Kerala High Court
P.E.Mathai vs Eapen Cherian on 12 March, 2009
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 686 of 1994()
1. P.E.MATHAI
... Petitioner
Vs
1. EAPEN CHERIAN
... Respondent
For Petitioner :P.R. VENKITESH
For Respondent :SRI.GEORGE VARGHESE (MANACHIRACKEL)
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :12/03/2009
O R D E R
THOMAS P.JOSEPH, J.
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S.A. No.686 of 1994
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Dated this the 12th day of March, 2009
J U D G M E N T
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"A Will is an instrument by which a person makes a disposition of his property to take effect after his decease, and which is in its own nature ambulatory and revocable during his life. It is this ambulatory quality which forms the characteristic of wills; for, though the death of disposing party, yet the postponement is in such case produced by the express terms, and does not result from the nature of the instrument. Thus, if a man by deed, limit lands to the use of himself for life, with remainder to the use of A in fee, the effect upon the usufructuary enjoyment is precisely the same as if he should by his will, make an immediate devise of such lands to A in fee; and yet the case fully illustrates the distinction in question;
for, in the former instance, A immediately on the execution of the deed, becomes entitled to S.A. No.686 of 1994 -: 2 :- a remainder in fee, though it is not to take effect in possession until the decease of the settlor, while, in the latter, he would take no interest whatever until the decease of the testator should have called the instrument into operation".
(Jarman on Wills, 8th Edn., Vol.I, Page 26).
Is the disposition under challenge ambulatory in nature and revocable in character during the life of the disposer or, it only postponed possession and enjoyment of the property till his death? That precisely is one of the substantial questions of law I am called upon to decide in this appeal at the instance of defendant Nos.3 and 4. Another substantial question of law raised is whether the person in possession has perfected title by adverse possession and limitation. Parties are referred to as plaintiffs and defendants for convenience.
2. Plaintiffs and defendant Nos.1 to 3 are the sons of Chandapilla Eapen and Sosamma Eapen. Defendant Nos.4 to 8 (defendant No.6 was removed from the party array in the trial court following some settlement with him) are assignees from defendant No.3. Defendant No.8 died during the course of the trial and his legal S.A. No.686 of 1994 -: 3 :- representatives are additional defendants 9 to 14. Properties scheduled in the plaint originally belonged to Chandapilla Eapen. Himself and wife, Sosamma Eapen executed Ext.A1, styled as an 'udampady' (agreement) dated, 2nd Thulam 1125 M.E. and registered as document No.511/1125 M.E. in respect of their properties. The properties referred to as item Nos.1 to 6 of Ext.A1 were settled in favour of the plaintiffs and defendant Nos.1 to 3, their sons. Property referred to as item No.7 was retained by the executants to meet the marriage expenses of their daughter, Thankamma and it was recited that in case the executants were not able to conduct the marriage of Thankamma during their lifetime and if that property was available after their death, that property would go to Thankamma. There is no dispute between the parties regarding the properties referred to as item Nos.1 to 7 in Ext.A1. Chandapilla Eapen and Sosamma Eapen are no more. In respect of the properties referred to in item Nos.8 and 9 of Ext.A1, plaintiffs sued the defendants for partition and separate possession of their 3/6 shares (Those properties are described as item Nos.1 to 6 in the plaint schedule). Regarding the properties referred to in item No.9 of Ext.A1, trial court granted a decree for partition. That also is not under challenge. Dispute surviving is as to the partibility of item No.1 of plaint A schedule S.A. No.686 of 1994 -: 4 :- which corresponds to item No.1 of 8th item in Ext.A1. Plaintiffs claimed that said item was settled in favour of themselves and defendant Nos.1 to 3 jointly as per Ext.A1 though its enjoyment was deferred till the death of the executants. Defendant No.3 and his