Madras High Court
Gnanasubramanian vs Subramaniaya Pillai And Ors. on 5 March, 1998
Equivalent citations: (1998)3MLJ588
Author: D. Raju
Bench: D. Raju
JUDGMENT D. Raju, J.
1. The above second appeal has been filed by the plaintiff in O.S. No. 910 of 1980 on the file of the District Munsif's Court, Villupuram, who succeeded before the learned trial judge but lost before the first appellate court in A.S. No. 7 of 1983, where under the learned Subordinate Judge, Villupuram, chose to reverse the judgment and decree of the learned trial Judge.
2. The suit O.S. No. 910 of 1980 came to be filed for partition and separate possession of the plaintiff's 1/4th share of the suit property and 1/4th share rent from the date of the plaint. The case of the plaintiff is that the suit property belonged to one Jankirama Pillai and his sons, who are defendants 1 to 3, fourth defendant being the daughter and the fifth defendant the wife of Jankirama Pillai. First defendant sold his 1/4th share to the plaintiff under a registered sale deed dated 5.7.1967, marked as Ex.A-2, and the father Jankirama Pillai is said to have died in the year 1973 leaving behind three sons, daughter and wife. Since the plaintiff wanted his share divided by metes and bounds and defendants 1 and 3. though, initially were offering to sell, later, did not pursue the same, the plaintiff was driven to the necessity of filing the suit noticed supra. The second defendant filed a written statement which was adopted by the third defendant contending that the sale said to have been effected in favour of the plaintiff was neither valid nor binding, that knowing that the plaintiff had purchased a portion from the first defendant, the defendants along with their father issued a registered notice on 6.9.1967, marked as Ex.B-3 which was also received by the plaintiff and that he kept quiet all along till the suit in question came to be filed on 26.8.1980. It was also contended that the first defendant, who sold a share in the property, was out of possession of the property and when the attempt of the purchaser to claim possession was resisted, the plaintiff must be considered to have been ousted from the property at least on and from the date of the notice Ex.B-3 and that Jankirama Pillai, the father has executed a settlement in favour of defendants 2 and 3 and by virtue of their continuous, uninterrupted and open possession and enjoyment of the property, they have also prescribed title by adverse possession. On the above claims and counter claims, the suit came to be filed and tried and both the parties have adduced oral and documentary evidence.
3. Learned trial Judge while placing reliance upon the decision in Manikayala Rao v. Narasimhaswami , held that were a person has purchased an undivided interest of a coparcener, adverse possession against him would not commence until there is a partition and allotment of the properties to the purchaser and consequently, the suit filed was well within the period of limitation and the plaintiff is entitled to decree as prayed for. Aggrieved, defendants 2 to 5 filed A.S. No. 7 of 1983. Learned first appellate Judge while placing reliance upon the decision in V.C. Thani Chettiar v. Dakshinamurthi Mudaliar (1955)1 M.L.J. 414 : A.J.R. 1955 Mad. 28 and also the observations contained in Manikayala Rao , held that in view of the challenge made even in the year 1967 to the sale deed in favour of the plaintiff and the right of his vendor to sell the property to the plaintiff, the right of the plaintiff to possession commenced even in the year 1967 itself and since within 12 years from the said date no steps have been taken by the plaintiff, the suit was barred by time and the respondents before the first appellate court (Plaintiff and his vendor were ousted from possession and thereby, the defendants perfected their title by adverse possession. Aggrieved, the above second appeal has been filed.
4. Mr. Sivaraman, learned Counsel appearing for the appellant, while elaborating the substantial questions of law formulated in the appeal, contended that the suit by a purchaser of a coparcener's undivided 1/4th share, filed no doubt, beyond a period of 12 years from the date of said purchase, cannot be said to be barred by time, that a coparcener of an undivided joint family cannot claim to have perfected title to the property by adverse possession as against another coparcener at any length of time and that the learned first appellate Judge ought to have applied the principles contained in Manikayala Rao A.I.R. 1966 S.C. 470 and sustained the claim of the appellant by dismissing the appeal before the first appellate court.
