IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS No. 182 of 2001()
1. YYYYYSHNAN
... Petitioner
Vs
1. K.VAIDHYANATHAN
... Respondent
For Petitioner :SRI.S.EASWARAN
For Respondent :SRI.R.HARIKRISHNAN
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice V.K.MOHANAN
Dated :26/10/2007
O R D E R
P.R.RAMAN & V.K.MOHANAN, JJ.
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A.S.NO.182 OF 2001
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Dated this the 26th day of October, 2007
JUDGMENT
Raman, J.
Plaintiffs are the appellants. Suit was one for declaration and
separate possession of the plaint schedule properties. Originally there
were 4 defendants in the suit. During the pendency of the suit the 2nd
defendant Sri K.Mahadevan died and his legal heirs were impleaded as
additional defendants 5 to 7. The suit was dismissed by the trial court,
against which the present appeal is filed.
2. The questions that arise for consideration in this appeal is (i)
whether the plaint schedule properties are co-parcenary properties and
if so, whether the plaintiffs acquired right by birth and hence available
for partition, (ii) whether the right if any of the plaintiffs extinguished
by the release deed ( Ext.A5) executed by the 4th defendant, the father
of the plaintiffs, (III) whether the suit is barred by limitation and (iv)
whether defendants 1 to 3 and 5 to 7 perfected their title by adverse
possession.
3. The material averments as gathered from the plaint and the
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written statement filed by the parties which are relevant for answering the
above questions may be briefly stated as follows:
Plaint A schedule property consists of an extent of 10.08 acres.
Plaint B schedule property consists of an extent of 3.500 cents.
According to the plaintiff, plaint A schedule property originally belonged
to one Sri Krishnayyan, Pazhayadath Puthenmadom, Thodupuzha and he
was in possession and enjoyment of the same. Krishnayyan had 3 sons,
viz., Krishna Iyer, Narayana Iyer and Neelakanda Iyer. Neelakanda Iyer
died long ago surviving him his widow Smt.Kaveri Ammal and 4
daughters, viz., Parvathi, Lakshmi, Savithri and Thankamma and one son
Hariharan. Krishna Iyer died on 10/6/1971 and his wife Parvathy Ammal
died in the year 1976. Krishna Iyer and Parvathy Ammal had four sons,
who are defendants 1 to 4. Plaintiffs are two sons of the 4th defendant.
During the life time of Krishnayyan plaint A schedule properties were
allotted in favour of his eldest son, Krishna Iyer, who is the grandfather
of the plaintiffs, as per document No.912 dated 24/4/1120 M.E. of the
Sub Registry, Thodupuzha styled as a partition deed, produced as Ext.A1
in this case. In respect of other properties excluding plaint A schedule
properties Krishnayyan executed a settlement deed as per document
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No.3601 dated 5/12/1121 M.E. of Sub Registry, Thoudupuzha produced
as Ext.A2 in this case, settling the properties in favour of his sons;
Krishna Iyer, Narayana Iyer and Neelakanda Iyer. Since Neelakanda Iyer
was no more at the time of such settlement deed, his legal representatives,
his widow Kaveri Ammal and children Lakshmi, Savithri, Thankamma
and Hariharan were included in the said settlement deed. Parvathy,
daughter of late Neelakanda Iyer however was excluded from the
settlement deed for the reason that she was married at that time.