assignee, defendant No.4 contended that the recitals in Ext.A1 concerning plaint schedule item No.1 (item No.1 in the 8th item in Ext.A1) disclosed only a testamentary disposition to take effect after the death of Chandapilla Eapen and Sosamma Eapen. After the death of Chandapilla Eapen, Sosamma Eapen assigned that item in favour of defendant No.3 as per Ext.B3, assignment deed No.1764 dated 18.7.1964 for valid consideration. Defendant No.3 assigned that item through his Power of Attorney in favour of defendant No.4 for consideration as per Ext.B1, assignment deed No.156/1978 dated 23.1.1978. Thus, that item is not available for partition. Defendant Nos.3 and 4 also contended that the suit to the extent it concerned that item is barred by limitation as they have perfected title by adverse possession and limitation. Learned Munsiff accepted the contention raised by defendant Nos.3 and 4 and refused to order partition of that item. In appeal at the instance of the plaintiffs, learned District Judge found that item No.1 of plaint schedule (item No.1 of 8th item in Ext.A1) was settled by Chandapilla Eapen as per S.A. No.686 of 1994 -: 5 :- Ext.A1 in favour of the plaintiffs and defendant Nos.1 to 3, jointly though its possession and enjoyment by them was deferred till the death of the executants. Therefore, on the death of the executants that item is liable for partition. Learned District Judge found that the assignment deeds executed by Sosamma Eapen and later by defendant No.3 are not binding on the plaintiffs. Plea of adverse possession and limitation was also not accepted. Accordingly learned District Judge granted a decree for partition in respect of the said item as well. That judgment and decree are under challenge at the instance of defendant Nos.3 and 4. Learned counsel for appellants/defendant Nos.3 and 4 contended that learned District Judge was not justified in reversing the finding entered by the learned Munsiff which rested on a proper appreciation of evidence and interpretation of the relevant clauses of Ext.A1. According to the learned counsel, conduct of the parties as revealed by the oral and documentary evidence supported the conclusion that the recitals in Ext.A1 concerning the disputed item indicated only a testamentary disposition and hence Sosamma Eapen was competent to transfer the property in revocation of that testamentary disposition to defendant No.3. Learned counsel further contended that at any rate, plaintiffs were well aware of the transactions entered into by Sosamma Eapen S.A. No.686 of 1994 -: 6 :- and later, by defendant No.3 but they slept over the matter. As such at this distant point of time when defendant No.4 has perfected title by adverse possession and limitation, plaintiffs cannot justifiably be granted a decree for partition in respect of that item. Learned counsel for the plaintiffs supported the view taken by the learned District Judge.
3. The question primarily involved is whether the recitals in Ext.A1 concerning the disposition of item No.8 therein (which takes in item No.1 of the plaint schedule) disclosed a testamentary disposition or, is a settlement of that item in favour of the plaintiffs and defendant Nos.1 to 3 deferring its possession and enjoyment until the death of the executants. The well accepted canons on interpretation of deeds inform me that the right approach is to read the document as a whole and not to read each clause as isolated provisions and to construe the document in the light of the provisions therein. The question is not what the parties may have intended while executing the document but, what exactly is the intention expressed as seen from the various recitals in the document. It is only when the recitals are ambiguous and do not reveal the real intention of the parties that one can have reference to extraneous circumstances to find out the real intention of the parties. Subsequent conduct of the parties can S.A. No.686 of 1994 -: 7 :- also be looked into in interpreting the document, but only if the deed is ambiguous. Even then, such subsequent conduct can be admitted in evidence only against the maker of the document and not in his favour. Bearing in mind the above principles, I shall attempt to understand the intention of the executants as expressed by the recitals in Ext.A1.
