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PETITIONER: SHAMBHU PRASAD SINGH

       Vs.

RESPONDENT: MST.  PHOOL KUMARI & ORS.

DATE OF JUDGMENT24/03/1971

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. DUA, I.D. BHARGAVA, VISHISHTHA

CITATION:  1971 AIR 1337            1971 SCR  181

ACT: Hindu   Law--Family  arrangement--Principles  for   deciding whether a document is family arrangement. Adverse possession--When established.

HEADNOTE: Raj Kumar, the common ancestor of the parties had four sons- Lalji Singh, Amar Singh, Ramji Singh and Raghunandan  Singh. Amar  Singh had three sons, namely,  Sonadhari,  Girwardhari and Nankhu father of present appellant.  In 1898 Amar  Singh purchased the land on which the house in dispute stood  from his  own funds but in the name of his brother  Lalji  Singh. Nankhu  was  taken  in adoption  by  Ramji  Singh.   Shortly thereafter  in 1915, a document Ex.  I was executed  between Raj  Kumar’s  descendants.  In it the claim of Nankhu  to  a half share in the house in dispute was recognised.  In 1949, Nankhu  and  the  appellant filed the  instant  suit  for  a declaration  of  their half share in the house  in  dispute. The  defendants (present respondents) were the  branches  of Sonadhari and Girwardhari.  The suit was resisted inter alia on  the following grounds: (i) that Ex. 1 was not  a  family arrangement but only a deed of relinquishment; and therefore Nankhu who had no anterior title to the house in dispute did not acquire any interest in it by virtue of Ex. 1; (ii) that even if he had an interest in the house he lost it by reason of  adverse possession by the respondent.  The  trial  court decreed the suit.  The decree was upheld by the Single Judge of the High Court.  The Division Bench however decided  both the points of dispute in favour of the respondents.  It held that  there was no dispute or conflict of  interest  between the  branches of Amar Singh and Ramji Singh, and  that  Amar Singh  and Nankhu had acted in concert in the  execution  of Ex.   I  which was therefore not a  family  arrangement.  It upheld  the  claim of the respondents that  Nankhu  and  the appellant  had  lost  title  to the  house  by  the  adverse possession of the respondents. The visits of Nankhu and  his wife to the house were held by the Division Bench to be  ’in the  nature  of  visits of guests of  the  defendants’.   In appeal to this Court against the judgment of the High Court. HELD:     (i)  The  arrangement under challenge  has  to  be considered  as a whole for ascertaining whether it was  made to allay disputes, existing or apprehended, in the  interest

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of  harmony in the family or the preservation  of  property. It  is not necessary that there must exist a dispute  actual or possible in the future, in respect of each and every item of  property  among all members arraigned  one  against  the other.   It  would be sufficient if it is shown  that  there were actual or possible claims and counterclaims by  parties in  settlement whereof the arrangement as a whole  had  been arrived  at,  thereby acknowledging title in one to  whom  a particular  property  falls on the  assumption  (not  actual existence  in  law) that he had an anterior  title  therein. [191 F-G] Pullaiah  v. Narasimham, A.I.R. 1966 S. C. 1837, Sahu  Madho Das v. Mukund Ram, [1955] 2 S.C.R. 22 and Rani Mewa Kuwar v. Rani Hulas Kuwar. (1873-74) L.R. I I.A. 157 at 166, applied. 182 Williams v. Williams, (1867) 2 Ch.  A. 294, referred to. An  examination  of the terms of Ex.  I showed that  it  was incorrect  to  assume, as the High Court did,  that  in  the disputes  amongst  the  different branches  of  the  family, Nankhu and Amar Singh were acting in concert, or that  there was no conflict of interest among them.  The parties to  Ex. 1 arrived at a settlement in view of claims and cross claims by  some  against the others.  Taken as a whole and  in  the light  of the recitals and the statements in  the  operative part of the document indicating conflict amongst the members of the family, the document represented an arrangement  bona fide  entered  into, for settling existing or  at  any  rate apprehended disputes, and therefore, satisfied the tests  of a  family  arrangement laid down in the  decisions  of  this Court.  In this view Nankhu must be said to have acquired  a half share in the house in dispute under Ex. 1. [193 H,  194 E-G] (ii) Adverse  possession  has  to  have  characteristics  of adequacy,   continuity  and  exclusiveness.   The  onus   to establish   these   characteristics  is   on   the   adverse possessors.   Accordingly, if a holder of title proves  that he too had been exercising during the currency of his  title various acts of possession, then, the quality of those acts, even  though  they  might not be  sufficient  to  constitute adverse  possession  as against another, may  be  abundantly sufficient  to  destroy  that adequacy  and  interrupt  that exclusiveness and continuity which is demanded from a person challenging  by  possession the title which  he  holds.   As between co-sharers, the possession of one cosharer is in law the  possession of all co-sharers.  Therefore to  constitute adverse  possession, ouster of the non-possessing  co-sharer has to be made, out.  As between them therefore, there  must be  evidence  of open assertion of a hostile  title  coupled with  exclusive possession and enjoyment by one of  them  to the  knowledge of the other.  But once the possession  of  a cosharer  has become adverse as a result of ouster,  a  mere assertion  of  a 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 reentry upon the property  or by  resuming possession in such a manner as it was  possible to  do.  For this purpose the mere fact that a  dispossessed co-sharer  comes and stays for a few days as a guest is  not sufficient. [194 H-195 E] Kuthali Moothavar v. Paringati Kunharankutcy, (1921) 48 I.A. 395, 404, Lakshmi Reddy v. Lakshmi Reddy, [1957] S.C.R. 195, 202,  Mohammad Bagar v. Naim-un-Nisa Bibi A.I.R.  1956  S.C. 548   and   Wantakal   Yalpi  Chenabasavana   Gowd   v.   Y. Mahabaleshwarappa, [1955] 1 S.C.R. 131, 138, followed. Ammakannu Ammal v. Naravanaswami Mudaliar, A.I.R. 1923  Mad.