4. Plaint A schedule properties was acquired by Krishna Iyer.
Krishna Iyer died on 10/6/1971 leaving his wife Parvathy Ammal and his
children who are defendants 1 to 4. According to the plaintiffs, they are
therefore entitled to 1/5th share over the plaint schedule properties as per
the provisions of the Hindu Succession Act, 1956. Plaintiffs and their
sister Geetha are the children of the 4th defendant. On the death of
Krishna Iyer, the 4th defendant is thus entitled to 1/5th share over plaint
A and B schedule properties. The 4th defendant and the plaintiffs form a
co-parcenary and hence entitled to 1/5th share of the 4th defendant over
the plaint schedule items. Even otherwise the 4th defendant and the
plaintiffs would form a joint family entitled to 1/5th share over paint A
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and B schedule properties. According to the plaintiffs, they were away
from Thodupuzha for their studies and recently before instituting the suit
when they visited to the ancestral home at Thodupuzha, they noticed the
activities among defendants 1 to 3 for partition of plaint A schedule
properties. The lst defendant is in possession of the plaint schedule items
for and on behalf of the joint family. Defendants 1 to 3 were evasive to
the various enquiries made by the plaintiffs regarding their attempt of
partition among themselves of the plaint schedule items. Hence, they
sent a letter dated 21/12/1996 to the lst defendant to inform regarding
their proposal and whether the plaintiffs are allotted any share. To this
the lst defendant replied saying that the schedule properties were owned
and possessed by late N.K.Krishna Iyer absolutely and hence the plaint
schedule items are not joint family properties and the lst defendant is the
Manager of the family. It is stated that the schedule properties belonged
to the defendants and Parvathy Ammal, and during her life time
Paravathy Ammal joined the 4th defendant to execute a release deed as
early as in 1972 and therefore there is nothing to be partitioned. It was for
the first time that the plaintiffs then came to know from the reply of the
release deed said to have been executed by the 4th defendant father along
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with their mother, Parvathy Ammal and hence they made enquiries with
the Sub Registra’s Office and came across the release deed as also the
partition deed by which defendants 1 to 3 partitioned and allotted among
themselves the plaint schedule properties. Hence they obtained certified
copies of these documents. Document No.325 dated 8/2/1972 is the
release deed executed by the 4th defendant along with Parvathy Ammal
in favour of defendants 1 to 3. This document is marked as Ext.A5.
Partition deed No.4588/96 dated 23/12/1996 is marked as Ext.A6 in this
case. It is averred that 1/5th share of udukkoor rights over plaint A and
B schedule properties of the 4th defendant and Parvathy Ammal
purported to have assigned in favour of defendants 1 to 3 as per Ext.A5.
It is the case of the plaintiffs that the release deed No.325 dated 8/2/1972
(Ext.A5) and the partition deed No.4588 dated 23/12/1996 (Ext.A6) to
the extent they purported to deal with the share of plaint A and B
schedule properties are void abinitio and hence liable to be declared so by
the court. According to them, on the death of Krishna Iyer on 10/6/1971
the properties devolved on his legal representatives, the defendant as
well as his widow Parvathy Ammal. The 4th defendant being one of the
sons and heir of Krishna Iyer is entitled to 1/5th share over the plaint
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schedule items and plaint A schedule property in the hands of Krishna
Iyer is a co-parcenary property being ancestral in nature; obtained by
Krishna Iyer from his father Krishnayyan as per document No.912/1120
M.E. (Ext.A1). The 1/5th share to which the 4th defendant was entitled to
on the death of his father Krishna Iyer is also ancestral in his hands.
Therefore, the plaintiffs are entitled to equal share over 1/5th share of the
4th defendant over the plaint schedule items. Hence, the 4th defendant
could not purport to release or assign the plaintiffs’ right acquired by
birth. According to them, the 4th defendant had only a share over 1/5th
share obtained by him over the plaint schedule properties on the death of
his father and therefore, except to the extent of his right over the plaint
schedule item, the right that was acquired by the plaintiffs could not have
been validly released in favour of defendants 1 to 3. In other words, the
assignment cannot affect 1/3rd share each of the plaintiffs over 1/5th
share obtained by the 4th defendant over the plaint schedule item. To that
extent, the release deed No.325 dated 8/2/1972 (Ext.A5) is liable to be
declared void ab initio. Alternatively it is contended that the 4th
defendant and plaintiffs formed a joint family at the time when Krishna
Iyer died on 10/6/1971. The 1/5th share of the plaint schedule items
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inherited by the 4th defendant on the death of Krishna Iyer on 10/6/1971
is the nucleus. Plaintiffs are co-owners of 1/5th share of 4th defendant
over the plaint schedule item and hence the assignee cannot claim
exclusive right over the plaint schedule item in-exclusion of the other co-
owners. Plaintiffs claim 1/3rd right each over 1/5th share of the 4th
defendant over the plaint schedule item. In the circumstances, they
sought for a decree declaring Ext.A5 (document No.325 dated 8/2/1972)
and Ext.A6 (document No.4588 dated 23/12/1996) are void ab initio and
not binding on the plaintiffs and for setting aside those documents to the
extent of 1/3 share of each of the plaintiffs over 1/5th share of the 4th
defendant over the plaint schedule item. They also claimed for partition
of the plaint schedule item and for separate possession of their share and
for a permanent prohibitory injunction restraining the defendants 1 to 3
from dealing with plaint schedule item.
