Kerala High Court
Mrs. Ammini Tharakan vs (Plaintiff And
Author: S.S.Satheesachandran
Bench: Thottathil B. Radhakrishnan, S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B. RADHAKRISHNAN
&
THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN
THURSDAY, THE 17TH DAY OF OCTOBER 2013/25TH ASWINA, 1935
AS.No. 805 of 1994 (B)
-----------------------
AGAINST THE JUDGMENT IN OS 219/1988 OF 1ST ADDL. SUB COURT, ERNAKULAM
--------------------
APPELLANTS (DEFENDANTS 8 TO 12) :
---------------------------------------------------------
1. MRS. AMMINI THARAKAN,
D/O. LATE M.C. CHANDY AND WIFE OF C.G. DAVID THARAKAN,
LAVANYA, VANITHA SAMAJAM ROAD,
VADUTHALA, COCHIN - 682 023.
2. MRS. AMBIKA VINOO MAMMAN,
D/O. 1ST APPELLANT AND WIFE OF VINOO MAMMAN
RESIDING AT NO. 17, GILCHRIST AVENUE
OFF HARRINGTON ROAD, CHETPAT,MADRAS.
3. MRS. AMALA JOSEPH,
D/O. 1ST APPELLANT AND WIFE OF BINOY JOSEPH
C/O. MR. BINOY JOSEPH, ARABIAN AMERICAN OIL COMPANY
BOX NO. 8015, DHAHRAN, SAUDI ARABIA.
4. K.M. MAMMAN MAPPILAI,
S/O. VINOO MAMMAN, (MINOR 17 YEARS),
5. K.M. THARYAN MAPPILAI,
S/O. VINOO MAMMAN, (MINOR AGED 6 YEARS)
MINOR APPELLANTS 4 AND 5 BY GUARDIAN 3RD APPELLANT.
BY ADV. SRI.R.RAMADAS
RESPONDENTS : (PLAINTIFF AND DEFENDANTS 2 TO 7)
----------------------------------------------------------------------------------
1. DR. MRS. LILLYJACOB,
DAUGHTER OF LATE DAVID THARAKAN AND WIFE OF
LT.COL. T.P.JACOB (RETD.), RETD. PROFESSOR OF GYNACCOLOGY,
RESIDING AT A-3, WHISPERING PALMS, YOUTH HOSTEL ROAD
MIRAMR, PANAJI, GOA - 403 001 (*DIED, LEGAL HEIR IMPLEADED).
...2/-
AS.No. 805 of 1994 (B) -2-
2. DR. A.A. GEORGE, SON OF LATE A.G. ABRAHAM,
MEDICAL DOCTOR, RESIDING AT 44 MINTARO AVENUE
STRATHFIELD, NEW SOUTH WALES 2135,
AUSTRALIA.
3. DR. (MRS.) ANNE MATHEWS,
D/O. LATE A.G. ABRAHAM AND W/O. WILLY MATHEWS,
MEDICAL DOCTOR, PRESENTLY RESIDING AT 18,
LORRONG BUKIT PANTAI LUCKY GARDEN
PANTAI HILLS, KUALA LUMPUR - 59100,
MALAYASIA.
4. DR. (MRS.) MINI ALEXANDER,
D/O. LATE A.G. ABRAHAM AND WIFE DR. ALEXANDER
MEDICAL DOCTOR, PRESENTLY RESIDING AT 4408,
ROBINWOOD DRIVE, VICTORIA BC, CANADA, VB N5 A2.
5. DR. (MRS.) SUSHA HINGORANI,
D/O. LATE A.G. ABRAHAM AND W/O. DR. HINHGORANI,
MEDICAL DOCTOR, PRESENTLY RESIDING AT 300 CABRAMATTA ROAD
CABRAMATTA, NEW SOUTH WALES 2166, AUSTRALIA.
6. MRS. BEENA KURIAN,
D/O. LATE A.G. ABRAHAM AND W/O. NINAN KURIAN
CHRISTIAN, TEACHER, RESIDING AT BROOK SIDE
KUZHIMATTOM, PO. KOTTAYAM - 686 533.
