Andhra HC (Pre-Telangana)
Godi Jayarami Reddy And Anr. vs Siddamurthy Jayarami Reddy (Since ... on 21 April, 2003
Equivalent citations: 2004(1)ALD212, 2004(2)ALT135
JUDGMENT
B.S.A. Swamy, J
1. The Subordinate Judge, Proddatur, by his judgment and decree dated 22-12-1986 in O.S. No. 27 of 1980 held that the respondents herein are entitled to l/3rd share in the properties held by one Bijivemula Subbireddy. Assailing this judgment and decree, the defendants in the suit, filed this appeal.
2. The facts of the case are that one Bijivemula Subbi Reddy had a daughter by name, Pitchamma, and a son by name Sesha Reddy. Both the daughter and son were married during the lifetime of Subbireddy. Pitchamma was married to one Siddamurthy Rami Reddy. They had no issues. Sesha Reddy had a daughter by name Lakshumamma. Sesha Reddy predeceased his father, Subbi Reddy. Since, Subbi Reddy held vast properties, he brought his son-in-law, Siddamurthy Ramireddy and his daughter to his house to assist him in managing the properties. Admittedly, no children were born to the daughter and son-in-law. Subbi Reddy had executed a registered will on 21-1-1920 for the management of the properties after his death. As per the terms of the will, the testator's daughter and son-in-law should adopt a boy and give him in marriage to his granddaughter Lakshumamma, namely, his son's daughter, and convey the entire property to the grand-daughter. If by chance the adoption is not materialised or even if the marriage with granddaughter does not take place, then the property shall be divided in the ratio of 1:3 i.e., one-third of the property shall go to his son-in-law and daughter and two-third shall go to his son's daughter. Under that will, Rami Reddy is to act as administrator of the properties till Lakshumamma attained majority. Rami Reddy also had to look after the testator's wife, his daughter-in-law (son's wife) and his sister (testator's). If they are not prepared to live jointly he must make necessary provision for their maintenance during their lifetime. The will also states mat if there is no kartha to any branch of the family, the properties developed on the said branch shall be enjoyed by the kartha of the second branch. For what purpose, the testator used the word 'Adhyakshulu' in the will, is not known. But having regard to the totality of the facts and circumstances, we are of the opinion that he is referring to the kartha of the family. While Pitchamma wanted to adopt Godi Venkat Reddy as their son, Siddamurthy Rami Reddy did not agree for the proposal and he left the house in 1924 and started living separately at Papireddipalli a hamlet of Rampadu, after marrying one Subbamma for the second time. Since, monogamy was not practised at that time perhaps no divorce might have been taken by him from Pitchamma, Through Subbamma, Rami Reddy had two daughters Peddabayamma, Chinnabayamma and two sons, Rami Reddy and Jayarami Reddy. Subsequently Rami Reddy died around 1940. Pitchamma celebrated the marriage of Lakshumamma with her boster son Godi Venkata Reddy in 1926. Within three years thereafter Venkat Reddy seemd to have died of throat cancer and Lakshumamma gave birth to Godi Jayarami Reddy posthumously. It is also on record that Pitchamma made some improvements to the properties held by her father and died in the year 1953. Thereafter Lakshumamma managed the properties till her death in 1970. After her death, her son Godi Jayarami Reddy started managing the properties after he left parents-in-laws house. Siddamurthy Rami Reddy acquired properties on his own prior to his death in Rampadu Village. It is also on record that the eldest son of Rami Reddy joined Government Service, second son become a lawyer in the year 1962. Naturally Rami Reddy having learnt the law of Hindu Succession, developed an idea to claim a share in the property of the testator and he started creating some record as if the members of the two branches i.e., the children of Siddamurthy Rami Reddy along with Pitchamma and Lakshumamma and her children were living in common at Chennavaram and there was no severance in status to contend that they being children of the co-legatee under the will, they are joint owners of the properties and they are entitled for a share in the properties.
3. After coming of A.P. Land (Ceiling on Agricultural Holdings) Act, 1973 into force in 1975, Godi Jayarami Reddy/ Defendant in the suit filed a declaration under Section 6 of the Act, claiming that the entire property belongs to him and his sons and the Primary Tribunal held that his family holds the land in excess of the ceiling limit. When Defendant No. 1 carried the matter in appeal, Rami Reddy and his brother Jayarami Reddy filed an application before the Land Reforms Appellate Tribunal contending that they are the co-owners and the defendant had no right to claim entire land to their exclusion and they are entitled for a share in the property. That application seemed to have been dismissed by the Appellate Tribunal. The efforts made by the plaintiffs to get themselves impleaded in the land ceiling proceedings did not yield fruitful results.
4. In this background, the plaintiffs filed the present suit seeking a decree to divide the schedule properties into three equal shares having regard to the good and bad quality of the soil and for allotment of one such share to the plaintiffs and for mesne profits during pendency of the suit and for costs of the suit and any other equitable reliefs as the Court may deem fit and proper in the circumstances of the case.
