Kerala High Court
Devaki Amma Mookambi Amma vs Meenakshy Amma Vijayama And Anr. on 23 June, 1989
Equivalent citations: AIR1990KER37, AIR 1990 KERALA 37, (1989) 2 KER LT 130 1989 (2) KER LJ 82, 1989 (2) KER LJ 82
JUDGMENT
1. Does a divided member of a family obtaining possession of property in excess of his share, under an award of an Arbitrator, prescribe title by adverse possession in respect of that excess share, by being in possession for over twelve years from the date of the award or docs the time run only from the date when the award was made a rule of Court? This, in short, is the simple question that arises for determination in this Second Appeal.
2. The first defendant in a suit for declaration of title and for recovery of possession is the appellant. The facts are admitted and the question of law alone remains for consideration. The plaintiff and the first defendant are members of the same family. In 1954, the family members entered into an agreement to refer to the arbitrators the division of the family properties. The Arbitrators passed an award in 1956, Ext. A1 dt. 25-5-1956. Pursuant to the award, the parties were given possession of their share of properties by the arbitrators and in the process, the 1st defendant obtained some lands in excess of her share. That was in 1956. Sy. No. 324/1, the red marked portion in Ext. C1 plan allotted to the plaintiff was handed over to the 1st defendant. She has been in the possession of this excess property from 1956 onwards. The award was filed in Court and a decree in terms of the award was passed on 30-7-1962 (Ext. A2). In 1969, notices were issued to the plaintiff's mother and her brother by the Revenue Divisional Officer informing them that the Government would take over possession if the land was kept uncultivated. The plaintiff's mother informed the officer that the properties had not been demarcated and unless it was done, ii was difficult for her to carry on cultivation. The Tehsildar, thereafter, measured the property and fixed the boundary. The plaintiffs ease is that while the measurement was being taken, defendants I and 2 with the help of the husband of the 1st defendant, put up a bund, obstructed the plaintiff in cultivating the land and therefore the plaintiff was compelled to file a suit under Section 6 (now Section9) of the Specific Relief Act for possession. That suit was dismissed on 23-10-1971, but without any decision on title. Thereafter, the present suit was filed for recovery of possession on the strength of title on 20-12-1971.
3. The Courts below have accepted the position that the 1st defendant got possession of the plaint disputed item in 1956 and she continued possession thereafter. On this finding, the appellant contends that she has perfected title by adverse possession and limitation and the plaintiff cannot thus recover possession from her. This plea was accepted by the trial Court. However, in appeal, the Sub-Court found that the title vested in the appellant only when the Court pronounced judgment according to the award and when a decree followed on 30-7-1962 and the suit having been filed within 12 years from that date, the appellant did not perfect her title by any adverse possession. It is this judgment and decree that is challenged by the appellant.
4. The counsel for the appellant laid stress on the principle that possession under a mistaken impression that the land belonged to the claimant himself can give rise to a claim for adverse possession and relied on the following passage in Wood, Limitation of Actions, Vol. 2, Page 1276:
"As to whether a party can set up an adverse possession to lands occupied by him under a mistake supposing the same to belong to him, when in point of fact they arc outside of his real claim, the doctrine evidently is that, where a grantee, in taking possession under his deed, goes unintentionally and by mistake beyond his proper boundaries, and enters upon and actually occupies and improves lands not included in the deed, claiming and supposing it to be his, this occupation is to he deemed adverse within the meaning of the statute of limitation and, if continued the requisite length of time, will bar the right of the true owner."
This passage has been cited with approval in Madhavan Nair v. Karthiyaniamma, 1954 Ker LT 195. He also contended that family became divided in status when the reference to arbitrators was made in 1954, the properties were partitioned by metes and bounds by the arbitrators and the properties were allotted to the different sharers by the arbitrators themselves in 1956. Thus the title to the properties became vested in the parties as early as 1956 and when from that date, one of the sharers remained in possession of the disputed plaint item mistakenly supposing the same to belong to her, she was in adverse possession from 1956 and perfected her title after 12 years, long before the suit filed on 20-12-1971.
5. The counsel for the plaintiff-respondent, however, contends that title became vested in the sharers only when the award ripened into a decree by Court on 30-7-1962 and the plaintiff could initiate action for recovery of possession only from the date of the decree and time can run only from that date and the suit filed within 12 years from that date was well within time.
6. The concept of partition of a joint family property is too well-known, and well-settled by decisions that the principles do not require to be re-examined and re-stated. As was observed by the Privy Council in Girija Bai v. Sadashiv Dhundiraj, 43 Ind App 151 at p. 161 : AIR 1916 PC 104 at p. 108:
"Partition does not give him (a coparcener) a title or create a title in him; it only enables him to obtain what is his own in a definite and specific form for purposes of disposition independent of the wishes of his former co-sharers."
7. Partition is not transfer. Each member of a Hindu Joint or Marummakkathayam family, has an antecedent title; but the exact extent of his share is determined only when partition of his share is effected. An unequivocal unilateral declaration of severance by one member of the family communicated to the other members constitutes a severance in status of that member; but partition takes place only, when, after severance, the properties are divided by metes and bounds.
8. Partition can be effected cither by agreement of parties, or through Court or by arbitration. In this case, the parties agreed to divide the family properties through arbitrators and the matter was therefore referred to the arbitrators in 1954. The members became divided in status on the date when they agreed to refer the question of partition to the arbitrators. The matter is then governed by the provisions of the Arbitration Act, 1940.