4. In Ext.A1 which is styled as an 'agreement' executed by Chandapilla Eapen and Sosamma Eapen, plaintiffs and defendant Nos.1 to 3, their sons are referred to as parties though the sons are not signatories to it. The document says that apart from the plaintiffs and defendant Nos.1 to 3, Chandapilla Eapen and Sosamma Eapen have three daughters also, two of them already been sent in marriage in accordance with the custom and practice prevalent in the Community and that the third daughter, Thankamma was unmarried but of marriageable age at the time of Ext.A1. Plaintiff Nos.2 and 3 were married at the time of Ext.A1 and the document states that the dowry which plaintiff Nos.2 and 3 got at the time of their marriage was used for the purposes of the family. Necessity to send the daughter, Thankamma in marriage is highlighted in Ext.A1 and Chandapilla Eapen and Sosamma Eapen expressed their intention and wish to send Thankamma in marriage during their lifetime and to S.A. No.686 of 1994 -: 8 :- raise funds for the marriage (without relegating that responsibility to the sons). There was a loan outstanding with the Land Mortgage Bank (for short, "the Bank") at the time of Ext.A1. The executants wanted to discharge that loan during their lifetime itself without passing on the liability to the children. Since the sons (plaintiffs and defendant Nos.1 to 3) had become majors and Chandapilla Eapen and Sosamma Eapen were nearing old age, they thought that to preserve the integrity of the family and avoid disruption and for each of the sons to prosper themselves with their own effort, the properties were required to be distributed among the sons. Hence they executed Ext.A1. They stated that the parties are to conduct themselves in accordance with the provisions contained in Ext.A1. All the existing properties were divided as 9 items and item Nos.1 to 6 were settled in favour of plaintiff Nos.1 to 3 and defendant Nos.1 to 3 transferring right, title, interest and possession over the said items 'in presenti'. The property described as item No.7 was retained by Chandapilla Eapen and Sosamma Eapen as they wanted to meet the expenses of the marriage of Thankamma during their lifetime. Hence regarding that item, Ext.A1 stated that the executants will have full power of disposal and that if the marriage of Thankamma could not be performed during their lifetime (If necessary by disposing of the said S.A. No.686 of 1994 -: 9 :- item) and if that item was available at the time of their death, that item would go to Thankamma.
5. The crucial recitals regarding disposition of the properties referred to in item No.8 of Ext.A1 (plaint schedule item No.1 concerned in this appeal is item No.1 of the 8th item in Ext.A1) read thus:
".......S.A. No.686 of 1994 -: 10 :-
.
............
....' S.A. No.686 of 1994 -: 11 :- ("......Immovable property in Schedule No.8 for repayment of the loan taken from the land mortgage bank and Schedule No.9 for our lifetime requirements, are retained within our domain and control. Schedule No.8 property is retained in our possession with right to take income ourselves, or by leasing out and with such income, the amounts due to the land mortgage bank shall be discharged without default and after the clearance of debt, the income from Schedule No.8 property shall be utilised for our living expenses and after our lifetime Schedule No.8 item No.2 will go separately to the third among you and items 1 and 3 therein will go to all of you in equal shares and accordingly you may enjoy the properties and pay taxes thereon. Schedule No.9 property shall be possessed by us and income therefrom be taken directly or by leasing out and if need be, instruments be created on schedule No.9 property and matters carried out and after our lifetime if the property of 9th schedule is left, you all may take it in equal shares.............All income from Schedule No.8 property S.A. No.686 of 1994 -: 12 :- shall be utilised only for payment of debts due to the land mortgage bank without default, until discharge of the whole debt and the same shall be done to the satisfaction of one among Chacko or Eapen, brothers of 2nd executant herein and in accordance with his directions and accordingly income from Schedule No.8 shall be utilised for the discharge of the said debt").
(underline supplied)
6. So far as the property referred to as item No.9 of Ext.A1 is concerned, there is no dispute and the learned Munsiff also found that it is a testamentary disposition since that item was to go to plaintiffs and defendant Nos.1 to 3 jointly only if it was available after the death of Chandapilla Eapen and Sosamma Eapen. Learned counsel for defendant Nos.3 and 4 contended that similar recitals are made in Ext.A1 concerning the property referred in item No.8 (including item No.1 of the plaint schedule) also and hence the inescapable conclusion is that regarding 8th item only testamentary disposition was made.
