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2017 DIGILAW 822 (AP)

S. SUGUNAMMA v. B. PADMAMMA

2017-12-07

N.BALAYOGI, V.RAMASUBRAMANIAN

body2017
JUDGMENT : V. RAMASUBRAMANIAN, J. 1. Aggrieved by the dismissal of her suit for partition, the plaintiff has come up with the above appeal. 2. We have heard Mr. Prabhakar Sripada, learned counsel for the appellant, Mrs. Godi Rajeswarai, learned counsel for respondents 1 and 5 to 8, Mr. P. Venkata Reddy, learned counsel for the respondents 2 to 4 and Mr. Meharchnd Noori, learned counsel for the 11th respondent. 3. The appellant filed a suit in O.S.No.99 of 2010 on the file of the Principal District Judge, Medak, seeking partition and separate possession of her ?th share in the properties described in Schedules A, B, C and D of the plaint. The case of the appellant/ plaintiff in the suit was that the plaintiff and defendants 1 to 4 are the daughters of one Burigari Kista Reddy; that the said Kista Reddy was the absolute owner of properties detailed in the plaint schedules; that they were all his self-acquired properties; that Kista Reddy died intestate in the year 1971 leaving behind his wife Satyamma and 5 daughters who are appellant/plaintiff and defendants 1 to 4; that after the death of the father Kista Reddy, the name of the mother namely Satyamma was entered in the revenue records; that after the death of the mother Satyamma, the properties devolved equally upon the plaintiff and defendants 1 to 4; that during the life time of the father Kista Reddy, he performed the marriage of the plaintiff as well as the defendants 1 to 4; that after the death of both the parents, the 1st defendant used to look after the properties; that when the activities of the 1st defendant became suspicious, the plaintiff approached the Mandal Revenue Officer and obtained certified copies of the Pahanies and other documents; that from those documents he found that the sons of the 1st defendant, who were arrayed as defendants 5 to 8, got their names entered in the revenue records; that the said mutation was unlawful and that therefore, she was entitled to partition. 4. The defendants 2 to 4 (sisters of the plaintiff) filed a written statement agreeing with the claim of the plaintiff and praying for a decree as sought by the plaintiff. In other words, the defendants 2 to 4 supported the case of the plaintiff. 5. Interestingly, the 1st defendant did not file a written statement. 4. The defendants 2 to 4 (sisters of the plaintiff) filed a written statement agreeing with the claim of the plaintiff and praying for a decree as sought by the plaintiff. In other words, the defendants 2 to 4 supported the case of the plaintiff. 5. Interestingly, the 1st defendant did not file a written statement. But her sons who were arrayed as defendants 5 to 8 filed a written statement contending, inter alia, that the suit properties originally belonged to Kista Reddy; that Kista Reddy died not in the year 1971, but in the year 1968; that the 1st defendant was given in marriage to one Narayana Reddy, who was brought to the house of Kista Reddy as illatam; that the 1st defendant's husband (father of defendants 5 to 8) was in possession and enjoyment of all the properties till his death; that after his death, the defendants 5 to 8 are in possession and enjoyment; that it is true that the mother Satyamma died intestate in the year 2002; that the plaintiff and defendants 1 to 4 were not in joint possession and enjoyment of the suit properties; that the marriages of defendants 2 to 4 were not performed by the father Kista Reddy, but performed by Narayana Reddy, who was adopted as illatam son-in-law; that the property in Sy.No.621 was sold by the 5th defendant to the 9th defendant under a sale deed document No.1855/98 to meet the family necessities; that the 9th defendant in turn sold the land to the 10th defendant; that the 5th defendant sold another extent of land in the same survey number to the 11th defendant; that the 7th defendant sold the land measuring Ac.0.21 cents in Sy.No.135 to the 12th defendant; that from the date of purchase, the purchasers are in possession and enjoyment to the knowledge of the plaintiff and defendants 2, 3 and 4; that when the 1st defendant's husband was brought as illatom son-in-law, a document of illarikam was executed, giving properties to him; that since Kista Reddy was suffering from Leprosy, the marriages of the plaintiff and defendants 2 to 4 were performed by 1st defendant's husband, as the elder member of the family; that the marriages of the plaintiff and defendants 2 to 4 were performed respectively in the years 1962, 1954, 1957 and 1968; that after the marriages, the plaintiff and defendants 2 to 4 were separated; that after the death of