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PETITIONER: SMT. CHANDRAKANTABEN ETC.

       Vs.

RESPONDENT: VADILAL BAPALAL MODI & OTHERS.

DATE OF JUDGMENT30/03/1989

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) KANIA, M.H.

CITATION:  1989 AIR 1269            1989 SCR  (2) 232  1989 SCC  (2) 630        JT 1989 (4)   115  1989 SCALE  (1)802

ACT: Indian Evidence Act, 1872. Sections 34, 61 and 114.     Books  of account--Entries--Proof of--Nobody  supporting correctness of entries----Account books liable to be reject- ed.     Title--Proof-   Presumption   on   basis   of    revenue entry--When arises.     Limitation     Act,    1963.     Article     65--Adverse possession--Proof-Actual physical possession by claimant not necessary--Fact  that property was in possession of  tenants would be of no consequence.     Indian  Contract Act, 1872. Sections 182 and  188--Joint possession-Claim  by agent--Agent actually  collecting  rent from tenants-Cannot claim joint possession of property.

HEADNOTE:     Respondent  No. 1 in the appeals instituted a  suit  for partition against his younger brothers and sisters, and  the heirs of his deceased brothers. The plaintiff was the eldest among  the brothers and sisters. The 1st and 2nd  Defendants were his brothers, the 3rd Defendant his sister, the 4th and 5th Defendants, the widow and son respectively of the  third brother.  Defendant 6 was the widow of the  fourth  brother, and  Defendants 7 to 12 were his children,  while  Defendant No.  14 was the wife of Defendant No. 1, and Defendants  13, 15, 16 and 17 were their children.     The  subject matter of the appeals related only  to  one item  of property known as "Naroda Chawl" measuring 7  acres and  2 gunthas of land, where 115 rooms and huts stood  con- structed,  out of which 114 rooms had been let out  to  ten- ants, and one room was retained for the caretaker.     According to Defendants No. 6 to 12 this property exclu- sively  belonged  to defendant No. 6 and was not  liable  to partition. The other defendants however supported the plain- tiff’s case that it belonged to the 233 joint family and was liable to partition.     Defendants 6 to 12 pleaded that the plaintiff’s  father- Bapalal  orally gifted this property to his  daughter-in-law Defendant  No. 6 in March 1946 and made a  statement  before the Revenue authorities on . the basis of which her name was

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mutated and she was put in possession thereof, that although she  came in peaceful possession, the management  which  in- cluded realisation of rent was in the hands of Defendant No. 1,  that  as some dispute arose in 1952 she  assumed  direct charge of the chawl and had remained in possession  thereaf- ter, and that she had acquired good title therein by adverse possession before the suit was filed in 1960.     The City Civil Judge who tried the suit, held that there was  a joint Hindu family and a business was carried on  for the  benefit  of  the family and the  income  therefrom  was thrown into the common pool and all the properties including the disputed chawl were treated as belonging to the  family. As the case of Defendant No. 6 about the gift, the  mutation of her name, and her exclusive possession from 1946 till the date of the suit was found correct, it was held that she had acquired  title  by  adverse possession, and  the  suit  was dismissed with respect to the disputed chawl.      The  plaintiff appealed to the High Court. Some of  the defendants also filed appeals in respect of the other  items of property. All these appeals were heard and disposed of by a common judgment.      The High Court reversed the finding of adverse  posses- sion  in regard to the disputed chawl and granted  a  decree for  partition.  It held that Defendant No.  6  remained  in exclusive  possession of the property only since  1952,  the period was thus short of the time required for  prescription of title. It further held that since the rents of the  chawl from 1952 were collected by her husband and after his  death by  her  son  (Defendant No. 7), she was  liable  to  render accounts  till the death of her husband, and she along  with Defendant  No.  7  would be jointly liable  for  the  period thereafter.      Separate Appeals were preferred by Defendant Nos. 6 and 7 to this Court.      Allowing the Appeals, setting aside the decision of the High Court and restoring that of the Trial Court. 234     HELD:  1.  The principle that  revenue  entry  furnishes presumptive evidence of title is inapplicable in the instant case.  It cannot be denied that title to Naroda Chawl  could not  have passed to Defendant No. 6 by virtue of  the  entry Ext. 247. The value of the chawl even in 1946 was large  and no  registered instrument of transfer was executed.  Besides Ext.  247  describes the plaintiff’s  father  (Bapalal)  and Defendant  No. 6 (Chandrakanta) as Kabjedar, that  is  occu- pant.  In such circumstances, the presumption which  can  be raised in favour of Defendant No. 6 from this entry is  with respect of her possession and possession only. [238F-G]     Gangabai and others v. Fakirgowda Somaypagowda Desai and others,  AIR  1930  Privy Council 93;  and  Desai  Navinkant Kesarlal  v.  Prabhat Kabhai, 9 Gujarat  Law  Reporter  694, referred to.     2.  The account books have to be rejected as  not  reli- able. It is apparent from the evidence that nobody takes the responsibility of supporting the correctness of the  entries therein.  Many of the documents produced by Defendant No.  1 were  accepted,  but the account books which  were  S.  Nos. 123-75  to  123-97  of Ext. 123 were in  express  terms  not admitted.  The  plaintiff  filed  his  objection--Ext.  172. Defendant  No.  6 also filed her  objection--Ext.  275.  The books  were admitted in evidence and marked as  exhibits  on the statement of the plaintiff which he made in cross-exami- nation.  The plaintiff by saying that he had written as  per the  instructions of Defendant No. 1 made it clear  that  he Could  not  vouchsafe for its reliability. Defendant  No.  1