7. Exhibit B2 is a deed of mortgage (Reg.No.2352/1955) S.A. No.686 of 1994 -: 13 :- dated 12.1.1955 executed by Chandapilla Eapen and Sosamma Eapen in favour of Mathew, S/o. Kurian. The executants created possessory mortgage over the properties referred to in the 8th item of Ext.A1 for a period of three years as security for the loan they availed from the said Mathew for discharging the loan of the Bank. In Ext.B2, executants referred to Ext.A1 and stated that the said property was set apart for the discharge of the loan to the Bank. After the death of Chandapilla Eapen, Sosamma Eapen executed Ext.B3, assignment deed No.1764/1964 dated 18.7.1964 in favour of defendant No.3 concerning the very same properties. In Ext.B3 also reference is made to Ext.A1 and states further that as per Ext.A1, the said item was set apart for Chandapilla Eapen and Sosamma Eapen for the discharge of liability and that the said property absolutely belonged to Sosamma Eapen on the death of Chandapilla Eapen. The further recital in Ext.B3 is that at a time when the liability of the Bank could not be cleared from the income from the property, it was given on possessory mortgage in favour of one of her daughters and to discharge the remaining portion of the debt, that item is being sold for consideration to defendant No.3. Exhibit B3 states that Sosamma Eapen divested herself all her right, title and interest and conveyed the same to defendant No.3 who was authorised to redeem the mortgage and S.A. No.686 of 1994 -: 14 :- enjoy the property absolutely. Treating the property as absolutely belonging to him, defendant No.3 executed Ext.B1, assignment deed No.156 of 1978 dated 23.1.1978 in favour of defendant No.4.
8. A 'Will' is an instrument by which a person makes a disposition of his property to take effect after his death and it is in its own nature ambulatory and revocable during his lifetime. Section 2(h) of the Indian Succession Act defines "Will" as:
"Legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death"
The High Court of Madras in Rajammal v. Authiammal (ILR (33) Madras series 304) said:
"one of the invariable tests in coming to a conclusion as to the testamentary character of a paper is whether the paper is revocable. If it is not revocable the document is not a Will.
The fact that the paper is drawn in the form of an agreement and that it is registered, are circumstances to be taken into consideration, though they do not per se amount to much.
Where the document contains provisions which S.A. No.686 of 1994 -: 15 :- are not of an ambulatory character, the presumption will be against the testamentary nature of the document and the fact that such provisions are expressed to create in the future will not affect the nature of the document".
(underline supplied)
9. A 'settlement' is defined in Sec.2(q) of the Kerala Stamp Act, 1959 as under:
"(q) "Settlement" means any non-
testamentary disposition in writing, of movable or immovable property made-
(i) in consideration of marriage,
(ii) for the purpose of distributing
property of the settler among his family or
those for whom he desires to provide, or for the purpose of providing for some person dependent on him, or
(iii) for any religious or charitable purpose".
Even in a 'settlement', the settler while transferring his right, title and interest in the property in presenti may postpone the possession S.A. No.686 of 1994 -: 16 :- and enjoyment of the property to the settlee to a future date or even until his death. The Supreme Court stated, in relation to such postponement and enjoyment in a gift in K. Balakrishnan v. K.Kamalam (AIR 2004 SC 1257) that it is open to the donor to transfer by gift, title and ownership in the property and at the same time reserve its possession and enjoyment to herself and during her lifetime. There is no prohibition in law that ownership in property cannot be gifted without its possession and right of enjoyment. That principle in my view, should apply with equal vehemence to a 'settlement' also. Hence, that possession and enjoyment of plaint A schedule item No.1 (8th item in Ext.A1) was postponed as recited in Ext.A1 need not necessarily indicate that the disposition of that item was testamentary in character.
10. Much stress was made on behalf of defendant Nos.3 and 4 on the recital in Ext.A1 that:
"....
.."
("....After our lifetime, item No.2 of S.A. No.686 of 1994 -: 17 :- Schedule No.8 will go separately to the third party among you and item Nos.1 and 3 will go in equal shares to all of you and accordingly you may enjoy the properties") (underline supplied) It is contended on behalf of defendant Nos.3 and 4 that it is not merely postponement of possession and enjoyment of plaint schedule item No.1 but a case of right devolving on the parties above referred over that item only after the death of Chandapilla Eapen and Sosamma Eapen. To decide that, it is necessary to refer to other relevant details in Ext.A1.