5. Learned Counsel for the respondents Mr. T. Dhanaykumar, adopted the reasons assigned by the first appellate Judge and submitted that thee is no need for interference in this appeal.
6. In support of this claim, learned Counsel for the appellant invited my attention to the decisions in Manikayala Rao v. Narasimhaswami , V.V. Thani Chettiar v. Dakshinamurthi Mudaliar , Md.Kaliba v. Md.Abdullah , T.N. Shetti v. Appalaraju . The decision of the Supreme court in Manikayala Rao consisted of two opinions, one rendered by two learned Judges and the other a separate but, concurring opinion. The said decision itself has adverted to the decisions reported in V.C. Thani Chetliar , and Sidheshwar and therefore, I consider it unnecessary to separately refer to them.
7. The decision in Manikayala Rao required reference particularly of the circumstances also in which it came before the Supreme Court. Pursuant to a money decree obtained, 4/5th share of the property were put to auction and the sale was confirmed in favour of the court auction purchaser. The said purchaser, in his turn, sold the same to another person and thereupon he was able to secure an order from the competent court under Order 21, Rule 35(2) of the Code of Civil Procedure and 96 of the Code of Civil Procedure for delivery of joint possession of the properties purchased to the ultimate purchaser from the court auction purchaser along the members of the joint family, who are in actual possession. Pursuant to the said order, consequentially action appears to have been taken and in carrying out the orders of the court, possession was said to have been delivered to the ultimate purchaser from the court auction purchaser by publishing the same by beat of drum as per the rules. When the court auction purchaser filed a suit for his 4/5th share, he was declared to be entitled to 2/3rd share only and when the matter was taken up before the High Court, it was held that the suit was barred by limitation tinder Article 144 of Schedule I to the Limitation Act, 1908. The cross-objection filed by the court-auction purchaser for the entire 4/5th share also appears to have been dismissed and it is in such circumstances, the matter was pursued before the Supreme Court.
8. The Supreme Court was concerned with the question as to whether the suit was barred by limitation and whether the court auction purchaser was entitled to 4/5th share as claimed by him. So far as the question of limitation is concerned, Arts. 144 and 120 of the Act were pressed into service and their Lordships of the Apex Court instead of going into the question as to whether the two Articles noticed above, be attracted to the case before them, resolved to proceed with the consideration of the matter on the assumption that Article 144 of the old Limitation Act alone would apply. Thereupon, in a majority by opinion rendered, it was held as under :
As earlier stated the High Court held that Article 144 applied. The application of this article seems to us to present great difficulties to some of which we like to refer. The article deals with a suit for possession of immovable property or any interest therein not otherwise specially provided for and prescribes a period of twelve years commencing from the date when the possession of the defendant becomes adverse to the plaintiff. This article obviously contemplates a suit for possession of property where the defendant might be in adverse possession of it as against the plaintiff. Now, it is well settled that the purchaser of a coparcener's undivided interest in joint family property is not entitled to possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener whose share he had purchased. His right to possession "would date from the period when a specific allotment was made in his "favour" : Sidheshwar Mukerjee v. Bhubneshwar Prasad Narain Singh, . It would, therefore, appear that Sivayya was not entitled to possession till a partition had been made. That being so, it is arguable that the defendants in the suit could never have been in adverse possession of the properties as against him as possession could be adverse against a person only when he was entitled to possession. Support for this view may be found in some of the observations in the Madras Full Bench case Vyapuri v. Sonama Boi Ammani, 29 M.L.J. 645 : I.L.R. 39 Mad. 811 : A.I.R. 1916 Mad. 990(F.B.).
9. With reference to the claim of adverse possession and the point of time when the possession became adverse against the court auction purchaser in the majority opinion, it has been held as follows :
Having expressed our difficulties on the matter, let us proceed on the assumption without deciding it, that Article 144 is applicable. Even so, it seems to us that the suit as is not barred. It is not in dispute that in order that the suit may be barred under the Article the defendant must have been in uninterrupted possession for twelve years before the date of the suit. Now, in the present case that was not so. By the delivery of symbolical possession under the order of November 6, 1939, the adverse possession of the defendants was interrupted. Time has, therefore, to commence to run from that date and so considered, the suit having been brought within twelve years of that date, it was not barred under that article. That would follow from the case of Sri Radha Krishna Chanderje v. Ram Bahadur , where it was held that delivery offormal possession also interrupted the continuity of adverse possession.
