Andhra HC (Pre-Telangana)
Gaddam China Dodamma vs Goka Pedda Dodamma And Anr. on 4 March, 2005
Equivalent citations: 2005(3)ALD531, 2005(3)ALT619, AIR 2006 (NOC) 116 (ANDH. PRA.) = (2005) 3 ANDH LT 619(AP)
JUDGMENT G. Yethirajulu, J.
1. This appeal is preferred by the first defendant in O.S.No. 1 of 1997 on the file of the Senior Civil Judge, Adilabad. The first respondent - plaintiff filed O.S.No. 1 of 1997 for partition of the suit property into two equal shares between the plaintiff and the first defendant and to allot one such share to the plaintiff. The suit was dismissed by the trial Court through its judgment dated 9-11-1998. The plaintiff being aggrieved by the judgment of the trial Court preferred A.S.No. 3 of 1999 before the Additional District Judge, Adilabad. The appellate court allowed the appeal through the judgment dated 23-1-2002 by setting aside the judgment and decree of the trial Court and decreeing the suit as prayed for. The first defendant being aggrieved by the judgment and decree of the first appellate Court preferred this second appeal challenging the validity and legality of the decree granted by the first appellate Court.
2. When the matter came up for admission before this Court, notice was ordered to the respondents 1 and 2 and the first respondent - first defendant made appearance through her counsel. The notice sent to the second respondent returned unserved. After hearing the parties, the matter is disposed of at the admission stage.
3. The first respondent-plaintiff filed the suit against the appellant herein for partition of the suit schedule property into two equal shares and to put her in possession of one such share. The averments of the plaint are briefly as follows:
The plaintiff and the first defendant are sisters. One Yedla Doddanna and Gangamma were their parents. Their father Doddanna died in 1976 intestate leaving the suit schedule house. It is the ancestral joint family property. Their mother Gangamma also died on 26-11-1995. Their parents have no male issues. The plaintiff and the first defendant are the married daughters and they inherited the suit schedule house from their parents. The plaintiff is therefore, entitled to half share in the suit schedule house and demanded for the same. The first defendant denied to give half share in the suit property and sold part of the said property which is a vacant place measuring 40 x 30 feet to the second defendant. The first defendant is realizing rent from a Malgi, which is part of the suit house since more than 20 years without giving any share in the said income. Hence, this suit for partition and separate possession of half share in the suit house.
4. The second respondent-second defendant remained ex parte in the suit proceedings.
5. The first defendant filed a written statement with the following averments in brief:
It is true that the plaintiff and the first defendant are the daughters of Yedla Doddanna and Gangamma. There were no male issues to their parents. Therefore, their parents brought the husband of the first defendant by name Gaddam Asanna as an illatom son-in-law and gave the suit house as a consideration at the time of the marriage. Since then, the first defendant and her husband were in possession and enjoyment of the property. The husband of the first defendant died about 16 years prior to the suit, therefore, the first defendant and her children became the owners of the suit house. They are paying property tax and made improvements to the house. The suit house is neither ancestral nor joint Hindu Family property. The plaintiff never demanded a share in the house except issuing a legal notice to create a cause of action for the suit and to extract money from the first defendant. The first defendant is in continuous possession of the property since more than 12 years, therefore, she perfected her title to the suit house by adverse possession. The suit it barred by limitation. The first defendant sold an open site admeasuring 12 x 24 ft. to one Shamshuddin about 15 years back and the said Shamshuddin sold the property to the second defendant. Hence, the suit is liable to be dismissed with costs.
6. On the basis of the above pleadings, the trial Court framed appropriate issues. The plaintiff examined P.Ws.1 to 4 and marked Exs.A-1 to A-4. The first defendant examined D.Ws.1 to 4, but no documents were marked on her behalf. On consideration of the evidence on record, the trial court dismissed the suit. On appeal, the first appellate court set aside the judgment of the trial court and decreed the suit as prayed for.
7. The appellant - first defendant contends that since her father conveyed the suit house to her husband, who was brought as an illatom son-in-law at the time of the marriage, the title of the suit house devolved upon her and her children after his death and the plaintiff has no right over the property. She also contended that since the first respondent-plaintiff never claimed her share in the suit house during the life-time of their parents and her husband, and as the first defendant is in possession of the house for a period exceeding 12 years, she perfected her title by adverse possession. The first respondent - plaintiff contends that the suit house was not conveyed to the husband of the first defendant at the time of the marriage and she acquired right on half share over the suit house after the death of her mother in the year 1995.
