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CASE NO.: Appeal (civil)  4357-4358 of 2000

PETITIONER: Govindammal

RESPONDENT: R.Perumal Chettiar & Ors

DATE OF JUDGMENT: 19/10/2006

BENCH: A.K.MATHUR & ALTAMAS KABIR

JUDGMENT: J U D G M E N T  

A.K.MATHUR,J.                                  These appeals are directed  against the judgment and order  dated 30.12.1998 passed by learned Single Judge of the Madras  High Court in Second Appeal No.2253 of 1986 and Second Appeal  Nos.145 & 146 of 1988.

                       Brief facts giving rise to the present appeals are that  the plaintiff filed a suit being O.S.No.409 of 1981 for partition and  separate possession  and also claimed for rendition of accounts.  The  plaintiff is the second wife of Raju Naidu. Raju Naidu married  Rajakanthammal as his first wife and she died in or about 1946  leaving behind  the defendant Nos. 1 & 2  as their sons and one  daughter by name Saraswathi.  After the death of his wife, Raju  Naidu married second time to the plaintiff as the second wife.  There  was no issue from the second wife.  Raju Naidu died intestate in 1954   and on his death the plaintiff and defendant Nos. 1 & 2 were the legal  heirs to inherit  the properties of Raju Naidu. ’B’ schedule properties  are the separate and self acquired properties of Raju Naidu.  It is  alleged that the plaintiff and Defendant Nos.1 & 2 lived amicably for  sometime. Afterwards, the plaintiff started living separately and  Defendant Nos.1 & 2 were giving her share  of income from the  properties.  She demanded partition of the properties. It was  promised by both the sons of Raju Naidu and step sons of the plaintiff  but without any result.  One year  before filing of the present suit,  Defendant Nos.1 & 2 started acting  against the interest of the plaintiff  and they stopped giving the income to the plaintiff. Then they  alienated  item Nos. 3 to 8 of the scheduled properties to Defendant  No.3 and further to Defendant No.4  the entire ’B’ & ’C’ schedule  properties  under the pretext of the decree in O.S.No.101 of 1967 and  O.S.No.247 of 1970 against Defendant Nos.1 & 2. The plaintiff was  not a party to these two suits and therefore that decree was not  binding on her. It is alleged that a notice was sent  for the first time   for partition of the properties sometime in 1979  which was replied by  the defendants.  It is alleged that  a reply was sent by the defendant  No.1  to the plaintiff   wherein it was stated that the allegations are  false and  item No.2 has been purchased recently  by the defendant  No.1 out of the sale proceeds got by him by selling item Nos.3 to 8 in  favour of Defendant No.3.  Item No.2 also belonged to the joint  family.  It was also alleged that at the time of marriage, Raju Naidu  had already executed a registered settlement deed dated 17.4.1947   and in that  38 cents were given to the plaintiff and the plaintiff  remained in peaceful possession of the ’C’ schedule properties.  Thereafter, when  the suit was filed  the defendant No.1 filed a written  statement and in that it was alleged that the plaintiff does not have  any share  in the property and ’C’ schedule property was already