7. DR. (MRS.) SEEMA MUTHALALY,
D/O. LATE A.G. ABRAHAM AND W/O. DR. RANA MUTHALALY
CHRISTIAN, MEDICAL DOCTOR,
PRESENTLY RESIDING AT FLAT NO. 202, K.P. TOWER - 1,
FATHIMA NAGAR, PUNE -13. (**DELETED FROM THE PARTY ARRAY)
*ADDITIONAL RESPONDENT (R8) IMPLEADED
*8. DR. PRAMOD D. JACOB,
S/O. LATE LILLY JACOB, A3 WHISPERING PALMS,
MIRAMAR, PANAJI, GOA - 403 001.
*LEGAL HEIR OF DECEASED 1ST RESPONDENT IS IMPLEADED AS
ADDITIONAL 8TH RESPONDENT AS PER ORDER DTD. 24.7.2013 IN
IA 1383/2013.
**THE 7TH RESPONDENT IS DELETED FROM THE PARTY ARRAY VIDER
ORDER DATED 28/3/2006 IN IA NO. 1024/2006.
R1 BY ADV. SRI.CHACKO GEORGE
R2, R4 TO R7 BY ADVS. SRI.JOHNSON ABRAHAM
SRI.NELSON ABRAHAM
R8 BY ADVS. H.RAMANAN
JAMES JOSE
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09-10-2013,
THE COURT ON 17-10-2013 DELIVERED THE FOLLOWING:
Mn
"CR"
THOTTATHIL B.RADHAKRISHNAN
&
S.S.SATHEESACHANDRAN, JJ.
--------------------------------------
A.S.No.805 OF 1994
--------------------------------------
Dated this the 17th day of October, 2013.
JUDGMENT
Thottathil B.Radhakrishnan, J.
1.This appeal is against a preliminary decree for partition. Defendants 8 to 12, who are also the heirs of the first defendant, deceased pending suit, are the appellants. The parties are Christians.
2.David Tharakan died intestate in 1934 leaving behind, his wife Martha; son, the first defendant and two daughters; the plaintiff and Lucy Abraham. Defendants 2 to 7 are the legal representatives of Lucy Abraham. Plaintiff, who is the first respondent herein, died pending this appeal. Her legal representative is impleaded as additional 8th respondent.
AS805/94 -: 2 :-
3.David Tharakan had properties within the territorial limits of the then princely States of Travancore and Cochin. Before the Indian Succession Act, 1925, became applicable with effect from 1.4.1951, consequent on the coming into force of the Part B States (Laws) Act, 1951 (3 of 1951), succession to the Cochin properties was governed by Cochin Christian Succession Act, 1097, for short, the "Cochin Act", while succession to the Travancore properties was governed by the Travancore Christian Succession Act, 1092. There is no controversy that the law of succession that applies is so.
4.Plaintiff had received Rs.20,000/- as sthreedhanam in 1951, for which she executed Ext.B1 receipt in 1953. Late Lucy Abraham, politely, for brevity, called hereinafter, "Lucy", had earlier filed O.S.No.137 of 1976 seeking partition of the estate of her late father. Plaintiff herein was a defendant in that suit. On the strength of her power of attorney, her mother Martha filed Ext.B10 written statement AS805/94 -: 3 :- in that suit, along with the other defendants; all of them contesting the plaint claim. These facts are admitted.
5.Following the demise of Martha, the mother, the plaintiff sued for partition of the Cochin properties on the premise that the receipt of sthreedhanam disentitled her to claim any share in the Travancore properties. The suit was laid, claiming share as the heir of David Tharakan and also as the heir of Martha. Contemporaneous with the suit, the first defendant propounded the Will of Martha. The plaintiff contested that Will in testamentary jurisdiction before this Court. On the Will of Martha being upheld by this Court, plaintiff conceded to that situation and gave up her claim for partition of Martha's estate. Thus the plaint claim is for partition of the Cochin properties left behind by David Tharakan, less what his widow Martha got out of that estate. AS805/94 -: 4 :-
6.Lucy's heirs did not file written statement, either contesting the suit or making any claim for share.