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633, approved. in  view  of the evidence in the present case  the  Division Bench  was not justified in interfering with the finding  of fact  concurrently given by the Trial Court and the  learned Single  Judge that the adverse possession by Baijnath  which commenced from 1933 was sufficiently interrupted by acts  of possession  by  Nankhu,  and therefore  his  title  was  not extinguished by adverse possession. [199 A-B] The appeal must accordingly be allowed.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1655  of 1966. 183 Appeal from the judgment and decree dated August 25, 1964 of the  Patna  High Court in Letters Patent Appeal No.  119  of 1958. D.   Goburdhun and R. Goburdhun, for the appellant. S.   V. Gupte, D. P. Singh and N. Nettar, for respondent No. 1. U.   P. Singh for respondents Nos. 2 to 4. The Judgment of the Court was delivered by Shelat, J.-Two questions arise in this appeal.  The first is whether the transaction evidenced by Ex. 1, dated March  20, 1915  was  a  family  arrangement so as  to  confer  on  the appellant  an,, his father, Nanhku Prasad,  since  deceased, title  to a half share in the house in dispute.  The  second is  that  even  if  it was so,  whether  such  title  became extinguished  as  a  result of adverse  possession  for  the statutory  period  by  Baijnath,  the  deceased  husband  of respondent 1. The  parties  are near relations.  The  following  genealogy explains the relationship amongst them Rajkumar Singh      Lalji Singh    Amar Singh     Ramji SinghRaghunandan           Reshmi Kuer    Patreja KuerSingh                Nanhku Pd.      Suba Faujdar Balkeshwar  Singh                (Plff. No.1)                Shambu Pd.           Decnath   Singh                (Plff. No. 2)      Sonadhari Girwardhari    Kamaldhari      Tarke shwar Pd.     Baijnath Pd. alias      alias Daljit   Nanu Babu Kamta Prasad      (Deft. No. 2)  died in 1948           Phul Kumari Devi      (sons of Deft. (widow)      2-Nos. 3 to 7) Deft. No. 1. There  is no dispute that Amar Singh purchased from his  own funds  under a registered deed, dated January 20, 1898,  the ,,land  on  which  the house in dispute  stands.   His  son, Nankhu,  the deceased father of the present  appellant,  was taken in adoption sometime prior to March 20, 1915 by  Ramji Singh  and  his  wife Patreja Kuer as  they  had  no  issue, whereupon Nankhu ceased 184 to  have any interest in the properties owned by Amar  Singh and his branch.  In 1933, Nankhu and the present  appellant, then  a minor, filed Suit No. 33 of 1933  against  Sonadhari Tarkeshwar, Baijnath and Reshmi  Kuer  (the  widow  of  Amar Singh, wrongly described by   the High Court as the wife  of Rajkumar in the genealogy set out   in  its   judgment)   in

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respect  of certain properties which bad nothing to do  with the  house in dispute.  The written statement filed in  that suit was that Nankhu had been paid the price of his share in the   house   in  dispute  and  that   the   entire   house, consequently,  belonged  to and was since then  in  the  ex- clusive  possession of the defendants.  That suit went  upto the  High  Court when in 1941 a compromise  application  was filed  by the parties settling that suit.  But, as the  suit had nothing, as aforesaid, to do with the house in  dispute, nothing  was said about the allegation that Nankhu had  been paid off in respect of his interest in that house. In 1949, Nankhu and the appellant filed the instant suit for a  declaration of their half share in the house in  dispute. In answer to the suit, the respondents raised three defenses :  (1)  that Nankhu and the appellant  derived  no  interest under  Ex.  1.  (2) that assuming  that  they  derived  such interest,  it  was relinquished by them on  being  paid  the price  thereof,  and (3) that in any event they  lost  their interest by reason of adverse possession by the  respondents The  Trial Court rejected all the three defenses  raised  by the  respondents and decreed the suit, holding  that  Nankhu had acquired one half share in the said house under Ex.   I. Against  that  decree, two appeals were filed  in  the  High Court,  one  by respondent I and the other by  some  of  the other respondentdents.  These appeals were heard first by  a learned Single Judge of the High Court.  Before the  learned Single Judge, the finding of the Trial Court that Nankhu and the present appellant had not relinquished their interest in the  house  on their being paid the price  thereof  was  not disputed.   The only questions agitated before  the  learned Single  Judge,  therefore, were whether Nankhu  had  a  half share, that is to say, whether he derived his title to  ,the half share under and by virtue of Ex. 1, and if so,  whether he  lost  it  as  a result  of  adverse  possession  by  the respondents. In  respect  of the first question. the  parties  urged  two conflicting pleas.  Nankhu and the appellant contended  that Ex.   I  was a family arrangement under which  he  got  half share  in  the house and that that  family  arrangement  was valid  and binding on the parties.  The respondents, on  the other  hand,  contended that Ex. I was only a  Ladavi  deed, that  is, a deed of relinquishment.  The argument on  behalf of Nankhu and the appellant was that there were  outstanding disputes  between  the different branches of the  family  of Rajkumar, and those disputes 185 were ultimately settled at the instance of and with the  aid of  certain family friends resulting in Ex.  I by way  of  a family  arrangement.   Therefore,  even if  Nankhu  and  the appellant were not able to show their anterior title to  the house,  they  were  entitled under Ex.  I to  a  half  share therein.  The learned Single Judge accepted the  contention raised  by Nankhu and the appellant.  His reasoning in  this connection  was  that although the land on  which  the  suit house  stood  was  purchased by Amar Singh out  of  his  own funds,  it  was purchased in the furzi name  of  Lalji,  but there  was  no evidence that Lalji ever admitted to  be  the furzidar of Amar Singh.  Consequently, though Nankhu, by his ,adoption,  lost  all  interest in the  properties  of  Amar Singh,  yet the fact that in Ex.  I Amar Singh  acknowledged Nankhu having a half share in the house indicated that there was some apprehension in the mind of Amar Singh of a  future dispute  and that it was such an apprehended  dispute  which Ex.  1, while dealing with the house, settled.  The  learned Single  Judge  added that ,even assuming that there  was  no