5. A reading of the plaint will make it clear that there is no dispute with regard to the facts stated supra.
6. The case of the plaintiff is that Siddamurthy Rami Reddy along with his second wife and children were living along with his first wife, niece and children as a composite family and there was no partition of the property as per the will of the testator and they did not seek partition of the property in view of the cordial relationship between the two branches of the family. It is also their case that they were residing at Chennavaram and Papireddipalli also.
7. It is averred in the plaint that they are entitled to l/6th share after the death of their father Siddamurthy Ramireddy and the remaining l/6th share that fell to the share of Pitchamma also devolves on them after her death in 1953, as the properties of a Hindu family have to devolve on the heirs of her husband till Hindu Succession Act came into force in 1956. While contesting the suit the defendants denied all the plaint allegations and categorically stated that Pitchamma executed Ex.B6 on 6-3-1953 conferring some of her properties on the local deity and the rest of the properties on her niece and her children. They also pleaded that Rami Reddy the husband of Pitchamma abandoned the family and he never claimed any share in the property. But at the same time they have not taken the plea that Rami Reddy cannot claim any property under the will since he failed to act as an executor apart from abandoning the family. Likewise, they have taken the plea that they perfected the property by adverse possession.
8. On the basis of the above pleadings, the following issues were framed by the Trial Court.
1. Whether the plaintiffs are not the grandsons of late B. Subbireddy?
2. Whether the plaintiffs and the defendants are members of a composite family?
3. Whether the properties are the joint family properties of the plaintiffs and the defendants?
4. Whether the defendants perfected their title to the plaint schedule properties by adverse possession?
5. Whether the plaintiffs are entitled to ask for partition of l/3rd share in the plaint schedule properties?
6. Whether the plaintiffs are entitled for possession of l/3rd share of the joint family property from the defendants?
7. Whether the suit is not valued property by the plaintiffs?
8. Whether the Court fees paid is not correct by the plaintiffs?
9. To what reliefs?
9. The first plaintiff Jayarami Reddy died during the pendency of the suit. Hence, his wife, two sons and two daughters were brought on record as legal heirs of the deceased.
10. To prove their case, the second plaintiff got examined as PW.1. He examined one V. Narsimha Reddy as PW.2 to prove that they are residents of Chennavaram Village. PW.3 also spoke that he was the attestor of Ex.A.15 sale deed under which the first plaintiff purchased a house on 9-6-1961 in Chennavaram and marked Exs.A.1 to A. 19. While the first defendant Jayarami Reddy was examined as DW.1, he examined DWs,2 to 9 to show that the plaintiffs are not living at Chennavaram and the defendants are enjoying the properties to the knowledge of all the people to the exclusion of the plaintiffs family and also to prove the execution of Ex.B6 will deed dated 6-3-1953 by late Pitchamma, apart from marking documents Exs.B1 to B.103. The learned Subordinate Judge by judgment and decree dated 22-12-1986 held issue Nos.1 to 3 in favour of the defendants 1 to 3 and held in favour of the plaintiffs on all other issues. Hence this appeal.
11. Since the subject-matter of the suit relates to the testamentary succession of a Hindu family covered by Mitakshara School prior to codification of law, several twists have taken place during the course of hearing and ultimately all of them are to be treated as legatees under one and the same will, and therefore, they have to be treated as tenants-in- common. Now the Court is called upon to adjudicate the dispute with regard to sharing of the properties since no partition has taken place between the two legatees almost for over sixty years. The following issues are framed for consideration in this appeal, since the legatees of the will are treated as co-owners and since there is partition between the two branches.
1. In the facts and circumstances of the case, whether it can be said that Rami Reddy failed to comply with the obligation casted on him under the will and abandoned the family. If so whether his legal heirs can claim a share in the property of the testator?
2. Whether Ex.B6 will executed by Pitchamma is true and bona fide one or fabricated one?
3. Whether the defendants can plead adverse possession against a co-owner?
12. Though there was no specific issue on the first point and no finding was recorded by the Court below since the appeal is the continuation of the suit and since all the pleadings are very much available in the suit we feel that there is no need to remand the matter keeping in mind the legal battle that is going on for several decades. Hence, we permitted the advocates to argue the matter since it is only a question of law and it can be decided under the provisions of Indian Succession Act.
Issue No. 1:
13. Part-VI Indian Succession Act deals with the Testamentary Succession Act, 1925, Section 57(c) deals with the wills and codicils made by any Hindu with regard to the succession of the properties.
14. Chapter DC under Part-VI deals with onerous bequests under Section 122. Where a bequest imposes an obligation on the legatee, he can take nothing by it unless he accepts it fully.
15. In other words, the legatee can take the benefit of the disposition only by accepting the obligation cast on him and if he fails to discharge the obligation cast by the testator under the testament he cannot take the benefit under the will. To put it aptly, the legatee cannot blow hot and cold to serve his interest. He has to act upon or reject the will by complying with the obligation cast on him.
