Andhra HC (Pre-Telangana)
Tavidisetty Venkateswara Rao vs Tavidisetty Nageswara Rao on 26 September, 2003
Equivalent citations: 2003(6)ALD654, 2003(6)ALT161
JUDGMENT D.S.R. Varma, J.
1. This Letters Patent Appeal is directed against the decree and judgment made in A.S. No. 2698 of 1993, dated 29-11-2001, of a learned Single Judge of this Court.
2. The above A.S. No. 2698 of 1993 arose out of the decree and judgment made in O.S. No. 254 of 1998, dated 11-8-1993, on the file of the Subordinate Judge, Vijayawada, which was filed by the plaintiff for partition and possession of half share in the plaint schedule property and for profits. Aggrieved by the decree for partition and possession, the appellant in A.S. No. 2698 of 1993 brought the said appeal, which was ultimately dismissed, confirming the decree and judgment of the Subordinate Judge, Vijayawada, made in O.S. No. 254 of 1998, by the learned Single Judge of this Court. Having been aggrieved by the judgment of the learned Single Judge, the present Letters Patent Appeal is preferred by the defendant in O.S. No. 254 of 1998 and the appellant in A.S. No. 2698 of 1993 on the file of this Court.
3. For the sake of convenience, the parties will be referred to as arrayed in the suit.
4. To appreciate the rival contentions that have been canvassed before us, it would be necessary to give a brief resume of the material facts.
5. One Tavidisetti Nageswara Rao filed the suit in O.S. No. 254 of 1988 against the sole defendant Tavidisetti Venkateswara Rao for partition of plaint schedule property into 2 equal shares and for separate possession of one such share to the plaintiff and for a decree of Rs. 2,100/- towards past profits for six months prior to suit and for costs, mainly contending inter alia "that the defendant is the eldest son of the plaintiff through his first wife viz., Ramulamma, and the Ramulamma died intestate in the year 1972, and that the schedule property was the Sthreedhana property of late Ramulamma, as the same was purchased by her under a registered sale deed, dated 9-9-1959, and that after her death the said schedule property had devolved upon both plaintiff and defendant as per the provision of Hindu Succession Act, 1956, as they being the only nearest legal heirs, and that the defendant being a minor at the time of death of Ramulamma, plaintiff had the custody and protection of defendant, and the schedule property was being enjoyed jointly and had been paying taxes etc., and that six months prior to suit, misunderstandings arose and that the defendant was appropriating the entire profits, without paying the share of the plaintiff, and that plaintiff issued a legal notice demanding partition on 8-3-1988, and on non-co-operation, the plaintiff had to file the above suit.
6. The defendant filed his written statement mainly contending inter alia "that the relationship is admitted and the Ramulamma died intestate in the year 1972, and that Ramulamma purchased the plaint schedule property in the year 1959 is also admitted. The nature of the property being Sthreedhana was denied. It was specifically pleaded that Ramulamma had inherited landed property from her father, which was situated at Warangal, and as it was faraway, she sold away the same and purchased a site and constructed a house therein, which is the plaint schedule property, and as such the plaintiff would not have any share in the said property, and that the defendant was always in possession and enjoyment of the plaint schedule property with absolute rights of ownership and possession, ever since the date of death of his mother and perfected his rights of title and ownership thereon by adverse possession for over statutory period, as of right and exclusively. It was also specifically contended by the defendant; that any management was only during, his minority, that too on his behalf and plaintiff never claimed any rights or title thereon, and that his conduct also amounts to relinquishment of his rights, if any. The further pleading of the defendant was that his father married another lady and begot children, and for performing the marriage of eldest son of second wife, the plaintiff requested the defendant to raise loan of Rs. 5,000/- for his benefit, and that he would repay soon, and that defendant borrowed the said sum on 1-7-1987 from one Peridi Vasudeva Rao on promissory note, and since the defendant insisted the plaintiff to repay the debt, upon the evil advise and pressure of second wife, brought this present suit in retaliation, and as such sought for dismissal of the suit."