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existing or apprehended dispute and the settlement was  made out  of  consideration  for  the peace of  the  family  or preservation  of its properties, the settlement would  have to be regarded as a family arrangement.  Regarding the  plea of  adverse possession, ’he upheld the finding of the  Trial Court  that Nankhu and the appellant had  established  their acts  of  possession during the statutory Period,  and  that consequently,  the  continuity  and  exclusiveness  of   the respondents’  adverse  possession had  been  disrupted.   On these findings, he dismissed the appeals and confirmed  the decree passed by the ’Trial Court. Respondent  I thereupon filed a letters patent appeal  which was  heard by a Division Bench of the High Court.  The  same two  questions were reagitated, namely, as to the nature  of Ex.  1,  and  as to the adverse possession.   On  the  first question, the reasoning adopted by the Division Bench was on the following lines :               (1)   that  the  executants of Ex.   I  formed               three conflicting groups, namely,               (a)   Suba,     Faujdar    and     Balkeshwar,               constituting  one group of members of  Lalji’s               branch, being executants 1 to 3;               (b)   Raghunandan  and  his  son,  Kamaldhari,               being  executants  4 and  5  and  constituting               Raghunandan’s branch; and               (c)   Amar  Singh  for  himself  and  as   the               guardian of Baijnath, then a minor,  Sonadbari               for himself and as guardian of his minor  son,               Tarkeshwar, and Nankhu, who had,               186               as  earlier stated, gone to the line of  Ramji               on his adoption, being executants 6,7 and 8;               (2)   that  the  disputes,  in  settlement  of               which  Ex.   I  was executed  by  these  three               groups, were, as its recitals show :               (a)   conflicting  claims  made  by  the  said               three  sets of executants as to  whether  they               were joint or separate in status, the claim of               executants  1 to 3 being that all the  members               of Rajkumar’s family were still members of  an               undivided  Hindu family, and  that  therefore,               although the properties stood in the names  of               and were in possession of individual  members,               they  continued to be joint family  properties               including properties standing in the names  of               female members, namely, Reshmi and Patreja;               (b)   the  allegation  by executants 4  and  5               (Raghunandan’s  branch)  that  all  the   four               branches of Rajkumar’s four sons were separate               and  yet  claiming  share  in  the  properties               standing  in the names of members  of  Lalji’s               branch, and               (c)   the  claim  by  executants 6,  7  and  8               (Amar  Singh, Sonadhari and Nankhu-by  now  in               the  line  of  Ramji) that  the  parties  were               separate   in  status,  and   therefore,   the               properties  in  the  names  of  the  two  said               females  belonged exclusively to them and  the               members of the other branches had no  interest               whatsoever in them-,               (3)   that  the  Trial Court and  the  learned               Single  Judge  were in error in  holding  that               what Ex.  I did was to evidence relinquishment               by  the rest of the members of the  family  of               their  claims  in properties standing  in  the

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             names  of  or  in  possession  of   particular               members,   and  thereby  acknowledging   their               anterior  title in such properties.   In  fact               Nankhu  had no such anterior title, nor  could               be in law have any such title in the house  in               dispute in view of his having got out of  Amar               Singh’s branch as a result of his adoption  by               Ramji;               (4)   that   there   was  no   subsisting   or               apprehended dispute between Amar Singh and his               family,  on  the one hand, and Nankhu  on  the               other,  the latter not having made  any  claim               for a share in the house in dispute, and  that               therefore,   there   was   no   question    of               preservation  of  peace  or  family  property,               there  being  nothing on record to  show  that               Nankhu  had held out any threat to the  family               peace  or  property; therefore,  there  was  a               total want of mutuality as in consideration of               Nankhu getting a half share,               187               Amar Singh got nothing in return and cases  of               the  type  of Williams v. Williams(1)  had  no               application;               (5)   that the recitals in Ex.  I showed  that               the  only dispute which prevailed at the  time               was  "branchwise" and in that  dispute  Nankhu               did not set up any contest against Amar  Singh               and his branch and indeed, both of them  acted               in concert, both claiming that the members  of               Rajkumar’s   family  were  separate  and   the               properties standing in the names of Reshmi and               Patreja were their exclusive properties;               (6)   that acknowledgement of exclusive  title               of Amar Singh and Sonadhari (executants 6  and               7)   to  certain  properties,   and   likewise               acknowledgement  of exclusive title of  Nanhku               (executant No. 8) to certain other  properties               set out in paras 3 and 4 of Ex.  I were not by               way   of   settlement  of  any   existing   or               apprehended   dispute   between   them,    and               therefore,  that part of Ex.  I could  not  be               regarded  as providing any  consideration  for               conferring  the  half share  in  the  disputed               house on Nanhku. On  this reasoning the Division Bench declined to treat  Ex. I  as  a family arrangement.  The conclusion  of  the  Bench clearly  signified  that it had relied  on  two  fundamental premises: (1) that there were only three sets of executants, the third set consisting ;of executants 6, 7 and 8, and  (2) that  Amar  Singh and Nanhku had acted in concert  as  there were no conflicting claims by and between them. In  view of this conclusion there was no need for the  Divi- sion  Bench to go into the question of  adverse  possession. However,  it decided to do so for the reason  that  although the  finding  on  the question  of  adverse  possession  was concurrent,  it had bee,-, seriously challenged  before  it. On  this question, the Division Bench firstly relied on  the Municipal  Assessment Register for 1900-1901, (Ex.  D),  and the extract from the Demand Register of a Patna Municipality for 1915-16, (Ex.  E).  Ex.  D showed the name of Amar Singh as  the  sole  owner  of the  property.   Ex.   E  mentioned Sonadhari  and Baijnath only as the owners of the  house  as Amar  Singh  had  died soon after Ex.  I  was  brought  into existence.   The  Division Bench was impressed by  the  fact