16. Chapter XIII deals with the bequests of an executor. Under Section 141, if a legacy is bequeathed to a person who is named as an executor of the will, he shall not take the legacy, unless he proves the will or otherwise manifests an intention to act as executor. As per this section, if the legatee fails to fulfil the wish of the Executor or discharge the duty call on him by the Executor he is not entitled to claim the benefit under the will.
17. Under Section 87 the Court should make every endeavour to give effect to the intention of the testator to its full extent as far as possible without setting aside the same on the ground that intention cannot be given effect to the full extent.
18. Under Section 88 if two clauses of the will come into conflict with each other the latest disposition shall prevail over the earlier one.
19. Keeping the above principles in view, if we look at the recitals of the will Ex.A2, the whole intention of the testator is to see that the property is conveyed to his granddaughter Lakshumamma, and since his daughter and son-in-law were assisting him after the death of his son, and since they are childless, he casted an obligation on the daughter and son-in-law to adopt a son and to give Lakshumamma in marriage to the adopted son and thereafter to convey the entire property to Lakshumamma.
20. It is the case of the defendants that since Rami Reddy did not accept the adoption of Venkat Reddy as suggested by his wife he left he family of Subbireddy i.e., testator wayback in 1924, and thereafter, no evidence whatsoever was placed before this Court to show that cordial relations continued between the defendants and plaintiffs. With regard to the evidence on this aspect will be discussed under the issue adverse possession.
21. On the other hand, Pitchamma who is not entitled to adopt the child under the old law, fostered Venkat Redy and celebrated his marriage with Lakshumamma, she also continued to stay with Lakhumamma and Venkat Reddy, until the family was thrown into distress due to the sudden death of Venkat Reddy within three years of marriage. She has taken all the responsibility of bringing up Lakshumamma and her son and reared them so affectionately. As seen from the record that she has even made improvements to the immovable properties with selfless intention. Had the adoption materialised perhaps the plaintiff would not have come forward with this suit. Be that as it may, the testator himself observed that if the adoption does not materialize or the adopted son does not marry his son's daughter, the testator bequeathed l/3rd share to his daughter and her husband in the property. In other words, he made a provision for his daughter and son-in-law for staying with him after the death of his son and assisting him in managing the affairs of the family. But unfortunately Ram Reddy left the family and settled at Papireddipalli after marrying the mother of the plaintiff and made his own acquisition of immovable properties.
22. From the above, it is seen that two conflicting dispositions were made by the testator since the first intention of the testator that his son-in-law should adopt male boy and give him in marriage to his granddaughter did not fructify, his second intention to give l/3rd share in the property to them has become final. Accordingly, we hold that Siddamurthy Rami Reddy along with Pitchamma are entitled to l/3rd share in the property and Remireddy is entitled to claim his share in the property either at the time he walked out of the house or during his life time. But, he never raised any dispute with regard to the property and started living separately from the defendants' family. Secondly, under the will the testator made it very clear that Siddamurthy Rami Reddy has to maintain the dependents of the testator including the wife of the testator, his sister, his windowed daughter-in-law. If any disputes arises between the maintenance holders and Rami Reddy, he has to make a provision for their comfortable living till their death since no Hindu woman can own or possess immovable property at that point of time. Absolutely, there is no evidence forthcoming that Rami Reddy has taken care of the dependents and maintained them or he made any provision for their living during their lifetime. Accordingly, we hold that Ram Reddy failed to discharge the obligation cast on him. Hence, he cannot claim any property under the will.
23. Secondly, it is seen from the will that Ramid Reddy has to act as exeuctor to the property and administer the property for the benefit of testator's minor granddaughter, Lakshumamma till she attained majority and is capable of managing the affairs of the family. Though there is no evidence on this aspect when Lakshumamma became major, the fact remains that Rami Reddy left the house of Subbi Reddy in 1924 with in four years after execution of the will and the marriage of Lakshumamma took place in 1926. A presumption can be drawn keeping the practice in the Hindu families at that point of time that she might have been married at the age of 15 years.
24. It is also not the case of the plaintiff that Rami Reddy celebrated the marriage of Lakshumamma. The very case of the defendant is that since the disputes have arisen with regard to the adoption of Venkat Reddy he left the house even prior to the marriage. It is also not the case of the plaintiffs that atleast after the death of Venkat Reddy in 1929 he came back to the family and assisted his niece Lakshumamma and administered the properties when she was in distress, having lost her husband within 3 years of marriage at a very young age.
25. On the other hand, it is not the case of the plaintiffs that their father ever discharged the obligation cast upon him under the will in maintaining the dependents or in acting as executor. Hence on both the grounds, we hold that Rami Reddy failed to discharge the obligation cast on him by the testator under the will and also failed to act as executor and protect the interest of the minor. Hence he cannot claim any property under the will. Accordingly, the issue is held against the plaintiff.
Issue No. 226. The case of the defendants is that Pitchamma before her death executed Ex.B6 dated 1-3-1953 whereunder some properties were endowed to the temple and the rest of the properties were bequeathed to the children of Lakshumamma.