5. Defendants 1 to 3 contended that by virtue of the release deed
executed by the 4th defendant and his wife they cease to have any right
thereafter and subsequently defendants 1 to 3 have also partitioned the
plaint schedule item as per Ext.A6 partition deed. They also contended
that the plaint schedule item held by Krishna Iyer is self acquired
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property. Though Ext.A1 the nomenclature shown may be partition deed
from the recitals contained therein and from the subsequent settlement in
which reference is made to the earlier deed, it is only a gift deed and the
plaint A schedule items were self acquisition of Krishnayyan and there
was no pre-existing right to be partitioned between Krishnayyan and his
son, Krishna Iyer. Thus both plaint A and B schedule properties were
self acquired properties of Krishnayyan and hence not co-parcenary and
the plaintiff have no right by birth. After the death of Krishna Iyer,
plaintiffs father, the 4th defendant, along with his wife having released
their undivided right in favour of defendants 1 to 3, the plaintiffs should
be non-suited for partition. They also contended that the suit is barred by
limitation. They also contended that the plaint schedule properties were
not ancestral properties and never treated as such. Actually, Krishnayyan
had no means to purchase A schedule properties and it was late Krishna
Iyer, who purchased it in the name of his father besides other properties
in the name of his wife etc. It is not correct to say that the 4th defendants
and the plaintiffs are co-owners of 1/5th share of the 4th defendant over
the properties. Apart from the huge debts whatever properties obtained
by the 4th defendant from the family were lost, spoiled or wasted by
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himself. Plaintiffs are looking after their parents at Thodupuzha. They
had been coming to Thodupuzha every week and hence it is false to say
that they came to know the entire affairs only recently.
6. The evidence consists of Exts.A1 to A6 marked on the side of
the plaintiffs, the lst plaintiff gave evidence as PW-1 and the 3rd
defendant gave evidence as DW-1. No documents were marked on the
side of the defendants. Registered copy of the document No.912 dated
24/4/1120 M.E. is executed by Krishnayyan, styled as a partition deed
( ). But from the recitals in this deed it is clear that the
executant had no ancestral properties and that he had acquired properties
by his own efforts and he is in exclusive possession and enjoyment of the
same.
”
“
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7. It is out of those properties that the properties mentioned therein
were purchased by him as per registered document of the Sub Registry,
Thodupuzha and that the property scheduled therein were gifted in favour
of Krishna Iyer. Thus even going by the recitals in this deed the property
was purchased by the executant as per registered deed of the Sub
Registry, Thodupuzha. Admittedly, this is the plaint A schedule property.
As a matter of fact, the plaintiffs themselves have described this deed in
the plaint as a gift deed. There is also a declaration that he had no
ancestral property and he had purchased various other items including
this property of which this item is assigned in favour of Krishna Iyer,
one of his sons. Since Krishna Iyer had no pre-existing right and going
by the recitals contained in the deed, this is only a gift deed executed in
favour of Krishna Iyer. Admittedly, the plaint B schedule items were
acquired by Krishna Iyer during his life time. Thus both the plaint A and
B schedule items do not have the characteristic of any ancestral property.
Plaint B schedule property having been acquired by Krishna Iyer and
Plaint A schedule properties obtained by him as per gift deed executed by
his father, Krishnayyan, both plaint A and B schedule items are self
acquisition in the hands of Krishna Iyer. Ext.A2 is a document dated
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5/12/1121, which is styled as settlement deed ( )
executed by Krishnayyan in favour of Krishna Iyer, Narayana Iyer and
Kaveri Ammal, minors Lakshmi, Savithri Thankamma, and Harihara
Iyer. Krishna Iyer and Narayana Iyer are described as sons of
Krishnayyan, the executant and Kaveri Ammal is described as wife of
deceased Neelakanda Iyer. The minors are children of deceased
Neelakanda Iyer. According to the executant, during his life time he
decided to settle the properties which were acquired by him. There is a
further declaration that those properties mentioned in the document are
self acquisition and not an exclusive possession and enjoyment of the
same. Vellookkunnu Madom and Purayidom is one such property which
was given by way of gift in favour of Krishna Iyer, his son. Thus what
was assigned under Ext.A1 was also the property acquired by him and in
respect of which a gift deed was executed in favour of Krishna Iyer, one
among the sons and also a beneficiary of Ext.A2. As per this document
various properties described therein were settled. Ext.A5 is the document
No.325 dated 8/12/1972 of the Sub Registry, Thodupuzha. This
document was executed by Senapathy, son of Krishnayyan, and his wife
Parvathy Ammal in favour of Vaidyanatha Iyer, Mahadeva Iyer and
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Harihara Iyer. It is described as released deed ( ).