11. The salient feature of Ext.A1 as could be understood from Ext.A1 itself and as I stated above is that the executants wanted to distribute their property among their sons during their lifetime itself to prevent disruption of the family and ensure that the sons by their own personal effort prospered further, while making provision for the marriage of one of the daughters and to discharge the liability of the Bank. It is seen that while the executants retained right, title, interest and possession of item No.7 for the purpose of meeting the marriage expenses of daughter, Thankamma has specifically stated in Ext.A1 that in case the executants were not able to perform the S.A. No.686 of 1994 -: 18 :- marriage of Thankamma, if necessary by disposal of that item, it would go to daughter, Thankamma on their death. The relevant recitals are:
"
".
("The marriage of Thankamma will be conducted by us for which purpose we will be entitled to create any kind of instruments in respect of Schedule No.7 and in case marriage of Thankamma does not take place within our lifetime, then after our lifetime, Schedule 7 item would go absolutely to the said Thankamma and she shall pay taxes, redeem the mortgage and enjoy the S.A. No.686 of 1994 -: 19 :- property".) (underline supplied) Intention in respect of item No.7 was clear that the executants retained the power to raise funds from item No.7 by entering into any transaction (which can include a sale also) in respect of that item and in case the executants were not able to conduct the marriage of daughter Thankamma during their lifetime if necessary by creating such instruments, that item should go to Thankamma after their death. This certainly was a testamentary disposition as is clear from the reservation of a power for disposal of that item and the property passed on to Thankamma only (if it was available) on the death of the executants.
12. As regards Item No.9 also, one finds similar recital in Ext.A1 thus:
"
".S.A. No.686 of 1994 -: 20 :-
("Schedule 9 item shall be possessed by us and the income taken directly or by leasing out and if deemed necessary by creating any kind of instruments on Schedule 9 item of property for carrying out the affairs and if after our lifetime Schedule 9 item is left behind, then, it shall go to all of you in equal shares") (underline supplied) In respect of schedule No.9 also, there is no much difficulty to hold that it was a testamentary disposition as is clear from the words that "if the property is left behind after our death", it will go to the sons equally.
13. It is interesting to note that a similar clause as in the case of item Nos.7 and 9 which I have extracted above is absent in respect of item No.8 (which takes in item No.1 of the plaint schedule). It is not stated in respect of item No.8 of Ext.A1 that it would go to the parties referred to therein in case that item is available after the death of the executants. Since the executants have made such provisions concerning item Nos.7 and 9 which I have extracted above, absence of similar provision regarding schedule No.8 is very conscious and conspicuous.
14. It is also to be borne in mind that though the executants S.A. No.686 of 1994 -: 21 :- reserved the right to create any kind of instruments (which includes sale) in respect of item Nos.7 and 9 be it to raise funds for the marriage of the daughter or for other needs of the executants during their lifetime, what is stated concerning item No.8 (of Ext.A1) is only that the executants will have the right to keep the said item in their possession and take the yield either directly or by lease and discharge the liability of the Bank and thereafter take the yield for their livelihood till their death. The executants have not reserved with them the power to create any kind of instruments of their choice in respect of item No.8 as in the case of item Nos.7 and 9. Of course, it is recited in Ext.A1 that item No.8 will go to the parties as stated therein (item No.2 of the 8th item to plaintiff No.2 and item Nos.1 and 3 of the 8th item to the plaintiffs and defendant Nos.1 to 3 jointly) absolutely after the death of the executants. That recital can only be understood as a transfer of ownership in presenti subject to the right of the executants to take the yield directly or by lease to discharge the loan to the Bank and thereafter, a life interest for the executants and thus the settlees getting absolute right on the death of the executants (settlers). Executants reserving possession and enjoyment of the 8th item as per recitals in Ext.A1 does not in my view militate against the recitals in Ext.A1 that executants conveyed right, title and interest in S.A. No.686 of 1994 -: 22 :- respect of that item (item No.3 of 8th item to plaintiff No.3 and item Nos.1 and 3 to the plaintiffs and defendant Nos.1 to 3 jointly).