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that  though  only recently, in March  1915,  Nanbku’s  half share in the house had been acknowledged in Ex. 1, his  name was  deliberately  omitted  in  Ex.   E,  which  meant  that Sonadhari  and Baijnath had openly asserted their  title  to the whole of the house and yet anhku took no steps to assert his title.  Nor did he at any time (1)  [1867] 2 Cb.  A. 294. 188 pay  his  share  of the municipal taxes  and  the  costs  of repairs  carried  out later on by  Baijnath.   The  Division Bench  was  also  impressed with the  fact  that  even  when Baijnath,  in his written statement in suit No. 33 of  1933, claimed  that  Nanhku’s share had been paid off and  be  had since then been in exclusive possession of the entire house, Nankhu took no steps to vindicate his title until he and his son filed the present suit in 1949.  The Division Bench came to the conclusion that there was not only an assertion of  a hostile  claim  by  Baijnath but  that  that  assertion  was accompanied by an ouster which remained open and  continuous throughout  the statutory period.  As regards  the  evidence khat  Nanhku and sometimes his wife came and stayed  in  the house,  the  Division Bench took the view  that  these  were casual  visits  "in the nature of visits of  guests  of  the defendants",  and  therefore,  did not have  the  effect  of interrupting   the  continuity  and  the  exclusiveness   of possession by the respondents.  The Bench even observed that the  respondents  had  completed  their  title  by   adverse possession long before Baijnath claimed exclusive possession in  his said written statement in 1933.  In this  view,  the Division  Bench  held that Nanhku’s title in the  house  was extinguished  by  adverse possession.   The  Division  Bench accordingly  allowed the respondents’ appeal with costs  all throughout.  Both the conclusions of the Division Bench have been challenged before us as incorrect. On the question as to the nature of Ex.  I a large number of decisions  were cited at the bar to show when a  transaction can be said to be a family arrangement.  It is not necessary to  advert to them as most of them have been  considered  by this Court in its previous decisions, wherein principles  as to  when an agreement can properly be regarded as  a  family arrangement  have  been  set  out,  Thus,  in  Pullaiah   v. Narasimham(1)  after setting out how courts in England  view family arrangements, Subba Rao, J. (as he then was) observed that the concept of such a family arrangement has also  been accepted  by courts in India, adapting the concept  to  suit the family set up in this country which is different in many respects  from that obtaining in England.   After  examining some   earlier   decisions   which   be   characterized   as illustrations  of  how family arrangements were  viewed,  he summarized the law as to a family arrangement as follows: -               ,,Briefly  stated,  though conflict  of  legal               claims in praesenti or in future is  generally               a  condition  for  the validity  of  a  family               arrangement,  it is not necessarily so.   Even               bona fide disputes, present or possible, which               may               (1)   A. I. R. 1966 S. C. 1837.               189               not   involve  legal  claims   will   suffice.               Members  of  a  joint  Hindu  family  may,  to               maintain  peace or to bring about  harmony  in               the family, enter into such a family  arrange-               ment.  If such an arrangement is entered  into               bona  fide and the terms thereof are  fair  in               the circumstances of a particular case, Courts

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             will   more  readily  give  assent   to   such               arrangement than to avoid it". Even in England, family arrangements are viewed as  arrange- ments  governed  by principles which are not  applicable  to dealings  between strangers.  The courts, when deciding  the rights  of parties under family arrangements, consider  what is  most  for the interest of families and  have  regard  to considerations which in dealings between persons not members of the same family would not be taken into account.  Matters which would be fatal to the validity of similar transactions between  strangers are not objections to the binding  effect of  family  arrangements. (see Halsbury’s Laws  of  England, (3rd Ed.), Vol. 17, 215).  Thus, in Williams v.  Williams(1) the  Court held that a family arrangement might be  such  as the  court  would uphold although there were  no  rights  in dispute,  and if sufficient motive for the  arrangement  was proved, the Court would not consider the adequacy of  consi- deration.   But the question of consideration  or  mutuality would   arise,  as  Williams’  case(1)  shows,  when   other considerations,  such as existing or an apprehended  dispute or the question of preservation of property or honour of the family, are absent, so that it is not necessary for a  valid family arrangement that there must exist actual  competitive claims  or disputes or that the arrangements must be  backed by  proper consideration.  Even disputes likely to arise  in future  or preservation of family property and honour  would be  sufficient  to  uphold an  arrangement  bona  fide  made between the members of a family. What actually happens when such a family arrangement is made is explained by Bose, J., in Sahu Madho Das v. Mukund Ram(1) in the following words :               "It  is  well  settled that  a  compromise  or               family arrangement is based on the  assumption               that there is an antecedent title of some sort               in the parties and the agreement  acknowledges               and  defines  what that title is,  each  party               relinquishing  all  claims to  property  other               than  they  had previously  asserted,  to  the               portions allotted to them respectively.   That               explains  why  no conveyance  is  required  in               these cases to pass the title from the one  in               whom  it  resides to the person  receiving  it               under the               (1) [1867] 2 Ch.  A. 294.               (2) [1955] 2 S. C. R. 22.               190               family  arrangement.  It is assumed  that  the               title  claimed  by the  person  receiving  the               property  under  the  arrangement  had  always               resided  in him or her so far as the  property               falling  to his or her share is concerned  and               therefore no conveyance is necessary." He  went  on  to  say that this was not  the  only  kind  of arrangement  which  the courts would uphold, and  that  they would take the next step of upholding "an arrangement  under which  one set of persons abandons all claims to  all  title and   interest  in  all  the  properties  in   dispute   and acknowledges  that  the sole and absolute title to  all  the properties resides in only one of their number (provided  he or  she had claimed the whole and made such an assertion  of title)  and  are  content to take  such  properties  as  are assigned to them as gifts pure and simple from him or her or as  a  conveyance for consideration  when  consideration  is present".  In such a kind of arrangement where title in  the ,(entire  property is acknowledged to reside in only one  of

