. MAHABALESHWARAPPA AND ANOTHER.\n\nDATE OF JUDGMENT:\n15\/04\/1954\n\nBENCH:\nMUKHERJEA, B.K.\nBENCH:\nMUKHERJEA, B.K.\nBOSE, VIVIAN\nHASAN, GHULAM\nAIYYAR, T.L. VENKATARAMA\n\nCITATION:\n 1954 AIR  337\t\t  1955 SCR  131\n CITATOR INFO :\n R\t    1971 SC1337\t (17)\n\n\nACT:\n    Co-sharers--Joint  property-Adverse possession by a\t co-\nsharer\t  against    another\tco-sharer-Ouster--Principles\napplicable thereto.\n\n\n\nHEADNOTE:\n   Once\t it  is hold that a possession of  a  co-sharer\t has\nbecome\tadverse\t to  the other co- sharer  as  a  result  of\nouster,\t the  mere  assertion  of his  joint  title  by\t the\ndispossessed  co-sharer would not interrupt the\t running  of\nadverse possession.  He must actually and effectively  break\nup  the\t exclusive possession of his co-sharer\tby  re-entry\nupon  the property or by resuming possession in such  manner\nas it was possible to do.  It may also check the running  of\ntime  if  the  co-sharer  who  is  in  exclusive  possession\nacknowledges  the title of his co-owner or discontinues\t his\nexclusive possession of the property.\nThe  fact that one co-sharer who bad allowed himself  to  be\ndispossessed  by  another co-sharer as a  result  of  ouster\nexhibited  later on his animus to treat the property as\t the\njoint  property of himself and his co-sharer  cannot  arrest\nthe  running  of  adverse possession in favour\tof  the\t co-\nsharer.\t  A  mere  mental  act on the  part  of\t the  person\ndispossessed  unaccompanied  by\t any  change  of  possession\ncannot\taffect the continuity of adverse possession  of\t the\ndeseizor.\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL  APPELLATE  JURISDICTION: Civil Appeal No.  89  of
\n1953.\n<\/p>\n
132<\/span><\/p>\n
Appeal\tfrom the Judgment and Decree dated the 28th  day  of
\nMarch,\t1949, of the High Court of Judicature at  Madras  in
\nAppeal\tNo.  654 of 1945, arising out of  the  Judgment\t and
\nDecree dated the 23rd day of July, 1945, of the Court of the
\nDistrict Judge, Bellary, in Original Suit No. 17 of 1944.
\n K. S. Krishnaswami Iyengar (K.\t R. Chowdhury, D. Gundu Rao,
\nA.  Rama  Rao  and  Rajinder  Narain,  with  him)  for\t the
\nappellant.\n<\/p>\n
B.Somayya  (M.\tV. Ganapathi and Ganpat Rai, with  him)\t for
\nrespondent No. 1.\n<\/p>\n
1954.  April 15.  The Judgment of the Court was delivered by
\nMUKHERJEA J.-This appeal arises out of a suit, commenced  by
\nthe plaintiff respondent, in the Court of the District Judge
\nof  Bellary,  being  Original  Suit  No.  17  of  1944,\t for
\nestablishment  of  his title to one-half share of  the\tland
\ndescribed in the schedule to the plaint and for recovery  of
\npossession of the same after partition with defendant No. 1,
\nwho  is the appellant before us.  The suit was dismissed  by
\nthe  trial  Judge by his judgment dated the  23rd  of  July,
\n1945.  On an appeal being taken against that decision by the
\nplaintiff  to the High Court of Madras, a Division Bench  of
\nthe  High  -Court by its judgment dated the 28th  of  March,
\n1949,  allowed the appeal and reversed the judgment  of\t the
\ntrial Court., The defendant No. 1 has now come up on  appeal
\nto  this Court on the strength of a certificate\t granted  by
\nthe  High Court under article 133 of the  Constitution\tread
\nwith sections 109 and 1 10 of the Civil Procedure Code.