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could  not summon courage to support them either  personally or  through any witness. No reason has been suggested as  to why  he  did not produce other important  documents  in  his possession which could have supported the account books  and the  joint  case of the parties  resisting  the  appellant’s claim. [243B-E]     3.  Defendant  No. 1 cannot be treated to  be  in  joint possession as he was actually collecting the rents from  the tenants. it is well settled that the possession of the agent is the possession of the principal and in view of the  fidu- ciary  relationship, Defendant No. 1 cannot be permitted  to claim his own possession. [247D-E]     David  Lyeii v. John Lawson Kennedy, [1889] XIV  H.L.(E) 437; Williams v. Pott, L.R. XII Equity Cases 149 and  Secre- tary  of  State for India v. Krishnamoni  Gupta,  29  Indian Appeals 104, referred to. 4(a).  It  is the intention to claim exclusive  title  which makes 235 possession  adverse and this animus possidendi must be  evi- denced  and  effectuated by the manner  of  occupancy  which again depends upon the nature of the property. The manner of possession  depends  upon the kind of possession  which  the particular  property is susceptible. That possession to  the extent  to  which  it is capable of  demonstration  must  be hostile  and exclusive and will cover only to the extent  of the owner’s possession. [246E-F]         (b). The title to the chawl as owner, subject to the tenancy  was an interest in immovable property so as  to  be covered  by Article 144 of the Indian Limitation Act,  1908, which   specifically  mentioned,  "..  .  or  any   interest therein". [246E]     In the instant case, the parties have been fighting  for the  rent from the chawl so long as it continued in  posses- sion  of the tenants. Before the gift of 1946 the  Defendant No. 1 was collecting the rent and he continued to do so even thereafter  till  1952. The appellant has,  however,  estab- lished her case that the Defendant No. 1 acted as her  agent after 1946 and when he repudiated this agency in 1952 he was effectively removed from the management of the chawl.  Since 1946  the tenants attorned to the Defendant No. 6  and  paid rent to her under printed receipts announcing her ownership, but  of  course through her agent the Defendant No.  1.  The fact  that the tenants have been in actual physical  posses- sion of the chawl is, in the circumstances, of no assistance to  the respondents. What is material is that they paid  the rent to the Defendant No. 6. Defendant No. 6 was in  adverse possession  from the period 1946 to 1952 through  her  agent Defendant  No. 1 and thereafter through her husband and  son Defendant No. 7 till 1960 when the suit was filed, the total period being more than 12 years. [246G-H; 248G]      Uppalapati Veera Venkata Satyanarayanaraju and  another v.  Josyula  Hanumayamma and another, [1963] 3 SCR  910  and Hari  Prasad Agarwalla and another v. Abdul Haw and  others, A.I.R. 1951 Patna 160, referred to.

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 410 and 520(N) of 1973.      From the Judgment and Decree dated 21/22/23.11.1972  of the  Gujarat High Court in First Appeal Nos. 454 and 455  of 1970.      B.K. Mehta, D.N. Misra, J.B. Dadachanji & Co. and  N.J.