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settled in  her favour. A panchayat was also convened and  arrangement was made that ’C’ scheduled property would remain  with her  and she would not claim any share  in the property. It is also  alleged that  Defendant No.1  maintained  the defendant No.2 and  their sister and gave her in marriage. After the death of her husband,  she and her minor son are still maintained. It is also alleged that sale  deed in favour of defendant No.3 was executed by defendant No.1 to  meet the debts to the extent of Rs.40,000 by way of promissory notes  and simple mortgages.  As such, the suit filed by the plaintiff was  barred by law. Defendant No.;2 also contested the suit and even  challenged the marriage of the plaintiff with Raju Naidu. It is alleged  that after the death of Raju Naidu only two sons became the sole  owners by way of survivorship.  It is alleged that  he has sold   undivided half of the properties for valid consideration.  Defendant  No.3 was a purchaser  and he contested the suit and submitted that  the suit was not maintainable  without the prayer for cancellation of  the two sale deeds and he also took the plea of limitation. Defendant  No.4 being another purchaser of the property, took the plea that the  plaintiff only lived with the deceased Raju Naidu for few months and  she left on her own and went to her parents’ house. It was also  alleged that  his son Mahendran has purchased  Door No.8-A and 8- B in Kutchery Road for a valid consideration  of Rs.26,000/- from  defendant No.2.  It is also alleged that he has also filed a suit being  OS  No.416 of 1981 for allotment of share.                 So far as ’A’ schedule properties are concerned, only  partial relief has been given to plaintiff with regard to ’A’ schedule  properties. We are primarily concerned with ’B’ scheduled properties.  The trial court initially framed 10 issues  and 7 additional issues were  framed in OS 409 of 1981 and 11 issues were framed with regard to  OS 416 of 1981. Both the suits were tried together  as there was  common evidence in both the suits. Large number of documents  were filed by both the sides.  The trial court after hearing the parties,  dismissed OS No.409 of 1981 and passed a preliminary decree  for  partition and separate possession of plaintiff’s half share  in the suit  ’A’ schedule property in OS No.416 of 1981.  Aggrieved against this  order defendant No.1 preferred an appeal being AS No.55 of 1984   and the plaintiff also preferred an appeal being AS No.244 of 1984   on the file of the District Judge.  The appeal of the plaintiff with regard  to OSNo.409 of 1981 was allowed and the judgment and decree was  set aside and a preliminary decree was passed for partition and  separate possession of plaintiff’s 1/3rd share  in the properties  mentioned in ’B’ schedule and further directed defendant Nos. 1 to 3  to render accounts in respect of items 3 to 8 of plaint ’B’ schedule  properties  and directed defendant Nos. 1 and 2  to render accounts  in respect of the income from items 1 and 2 of the plaint ’B’ schedule  properties from the date of the  suit and further directed Defendant  No.4 to render accounts in respect of the income from the portion of  item 1 of ’B’ schedule property from the date of purchase.   Defendant  No.1’s appeal  being AS No.55 of 1984 was also allowed  and the  judgement and decree  in OS 416 of 1981 was modified to the effect  that  the plaintiff was entitled to the share  of Thambaiyan the 2nd  defendant in the plaint ’A’ schedule property and that the suit for  partition was dismissed in view of the suit for general partition in OS  No.409 of 1981was decreed.  Aggrieved against these two orders,  three second appeals were preferred before the High  Court. In  Second Appeal No.2253 of 1986 the following substantial questions  of law was framed.

               "  Whether the plaintiff’s claim was not  barred by limitation by exclusion and ouster and  defendants 1 and 2 in the suit had not acquired title  to the suit properties by adverse possession ?"

In Second Appeal Nos. 145 and 146 of 1988, the following substantial  questions of law were framed.

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               " (1)   Whether  the Lower Appellate Court is  right in negativing the claim of the defendants that  they had acquired title by adverse possession ?                 (2) Whether  the Lower Appellate Court was  right in overlooking that the plaintiff had been  excluded even before the coming into force of Act 30  of 1956 and had thereby  lost her right by exclusion  and ouster ?                 (3)     Whether the Lower Appellate Court  was right in omitting to note the suit instituted 12  years after the issue of notice under Ex.B 3 dated  2.11.1955 admitting ouster  and dispossession is  barred by limitation and the relief of partition would  not be available ?"

       In fact,  the basic question for our consideration in the present  appeals  is  whether the plaintiff is entitled to 1/3rd share in the  properties or not ?  In this connection, the question with regard to the  adverse possession which was specifically argued has to be dealt  with and whether the plaintiff lost her right for 1/3rd share  in the  properties of Raju Naidu because of adverse possession or not ?  In  case, the plea of the defendants succeeds and that she has lost her  right to claim 1/3rd share in the properties of Raju Naidu because of  adverse possession then in that case,  nothing survives in the present  appeals before us.