As per this deed the executants relinquished their right over the properties
scheduled thereunder. As per the recitals contained in the deed, after the
death of Krishna Iyer on 10/6/1971 the scheduled properties belonged to
him and after his death, by devolution all of them had equal right over
the properties jointly held by them and whatever right the executant had
over the schedule properties was already relinquished orally in favour of
the executants and they were in exclusive possession of the same and
with a view to acknowledge the same by a written document for
consideration of Rs.20,0000/- received on different occasions. Ext.A6 is
a document No.4588 dated 23/12/1996, which is a partition deed
executed between Vaidyanatha Iyer, Mahadeva Iyer and Harihara Iyer.
8. According to the learned counsel, Sri Easwaran, appearing on
behalf of the appellants, the property in the hands of their father, the 4th
defendant obtained by him from Krishna Iyer, father of defendants 1 to 4
and grandfather of plaintiffs, is ancestral in nature. Plaintiffs being co-
parcenars are entitled to 1/3rd right over 1/5th right acquired by their
father, the 4th defendant. Hence, the release deed (Ext.A5) executed by
their father, the 4th defendant cannot be treated as valid to the extent of
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their share. At best only the share of their father, 4th defendant alone
could have been given valid relinquishment under Ext.A5. Since the 4th
defendant had only a fractional interest in the property, the right, title and
interest of the plaintiffs as co-parcenars in no way are affected by such
release deed. To the extent of their right and interest concerned, Ext.A5 is
ab initio void and even without specifically seeking to set aside the said
document, they can ignore the said document and claim partition. On the
other hand, the learned counsel appearing on behalf of the respondents
would contend that the properties were obtained by Krishna Iyer by two
settlement deeds, Exts.A1 and A2. The recitals contained in Exts.A1 and
A2 would abundantly make it clear that those properties were self
acquisition by Krishnayyan, father of Krishna Iyer (grandfather of
plaintiffs) and grandfather of defendants 1 to 4. If so, after the death of
Krishna Iyer in 10/6/1971 the properties devolved on defendants 1 to 4 by
way of succession under the Hindu Succession Act, 1956 and by virtue of
Section 8 of the Hindu Successions Act, the share held by the 4th
defendant is to be treated as self acquisition and by virtue of the release
deed, Ext.A5 executed by the 4th defendant and his wife, defendants 1 to
3 are absolutely entitled to the said property and the plaintiffs would not
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have acquired any right by birth. But according to the learned counsel for
the appellants, if the properties are ancestral properties in the hands of
Krishna Iyer, they have acquired a right by birth and they having been
born long prior to 1956, devolution of their right and title would be
governed by Section 6 of the Hindu Succession Act. Therefore the prime
question is as to whether the plaintiffs had acquired any right by birth in
the property held by Krishna Iyer prior to his death on 10/6/1971 and
whether the property in the hands of Krishna Iyer is ancestral in nature.
From the recitals contained in Ext.A1 and A2 to which reference has
already been made, it is abundantly clear that Krishna Iyer obtained the
plaint schedule item by two settlement deeds (Exts.A1 and A2) executed
by his father Krishnayyan. Though Ext.A1 is styled as a partition deed,
further recitals contained in the deed would clearly show that it is only a
settlement deed. Krishnayyan, father of Krishna Iyer himself declared
that those properties are self acquisition and not ancestral in his hands
and that Ext.A1, which is a gift deed, is further supported by the recitals
contained in the settlement deed, Ext.A2 also. If so, the properties
obtained by Krishna Iyer can only be treated as self acquisition and not
ancestral in his hands.