7.Defendants 1, and 8 to 12, who are also the legal representatives of David Tharakan, contested.
8.The first defendant contended that the plaintiff having received sthreedhanam in 1951, she could not claim any share in view of Section 22 of the Cochin Act. His further plea was that the plaintiff along with him, their mother and other defendants filed Ext.B10 written statement in O.S.No.137 of 1976 filed by Lucy, clearly stating that neither Lucy nor the plaintiff herein had any right to claim any share in the properties of their late father and that the first defendant herein and his mother are alone entitled to those properties. It is the first defendant's case that in terms of Ext.B10, nothing survives and the plaintiff had given up her claim for any share in the property and that the continued conduct of the parties clearly shows that the plaintiff had AS805/94 -: 5 :- never been in possession and the first defendant was in exclusive possession and that the plaintiff does not continue to have any right to partition, having regard to the fact that the first defendant has perfected title and the plea for partition is barred by limitation.
9.Exhibits A1 to A9 and B1 to B15 were marked. The plaintiff and the eighth defendant deposed as PW1 and DW1 respectively. The court below held that her father having died prior to her marriage and receipt of sthreedhanam, Section 22 of the Cochin Act did not deprive the plaintiff of share in her father's estate and that the plaint claim is not barred by ouster or limitation. Therefore, the court below passed a preliminary decree for partition. Hence this appeal.
10.Learned senior counsel for the appellants argued, firstly, that by virtue of Section 22 of the Cochin Act, the plaintiff is not entitled to any share in the estate of her father, she having admittedly received sthreedhanam, as evidenced by AS805/94 -: 6 :- Ext.B1. It was next argued that the terms of Ext.B10 written statement in O.S.No.137 of 1976 amount to an admission by the plaintiff that she does not have a right to share in the estate of her late father. Thirdly, it was argued that Ext.B10 written statement demonstrates that the plaintiff never had any continued animus to hold any right in the estate of her late father as if it belonged to her also; and Ext.B10 is unimpeachable evidence linking a continued string of transactions evidencing adverse possession and ouster. It was argued that the first defendant, on the basis of the materials on record, had clearly demonstrated that, if at all the plaintiff had any right initially, that had been ousted and that this aspect of the matter is clearly evidenced by the conduct of parties, including the plaintiff, the first defendant, as also the other defendants.
11.Learned senior counsel for the plaintiff argued that in terms of the Evidence Act, there is no admission in Ext.B10 that could deprive the AS805/94 -: 7 :- plaintiff of her lawful rights traceable to the provisions of the Cochin Act and that the plea of adverse possession or ouster has neither been specifically taken nor proved in terms of law. He argued that it may not be proper to put the concept of animus against the plaintiff, merely on account of Ext.B10 written statement which was filed by her agent, the power of attorney holder. It was further argued relying on the decision reported in Augustine v. Thankamma Thomas [2005 (4) KLT 653] that in a near similar case, this Court had clearly laid down that long and continued possession, even under a mistaken view as to the law applicable, does not give the right which could be termed as adverse possession or ouster in terms of law. He argued that the conduct of parties in the case in hand is near similar to the facts of that case. He further argued that the mere fact that the plaintiff had received sthreedhanam would not deprive her of the right to property that she has, in relation to her late father's estate because her father David Tharakan died in 1934, that is, before the AS805/94 -: 8 :- receipt of sthreedhanam by the plaintiff in 1951, and, such receipt of sthreedhanam could not affect the right to inherit the estate of David Tharakan, since inheritance was opened up, indisputably in 1934, following the death of David Tharakan.
12.Learned counsel appearing for the heirs of late Lucy argued that the abatement of O.S.No.137 of 1976 on account of Lucy's death does not deprive the right of her heirs to obtain their legitimate share on the basis of the impugned preliminary decree, though they did not file written statement and are yet to claim share and pay court fee. He argued that their right to sue for partition is not extinguished, having regard to the fact that the cause of action to sue for partition would continue to survive.
