http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: MOHD. ZAINULABUDEEN (SINCE DECEASED) BY L.RS.

       Vs.

RESPONDENT: SAYED AHMED MOHINDEEN AND ORS.

DATE OF JUDGMENT15/12/1989

BENCH: KASLIWAL, N.M. (J) BENCH: KASLIWAL, N.M. (J) SINGH, K.N. (J)

CITATION:  1990 AIR  507            1989 SCR  Supl. (2) 519  1990 SCC  (1) 345        JT 1989 (4)   563  1989 SCALE  (2)1381

ACT:     Indian Limitation Act,  1963: Adverse  possession--Claim of Among co-heirs there must be evidence of an essertion  of hostile title coupled with possession and enjoyment

HEADNOTE:     Mohd. Zainulabdeen and Yasin By filed a suit for  decla- ration  that they were entitled to be in enjoyment and  pos- session  of Saint Syeed Moosa Shah Khadiri Dargah in  Madras for 27 days and to restrain the defendants from  interfering with tile plaintiffs’ aforesaid right and management in  the Dargah.     In reply the defendant No. 1 alleged that in the manage- ment  of the Dargah, female members had no right  nor  could they  claim the right of Mujawar. It was also  alleged  that Fathima Bee through whom the Plaintiffs were claiming  never enjoyed  the right to Hundial collection of the  Dargah  and share  in the Mujawarship and even if she had any right  the same was lost as she did not claim any right till her  death and  therefore the Plaintiffs were also not entitled to  any relief.  Defendants  7, 8 and 10 however  in  their  written statements  admitted  family  members to be  sharer  in  the income  and management of the Dargah and they also  admitted that  they were paying such share to their sister  Ahamadun- nissa  (10th defendant) in the Hundial collections and  that the  City  Civil  Court in suit No. 7518 of  1971  had  also recognised the right of 7th defendant Anser Bi to management of  the  Dargah for 9 days in a year. Thus it was  false  to contend that the females were not entitled to claim  manage- ment.     The  trial court decreed the suit of the Plaintiffs  and held  that  they were entitled to manage the Dargah  1or  27 days in a year. Defendants 3 to 6 and 12 to 19 filed appeals against  the  judgment  of the trial  court.The  City  Civil Judge,  however,  affirmed the judgment of the  Trial  Court with some modifications in the relief.     Different  sets  of defendant filed two  second  appeals before the High Court and both were disposed of by the  High Court  by its judgment and Order dated 17th  November,  1981 whereby it reversed the 520

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

judgments and decrees of the courts below and dismissed  the suit filed by the Plaintiffs.     This  Court  came  to the conclusion that  there  is  no controversy as regards the period of 27 days falling to  the share of the Plaintiffs and the right of the females to  the management of the Dargah according to Muslim law. As regards the question of right of Fathima Bee having become barred by limitation by ouster and that as such the Plaintiffs too had lost  that right, this Court, while setting aside the  Judg- ment and Decree of the High Court and restoring that of  the Trial Court as modified by the First Appellate Court,     HELD:  It iS well settled that where one co-heir  pleads adverse possession against another co-heir it is not  enough to  show  that one out of them was in  sole  possession  and enjoyment  of the profits of the properties. The  possession of one co-heir is considered in law as possession of all the co-heirs.  The co-heir in possession cannot render his  pos- session  adverse  to the other co-heirs  not  in  possession merely  by  any  secret hostile animus on his  own  part  in derogation of the other co-heirs title. [526G-H; 527A]     It  is  a settled rule of law as between  co-heirs  that 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 construe ouster. [527A]     The  High Court in the instant case committed a  serious error in reversing the finding of the lower Appellate  Court and  in  taking a wrong approach in holding  ouster  on  the basis  of the judgment and decree given in Suit No.  116  of 1909  and  on  the ground that Fathima Bee had  not  made  a demand or asked for her share of the hundial collections  at any point of time till her death in 1957. [527G] P. Lakshmi v.L. Lakshmi Reddy, [1957] SCR 195, referred to.