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9. In Commissioner of Wealthtax, Kanpur etc. v. Chander Sen
etc. (AIR 1986 SC 1753) the Apex Court had occasion to consider a case
where a partition of joint family business between father and his only son
and the business was continued by the father and the son formed a joint
family with his own sons. The father died later and the question arose as
to whether the amount standing to the credit of the deceased father in the
account of the firm devolved on his son as his individual income. It was
held that such income cannot be included in computing net wealth of
son’s joint family. The joint family business were partitioned between
father and his only son and it was thereafter that they continued the
business in the name of the partnership firm. The Wealth Tax Authorities
while assessing the wealth tax in respect of the family of the son i.e. the
assessee, included the amount in computing wealth. It was held that the
son inherited the property as an individual and not as karta of his own
family and hence it could no be included in computing the assessee’s
wealth. It was further held that under the Hindu law the son would
inherit the property of his father as karta of is own family. But the Hindu
Succession Act has modified the rule of succession. The Act lays down
the general rules of succession in the case of males. The first rule is that
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the property of a male Hindu dying intestate shall devolve according to
the provisions of Chapter II and Class I of the Schedule provides that if
there is a male heir of Class I then upon the heirs mentioned in Class I of
the Schedule. In interpreting the provisions of Act it is necessary to bear
in mind the preamble to the Hindu Succession Act. The preamble states
that it was an Act to amend and codify the law relating to intestate
succession among Hindus. In view of the Preamble to the Act i.e., that to
modify where necessary and to codify the law, it is not possible when
Schedule indicates heirs in Class I and only includes son and does not
include son’s son but does include son of a predeceased son, to say that
when son inherits the property in the situation contemplated by Section 8
he takes it as karta of his own undivided family. If a contrary view is
taken it would mean that though the son of a predeceased son and not the
son of a son who is intended to be excluded under Section 8 to inherit, the
latter would by applying the old Hindu Law get a right by birth of the
said property contrary to the scheme outlined in Section 8. Further more
the Act makes it clear by Section 4 that one should look to the Act in case
of doubt and not to the pre-existing Hindu law. It would be difficult to
hold today that the property which devolved on a Hindu under Section 8
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of the Hindu Succession Act would be HUF in his hand vis-a-vis his own
son; that would amount to creating two classes among the heirs
mentioned in Class I, the male heirs in whose hands it will be joint Hindu
Family property and vis-a-vis son and female heirs with respect to whom
no such concept could be applied or contemplated. It may be mentioned
that heirs in Class I of Schedule under Section 8 of the Act included
widow, mother, daughter of predeceased son etc. The express words of
Section 8 of the Hindu Succession Act cannot be ignored and must
prevail. The preamble to the Act reiterates that the Act is, inter alia, to
‘amend’ the law. With that background the express language which
excludes son’s son but included son of a predeceased son cannot be
ignored.
10. In C.N. Arunachala Mudaliar v. C.A.Muruganatha
Mudaliar and another (AIR 1953 SC 495) the Apex Court held that the
Mitakshara father is not only competent to sell his self acquired
immovable property to a stranger without the concurrence of his son, but
he can make a gift of such property to one of his own sons to the
detriment of another and he can make even an unequal distribution
amongst his heirs. It was also held that in view of the settled law that a
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Mitakshara father has absolute right of disposition over his self acquired
property to which no exception can be taken by his male descendants, it is
not possible to hold that such property bequeathed or gifted to a son must
necessarily, and under all circumstances, rank as ancestral property in the
hands of the donee in which his sons would acquire co-ordinate interest.
