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2010 DIGILAW 1276 (AP)

S. M. Nagarani v. K. Muniratnam

2010-12-20

L.NARASIMHA REDDY

body2010
JUDGMENT 1. These two appeals arise out of the judgment and decree, dated 04.02.2004, in O.S.No.158 of 2001 on the file of the Additional Senior Civil Judge, Kurnool. 2. For the sake of convenience, the parties are referred to as arrayed in the suit. 3. Defendant Nos.1 and 2 are brothers and defendant No.3 is the sister of the plaintiff. All of them are children of late Subramaniyam Achary and Muni Chandramma. The suit schedule property is a house bearing No.51-323-48, owned by Muni Chandramma. She died on 13.02.1989. Defendant No.1 was in possession and enjoyment of the house. The plaintiff pleaded that her another brother, defendant No.2, was given an item of property and defendant No.3, her sister, relinquished her share in the schedule house, inasmuch as she held substantial properties. With these pleadings, the plaintiff claimed half share in the house, conceding the other half to defendant No.1. 4. Defendant Nos.2 and 3 remained ex parte. Defendant No.1 alone contested the suit. He pleaded prior partition in the family and stated that the suit schedule property has fallen to his share. Apart from that, he has raised the plea of adverse possession. 5. Through its judgment, dated 04.02.2004, the trial Court decreed the suit as prayed for and allotted half share each, to the plaintiff and defendant No.1. Defendant No.1 filed A.S.No.36 of 2004 in the Court of the I Additional District Judge, Kurnool. Through its judgment, dated 02.04.2008, the Lower appellate Court has set aside the judgment and decree passed by the trial Court and modified it to the effect that the plaintiff and defendant Nos.1 to 3 are entitled to one-fourth share each, in the suit schedule property. While the plaintiff filed S.A.No.81 of 2009 feeling aggrieved by the reduction of her share from half to one-fourth, defendant No.1 filed S.A.No.180 of 2009, feeling aggrieved by the allotment of share to other parties to the suit. 6. Sri B.Narasimha Sharma, learned counsel for the plaintiff, submits that the lower appellate Court was not justified in reducing the share of the plaintiff from half to one-fourth. He contends that the trial Court assigned cogent reasons while arriving at the conclusion that the plaintiff is entitled to half share in the suit schedule property and that none except defendant No.1 contested the suit. In addition, the learned counsel opposes the second appeal filed by defendant No.1. He contends that the trial Court assigned cogent reasons while arriving at the conclusion that the plaintiff is entitled to half share in the suit schedule property and that none except defendant No.1 contested the suit. In addition, the learned counsel opposes the second appeal filed by defendant No.1. According to him, the plea of adverse possession or ouster cannot be countenanced in a suit for partition. 7. Sri A. Rama Subbaiah, learned counsel for defendant No.1 on the other hand, submits that partition in the family has taken place much before the suit was filed and the plaintiff herself is the beneficiary thereof. He contends that part of the same property, which abuts the suit house, was allotted to the share of the plaintiff and that she cannot file a suit for partition once again. He further submits that defendant No.1 has perfected his title to the property, through adverse possession and the plaintiff cannot be given any share in it. The learned counsel contends that the right, if any, of the plaintiff stood ousted on account of her acts and omissions. He places reliance upon some precedents. 8. The relationship between the parties is not disputed. The plaintiff filed the suit claiming half share in the suit schedule property. According to her, defendant Nos.2 and 3 are not entitled for any share in view of the reasons mentioned in the plaint. The suit was contested by defendant No.1 alone. He took the plea of prior partition and in the alternative, the one of adverse possession. 9. The trial Court framed the following issues for its consideration. (1) Whether late Muni Chandramma the mother of plaintiff and D1 to D3 acquired government poramboke site and constructed the suit building? (2) Whether plaintiff and D1 are in joint possession of the suit property? (3) Whether the Court fee paid by plaintiff is not correct? (4) Whether the suit is barred by limitation? (5) Whether plaintiff is entitled to partition of the suit property and to what share she is entitled to? 10. On behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A1 to A6 were filed. On behalf of defendant No.1, D.Ws.1 to 5 were examined and Exs.B1 to B16 were filed. (4) Whether the suit is barred by limitation? (5) Whether plaintiff is entitled to partition of the suit property and to what share she is entitled to? 10. On behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A1 to A6 were filed. On behalf of defendant No.1, D.Ws.1 to 5 were examined and Exs.B1 to B16 were filed. A preliminary decree was passed on 04.02.2004, directing that the plaintiff on the one hand and defendant No.1 on the other, shall be entitled to half share each in the suit schedule property. Defendant No.1 filed A.S.No.36 of 2004 in the Court of the I Additional District Judge, Kurnool. The lower appellate Court framed the following points for its consideration: (1) Whether the plaintiff is entitled for share in the plaint schedule property? If so, to what extent she is entitled? (2) Whether the judgment and decree of the trial Court is liable to be set aside? 