27. Admittedly, the plaint schedule properties do not comprise of the properties that were given as gift to the temple. This very fact itself proves mat the plaintiffs are aware of the execution of the will and also the fact that it was acted upon. Be that as it may, the will was sent to the Finger Prints Examiner, who opined that, the impressions are not sufficient to give any opinion. But the Court below drew adverse inference for not sending the document for expert examination without looking into the record.
28. Now coming to the reasons given by the Court below in rejecting the will are:
(i) Para No. 32 deals with the genuineness of the will Ex.B6 executed by late Pitchamma.
(1) The Court below drew adverse inference for examining only one attestor, though four attestors signed on the will. Assuming that all the attestors are alive. Admittedly, one attestor was examined and DW.3, in conformity with the statutory requirement. Hence, the Trial Court erred in drawing adverse inference for non-examination of other attestors.
(2) Though DW2 was examined to prove the signature of his father on the will his evidence was rejectedon the ground that the other attestors are alive.
(3) The Court below has taken exception for not registering the will Ex.B6, though no such requirement was contemplated under law.
(4) The Court below held that since male members are there in the family of the defendants, it is highly doubtful that Pitchamma would have executed a will in favour of a female member. From the facts of the case it is seen that Lakhumamma since she lost her father at a very young age and husband within three years of marriage. When once the property vests in Lakshumamma, naturally it goes to her children but not to others. Hence, none of the reasons given by the Trial Court for registering the execution of the will are son-in-law.
29. The next ground that was urged is that Pitchamma got patta transferred for some of the lands in favour of D.1 and his mother Lakshumamma in 1958 i.e., prior to the execution of the will. We must keep in mind that all these things have taken place at a time when the legal position is not very clear, that more so in the peculiar circumstances of the case of this nature. Nextly it is not the case of the plaintiffs that she got pattas of all the lands transferred in their name. Assuming for a moment that she got pattas of certain lands transferred in the name of her niece and nephew, even then she is entitled only to get l/3rd of the land under the will and not the entire land. To what extent and for what lands the pattas were transferred in the name of her niece and her son, no evidence is placed before the Court. It is also to be kept in mind that she made improvements to the property. Hence, that cannot be a ground for rejection of the will.
30. On the other hand, the case of the defendants is that the will was produced for the first time in OS No. 80 of 1954 filed by Siddamurthy Pitchamma. But the Court below rejects this by observing that when the defendants remained ex-parte there is no meaning in filing a compromise petition by Lakshumamma. He also observe that Ex.B6 was executed just fifteen days prior to the death of Pitchamma. We are surprised to observed that the learned Judge draws an adverse inference for filing the will through compromise petition three months after the death of Pitchamma on 4-6-1953. We feel all the reasons given by the Court below become redundant on the sole ground that the plaintiffs did not choose to include the properties that were gifted to the temple under the will Ex.B6 by Pitchamma and secondly we have already recorded our comments on the reasons given by the Court below for rejecting the will which are not sound in law. Accordingly, the finding of the Court below that Ex.B6 is not a genuine one and it is a fabricated one cannot be sustained in law. We hold that the will Ex.B6 is true and genuine one.
Issue No. 331. Now coming to the adverse possession pleaded by the defendants, the common case of all the parties is that the legatees under the will stand as tenants-in-common and are joint owners. Normally, the plea of adverse possession cannot be entertained by the Court by one co-owners against the other co-owners unless reliable evidence is placed by the person who pleads the ouster of the co-owners by their acts and conduct.
32. With regard to plea of ouster of a co-owner a Division Bench of this Court in Peeran Sahib and Anr. v. Pedda Jamaluddin Sahib and Ors., AIR 1958 AP 48, reported in AIR 1958 AP 48, speaking through the Chief Justice as he then has held that when the possession dates back to a time beyond living memory and it becomes impossible to prove by direct evidence that the original co-owners had knowledge of the denial of their title and the attendant circumstances are in accord therewith a presumption of ouster can be made. In arriving at the above finding, their Lordships relied on Doed Fishar and Taylor v. Prosser, (1774) 98 ER 1952 (G), in which Ashhurst J., put the matter thus:
"After so long an acquiescence, I think the jury were well warranted to presume anything in support of the defendant's title and they might presume either an actual ouster or a conveyance".
The presumption is thus analogous to one of a lost grant and is not to be applied when the transactions are recent and the primary parties are alives.
33. In another judgment of Madras High Court in Krishnayya v. Udayalakshmamma, 1953-2 Mad. LJ 241 (Full Bench) it was held:
"In law, the possession of one co-owner is the possession of all the co-owners. To constitute adverse possession, therefore, there must be something more than mere exclusive perception of profits. There must be an ouster. That is to say, there must be a denial of the rights of the co-owners over the property and that denial must be made to their knowledge."