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them and thereupon that person assigns parts of it to others there  would  be a transfer by that agreement  itself  which obviously  in such a case would need a registered  document. This  decision lays down the assumption underlying a  family arrangement,   namely,   of  an  anterior  title   and   its acknowledgement  in  one to whom a property or  part  of  it falls  under the arrangement. (see also Rani Mewa  Kuwar  v. Rani  Hulas Kuwar(1).  Therefore, it is not  necessary  that there  must  exist an anterior title sustainable in  law  in such a person which the others acknowledge. The  arrangement under challenge has to be considered  as  a whole  for  ascertaining  whether  it  was  made  to   allay disputes,  existing  or  apprehended,  in  the  interest  of harmony  in the family or the preservation of property.   It is not necessary that there must exist a dispute, actual  or possible in the future, in respect of each and every item of property  and  amongst all members arrayed one  against  the other.   It  would be sufficient if it is shown  that  there were actual or possible claims and counter,claims by parties in  settlement whereof the arrangement as a whole  had  been arrived  at,  thereby acknowledging title in one to  whom  a particular  property  falls on the  assumption  (not  actual existence in law) that he had an anterior title therein. In  the light of these decisions we must now examine Ex.   I to  see  if the contention of the appellant that  it  was  a family arrangement is correct or not. The  document Ex. 1, after reciting the death of the  common ancestor, Rajkumar, his leaving him surviving four sons  and the (1)  (1873-1874) L. R. 1   I. A. 157. at 166. 191 deaths of certain other family members thereafter, reads  as follows :               "Signs of ill feeling developed among us,  the               executants  Nos.  1 to 8, and at the  time  of               survey  and settlement operations, dispute  in               connection  with  the  properties  arose.   On               account of dispute, wrong statements and claim               were  made.  On account of which the names  of               some of us, the executants were recorded in  a               wrong  manner on the record of rights  and  in               the   office   of   the   land    Registration               Department,   in  respect  of  some   of   the               properties having regard to the real state  of               affairs and title.  At the time of the  survey               and settlement operations ,etc. the claims and               allegations of us, the executants Nos. 1 to 3,               were that we, the executants, are all  members               of   the  joint  family  and  the   properties               standing in the names ,of a certain member  of               the  family  as well as those in the  name  of               certain female member of the family, belong to               the  joint  family.   Contrary  to  this,  the               claims and allegations of us executants Nos. 4               to 5 were that all the four sons of Raj  Kumar               Singh became separate and that executants Nos.               1  to  3 always continued to  remain  separate               from  the  (other) executants  and  executants               Nos.  4  and  5  separate  from  the   (other)               executants and executants Nos. 6 to 8 separate               from  the  other executants, but in  spite  of               this allegation of separation, executants Nos.               4 and 5, on account of dispute, made  contrary               to  the real state of affairs with respect  to               certain  properties  owned  and  possessed  by

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             executants Nos.  1 to 3, and executants Nos. 6               to  8  also  made allegations  and  claims  of               separation and it was alleged that  executants               Nos.  1  to  5 (?) neither had  nor  have  any               connection  and concern with  the  properties,               which  were  and are in the  names  of  Mosst.               Patriga Kuer and Mosst.  Reshmi Kuer, although               no party was member of a joint family, nor was               any property joint.  As the dispute among  us,               the  executants is contrary to the real  state               of  affairs,  and  in case  the  said  dispute               continues    there   is    apprehension    ,of               consideration  loss  and  damage  to  us,  the               executants,  therefore, on the advice  of  the               well  wishers  of  the  parties  ,and  of  the               respectable  persons and on the advice of  the               legal advisers of the parties, as also with  a               view  to set at rest all kinds of dispute,  it               was  settled that all the disputes  should  be               put  to  an  end  by  executing  a  deed of               agreement  by way of a deed of  relinquishment               of claims (ladavi) and the property, which  is               actually  ,owned  and possessed by  a  certain               party  should  be declared to belong  to  that               party exclusively, and as a               192               matter   of  fact,  the  family  of  us,   the               executants,  is  separate  and  the  property,               which stands in the name of a certain  person,               has been purchased from his or her funds,  and               in respect of his or her name should  continue               to  remain  entered in the  land  Registration               Department etc. and the name should be entered               if  the  same  is not entered  and  the  other               parties  totally  gave  up  their  claim  with               respect thereto." Then follow parts 1 to 4 in each of which certain properties are  set out, and in respect of which, title of each of  the four  sets  of the executants is acknowledged by  the  rest. Para 4, which relates to properties falling to the share  of Nanhku,  executant 8, commences with the declaration by  the rest of the executants, including Amar Singh and  Sonadhari, that  Nanhku was the adopted son of Ramji and Patreja  Kuer, that  certain  properties set out therein  were  exclusively acquired by Patreja Kuerand that Nanhku, as the adopted  son of Ramji and Patreja Kuer, was exclusively entitled to  them on the death of Patreja, and’ ’that "we, the executants Nos. 1  to 5, 6 and 7, and the heirs of executant No.  6  neither have  nor  shall  have any claim, title  or  possession  and connection  in  respect  thereof in any manner  and  on  any allegation".   Following up the arrangement made in Paras  I to 4, four schedules giving particulars of properties  which were  acknowledged  to  be belonging to the  four  sets  of’ executants  were appended to Ex. 1. As regards two  houses,. ;one at Rajipur and the other in dispute, Schs. 3 and 4 both set  out a half share in them as belonging to  executants  6 and 7 and the other half as belonging to executant 8,  i.e. Nanhku, in each of them. As  already  stated, the fundamental premise  on  which  the Division  Bench proceeded to consider Ex.  I was that  there were  three sets of executants, namely, those  belonging  to Lalji’s branch, i.e., executants 1 to 3, those belonging  to Raghunandan’s branch i.e., executants 4 and 5, and the third set consisting of Amar Singh and Sonadhari executants 6  and 7, and Nanhku, executant 8. The second premise on which  the