7. The Trial Court basing on the above pleadings framed the following issues:
(1) Whether the plaintiff is entitled for partition and separate possession of the plaint schedule property as prayed for?
(2) Whether the plaintiff is entitled for past profits and future profits, if so at what rate?
(3) To what relief?
8. In the Trial Court, the plaintiff got examined himself as P.W.1 and marked Exs. A-1 to A-65 and on behalf of the defendant, D.Ws.l to 3 were examined and Exs. B-1 to B-10 were marked.
9. On appraisal of oral and documentary evidence adduced by the parties, the Trial Court held that the plaintiff was entitled to half share in the plaint schedule property along with defendant, as per the provisions of Section 15(1) of the Hindu Succession Act, 1956, and on the plea of adverse possession, the Trial Court found that the defendant could not establish and substantiate his claim of prescriptive title by adverse possession, and negativing the contentions of the defendant, the trial Court decreed the suit, with costs as prayed for by passing a preliminary decree accordingly.
10. Thereupon, the appellant herein. preferred an appeal A.S. No. 2698 of 1993 to this Court. The learned Single Judge of this Court had also taken the same view, that the provisions of Section 15(1) of the Hindu Succession Act, 1956, only govern the present case and not the provisions of Section 15(2) and as such the plaintiff was entitled to half share in the plaint schedule property along with the defendant. The learned Single Judge brushed aside the plea of adverse possession raised by the defendant in his judgment by holding as follows:
"Coming to the plea of adverse possession, it is evident from the series of documents like receipts for tax and land revenue, that both the parties are in possession jointly. In the circumstances, it cannot be held that the defendant is in possession exclusively adverse to the plaintiff. Thus, there are absolutely no merits in the appeal and the same is accordingly dismissed. No costs."
11. Thereupon, the appellant has preferred the present Letters Patent Appeal against the judgment of the learned Single Judge.
12. We have heard Sri T. Veerabhadrayya, the learned Counsel for the appellant, and Sri S.A. Chari, the learned Counsel for the respondent.
13. Sri T. Veerabhadrayya, the learned Counsel for the appellant/defendant, took us through the pleadings and the judgments passed by the trial Court and the learned Single Judge of this Court, and also the relevant documents, and relevant oral evidence while substantiating his case.
14. The learned Counsel for the appellant strenuously contended that the plaintiff failed to establish and prove that the suit property was Sthreedhana property of late Ramulamma having purchased the same with her own monies and that he is entitled to half share as per Section 15(1) of the Hindu Succession Act, 1956. It was also contended by him that since the property in question was purchased by Ramulamma by disposing of her inherited property from her father, the plaintiff would not have any right in view of Section 15(2) of the Hindu Succession Act, 1956. In other words, the learned Counsel for the appellant would contend that it is Section 15(2) and not Section 15(1) of the Hindu Succession Act, 1956, would govern the present case, and that the trial Court as well as the learned Single Judge were in error in applying Section 15(1) of the Hindu Succession Act, 1956.
15. Per contra, Sri S.A. Chari, the learned Counsel appearing for the respondent/ plaintiff, would contend that it is Section 15(1) of the Hindu Succession Act, 1956, that would apply, and both the trial Court as well as the learned Single Judge were right in interpreting the section and were also right in decreeing the suit.
16. Though we did not find much force in the argument of the learned Counsel for the appellant, and since we are called upon to decide whether the provisions of Section 15(1) or Section 15(2) would apply to the given facts, we wish to answer the same, as these questions would fall for consideration frequently in number of cases.
17. For a better and proper appreciation of the case, it would be appropriate on our part to reproduce the relevant provision i.e., Section 15 of the Hindu Succession Act, 1956, which is as under:
Section 15: General rules of succession in case of female Hindus :--(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16-
(a) Firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband;
(b) Secondly, upon the heirs of the husband;
(c) Thirdly, upon the mother and father;
(d) Fourthly, upon the heirs of the father; and
(e) Lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),--
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband."