34. The above principle was approved by the Hon'ble Supreme Court in M.N. Aryamurthi and Anr. v. M.L. Subbaraya Setty (dead) by his legal representatives and Ors., , at para No. 17 as follows:
That being the position, the question arises whether the defendants would, in law, be liable to account to the plaintiff for the profits earned by the defendants in their own business or for the acquisitions made by them in that business. We agree with the High Court that they were not so liable. On a partition by severance of the joint status, the members of the family become tenants-in-common of the family property. If one of the members remains in possession of the entire properties of the family, there is no presumption that the property, which is acquired by him after severance of the status, must be regarded as acquired for the family. (See Gulabrao Fakirrao v. Baburao Fakirrao, AIR 1960 Bom. 159) Where rents and profits are received by the members in possession, he would be liable to account for the rents and profits received by him. But the funds is the hands of that member do not become impressed with any trust in favour of the other members. (See John Kennedy v. Mary Annette De Trafford, 1897 AC 180). Therefore, if such a member acquired some property with the funds in his possession, the other members could claim no share in that property. Hence, we agree with the High Court that the business carried on by the defendants on and father 11-7-1940 should be considered as the exclusive business of the defendants and the plaintiffs would have no right to claim any share in the profits or the acquisitions made out of that business. What is true about this business carried on by the defendants is also true of the business carried on by the plaintiff. The defendants have not claimed and cannot claim any share in the business run by the plaintiff after 11-7-1940 or in the profits and acquisitions made by him in that business. This findings, however, is not to be understood to mean that the securities and stock-in-trade already referred to are not to be taken into account as family assets for the purpose of partition nor can the parties decline the liability to account to each other for the income derived by them from the family assets in their possession.
35. In P. Lakshmi Reddy v. L. Lakshmi Reddy, , the Hon'ble Supreme Court held:
Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec lam nec precario (See Seretary of State for India v. Debemdra, 61 Ind App 78 at p 82 (AIR 1934 PC 23 at p.25) (A). The possesion 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 Khulna, 27 Ind. App 136 at p. 140 (PC) (B). 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. Appuhamy, 1912 AC 230 [C]. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one 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 notorious 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 to pause to consider. It is sufficient to notice that the Privy Council in N. Varada Pillai v. Jeevarathnammal, AIR 1919 PC44 at p. 47, (D) quotes, apparently with approval, a passage from Culley v. Dead Taylerson (1840) 3 P&D 539 = 52 RR 566 (E) which indicates that such a situation may well lead to an inference of ouster "if other circumstances concur". (See also Govindarao v. Rajabai, AIR 1931 PC 48 (F). 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.
In the present case, there can be no doubt that Hanimi Reddy obtained sole possession of the suit properties after the death of Venkata Reddy on the basis of an action against third parties in which he claimed to be the sole nearest male agnate having title to all the properties. After obtaining possession he was in continuous and undisputed possession of the properties till his death enjoying all the profits thereof. No doubt in an ordinary, cases such possession and enjoyment has to be attributed to his lawful title, he being one of the coheirs. But the plaint in the suit of 1927 and the decree therein, render it reasonably clear that he filed the suit and obtained possession on the basis of his having exclusive title ignoring his co-heirs. It is urged that knowledge of the assertions of such exclusive title averred in a plaint cannot be imputed to other co-heirs who are not parties to the suit. But in this case it is not difficult on the evidence to say that the plaintiff and the second defendant must have been fully aware, at the time, of the nature of the claim made by Hanimi Reddy in the prior litigation and on the basis of which he obtained possession. That knowledge is implicit in the very case that they have put forward in the present plaint. Their case is that the prior suit was brought by Hanimi Reddy with the consent of the plaintiff and the second defendant on their behalf. No doubt that specific case has been found against them and that finding is res judicata between the parties. But there is no reason why the admission as to the knowledge of the nature of the litigation and the contents of the plaint which such a case necessarily implies should not be attributed at least to the present plaintiff. It appears reasonble to think that the plaintiff being unable to explain his inaction for over fourteen years after the death of Venkata Reddy has been constrained to put forward a false case that the prior suit by Hanimi Reddy was with his consent and on his behalf. It is significant that the plaintiff has remained silent without asserting his right during Hanimi Reddy's life time, and comes forward with this suit after his death, rendering it difficult to ascertain whether the fact of Hanimi Reddy completely ignoring the existence of the plaintiff and the second defendant as co-heirs was not in denial of their relationship and consequently of their title as co-heirs to their knowledge. The fact that even so late as in the written statement of the first defendant relationship is denied may be indicative as to why Hanimi Reddy ignored the plaintiff and the second defendant and why they remained silent. The learned Judges of the High Court thought that there was nothing to show that Hanimi Reddy was aware that plaintiff and second defendant has any rights in the properties as co-heirs. This assumption is contrary to the admission of mutual knowledge of each other's rights implicate in the plaintiff's case that Hanimi Reddy brought his suit with the consent of the plaintiff. In such circumstances and especially having regard to the fact that both the plaintiff and Hanimi Reddy were living in the same village and the plaintiff has put forward a false explanation to account for his inaction, a Court of fact might well have inferred ouster. Sitting on an appeal in special leave, however, we do not feel it desirable to decide the case on this ground. We, therefore, proceed to consider the further question that arises in the case, viz., whether the Receiver's possession on the assumption mat Hanimi Reddy's possession on and from January 20, 1980, was adverse to the plaintiff.