13.When David Tharakan died intestate in 1934, he was governed by the provisions of the Cochin Act. Right to succession opens as on the date of his death. The acceptance of sthreedhanam by the AS805/94 -: 9 :- plaintiff was in 1951 and she had executed Ext.B1 receipt in 1953. Following the principles of law enunciated by this Court in Ouseph v. Saramma [1980 KLT SN 51 Case No.110) and Ouseph v. Alice [2005 (4) KLT 309], assimilating the effect of the statutory provisions contained in the Cochin Act, in particular Sections 9, 10, 17 and 18 to 23 thereof, it cannot but be held that the marriage and receipt of sthreedhanam by the plaintiff subsequent to the demise of her father are insufficient to divest her of the share in her father's estate. The plaintiff cannot, therefore, be held to be disentitled to inherit her due share in the estate of her late father.
14.Now, along with the other materials on record, by way of pleadings and evidence, what, if any, is the impact of Ext.B10, the written statement filed by those defendants in O.S.No.137 of 1976 (including the plaintiff herein) who contested that suit?
AS805/94 -: 10 :-
15.Neither the plaintiff nor late Lucy received sthreedhanam during the lifetime of their father. Therefore, following our finding in the preceding paragraph, the quality of claim that the plaintiff could have had against the estate of her late father is the same as that to which late Lucy was entitled. The relief that late Lucy had sought in O.S.No.137 of 1976 is akin to the plaint claim here. The plaintiff herein was the third defendant in O.S.No.137 of 1976. That Ext.B10 written statement was filed in opposition to the plaint claim in O.S.No.137 of 1976 is not in dispute. That it was filed through the mother of the plaintiff, as also on her behalf, as her duly constituted attorney, is also not in dispute. In paragraph 13 of that written statement filed opposing a claim in pari materia the plaint claim here, it was specifically pleaded that the third defendant (plaintiff herein) was married with sthreedhanam, like the plaintiff (in that suit) and she does not claim any share. In paragraph 14 thereof, it was pleaded that "in any view late Sri.David Tharakan AS805/94 -: 11 :- died on 21st August 1934 and his acquisition in the erstwhile Cochin State were dealt with by the 1st defendant and the 2nd defendant as the only legal heirs of David Tharakan." Defendants one and two in that suit were the widow and the son of David Tharakan.
16.That David Tharakan died on 21st August 1934 and his acquisitions in the erstwhile Cochin State were dealt with by the defendants 1 & 2 in O.S.No.137 of 1976, as his only legal heirs, is a statement, documentary, contained in Ext.B10. Even if that statement cannot be treated as an admission in pleadings to be brought under Section 58 of the Evidence Act, that statutory provision applying only to admission in pleadings and not to evidentiary admissions, we have to examine the value and relevance of that and other statements in Ext.B10 written statement.
17.Admissions, if true and clear, are by far the best proof of the facts admitted. In Avtar Singh v. Gurdial Singh [(2006) 12 SCC 552], it was held AS805/94 -: 12 :- that, admission, it is well known, forms the best evidence. In that case, it was held that though it may be that admission does not create any title, the nature of the land can form subject- matter of admission. Equally, the manner in which a person treated a piece of property, whether as belonging to him or as if it were one belonging to another is a matter on which parties' admissions, which are admissible in evidence, could be acted upon. Bearing in mind the fundamental distinction between admissions in pleadings governed by Section 58 and evidentiary admissions made relevant by Section 31 of the Evidence Act, we have to proceed on the basis that evidentiary admissions are merely relevant and not conclusive unless they operate as estoppel. Section 17 of the Evidence Act provides that a document or a statement which suggests any inference as to any fact in issue or relevant fact, is an admission provided it satisfies any among the circumstances and/or identity of persons in terms of the appropriate and relevant statutory provisions that follow that section. AS805/94 -: 13 :- Statements made by a party to the proceeding, or by an agent to any such party, whom the court regards, under the circumstances of the case, as expressly or impliedly authorised by him to make them, are admissions. An admission made by a party to the suit in an earlier proceeding is admissible as against him. Such an admission being a relevant fact, the courts are entitled to take notice thereof for arriving at a decision relying on, or on the basis thereof, together with other materials brought on record by the parties. See for support, Thimmappa Rai v. Ramanna Rai[(2007) 14 SCC 63]. The Indian law on the subject is certain. Though it is open to rebuttal in accordance with law, admission contained in a plaint or written statement or in an affidavit or sworn deposition by a party in a previous litigation would be regarded as an admission in a subsequent action - See Deb Prosanna v. Hari Kison [AIR 1937 Calcutta 515], Chendikamba v. Viswanathamayya [AIR 1939 Madras 446], Lal Singh v. Guru Granth Sahib [AIR(38) 1951 Pepsu 101] and Mst.Ulfat v. Zubaida Khatoon AS805/94 -: 14 :- [AIR 1955 Allahabad 361]. An admission by a party in a previous suit is