18. The Apex Court had an occasion to consider and interpret the above section in V. Dandapani Chettiar v. Balasubramanian Chettiar (Dead) by LRs., 2003 (1) Decision To-day (SC) 656. While interpreting the above, the Apex Court held as under:
"9. The above section propounds a definite and uniform scheme of succession to the property of a female Hindu who dies intestate after the commencement of the Act. This section groups the heirs of a female intestate into five categories described as Entries (a) to (e) and specified subsection (1). Two exceptions both of the same nature are engrafted by sub-section (2) on the otherwise uniform order of succession prescribed by sub-section (1). The two exceptions are that if the female dies without leaving any issue, then (1) in respect of property inherited by her from her father or mother, that property will devolve not according to the order laid down in the five entries (a) to (e), but upon the heirs of the father; and (2) in respect of property inherited by her from her husband or father-in-law it will devolve not according to the order laid down in the five entries (a) to (e) of sub-section (1) but upon the heirs of the husband. The two exceptions mentioned above are confined to property 'inherited' from the father, mother, husband and father-in-law of the female Hindu and do not affect property acquired by her by gift or by device under a will of any of them. The present Section 15 has to be read in conjunction with Section 16 which evolves a new and uniform order of succession to her property and regulates the manner of its distribution. In other words, the order of succession in case of property inherited by her from her father or mother, its operation is confined to the case of dying without leaving a son, a daughter or a children of any predeceased son or a daughter.
10. Sub-section (2) of Section 15 carves out an exception in case of a female dying intestate without leaving son, daughter or children of a pre-deceased son or daughter. In such a case, the rule prescribed is to find out the source from which she had inherited the property. If it is inherited from her father or mother, it would devolve as prescribed under Section 15(2)(a). If it is inherited by her from her husband or father-in-law, it would devolve upon the heirs of her husband under Section 15(2)(b). The clause enacts that in a case where the property is inherited by a female from her father or mother, it would devolve upon the other heirs, but upon the heirs of her father. This would mean that if there is no son or daughter including the children of any predeceased son or daughter, then the property would devolve upon the heirs of her father. Result would be - if property is inherited by a female from her father or her mother, neither her husband or his heirs would get such property, but it would revert back to the heirs of her father."
19. In the above judgment, the Apex Court also taken into consideration, the observations of the judgment of a Madras High Court in Ayi Ammal v. Subramania Asari and Anr., , The said observations of the Madras High Court are re-extracted as under for ready reference:
"The succession to a female Hindu generally is provided for under Sub-section (1) of Section 15 an exception has been engrafted under sub-section (2) recognizing a different mode of devolution in respect of property which the woman acquired by inheritance, in a way to a very limited extent recognizing the old Hindu law in the matter which restricted a woman's estate in inherited property and provided for its devolution as from the last full owner. Prima facie, the exception engrafted seeks to retain in the father's family property inherited by the deceased lady from her parents and similarly seeks to retain in the husband's family property inherited from her husband or father-in-law. The word "inherit" means to receive as heir, that is, succession by descent."
20. So, the undisputed facts in this case are that Ramulamma died intestate leaving behind the son and husband, who are defendant and plaintiff respectively. So, in the very presence of the son, it cannot be contended that Section 15(2) would attract. Apart from it, the learned Counsel for the respondent submits that even assuming that Ramulamma purchased the plaint schedule property after selling away the inherited property, still it cannot be said that the plaint schedule property is inherited property because when once the nature of the inherited property is altered or changed or substituted, it loses the impression or character of inherited property and in support of this contention, relied on E. Veeraraghavamma v. G. Subbarao, 1976 ALT 77 (NRC) = AIR 1976 AP 377, wherein it was held that the property which would be the subject of Section 15(2)(a) of the Act should be in same state, in which it was inherited. It was further held that if the property inherited by a female is later on changed or converted into any other use, it does not remain at all available on the death of such a person and, therefore, the question of devolving back would not arise.