Kista Reddy, his wife Satyamma wanted to have mutation effected in the revenue records, in favour of Narayan Reddy (husband of the 1st defendant); that Narayan Reddy, out of regard and respect towards the elderly woman, refused to have his name recorded during the life time of Satyamma; that Narayana Reddy died in the year 1987 and Satyamma died in the year 2002; that during the life time of Satyamma, she got recorded the names of defendants 5 to 8 in the year 1979-80; that the father of defendants 5 to 8 (husband of the 1st defendant) was in exclusive possession and enjoyment of the suit properties, excluding the plaintiff and defendants 2 to 4; and that therefore, they have perfected title by adverse possession and the suit was barred by limitation. 6. The 9th defendant filed a written statement. Though he was only the purchaser of one of the suit items, she took an identical stand as the defendants 5 to 8. 7. The 11th defendant filed an independent written statement toeing the line of the defendants 5 to 8. 8. The 12th defendant remained ex parte. Therefore, on the basis of the pleadings, the trial Court originally framed 6 issues. But they were subsequently re-cast. The issues, after re-casting were as follows: (1) Whether the suit schedule properties are the self acquired properties of Burigari Kista Reddy? (2) Whether the husband of defendant No.1 is brought on illatom by Burigari Kista Reddy and whether the illatom deed is true and valid? (3) Whether defendants No.5 to 8 have perfected their title by adverse possession and whether the suit is filed within limitation? (4) Whether the sales made by defendants 5 to 8 are valid and binding on the plaintiff? (5) Whether the plaintiff is entitled for an equal share in the suit schedule property along with defendants No.1 to 4? (6) To what relief? 9. The plaintiff examined herself as PW.1 and filed 4 documents as Exs.A.1 to A.4. Ex.A.1 was the certified copy of the Pahanies for the years 1955-58, 1961-62, 1964-65, 1979-80, 1993-94, 1997-98, 2000-01, 2004-05 and 2008-09. Exs.A.2 to A.4 were the certified copies of the sale deeds by which the defendants 5 to 8 alienated some of the suit schedule properties. 10. On behalf of the defendants, the 5th defendant was examined as DW.1. The 11th defendant was examined as DW.5. The defendants 9 and 10 were examined as Dws.6 and 7. 3 persons, who were third parties to the litigation, but who claimed to be the residents of Isnapur village, were examined as DWs.2 to 4, for the purpose of establishing the illatom adoption of Narayan Reddy (1st defendant's husband). 6 documents were examined on the side of the defendants. Ex.B.1 was the illatom deed dated 26-04-1948. Exs.B.2 to B.4 were the T.C.s issued by the school authorities. Ex.B.5 was the Pattedar pass book of the 10th defendant and Ex.B.6 was the title deed in favour of the 10th defendant. 11. 6 documents were examined on the side of the defendants. Ex.B.1 was the illatom deed dated 26-04-1948. Exs.B.2 to B.4 were the T.C.s issued by the school authorities. Ex.B.5 was the Pattedar pass book of the 10th defendant and Ex.B.6 was the title deed in favour of the 10th defendant. 11. On the basis of the pleadings and the evidence on record, the trial Court concluded on issue No.1 that the properties were self-acquired properties of Kista Reddy; concluded on Issue No.2 that the illatom of Narayana Reddy stood highly probablised; concluded on issues 3 and 4 that defendants 5 to 8 perfected title by adverse possession and that the suit was beyond the period of limitation; concluded on issue No.5 that the plaintiff was not entitled to partition. Accordingly, the trial Court dismissed the suit. Hence, the present appeal. 12. Assailing the judgment of the trial Court, it was contended by the learned counsel for the appellant that Ex.B.1 illatom deed dated 26-04-1948 cannot override the law of succession to the property of a Hindu dying intestate; that ouster was not specifically pleaded nor established and that therefore, the finding that defendants 5 to 8 acquired prescriptive title was completely contrary to law. 13. In response, it was contended by Smt. Rajeswari, learned counsel for respondents 1, 5 to 8 that the alienations in favour of third parties took place in the years 1998, 2002 and 2009, to the knowledge of the plaintiff, but the plaintiff chose to keep quiet; that right from the year 1948, the 1st defendant, her husband and their children namely defendants 5 to 8 were in possession and enjoyment, to the exclusion of the plaintiff and defendants 2 to 4. 14. Apart from supporting the contentions of the learned counsel for respondents 1 and 5 to 8, the learned counsel for the 11th respondent pleaded that since the property was purchased by the 11th defendant long time back, at least equities should be worked out at the time of final decree proceedings, in the event of this court granting a preliminary decree for partition. 