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PETITIONER: WUNTAKAL YALPI CHENABASAVANA GOWD

       Vs.

RESPONDENT: RAO BAHADUR Y. MAHABALESHWARAPPA AND ANOTHER.

DATE OF JUDGMENT: 15/04/1954

BENCH: MUKHERJEA, B.K. BENCH: MUKHERJEA, B.K. BOSE, VIVIAN HASAN, GHULAM AIYYAR, T.L. VENKATARAMA

CITATION:  1954 AIR  337            1955 SCR  131  CITATOR INFO :  R          1971 SC1337  (17)

ACT:     Co-sharers--Joint  property-Adverse possession by a  co- sharer    against    another    co-sharer-Ouster--Principles applicable thereto.

HEADNOTE:    Once  it  is hold that a possession of  a  co-sharer  has become  adverse  to  the other co- sharer  as  a  result  of ouster,  the  mere  assertion  of his  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  manner as it was possible to do.  It may also check the running  of time  if  the  co-sharer  who  is  in  exclusive  possession acknowledges  the title of his co-owner or discontinues  his exclusive possession of the property. The  fact that one co-sharer who bad allowed himself  to  be dispossessed  by  another co-sharer as a  result  of  ouster exhibited  later on his animus to treat the property as  the joint  property of himself and his co-sharer  cannot  arrest the  running  of  adverse possession in favour  of  the  co- sharer.   A  mere  mental  act on the  part  of  the  person dispossessed  unaccompanied  by  any  change  of  possession cannot  affect the continuity of adverse possession  of  the deseizor.

JUDGMENT:     CIVIL  APPELLATE  JURISDICTION: Civil Appeal No.  89  of 1953. 132 Appeal  from the Judgment and Decree dated the 28th  day  of March,  1949, of the High Court of Judicature at  Madras  in Appeal  No.  654 of 1945, arising out of  the  Judgment  and Decree dated the 23rd day of July, 1945, of the Court of the District Judge, Bellary, in Original Suit No. 17 of 1944.

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K. S. Krishnaswami Iyengar (K.  R. Chowdhury, D. Gundu Rao, A.  Rama  Rao  and  Rajinder  Narain,  with  him)  for   the appellant. B.Somayya  (M.  V. Ganapathi and Ganpat Rai, with  him)  for respondent No. 1. 1954.  April 15.  The Judgment of the Court was delivered by MUKHERJEA J.-This appeal arises out of a suit, commenced  by the plaintiff respondent, in the Court of the District Judge of  Bellary,  being  Original  Suit  No.  17  of  1944,  for establishment  of  his title to one-half share of  the  land described in the schedule to the plaint and for recovery  of possession of the same after partition with defendant No. 1, who  is the appellant before us.  The suit was dismissed  by the  trial  Judge by his judgment dated the  23rd  of  July, 1945.  On an appeal being taken against that decision by the plaintiff  to the High Court of Madras, a Division Bench  of the  High  -Court by its judgment dated the 28th  of  March, 1949,  allowed the appeal and reversed the judgment  of  the trial Court., The defendant No. 1 has now come up on  appeal to  this Court on the strength of a certificate  granted  by the  High Court under article 133 of the  Constitution  read with sections 109 and 1 10 of the Civil Procedure Code. To  appreciate the contentions that have been raised  before us  it  may  be  necessary to give a  short  resume  of  the material  facts.  The land in suit, which has an area  of  a little  over  9 acres, was admittedly the  property  of  one Basappa  who  died  some time  before  1918,  leaving  three daughters,  to wit Paramma, Pompamma and Hampamma.  Under  a settlement  entered into with the immediate  reversioner  of Basappa which is evidenced by two registered  deeds-Exhibits P-2  and  P-3-executed respectively in the  years  1918  and 1919, the three sisters got about 15 to 16 acres of wet land 133 in absolute right.  Hampamma subsequently took away her one- third share in these lands and we are not concerned with her any  further  in  this  litigation.   Paramma  and  Pompamma continued  to  enjoy the remaining two-thirds share  of  the property and it is this two-thirds ,share comprising 9 acres 49  cents of wet land which forms the subject-matter of  the present  suit.  Pompamma married one Nagana Gowd  and  after giving birth to two sons to wit Siddalingana and  Chenabasa- vana,  she died in the year 1923.  It is not  disputed  that her  share in the lands mentioned above devolved upon  these two sons.  After Pompamma’s death, Nagana married again  and stayed with his second wife in his ancestral village,  while these two infant sons of Pompamma remained at village Kampli with  Paramma, their mother’s sister, who reared them up  as her  own sons.  On the 22nd June, 1923, Paramma  executed  a deed  of  gift in favour of the two sons of  her  sister  by which she conveyed to the latter her own share in the.  suit property.  The result was that the two sons of Pompamma  got the entirety of the 9 acres 49 cents of land which as  owned jointly  by their mother and their mother’s sister  Paramma. Shortly  after this gift was made, Siddalingana,  the  elder son  of Pompamma, died in the year 1924 and the  plaintiff’s case  is  that  his  half-share  in  the  disputed  property devolved  upon  his  father Nagkna under the  Hindu  law  of inheritance.  It is admitted however that Paramma  continued to possess the entirety of the land on behalf of the younger son Chenabasavana who is defendant No. 1 in the suit On  the 25th  August, 1946, there was a lease deed Exhibit D-1,  and its  counter  part  Exhibit D-2,  executed  by  and  between Paramma  on  the  one  hand and Nagana  as  the  father  and guardian  of the infant Chenabasavana on the other by  which the  infant represented by his father purported to  grant  a