\nTo  appreciate the contentions that have been raised  before
\nus  it\tmay  be\t necessary to give a  short  resume  of\t the
\nmaterial  facts.  The land in suit, which has an area  of  a
\nlittle\tover  9 acres, was admittedly the  property  of\t one
\nBasappa\t who  died  some time  before  1918,  leaving  three
\ndaughters,  to wit Paramma, Pompamma and Hampamma.  Under  a
\nsettlement  entered into with the immediate  reversioner  of
\nBasappa which is evidenced by two registered  deeds-Exhibits
\nP-2  and  P-3-executed respectively in the  years  1918\t and
\n1919, the three sisters got about 15 to 16 acres of wet land
\n133<\/span>
\nin absolute right.  Hampamma subsequently took away her one-
\nthird share in these lands and we are not concerned with her
\nany  further  in  this\tlitigation.   Paramma  and  Pompamma
\ncontinued  to  enjoy the remaining two-thirds share  of\t the
\nproperty and it is this two-thirds ,share comprising 9 acres
\n49  cents of wet land which forms the subject-matter of\t the
\npresent\t suit.\tPompamma married one Nagana Gowd  and  after
\ngiving birth to two sons to wit Siddalingana and  Chenabasa-
\nvana,  she died in the year 1923.  It is not  disputed\tthat
\nher  share in the lands mentioned above devolved upon  these
\ntwo sons.  After Pompamma’s death, Nagana married again\t and
\nstayed with his second wife in his ancestral village,  while
\nthese two infant sons of Pompamma remained at village Kampli
\nwith  Paramma, their mother’s sister, who reared them up  as
\nher  own sons.\tOn the 22nd June, 1923, Paramma\t executed  a
\ndeed  of  gift in favour of the two sons of  her  sister  by
\nwhich she conveyed to the latter her own share in the.\tsuit
\nproperty.  The result was that the two sons of Pompamma\t got
\nthe entirety of the 9 acres 49 cents of land which as  owned
\njointly\t by their mother and their mother’s sister  Paramma.
\nShortly\t after this gift was made, Siddalingana,  the  elder
\nson  of Pompamma, died in the year 1924 and the\t plaintiff’s
\ncase  is  that\this  half-share\t in  the  disputed  property
\ndevolved  upon\this  father Nagkna under the  Hindu  law  of
\ninheritance.  It is admitted however that Paramma  continued
\nto possess the entirety of the land on behalf of the younger
\nson Chenabasavana who is defendant No. 1 in the suit On\t the
\n25th  August, 1946, there was a lease deed Exhibit D-1,\t and
\nits  counter  part  Exhibit D-2,  executed  by\tand  between
\nParamma\t on  the  one  hand and Nagana\tas  the\t father\t and
\nguardian  of the infant Chenabasavana on the other by  which
\nthe  infant represented by his father purported to  grant  a
\nlease  of the entire property to Paramma for a period of  12
\nyears  at  a rental of Rs. 500 a year.\t Two  rent  receipts
\npassed\tby  Nagana  to Paramma in token of  the\t receipt  of
\nrents,\treserved by this lease, on behalf  of  Chenabasavana
\nhave  been proved in this case, Exhibits D-4 and  D4-1,\t and
\nthey are of the years 1927 and 1932 respectively.\n<\/p>\n
134<\/span><\/p>\n
It appears that in 1934 Nagana instituted a suit as guardian
\nof  his\t infant son Chenabasavana in the Munsif’s  Court  at
\nHospet to recover a -sum of Rs. 500 as rent from Paramma  on
\nthe  basis  of\tthe lease mentioned  above.   The  suit\t was
\ndecreed ex parte and the decree was discharged later on by a
\ndocument  Exhibit  D-3, dated the 14th\tof  November,  1934,
\nexecuted by Nagana, which contains a recital that as Paramma
\nhad borrowed much money to purchase lands for the minor, all
\nfuture\trents  payable\tunder  the lease  were\talso  to  be
\nconsidered  as\tfully  paid.   It is  in  evidence  and\t not
\ndisputed,   that   near\t about\tthis  time   Nagana   became
\nfinancially  involved  and on the 27th of August,  1935,  he
\nexecuted  a deed of mortgage by conditional sale in  respect
\nof  half-share of the disputed land in favour  of  defendant
\nNo.  2\tto  secure an advance of Rs.  3,000.   The  document
\nrecites\t that the half-share of the land which was kept\t as.
\nsecurity devolved upon the mortgagor on the death of his son
\nSiddalingana and “that he was in possession of the same.  On
\nthe 16th July, 1936, Nagana sold the mortgaged property by,a
\ndeed  of sale (Exhibit P-6) to the mortgagee himself:  or  a
\nconsideration  of Rs. 3,000 which was the principal sum\t due
\nunder  the mortgage.  It is admitted that the purchaser\t did
\nnot and could not obtain possession -of the property at\t any
\ntime  since  then  and on the 2nd May,\t1944,  he  sold\t the
\nproperty to the ‘plaintiff by a conveyance which is  Exhibit
\nP-1.   On  the 18th July, 1944, the  plaintiff\tbrought\t the
\npresent\t suit against Chenabasavana as defendant No.  I\t for
\nrecovery of a demarcated half-share of the disputed property
\nafter  partition  with\tthe latter on the  strength  of\t the
\npurchase mentioned above and his own vendor was impleaded as
\ndefendant No. 2 in the suit.\n<\/p>\n
The  suit was contested by defendant No. 1 and a  number  of
\npleas  were  taken  by him in his  written  statement.\t The
\nsubstantial defence put forward was of a two-fold character.
