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.
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 co-
sharer 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 co- sharer 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 co-
sharer. 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.
JUDGMENT:
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 one-
third 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 Chenabasa-
vana, 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 co-
tenant but it was held that the ordinary rule of one co-
owner 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 the-
plaint 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 non-
participation 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 coowner 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 por-
tion 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 co-
sharer, 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.
140