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3 160  of 1983.     From  the  Judgment and Order dated  17.11.1981  of  the Madras  High  Court in Second Appeals Nos. 650  and  874  of 1981.     V.M.  Tarkunde, Ms. S. Khanna, Jagmohan Khanna and  A.S. Khan for the Appellants. 521     T.S.  Krishnamurthy, K.R. Choudhary, S.M.  Amiad  Nainar and S. Thananjayan for the Respondents. The Judgment of the Court was delivered by     KASLIWAL,  J.  This Civil Appeal by  the  plaintiffs  is directed against the Judgment of High Court of Judicature at Madras in Second Appeal Nos. 650 & 894 dated 17th  November, 1981.     Mohd. Zainulabdeen and Yasin Bi filed a suit for  decla- ration  that they were entitled to be in enjoyment and  pos- session  of Saint Syed Moosa Shah Khadiri Dargah  in  Madras for  a period of 27 days in all in the months  of  February, March,  June, July, October & November and to  restrain  the defendants  from interfering with the  plaintiffs  aforesaid right  and management in the Dargah. The case of the  plain- tiffs  as set up in the plaint was that the Dargah in  ques- tion  was being managed by the members of the family of  one Sayed  Mohideen  Sahib. Sayed Mohideen had  two  sons  Sayed Ismail Sahib and Sayed Gulam Dastagir Sahib. As per Judgment in  C.S.  116 of 1909 the right of  management  was  divided between  the  two sons each taking six months  for  himself.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

According  to  this arrangement the branch of  Sayed  Ismail Sahib  used to remain in management for the months of  Janu- ary,  April,  May, August, September and  December  and  the branch  of  Gulam Dastagir Sahib for the other  six  months, namely,  February, March, June, July October  and  November. The  present  suit relates to the  controversy  between  the decendants of the branch of Gulam Dastagir Sahib.  According to  the plaintiffs after the death of Sayed  Gulam  Dastagir the  right and management of the Dargah according to  Muslim Law devolved on his two sons and one daughter, namely, Sayed Gaffar  Sahib, Sayed Mohideen and Fathima Bee in  proportion of  2:2:1  respectively. The plaintiffs  alleged  that  thus Fathima Bee had 1/5 share in 6 months i.e. 36 days.  Fathima Bee left surviving one son and two daughters. The plaintiffs who are one son and one daughter of Fathima Bee as such  are entitled  to  3/4 share i.e. 27 days,  as  another  daughter Zahurunnissa  was not interested in claiming her  right  has been impleaded as defendant No. 2. After the death of Fathi- ma Bee, the plaintiffs being her son and daughter associated themselves in the management of the Dargah with their mater- nal  uncles  and the sons of the maternal  uncles  and  were getting share of the income of the Dargah. According to  the plaintiffs  this arrangement was going on for several  years eversince  the  death  of Fathima Bee in  1957.  However  on account  of  some  dissensions, the  first  defendant  Sayed Mohideen  (since deceased) and another defendant  being  the son of another 522 deceased maternal uncle were preventing the plaintiffs  from exercising  their right and enjoying the income of the  Dar- gah.  The  plaintiffs served a notice on  23.3.1972  calling upon the defendants to recognize the right of management  of the plaintiffs in the Dargah. The defendants sent a reply on 22.4.1972  stating  that  the  plaintiffs  claiming  through female  were not entitled to any right in the management  or share  in the offerings in the Dargah and even if they  were entitled to any right or claim the same was barred by  limi- tation.     Sayed  Mohideen (since deceased) defendant No. 1 in  the suit  filed a written statement and took the plea  that  his father Sayed Gulam Dastagir was a Mujawar and was  receiving the  offerings by right of inheritence. Sayed  Ismail  being cousin brother of Sayed Gulam Dastagir as such he was also a Mujawar  along with Sayed Gulam Dastagir Sahib. Fathima  Bee the daughter of Sayed Gulam Dastagir had no right of Mujawar as  the right was given only to the male members and not  to the  females. Fathima Bee as such was not entitled to  claim any  right  of Mujawar. The widows of Sayed  Gulam  Dastagir also could not claim any right of Mujawar thus neither Wazir Bee widow of Sayed Ismail nor Mohideen Bi the widow of Sayed Gulam Dastagir could take upon the management of the  Dargah as they were female members. According to the defendants  no female  members  got the right of direct management  of  the Dargah  and the Judgment in Suit No. 116 of 1909 also  nega- tived the right of any management by Wazir Bee and  Mohideen Bi.  It was admitted that though Fathima Bee was  alive  but she  was not a party to the aforesaid suit. It  was  however pleaded that claim of Fathima Bee was not recognized in  the above suit. It was further alleged in the written  statement that Fathima Bee never participated in the management of the Dargah.  According to Muslim Law females were excluded  from performing the duties of the offices of Peshimam Khatib  and Mujawar.  It  was  further alleged that  Fathima  Bee  never enjoyed  the right to the Hundial Collection of  the  Dargah and even if she had got any right, the same was lost as  she