\nIt  was contended in the first place that under the deed  of
\ngift  executed by Paramma in favour of defendant No.  I\t and
\nhis  deceased brother Siddalingana, the donees became  joint
\ntenants\t with  rights of survivorship  Consequently  on\t the
\ndeath of
\n135<\/span>
\nSiddalingana his interest devolved upon defendant No. 1\t and
\nnot on his father.  The other and the more material  defence
\nraised\twas that the plaintiff’s suit was barred, as he\t was
\nnever in possession of the property and the defendant No.  1
\nacquired  a  good title by adverse possession.\t Both  these
\npoints\twere  decided against the plaintiff by\tthe  learned
\nDistrict  Judge\t who tried the suit.  It was held  that\t the
\ndeed  of  gift\texecuted by Paramma conferred  no  right  on
\nNagana\tas the heir of his son and such rights if  any\twere
\nspecifically disclaimed by Nagana by the lease deed and also
\nby the receipts which he granted to Paramma as the  guardian
\nof his minor son.  It was held further that the\t plaintiff’s
\nsuit was bound to fail as he or his predecessors were  never
\nin possession of the property within 12 years from the\tdate
\nof  the suit.  The plaintiff indeed was an alienee of a\t co-
\ntenant\tbut  it was held that the ordinary rule of  one\t co-
\nowner  being presumed to hold on behalf of the others  could
\nnot  apply  to the present case., as Nagana  disclaimed\t his
\nrights as a co-owner and purported to act only on behalf  of
\nhis  infant son Chenabasavana whose exclusive title  to\t the
\nlands he definitely acknowledged.  In view of these findings
\nthe trial Judge dismissed the plaintiff’s suit.
\nThereupon   the\t plaintiff  took  an  appeal  against\tthis\n<\/p>\n
-decision  to  the High Court of Madras and the\t appeal\t was
\nheard by a Division Bench consisting of Rajamannar C.J.\t and
\nBalakrishna Ayyar J. The learned Judges held, differing from
\nthe  trial Court, that the two sons of Pompamma\t took  their
\nshares\tin their mother’s property which devolved upon\tthem
\nby  inheritance,  its  well as in the  property\t which\tthey
\nobtained under the deed of gift executed in their favour  by
\nParamma,  as tenants in common and not as joint tenants\t and
\nconsequently  on  the  death of\t Siddalingana  his  interest
\nvested\tin  his father Nagana and not in  his  brother,\t the
\ndefendant  No. I. On the other question the High Court\theld
\nthat  though.Nagana  by his acts and conduct  in  connection
\nwith  the execution of the lease deed did exhibit an  animus
\nto  hold the property solely on behalf of  Chenabasavana  to
\nthe  exclusion\tof  himself, yet this animus  did  not\tlast
\nbeyond 1935 when he
\n136<\/span>
\nasserted his own right as a co-sharer to half-shire of\tthe-
\nplaint property by executing the mortgage deed in favour  of
\ndefendant No. 2. In these circumstances it was held that the
\ndefendant No. 1 did not acquire title by adverse  possession
\nand  the plaintiff was entitled to succeed.   The  defendant
\nNo. 1 has now come up on appeal to this Court.\n<\/p>\n
Mr.  Ayyangar  appearing in support of the  appeal  has\t not
\npressed\t before us the contention that was raised on  behalf
\nof his client in the Courts below, that as the two  brothers
\ntook  the  property as joint tenants and not as\t tenants  in
\ncommon, the interest of Siddalingana passed on his death  to
\nhis  brother,  the defendant No. 1, and not to\tNagana.\t  We
\nmust take it therefore that after the death of Siddalingana,
\nNagana\tbecame a co-owner of the disputed property with\t his
\nminor  son  Chenabasavana.   As the  plaintiff\tpurports  to
\nderive\this  title  from  Nagana, he can  be  said  to\thave
\nestablished his title as a co-owner with defendant No. I and
\nthis  being  the position, the presumption of law  would  be
\nthat  the  possession of one co-owner was on behalf  of\t the
\nother  also unless actual ouster was proved.  To defeat\t the
\nclaims\tof  the\t plaintiff therefore it\t is  incumbent\tupon
\ndefendant No. I to prove that he held the property adversely
\nto his co-owner -for the statutory period.  The\t peculiarity