15. We have carefully considered the above submissions. 15. We have carefully considered the above submissions. From the pleadings, evidence on record and the rival contentions, we think that the following issues arise for determination in this appeal: (1) What was the effect of Ex.B.1-illatom deed dated 26-4-1948, assuming that the document is true and valid, on the rights of the plaintiff and defendants 1 to 4 to succeed to the properties of Kista Reddy? (2) Whether the defendants 5 to 8 can be said to have perfected title by adverse possession and the suit said to be barred by limitation? (3) Whether the plaintiff is entitled to any relief? 16. The first issue arising for consideration is about the effect of Ex.B-1 Illatom Deed, dated 26-4-1948, upon the rights of the plaintiff and defendants 1 to 4 to succeed to the properties of Kista Reddy. 17. At the outset, it should be pointed out that Ex.B-1 is relied upon by defendants 5 to 8, who are the sons of Narayana Reddy. Narayana Reddy passed away in the year 1987 itself. The only person who could have had personal knowledge about Ex.B-1 is the 1st defendant, the wife of Narayana Reddy and who is the mother of defendants 5 to 8. For reasons known only to her, the 1st defendant neither filed a written statement pleading the execution of Ex.B-1 Illatom Deed, nor at least went to the witness box to prove Ex.B-1. 18. It is true that Ex.B-1 is of the year 1948 and it is a document 30 years old. But the defendants 5 to 8 who sought to mark the Illatom Deed as an exhibit were all born after 1948, as they were the sons of the person who was allegedly taken as the illatom son-in-law. Therefore, the failure of the 1st defendant either to file a written statement pleading illatom or to go to the witness box to speak about Ex.B-1, is fatal to the plea taken by defendants 5 to 8. Therefore, the trial Court ought not to have acted upon Ex.B-1 as a true and valid document. 19. Be that as it may, let us assume for a minute that Ex.B-1 was a true and genuine document. Even then, it is doubtful if Ex.B-1 can have any effect upon the rights of the other legal heirs to inherit the property under the rules of Succession. 19. Be that as it may, let us assume for a minute that Ex.B-1 was a true and genuine document. Even then, it is doubtful if Ex.B-1 can have any effect upon the rights of the other legal heirs to inherit the property under the rules of Succession. It must be remembered that even admittedly the suit properties are the self-acquired properties of B.Kista Reddy. When he died in the year 1968, after the advent of the Hindu Succession Act, 1956, he left behind his widow and 5 daughters as his Class-I heirs. Though the illatom son-in-law Narayana Reddy died in 1987, the wife of Kista Reddy survived up to the year 2002. 20. As pointed out by the Supreme Court in G. Narayanappa v. Government of Andhra Pradesh, (1992) 1 SCC 197 , an illatom son-in-law is a creature of custom. The Supreme Court quoted in the said decision, a passage from Mayne's Hindu Law, which records the fact that the custom of taking a person in illatom adoption prevailed among Reddy and Kamma castes in the Madras Presidency. The Supreme Court quoted in the said decision, a passage from Mayne's Hindu Law, which records the fact that the custom of taking a person in illatom adoption prevailed among Reddy and Kamma castes in the Madras Presidency. But the rules that govern the rights of an illatom son-in-law, as culled out from various judicial decisions both by Mayne and by N.R. Raghavachariar are as follows: (i) to constitute a person as illatom, a specific agreement is necessary, (ii) after the death of the adopter, such a son-in-law is entitled to the full rights of a son even as against natural sons subsequently born or a son subsequently adopted in the usual manner, (iii) an illatom son-in-law has no right to claim partition with his father-in-law unless there is an express agreement or custom to that effect, (iv) an illatom son-in-law cannot be taken to be an adopted son, (v) an illatom son-in-law will not lose the rights of inheritance in his natural family and similarly the property that he takes in the adoptive family is taken by his own relations to the exclusion of those of his adoptive father, (vi) neither he nor his descendants become coparcener's in the family of adoption though on the death of the adopter he is entitled to the same rights and same share as against any subsequently born natural son or an adopted son, (vii) the rights of an illatom son-in-law are not identical to those conferred by law on a son or an adopted son, and (viii) an illatom son-in-law does not succeed to the properties of his father-in-law by survivorship, but only on account of custom or an agreement giving him a share in the property of his father-in-law. 21. As pointed out by a Division Bench of this Court in Narasaiah v. Ramachandraiah, AIR 1956 SC 209 (AP), "it is the custom and proof of usage that give validity to this right". Commonsense and reasoning have nothing to do with the custom and the incidence cannot be extended by parity of reasoning. Reason cannot create a custom. No logical extension of the rule is permissible. 