21. A Division Bench of this Court in Pamulapati Venkata Subbamma v. Gogineni Veeraiah (Died) Per LRs., , following the above judgment in E. Veeraraghavamma's, 1976 ALT 77 (NRC) = AIR 1976 AP 377, case, had taken the same view. The relevant portion of the judgment of the Division Bench is extracted as under:
"In E. Veeraraghavamma v. G. Subbarao, 1976 ALT 77 (NRC) = AIR 1976 AP 377, another Division Bench of this Court held that the property which would be the subject-matter of Section 15 (2) (a) of the Act should be in the same state in which it was inherited. It went further in saying that if the property inherited by a female is later on changed or converted into any other use, it does not remain at all available on the death of such of a person and therefore its devolving back would not arise."
22. The said Division Bench, relying on various judgments, held in the following terms:
"In Ayi Ammal v. Subramania Asari, , the Madras High Court held that if the property is gifted to a female by her parents and the woman died intestate, Section 15(1) of the Act will govern the case. Similar views were expressed in the judgments reported in O.M. Meyyappa v. Kannappa, AIR 1976 Madras 154 and Jayantilal v. Chhanalal, . Analyzing these judgments, we feel that once the property gifted out to a female or by way of a will it becomes her own property and this property cannot be treated to have been inherited. There is another angle to look to the problem. For instance, a lady acquires property by way of gift from a third party, that means the property is gifted out to her by a stranger being not her relation, then what would happen to that property if the lady died intestate. The property has to be considered to be the self-acquired property of the lady and it would be governed by Section 15(l)(b) of the Act."
23. In view of the above discussion, we find no merit in the argument of the learned Counsel for the appellant on this point and we are of the firm view that it is Section 15(1) that governs the present case and not Section 15(2) of the Hindu Succession Act, 1956. Hence, this point is answered against the appellant/defendant and as a sequel to it, we hold that the plaintiff is entitled to half share in the plaint schedule property along with his son.
24. The next submission made by the learned Counsel for the appellant is that, if for any reason the Court were to hold that the plaintiff is entitled to half share along with his son, the son has perfected his title by adverse possession by ousting his father for over a statutory period.
25. The trial Court though adverted to adverse possession aspect, by referring to the various case laws cited at the Bar, found with the plaintiff that his title is not destructed by adverse possession. Likewise, the learned Single Judge of this Court also negatived the plea of adverse possession and ouster solely relying on the tax receipts as some of which were paid by the plaintiff. Neither the trial Court nor the learned Single Judge bestowed much attention to the important and crucial aspect of the case. It is an established principle of law that a plea of adverse possession is always a mixed questions of fact and law. It being a mixed questions of fact and law, the trial Court and the learned Single Judge ought to have more elaborately discussed the issue as it would go to the root of the matter.
26. As the learned Counsel for the appellant laid much stress on the point of adverse possession and ouster, we feel it is our duty to go into this aspect in more detailed manner, as the trial Court and the learned Single Judge rejected the plea without there being much discussion. Bearing in mind the scope and ambit of Clause 15 of the Letters Patent Appeal, we would deal with the point.
27. The learned Counsel for the appellant has taken us through the evidence of the plaintiff and the evidence let in by the defendant. After scanning the deposition of the plaintiff, we were literally shocked at the conduct and behaviour of the plaintiff and his attitude towards his son and wife. The plaintiff as P.W.1 in his cross-examination stated that his wife died in 1972 and thereafter he married one Surya Bai and begot children through her. It was further admitted in the cross-examination that P.W.1 and Surya Bai were having illicit intimacy even before the death of his first wife. It was deposed that P.W.1 and Surya Bai resided at Suryaraopeta since 1966 for some time and thereafter they shifted to Singhanagar after purchasing the house.