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Modi, for the Appellants. 236     S.K.  Dholakia,  P.H. Parekh, J.H.  Parekh,  Ms.  Sunita Sharma,  Krishan Kumar, Vimal Dave and H.J. Javeri, for  the Respondents. The Judgment of the Court was delivered by     SHARMA, J. These appeals are directed against the  deci- sion of the Gujarat High Court in an appeal arising out of a suit  for  partition  instituted by the  respondent  No.  1, Vadilal Bapalal Modi (since deceased).     2.  The father of the plaintiff Vadilal was Bapalal  who had  5 sons--the plaintiff, Ramanlal,  Gulabchand,  Kantilal and  Jayantilal; and a daughter--Champaben.  Gulabchand  was impleaded  as  the first defendant in the suit  and  on  his death his heirs and legal representatives have been  substi- tuted.  Kantilal  and Champaben are defendants No. 2  and  3 respectively. Ramanlal predeceased Bapalal and his wife  and son are defendants No. 4 and 5. Jayantilal also died earlier and  his wife Smt. Chandrakantaben, defendant No. 6  is  the appellant  in Civil Appeal No. 418 of 1973.  Their  children are defendants No. 7 to 12. CiviI Appeal No. 520 of 1973 has been preferred by the 7th defendant, Narendra.     3. The suit by VadilaI was instituted in 1960,  claiming share  in the considerably large properties detailed in  the Schedule  to  the plaint, but the present  appeals  are  not related  to any other item excepting the property  described as  a chawl admeasuring 7 acres and 2 gunthas of  land  with 115  rooms  and  huts, situated in the  Naroda  locality  in Ahmedabad  under  Lot  No. 8 of the plaint  which  has  been referred to by the counsel for the parties before us as  the chawl  or  the Naroda chawl. According to the  case  of  the defendants No. 6 to 12, this property exclusively belongs to defendant  No. 6 and is not liable to partition.  The  other defendants contested the claim of the plaintiff with respect to  some other items, but so far the disputed chawl is  con- cerned, they supported the plaintiffs’ case that it belonged to the joint family and is liable to partition.     4. The land of Lot No. 8 was acquired by Bapalal in 1932 for a sum of Rs.9,450 and the rooms were constructed thereon in  about 1934. It has been held by the High Court, and  the finding  has  not been challenged before  us,  that  Bapalal acquired  the property and built the chawl with the  aid  of ancestral joint funds, and the property, therefore, belonged to the family. According to the case of the defendants 237 No.  6  to  12, Bapalal orally gifted the  property  to  his daughter-in-law  Chandrakanta the 6th defendant,  in  March, 1946 and made a statement before the Revenue authorities  on the basis of which her name was mutated, and she was put  in possession thereof. Admittedly 114 rooms in the Naroda chawl had  been let out to tenants, and one room was retained  for the  caretaker. According to Chandrakanta’s  case,  although she  came in peaceful possession, the management  which  in- cluded  realisation of rent was in the hands  of  Gulabchand (defendant  No.  1). It appears that in  1952  some  dispute arose  and Chandrakanta assumed direct charge of the  Naroda chawl  and has remained in possession thereafter.  Thus  she has been in exclusive possession of the disputed chawl since 1946, and acquired good title therein by adverse  possession before the suit was filed in 1960.     5.  The learned Judge, City Civil Court, Ahmedabad,  who tried the suit, held that BapalaI and his sons constituted a joint  Hindu family and the business carried on  by  Bapalal was  for the benefit of the family and the income  from  the business  was thrown in the common pool and all the  proper-

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ties including the disputed chawl were treated as  belonging to the family. Proceeding further it has been found that the case of the defendant No. 6 about the gift, the mutation  of her  name, and her exclusive possession from 1946  till  the date  of the suit was correct. She was accordingly  held  to have  acquired  a  title by adverse  possession.  The  suit, therefore, was dismissed with respect to the disputed chawl. For the purpose of the present appeal it is not essential to mention  the  findings of the trial court  relating  to  the other  items  of the suit property. The  plaintiff  appealed before  the Gujarat High Court. Some of the defendants  also filed two separate appeals against the judgment of the trial court dealing with other items of property with which we are not  concerned. The appeals were heard and disposed  of  to- gether by a common judgment in November 1972. The High Court reversed the finding of adverse possession in regard to  the disputed  chawl and granted a decree for partition.  It  was held that the defendant No. 6 remained in exclusive  posses- sion of the property only since 1952 and the period was thus short of the time required for prescription of title.  Deal- ing  with  the relief for rendition of accounts,  the  Court held  that since the rents of the chawl from 1952 were  col- lected  by Jayantilal, Chandrakanta’s husband and after  his death  by her son Narendra (defendant No.  7),  Chandrakanta was liable to render accounts till the death of her  husband and  she along with defendant No. 7 would be jointly  liable for the period thereafter. The present appeals are  directed against this judgment. 238     5.  According  to the case of the defendant no.  6,  her husband, Jayantilal, used to indulge in speculative business and  he was, therefore, not considered a dependable  person. To  ensure economic stability of Chandrakanta and her  chil- dren,  her father-in-law, Bapalal decided to make a gift  of the  Naroda  chawl  to her. Both  Bapalal  and  Chandrakanta appeared  before the Talati of Naroda on 5.3.1946  and  made statements.  The original statement of Bapalal  recorded  by the Talati and signed by Bapalal was produced and marked  as Ext.  268 in the trial court and similarly the statement  of Chandrakanta  as  Ext. 269. Bapalal has stated in  Ext.  268 that Chandrakanta had loyally served him and, therefore,  he was  making the gift. A prayer was made for substitution  of her  name in the revenue records. A similar prayer was  made by  the  lady in Ext. 269. The extract from  the  Record  of Rights is Ext. 247 which mentions Bapalal as the occupant of the Naroda chawl. The entry was made in May 1933. This entry appears  to  have been placed within brackets and  a  second entry  inserted mentioning Chandrakanta ’wife of  Jayantilal Bapalal’. Mr. B.K. Mehta, the learned counsel for the appel- lant has strongly relied upon the revenue entry as proof  of her  title. Reference was made to the decision  in  Gangabai and  others  v. Fakirgowda Somaypagowda  Desai  and  others, A.I.R.  1930 Privy Council 93; and Desai Navinkant  Kesarlal v. Prabhat Kabhai, 9 Gujarat Law Reporter 694. It was point- ed out by the learned counsel that in the Privy Council case also  the revenue records, which were  under  consideration, were  prepared under the Bombay Land Revenue Code,  that  is the  same Code under which Ext. 247 was prepared and it  was observed  in the judgment that the revenue  entry  furnished presumptive  evidence of title. The Gujarat case also  indi- cated  that a presumption as to the rights in the  concerned property  arose in favour of the person whose name  was  en- tered. We are not very much impressed by this part of  argu- ment  of  the learned counsel as it cannot  be  denied  that title to Naroda chawl could not have passed to the defendant