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

did  not claim any right till her death. Fathima  Bee  never asserted  any  right during her life-time nor  received  any share in the offerings. Her right, if any, was  extinguished within  12 years after the death of her father  Sayed  Gulam Dastagir. It was further alleged that as Fathima Bee had  no right  or  claim of share in the Mujawarship  and  was  also ousted  from the enjoyment of any share in the Hundial  Col- lections,  the plaintiffs who were claiming through  Fathima Bee were also not entitled to any relief. Defendants Nos.  2 to  6 adopted the written statement filed by the  first  de- fendant.  So far as the defendants Nos. 7, 8 & 10 were  con- cerned, they filed a written statement taking the plea  that the 523 family members were recognized as sharers in the  management of the Dargah and they were also sharing the income. It  was further  alleged  that even the  answering  defendants  were paying  such share to their sister Ahamadunnissa  (lOth  de- fendant)  in the Hundial collection of the Dargah.  The  7th defendant  (Anser Bi) filed a suit No. 75 18 of 1971 in  the Court  of  4th Assistant City Civil Court and her  right  to manage  was  recognised for 9 days in a year. Hence  it  was false  to state that the females were not entitled to  claim management. It may be mentioned at this stage that defendant No.  1 Sayed Mohideen died during the pendency of  the  suit and defendants Nos. 12 to 19 were added as his legal  repre- sentatives.     The  Trial Court decreed the suit and in  the  operative part  held that the plaintiffs were entitled to  manage  the Dargah  for  27 days in February (viz. from  February  1  to February 27).     The  defendants Nos. 3 to 6 and 12 to 19  filed  appeals aggrieved against the Judgment of the Trial Court while  7th defendant in the suit filed cross objections in respect of a particular portion of the decree. Learned City Civil  Court, Madras  affirmed the Judgment and decree of the Trial  Court except some modifications in the relief as mentioned below.               "The Plaintiffs are entitled to the reliefs of               declaration  that they are entitled to  be  in               management of the Suit Dargah for a period  of               27 days in a year during the months of  Febru-               ary-March, June-July and October-November each               year and that the said 27 days shall be Febru-               ary 1 to 6, June 1 to 6 and October 1 to 6 for               the first plaintiff and 9 days from July 1  to               9 for the second plaintiff and that the plain-               tiffs are entitled to the relief of possession               of  the said right to be in management of  the               Dargah  and to be in enjoyment of the  Hundial               income  during  the  said  period.  The  cross               objections of the 7th defendant is dismissed."     Different  sets of defendants filed second appeals  Nos. 650  & 894 of 1981, and both these second appeals were  dis- posed  of  by the High Court by order dated  17th  November, 1981.  The High Court allowed the second appeals  and  while setting aside the Judgments and decrees of the Courts  below dismissed  the suit filed by the plaintiffs. The High  Court took the view that the Courts below proceeded upon an  erro- neous assumption as if it was the duty of the defendants  to prove  by  what hostile assertions of title  and  possession ouster has been established. 524 In the view of the learned Judge by allowing inaction,  more so when it was coupled with sharing of profits in not claim- ing  the profits at any point of time, there would  arise  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

clear  presumption  of  ouster. The High  court  laid  great emphasis  on  the circumstances that Fathima  Bee  till  her death in 1957 did not care to make a demand of her right  or share  at  any point of time. It was further  observed  that after the decree in Civil Suit No. 116 of 1909, it was  only male heirs who were exercising their rights. The High  Court in  this regard further referred to the statement of P.W.  1 himself and drew the conclusion that after the death of  his mother  nobody  was employed as an agent. Only at  the  time when he consulted the Vakil he came to know that his  mother had 36 days share in the Mujawarship. Before that he did not do anything concerning the share of the Hundial collections. The  demand was from 1960 to 1972. But nothing was paid.  He knew  that he had rights even before. The High Court on  the basis  of the above evidence of P.W. 1 observed that it  was clear  that the mother of P.W. 1 was aware of the filing  of Civil Suit No. 116 of 1909. Irrespective of that, in so  far as  there was absolutely no evidence whatsoever to  show  at any  point of time till her death in 1957 that  Fathima  Bee ever  made  a  demand or asked for a share  of  the  Hundial collections  as such it should be held that her  rights  had become  barred. The High Court in these  circumstances  held that  if really the rights of Fathima Bee had become  barred by her not exercising the rights, the plaintiffs  themselves can have no independent right to claim.     It  may  be  mentioned at the outset that  there  is  no controversy now as regards the period of 27 days falling  to the share of the plaintiffs and on the question that females are  also  entitled in the right and  management  of  Dargah according to Muslim Law. Thus the only controversy now  left to  be  determined is whether the High Court  was  right  in holding that the rights of Fathima Bee had become barred  by limitation  by  ouster and as such the plaintiffs  who  were also  claiming through Fathima Bee had lost their  right  by ouster?     It would first be necessary to make it clear as to  what is the impact of the decree dated 11.8.1910 passed in  Civil Suit  No. 116 of 1909, so far as the present  litigation  is concerned. A perusal of the Judgment in the above case  goes to  show  that Sayed Moosa Sahib and Wazir Bi filed  a  suit against  Sayed Gaffar Sahib, Sayed Mohideen Sahib and  Mohi- deen  Bi for a declaration that the plaintiffs and  the  de- fendants  were entitled to perform the duties of Mujawar  of the  Dargah in turns and they were entitled to  collect  and receive  the  offerings, gifts and other emoluments  of  the Dargah as well as the collec- 525 tion of the hundi box in the Dargah and appropriate the same in  two  equal moities and to settle a scheme  for  managing the’ said Dargah so as to equalize the amount of income  and emoluments  to  be collected and appropriated  by  both  the parties  during their respective turns. In the said  case  a decree  was passed that the 1st plaintiff and the 1st &  2nd Defendants were entitled to perform the duties of Mujawar of the Dargah in question in turns. A scheme was also drawn for collecting  and  receiving the offerings,  gifts  and  other emoluments of the said Dargah as well as the collections  of the  hundi box and apportion the same in two  equal  moities and  that Sayed Moosa Sahib, the 1st plaintiff was  entitled to  one half and Sayed Gaffer Sahib and Sayed Mohideen,  the 1st  and 2nd defendants were entitled to the other  half  of the  collections, offerings, gifts and other  emoluments.  A great  capital  has been raised on the basis  of  the  above decree by the learned counsel for the  defendant-respondents that  no share was given to the female members in the  above