28. The plaintiff had the audacity to say that he and his concubine were leading immoral and illegal life and begot children during the subsistence of first marriage with Ramulamma even by 1966. We have to presume that when they could purchase a house and lead their immoral life from 1966, the illicit intimacy could have been even prior to that. Therefore, there was a total abandonment of his first wife and minor son even before 1966. The further admission of P.W.1 is that Srinivasa Rao was his eldest son through his concubine Surya Bai born in 1967 and Durga Rao was his second son through her, and that he performed their marriages, would go to show that at least from 1966 onwards, he had never turned back to see the welfare of his minor son and his first wife Ramulamma, To gain the sympathy of the Court, he deposed that when Ramulamma died the defendant was 3 years old, and therefore, he had taken him to Singhanagar, which is apparently a deliberate false statement with regard to the age of the defendant. Again at another place, P.W.1 admitted that when Ramulamma died the defendant was 17 years old. So, we can easily come to a conclusion in view of his own admission that the defendant was 17 years old by 1972 i.e., the year of death of Ramulamma, and within one year thereafter, the defendant must have attained majority. So, the only solace offered to the defendant by his father was taking him to his house where he was staying with Surya Bai and his children. So, the plaintiff never resided in the plaint schedule house after the death of Ramulamma. The marriage of defendant was performed by the plaintiff and his second wife Surya Bai, and since the wife of defendant and Surya Bai were unable to adjust with each other, the defendant had set up his own residence, and thereafter shifted to the plaint schedule house and residing there. We quiet notice how much mental agony and torture both Ramulamma and her son, the defendant, must have suffered because of the deplorable conduct of the plaintiff.
29. Be that as it may, the present suit was filed in the year 1988, claiming half share in the only residential house, which belonged to Ramulamma, which was under the possession of the defendant.
30. Here is a case, where the plaintiff who has abandoned his wife and minor son in the year 1966, comes to the Court in the year 1988 after a lapse of 16 years after the death of his wife, making a claim for half share in the plaint schedule property.
31. The plaintiff pleads that till prior to six months of filing of the suit, the defendant was paying his share of profits and suddenly stopped and as such there was a demand for partition and for possession by metes and bounds. When we look at the plaint, it is so cryptic, and does not furnish any details, such as what was the quantum of rents the defendant was realizing or who were the tenants of the plaint schedule property. He does not even know who were the tenants. If really the profits were being paid by the defendant, and were stopped due to misunderstandings, any prudent person, who issues a legal notice demanding partition and share in the profits, would naturally issue notice to the existing tenants, in three portions, which fact was mentioned by the defendant. At least, when the suit was filed, an attempt would have been made to implead them, which was not done, would clearly indicate that he was never having any knowledge about the occupation of the house by tenants, and his evidence that he managed the plaint schedule property during the minority of the defendant also seems to be a myth.
32. The learned Counsel for the appellant has contended before us that ever since the death of Ramulamma, the defendant enjoyed the plaint schedule property, with absolute rights of ownership and possession and has perfected his title by adverse possession and ouster for over a statutory period as of right exclusively. The plaintiff might have managed the plaint schedule property during the minority of the defendant, but he never claimed any right or title thereon. The learned Counsel for the appellant further submit that the conduct of the plaintiff would also amount to relinquishment of his rights even if there be any. The evidence of the defendant was not demolished in any way and nothing useful could be elicited in his cross-examination.
33. On the contrary, the learned Counsel for the respondent vehemently contended that the plaintiff never relinquished his rights in the plaint schedule property and under law he is entitled to half share along with the defendant, as they succeeded as co-heirs under the provisions of Hindu Succession Act, 1956, and as such the theory of adverse possession has no place between co-owners since the possession of one co-owner or co-shares, is on behalf of the other also. It was further contended by the learned Counsel for the respondent that the trial Court as well as the learned Single Judge rightly concluded that there was no perfection of title by adverse possession by the defendant. It was also contended that several tax receipts would show the possession of the plaintiff as well.
34. From the above factual matrix, we have to examine whether the defendant was able to demonstrate before us that he perfected his title by adverse possession, to the plaint schedule property, and whether there was any ouster?
35. It is axiomatic that in the case of co-owners, the plea of adverse possession can succeed only if ouster is alleged and proved. Though the pleading contain a general averment of adverse possession and limitation, the Court can treat the plea to the adequate, and what the Court has to see is whether the ouster is made out from the evidence. The decision in Munnalal v. Kashibai, AIR 1947 PC 15, supports the view that when the plaintiff alleges hostile title, and leads evidence of possession for over statutory period which, if accepted, would extinguish the title of true owner, it is not necessary for him to plead in terms of adverse possession, for whether such possession is adverse or not is a question of evidence and not a matter of pleading.