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no.  6  by virtue of the entry Ext. 247. The  value  of  the chawl even in 1946 was large and no registered instrument of transfer  was executed. Besides Ext. 247  describes  Bapalal and thereafter Chandrakanta as Kabjedar, that is,  occupant. In  these circumstances the presumption which can be  raised in favour of Chandrakanta from this entry is with respect to her possession and possession only.     7. There is a serious dispute between the parties as  to the  actual  physical  possession of the  chawl  during  the period  1946 to 1952 and we will have to consider  the  evi- dence  on  this  aspect in some detail. In  1952  there  was direct confrontation between Chandrakanta and the  defendant no. 1, Gulabchand. On 14.4.1952 a public notice was 239 published  in  a local daily named ’Sandesh’ vide  Ext.  254 wherein  Gulabchand informed and called upon the tenants  in the  chawl  to  pay the rent to him within  3  days  against receipts  to be issued, failing which legal steps  would  be taken  against them. On the very next day ’Sandesh’  carried another  public notice Ext. 255 issued by  Chandrakanta  as- serting  her title and exclusive possession and  repudiating the claim of Gulabchand. The tenants were warned that Gulab- chand  or  any other person on his behalf had  no  right  or authority  to dispute her claim. On the same day,  i.e.,  on 15.4.1952 another public notice  was published in  ’Sandesh’ at  the  instance of Gulabchand reiterating  his  claim  and asserting  that his father Bapalal (who was then alive)  was the  owner. It appears that no further action was  taken  by any  of the parties. The evidence on the record  shows  that Bapalal  had withdrawn himself from wordly affairs  and  was staying  in  Vrindavan  near Mathura. The  evidence  led  by Chandrakanta  of her exclusive possession from 1952  through her  husband and son till the date of the suit was  accepted as  reliable  by the High Court. Thus  there  is  concurrent finding of both the two courts below accepting her exclusive possession  from 1952 onwards. The learned counsel  for  the plaintiff  has, therefore, rightly not challenged before  us this finding which we are independently also satisfied is  a correct one.      8.  The actual position of the chawl from 1946 to  1952 becomes crucial, as Chandrakanta is bound to fail if she  is not  successful in proving her adverse possession  for  this period.  As has been stated earlier, the suit was  filed  in 1960  and her possession since 1952 cannot be  treated  long enough for a prescriptive title to accrue. The parties have, therefore, taken great pains to prove before us their  rival cases as to the possession of the chawl from 1946 to 1952.      9.  The  defendant no. 1 was  admittedly  managing  the properties  belonging  to the family. Out of  115  rooms  in Naroda  chawl only 114 were let out to tenants and one  room was retained in which, according to the case of  Chandrakan- ta, a caretaker known as Gangia Pathan, engaged by  Bapalal, was staying. After collecting the rent from the tenants  the Pathan  used to hand over the money to the defendant no.  1. After  the  gift, it was decided that the  same  arrangement would continue but the defendant no. 1 would be managing the property  on  her behalf and after receipt of  the  rent  he would deliver the same to her. She claims that this arrange- ment  was acted upon. Admittedly the total  rent  collection from  the  chawl was not large and after deducting  the  ex- penses  including the maintenance and repair costs  and  the salary  of the Jamadar (caretaker) the money left was not  a considerable sum. 240 According  to the evidence of Chandrakanta the  Pathan  left