(8) It was, however, said that the order for delivery of possession made in the present case was a nullity because Sivayya and his transferee who had purchased an undivided share in coparcenerey property were not entitled to any possession at all. We agree that the order cannot be supported in law but we do not see that it was for this reason a nullity. It is not a case where the order was without jurisdiction. It was a case where the learned Judge making the order had, while acting within his jurisdiction, gone wrong in law such an order has full effect if it is not set aside, as it was not in this case. Yelumalai Chetti v. Srinivasa Chetti I.L.R. 29 Mad. 294, to which we were referred, does not support the contention that the order was a nullity, There a purchaser of an undivided share in coparcenary property at an execution sale had applied for possession under Section 318 of the Code of Civil Procedure of 1882 which correspondents to Order 21, Rule 95 of the present Code. That application was dismissed as barred by limitation, Later, the purchaser who had subsequently, acquired the interest of the other coparceners in the property under a private sale, filed a suit for possession of the whole It was contended that the suit was barred under Section 244 of the Code (Section 47 of the present Code) as the purchaser could only proceed by way of execution. In dealing with that contention it was said that though the purchaser of an undivided share in co-parcencery property was only entitled to ask for a partition, it was not competent to a court on a mere application for execution by a purchaser of such a share at a court sale to order a partition, and, therefore, the dismissal of the application under Section 318 of the old Code had no effect by way of res judicata on the second suit for possession. This case said nothing about the legality of an order under Order 21, Rules 35, 95 or 96.
(9) It seems to us that the question of adverse possession is one of fact, If the person against whom adverse possession is set up shows that he had in fact obtained possession, whether lawfully or not, that would interrupt any possession held adversely against him. The question is whether there was in fact an interruption, of the adverse possession and not whether that interruption was justifiable in law. Under the order for delivery of symbolical possession, whether it was legal or otherwise, Prakasalingam did obtain possession and this was an interruption of the adverse possession by the respondents. In respect of the present suit time under Article 144 must, therefore, commence form that interruption.
(10) We wish to observe here that this aspect of the matter exposes the anomaly that seems to arise from the application of Article 144 to this case, if Prakasalingam's possession under the order of November 6, 1939 was not possession in law because, as is contended, he was not entitled to possession at all, then it would be difficult to hold that at that time somebody else was holding the property adversely to him. Since Prakasalingam or his successor Sivayya was not entitled to possession till after the decree in a suit for partition brought by him, Article 144 would seem to be inapplicable to that suit.
10. Ramaswami, J, delivered a separate opinion, which as noticed earlier, was a concurring one, but with additional reasons, so, far as the question of adverse possession and the point of time when such possession became adverse with particular reference to Article 144 of the Act it was held as follows :
Before dealing what the question as to which Article of the Limitation Act applies to the present case it is necessary to examine the legal position of persons like Sivayya who purchase shares of some of the coparceners of the Hindu joint family. It is well settled that the purchaser does not acquire any interest in the property sold and he cannot claim to be put in possession of any definite piece of family property. The purchaser acquires only an equity to stand in the alienor's shoes and work out his rights by means of a partition. The equity depends upon the alienation being one for value and not upon any contractual nexus. The purchaser does not become a tenant in common with the other members of the joint family. He is not entitled to joint possession with them. The alienee's suit for partition must be one for partition of the entire property and not for he partition of any specific item of, or interest in, the family property, such a suit, however, will not be technically on a par with a suit for partition filed by a coparcener. Such a suit would not have the necessary effect of breaking up the joint ownership of the members of the family in the remaining property nor the corporate character of the family. (Magne's Hindu Law, eleventh edition, page 489).