36. What constitutes ouster is well explained in V. Sooppi v. N. Moossa, , by a Division Bench of Kerala High Court, which is extracted as under:
"We shall at the outset extract one paragraph from the judgment of the Supreme Court already referred to, because that paragraph, in our opinion, furnishes answers for all the questions raised in this case. Paragraph 4 reads:
"Now the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario (see Secretary of State for India v. Debendra Lal Khan; 61 Ind. App. 78 at p. 82 = AIR 1934 PC 23 at p. 25). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor (see Radhamoni Debi v. Collector of Khulsa, (1900) 27 Ind App 136 at p. 140 (PC). But, it is well settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. 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 not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title (see Corea v. Appuswamy, 1912 AC 230). It is a settled rule of law that as between coheirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. This does not necessarily mean that there must be an express demand by one and denial by the other. There are cases which have held that -adverse possession and ouster can be inferred when one co-heir takes and maintains exclusive possession in assertion of hostile title and continues in such possession for a very considerable time and the excluded heir takes no steps to vindicate his title. Whether that line of cases is right or wrong we need not pause to consider. It is sufficient to notice that the Privy Council in N. Varada Pillai v. Jeevarathnammal, (AIR 1919 PC 44 at p.47) quotes, apparently with approval, a passage from Culley v. Deo Taylorson (1840 3 P and D 539 = 52 RR 566) which indicates that such a situation may well lead to an inference of ouster "if other circumstances concur. (See also Govind Rao v. Rajabai, AIR 1931 PC 48). It may be further mentioned that it is well settled that the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession."
Ouster is certainly a positive matter and the hostile animus necessary to constitute ouster must also be a positive matter. It is a matter involving action: it cannot be mere inaction. If the co-owner in possession did not give a share of the income to the co-owner out of possession merely because the latter did not ask for it, then, such animus may be only a negative animus. On the other hand, if the evidence shows that even if the co-owner out of possession demanded his share the co-owner in possession would not have given him a share, then, the animus is positive, in the sense that it is indicative of an animus to exclude. For entertaining a hostile animus to oust the real owner, the person in possession need not know who the real owner is. If he has the animus to hold the property as his against the whole world including the real owner, whoever he be, known or unknown, the animus is sufficiently hostile to exclude the real owner also."
37. It was further at page No. 319 as under:
"The plea of ouster cannot be founded on any fugitive conduct on the part of a person putting it forward. It has to be rested on an open and continuous execution of the co-owner, to his knowledge from enjoyment. The question as to whether the evidence in a particular case is sufficient of infer ouster will depend on the fact in each case and no hard and fast rule can be laid down. In Mohiudeen Abdul Khadir v. Md. Mohiudden Umma, (I.L.R. (1970) 2 Mad. 636) the distinction between the adverse possession as against a co-owner and the adverse possession by a stranger, has been indicated. In the case of adverse possession on the part of a stranger, it is sufficient that the possession is overt and without any attempt at concealment, so that the person against whom time is running ought, if the exercised due vigilance, to be aware of what was happening. But, in the case of a co-owner, to constitute adverse possession, there must be something more than the mere exclusion of possession and perception of profits, and there must be denial of the rights of the co-owner over the property and that denial must be made to his knowledge. Certain factors have been considered to be relevant in examining this aspect: viz., (1) dealing by the party in possession treating the properties as exclusively belonging to him, and (2) the means of the exclused co-share of knowing that his title has been denied by the co-owner in possession (MM. Shaffiulla v. P.A. Mahaboob Sahib (1978) 2 M.L.J.R. 397 At P. 401.)"