8. In the light of the contentions of both parties, the following are the points for consideration before this Court:
(1) Whether the suit house was conveyed to the husband of the first defendant by taking him as an illatom son-in-law and whether he became the absolute owner of the suit house?
(2) Whether the first defendant perfected her title to the suit house by adverse possession?
(3) Whether the suit for partition is barred by limitation?
(4) Whether the plaintiff is entitled to half share in the suit house?
Point No. 1:
9. The suit house is the ancestral property of the father of the plaintiff and the first defendant. Their father died intestate in the year 1976. Their mother also died on 26-11-1995. The plaintiff issued a legal notice to the first defendant on 4-9-1996 within one year after the death of their mother demanding share in the suit house. The first defendant did not deny the origin of the title to the suit property. Unless there is disposition of property by their father during his lifetime or their mother to the extent of her share during her lifetime, the first defendant cannot claim it as her exclusive property. After the death of their father in 1976, the property devolved on the plaintiff, the first defendant and their mother. On the death of their mother intestate on 26-11-1995, her share of property further devolved on the plaintiff and the first defendant, therefore, the plaintiff demanded half snare in the property after the death of their mother. Unless there is sufficient proof of ouster of the plaintiff from the suit property, the plaintiff continues to have constructive possession, even though the first defendant is in physical possession of the same.
10. D.Ws.1 to 4 stated that the first defendant belongs to 'Maala' community and there is a custom in their community to take son-in-law as illatom. They further stated that the father of the first defendant gave the suit house to her husband.
11. In order to prove the illatom adoption two essential conditions have to be satisfied. Firstly, that the adopter must marry the daughter of the adoptee and secondly, there should be an agreement to give him a share. In this case, undisputedly there is no agreement in writing to give the suit property to the husband of the first defendant. When there is no document in proof of conveying the property in favour of the son-in-law, the first defendant is expected to place any other material to convince the Court that there was oral conveyance of the property and it was acted upon. The first defendant did not place any material to show whether her father decided to give the house to her husband without giving any share to the plaintiff. No record has been placed to show whether in pursuance of the alleged oral conveyance, mutation was affected in the relevant records. On the other hand, the plaintiff placed the record to show that the house property continued to be in the name of her father by the date of filing the suit. Unless there is sufficient material to show that the husband of the first defendant enjoyed the suit property in his own right, and her father has not retained any share in the property for himself, her mother or the plaintiff, the mere oral assertion made by her cannot be accepted. Even if the evidence of D.Ws.1 to 4 is accepted for a moment that the first defendant's husband was brought as an illatom son-in-law, that itself will not create any right to the first defendant's husband in any of the properties of her father. In the absence of any agreement, either oral or written, to convey the whole or part of the property owned by her father, the first defendant's husband is not entitled to get any right over the suit property.
12. In Basireddy v. State of A.P., 1978 (1) ALT 36 (NRC), 1978 (2) An.W.R. 46, 1978 (1) APLJ 276 a learned single Judge of this Court while dealing with the question whether an illatom son-in-law is entitled to the agreed share in the property of his father-in-law even without a document of transfer held as follows:
While an illatom son-in-law may not be entitled to claim partition with the father-in-law as he does not become a member of the coparcenery, he does acquire a right to that share as agreed to by his father-in-law while taking him as an illatom son-in-law. The illatom son-in-law, therefore, gets right to a share in the property even without further document of transfer of the share agreed upon by him and his father-in-law.
13. The principle laid down in the above decision is regarding the right of illatom son-in-law to get a share which was agreed to be given to him, if there is a proof that the father-in-law expressed his intention to give the property to his son-in-law.
14. When there is no proof that the suit house was given to her husband, the assertion of the first defendant that after the death of her husband, herself and her children are enjoying the property with absolute rights cannot be accepted. This point is accordingly answered in favour of the first respondent-plaintiff and against the appellant-first defendant.
Point No. 2:
15. The plaintiff and the first defendant are sisters. Their father died during the lifetime of their mother. As per Section 8 of the Hindu Succession Act, the plaintiff, the defendant and their mother are Class-I legal heirs of their father and if their father dies intestate, they would get equal share in the property. In such circumstances, the plaintiff, the first defendant and their mother are each entitled to one-third share in the suit property.