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lease  of the entire property to Paramma for a period of  12 years  at  a rental of Rs. 500 a year.   Two  rent  receipts passed  by  Nagana  to Paramma in token of  the  receipt  of rents,  reserved by this lease, on behalf  of  Chenabasavana have  been proved in this case, Exhibits D-4 and  D4-1,  and they are of the years 1927 and 1932 respectively. 134 It appears that in 1934 Nagana instituted a suit as guardian of  his  infant son Chenabasavana in the Munsif’s  Court  at Hospet to recover a -sum of Rs. 500 as rent from Paramma  on the  basis  of  the lease mentioned  above.   The  suit  was decreed ex parte and the decree was discharged later on by a document  Exhibit  D-3, dated the 14th  of  November,  1934, executed by Nagana, which contains a recital that as Paramma had borrowed much money to purchase lands for the minor, all future  rents  payable  under  the lease  were  also  to  be considered  as  fully  paid.   It is  in  evidence  and  not disputed,   that   near  about  this  time   Nagana   became financially  involved  and on the 27th of August,  1935,  he executed  a deed of mortgage by conditional sale in  respect of  half-share of the disputed land in favour  of  defendant No.  2  to  secure an advance of Rs.  3,000.   The  document recites  that the half-share of the land which was kept  as. security devolved upon the mortgagor on the death of his son Siddalingana and "that he was in possession of the same.  On the 16th July, 1936, Nagana sold the mortgaged property by,a deed  of sale (Exhibit P-6) to the mortgagee himself:  or  a consideration  of Rs. 3,000 which was the principal sum  due under  the mortgage.  It is admitted that the purchaser  did not and could not obtain possession -of the property at  any time  since  then  and on the 2nd May,  1944,  he  sold  the property to the ’plaintiff by a conveyance which is  Exhibit P-1.   On  the 18th July, 1944, the  plaintiff  brought  the present  suit against Chenabasavana as defendant No.  I  for recovery of a demarcated half-share of the disputed property after  partition  with  the latter on the  strength  of  the purchase mentioned above and his own vendor was impleaded as defendant No. 2 in the suit. The  suit was contested by defendant No. 1 and a  number  of pleas  were  taken  by him in his  written  statement.   The substantial defence put forward was of a two-fold character. It  was contended in the first place that under the deed  of gift  executed by Paramma in favour of defendant No.  I  and his  deceased brother Siddalingana, the donees became  joint tenants  with  rights of survivorship  Consequently  on  the death of 135 Siddalingana his interest devolved upon defendant No. 1  and not on his father.  The other and the more material  defence raised  was that the plaintiff’s suit was barred, as he  was never in possession of the property and the defendant No.  1 acquired  a  good title by adverse possession.   Both  these points  were  decided against the plaintiff by  the  learned District  Judge  who tried the suit.  It was held  that  the deed  of  gift  executed by Paramma conferred  no  right  on Nagana  as the heir of his son and such rights if  any  were specifically disclaimed by Nagana by the lease deed and also by the receipts which he granted to Paramma as the  guardian of his minor son.  It was held further that the  plaintiff’s suit was bound to fail as he or his predecessors were  never in possession of the property within 12 years from the  date of  the suit.  The plaintiff indeed was an alienee of a  co- tenant  but  it was held that the ordinary rule of  one  co- owner  being presumed to hold on behalf of the others  could not  apply  to the present case., as Nagana  disclaimed  his