               Many pleas were taken like the  marriage of the plaintiff  with deceased Raju Naidu was not valid and  it was rejected outright.   The plain case is that the plaintiff filed a suit for separate possession  and rendition of accounts of the properties  being the wife of  deceased Raju Naidu. The plea of the defendants was that  they are  the only legal heirs  of the deceased Raju Naidu  and they have dealt  with the properties subsequently by mortgaging the  same and they  have enjoyed the properties to the knowledge of the plaintiff openly  for more than the statutory period and whatever right she had stood  extinguished. In order to settle the issue, 38 cents of land was settled  in her favour way back in 1947 and a panchayat was also convened  and she felt satisfied and did not claim any right in ’B’ schedule  properties from 1955. It was also pointed out that on 2.11.1955   through a counsel  the plaintiff got a notice issued demanding  partition and her share  but she did not take any steps. Therefore,  they are enjoying the properties  hostile to the interest of the plaintiff.   Therefore, they took the plea of adverse possession also.

               So far as ’B’ schedule properties  is concerned, the  findings of the courts below are that the suit properties are  the self  acquired properties of Raju Naidu and  it is not ancestral property.   Therefore, the plaintiff was entitled to her 1/3rd share in all the  properties. The plaintiff in order to substantiate her claim made oral  as well as documentary evidence. At the same time, the defendants  also led evidence to prove that the plaintiff’s right in the properties  stood extinguished on account of adverse possession.

               The defendants in order to oust the claim of the plaintiff  took definite plea of adverse possession hostile to the interest of the  plaintiff to her knowledge  and led evidence to show that a notice was  sent by the plaintiff on 2.11.1955 in which she claimed that she was  not given any income from the properties of Raju Naidu. Though the  plaintiff appeared in the witness box as P.W.1, she denied to have  sent any such notice.  It is alleged that the notice was sent through  the Advocate but no such advocate was produced by the defendants.  However, the defendants sent a reply to that notice. But the original  notice alleged to have been sent by the plaintiff was produced as  Ex.B 3 but no advocate was produced to prove that notice. P.W.1 has

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categorically denied to have sent any such notice and she also  deposed that after the death of her husband, Raju Naidu, she was  thrown out of the house. Though after the death of her husband, for  some time she was given income from the properties but thereafter  the defendants stopped payment of the income arising out of the  properties. She also admitted that some of the properties were  usufructuary mortgage.  After some time she came to know that  certain properties were being sold. Therefore, she woke up  in 1979  and filed the present suit. Unfortunately,  the plea of the defendants  succeeded  before the High Court  that the notice, Ex.B 3 was given  in 1955 and no suit was filed till 1979. Therefore, the High Court took  the view that her right in the properties got extinguished because of  adverse possession as she gave notice in 1955 and did not take  possession of the properties till 1979. Therefore, it was apparent that   the possession by Defendant No.3 was hostile to her interest. We  regret to say that this finding arrived at  does not appear to be correct  one. In fact after filing of the suit  the notice, Ex.B 3  which she did not  pursue any further, her right cannot be extinguished.  Though   she  has denied issuance of such notice through Advocate but that is not  sufficient  to defeat the claim of the widow.  This was only an  infructuous circumstance that  when she was thrown  out of the  house she could not pursue her legal remedy by filing  the suit but  when she found that the properties were being sold by the step sons,   and it came to her knowledge, therefore, she woke up  to file the suit  for asserting her claim. There is no denial  that  she was the legally  married wife of the deceased. This has been proved, established and  accepted by  all the three courts  despite the fact that the plea of  falsity of the marriage was raised by the step sons. Once it is  established  that she was the legally married wife of Raju Naidu she  automatically she claims  her share in the property from the estate  of  Raju Naidu by way of survivorship. Just because  a notice was issued  and she did not pursue the same  that does not extinguish  the claim  of the plaintiff  thereby giving a handle in the hands of the step sons  by way of adverse possession. In order to prove adverse possession  something more is required.  Once it is accepted that she was the  legally married wife of Raju Naidu then her right to claim  partition and  share in the property  stands out and that cannot be defeated by  the  plea of ouster or adverse possession. In order to oust by way of  adverse possession, one has to lead definite evidence to show that   to the hostile interest of the party that a person is holding possession  and how that can be proved  will depend on  facts of each case. In  the present case, it is the widow who has been thrown out and she  has been moving from pillar to post.  The  relief cannot be denied to  her  just because she sent notice claiming partition of the properties  and she did not file any suit thereafter and the steps sons where  holding the properties adversely  and hostile to her knowledge.  It  was the joint property  of Raju Naidu  and it shall devolve by way of  survivorship i.e. two sons and  his wife as the daughter has already  given up her share in the property. Therefore, in order to oust one of  the co-sharers  only on the basis of the so called notice cannot be  deemed to be sufficient to come to a conclusion of adverse  possession or  extinguishing her rights.  In this connection, our  attention has been invited  to an earliest decision in the case of Hardit  Singh & Ors. V. Gurmukh Singh & Ors. [ AIR 1918 PC 1] wherein it  has been held as under :