36. On the other hand, Mr. O. Manohar Reddy appearing for the plaintiff strenuously contended that there cannot be an ouster of other co-owners in law. The co-owners in possession cannot plead adverse possession against the other and mere mutation of the name of the co-owners cannot be an indication of adverse possession until it is shown that it was obtained after a clear declaration to the effect that the title of the other co-sharer was denied. In support of his contention he relied on a judgment of the Hon'ble Supreme Court in Darshan Singh and Ors. v. Gujjar Singh (Dead) by LRs. and Ors., , wherein at Para No. 9, their Lordships held:
. In our view, the correct legal position is that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of the other co-sharers was denied.
37. He cited another judgment of the Hon'ble Supreme Court in Karbalai Begum v. Mohd. Sayeed and Anr. , , for the proposition that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession.
38. In Para No. 7 of the above judgment, the Hon'ble Supreme Court held:
Another obvious fact which emerges from the admitted position is that if co-bhumidars with the plaintiff in the khewat and had also sirdari tenants under them, how could the sirdari tenants occupy the land of one of the co-sharers leaving the defendants alone so that the plots were realloted to them. It is well settled that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. Indeed even if this fact be admitted, then the legal position would be that Mohd. Bashir and Mohd. Rashid, being co-sharers of the plaintiff, would become constructive trustees on behalf of the plaintiff and the right of the plaintiff would be deemed to be protected by the trustees. The learned Counsel appearing for the respondent was unable to contest this position of law. In the present case, it is, therefore, manifest that the possession of the defendants, apart from being would be in law the possession of the plaintiff.
39. In Meethiyan Sidhiqu v. Muhammad Kunju Pareeth Kutty and Ors., , the Hon'ble Supreme Court at para No. 11 held:
The question then is: Whether the appellant has perfected his title by adverse possession. The High Court in the judgment has held that:
"It is also true the Trial Court and the appellate Court found that even after the date of Ex.B1 or A1 on 10-10-1949 the plaintiff or defendants 1 and 2 were not in possession. The exclusive possession of the third defendant from 10-10-1949 or the non-participation of the income by the plaintiff by itself may not amount to adverse possession as between co-owners. So also the mere fact that the third defendant who was in exclusive possession executed documents and put the transferees in possession of the property also will not prove ouster or adverse possession. As a matter of course plaintiff cannot be fixed with knowledge of those documents simply because of the fact that they are registered documents. Registration of the documents by itself cannot operate as notice to the plaintiff that third defendant was holding the property adverse to him and dealing with it as full owner. Knowledge ouster and exclusive possession with the requisite animus are facts to be alleged and proved by defendants 3 and 4 in OS No. 208/78 who pleaded adverse possession. There is no such plea and there is no such proof also. No such plea or proof is evident from the judgment of the Courts below.
In order to constitute adverse possession the other co-owners out of possession must be proved to have had notice of the assertion of hostile title and exclusive possession ousting them with the requisite animus for the statutory period. It must be pleaded and proved. There is no such plea or proof and no such plea or proof could be found out from the judgments of the Courts below also. As earlier stated the peculiar position of the their defendant, the relationship, the dependency and illiteracy of defendants 1 and 2 and the minority of the plaintiff are all factors which indicate absence of knowledge on the part of the plaintiff regarding the animus, if any, entertained by the third defendant. The Court below found adverse possession on insufficient pleadings and in the absence of legal evidence to that effect. That generates a substantial question of law by which the finding has to be reversed and I do so. If so, defendants 3 and 4 in OS No. 208/78 could have only the position of co-owners and the plaintiff is entitled to partition and recovery of his share."
40. From the above case law, it can be seen that a co-owner can also plead ouster of another co-owner and thereby perfect his title by adverse possession. The claim for ouster and its proof should be of highest degree and it should lead to the irresistible conclusion that a co-owner by his conduct gave up his claim. A co-owner who pleads ouster must prove that the other co-owner by his act and deeds ousted himself from the co-ownership and he perfected his title to the property by adverse possession. At the same time, mere non-participation and sharing of rents and income of the properties do not give raise to the presumption that the co-owner ousted himself from co-ownership. Likewise, any execution of documents by the person in possession of the property without the knowledge of the other co-owner cannot lead to the conclusion that there is an ouster of the other co-owner. Non-participation of the profits of a land for a long period of time effecting to be adverse and under such circumstances that denial could not be proved but could only be inferred. Keeping the above principle in mind, we shall proceed to examine whether the defendants can successfully plead the ouster of the plaintiffs from the co-ownership and whether they perfected title to the property by adverse possession.