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rights as a co-owner and purported to act only on behalf  of his  infant son Chenabasavana whose exclusive title  to  the lands he definitely acknowledged.  In view of these findings the trial Judge dismissed the plaintiff’s suit. Thereupon   the  plaintiff  took  an  appeal  against   this -decision  to  the High Court of Madras and the  appeal  was heard by a Division Bench consisting of Rajamannar C.J.  and Balakrishna Ayyar J. The learned Judges held, differing from the  trial Court, that the two sons of Pompamma  took  their shares  in their mother’s property which devolved upon  them by  inheritance,  its  well as in the  property  which  they obtained under the deed of gift executed in their favour  by Paramma,  as tenants in common and not as joint tenants  and consequently  on  the  death of  Siddalingana  his  interest vested  in  his father Nagana and not in  his  brother,  the defendant  No. I. On the other question the High Court  held that  though.Nagana  by his acts and conduct  in  connection with  the execution of the lease deed did exhibit an  animus to  hold the property solely on behalf of  Chenabasavana  to the  exclusion  of  himself, yet this animus  did  not  last beyond 1935 when he 136 asserted his own right as a co-sharer to half-shire of  the- plaint property by executing the mortgage deed in favour  of defendant No. 2. In these circumstances it was held that the defendant No. 1 did not acquire title by adverse  possession and  the plaintiff was entitled to succeed.   The  defendant No. 1 has now come up on appeal to this Court. Mr.  Ayyangar  appearing in support of the  appeal  has  not pressed  before us the contention that was raised on  behalf of his client in the Courts below, that as the two  brothers took  the  property as joint tenants and not as  tenants  in common, the interest of Siddalingana passed on his death  to his  brother,  the defendant No. 1, and not to  Nagana.   We must take it therefore that after the death of Siddalingana, Nagana  became a co-owner of the disputed property with  his minor  son  Chenabasavana.   As the  plaintiff  purports  to derive  his  title  from  Nagana, he can  be  said  to  have established his title as a co-owner with defendant No. I and this  being  the position, the presumption of law  would  be that  the  possession of one co-owner was on behalf  of  the other  also unless actual ouster was proved.  To defeat  the claims  of  the  plaintiff therefore it  is  incumbent  upon defendant No. I to prove that he held the property adversely to his co-owner -for the statutory period.  The  peculiarity of  the  present cage is that here the joint owners  of  the property  were  the father and his infant son, of  whom  the father  himself was the guardian and th e infant  could  not act in law except through the guardian. It is conceded on behalf of the appellant that the mere fact that  the father did not participate in the profits  of  the property  which  was left to the management of  Paramrna  on behalf of the infant could not by itself make the possession of the son adverse to his father.  But the acts and  conduct of the father in connection with the lease deed of 1926  and the  subsequent  granting  of  receipts  in  terms   thereof undoubtedly   point  to  something  more  than   mere   non- participation in the enjoyment of profits of the property on absence of objection to the exclusive enjoyment there of  by Paramma on behalf of the infant, In granting the 137 lease on behalf of the infant the father definitely asserted the  exclusive  title  of his son to  the  property  and  by implication denied his own rights as a co-owner thereto.  In law  the possession of the lessee is the possession  of  the

