Andhra HC (Pre-Telangana)
S.Sugunamma, W/O Late Chandra Reddy, ... vs 1.B.Padmamma, W/O Narayana Reddy, Aged ... on 12 July, 2017
Author: N.Balayogi
Bench: N.Balayogi
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN AND HONBLE SRI JUSTICE N.BALAYOGI
Appeal Suit No.868 of 2012
12-7-2017
S.Sugunamma, W/o late Chandra Reddy, Aged 57 years, Occ: Housewife, R/o Chinna Kanjarla Village, Patancheru Mandal, Medak D
1.B.Padmamma, W/o Narayana Reddy, Aged 67 years, Occ: Housewife, R/o Isnapur Village, Patancheru Mandal, Medak District; and
Counsel for the Appellant:Mr. Prabhakar Sripada
Counsel for Respondents 1&5to8: Smt. Gadiraju Rajeshwari
Counsel for Respondents 2to4: Mr. P.Venkat Reddy
Counsel for Respondent No.11: Mr. Meherchand Nori
<Gist:
>Head Note:
? Cases referred:
1. (1992) 1 SCC 197
2. AIR 1956 SC 209 (AP)
3. AIR 1957 SC 314
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN
AND
HONBLE SRI JUSTICE N.BALAYOGI
Appeal Suit No.868 of 2012
Judgment: (per V.Ramasubramanian, J.)
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 1/5th 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. 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
defendants 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 defendants 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 defendants 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 the1st
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 defendants 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. 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.
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. 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 , an illatom
son-in-law is a creature of custom. The Supreme Court quoted
in the said decision, a passage from Maynes 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 coparceners
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 , 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. 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 Reddys 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. 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 Reddys 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. 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 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-heirs 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. 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.
__________________________
V.RAMASUBRAMANIAN, J.
_______________ N.BALAYOGI, J. 12th July, 2017.