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the  service and his whereabouts are not known  and  another Jamadar  with  the  name of Maganji came in  his  place.  He looked after the chawl till 1950. Thereafter he was  substi- tuted by Nathu Singh. Maganji’s present whereabouts are also not  known.  In 1952 Gulabchand made a claim  to  the  chawl repudiating the ownership of Chandrakanta and he was, there- fore, removed.     10.  The appellant has relied on a large number of  rent receipts  filed  by her and her learned counsel  laid  great stress  on five of them which have been marked as Exts.  240 to  243 and 250 issued in December 1947, January 1948,  June 1948  April 1949 and July 1947 respectively. It is  signifi- cant  to note that the defendant no. 1 was in charge of  the collection  of the rent upto 1952 according to the  case  of all  the  parties. The parties contesting the claim  of  the appellant  contend  that he was so doing on  behalf  of  the entire  family and not on behalf of Chandrakanta as  claimed by  her.  The defendant no. 1, however, did  not  choose  to enter the witness box nor did he produce any document  which could  have  supported his case. The  counter-foil  receipts were  in his possession and neither they were filed  by  the defendant  no.  1  nor the plaintiff called  for  the  same. Defendant   no.   6  was  able  to  examine   two   of   the tenants--Vajesingh (D.W. 1) and Nathaji (D.W. 2). They filed a large number of receipts issued to them evidencing payment of rent. The list of documents filed by them are printed  on pages  394 to 395 of the paper book and have been marked  as Exts. 237 and 239. 12 receipts in the list Ext. 237 are  for the period 1.6.1946 to 30.5.1949 and 7 of the list Ext.  239 are  from  1.1.1947 to 30.9.1949. They support the  case  of Chandrakanta  inasmuch as on the top of these  receipts  are printed the following words: "    CHAWL OF BAI CHANDRAKANTA THE WIFE OF  MODI  JAYANTILAL BAPALAL" Out  of them the receipts Exts. 240 to 243  were  admittedly issued  when the defendant no. 1 was incharge of  collection of  rent and it is not denied that they were issued  at  his instance  during the crucial period. The other receipt  Ext. 250 was issued for the period 1.6.1947 to 1.7.1947 under the signature  of the plaintiff Vadilal and this also  similarly carried  the description of the chawl as belonging to  Chan- drakanta. No explanation is forthcoming on behalf of  either the  defendant  no. 1 or the plaintiff as to how  they  were issuing receipts of the above description. 241     11. From the evidence it appears that although defendant no.  1 was in-charge of the management of the  chawl  during 1946  to  1952, the actual collection  from  the  individual tenants  was made by the Jamadar (caretaker)  who  generally signed the receipts and handed over the collected amount  to the  defendant no. 1. The tenant Nathaji (D.W. 2)  has  said that  Maganji Jamadar used to prepare the receipts.  It  has been  argued before us on behalf of the plaintiff  that  the receipts  were filed after the examination of the  plaintiff was over and so he could not explain the same, specially the one receipt issued under his signature. It is significant to note  that the cases of the plaintiff, the defendant  no.  1 and  the other defendants excepting defendants 6 to  12  are common so far the Naroda chawl was concerned and the turn of these  defendants leading evidence at the trial of the  suit came  later.  The  evidence of Chandrakanta  was  closed  on 29.9.1964  and  the witnesses for the defendant no.  1  were examined  on 20.10.1964. Besides, the plaintiff  could  have re-examined himself if he had any explanation to offer.  The cross-examination  of  D.W. 2 on his behalf  also  indicates

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that no suggestion to the witness by way of explanation  was made.  In  his evidence plaintiff stated that  he  was  also collecting  the rent from the different tenants in chawl  at the instance of defendant no. 1 and he used to hand over the collections  to  him. He admitted the fact that  there  were counter-foils  which ramained with the defendant no. 1.  The High  Court while examining this aspect accepted and  relied on Ext. 250 signed by the plaintiff, but failed to  appreci- ate the significance of the description of the Naroda  chawl on  the  receipt  as the property of the  defendant  no.  6. Similar  is the position of the defendant no. 1 who did  not come  to the witness box at all. Chandrakanta examined  her- self  as D.W. 3 and supported her case. Although  there  are some  minor  discrepancies in her deposition,  the  same  is consistent  with the documents and the circumstances in  the case and appears to be reliable.     12. While reversing the finding of the trial court  that Chandrakanta  was in exclusive possession of the  chawl  not only from 1952 onwards but even earlier since 1946, the High Court  was mainly impressed by three items of the  evidence, namely,  i)certain account books claimed to be the books  at the joint family, ii) several IncomeTax returns filed by the defendant no. 1, and iii) a document of agreement, Ext. 167. So far the Income-Tax papers are concerned, they are of  the period  after  1952 and it has already been  stated  earlier that  the  High Court has agreed with the trial  court  that since 1952 the defendant no. 6 was in adverse possession  of the  chawl.  In view of this finding, with  which  we  fully agree, the Income-Tax documents do not 242 have  any  impact, except showing that the author  of  these returns  was falsely including income therein which did  not accrue to the family. So far the account books and the  deed of agreement are concerned, it will be necessary or appreci- ating their true nature and impact on this case, to consider some more facts.     13. The account books were produced by the defendant no. 1 within a list of documents, Ext. 123. The defendant no. 1, however, did not lead any evidence with respect to the  same when  his turn at the trial came. As mentioned  earlier,  he personally  avoided the witness box, but examined some  wit- nesses  who  did not attempt either to prove  the  books  or speak  about their authenticity. The books were admitted  in evidence  and  marked as exhibits on the  statement  of  the plaintiff  which he made in cross-examination. Some  of  the books  were shown to him and he admitted that they  were  in his hand writing, but immediately added; "I  have written them as per the instructions  of  defendant No. 1 and as directed by him. They are maintained from month to month." The  income from the Naroda chawl which was admittedly  very small  as compared to the vastness and the present value  of the  property, was included in the account books.  According to  the case of the respondent the books are authentic,  and disclosed the true state of affairs. There was  considerable discussion  at the bar before us as well as before the  High Court as is apparent from the judgment under appeal,  relat- ing  to  the  law of evidence dealing  with  account  books. Reliance  was placed on Sec. 34 of the Indian  Evidence  Act which  provides that entries in books of  account  regularly kept  in the course of business are relevant  whenever  they refer  to a matter into which the Court has to  enquire.  It has  been contended on behalf of the respondents that  since the  plaintiff stated that the books were  being  maintained from  month to month the requirement of law  was  satisfied.