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

decree, namely, to Wazir Bi and Mohideen Bi and from this it was  clear that the females were totally excluded  from  the right  or claim of any share in the management or  offerings in the Dargah.     We  do not find much substance in the above  contention. In  the above judgment the controversy whether females  were entitled to any right or management of the offerings in  the Dargah  was neither raised for decided. Fathima  Bee  though alive  but was not a party in the aforesaid  litigation  and any judgment given in that suit cannot be held as res  judi- cata or binding on Fathima Bee or the present plaintiffs.     Mr. Krishnamurthy Aiyer, learned counsel for the  defen- dantrespondents  contended that he was not arguing that  the aforesaid  judgment and decree were res judicata or  binding on  Fathima  Bee, but his submission was that it  should  be taken  as a circumstances in proving ouster of  Fathima  Bee from  the fight or management of the Dargah or any claim  in the  offerings. In our view as already mentioned such  judg- ment  cannot be considered as an ouster of Fathima Bee  cou- pled with other circumstances which clearly show that  there was no ouster in the facts of the present case.     It  is an admitted case of the parties that Sayed  Gulam Dastagir  Sahib had a fight of management in the  Dargah  in question  for six months (180 days) in the months of  Febru- ary-March,  June-July and October-November.  Gulam  Dastagir had one daughter Fathima Bee and two sons and as such Fathi- ma  Bee  got 1/5th share and which came to 36  days  out  of aforesaid 180 days. Thus Fathima Bee was a co-sharer in  the right of management and possession of the Dargah as well  as the 526 offerings  and hundial collection. Now,  before  considering the question of ouster of Fathima Bee, it would be important to consider the pleadings of the defendants in this  regard. Learned counsel for the defendant-respondents in this regard have  drawn  our attention to paragraph 19  of  the  written statement filed by 1st defendant Sayed Mohideen. Para 19  of the written statement reads as under:               "Neither  Fathima Bee till her death  nor  the               plaintiffs from her death till now had posses-               sion or management of the Dargah, None of them               had at any time received a share in the hundi-               al collection or offerings. Further there  has               been  expressed denial of Fathima Bee’s  title               at the time of the judgment of the High  Court               in 1909, if she did not have a title according               to Muslim Personal Law that title was  denied,               and  she  was expressly ousted  out  from  the               enjoyment of any share in the hundial  collec-               tions. From her death till now the  plaintiffs               have  not  received any share in  the  hundial               collections".     A perusal of the above pleading show that the defendants are  claiming  ouster on the basis of  expressed  denial  of Fathima Bee’s title at the time of the judgment of the  High Court  in  1909  and another ground taken  is  that  neither Fathima  Bee nor the plaintiffs had at any time  received  a share in the hundial collection or offerings nor had posses- sion or management of the Dargah. The defendants are totally mistaken  in taking the ground that there was any  expressed denial  of  Fathima Bee’s title in that litigation.  At  the risk of repetition it may be stated that neither Fathima Bee was a party in that suit nor any such question was raised or decided  that females were not entitled to any share in  the management  or offerings of Dargah. Thus there was no  ques-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