\nof  the\t present cage is that here the joint owners  of\t the
\nproperty  were\tthe father and his infant son, of  whom\t the
\nfather\thimself was the guardian and th e infant  could\t not
\nact in law except through the guardian.\n<\/p>\n
It is conceded on behalf of the appellant that the mere fact
\nthat  the father did not participate in the profits  of\t the
\nproperty  which\t was left to the management of\tParamrna  on
\nbehalf of the infant could not by itself make the possession
\nof the son adverse to his father.  But the acts and  conduct
\nof the father in connection with the lease deed of 1926\t and
\nthe  subsequent\t granting  of  receipts\t in  terms   thereof
\nundoubtedly   point  to\t something  more  than\t mere\tnon-
\nparticipation in the enjoyment of profits of the property on
\nabsence of objection to the exclusive enjoyment there of  by
\nParamma on behalf of the infant, In granting the
\n137<\/span>
\nlease on behalf of the infant the father definitely asserted
\nthe  exclusive\ttitle  of his son to  the  property  and  by
\nimplication denied his own rights as a co-owner thereto.  In
\nlaw  the possession of the lessee is the possession  of\t the
\nlessor\tand consequently ever since 1926 when Paramma  began
\nto  possess  the property as a lessee in terms of  the\tease
\ndeed, her possession in law was the possession of the infant
\nalone to the exclusion of Nagana, the father.  The fact that
\nNagana consented to such exclusion is immaterial.  There can
\nbe  in law, under certain circumstances, adverse  possession
\nwith  the consent of the true owner.  A common\tillustration
\nof  this rule is furnished ‘by the class of cases where\t the
\nlegal  owner  of a property transfers the  same\t to  another
\nwithout\t the  requisite\t legal formalities  and\t though\t the
\ntransferee  does  not  acquire a legal title to\t it  by\t the
\ntransfer,  yet if he gets possession of the property  though
\nwith  the consent of the transferor that possession  becomes
\nadverse\t to  the owner and if continued\t for  the  statutory
\nperiod creates a title in him. We are not satisfied from the
\nmaterials  in  this  case that Nagana was  ignorant  of\t his
\nrights\tas  heir of his deceased son when  he  executed\t the
\nlease  in  the\tyear  1926., But even  if  he  was,  as\t the
\nexclusive  possession of the infant was exercised  with\t the
\nfull  knowledge\t and  consent  of  the\tfather\twho   openly
\nacknowledged the title of his son, such possession could not
\nbut  be\t adverse to the father.\t The learned Judges  of\t the
\nHigh Court seem to be of the opinion that the possession  of
\nthe minor could be regarded as adverse from the date of\t the
\nexecution  of the lease, as the father by being a  party  to
\nthe  said  document, did exhibit an animus  to\tpossess\t the
\ncommon\tproperty  on  behalf  of  the  minor  alone  to\t the
\nexclusion  of himself.\tBut according to the learned  Judges
\nthis  animus ceased as soon as Nagana executed the  mortgage
\ndeed  in  1935, asserting his right as, joint owner  of\t the
\nproperty  in dispute and the adverse possession of  the\t son
\nforthwith  came to an end.  With this view we are unable  to
\nagree.\n<\/p>\n
Once  it  is held that the, possession of  a  co-sharer\t has
\nbecome adverse to the other co-sharer as a result of ouster,
\nthe mere assertion of his joint title by the
\n138<\/span>
\ndispossessed  co-sharer would not interrupt the\t running  of
\nadverse possession.  He must actually and effectively  break
\nup  the\t exclusive possession of his co-sharer\tby  re-entry
\nupon  the property or by resuming possession in such  manner
\nas it was possible to do.  It may also check the running  of
\ntime  if  the  co-sharer  who  is  in  exclusive  possession
\nacknowledges  the title of his coowner or  discontinues\t his
\nexclusive  possession of the property.\tOn the materials  on
\nthe  record, none of these things seems to have been  proved
\nin  the present case.  Resumption of physical possession  or
\nre-entry  upon\tthe  property  was  absolutely\tout  of\t the
\nquestion, as the property was in the possession of a lessee.