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Division Bench rested its entire reasoning was that  whereas there  were disputes between the three sets  of  executants, there  were  no disputes between Amar Singh,  Sonadhari  and Nankhu, that in fact the three of them acted in concert, and that therefore, one half share given to Nanhku in the  house in  dispute  was altogether voluntarily  given  without  any anterior  title and without any claim or dispute  raised  by Nanhku in, respect thereof.  In our view, both the  premises were  incorrect  rendering the  conclusion  drawn  therefrom untenable. it is true that Amar Singh had in 1898 purchased out of  his own moneys the land on which the, suit house stands.  It is 193 also  true  that  Nanhku was adopted  sometime.  before  the execution  of  Ex.  1, and therefore, on  the  date  of  its execution  he could not have any valid claim enforceable  in law  any  property belonging to Amar Singh and  his  branch. But,  as  stated  earlier, a dispute or  a  contention,  the settlement  of  which can constitute a  family  arrangement, need  not be one which is actually sustainable in law.   The harmony in a family can be unsettled even by competitive and rival  claims which cannot be upheld in law.  Therefore,  if Amar Singh and the other executants or some of them were  to challenge,  for  instance,  the factum or  the  validity  of Nanhku’s  adoption,  or  if  notwithstanding  his  adoption, Nanhku were to make a claim in properties held by Amar Singh and  his branch or if some of the executants were  to  claim that the ’family of Rajkumar was still a joint and undivided family  or  that  though  the members  of  the  family  were separate,  the  properties held in the individual  names  of some  of  them including Reshmi Kuer and Patreja  Kuer  were joint,  there would be sufficient disputes to  constitute  a settlement  of them a family arrangement.  A claim, made  by executants  1 to 5 that the properties held by  Reshmi  Kuer and Patreja Kuer were not their separate properties but-were joint  family properties, liable to be  partitioned  amongst all, was bound to affect both Amar Singh and Nanhku, If such a  claim were to be persisted and dragged to a court of  law there  is no gainsaying that it would put into jeopardy  not only  the  interests of Amar Singh and Nanhku but  also  the harmony of the family. The recitals in Ex.  I clearly show that whereas members  of Lalji’s branch were claiming that the family was still joint and  undivided, and therefore, they had interest in all  the properties  irrespective of their standing in the  names  of particular individuals, Raghunandan and his son claimed that the  members  of the family were not joint and  yet  claimed share in all the properties including those standing in  the names  of Reshmi Kuer and Patreja Kuer.  Thus the claims  by executants ’1 to 5 were definitely hostile to the  interests of Amar Singh to ’:the extent of the properties standing  in the  name of Reshmi Kuer and of Nanhku to the extent of  the properties standing in the name of Patreja Kuer.  The claims made  by  the branches of Lalji and  Raghunandan  sought  to bring  all the properties into hotch potch  including  those held  by Resbmi Kuer and Patreja Kuer, thus,  affecting  the rights of Amar Singh and Nanhku in the different  properties and  not the same properties.  Their  interests,  therefore, were not identical and there was thus no reason for them  to act  jointly.  Indeed, there was no evidence whatsoever  and nothing  in Ex.  I itself to show that they were  acting  in concert as assumed by the Division Bench. 13-1 S. C. India/71 194 It is true that the recitals in Ex.  I do not expressly  set

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out  any conflict of claims between Amar Singh  and  Nanhku. Nevertheless, it is significant that in para 4 of Ex.  I the executants   found   it  necessary  to  insert   therein   a declaration  not  only  by  executants  1  to  5,  but  also executants 6 and 7 that Nanhku was the adopted son of  Ramji and  Patreja Kuer, that on the death of Patreja Kuer he,  as such adopted son, was absolutely entitled to the  properties set out therein in addition to those which stood in the name of Patreja Kuer.  If the adoption of Nankhu was accepted  by all  and  was not made the subject matter of  any  doubt  or dispute,  there  was  no  necessity  of  including  such   a declaration and in particular joining executants 6 and 7  in such a declaration.  If Amar Singh and Nanhku were acting in concert  why  had  Amar  Singh and  his  son,  Sonadhari  as executants  6  and  7, to be joined  as  declarants  to  the adoption of Nanhku. Para 4 of Ex.  I also shows that  there were  certain bonds and mortgage deeds standing in the  name of Patreja Kuer which were acquired from out of the personal funds of Ramji.  Such a statement had to be acknowledged  in paragraph  4 presumably ,because rights in those  bonds  and deeds  were  not  admitted to be  the  exclusive  rights  of Patreja.  If those rights were to be treated as joint family property, as claimed by executants 1 to 5, Amar Singh  would get a share in them and to that extent his interest must  be said  to  be  in conflict with that of  Nanhku.   A  similar result  would follow if properties standing in the  name  of Rashmi  Kuer were to be treated as joint family  properties. It  would not, therefore, be correct to assume that  in  the disputes  amongst  the  different branches  of  the  family. Nanhku and Amar Singh were acting in concert or that  there’ was no conflict of interest between them.  In our  judgment, the  parties  to Ex.  I arrived at a settlement in  view  of claims  and cross claims by some against the others.   Taken as  a  whole  and  in the light  of  the  recitals  and  the statements in the operative part of the document  indicating conflicts  amongst the members of the family,  the  document represented  an  arrangement  bona fide  entered  into,  for settling  existing or at any rate apprehended disputes,  and therefore, satisfied the tests of a family arrangement  laid down  in  the decisions earlier referred to.  In  this  view Nanhku  must  be said to have acquired a half share  in  the house in dispute under Ex. 1. On the question of adverse possession by a co-sharer against another co-sharer, the law is fairly well settled.   Adverse possession  has  to have the  characteristics  of  adequacy, continuity  and exclusiveness.  The onus to establish  these characteristics  is on the adverse possessor.   Accordingly, if a holder of title proves 195 that  he too had been exercising during the currency of  his title various acts of possession, then, the quality of those acts, even though they might not be sufficient to constitute adverse  possession  as against another, may  be  abundantly sufficient  to  destroy  that adequacy  and  interrupt  that exclusiveness and continuity which is demanded from a person challenging  by  possession the title which he  holds.  (see Kuthali Moothavar v. Paringati Kunharankutty(1).  As between co-sharers,  the  possession of one cosharer is in  law  the possession  of  all co-sharers.   Therefore,  to  constitute adverse  possession, ouster of the  non-possessing  cosharer has to be made out.  As between them, therefore, there  must be  evidence  of open assertion of a hostile  title  coupled with  exclusive possession and enjoyment by one of  them  to the  knowledge of the other. (see Lakshmi Reddy  v.  Lakshmi Reddy(1)  and also Mohammad Baqar v. Naim-un-Nisa  Bibi.(3))