16. The mother of the plaintiff died intestate in the year 1995. Till then, she continued to be in the suit house along with the first defendant. In the absence of any testament prior to the death of their mother, her share would devolve upon the plaintiff and the first defendant in equal shares.
17. The learned counsel for the appellant relied on a judgment of the Supreme Court in Padminibai v. Tangavva, wherein the Supreme Court held that when the plaintiff's husband was in exclusive possession of the suit land adversely to the defendant for the period exceeding 12 years and his possession was never interfered or disturbed, he acquired ownership by prescription.
18. The facts of the case covered by the above decision are different from the facts of the case on hand. In the present case, the period of limitation started only after the death of the mother of the plaintiff in the year 1995 and the plaintiff filed the suit for partition in 1997. Therefore, the question of the first defendant perfecting title by adverse possession does not arise. Hence, the above principle is not applicable to the facts of this case.
19. In M. Arthur Paul Ratna Raju v. Gudese Garaline Augusta Bhushanabai, there was a dispute regarding the suit property which originally belonged to one Mr. Mark. The plaintiff and the first respondent have been claiming title through their mother Karunamma being the daughter of Mr. Mark. He died leaving behind his son Joseph, daughter Karunamma and widow Morthamma. After the death of Morthamma, interest in the property left by Mark was devolved upon Joseph and Karunamma. The defendants 2 to 7 are the co-sharers. The Supreme Court while dealing with the above matter regarding the devolution of the property under the Indian Succession Act, 1925 held that the defendants 2 to 7 being the co-sharers cannot succeed in claiming absolute right by adverse possession unless there has been ouster of respondent No. 1, an admitted co-sharer from the disputed property. In the case of a co-sharer, mere exercise of possession of right cannot make out a case of ouster of co-sharer and consequential exercise of adverse possession by the other co-sharer so that ultimately the title of the ousted co-sharer is extinguished on account of adverse possession for the prescribed period.
20. In Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak, while dealing with the issue relating to adverse possession the Supreme Court held a follows:
To establish ouster in cases involving claim of adverse possession, the defendant has to prove three elements namely, (1) hostile intention, (2) long and uninterrupted possession, and (3) exercise of the right of exclusive ownership openly and to the knowledge of the owner. In cases of adverse possession, the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but it commences from the date when the defendant's possession became adverse.
21. In Karbalai Begum v. Mohd. Sayeed, the plaintiff and the defendants were in joint possession of the land in dispute being co-bhumidars. The plaintiff's case was that the defendants have assured her that her share would be properly lookedafter by them and on the basis of this distinct understanding she had left the entire management of the property to the defendants who thus used to manage the same and give her her share. But, it is alleged that three years before filing the suit, she found that the defendants had played fraud on her inasmuch as her name had been deleted from the khewat and the entire property was mutated in the consolidation of holding proceedings in the name of the defendants. Hence, the suit by her for joint possession over the share. The trial court dismissed the suit, but the District Court after a careful consideration of the documentary evidence concluded that some sort of fraud must have been committed by the defendants. However, the High Court allowed the second appeal filed by the defendants. Allowing the appeal of the plaintiff, the Supreme Court held as follows:
It was found by the District Court that there was no evidence on the record to prove that the plaintiff was not given any share out of the produce and, therefore, the conclusion that the plaintiff should be deemed to be ousted from possession, was not correct. Even if no share was given to the plaintiff by the defendants, as the defendants were co-sharers, unless a clear ouster was pleaded or proved, the possession of the defendants as co-sharers would be deemed in law to be the possession of the plaintiff. (paras 6 and 9) If the defendants were co-bhumidars with the plaintiff in the khewat and had also sirdari tenants under them, the sirdari tenants could not occupy the land of one of the co-sharers leaving the defendants alone so that the plots were re-allotted to them. 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. Even if this fact be admitted, then the legal position would be that the defendants being co-sharers of the plaintiff, would become constructive trustees on behalf of the plaintiff and the right of the plaintiff would be deemed to be protected by the trustees. In the present case, it is therefore manifest that the possession of the defendants, apart from being in the nature of constructive trustees, would be in law the possession of the plaintiff. (para 7)
22. In Mohd. Mohammad Ali v. Jagadish Kalita, the defendant contended that the predecessor's in interest of the plaintiff's ceized to be his co-sharers for any reason whatsoever. It was not necessary for them to raise the plea of ouster. The Supreme Court held that in appropriate cases, the Court may have to construe the entire pleadings so as to come to the conclusion as to whether the proper plea of adverse possession has been raised in the written statement or not which can also be gathered from the cumulative effect of the averments made therein. Long and continuous possession by itself would not constitute adverse possession. Even non-participation in the rent and profits of the land to a co-sharer does not amount to ouster so as to give title by prescription. A co-sharer becomes a constructive trustee of other co-sharer and the right of the plaintiff or his predecessors in interest would thus be deemed to be protected by the trustees. Possession of a property belonging to several co-sharers by one co-sharer shall be deemed to be possession on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers. Mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that the title of the other co-sharers was denied and disputed.