\nThe  lease, it should be noted, was executed in 1926 and  we
\nhave   two  rent  receipts  of\tthe  years  1927  and\t1932
\nrespectively by v which Nagana acknowledged receipt of rents
\non behalf of his infant son in terms of the lease deed.\t The
\nrent suit in 1934 was also brought by him in his capacity as
\nguardian of defendant No. 1 and the document Exhibit D-3  by
\nwhich  the decree in that suit was discharged and a  receipt
\nwas  given  in advance for all the  subsequent\trents  point
\ndefinitely  to the conclusion that the entire rent  for\t the
\nwhole  period  of 12 years was paid to and was\taccepted  on
\nbehalf of Chenabasavana and Nagana neither received any por-
\ntion of it nor laid any claim to the same.  During the whole
\nperiod\tof the lease and up to the present day the minor  is
\nadmittedly  in\tpossession  of the property and\t no  act  or
\nconduct on his part has been proved either within the period
\nof limitation or even after that which might be regarded  as
\nan  acknowledgment of the title of his father  as  co-owner.
\nIn  our\t opinion the fact that the father  who\thad  allowed
\nhimself to be dispossessed by his son exhibited later on his
\nanimus\tto  treat  the property as  the\t joint\tproperty  of
\nhimself\t and  his son cannot arrest the running\t of  adverse
\npossession  in favour of the son.  A mere mental act on\t the
\npart of the person dispossessed unaccompanied by any  change
\nof  possession\tcannot\taffect\tthe  continuity\t of  adverse
\npossession of the deseizor.\n<\/p>\n
The  view  taken  by the High Court probably  rests  on\t the
\nsupposition that as, it was the father, who, acting
\n139<\/span>
\non  behalf of his son, asserted the exclusive title of\tthe-
\nson to the property in denial of his own rights, it was open
\nto  the\t father\t again if he so chose to  resile  from\tthat
\nposition and make a fresh declaration that property was\t not
\nthe  sole property of the son but belonged to him  as  well;
\nand this subsequent act would annul the consequences of\t his
\nprevious  act.\tThis reasoning does not appear to us  to  be
\nsound.\tThe father’s acts in connection with the lease\twere
\nentirely in his capacity as guardian of his son.  In the eye
\nof  the law they were the acts of the son, but the  creation
\nof  the\t mortage in 1935 was not the act of  the  father  on
\nbehalf\tof  his son, it was the personal act of\t the  father
\nhimself qua co-proprietor of the son and the interest of one
\nbeing adverse to the other such acts could not be held to be
\nacts  of  the  son  performed through  the  father.   It  is
\nextremely  doubtful  whether qua guardian the  father  could
\nmake  such declaration at all.\tAny change of  intention  on
\nthe  part of the guardian can be brought home to  the  minor
\nthrough\t the  guardian alone and the minor can react  to  it
\nagain  only through the guardian.  It may be proper in\tsuch
\ncases for the father to renounce his guardianship before  he
\ncould  assert any right of his own against his ward; but  it
\nis  not\t necessary for us to go into that question,  as\t the
\nmortgage  in  this  case was made by the father no  I  t  as
\nguardian  of  the  minor  at all.  It was  no  more  than  a
\ndeclaration,  by  a person who was dispossessed by  his\t co-
\nsharer,\t of his joint title to the property and as has\tbeen
\nalready\t pointed  out, as it did not involve any  change  of
\npossession  it did not affect the adverse possession of\t the
\ndeseizor.   In our opinion therefore the view taken  by\t the
\nlearned Judges of the High Court is not proper and cannot be
\nsustained.   The result is that the appeal is  allowed;\t the
\n,judgment  and\tdecree of the High Court are set  aside\t and
\nthose  of the District Judge restored.\tThe  appellant\twill
\nhave his costs in all the Courts.\n<\/p>\n
\t\t\t   Appeal allowed.\n<\/p>\n
140<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Wuntakal Yalpi Chenabasavana … vs Rao Bahadur Y. Mahabaleshwarappa … on 15 April, 1954 Equivalent citations: 1954 AIR 337, 1955 SCR 131 Author: B Mukherjea Bench: Mukherjea, B.K. PETITIONER: WUNTAKAL YALPI CHENABASAVANA GOWD Vs. RESPONDENT: RAO BAHADUR Y. MAHABALESHWARAPPA AND ANOTHER. DATE OF JUDGMENT: 15\/04\/1954 BENCH: MUKHERJEA, B.K. BENCH: MUKHERJEA, B.K. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-176069","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nWuntakal Yalpi Chenabasavana ... vs Rao Bahadur Y. 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