11. The appeal was partly allowed modifying the shares to the parties. The plaintiff and defendant Nos.1 to 3 were held to be entitled for one-fourth share each in the suit schedule property. The contesting parties, namely the plaintiff and defendant No.1 are not satisfied with the decree passed by the lower appellate Court and filed these second appeals. 12. In view of the submissions made by the learned counsel for the parties, the following points arise for consideration in these second appeals: (1) Whether there was prior partition in the family? (2) Whether the plea of adverse possession raised by defendant No.1 is tenable and whether the rights of the plaintiff vis-à-vis the suit schedule property stood ousted? 13. In a suit for partition, the plea of prior partition, if accepted would prove to be fatal to the relief claimed in it. The party who pleads prior partition is under obligation to prove it to the satisfaction of the Court. Such partition can be, either by intervention of the Court or through acts of the parties. Even if there does not exist any registered deed of partition, it is permissible in law to establish it by proving various events that have taken place as a consequence of partition. Defendant No.1 in this case has taken the plea of partition. Such partition can be, either by intervention of the Court or through acts of the parties. Even if there does not exist any registered deed of partition, it is permissible in law to establish it by proving various events that have taken place as a consequence of partition. Defendant No.1 in this case has taken the plea of partition. The facts pleaded by him in this regard are that the plaintiff and defendant No.3 were given plots of land towards their share and houses were also constructed. However, he did not prove the relevant facts. The record discloses that the houses, in which the plaintiff and defendant No.3 are living, are in the names of their respective husbands. The trial Court and the lower appellate Court repelled the plea of prior partition. Defendant No.1 is not able to demonstrate as to how the said findings suffer from any infirmity. 14. Another plea raised by defendant No.1 was that he has perfected his life to the suit schedule property by way of adverse possession. In support of his plea, he relied upon Article 65 (b) of the Limitation Act, 1963. According to defendant No.1, the property was held originally by their mother and the entitlement, if at all for the plaintiff had arisen on the death of their mother in the year 1989, and on account of her lapses in enforcing such right, his possession over it became adverse vis-à-vis her share,. The adverse possession is said to have ripened into title, since the suit was filed 12 years, after the death of their mother. 15. Basically, the plea of adverse possession is not available to a co-owner or co-sharer. The reason is that the possession by one such person would be, for and on behalf of the rest of the other co-sharers/co-owners. However, where the property was held by a Hindu or Muslim female, and the right to possession of that property was to accrue on her death, the possession of any third party vis-à-vis the same would become adverse to the interest of a person so entitled to; from the date of death of the female. 16. However, where the property was held by a Hindu or Muslim female, and the right to possession of that property was to accrue on her death, the possession of any third party vis-à-vis the same would become adverse to the interest of a person so entitled to; from the date of death of the female. 16. Explanation (b) to Articles 65 of the Limitation Act, 1963 reads as under: “Where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies.” 17. A reading of this provision discloses that it applies to the cases where the person, who files the suit, is entitled to “possession” of the immovable property held by a female on her death, in contradistinction to “share” in the property. The entitlement to possession can be by operation of law or under a specify arrangement brought into existence through acts of the parties. For instance, a property is bequeathed by ‘X’, to person ‘A’ with life interest in person ‘B’, a female, and the Will had come into operation, ‘A’ would be entitled for immediate possession of the property on the death of ‘B’. The possession of any other person over the property after the death of female would be adverse to ‘A’s interest. This is totally different from a situation where a female holds property and on her death, her legal heirs are entitled to share in it, in accordance with the law of succession. If one of the legal heirs is in possession of the property, it would be for and on behalf of the rest of the legal heirs and by no means, it would be adverse to the interest of the other legal heirs. 