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lessor  and consequently ever since 1926 when Paramma  began to  possess  the property as a lessee in terms of  the  ease deed, her possession in law was the possession of the infant alone to the exclusion of Nagana, the father.  The fact that Nagana consented to such exclusion is immaterial.  There can be  in law, under certain circumstances, adverse  possession with  the consent of the true owner.  A common  illustration of  this rule is furnished ’by the class of cases where  the legal  owner  of a property transfers the  same  to  another without  the  requisite  legal formalities  and  though  the transferee  does  not  acquire a legal title to  it  by  the transfer,  yet if he gets possession of the property  though with  the consent of the transferor that possession  becomes adverse  to  the owner and if continued  for  the  statutory period creates a title in him. We are not satisfied from the materials  in  this  case that Nagana was  ignorant  of  his rights  as  heir of his deceased son when  he  executed  the lease  in  the  year  1926., But even  if  he  was,  as  the exclusive  possession of the infant was exercised  with  the full  knowledge  and  consent  of  the  father  who   openly acknowledged the title of his son, such possession could not but  be  adverse to the father.  The learned Judges  of  the High Court seem to be of the opinion that the possession  of the minor could be regarded as adverse from the date of  the execution  of the lease, as the father by being a  party  to the  said  document, did exhibit an animus  to  possess  the common  property  on  behalf  of  the  minor  alone  to  the exclusion  of himself.  But according to the learned  Judges this  animus ceased as soon as Nagana executed the  mortgage deed  in  1935, asserting his right as, joint owner  of  the property  in dispute and the adverse possession of  the  son forthwith  came to an end.  With this view we are unable  to agree. Once  it  is held that the, possession of  a  co-sharer  has become adverse to the other co-sharer as a result of ouster, the mere assertion of his joint title by the 138 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  manner as it was possible to do.  It may also check the running  of time  if  the  co-sharer  who  is  in  exclusive  possession acknowledges  the title of his coowner or  discontinues  his exclusive  possession of the property.  On the materials  on the  record, none of these things seems to have been  proved in  the present case.  Resumption of physical possession  or re-entry  upon  the  property  was  absolutely  out  of  the question, as the property was in the possession of a lessee. The  lease, it should be noted, was executed in 1926 and  we have   two  rent  receipts  of  the  years  1927  and   1932 respectively by v which Nagana acknowledged receipt of rents on behalf of his infant son in terms of the lease deed.  The rent suit in 1934 was also brought by him in his capacity as guardian of defendant No. 1 and the document Exhibit D-3  by which  the decree in that suit was discharged and a  receipt was  given  in advance for all the  subsequent  rents  point definitely  to the conclusion that the entire rent  for  the whole  period  of 12 years was paid to and was  accepted  on behalf of Chenabasavana and Nagana neither received any por- tion of it nor laid any claim to the same.  During the whole period  of the lease and up to the present day the minor  is admittedly  in  possession  of the property and  no  act  or conduct on his part has been proved either within the period of limitation or even after that which might be regarded  as

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an  acknowledgment of the title of his father  as  co-owner. In  our  opinion the fact that the father  who  had  allowed himself to be dispossessed by his son exhibited later on his animus  to  treat  the property as  the  joint  property  of himself  and  his son cannot arrest the running  of  adverse possession  in favour of the son.  A mere mental act on  the part of the person dispossessed unaccompanied by any  change of  possession  cannot  affect  the  continuity  of  adverse possession of the deseizor. The  view  taken  by the High Court probably  rests  on  the supposition that as, it was the father, who, acting 139 on  behalf of his son, asserted the exclusive title of  the- son to the property in denial of his own rights, it was open to  the  father  again if he so chose to  resile  from  that position and make a fresh declaration that property was  not the  sole property of the son but belonged to him  as  well; and this subsequent act would annul the consequences of  his previous  act.  This reasoning does not appear to us  to  be sound.  The father’s acts in connection with the lease  were entirely in his capacity as guardian of his son.  In the eye of  the law they were the acts of the son, but the  creation of  the  mortage in 1935 was not the act of  the  father  on behalf  of  his son, it was the personal act of  the  father himself qua co-proprietor of the son and the interest of one being adverse to the other such acts could not be held to be acts  of  the  son  performed through  the  father.   It  is extremely  doubtful  whether qua guardian the  father  could make  such declaration at all.  Any change of  intention  on the  part of the guardian can be brought home to  the  minor through  the  guardian alone and the minor can react  to  it again  only through the guardian.  It may be proper in  such cases for the father to renounce his guardianship before  he could  assert any right of his own against his ward; but  it is  not  necessary for us to go into that question,  as  the mortgage  in  this  case was made by the father no  I  t  as guardian  of  the  minor  at all.  It was  no  more  than  a declaration,  by  a person who was dispossessed by  his  co- sharer,  of his joint title to the property and as has  been already  pointed  out, as it did not involve any  change  of possession  it did not affect the adverse possession of  the deseizor.   In our opinion therefore the view taken  by  the learned Judges of the High Court is not proper and cannot be sustained.   The result is that the appeal is  allowed;  the ,judgment  and  decree of the High Court are set  aside  and those  of the District Judge restored.  The  appellant  will have his costs in all the Courts.                            Appeal allowed. 140