On behalf of the appellants learned Counsel put forward the argument that the right of the alienee to sue for partition is a continuing right and there is no period of limitation for enforcing such right. In my opinion, there is no warrant for this argument. A suit for partition filed by the alienee from a coparcener is not, in technical sense, a suit for partition and, as already stated, such a suit will not have the necessary effect of breaking up the joint ownership of the members of the family in the joint property nor the corporate character of the family. As observed by Bhashyam Ayyanagar, I in Aiyyagiri Venkataramayya v. Aiyyagari Ramayya I.L.R. 25 Mad. 690 at 717 (F.B.) :
"The vendee's suit to enforce the sale by partition is not a suit for 'partition', in the technical sense in which partition' or 'vibhaga' is used in the Hindu Law. A suit for partition, in the technical sense, can be brought only by an undivided member of the family. The right to such partition is personal to him and not transferable. Such a suit can be brought only in the lifetime of the coparcener and even if so brought, it will abate if he should die before final decree, without leaving male issue. A partition in the technical sense, whether effected amicably or by decree of court, breaks up not only the joint ownership of property, but also the family union i.e., the corporate character of the family, Each member thereafter becomes a divided member with a separate line of heirs to himself. An undivided member of a family, though he may alienate either the whole Gurulingapa v. Nandapa I.L.R. 21 Bum. 797 or, any part of his undivided share will continue to be an undivided member of the family with rights of survivorship between himself and the remaining members in respect of all the family property other than what he has transferred. The transferee, however, does not step into the shoes of the transferor as a member of the family and there will be no community of property between him and all or any of the members of the family in respect either of the property transferred to him or the rest of the family property.
In my opinion, a suit like the present one will fall within Article 144 of the Limitation Act. It is true that an alienee of an undivided interest of a Hindu coparcener is not entitled to joint possession with the other coparcener and he is also not entitled to separate possession of any part of the family property. But the alienee is entitled to obtain possession of that part of the family property which might fall to the share of his alienor at a partition. What the alienee acquires by a purchase is not any interest in specific family property but only an equity to enforce his right in a suit for partition and have the property alienated set apart for the alienor's share. If possible, In the present case the alienee has instituted a suit for general partition with the prayer that he may be put in possession of that part of the family property which may be allotted to his alienor. It is not right to consider such a suit as a suit for more partition. The main relief sought by the plaintiff is the relief for possession of that part of the property which may be allotted to the alienor." share and a relief for partition is only a machinery for working out his right and ancillary to the main relief for possession of the property allotted to the alienor's share. What the plaintiff seeks is actual delivery of possession. In my opinion, such a suit falls within the purview of Article 144 of the Limitation Act and the law on this point is correctly state in Thani v. Dakshinamurthy I.L.R. (1955) Mad. 1278 : A.I.R. 1955 Mad. 288.
If Article 144 is the proper article applicable, when does time commence to run? According to the third column of Article 144, time begins to run from the date when the possession of the defendant becomes adverse to the plaintiff. As I have already pointed out, the possession of the non-alienating members of the family cannot be deemed to be possession on behalf of the alienee also, because the purchaser-alienee does not acquire any interest in the property sold and does not become tenant in common with the members of the family nor is he entitled to joint possession with them. It is clear that in the absence of a clear acknowledgement of the right of the alienee or participation in the enjoyment of the family property by the alienee, the possession of the non-alienating coparceners would be adverse to the alienee, from the date on which he became entitled to sue for general partition and possession of his alienor's share. The fact that the alienee has purchased and undivided interest of joint family property is not inconsistent with the conception of adverse possession of that interest. As Lord Radcliffee observed in A.I.R. 1950 P.C. 44 at 47 :
Now it is the respondent's case-it is in fact their main contention on this issue-that the appellant has never at any time had 'adverse' possession against them because the disputed property being a four-anna undivided share, his possession has been throughout no more than a joint possession with them. And the joint possession which coparceners enjoy in respect of the undivided property involves that, prima facie, the exclusive possession of any one of them is not adverse to the others. Their Lordships have no doubt of the validity of this general rule : but they are unable to think that it will be in any way departed from if they hold that in respect of the disputed property itself the appellant's possession has been adverse to the owners of the other shares. In truth there is some confusion involved in the argument. What is in question here is not adverse possession of the block of property in which the various undivided interests subsist but adverse possession of one undivided interest. Article 144 certainly extends the conception of adverse possession to include an interest in immovable property as well as the property itself nor was it disputed in argument by the respondent that there could be adverse possession of an undivided share, given the appropriate circumstances.