15. It is contended on behalf of defendant Nos.3 and 4 that the subsequent conduct of Chandapilla Eapen and Sosamma Eapen would indicate that in respect of item No.8 of A schedule only a testamentary disposition was made. The thrust of the argument is on Exts.B1 to B3. Exhibit B2 is a deed of mortgage executed by Chandapilla Eapen and Sosamma Eapen in favour of Mathew, S/o.Kurian. It is stated in Ext.B2 that the 8th item in Ext.A1 was set apart to the share of executants absolutely ( ) and the said property is mortgaged in favour of Mathew, S/o.Kurian. But it is interesting to note from Ext.B2 that the object stated is to raise funds for the discharge of liability to the Bank as stated in respect of 8th item in Ext.A1 itself. I stated from Ext.A1 that the power retained by the executants over item No.8 (of Ext.A1) was only to take the yield either directly or by way of lease to discharge the liability to the Bank and thereafter for their livelihood. Creation of mortgage as per Ext.B2 for a period of three years to raise funds for discharging the liability to the Bank cannot be said to be in derogation of the disposition made in respect of item No.8 as per Ext.A1 in that, the said mortgage can be taken as the transfer of the S.A. No.686 of 1994 -: 23 :- interest the executants had (life interest) as security for the due repayment of the loan taken for discharging the liability to the Bank in terms of the recital in Ext.A1. But so far as Ext.B3, assignment in favour of defendant No.3 (executed by Sosamma Eapen) is concerned, it is in derogation of the disposition as per Ext.A1. The subsequent conduct of Chandapilla Eapen and Sosamma Eapen can be admitted in evidence only as against the maker (i.e. against Chandapilla Eapen and Sosamma Eapen) and not in their favour as held in Raghavan v. Chirutha (1991(2) KLT 385). Therefore defendant Nos.3 and 4 cannot take the execution of Ext.B2 and B3 as a conduct in favour of the makers of the said documents and against the disposition made as per Ext.A1.
16. On going through Ext.A1, I am not inclined to think that the disposition regarding item No.8 (including plaint schedule item No.1) is ambulatory in quality or revocable in character during the lifetime of the executants. I am inclined to agree with the view taken by the learned District Judge that the disposition of plaint item No.1 (covered by the 8th item in Ext.A1) is a settlement (though possession and enjoyment were deferred) and hence Chandapilla Eapen or Sosamma Eapen had no right of disposal of that item in view of Ext.A1. Hence the transfer in favour of defendant No.3 and the subsequent S.A. No.686 of 1994 -: 24 :- assignment in favour of defendant No.4 cannot survive.
17. It is contended on behalf of defendant Nos.3 and 4 that Exts.B1 and B3 are not sought to be set aside and that there is no averment in the plaint avoiding the said transaction. In the plaint, it is stated that Chandapilla Eapen died about 19 years back (of the date of institution of the suit in 1978) and Sosamma Eapen died in 1969. Plaintiffs proceeded on the basis that on the death of Chandapilla Eapen and Sosamma Eapen they, along with defendant Nos.1 to 3 are in joint possession and enjoyment of the plaint schedule item No.1 (as well). They alleged that defendant No.4 is making some claim over a portion of the schedule property but he has no such right over any portion of the schedule property. Plaintiffs also alleged that defendant No.4 is trying to take possession of the schedule property on the strength of the claim he made but defendant No.4 has no right or interest over the schedule property. I have concurred with the finding of the learned District Judge that the disposition of 8th item in Ext.A1 is a settlement. I also stated that in that situation, Chandapilla Eapen or Sosamma Eapen had no power of disposal of that property. If that be so, Exts.B1 and B3 are null and void so far as the plaintiffs are concerned. They can ignore the said transactions and seek partition. When the plaintiffs stated that defendant No.4 is making some claim S.A. No.686 of 1994 -: 25 :- over the property but he has no manner of right over it, I understand that statement as amounting to a repudiation of all claims defendant No.4 was making by virtue of Exts.B3 and B1, respectively. By repudiating the claim being made by defendant No.4, plaintiffs have ignored and avoided the documents of title of defendant No.4.