41. The case of the plaintiffs is that Mr. Ram Reddy even after marrying, their mother continued to live together as members of composite family and their mother Subbamma was also living as member of the composite family. In view of the cordial relationship prevailing between them the plaintiffs could not get their l/3rd share in the property separated from the 2/3rd share of the defendants. They also admitted the possession of the defendants in the following terms:
42. The first plaintiff is practising as advocate at Proddatur and second plaintiff is employed in Government service, while the defendants are residing at Chennavaram. So the plaintiffs allowed the first defendant to remain in management of the property, as they reposed full trust and confidence in him.
43. In Para No. 8 of the plaint, they stated that the plaintiffs and defendants are in joint possession and enjoyment of the suit property, which, as stated above, belong to their composite family. In view of the fraudulent conduct of defendants, it is no longer safe or desirable for plaintiffs to be in joint possession with the defendants. The fraudulent act they were referring to is the declaration filed by the Defendant before the Land Reforms Tribunal.
44. Countering these allegations the Defendants, in Para No. 5 of the written statement, stated that Siddamurthi Rami Reddy and his wife Pitchamma, Bijivemula Pitchamma daughter-in-law of Subbi Reddy, the sister of Subbi Reddy, the widow of Subbi Reddy continued to live in Chennavaram in the house of Subbyi Reddy.
Venkat Reddy the father of the first defendant was brought into the family with the idea of adoption. In or about 1922 or 1923 misunderstandings arose between Pitchamma and Rami Reddy on the question of adoption of Venkat Reddy. So, Rami Reddy left the house of Bijivemula Subbi Reddy and settled down at Papiredipalli hamlet of Rampadu in the year 1924.
45. In Para No. 6 of the written statement, it is stated that Siddamurthi Rami Reddy after settling down in Papireddipalli married Subbamma. He begot through her two sons and two daughters. They all lived at Papireddipalli. They never came to Chennavaram and lived there. There was no reconciliation between Pitchamma and Rami Reddy, Rami Reddy died in or about 1939 at Papireddipalli leaving behind him his two widows, one at Chennavaram and another at Papireddipalli, two daughters and two sons.
46. In Para No. 7 of the written statement, they categorically stated that Rami Reddy never enjoyed his l/6th share in the properties of Bijivemula Subbi Reddy.
47. In Para No. 8 of the written statement, it is stated that from the year 1924 till the year 1939 when the died, Rand Reddy never went to Chennavaram and he never demanded partition of his l/6th share. They also pleaded about the execution of last will and testament on 6-3-1953 by Siddamurthy Pitchamma bequeathing her properties in favour of Lakshumamma, wife of Late Venkat Reddy, her foster son. Hence, the question of inheriting the properties left by Bijivemula Subbi Reddy by Siddamurthy Rami Reddy does not arise.
48. In Para No. 15 of the written statement, they categorically stated that Siddamurthy Rami Reddy seemed to have abandoned his rights to the properties that were given to him under the will of Subbi Reddy. Siddamurthy Pitchamma was enjoying the properties by residing at Chennavaram. Rami Reddy went away from Chennavaram in or about 1924 and never came to Chennavaram till the died in 1939.
49. PW1 i.e., the plaintiff No. 2 in the witness box speaks of the properties acquired by his father. Some of the suit properties were acquired after the death of Bijivemula Subbi Reddy from out of his estate. He did not say who acquired the properties i.e., whether Rami Reddy acquired the properties or Pitchamma acquired the properties. He also admitted about the non-adoption of a son by Pitchamma and her husband. He reiterated the averments made in the plaint while giving the evidence. In fact, a suggestion was made to DW1 that Rami Reddy married Subbamma for the second time with consent of Pitchamma but none of the witnesses examined on behalf of plaintiffs spoke on that aspect. In the cross-examination, he admitted that the dead body of his father was buried in mango garden, which is item No. 75 of plaint 'A' schedule land and a tomb was erected thereon. Admittedly, this item is situated in Rampadu Village but not in Chennavaram Village. He also admits that Pitchamma alone was in possession of l/3rd property of the properties of Bijivemula Subbi Reddy. Plaintiffs never paid the land revenue on the properties since they were never in the management of the same. He also admits that his father was appointed as executor of the will Ex. A2 by Subbi Reddy, He denied a suggestion that Lakshmamma and Pitchamma figured on one side against his father Rami Reddy and that they were never on visiting terms with him. He also admitted that if one of the parties at the time of division was not living that parry's share shall devolve on the other living legatee as per Ex.A2. He admits that himself and his brother and one Jayamma are shown as residents of Rampadu in 1970 electrocal rolls and he also admits that they owned two houses in that village. He failed to answer the issue whether his deceased brother Contested for the Office of Sarpanch of Rampadu in 1965 by saying that he does not remember whether the first plaintiff contested for the post of Sarpanch of Rampadu in 1965.