In the present case, therefore, adverse possession began to run from the date of purchase of the undivided share i.e., from December 21, 1936 but it was submitted on behalf of the appellants that Prakasalingam obtained symbolic delivery and possession of the undivided share on November 6, 1939 after notice to defendants 2 to 5 and there was a fresh cause of action to sustain the present suit for possession. It was contended on behalf of the respondents that the symbolic delivery was illegal and the executing court was not competent to make an order of delivery of possession, either symbolic or actual with regard t the sale of an undivided interest of joint family property. In support of this argument reliance was placed on the decision in I.L.R. 29 Mad. 294, in which it was held that the purchaser at a court sale of the share of an undivided member of a joint Hindu family acquires only a right to sue for partition and for delivery of what may be allotted as the share of such undivided member and the court cannot, on a mere application for execution by such purchaser, enforce his right by an order for partition. It was further held that no such order can be made under Section 318 of the Code of Civil Procedure and the dismissal by the court of an application by the purchaser, under Section 318 cannot be a bar to a suit by the purchaser for partition. Even assuming that the grant of symbolic delivery of possession ought not to have been made and that the executing court acted illegally in making such an order, it cannot be argued that the executing court had no jurisdiction to make the order of that the act of symbolic possession was a nullity in the eye of law. I am, therefore, of the opinion that the grant of symbolic possession was a nullity in the eye of law. I am, therefore, of the opinion that the grant of symbolic possession by the court in favour of Prakasalingam after notice to the defendants 2 to 5 was tantamount in law to delivery of actual possession and, therefore, sufficient to break up the continuity of adverse possession in favour of the defendants. In A.I.R. 1917 P.C. 197(2), it was held by Lord Summer that symbolic possession was available to dispossess a party sufficiently where he was a party to the proceedings in which it was ordered and given I am accordingly of the opinion that the suit of the plaintiff is not barred by limitation under Article 144 of the Limitation Act and the view taken by the High Court on this part of the case is not correct and must be overruled."
11. In Md.Kaliba v. Md.Abdullah , a Division Bench of this Court held in a matter concerning a suit for partition and separate possession filed by an alienee from Muslim-co-sharer that Article 144 of the old Limitation Act would apply and that possession in the hands of a co-sharer of a property owned in common is on behalf of all the co-shares and mere non-participation in the receipts from immovable property or mere inaction in respect of it for any length of time on the part of one or more of the co-sharers is not regarded as amounting to ouster or as investing the possession in the hands of one of the co-sharers with an adverse character against other co-sharers. In T.N. Shetti v. V. Appalaraju , it was observed that the court auction purchaser of an undivided share is entitled to possession only from the date when the specific allotment is made in his favour and a specific allotment cannot be said to have been made by mere division in status, the only legal consequence of such division in status of a joint Hindu family being that the erstwhile coparceners become "tenants in common" without any member becoming entitled to a specific portion of the property that belonged to the joint family.