To find out whether a property is or is not ancestral in the hands of a
particular person, not merely the relationship between the original and the
present holder but the mode of transmission also must be looked to; and
the property can ordinarily be reckoned as ancestral only if the present
holder has got it by virtue of his being a son or descendant of the original
owner. But when the father obtains the grandfather’s property by way of
gift, he receives it not because he is a son or has any legal right to such
property but because his father chose to bestow a favour on him which
he could have bestowed on any other person as well. The interest which
he takes in such property must depend upon the will of the grantor. There
is no warrant for saying that according to the Mitakshara, an affectionate
gift by the father to the son constitutes ‘ipso facto’ ancestral property in
the hands of the donee. In other words, a property gifted or bequeathed
by a father to his son cannot become ancestral property in the hands of
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the donee or legatee simply by reason of the fact that the donee or
legatee got it from his father or ancestor. As the law is accepted and well
settled that a Mitakshara father has complete powers of disposition over
his self-acquired property, it must follow as a necessary consequence that
the father is quite competent to provide expressly, when he makes a gift,
either that the donee would take it exclusively for himself or that the gift
would be for the benefit of his branch of the family. If there are express
provisions to that effect either in the deed of gift or a will, no difficulty is
likely to arise and the interest which the son would take in such property
would depend upon the terms of the grant. If, however, there are no clear
words describing the kind of interest which the donee is to take, the
question would be one of construction and the Court would have to
collect the intention of the donor from the language of the document
taken along with the surrounding circumstances in accordance with the
well-known canons of construction. In paragraph 12 of the judgment it
was held as follows:
“……..According to Mitakshara, the son has a right by
birth both in his father’s and grandfather’s estate, but
a distinction is made in this respect by Mitakshara
itself. In the ancestral or grandfather’s property in the
hands of the father, while in the self acquired-20-
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reason of the father having an independent power
over or predominant interest in the same. The son
can assert this equal right with the father only when
the grandfather’s property has devolved upon his
father and has become ancestral property in his
hands. The property of the grandfather can normally
vest in the father as ancestral if and when the father
inherits such property on the death of the grandfather
or receives it, by partition, made by the grandfather
himself during his life-time. On both these occasions
the grandfather’s property comes to the father by
virtue of the latter’s legal right as a son or descendant
of the former and consequently it becomes ancestral
property in his hands.”
11. In this case Krishna Iyer having obtained the plaint schedule
items by virtue of the gift deed executed by his father Krishnayyan and
not by virtue of his being the son or descendant of the owner but because
his father bestowed a favour, which he could have bestowed on any other
person as well. So merely because it was obtained by Krishna Iyer from
his father it does not become ancestral in his hands. Thus, Krishna Iyer
had absolute right of dispossession over the property during his life time
which has obtained by him from his father by two gift deeds executed in
his favour. Thus, defendants 1 to 4 did not acquire any right by birth
over the property held by Krishna Iyer during his life time. It is only after
the death of Krishna Iyer that the properties devolved by succession in
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favour of his heirs included in Clause 1, as per Hindu Succession Act. If
defendants 1 to 4 did not have acquire any right by birth and Krishna Iyer
had absolute right of dispossession during his life time, there is no
question of the plaintiffs acquiring any right by birth in the said property.
12. In Yudhishter v. Ashok Kumar (AIR 1987 SC 558) after
referring to the decision in Commissioner of Wealth Tax, Kanpur v.
Chander Sen (AIR 1986 SC 1753), it was reiterated that normally
whenever the father gets a property from whatever source from the
grandfather or from any other source, be it separate property or not, his
son should have a share in that and it will become part of the joint Hindu
family of his son and grandson and other members who form joint Hindu
family with him. This position has been affected by Section 8 of the
Hindu Succession Act, 1956 and therefore after the Act, when the son
inherited the property in the situation contemplated by Section 8, he does
not take it as Kar of his own undivided family but takes it in his
individual capacity.