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Mr. Mehta, the learned counsel for the appellant argued that apart  from the formal proof of the execution of  the  docu- ment,  the  party relying thereon was under a duty  to  lead evidence in support of the correctness of the entries in the books  which  is completely lacking here.  Besides,  it  was pointed out that the relevant books are merely joint  khata- bahis  of  Samvat 2005 to 2006 equivalent to  1948  to  1949 without the support of primary evidence of the cash  books., ,The  other relevant documents which are admittedly in  pos- session  of  the  defendant no. 1 have  not  been  produced, including  the account books of other years during the  cru- cial 243 period, the Income-tax returns and assessment orders for the period 1946 to 1952 and the counter-foil rent receipts.     14.  It is apparent from the evidence that nobody  takes the  responsibility  of supporting the  correctness  of  the entries  in  the account books. When they were  produced  in Court the plaintiff filed his objection as per his  purshis, Ext. 172 (page 368 of the paper book). Many of the documents produced  by  the  defendant no. 1 were  accepted,  but  the account books which were serial nos. 123-75 to 123-97 of the list Ext. 123 were in express terms not admitted. The plain- tiff  said that they might be exhibited, but subject to  his objection.  The defendant no. 6 also filed her objection  as per  the  purshis Ext. 275. The plaintiff did not  make  any statement  supporting the books in his examination in  chief and  only  in reply to the question of  the  cross-examining lawyer of the defendant no. 1, he stated as mentioned earli- er.  It  is significant to note that by saying that  he  had written  as per the instructions of the defendant no.  1  he made  it clear that he could not vouchsafe for  their  reli- ability.  In  spite of this situation, the defendant  no.  1 could  not sommon courage to support them either  personally or through any witness. No reason has been suggested at  all on his behalf as to why he did not produce the other  impor- tant documents in his possession which would have  supported the account books and the joint case of the parties  resist- ing  the  appellants’ claim. In view of  all  these  circum- stances we have no hesitation in rejecting the account books as not reliable.     15.  So  far Ext. 167 is concerned, the High  Court  has relied  upon it as the Naroda chawl has been treated by  the document  as belonging to the joint family. It was  executed on  24.10.1954 by the plaintiff and his three  brothers  but not by Jayantilal, the husband of defendant no. 6,  although he is also shown as a party thereto. The brothers appear  to have  settled their dispute with respect to different  items of  property and the disputed Naroda chawl is shown  as  the seventh  item in the list of properties. Although  the  four brothers personally signed the document, so far Jayantilal’s branch  was concerned the signature of  Narendra,  defendant no.  7, who was a minor then, was taken. Reliance  has  been placed  on  the attestation of Bapalal, the  father  of  the executants.  Two days earlier, i.e., on 22.10.1954,  he  had executed a release deed, Ext. 222 giving up his right in the family  properties for a sum of money named therein. He  was already staying in Vrindavan for sometime past and  proposed to  spend  the  rest of his life there.  The  release  deed, however,  did  not contain any list of  properties  and  the document, therefore, is not of any help to either side.  SOl far the 244 agreement  Ext. 167 is concerned, it has not been stated  by anybody  that  Bapalal  went through its  contents  or  that

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somebody  read the same to him before he attested it.  There is  no presumption that an attesting witness of  a  document must be assumed to be aware of its contents. What is signif- icant,  however,  is that it was executed in 1954  when  the defendant  no. 6 was in adverse possession to the  exclusion of the defendant no. 1 and the other members of the  family, and  Jayantilal did not join the document and  his  brothers chose  to get the signature of his minor son. This  is  con- sistent  with their dishonest attempt to include the  income from the chawl in the Income-Tax returns of the period after 1952, when the defendant no. 6 undoubtedly was in  exclusive possession. As has been stated earlier, in 1952 there was  a direct  confrontation between them on the one hand  and  the defendant  no.  6  on the other, when  public  notices  were published  in ’Sandesh’. If their case about  their  earlier possession  had  been true they would  have  produced  their Income-Tax returns and the assessment orders of that period, i.e. 1946 to 1952. The family was possessed of vast  proper- ties  and  was paying Income-Tax. The  entire  circumstances lead to the irresistible conclusion that after the defendant no. 1 was removed by the defendant no. 6 from the management of the disputed Naroda chawl he and the other members of the family  started creating evidence in support of their  false claim. We do not in the circumstances place any reliance  on this deed of agreement.     16.  So far the oral evidence in the case is  concerned, the  plaintiff, Vadilal examined himself as a  witness,  but was  not  supported by any other member of the  family,  al- though  his brothers, Gulabchand and Kantilal, defendants  1 and  2 respectively, were alive when the case was  heard  in the  trial court. Even his nephew, Rajnikant, defendant  no. 5,  son of deceased Ramanlal did not prefer to come  to  the witness box. The husband of the defendant no. 6,  Jayantilal had died in 1956, i.e., about 3-4 years before the  institu- tion  of the suit. Chandrakanta examined herself in  support of  her case and was cross-examined at considerable  length. Her  son,  Narendra defendant no. 7, who was minor  in  1954 when Ext. 167 was executed, was also examined as a  witness. After the death of his father, Jayantilal in 1956, he start- ed  collecting the rent of the chawl, and as stated  earlier both  the  courts have concurrently held in  favour  of  the exclusive  possession of the defendant no. 6 from  1952  on- wards. The plaintiff, however, claimed that the chawl was in the  possession of the family even later than 1952. We  have been taken through his evidence and the evidence of Chandra- kanta in extenso by the learned counsel for the parties, who made long comments thereon during their arguments. Both  the judg- 245 ments  of the trial court and the High Court have  discussed the  evidence at length and we do not consider it  necessary to  once  more deal with them in detail. We agree  with  the reasons given by the trial court for accepting the case  and the evidence of the defendant no. 6 and rejecting the plain- tiff’s  oral evidence and the case of the  respondents.  The plaintiff  contradicted  himself  so  seriously  during  his examination that at one stage he had to expressly admit that several  of the statements made in his examination in  chief were ’false’ (see paragraph 25). It was demonstrated by  the further cross-examination that he had made many more  incor- rect statements. On the other hand, Chandrakanta’s  evidence is  far superior. Although she also made  some  inconsistent statements,  but  the discrepancies did not  relate  to  any matter  of vital importance. Her evidence  substantially  is reliable and is supported by important circumstances of  (i)