12. In K.S.K.P. Subbayan Chettiar v. K. Ramu and Ors. (1996)2 L.W. 73, S.S. Subramani, J. had an occasion to deal with an identical question in the context of right of a purchaser from an undivided coparcener. The learned Judge considered the matter at length by adverting to the decision in Manikayala Rao A.I.R. 1966 S.C. 470. The ratio underlying the decision as rendered by the learned Judges of the majority opinion and also of the one learned Judge, who rendered a separate, but, concurring opinion and approving the principles laid down in G.R.V. Rajan v. Tube Investments of India Ltd. represented by its Company Secretary, Madras-1. 1955 L. W. 274, held that the opinion rendered by Ramaswamy, J., to which a reference has been made is as much a law declared by the Apex Court and therefore, the learned Judge ultimately came to the conclusion that the decisions in Boologam Naidu v. Jagannath and Ors. and Thani Chettiar v. Dakshna Murthy Mudaliar , both of Division Benches of this Court, will hold the filed and the period of limitation can only be computed under Article 65 of the Limitation Act, 1963. The learned Judge ultimately held that though an alienee of an undivided interest of a Hindu Coparcener is not entitled to joint possession with the other coparcener of separate possession of any part of the family property, the alienee is entitled to obtain possession of that part of the family property which might fall to the share of his alienor at a partition. What the alienee acquires by a purchase is not any interest in specific family property but only an equity to enforce his right in a suit for partition and have the property alienated set apart for the alienor's share, if possible. Ultimately, the learned Judge on the factual finding recorded and noticed by him held that sine the purchasers in that case obtained physical possession of the property, the question of adverse possession or limitation did not arise.
13. So far as the case on hand is concerned, it is seen that immediately after the purchase under sale deed dated 5.7.1967 marked as Exs.A-2 and B-3 notice came to be issued by defendants 2 and 3 to the plaintiff as also his vendor not only questioning the right of the vendor to alienate 1/4th share, as claimed by him, but also contended that under the sale deed, the plaintiff could not claim to have derived any rights at all. The relevant portion of Ex.B-3 reads as follows :
No. 1 of you has no manner of right to deal with the property without the express consent of the other co-sharers since the property is a residential house and no partition or partition wall between the sharers have been effected up to this date. Therefore my clients state that the sale deed dated 6.7.1967 effected by No. 1 of you in favour of No. 2 of you is not valid, not binding my clients and will not confer any right on No. 2 of you. Hence my clients intimate that the sale deed is not valid in law, and both of you are prevented from taking any further steps by virtue of the sale deed. If any steps are taken, my clients are prepared to fight out in the legal forum, and both of you will be held liable for costs.
This vital factual position which weighed with the learned first appellate Judge as constituting sufficient ground to apply the ratio of the decision rendered by one learned Judge is a separate opinion than that which was rendered by two learned Judges separately in Manikayala Rao A.I.R. 1966 S.C. 470, cannot be said to be illegal. Even as per the opinion rendered by the two learned Judges in that decision, purchaser of a coparcener's interest in joint family property is not entitled to possession of what he has purchased, but his only right is to sue for partition of the property and ask for allotments to him of that portion which on partition may fall to the share of the coparcener whose share, he has purchased. In the peculiar facts and circumstances of the case, where the other coparceners not only disputed the right of the coparcener, who purported to alienate his share to challenge the validity of the sale itself and question the right of the purchaser plaintiff under the sale, at any rate, in my view, the indication of hostile assertion of title and a threat of ouster has been made, known to the plaintiff and such possession by the non-alienating coparceners, at any rate, from the date of Ex.B-3 would be adverse to the rights of the plaintiff in this case to seek for partition and also claim for recovery of possession. This view taken by the learned first appellate Judge also, which has my approval, would render the suit filed beyond a period of 12 years from the date of Ex.B3 barred by limitation and consequently, I see no infirmity whatsoever in the view taken by the learned first appellate Judge to call for any interference in my hands.
14. So far as the substantial questions of law formulated in the case are concerned, I hold that the ratio and the principles laid down in the separate but, concurring opinion of Ramaswamy, J., in Manikayala Rao A.I.R. S.C. 470 is as much a law declared as the opinion rendered by the other learned Judges, as held by S.S. Subramani, J., in K.S.K.R. Subbrayan Chettiar (1996)2 L. W. 73, and consequently, having regard to the indisputable materials on record in the form of Ex.B-3, the position of the non-alienating coparceners in this case become adverse to he plaintiff on and from the date of Ex.B-3 viz., 6.9.1967 and consequently, the suit filed by the plaintiff who is a purchaser of coparcener's undivided 1/4th share, filed after 12 years, is barred by limitation. The second appeal therefore fails and shall stand dismissed. No costs.