38. The propositions relating to ouster are as follows:
"(a) non-participation by one of two co-owners in the possession and enjoyment of the property belonging to them as co-owners for an extended period, coupled with the absence of any claim or demand for participation, may amount to ouster of such co-owner; whether it does or not depends upon the facts and circumstances of each individual case;
(b) if in the circumstances of any particular case such non-participation and absence of demand cannot be interpreted by themselves as exclusion or ouster, it is necessary for the party claiming title by adverse possession to prove some further specific acts of ouster;
(c) such ouster must in its nature be an open assertion of a hostile title, such that an actual or constructive knowledge thereof is clearly attributable to the party intended and sought to be excluded.
(d) adverse possession will then start from the date of such act or acts;
(e) minority is no bar to acquisition of title by adverse possession, if the person claiming such adverse possession does not bear to the person against whom he claims . it any anterior relationship such as that of agent, bailiff, trustee, etc. The denial of title and the animus to hold adversely should, however, be clear and evidenced by unequivocal conduct. It is not necessary, even in cases of co-owners that for ouster the possession of the other co-owner must be by violent or intimidating exclusion or repulsion, or under notice of the adverse holding, actually brought home to the other co-tenant by personal or formal communication. It is sufficient, if the contrary is not proved that the circumstances show that such knowledge may reasonably be presumed. It is true that exclusive possession by one co-owner without any claim or demand by others or non-participation in land and profits by other does not necessarily arise an inference of ouster. In order to constitute ouster, should be an intention to exclude the other co-owner of the possession. Such intention is expressed either by assertion of exclusive title or by denial of the title of the other co-owner or by merely keeping out of possession the other co-owner in spite of protest."
39. So, bearing in mind the legal principles mentioned supra, we have to see whether the defendant has perfected his title by adverse possession and ouster?
40. The defendant in his evidence was very categorical that his father abandoned him and his mother and was living with another woman. That his mother fell ill even by 1970. That his mother died in the year 1972 and the income from suit house was being spent for his education and he never accounted to his father and there was never sharing of income. He further deposed that he himself was collecting the rents, though he was staying with his father, till he was married. Thereafter, he himself got evicted Mr. Bullayya, the tenant, and shifted his residence into the plaint schedule house with his wife. That he was employed in Bezawada Automotive Manufacture Limited, Vijayawada. That he himself had paid the taxes and some times at his request his father paid the taxes, by paying money. That is how, the plaintiff came into custody of some of the receipts. That his father never made any claim in the suit schedule property, and according to him, the plaintiff has given up his rights in the suit schedule property for the last 30 years.
41. The defendant also examined his maternal uncle as D.W. 3, who is no other than the brother-in-law of the plaintiff. He has deposed that when the defendant's mother Ramulamma died, the plaintiff did not come to the village. It was the defendant, the minor son, who had to perform all the obsequies. This part of the evidence was not countered by the plaintiff in his cross-examination.
42. After careful examination of rival contentions and marshalling of the entire evidence on record, the irresistible conclusions we draw are:
(1) that the plaintiff abandoned his wife and the defendant prior to 1966 and never turned back to enquire even about their welfare.
(2) that the plaintiff was leading immoral life with one Surya Bai and begot children even by 1967 i.e., prior to the death of Ramulamma.
(3) that the plaintiff never visited the wife when she fell ill in the year 1970.
(4) that the plaintiff did not go to see the dead body of Ramulamma after hearing the news of death, as deposed by D.W. 3, which was not countered, nor denied in the cross-examination.
(5) that the defendant-son had performed the obsequies of his 'mother', as deposed by D.W. 3.
(6) that the defendant was 17 years old from the very admission of the plaintiff in his evidence.
(7) that for a brief period the son was taken to Singhanagar, and even then the father had not chosen to stay with the defendant in the suit schedule house.
(8) that absolutely there was no evidence whatsoever that the plaintiff managed the suit schedule house, either during the minority of the defendant or thereafter, and the plaintiff himself admitted that there is no documentary evidence whatsoever.
(9) that the defendant on the other hand alone continued in possession of the plaint schedule property although exercising control over the property, by collecting rentals, and exhibiting his exclusive right by setting up hostile animus against his father, the plaintiff.