               " If by exclusive possession of joint estate is  meant that one member of the joint family alone  occupies it, that by itself affords no evidence of  exclusion of other interested members of the family.  Uninterrupted sole possession of such property,  without  more , must be referred to the lawful title  possessed by the joint holder to use  the joint estate,  and cannot be regarded as an assertion of a right to  hold it as separate, so as to assert  an adverse claim

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against other interested members. If possession may  be either lawful or unlawful, in the absence of  evidence, it must be assumed to be the former. The  evidence of actual user is not sufficient to establish  abandonment or exclusion."

Similarly, our attention was invited to a decision in the case of Varada  Pillai & Anr. V. Jeevarathnammal  [ ILR Madras (Vol.43) 244]. In that  case, their Lordships quoted the earlier decision referring to English  rule with regard to possession of several co-parceners, joint  tenants  or tenants-in-common with the possession of others so as to prevent  limitation affecting them.  In the case of Cully v. Deo [ (1840) 11 ad. &  E.1008]  their Lordships observed as follows :

       " Generally speaking, one tenant-in-  common  cannot maintain an ejectment against another tenant- in-common, because the possession of one tenant- in-common is the possession of the other, and, to  enable the party complaining to maintain an  ejectment, there must be an ouster of the party  complaining. But, where the claimant, tenant-in- common, has not been in the participation of the  rents and profits for a considerable length of time,  and other circumstances concur, the Judge will direct  the  jury to take into consideration whether they will  presume  that there has been an ouster:\005.  And , if  the jury find an ouster, then the right of the lessor of  the plaintiff to an undivided share will be decided  exactly in the same way as if he had brought his  ejectment for an entirety."

In the case of Mohaideen Abdul Kadir & Ors. V. Mohammad  Mahaideen Umma & Ors. reported in ILR [1970] 2 Mad. 636 their  Lordships held that   no hard  and fast rule can be laid down.  But the  following relevant factors  may be taken into consideration : (i)  exclusive possession and perception of profits for well over  the  period prescribed by the law of limitation ; (ii) dealings by the party in  possession treating  the properties as exclusively belonging to him;  (iii) the means of the excluded co-sharer of knowing that his title has  been denied by the co-owner in possession. There may be cases,  where, owing to long lapse of time, it may not be possible for the co- owner in possession to adduce evidence as to when the ouster  commenced and how it was brought home to  the knowledge of the  excluded co-owner. In such a case  the law will presume ouster as an  explanation of the long peaceful possession of the co-owner in  possession. In order to maintain the person in such possession the  law presumes  a lawful origin of the possession.   Therefore, no hard  and fast rule can be laid down from which it can be inferred that any  co-sharer has ousted his co-sharer. That will depend upon facts of  each case.  Simply long possession is not a factor to oust a co-sharer  but something more  positive is required to be done.  There must be a  hostile open possession denial and repudiation of the rights of other  co-owners and this denial or repudiation must brought home to the  co-owners.  Simply because a co-sharer gave notice claiming  partition of the suit properties  and possession  and did not pursue  the matter further, that will not be sufficient to show that the co-sharer  has lost his/her right. In the present case,  it is only when ’B’ schedule  property was being sold by two brothers then alone the plaintiff woke  up  to realise that the step sons  were not interested to give her share  in the property and she rushed to file the suit. Therefore, by no  stretch of imagination it can be inferred in the present case that the  plaintiff  had lost her right to claim partition and share in the property.           In the case of  Vidya Devi alias Vidya vati (dead) by LRs v.  Prem Prakash & Ors.  reported in (1995) 4 SCC 496 the question

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was whether the plea of acquisition of title by adverse possession  was available to the co-bhumidhar  or not.  In that context, their  Lordships held that when no period of limitation is fixed for filing a suit  for partition by a co-bhumidhar against  his other co-bhumidhars in  respect of a joint holding, the question of the other co-bhumidhar   acquiring his title to such holding by adverse possession for over 12  years can never arise.   It was further observed that if that be so,  such plea of perfection of title by adverse possession of a holding by  a co-bhumidhar against his other co-bhumidhar as defence  in the  latter’s suit for partition can be of no legal consequence.