18. Reliance is placed by defendant No.1, upon the judgment of the Hon’ble Supreme Court in Jagat Ram Vs. Varinder Prakash ((2006) 4 Supreme Court Cases 482). That case arose under a peculiar set of facts. A couple, Sunder and Smt.Kirpi had two daughters, the eldest being Smt.Manshan. Sunder executed a gift deed on 23.06.1920 in favour of Smt.Manshan in respect of the schedule property and died on 17.09.1941. His widow Smt.Kirpi filed a suit on 03.08.1945 for cancellation of the gift deed. That case arose under a peculiar set of facts. A couple, Sunder and Smt.Kirpi had two daughters, the eldest being Smt.Manshan. Sunder executed a gift deed on 23.06.1920 in favour of Smt.Manshan in respect of the schedule property and died on 17.09.1941. His widow Smt.Kirpi filed a suit on 03.08.1945 for cancellation of the gift deed. That ended in a compromise to the effect that she will enjoy the suit schedule property during her life time and on her death. It would accrue to the daughter of Manshan. However, during her life time. Kirpi adopted the son of her second daughter and executed a gift deed in respect of the same property in his favour. A suit filed by Manshan against her mother for cancellation of the deed of adoption and gift deed was decreased in 1960. While the matter was pending in appeal, Kirpi died in 1967. The decree for cancellation of gift and adoption attained finality in the year 1981 with the dismissal of Letters Patent Appeal. Smt.Manshan filed suit for recovery of possession of the property in 1982. It was dismissed by the trial Court on the ground that it was barred by limitation. After suffering reversals at two stages, the matter reached the Hon’ble Supreme Court it was held that according to the arrangement under the compromise decree. Smt.Manshan’s daughter, the plaintiff in the subsequent suit, was entitled to possession of the property soon after the death of Kirpi and since the suit was filed for recovery of possession 12 years after her death it is barred by limitation. 19. The facts of the case on hand are totally different. The plaintiff never claimed right of possession of the property on the death of her mother. She has filed a suit for partition, for which hardly the exists any limitation. Therefore, a plea of adverse possession cannot be accepted. 20. The third ground urged by defendant No.1 is that even if the plaintiff is to be treated as a co-owner, her right can be said to have been ousted. In a way, this plea is another fact of adverse possession. What is adverse possession vis-à-vis the third parties would be ouster vis-à-vis a co-owner. 20. The third ground urged by defendant No.1 is that even if the plaintiff is to be treated as a co-owner, her right can be said to have been ousted. In a way, this plea is another fact of adverse possession. What is adverse possession vis-à-vis the third parties would be ouster vis-à-vis a co-owner. To defeat the rights of a co-owner under the plea of ouster, the person taking the plea must prove to the satisfaction, of the Court that the co-owner was conscious of his rights, but through his or her acts and omissions had represented to other co-owner in possession of the property that the latter can enjoy it exclusively for his benefit, in the absence of such representation, the possession of one of the co-owners deserves to be treated as the one for the benefit of all other co-owners. Defendant No.1 failed to plead and prove the necessary ingredients of ouster. It is important to refer to the judgment of the Hon’ble Supreme Court in karbalai Begum Vs. Mohd, Sayeed and others (AIR 1981 Supreme Court 77). The relevant portion of the judgment reads as under: “It is well settled that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession.” Therefore, the contention as to ouster cannot be accepted. 21. The plaintiff urged that she is entitled to half share in the suit schedule property and it is not necessary to allot any share to defendant Nos.2 and 3. Unless there is an express relinquishment by defendant Nos.2 and 3 as to their shares, the Court cannot ignore their rights. 22. The suit schedule property is a house constructed in a very small plot. It would be difficult to divide it into four shares. The exercise contemplated under the Indian Partition Act can be undertaken. The trial Court can ascertain the value of the suit schedule property and if defendant No.1 express has willingness to pay one-fourth of the said value to the plaintiff, he can be permitted to retain it, subject to the steps, if any that may be taken by defendant Nos.2 and 3. The trial Court can ascertain the value of the suit schedule property and if defendant No.1 express has willingness to pay one-fourth of the said value to the plaintiff, he can be permitted to retain it, subject to the steps, if any that may be taken by defendant Nos.2 and 3. For the foregoing reasons, (a) the second appeals are dismissed; (b) the trial Court shall undertake an exercise contemplated under the Indian Partition Act, ascertain the value of the suit schedule property and give the option to defendant No.1 to retain it by paying one-fourth value to the plaintiff; and (c) defendant No.1 shall also be under obligation to pay one-fourth share each to defendant Nos.2 and 3 if they make any demand in the course of the proceedings. 23. There shall be no order as to costs.