admissible in evidence in a subsequent suit. The burden is upon the party making it to show that it was wrong on the principle that what a party himself admits to be true may reasonably be presumed to be so, though the party making the admission may give evidence to rebut this presumption. Unless and until that is satisfactorily done, the fact admitted must be taken to be established. This is true notwithstanding the fact that the statement which amounts to an admission was not put to the party making it, when that person came into the witness box. Here, the plaintiff, who was a defendant in Lucy's suit, had filed Ext.B10 written statement through her power of attorney holder and mother Martha. That written statement contained the clear stand that neither Lucy nor the plaintiff herein had any share in any of the assets forming the estate of late David Tharakan. This statement which amounts to an admission as to a particular state of affairs, has not been explained by the plaintiff either in the plaint or at any point of AS805/94 -: 15 :- time in any manner worthy of being accepted as a rebuttal. While it is the law that admission does not confer title, what we treat as admissions here is demonstrative of the plaintiff's animus in re inheritance to her father's estate. We proceed to discuss that aspect further in the succeeding paragraph.
18.Section 114 of the Evidence Act, with Explanation I thereto, provides that facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or good-will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling is in issue. A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally, but in reference to the particular matter in question. The contents of Ext.B10 filed on behalf of the plaintiff herein also, eloquently demonstrate AS805/94 -: 16 :- that, for all intents and purposes, the heirs of David Tharakan, of course, except late Lucy, had unequivocally taken the definite stand that only his widow and son, the first defendant herein, had right over the estate left behind by David Tharakan. The existence of such a state of mind, insofar as the plaintiff is concerned, was clearly demonstrated by the specific plea in Ext.B10 written statement that even in her case, she had not made any claim to any share in the estate of David Tharakan, she having been paid sthreedhanam. What is an issue here is not whether she had made an admission in derogation of her statutory right under the Cochin Act to share in the estate of her late father; but whether, in filing Ext.B10 written statement, with such plea, the plaintiff herein had clearly demonstrated her animus, that is, intention and state of mind, not to hold out that she has any right to share or possession in the estate left behind by her father David Tharakan. AS805/94 -: 17 :-
19.Section 114 of the Evidence Act provides that the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. By way of Illustration (d) to that Section, it is shown that the court may presume that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence; of course, having regard to the precautionary limits indicated therein. It is the general presumption that things once proved to have existed in a particular state are to be understood as continuing in that state until the contrary is established by evidence, either direct or circumstantial. Though not obligatory, but only permissive, courts cannot ignore situations where drawing of such presumptions is necessary, or, even, necessarily, to be done, having regard to the facts and circumstances of a given case. AS805/94 -: 18 :-
20.In the case in hand, plaintiff's father left behind properties in the erstwhile Travancore and Cochin States. Lucy, who had in pari and analogous rights as the plaintiff therein, filed her suit seeking partition in 1976. Ext.B10 written statement was filed in 1976 itself. The plaintiff is a doctor. As was done by her sister, she has also given up any claim to share in the Travancore properties. The plaint claim is nothing but what she could have advanced even by conceding to Lucy's claim in the suit of 1976. But, she not only opposed Lucy's claim, but also took the specific stand that she does not have a share in any of the assets forming the estate of the late David Tharakan. What is relevant is not as to whether any admission would confer or deprive title; but the fact that the plaintiff, by her conduct of filing Ext.B10 written statement in the 1976 suit had clearly demonstrated that she never intended to hold out any right or claim in relation to the estate of her late father David Tharakan and her such AS805/94 -: 19 :- demonstrable state of mind was referable to the fact of her having received sthreedhanam in 1951. But for such a state of mind in 1976, she would not have taken the stand that she did, in Ext.B10 written statement. Such state of affairs being shown to have existed in 1976 and, in the absence of legal evidence of any further contradicting conduct till the issuance of the suit notice and institution of the suit in hand, it cannot but be reasonably presumed that such state of mind and intention of the plaintiff was in existence much before the suit of 1976; may be dating back even to 1951, and continuing until the present suit was conceived and filed in 1988. In our view, such presumption as to continuity in the state of affairs including the state of mind and intention of the plaintiff, is inescapable on the facts and circumstances of the case.