               In the case of Mohammad Baqar & Ors. V. Naim-un-Nisa  Bibi & Ors.  reported in AIR 1956 SC 548 it was observed that under  the law possession of one co-sharer is possession of all co-sharers, it  cannot be adverse to them, unless there  is a denial of their right to  their knowledge by the person in possession and exclusion and  ouster following thereon for the statutory period. There can be no  question  of ouster, if there is participation in the profits to any  degree.

               In the case of Md. Mohammad Ali (dead) by LRs v.  Jagadish Kalita & Ors. reported in (2004) 1 SCC 271 this Court  examined a series of decisions  on the question of adverse  possession and after extracting  the legal propositions from various  decisions, their Lordships concluded that long and continuous  possession by itself, it is trite, would not constitute adverse  possession. Even non-participation in the rent and profits of the land  to a co-sharer does not amount to ouster so as to give title by  prescription. A co-sharer, as is well settled, becomes a constructive  trustee of other co-sharer and the right of a person  or his  predecessors-in-interest  is deemed to have been protected by the  trustees.

               As against this, our attention was also invited to a  decision in the case of  T.P.R.Palania Pillai & Ors. V. Amjath  Ibrahim  Rowther & Anr. reported in AIR 1942 Madras 622, their Lordships  observed that in order to constitute adverse possession, the  possession must be adequate in continuity, in publicity and in extent  to show that it is possession adverse to the competitor.  Therefore, in  cases of adverse possession also their Lordships have said that the  possession should be for longer period and it is known to the  competitor that it is held adverse to his knowledge.  Their Lordships  further held that in cases of usufructuary mortgage granted by one of  several co-sharers if a person remains in possession of the land and  cultivates it  for years, the requirement of continuity, publicity and  extent for adverse possession are fully complied with. But that is not  the case here.  

               In the case of Nirmal Chandra Das and Ors. V. Mohitosh  Das  & Ors. reported in AIR 1936 Calcutta 106 their Lordships  observed that in order to succeed on the ground of ouster, the person  setting up ouster is bound to show that he did set up an adverse or  independent title during the period which was beyond  the statutory  period of 12 years. Their Lordships further observed that there can be  no adverse possession by one co-sharer as against others until there  is an ouster or exclusion; and the possession of a co-sharer becomes  adverse to the other co-sharer from the moment there is ouster.  Therefore, what is ouster  and what is adverse to the interest of the  claimant depends upon each case. In this case, a plea was raised  that certain properties were usufructuary mortgage. But that was not  in a manner to show that  these properties are adverse to the interest  of the plaintiff.  It was only when ’B’ schedule properties were sought  to be sold and it came to the knowledge of the plaintiff that her step  sons were not interested in partition of the property and giving her

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share, she filed the suit in the year 1979.  Therefore, for the first time  in 1979 she came to know that adverse possession is being sought to  be established  and her interest in ’B’ schedule properties is sought to  be sold by her step sons.  But in any case, just because she gave a  notice  and she did not pursue  the same, on that basis no adverse  inference can be drawn and she cannot be ousted on that count by  way of adverse possession.

               As a result of our above discussion, we are opinion that  the view taken by the learned Single Judge of the High Court of  Madras in dismissing  the suit of the plaintiff ( O.S.No.409 of 1981)  is  not correct  and the said order is set aside.  Hence, this appeal is  allowed. The plaintiff is entitled to her 1/3rd share  in the ’B’ schedule  properties  being the widow of Raju Naidu and she is also entitled to  rendition of accounts.  

So far as O.S.No.416 of 1981 is concerned,  we need not go  into detail on the findings of fact recorded by the courts below.  However, we make it clear that Govindammal  being the second wife  of late Raju Naidu will have her share in the ’A’ schedule properties  also. The appeal is  accordingly disposed of.  No order as to costs.