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the mutation of her name in place of Bapalal on the basis of a statement of the latter; (ii) the description of the chawl as  belonging to her on the printed rent receipts  given  to the  tenants out of which some were issued by the  defendant no. 1 and the plaintiff, and (iii) the suppression of  vital materials  in possession of the defendant no. 1  which  were withheld  from the Court. The conduct of the parties in  not filing  the  suit before 1960 is also  consistent  with  the correctness of her case. When the defendant no. 1 was effec- tively  removed from the management of the property  by  the defendant  no. 6 in 1952, Bapalal was alive.  The  defendant no. 1 as also the other members of the family contesting her claim  kept  quiet and did not risk  starting  a  litigation during his life time. Even in 1960 it was the plaintiff  and not  the defendant no. 1 who instituted the present suit  in which  he  included  the Naroda chawl  in  the  schedule  of properties to be partitioned. The defendant no. 1 was manag- ing the affairs of the family, but did not take any steps to dislodge  the defendant no. 6 from the chawl.  The  impugned judgment  indicates  that  there  were  serious  differences between the plaintiff and the defendant no. 1 on other items of  property and the main reason for the plaintiff  to  file the  suit  does  not appear to be his claim  to  the  Naroda chawl.  We  do not consider it necessary  to  reiterate  the other  reasons given in the trial court judgment in  support of  the decision in favour of the appellant, with  which  we agree. We, therefore, hold that the defendant no. 6 remained in exclusive adverse possession of the disputed Naroda chawl right from 1946 onwards till the suit was filed in 1960.     17. Mr. Dholakia, the learned counsel for the contesting respondents  contended that since the chawl has remained  in actual possession of the tenants, Bapalal or the family must be held to be in symbolic 246 possession  in 1946 and for that reason the defendant no.  6 also can not be treated to have come in actual possession of the property, which could have permitted her to prescribe  a title in the chawl. The learned counsel further argued  that since  the defendant no. 1 and the plaintiff  were  actually collecting  rent from the tenants they also must be held  to be  in joint possession and, therefore, the defendant-no.  6 can  not  succeed as she has not been able  to  prove  their ouster.  The other members of the joint family will also  be entitled to rely on this aspect so as to successfully defend their  right.  Reliance was placed on the  decision  of  the Patna  High  Court in Hari Prasad Agarwalla and  another  v. Abdul  Haq and others, A.I.R. 1951 Patna 160; in support  of the  argument  that for adverse possession  actual  physical possession is necessary and mere constructive possession  is not sufficient. We are afraid, it is not possible to  accept the argument.     18. The subject matter of dispute in the present case is the title to the chawl as the owner-landlord subject to  the tenancy of the tenants in possession. Neither the plaintiffs nor the defendants are claiming the actual physical  posses- sion of the chawl by eviction of the tenants. Any  reference to  the actual physical possession of the tenant is,  there- fore,  wholly  irrelevant  for the purpose  of  the  present controversy.  It has to be remembered that the title to  the chawl  as owner, subject to the tenancy was an  interest  in immovable property so as to be covered by Article 144 of the Indian    Limitation   Act,   1908,    which    specifically mentioned,"   ....   or any interest therein".  These  words were retained in Article 65 of the new Limitation Act. It is true that it is the intention to claim exclusive title which