22. Therefore, if we look at the evidence on record, it could be seen that even according to D.W.2, the brother-in-law of defendants 5 to 8, there was no registered document conveying any of the properties of Kista Reddy in favour of Narayana Reddy. Reason cannot create a custom. No logical extension of the rule is permissible. 22. Therefore, if we look at the evidence on record, it could be seen that even according to D.W.2, the brother-in-law of defendants 5 to 8, there was no registered document conveying any of the properties of Kista Reddy in favour of Narayana Reddy. This admission of D.W.2 was also corroborated by D.W.4, when he said: "the name of Kista Reddy continued to exist in the Revenue records till he died and later the name of his wife continued in the records and it is true that Narayana Reddy's name is not recorded in the Revenue records at any point of time". 23. Therefore, it is clear that the properties were not given to Narayana Reddy, as sought to be projected by defendants 5 to 8. By ensuring that their mother, namely, the 1st defendant did not participate in the proceedings by filing a written statement or by entering into the witness box, the defendants 5 to 8 completely diluted their claim with regard to illatom. In other words, the claim that the properties were given to Narayana Reddy under a written agreement was not proved, nor were they able to prove custom or usage to the effect that Narayana Reddy became the owner of these properties. Hence, we hold that Ex.B-1 did not have an effect upon the rights of the plaintiff and defendants 1 to 4 to succeed to the properties of Kista Reddy who died intestate in the year 1968. We answer issue No.1 accordingly in favour of the appellant and against the respondents. Issue No.2: 24. The 2nd issue arising for consideration is as to whether the defendants 5 to 8 had perfected title by adverse possession and whether the suit was barred by limitation. 25. To establish adverse possession, a person making the claim should establish a peaceful, open and continuous possession, as engraved in the maxim nec vi, nec clam and nec precario. The possession of such a person should actually be an exclusive possession with animus possidendi. A person who claims adverse possession should show - (i) the date on which he came into possession, (ii) the nature of his possession, (iii) whether the factum of possession was known to the other party, (iv) how long the possession continued and (v) whether his possession was open and undisturbed. 26. A person who claims adverse possession should show - (i) the date on which he came into possession, (ii) the nature of his possession, (iii) whether the factum of possession was known to the other party, (iv) how long the possession continued and (v) whether his possession was open and undisturbed. 26. Keeping the above principles in mind, if we look at the pleadings as well as the evidence on behalf of the defendants 5 to 8, it would be clear that none of the 3 elements, namely, nec vi (not by force), nec clam (not by stealth) and nec precario (not by the licence of the owner) stand established in the case on hand. Admittedly, the father of defendants 5 to 8 died in the year 1987, after nearly 20 years of the death of Kista Reddy in the year 1968. During this period of 20 years, no mutation was effected in the Revenue records, in the name of Narayana Reddy. Even as per the pleadings, the Revenue records stood in the name of Satyamma, the wife of Kista Reddy. Satyamma died in the year 2002 and the suit came to be filed in the year 2010. 27. Therefore, even on admitted pleadings, neither the possession of Narayana Reddy up to his death in 1987 nor the alleged possession of defendants 5 to 8 from 1987 could be taken to be either exclusive, or adverse to the interest of the legal heirs of Kista Reddy. The possession of the properties by Kista Reddy's wife Satyamma, the mother of the plaintiff and defendants 1 to 4 can never be said to be adverse to that of her own daughters. 