21.The aforesaid clear cut distinction on facts rules out the possibility of applying Augustine (supra) as a relevant precedent. Here is a case where the state of mind, intention and conduct of AS805/94 -: 20 :- the parties are so apparent, that it cannot be assumed that the plaintiff had ever thought of any right until the pronouncement of the Apex Court in Mary Roy & others v. State of Kerala & others [1986 KLT 508(SC)]. In fact, Lucy's suit was filed in 1976, much before Mary Roy's case was decided. It is in that case that Ext.B10 written statement was delivered. Not only that, the plaint claim does not revolve on any question as to the applicability of the Indian Succession Act vis-a-vis the Cochin Act. The plaint claim is based on the Cochin Act. Therefore, the question whether the first defendant had been enjoying the property under the mistaken notion of law does not arise.
22.Section 27 of the Limitation Act, 1963, provides that at the determination of the period limited, by that Act, to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. In G.P.Ribera and Others v. Varughese Kurien and Others [AIR 1967 Kerala 69], the Division Bench of this Court held AS805/94 -: 21 :- that if the party who is not in possession for 12 years and whose suit for possession is therefore barred, is again let into possession, he is not remitted to his old title. The principle is that when the title of the former owner has been extinguished by prescription, his title is not restored and he will be treated as a trespasser, should he come into possession again. Atchamma v. Papiah and Others [ILR Vol.XLIV Mad. 131] was a case where among different daughters who jointly succeeded to the estate of a person, one of them excluded the others from the enjoyment of the estate for more than twelve years and had also alienated some of the properties. It was held that with the extinction of the right to joint possession under Section 28 of the Limitation Act then in force (Section 27 of the Limitation Act, 1963), the right of survivorship, which is only an accretion to the right to joint possession, was also lost. Jagatram v. Pitai [AIR 1930 Nagpur 142] was decided laying down that the expression "the right to such property" under Section 28 of the Limitation Act (Section 27 of the Limitation AS805/94 -: 22 :- Act, 1963) includes the right to joint possession. A person whose right to recover joint possession is extinguished in terms of the relevant article of the Limitation Act, cannot elude the operation of that extinguishment by framing the suit in any other manner. Atchamma (supra) was relied on to say so. It was held that the expression "the right to such property"
must include the right to joint enjoyment also, and when such right to possession was extinguished, the right to claim joint possession was also gone. The Division Bench of the Andhra Pradesh High Court, in D.R.Adinarayanaswamy v. Girraju Papamma and another [AIR 1963 AP 121], noted the settled principle of law 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 AS805/94 -: 23 :- 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- heirs' title. But, 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. The burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession. Making reference to the decision of the Supreme Court in Chanabavana Gowd v. Mahabaleswarappa [AIR 1954 SC 337], what was laid down in D.R.Adinarayanaswamy (supra) is that the conduct by way of non-participation in the enjoyment of the profits of the property or absence of objection to the exclusive enjoyment by the other co-owners and also the denial of one's own right as a co-owner and possession of AS805/94 -: 24 :- another to the exclusion of the other heirs amount to clear evidence of ouster. We are in complete agreement with the proposition of law as so laid down. On facts, we are of the view that the said principle provides formidable support to the contention of the first defendant that the plaintiff, having pleaded in Ext.B10 written statement in opposition to the suit of her sister that not only that she did not have a right to sue, but also that the plaintiff herein has also no share in the property, had clearly demonstrated her animus leading to extinguishment of rights.