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But,  once the possession of a co-sharer has become  adverse as a result of ouster, a mere assertion of a 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  a manner  as  it  was  possible to  do.  (see  Wuntakal  Yalpi Chanabasavana  Gowd v. Y. Mahabaleshwarappa(4)).   The  mere fact that a dispossessed co-sharer comes and stays for a few days  as  a  guest  is  not  sufficient  to  interrupt   the exclusiveness or the continuity of adverse possession ,so as not to extinguish the rights of the dispossessed  co-sharer. (see Ammakannu Ammal v. Naravanaswami Mudaliar(5)). On  this issue, the parties led considerable evidence,  oral and documentary.  On examination of that evidence, both  the Trial  Court and the learned Single Judge gave a  concurrent finding  that even if the possession by the respondents  was adverse  the  appellant  and his father  had  done  acts  of possession  at  various intervals which were  sufficient  to interrupt  both  the  continuity and  the  exclusiveness  of possession by the respondents.  The Division Bench, however, did  not agree with the concurrent finding on a  reappraisal of  the evidence. by it.  It is not necessary for us  to  go into  the  details of that evidence once  again  as  certain facts  clearly  emerge out of the evidence  to  prevent  the extinguishment of Nanhku’s and the appellant’s title in  the property   as  a  result  of  adverse  possession   by   the respondents. The principal facts which impressed the Division Bench  were (i)  that   though   in  the  Demand   Register   of   Patna Municipality  for  1915-16 (Ex.  E) Sonadhari  and  Baijnath were the only (1)  [1921] 48 I. A. 395, 404. (3)  A. I. R. 1956 S. C. 548. (5)  A. I. R. 1923 Mad. 633. (2)  [1957] S.C.R. 195, 202. (4)  [1955] 1 S. C. R. 131, 138. 196   persons named as occupiers, Nanhku had not taken steps  to include  his name, (2) that all throughout it was  Sonadhari and  Baijnath who paid the municipal taxes and Nanhku at  no time paid his share of the taxes or his share in the cost of repairs  and  laying of a water pipe in the house,  and  (3) that though in his written statement in suit No. 33 of  1933 Baijnath claimed that    he  was in exclusive possession  of the  house as he had paid Nanhku the proportionate price  of his  share, Nanhku did not take any steps to  vindicate  his title until he and his son filed the present suit in 1949 by which  time the statutory period for adverse possession  had already been completed. There was, however, evidence (if Nanhku and his wife  having stayed  on  different  occasions  in  the  house.   But  the Division Bench was of the view that such acts of  possession were only casual and did not have the effect of interrupting the adverse possession of the respondents. It  needs to mention in this connection that Nanhku was  all along residing in a village and not in Patna, Therefore, his acts of possession could only be when he came down from  his village  for  some  work  to  Patna.   In  1915-1916,   when Sonadhari  got his name and that of Baijnath entered in  the Demand  Register  (Ex.  E) it might be that Nanhku  did  not know that they had omitted his name.  His half share in  the house had been acknowledged in Ex.  I only recently by  Amar Singh and Sonadhari as well.  Relations between the  parties had  not yet become unfriendly so as to make Nanbku  suspect