18. Next question is whether defendant No.4 has perfected title by adverse possession and limitation. There is no doubt that Ext.B3 is executed in derogation of the disposition of item No.8 of Ext.A1 in the year 1964 and the suit is filed only in the year 1978. The statement in the plaint that Sosamma Eapen died in the year 1969 is not challenged. As per Ext.A1, Chandapilla Eapen and Sosamma Eapen were to take the usufructs from item No.8 either directly or by way of lease for the discharge of the liability of the Bank and thereafter for their livelihood till their death. The settlees under Ext.A1 could claim possession and enjoyment of the said item only on the death of Sosamma Eapen in the year 1969 since till then she had a limited interest over the said item. Plaintiffs need ask for partition and separate possession of the property only after the death of Sosamma Eapen in the year 1969. Possession of a trespasser cannot be said to be adverse to the real owner so long as the real owner is not entitled to immediate possession and is therefore, not in a position to put an S.A. No.686 of 1994 -: 26 :- end to the trespass (see Secretary of State v. Moulavi Waszed Alikhan Pani - 65 IC 866 and Narattam Dey v. Debendra Lal Khan - 173 IC 439). In Devaki Amma v.
Meenakshy Amma (1989 (2) KLT 130) this Court held:
"Possession, actual, open, notorious, exclusive and adverse for the statutorily prescribed period is one mode of acquisition of tile recognised by the statute of limitations.
Permissive possession precludes a claim for adverse possession. Possession is not adverse unless it is asserted against a person who is entitled to immediate possession. This is the principle of the Maxim, CONTRA NON VALENTEM AGERE NULLA CURRIT PRAESCIPTIO ("No prescription runs against a person unable to bring an action") (Black's Law Dictionary).
Unless the person entitled to immediate possession is legally in a position to maintain an action for protecting his possession, period for prescribing a title by adverse possession does not commence....."
(underline supplied) In holding so, reliance was placed on the decision of the Supreme S.A. No.686 of 1994 -: 27 :- Court in P.Lakshmi Reddy v. L.Lakshmi Reddy (AIR 1957 SC 314 at 319) where it was held thus:
"..........It is well settled that limitation cannot begin to run against a person unless at the time that person is legally in a position to vindicate his title by action. In Mitra's Tagore Law Lectures on Limitation and Prescription (6th Edition) Vol.I, lecture VI at page 159, quoting from Angell on Limitation, this principle is stated in the following terms:
"An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right, either under an openly avowed claim or under a constructive claim (arising from the acts and circumstances attending the appropriation), to hold the land against him (sic) who was in possession (Angell, Ss.390 and 398). It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession". Consonant with this principle the commencement of adverse possession, in favour of a person, implies that that person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, S.A. No.686 of 1994 -: 28 :- the true owner would then be in a position to maintain an action....."
Plaintiffs' right to possess the property arose only in the year 1969. The suit is filed in the year 1978. There is also nothing to show that plaintiffs were aware of Exts.B1 and B3 on the due dates or at any time before 12 years preceding the institution of the suit in the year 1978. The contention that defendant Nos.3 and 4 perfected title over plaint schedule item No.1 by adverse possession and limitation has to fail.
19. For the above reasons I do not find reason to interfere with the judgment and decree passed by the learned District Judge.
This appeal fails. It is dismissed. Costs shall come out of the estate.
THOMAS P.JOSEPH, JUDGE.
vsv THOMAS P.JOSEPH, J.
=================== S.A. NO.686 of 1994 =================== J U D G M E N T 12TH MARCH, 2009