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makes possession adverse and this animus possidendi must  be evidenced  and effectuated by the manner of occupancy  which again depends upon the nature of the property. The manner of possession  depends  upon the kind of possession  which  the particular  property is susceptible. That possession to  the extent  to  which  it is capable of  demonstration  must  be hostile  and exclusive and will cover only to the extent  of the owner’s possession. In the present case the parties have been  fighting  for the rent from the chawl so  long  as  it continues  in possession of the tenants. Before the gift  of 1946  the  defendant no. 1 was collecting the  rent  and  he continued to do so even thereafter till 1952. The  appellant has, however, established her case that the defendant no.  1 acted  as her agent after 1946 and when he  repudiated  this agency  in 1952 he was effectively removed from the  manage- ment  of the chawl. Since 1946 the tenants attorned  to  the defendant no. 6 and paid rent to her under printed  receipts announcing  her ownership, but of course through  her  agent the  defendant no. 1. The actual physical possession of  the tenants in 247 the  circumstances would enable the appellant  to  establish her  prescriptive  title. The decision in  Uppalapati  Veera Venkata Satyanarayanaraju and another v. Josyula Hanumayamma and  another, [1963] 3 SCR 910, indicates that if  a  tenant makes  an  attornment in favour of a person who is  not  the true  owner and follows and paying the rent to him,  such  a person must be held to have effective possession. The  land- lord  must be deemed to be in possession through his  tenant is also demonstrated by another illustration. If the  tenant trespasses  over  the  neighbour’s land treating  it  to  be covered  by  his tenancy and remains in possession  for  the requisite  period  so as to prescribe a title  thereto,  his interest  therein is limited to the interest of  the  tenant and  his landlord acquires the title of the owner. The  con- duct  of such a tenant has been aptly described as  stealing for  the landlord (see I.L.R. 10 Calcutta 820 and (1949)  54 C.W.N.  879). The fact that the tenants have been in  actual physical  possession of the chawl is, in the  circumstances, of  no assistance- to the respondents. What is  material  is that they paid the rent to the defendant no. 6.     19.  There is no merit in the further argument that  the defendant no. 1 must be treated to be in joint possession as he was actually collecting the rent from the tenants. It  is well settled that the possession of the agent is the posses- sion of the principal and in view of the fiduciary relation- ship  the defendant no. 1 cannot be permitted to  claim  his own  possession.  This aspect was well emphasised  in  David Lyeii v. John Lawson Kennedy, [1889] XIV H.L. (E) 437, where the  agent who was collecting the rent from the  tenants  on behalf  of  the owner and depositing it in a  separate  ear- marked  account continued to do so even after the  death  of the owner. After more than 12 years of the owner’s death his heir’s  assignee  brought the action against the  agent  for possession  and the agent defendant pleaded adverse  posses- sion  and limitation. The plaintiff succeeded in  the  first court. But the action was dismissed by the Court of  Appeal. The  House  of Lords reversed the decision of the  Court  of Appeal  and remarked: "For whom, and on whose  behalf,  were those  rents received after Ann Duncan’s death? Not  by  the respondent  for himself, or on his own behalf, anymore  than during her life time". Emphasing the fiduciary character  of the  agent his possession was likened to that of trustee,  a solicitor  or an agent receiving the rent under a  power  of attorney. Another English case of Williams v. Pott, L.R. XII

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Equity  Cases 149, arising out of the circumstances  similar to the present case was more interesting. The agent in  that case  was the real owner of the estate but he collected  the rents  for  a considerably long period as the agent  of  his principal  who was his mother. After the agent’s  death  his heir claimed the estate. 248 The  mother  (the  principal) had also by  then  died  after purporting  by her will to devise the disputed lands to  the defendants  upon certain trusts. The claim of the  plaintiff was dismissed on the plea of adverse possession. Lord Romil- ly, M.R., in his judgment observed that since the possession of the agent was the possession of the principal, the  agent could not have made an entry as long as he was in the  posi- tion  of the agent or his mother, and that he could not  get into possession without first resigning his position as  her agent  which he could have done by saying: "The property  is mine; I claim the rents, and I shall apply the rents for  my own  purposes". The agent had thus lost his title by  reason of  his own possession as agent of the principal. A  similar situation arose in Secretary of State for India v.  Krishna- moni Gupta, 29 Indian Appeals 104, a case between lessor and lessee. There the proprietors of the land in dispute, Mozum- dars were in actual physical possession but after getting  a settlement from the Government in ignorance of their  title. The  Government contended that the possession of the  Mozum- dars was, in circumstances, the possession of the Government claiming the proprietory right in the disputed land and that such possession was in exclusion and adverse to the claim of the Mozumdars to be proprietors thereof. The plea succeeded. It was observed by the Judicial Committee.               "It  may  at first sight  seem  singular  that               parties  should  be barred by  lapse  of  time               during which they were in physical possession,               and  estopped from disputing the title of  the               Government.  But  there is no doubt  that  the               possession of the tenant is in law the posses-               sion  of the landlord or superior  proprietor,               and  it  can make no  difference  whether  the               tenant be one who might claim adversely to his               landlord or not. Indeed, in such a case it may               be  thought that the adverse character of  the               possession is placed beyond controversy."     We are, therefore, of the view that the defendant No.  6 was  in  adverse  possession from the period  1946  to  1952 through her agent defendant No. 1 and thereafter through her husband, Jayantilal and son, defendant No. 7 till 1960  when the  suit  was filed, the total period being  more  than  12 years.     21. For the reasons mentioned above, the decision of the High  Court must be held to be erroneous.  Consequently  the decrees for accounts against the defendants No. 6 and 7 must also go. Accordingly, the appeals are allowed, the  decision of the High Court, so far 249 the  subject matter of the present appeals is concerned,  is set  aside and that of the trial court restored. In view  of the close relationship of the parties and the other  circum- stances,  the parties are directed to bear their  own  costs throughout. N.V.K.                                     Appeals allowed. 250