23. In Darshan Singh v. Gujjar Singh,. the Supreme Court held that if a co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse for other co-sharers unless there has been an ouster of other co-sharers. Possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharer and mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of the other co-sharer is denied.
24. It is clear from the above legal position that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue records in the name of one co-sharer would also not amount to ouster unless there is a clear declaration that title of the other co-sharer/s is denied.
25. The first defendant is claming that she is in possession of the property from the date of the death of their father and she perfected the title to the suit house by adverse possession. In order to claim that the first defendant perfected title over the suit property by adverse possession, she has to establish that there was ouster of the plaintiff from the suit house and she was in exclusive and uninterrupted possession of the property asserting title to the knowledge of the plaintiff for more than 12 years. When it is the joint property of the plaintiff and the first defendant, unless there is sufficient material to show that there was elimination of the right of the plaintiff over the suit property, the plaintiff's share will not extinguish, and, in such an event, the mere possession of the property by the first defendant for more than 12 years will not entitle the first defendant to perfect the title to the suit property by adverse possession. Though it is on record that the first defendant sold a portion of the vacant land of the suit house, no document was filed to prove the said sate to claim that there was a public notice to the plaintiff regarding the sale transaction and the plaintiff kept quiet for a considerable period without asserting her right to a share in the property. The first appellate court was therefore right in coming to a conclusion that the first defendant failed to establish that her husband became the absolute owner of the property as an illatom son-in-law or that either her husband or herself perfected the title over the suit property by adverse possession.
Point No. 3:
26. The first defendant claimed that since the plaintiff did not claim any share in the property from the date of the death of their father in 1976 and as the suit was filed in the year 1997 claiming share in the suit property, the suit is barred by limitation, therefore, it is liable to be dismissed.
27. Under Article 110 of the Limitation Act, the period prescribed to enforce a right in the share of the joint family property by way of partition is prescribed as 12 years. The limitation starts to run from the date of the denial of a share in the property. Prior to 1995 the plaintiff did not make any claim for share in the property, and the demand for share was made in the year 1995. On account of the death of the mother of the plaintiff on 26-11-1995, her undivided share of property got devolved upon the plaintiff and the first defendant. The devolution of the share after the death of their mother intestate gave a fresh cause of action for the plaintiff to claim her share of property; therefore, the question of application of Article 110 of the Limitation Act does not arise. The first appellate court rightly came to the conclusion that the suit is not barred by limitation.
28. In Chhotelal v. Premlal, AIR 1977 M.P. 34 a Division Bench of the Madhya Pradesh High Court in a suit for partition and possession in 1966 held that when the plaintiff was excluded from property in question to his knowledge from 1943-44, and the allegation of oral demand for partition in 1954 not proved, the limitation begins from the time of exclusion from property and when the title of the defendants also perfected by adverse possession, the suit is barred by time.
29. In the case covered by the above decision, it was established through evidence that there were number of acts of exclusion from the property, therefore, the Madhya Pradesh High Court gave the above judgment holding that the suit was barred by limitation. In the present case, though the plaintiff kept quiet without insisting partition of the property after the death of her father in the year 1976, the new cause of action arose after the death of her mother in the year 1995 and she raised the plea of partition in the year 1997, which is within the period of limitation. Therefore, the above ruling is not applicable to the facts of this case.
Point No. 4:
30. In view of the findings given by me on the points 1 to 3, I am of the view that the first appellate court was right in coming to the conclusion that the plaintiff is entitled for a decree of partition as prayed for. I do not find any grounds to interfere with the judgment of the first appellate court and it has to be confirmed.
31. In the result, the appeal is dismissed. The judgment and decree of the first appellate court dated 23-1-2002 in A.S.No. 3 of 1999 is confirmed. Each party to bear its own costs.