13. In Sheela Devi and others v. Lal Chand and another (2006)
8 SCC 581) the Apex Court considered the question as to how
devolution of co-parcenary property takes place and considered the
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scope of Sections 6 and 8 of the Hindu Succession Act, 1956 and the
devolution of co-parcenary property after commencement of 1956 Act. It
was held that the effect of a son having been born prior to commencement
of 1956 Act and as per the Mitakshara law in usage prior to the
commencement of the 1956 Act, once a son was born, he acquired an
interest in the co-parcenary property as an incident of his birth and hence
a son having been born prior to commencement of 1956 Act would retain
his share of the property as a co-parcenar even after the commencement
of the 1956 Act, while the father’s share shall devolve upon his heirs
according to the provisions of 1956 Act. It was also held that so long as
the property remains in hands of a single person, though it be inherited
co-parcenary property, it would be treated as a separate property. But
once a son is born, the concept of a property being co-parcenary property
in terms of Mitakshara law, is revived. In that case one Tulsi Ram was
the owner of the property. He died in the year 1989 leaving behind five
sons of whom Babu Ram was one. The afore-mentioned five sons of
Tulsi Ram were members of a M itakshara Coparcenary. Upon the death
of Tulsi Ram, Babu Ram inherited 1/5th share in the property. Babu Ram
died in the year 1989 leaving behind two sons (respondent-plaintiffs) and
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three daughters (appellants). One of the son was was born in the year
1938 and the other in 1956. Although in 1927, Babu Ram had no son and
the property in his hands became a separate property. But, as soon as a
son was born to him the concept of the property being a co-parcenary
property in terms of the Mitakshara School of Hindu Law revived. The
succession had been opened in 1989 on the death of Babu Ram. Section
6(1) of the Hindu Succession Act governs the law relating to succession
on the death of a co-parcener in the event the heirs are only male
descendants. Placing reliance on this decision it was contended that in
this case the plaintiffs, who were born prior to 1956, acquired the right by
birth in the grandfather’s property namely the property held by
Krishnayyan, which right according to them, will not be lost by Hindu
Succession Act, 1956. But this contention is raised forgetting the fact
that Krishna Iyer had an absolute right of dispossession over his property
and no right is acquired by his male descendants and as already stated
defendants 1 to 4 have therefore acquired no right by birth and Krishna
Iyer died only in the year 1971 long after the Hindu Succession Act.
Hence succession takes place as per the Hindu Succession Act only.
14. As per Section 8 of the Hindu Succession Act, the property of a
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male Hindu dying intestate shall devolve according to the provisions of
this Chapter, firstly, upon the heirs, being the relatives specified in class I
of the schedule. Section 6 of the Act only says that when a male Hindu
dies after the commencement of this Act, having at the time of his death
an interest in a Mitakshara co-parcenary property, his interest in the
property shall devolve by surveyorship upon the surviving members of
the co-parcenary and not in accordance with this Act. As per Explanation
1, for the purpose of this section, the interest of a Hindu Mitakshara co-
parcener shall be deemed to be the share in the property that would have
been allotted to him if a partition of the property had taken place
immediately before his death, irrespective of whether he was entitled to
claim partition or not. But here as already stated, no right is acquired by
the male descendants of Krishna Iyer till his death. So, Section 6 has no
application.
15. The court below held that the suit is barred by limitation as per
Article 109 of the Limitation Act, since the suit was instituted more than
12 years after Ext.A5 and they cannot validly seek to set aside Ext.A5,
after the expiry of the period of 12 years. Ext.A5 being dated 8/12/1972
and the suit was filed only on 17/3/1997. According to the counsel for
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the appellants, he need not specifically seek to set aside Ext.A5 and
according to him, Ext.A5 is void ab initio and therefore he can ignore the
same and during his argument he submitted that he is not pressing the
relief for setting aside Ext.A5, but still he can validly maintain the prayer
for separate possession. As per Article 65 of the Limitation Act, for
claiming possession of immovable property or any interest therein based
on title, the period of limitation prescribed is twelve years when the
possession of the defendant becomes adverse to the plaintiff. But
according to the plaintiffs/appellants, the possession can be said to
become adverse to their interest only when there was an attempt to
partition of the property by defendants 1 to 3 and only in 1996 the
partition deed was executed whereas the suit was instituted in 1997 itself.
If the release deed Ext.A5 is a document void ab initio and if defendants
1 to 3 are in possession of the property, lst defendant is the Manager,
whose possession can only be on behalf of all the co-owners. In this
connection he also placed reliance on the decision of this Court in Paru
v. Chiruthai (1985 KLT 563). It was held that since a co-sharer in
possession is a trustee for a co-sharer not in possession, there can be no
question of any adverse possession, by any co-owner in possession. Mere
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non-participation in the profits or non-payment of rent by themselves
cannot amount to ouster.
16. In Karbalai Begum v. Mohd. Sayeed and another (AIR 1981
SC 77) the Apex Court while considering Articles 64 and 65 of the
Limitation Act, held that it is well settled that mere non-participation in
the rent and profits of the land of a co-sharer does not amount to an ouster
so as to give title by adverse possession to the other co-sharer in
possession. Indeed even if this fact is admitted, then the legal possession
would be that the co-sharers in possession would become constructive
trustees on behalf of the co-sharer who is not in possession and the right
of such co-sharer would be deemed to be protected by the trustees.