43. The learned Counsel for the respondent submitted that the possession of the property by the son though however long it might be, cannot confer him any right, unless it is adverse to the other co-owner. In support of this contention, he relied on the judgment of the Apex Court in Udaya Chand v. Subodh Gopal, . The learned Counsel further contended that non - participation in rents and profits by the co-sharer out of possession, does not amount to ouster, so as to give title by adverse possession to the other co-sharer in possession. In support of this contention, he relied on the judgment of the Apex Court reported in Karbalai Begum v. Mohd Sayeed, .
44. In view of the above it was urged before us that mere non-participation of rents by the plaintiff and exclusive possession of the defendant over the suit schedule property, would not by itself destruct the title of the plaintiff and as such the plea of adverse possession and ouster should not be entertained.
45. We are conscious of the fact that as between co-heirs, there must be evidence upon assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the notice of the other, so as to constitute ouster. In this case, it is brought out in evidence that there was assertion and hostile title openly from 1973 onwards and it was the defendant alone who was enjoying the property exclusively to the knowledge of the plaintiff i.e., the father. Though non-participation of rents may not by itself amount to ouster, but when the same is coupled with other circumstances, it would be one of the factors for finding out whether there was any ouster. The defendant was in fact letting out the suit schedule property and appropriating the rents for himself and was exercising the control by evicting the tenants and on the other hand though the plaintiff had the knowledge of exclusive assertion of hostile title by the defendant, never made any claim for profits or partition for over a statutory period.
46. The Apex Court in Wuntakal Yalpi Chenabasavana Gowd v. Rao Bhadur Y. Mahabaleshwarappa and others, 1954 SCR 131, held at page No. 137 as under:
"Once it is held that the possession of a co-sharer has become adverse to the other co-sharer as a result of ouster, the mere assertion of his joint title by the dispossession co-sharer would not interrupt the running of adverse possession. He must actually, and effectively break up the exclusive possession of his co-sharer by re-entry upon the property or by resuming possession in such manner as it was possible to do. It may also check the running of time if the co-sharer who is in exclusive possession acknowledges the title of his co-owner or discontinues his exclusive possession of the property."
47. From the above judgment it is clear that when once it is held that possession of a co-sharer has become adverse to the other co-sharer, as a result of ouster, the mere assertion of his title by the dispossessed co-sharer would not interrupt the running of adverse possession. He must actually and effectively break up the exclusive possession of his co-sharer by re-entry upon the property or by resuming the possession in such a manner as it was possible to do. It may also check the running of time, if the co-sharer in exclusive possession acknowledge the title of his co-owners or discontinues his exclusive possession over the property.
48. Hence, we are of the view that the defendant attained the majority by 1973 itself, in view of the very admission of the plaintiff in his deposition that the defendant was 17 years old by the date of death of Ramulamma. The defendant even from 1973 exhibited hostile animus and exercised possession to the exclusion of his father. We do not give much importance to the tax receipts produced by the plaintiff or defendant, since no mutation had taken place and as per the revenue records, still Ramulamma's name is being recorded.
49. Be that as it may, the plaintiff never made any claim for profits from 1973 till 1988 when the legal notice was issued to the defendant, nor ever any demand was made claiming share in the suit schedule property or any partition was ever sought for excepting for the first time in the suit in the year 1988 i.e., after lapse of 15 years.
50. Analyzing the above principle laid down by the Larger Bench of the Apex Court and on the material available on record in the present case, there is neither resumption of physical possession or reentry of the property by the plaintiff. Hence, we are of the firm view that the defendant had denied the title of the plaintiff and animus to hold adversely was established clearly and was evidenced by his unequivocal conduct and as such perfected his title by adverse possession, as the ouster is proved. Therefore, this plea of adverse possession and ouster is upheld in favour of the defendant against the plaintiff and the issue is answered accordingly.
51. In the result, this appeal is allowed with costs all through and the judgment and decree in O.S. No. 234/1998 and the judgment and the decree of the learned Single Judge in A.S. No. 2698/1993 are set aside.