23.The documentary evidence, other than Ext.B10, produced by the contesting defendants, show that the widow of David Tharakan and the first defendant, the son of that couple, dealt with the suit properties as if they belonged exclusively to them. Their such enjoyment cannot but be treated as open and to the knowledge of the plaintiff, having regard to the pleadings in Ext.B10 written statement, wherein plea of AS805/94 -: 25 :- adverse possession is specifically made even as against Lucy. Not only that, the first defendant and the mother are shown to have dealt with the properties, for all intents and purposes, including in statutory proceedings, by treating such properties as belonging exclusively to them. This is also the manner in which the mother categorized the properties when she made the request in favour of her son, the first defendant, whose Will has since been upheld in probate jurisdiction. This is quite distinct from the fact that mere long possession for a period beyond twelve years, without intention to possess suit land adversely to the title of the plaintiff cannot result in adverse possession - see Deva v. Sajjan Kumar [2003 AIR SCW 4501]. In the later decision of the Apex Court in Nelapatla Ramaiah & Ors. v. Kamatam Bikshamaiah & Ors.[2010 SAR (Civil) 198], it was held that where properties changed hands on different occasions without any objection being taken at any point of time by the plaintiff, such possession was to be held as hostile and adverse to the interest of the AS805/94 -: 26 :- plaintiff. In L.N.Aswathama & Anr. v. P.Prakash [2009 SAR(Civil) 684], it was held that when a person is in possession asserting to be the owner; even if he fails to establish his title, his possession would still be adverse to the true owner, and the two pleas, one asserting title, and the other, setting up of a plea of adverse possession are not inconsistent pleas but only pleas in the alternative. Sooppi v. Moosa [1996 KLT 121] and Adichan Ayyan v. Kurumpi [1975 KLT 293] are authorities for the proposition that, in the absence of any evidence to show that there was any manner of sharing the profits of the property, and, with the evidence that one among the sharers has been acting as if he alone is entitled to it, such open and exclusive enjoyment of the property for a long number of years amounts to ouster of the rights, if any, of the other sharers. On a study of the aforesaid judgments and also the others cited, including Mohan Lal v. Mirza Abdul Gaffar [(1996) 1 SCC 639], P.Periaswami v. P.Periathambi [(1995) 6 SCC 523], Mohd. Mohammad Ali v. Jagadish Kalita AS805/94 -: 27 :- [(2004) 1 SCC 271] and P.T.Munichikkanna Reddy v. Revamma [(2007) 6 SCC 59], we would state, as law, that each case has necessarily to be decided on the peculiar facts and circumstances forming the foundation of the rival claims. While there could be some definite legal parameters, there cannot be any straight jacket formula to decide on the issue of adverse possession or ouster among co-owners and that there could also be cases where the facts lead to nothing but the clear conclusion as to extinguishment of rights.
24.In the light of the aforesaid discussions, the overwhelming conclusion based on the pleadings, facts and evidence in this case, is that the plaintiff had lost her right to claim partition in the Cochin properties and the suit was liable to be dismissed. Therefore, the impugned preliminary decree does not stand.
In the result, this appeal is allowed setting aside the impugned decree and judgment. The suit is dismissed. Having regard to the relationship AS805/94 -: 28 :- between the parties, we leave them to suffer their respective costs.
THOTTATHIL B.RADHAKRISHNAN Judge S.S.SATHEESACHANDRAN Judge kkb/sha AS805/94 -: 29 :- THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ.
= = = = = = = = = = = = = = = = A.S.NO.805 OF 1994 = = = = = = = = = = = = = = = = Judgment 17th October, 2013