tion of any expressed denial of Fathima Bee’s title in  that litigation.  It appears that the defendants were carrying  a mistaken impression all along that females under the  Muslim Law were not entitled to any right of management or  posses- sion  in a Dargah and on that account they were pleading  an ouster of Fathima Bee as well as the plaintiffs. Such plead- ing cannot be considered as an ouster in fact of a co-sharer from  a joint right. It is well settled that where  one  co- heir pleads adverse possession against another co-heir  then it  is  not enough to show that one out of them is  in  sole possession  and enjoyment of the profits of the  properties. The  possession  of  one co-heir is considered  in  law,  as possession  of all the co-heirs. The co-heir  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 527 the other co-heir’s title. Thus it is a settled rule of  law 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  construe  ouster. Thus in order to make out  a  case  of ouster against Fathima Bee or the plaintiffs, it was  neces- sary  for  the defendants to plead that  they  had  asserted hostile  title coupled with exclusive possession and  enjoy- ment to the knowledge of Fathima Bee. The written  statement filed  by  the  defendants in the present  case  is  totally lacking  in  the above particulars and thus apart  from  the want  of evidence, there is no proper pleading of ouster  in the  present  case.  Thus it is clear that  neither  in  the written  statement nor in reply to the notice of the  plain- tiffs  any stand was taken that the right of Fathima Bee  or plaintiffs  was specifically denied on any particular  occa- sion  so  as to put them on notice that from that  date  the possession of the defendants would be adverse to the  inter- est  or  rights  of the plaintiffs of Fathima  Bee.  We  are supported  in the above view by a decision of this Court  in P. Lakshmi v. L. Lakskmi Reddy, [1957] SCR 195.     It is further proved from the evidence led by the plain- tiffs that Fathima Bee was being looked after by her  broth- ers  and she was in fact being paid portions of  the  income from  the  Dargah and on that account she was  satisfied  in allowing the brothers to enjoy the office of Mujawar on  her behalf  also.  The 13th defendant who has been  examined  as D.W.  1  has admitted that Fathima Bee was  living  and  was being looked after by Sayed Gaffar and who had arranged  for and met the expenses of the marriage of the two  plaintiffs. This clearly goes to show that relations between Fathima Bee and  her  brothers  were cordial and as such  there  was  no question of any knowledge to Fathima Bee that she was  being ousted  from her right or share in the Dargah.  No  evidence has  been led by the defendants to show that such right  was openly  denied by the brothers which would be considered  as an  ouster.  The First Appellate Court  had  considered  all these aspects in detail after discussing the entire evidence placed  on record and had clearly recorded the finding  that there  was no proof of ouster in the present case. The  High Court in our view committed a serious error in reversing the above  finding  and in taking a wrong  approach  in  holding ouster on the basis of judgment and decree given in Suit No. 116 of 1909 and on the ground that Fathima Bee had not  made a  demand or asked for her share of the hundial  collections at any point of time till her death in 1957. Mr. Krishnamurthy Aiyer, learned counsel for defendants Nos. 528

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

12  to 19 submitted that according to decree given by  First Appellate  Court  the period of 27 days from  February  1-6, June 1-6 and October 1-6 for First plaintiff and 9 days from July  1-9,  for  the second plaintiff acts  onerous  to  his defendants  12 to 19 and it must be fixed in a manner  which may  be  equitable to all the parties.  The  appellants  and their counsel Shri Tarkunde on the other hand submitted that their  share of 27 days may be fixed jointly and so  far  as their own proportion of 18 and 9 days is concerned they will make their arrangement inter se. After hearing learned coun- sel  for  the parties and considering the entire  facts  and circumstances  of the case, we uphold the decree  passed  by the First Appellate Court with the following modification in the  arrangement of days in the management of the Dargah  in question.     The plaintiffs would be entitled to such management from 17th. to 30th June and 1st to 13th July and in the next year from  18th to 30th June and 1st to 14th July. This  arrange- ment  would  continue by rotation of each year. To  be  more precise the plaintiffs would be entitled to have the manage- ment  of the suit Dargah from 17th to 30th June and  1st  to 13th July in the year 1990 and 18th to 30th June and 1st  to 14th July in the year 1991 and they shall continue to follow such cycle by rotation every year.     For the reasons stated above, we set aside the  judgment and  decree of the High Court dated 17th Nov. 1987  and  re- store  that  of  the Trial Court as affirmed  by  the  First Appellate Court with modifications as stated earlier. Parties to bear their own costs. R.N.J. 529