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that his name would be deliberately omitted in the municipal records  or  that possession by Sonadhari and  later  on  by Baijnath would be treated by them as adverse.  Baijnath,  no doubt,  was  using  the  whole house, but  so  long  as  his possession did not amount to ouster his possession would  be that  of both the co-sharers.  If Baijnath used  the  entire house, except when Nanhku stayed in it during his occasional visits,  Nanhku would naturally think that  Baijnath  should pay the taxes.  It was not the case of the respondents  that Baijnath  ever demanded a share in the taxes or a  share  in the  cost  of repair and that such a demand was  refused  by Nanhku.   The  High Court on these facts was  not  right  in observing  that the title of Baijnath was already  completed by adverse possession long before Baijnath filed his written statement  in 1933, as mere use and enjoyment by him of  the house, in the absence of such use amounting to ouster, would not make it adverse possession. It  was  for the first time that in  the  written  statement filed  in  1933 Baijnath openly asserted his  title  to  the whole of the house.  Since that assertion was accompanied by the  fact that he was in enjoyment of the whole  house  that act would amount                             197 to ouster and adverse possession would commence as from that date.  Obviously, the earlier possession could not be tacked on  to  the subsequent possession because the plea  in  that very  written statement was that Baijnath had paid  off  the price  of Nanhku’s share thereby implied admitting  Nankhu’s title to a half share in the house.  Suit No. 33 of 1933, in which Baijnath filed the said written statement, was settled in 1941.  In the compromise application filed by Nankhu  and Baijnath,  both  of them stated that they were  residing  in that house.  That assertion by Nanhku was never disputed  by Baijnath.        But apart from that assertion there was the fact that Nanhku had no other place to reside in Patna.  His case  was that whenever he visited Patna he used to stay in the  house in  dispute.  Apart from that assertion being  natural,  his evidence  in  that  connection was  corroborated  by  Prabhu Narain,  P.W. 4, an Advocate residing in the  neighbourhood. The Division Bench brushed aside his evidence without giving any  adequate reason although it bad been accepted  by  both the Trial Court and the learned Single Judge.  In the  light of  this  evidence  it  is not  possible  to  say  that  all throughout  the period from 1933 till the  statutory  period for  adverse possession was completed Nanhku had not  stayed in the house at any time.  Respondent herself admitted  that on  suit  No. 33 of 1933 being  settled,  relations  between Nanhku and Baijnath became friendly.  If that be so, it  was natural  that  Nankhu would stay in the  house  whenever  be visited Patna in 1941 and thereafter. The Municipal Survey Khasra (Ex. 2), dated December 19, 1933 mentions Nanhku along with Sonadhari and Baijnath as  owners of the house.  Since this entry was made after Baijnath  had made  a  hostile claim to the entire house  in  the  written statement  filed  in suit No. 33 of 1933  on  September  16, 1933,  the  entry  must presumably have  been  made  at  the instance  of  Nanhku.  Such an act on his Part  would  be  a clear assertion of his title in the house.  Under the  Bihar and  Orissa  Municipal Survey Act, 1 of  1920,  before  such khasra  was finalised it had to be published and  objections to  it,  if  any, had to be invited  and  disposed  of.   No objection  was ever raised by Baijnath to the  said  khasra. It  is surprising that Baijnath did not resist the entry  in the khasra although he had made a claim to the whole of  the

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property  only three months before the date of  the  khasra. That  indicates  that his claim *as  merely  a  counterblast against Nanhku’s suit. The  view of the Division Bench that the occasional  putting up  by Nanhku and his wife in the disputed house was  merely casual  and  was. in the nature of visits as guests  of  the respondents 198      cannot  be  accepted.  Such stay,  however  occasional, would.  not  be  casual as it was  accompanied  by  an  open assertion  of his title as evidenced by the khasra (Ex.  2). It  could  not also be that he stayed in the  house  as  the guest of the respondents because after he filed the suit  in 1933  and until it was settled, his relations with  Baijnath could  not  have been friendly.  These acts on the  part  of Nanhku Were ample enough to interrupt the continuity and the exclusiveness of possession by Baijnath. The Division Bench also relied on a sale deed (Ex.  C) dated October  12,  1933, executed by Baijnath and  Tarkeshwar  in favour  of one Kamalnain Pandey.  The High Court appears  to have taken  the  view that, the land  sold  under  Ex.   C appertained to for was part of the land on which Amar  Singh had  put up the disputed house, and that  although  Baijnath and  Tarkeshwar  sold part of that land,  no  objection  was taken at any time to such a sale by Nanhku.  The recitals in Ex.   C show that the land, sold under Ex.  C.  was  jointly purchased  on  January  20, 1898 by.   Amar  Singh  and  one Gajadhar  Singh for construction of a house  thereon.   Amar Singh had a share in the said land to the extent of I  katha 15  dhurs while his c0-purchaser had a share of 2 kathas  15 dhurs.  The recitals further show that Amar Singh’s original intention  in  purchasing  the land was  to  build  a  house thereon.  He appears to have given up that idea as till this sale took place the land was lying waste and unutilised.  It is  important  to  note that this sale was for  I  katha  10 dhurs,  out of 1 katha 15 dhurs which was the share of  Amar Singh.   This land obviously could not be the land on  which the  house  in  dispute  was built, for,  if  that  was  so, Baijnath  could not have ,sold away I katha 10 dhurs out  of the total extent of  katha 15 dhurs to which Amar Singh  was entitled.   The house could not have stood on 5 dhurs  only. Therefore,  the land sold under Ex. C was a  land  different from the one on which the disputed house was situate.   This conclusion is also borne out by the description of the  sold land  in the schedule to Ex.  C where its northern  boundary is described as follows:        "North  : Parti (waste) land thereafter the house  of us, the executants." This  description shows that between the disputed house  and the land sold under Ex.  C there was to the north of it some waste  .land.   The land sold under Ex.  C  being  different land,  the High Court was not right in relying on that  sale deed  to  prove adverse possession on the ground  at  Nanhku never  took  objection to the said sale.  He could  not,  as this  land  had  nothing to do with the  house  in  dispute. Besides  the  evidence  discussed  above,  there  was  other evidence.    But  the  incidents  therein   described   were irrelevant  on  the question of adverse possession  as  they took 199 place  in 1948 and thereafter, that is to say, a  long  time after title by adverse possession would have been  completed if   such  adverse  possession  were  to  be   accepted   as established.   In view of the evidence discussed  above  the Division  Beach  was not justified in interfering  with  the

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finding  of fact concurrently given by the Trial  Court  and the  learned  Single Judge that the adverse,  possession  by Baijnath   which  commenced  from  1933   was   sufficiently interrupted by acts of possession by Nanhku, and  therefore, his title was not extinguished by adverse possession. In  the view we take on both the questions, the appeal  must be allowed and the judgment and decree of the Division Bench must be set aside and the judgment and decree passed by  the Trial  Court and upheld by the learned Single Judge must  be restored.   The  respondents will pay to the  appellant  his costs all throughout. G.C.                                Appeal allowed. 200