28. As we have pointed out earlier, an important element of adverse possession is animus possidendi. It is very clearly absent in this case. Therefore, the finding of the trial Court that the defendants 5 to 8 perfected title by adverse possession, cannot be sustained and is actually not borne out either through the pleadings or from the evidence. 29. Unfortunately, the trial Court went on a wrong reasoning that (i) the absence of a mutation of Revenue records in the names of Satyamma and her daughters jointly (ii) and a mutation only in the name of Satyamma, probablised the case of the defendants 5 to 8. 29. Unfortunately, the trial Court went on a wrong reasoning that (i) the absence of a mutation of Revenue records in the names of Satyamma and her daughters jointly (ii) and a mutation only in the name of Satyamma, probablised the case of the defendants 5 to 8. The trial Court, in our considered view, instead of asking the question whether the so-called possession of the defendants 5 to 8 was adverse to that of the legal heirs, asked a wrong question as to whether the holding of the property by defendants 5 to 8 could be termed as a holding on behalf of the legal heirs. 30. The plea of adverse possession by a stranger stands on a completely different footing from the plea of adverse possession made by a co-owner or a coparcener or a member of the family as against the rest. Way back in 1957, the Supreme Court pointed out in P. Lakshmi Reddy v. L.Lakshmi Reddy, AIR 1957 SC 314 that the possession of one co-heir is considered in law as possession of all the co-heirs. In order to establish an adverse possession of one co-heir as against another, it is not enough to say that one out of them is in sole possession and enjoyment of the profits of the properties. When one co-heir is found to be in possession of the properties, it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir, merely by any secret hostile animus on his part in derogation of the other co-heir's title. The Supreme Court made it clear as a settled rule of law that as between co-heirs, there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment by one to the knowledge of the other so as to constitute ouster. 31. In this case, ouster was not even pleaded in so many terms. Animus possidendi was not established by clear evidence. Therefore, the trial Court erred in holding that the defendants 5 to 8 perfected title by adverse possession and that the suit was barred by limitation. Hence, the 2nd issue is also answered in favour of the appellant and against the contesting respondents. Issue No.3: 32. The 3rd issue is as to whether the plaintiff is entitled to any relief. Therefore, the trial Court erred in holding that the defendants 5 to 8 perfected title by adverse possession and that the suit was barred by limitation. Hence, the 2nd issue is also answered in favour of the appellant and against the contesting respondents. Issue No.3: 32. The 3rd issue is as to whether the plaintiff is entitled to any relief. The answer to this is not far too difficult to seek. From the discussion we have had, it is clear - (i) that all the suit schedule properties were admittedly the self-acquired properties of Kista Reddy; (ii) that after his death in 1968, mutation was effected in the name of his wife Satyamma; (iii) that Satyamma died in the year 2002 and (iv) that the plea of adverse possession set up by the defendants 5 to 8 miserably failed. 33. Therefore, the plaintiff and defendants 1 to 4 succeeded to the suit schedule properties in equal shares and hence each of them is entitled to one-fifth share in the suit schedule properties. 34. Insofar as the alienees of some of the properties are concerned, some alienations had taken place even during the lifetime of Satyamma, but she does not appear to have executed the sale deeds. Therefore, these alienations cannot be taken to be valid in the eye of law. It is fundamental that no one can confer a better title than what he himself has (nemo dat quod non habet). All that these alienees can perhaps do is only to plead in the final decree proceedings for the allotment of these properties to the share of the 1st defendant, since neither the 1st defendant nor her children, the defendants 5 to 8 dispute the alienations. 35. Therefore, in fine, the appellant is entitled to a preliminary decree for partition and separate possession of her one-fifth share in the suit schedule properties. It may be open to the alienees to seek the allotment of the properties purchased by them to the share of the 1st defendant in the final decree proceedings. Conclusion: 36. In the result, the appeal is allowed, the judgment and decree of the trial Court are set aside and the suit filed by the appellant is decreed with costs throughout. The miscellaneous petitions, if any, pending in this appeal shall stand closed. No costs.