17. In Mohd. Mohammad Ali v. Jagadish Kalita and others
((2004) 1 SCC 271) the Apex Court held that possession of property by a
co-sharer is deemed to be possession on behalf of other co-sharers unless
there is a clear ouster by denying title of the other co-sharers. Mere long
and continuous possession by itself is not enough. Plea of ouster has to
be raised and proved. In a suit for declaration of title to the property,
plaintiff has only to prove his title and not his possession and the
defendant raising plea of adverse possession must prove the same along
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with his animus possidendi.
18. Sankaran Nair v. Govindan (1982 KLT 948) was a suit for
recovery of possession by junior members of tarwad property alienated
without necessity of a tarwad property. The question arose as to whether
it was necessary to set aside the sale. In that context, Articles 60 or 65 of
the Limitation is relevant. It was held that there is no necessity for a
junior member of a tarwad in impuging a transaction by its karanavan to
file a suit to have the transaction set aside. He can ignore the transaction
and recover possession to the property if the acts of the karnavan cannot
be said to be within his powers. A junior member can treat an invalid
alienation of his tarwad property as void, ignore it and sue to recover the
property. There is no need to bring a suit to set aside the alienation and a
junior member bringing a suit for recovery of possession of tarwad
property alienated without consideration or necessity need not seek to set
aside the document and neither Article 59 nor Article 60 of the Limitation
Act can have any application to such a suit for recovery of possession.
The only article of the Limitation Act that is applicable to such a suit is
Article 65 as per which the period of limitation is 12 years from the date
on which possession of the defendant became adverse to the plaintiff.
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19. In this case if the plaintiffs could establish that they acquired
right by birth in the property held by Krishna Iyer, then necessarily on his
death, the right, title and interest of the plaintiffs cannot be validly
extinguished Ext.A5. Since the 4th defendant will have only a fractional
interest along with the plaintiff and if so execution of the release deed,
Ext.A5, can in no way affect the right, title and interest of the plaintiffs,
their right cannot be transferred without their consent. In this case
according to the plaintiffs, they have already become majors as on the
date of Ext.A5 release deed. If only the contention of the appellants that
the property held by Krishna Iyer is ancestral in nature is accepted, then it
has to be held that the suit will be governed by Article 65 of the
Limitation Act and hence not barred.
Conclusion:
1) In the result, we hold that the plaintiffs have not succeeded in
establishing that they had acquired any right by birth in the property held
by Krishna Iyer. The contention of the appellants that the property in the
hands of Krishna Iyer is ancestral in nature, is found against.
2) The 4th defendant and his wife having executed a release deed
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Ext.A5 in favour of defendants 1 to 3 have no further right in the
property. After the death of Krishna Iyer, when the property devolved on
his legal heirs, (defendants 1 to 4 alone), the right, title and interest of the
4th defendant having been released in favour of the co-sharers, the
plaintiffs have no right to seek partition.
3) In the circumstances of the case, it is not be necessary for the
plaintiffs to seek to set aside Ext.A5 and the relevant article that would
apply is Article 65 of the Limitation Act.
4) There is no evidence in this case to hold that the properties held
by defendants 1 to 3 were adverse to the interest of the plaintiffs or that
there is any ouster to the knowledge of the plaintiffs. If they are co-
sharers of the property, the possession if any held by the lst defendant can
only be on behalf of the co-sharers as a trustee. Hence, the suit is not
shown to be barred under the provisions of the Limitation Act.
5) In view of the finding that the appellants/plaintiffs had no right
in the plaint schedule property at the time of execution of the released
deed Ext.A5 executed by the 4th defendant in favour of defendants 1 to 3,
it has to be held that plaintiffs have no partible interest in the plaint
schedule item.
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In the result, confirming the decree and judgment passed by the
court below, this appeal is dismissed. Parties shall bear their respective
costs.
P.R.RAMAN,
Judge.
V.K.MOHANAN,
Judge.
kcv.
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P.R.RAMAN & V.K.MOHANAN,JJ.
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A.S.NO.182 OF 2001
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JUDGMENT
26th October, 2007