9. Under Section 14 of the Arbitration Act, when the arbitrators have made their award, they shall sign the award, and shall give notice in writing to the parties, of the making and signing thereof. The arbitrators, shall, at the request of any, party to the arbitration agreement cause the award or a signed copy of it to be filed in Court. When the Court sees no cause to remit or set aside the award, the court shall proceed to pronounce judgment according to the award and upon judgment so pronounced, a decree shall follow (Section 17). The award made by the arbitrators thus became an enforceable decree of court. Prior to this Act, under Section 15 of the Arbitration Act of 1899, the award was "enforceable as if it were a decree of the Court", more or less conforming to Section 12 of the English Act of 1889 under which, "An award on a submission may, by leave of the Court or a Judge, be enforced in the same manner as a judgment or to the same effect". Formerly, a Court had no jurisdiction to pass a decree on the basis of an award and the award was only treated as a decree, for its enforceability and for its execution. Now the Court is given the authority to pass a decree in accordance with the terms of the award and the decree which follows the award under Section 17 is executable as any other decree. An award by the arbitrator is not a judgment. Black on Judgments, 2nd Edn. at page 2, states thus:
"Decision of any Arbitrator, self-constituted or chosen by the litigants is not judgment. The law speaks only by its appointed organs. It is only when the deliverance comes from a true and competent Court that it is entitled to be called a judgment."
The arbitrator had no power to enforce the award. It is to circumvent these difficulties, to confer on the parties an enforceable right to execute the award, that Section 17 of the Act empowered a Court to pass a decree in terms of the award. These principles are clearly stated, if I may say so with respect, in the Full Bench decision of the Madras High Court in Mohamed Yusuf v. Mohd. Hussain, ATR 1964 Mad 1.
10. When the parties refer the question of partition to arbitrators and the arbitrators make an award, and file the award in Court and a decree in accordance with the award is passed by a Court of Law under Section 17 of the Act, the sharers to whom the properties are allotted by the arbitrator obtained a valid title, an enforceable right to initiate action for immediate possession of the strength of that decree. The decree under Section 17 thus furnishes the cause of action and the legal title to enforce the arbitrators' award. With Section 17 of the Arbitration Act in the background, some of the settled principles of adverse possession and limitation may also be briefly summed up.
11. In one of the very early decisions, in Malkarjun Mahadeo v. Amrita Tukaram, (1918) ILR 42 Bom 714 : (AIR 1918 Bom 142), it is held thus:--
"The classical definition of the term 'adverse possession' is that given by Mr. Justice Markby in Bejoy Chunder Banerjee v. Kally Prosonno Mookerjee (1879 ILR 4 Cal 327), where the learned Judge said: "By adverse possession 1 understand to be meant possession by a person holding the land, on his own behalf, of some person other than the true owner, the true owner having a right to immediate possession". These last words are of capital importance, because, as pointed out by Mr. Justice Batty in Tarubai v. Venkatrao (1903 ILR 27 Bom 43), they express the well-known rule which is conveyed in the maxim contra non valentem agere non currit prcscriptio, that is to say prescription does not run against a man during the time when he is not entitled to immediate possession."
12. In P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314 at p. 319, 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 Edn.), Vol.1, Lecture VI, 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. (AngelI, Sections 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, the true owner would then be in a position to maintain an action...."
13. In one of the early decisions of the Calcutta High Court in D. Narain Roy v. Joges Chandra De, AIR 1924 Cal 600 at p. 609, it was held thus:
"....The substance of the matter is that time runs when the cause of action accrues, and a cause of action accrues when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed : .............
Consequently the true test to determine when a cause of action has accrued is to ascertain the time when plaintiff could first have maintained his action to a successful result"."
14. Possession, actual, open, notorious, exclusive and adverse for the statutorily prescribed period is one mode of acquisition of title recognised by the statute of limitation. 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 pracscriptio ("No prescription runs against a person unable to bring an act ion") (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 docs not commence. These principles accepted by the decisions referred to above apply to the facts of this case. The plaintiff's right to protect his possession of the properties that were allotted to his share arose only on 30-7-1962 when the decree was passed. Any invasion of his right to possession could have been legally protected in a Court of Law only after the decree of Court under Section 17 of the Arbitration Act, not earlier. The time started running against the plaintiff only from 1962 and the possession of the 1st defendant, adverse to the plaintiff, till the filing of the suit on 20-12-1971 was not sufficient to constitute the 12 years required for acquiring prescriptive title.
15. There is also yet another ground to reach the same conclusion. Till a decree was passed by Court on 30-7-1962, under Section 17 of the Arbitration Act the possession of the 1st defendant was on behalf of the other members of his family, not only on his own individual, separate right. After the parties became divided in status, during the process of partitioning the properties, the properties can be in the possession of some or all the members of the family. But such possession is not adverse to the other members. That possession is retained as a member of the family, not in assertion of any separate rights. Possession is not adverse when it is referable to a lawful title and possession is attributed to a lawful origin, wherever it is possible. The possession of the 1st defendant, an undivided member, till a decree for partition was passed in 1962 thus did not constitute adverse possession. After the decree was passed, when the first defendant remained in possession of the property of the plaintiff, mistakenly believing it to be her property, the possession was adverse to the plaintiff; but that adverse possession did not prescribe any title as the suit was filed within 12 years thereof.
In the result, the lower Court was right in decreeing the suit. There are no grounds to interfere in Second Appeal. The Second Appeal is dismissed. No costs.