50. PW2 a resident of Chennavaram was examined to show that the plaintiffs lived along with Pitchamma and other defendants in the suit. But he categorically admitted that he supported the candidature of Nagi Reddy in the election against the 1st defendant. Nagi Reddy's daughter married the son of Godi Narsaiah and his son married Narasaiah's daughter. This witness while admitting that defendants are having properties in Rampadu and they are managed by the members of composite family by the father of the plaintiffs, peculiarly states that Rami Reddy owns a house at Rampadu and having sold the same he settled at Chennavaram. When he was further cross-examined he could not give the year of sale of the house and the person to whom it was sold. From this it is seen that this witness is not only politically opposed to the defendants but he is an interested witness for the reason that he is having close relationship with the plaintiffs' family. In fact he stated that Rami Reddy performed the marriage of his daughter at Chennavaram. He has not produced any evidence to that effect.
51. PW3 was examined to prove that he acted as an attestor for a sale deed under Ex.A15 obtained by 1st plaintiff from some one wherein it was stated that he is a resident of Chennavaram. This witness says that the sale consideration was given by Lakshmamma but no evidence whatsoever was produced to that effect. In the cross-examination he admitted that Defendant No. l filed a suit against co-brother, one Mr. Ankireddy Lakshmirredy and obtained a decree against him. He also admits that he is a contractor and he was not inimical and competitor to Defendant No. 1 in the business.
The other suggestion that they are not on talking terms and he supported Nagi Reddy and his father-in-law in the Panchayat Elections.
52. PW4 is a resident of Papireddipalli. In the chief-examination he speaks that Rami Reddy's first wife was Pitchamma. Rami Reddy and Pitchamma had no disputes at any time. He also states that the properties were in the management of Pitchamma, Lakshumamma, father of plaintiffs jointly. This witness says that the father of the plaintiffs was buried in the mango grove of Bijivemula Subbi Reddy. He also admits that the family was having properties both at Papireddipalli as well as Chennavaram. It is also stated that Pitchamma was managing the properties of Subbi Reddy even during the lifetime of his brother. Even before the death of her brother, it is Pitchamma that was managing the properties but by virtue of her marriage with Rami Reddy, the old man conferred some properties on both of them in the event that his wish with regard to adoption of a male boy and giving in marriage to Lakshumamma does not materialise. He admits that his daughter's son Rami Reddy was working at Cuddapah.
53. PW5 is a Junior Assistant in RDO's Office, Rajampet He was examined to prove that the plaintiffs mother died at Chennavaram and through him Ex.A18 death register of the village and the entry relating to the death of Siddamurthy Subbamma were marked as Ex.A.19. The lower Court disbelieved this version; firstly, we are surprised to see how the death register maintained by the Gram Panchayat came to the custody of the RDO Office. The entry was made in the last page of the book leaving some pages after the book is closed. So from this it is evident that all the witnesses that spoke on behalf of the plaintiffs are interested witnesses. Except stating that the plaintiffs are resident of Chennavaram, no evidence worth the name was produced in support of their plea.
54. On the other hand, it is interesting to note that PW3 stated that Rami Reddy and Pitchamma are living together and they acquired the properties at Chennavaram and if that is a fact the plaintiffs would have shown the properties acquired by Rami Reddy in the plaint schedule and would have asked for a share in the properties but that was not done in this case. Though the witnesses stated that the marriage of Rami Reddy with Subbamma has taken place with the consent of Pitchamma, since she is issueless, no one stated specifically at the time of death, none of the plaintiffs attended the obsequies of Pitchamma or Lakshumamma who died before filing of the suit.
55. Coming to the documentary evidence as observed earlier, one Muni Reddy wrote one inland cover and on 30-5-1963, Ex.A4 and a post card to PW1 on 4-6-1962. Ex.A12 to 1st plaintiff. Likewise another post-card Ex.A.13 dated 28-5-1962 was written by ABC Register to 1st plaintiff. All these exhibits do not bear the postal seal of Sub-post Office, Badvel. Ex.A5, dated 21-10-1965 that relates to the appointment of 1st plaintiff as a senior investigator, wherein his address was shown as Chennavaram but that does not mean that he is resident of Chennavaram. Ex.A6, dated 8-8-1972, sale deed for Rs. 500/-executed by one Sri K. Satyanarayana in favour of 1st plaintiff. In fact, as we observed earlier, their case is that late Lakshumamma paid sale consideration but nowhere it is stated that they are living along with defendants. In fact, no door number was given in the sale deed, as we observed earlier they have submitted the record to show that they are residing at Chennavaram from 1962 onwards. In fact, PW1 himself admitted that Subbamma was living in Chennavaram with her sister. May be they might have been residing with her for some time. Ex.A9 is the voters' list of the year 1970. A mere mention of the name in the voters list does not lead to the conclusion that they are residents of that village. The next document Ex.A17, dated 15-7-1928, wherein Rami Reddy sold the land in favour of Chennaiah in 1928. Ex.A16, dated 16-2-1988 said to have been given by the Principal of the Junior College with regard to the admission of both the brothers to show that they are residents of Chennavaram. In the absence of examination of the Principal under what circumstances he has given this certificate, no credence whatsoever can be given to this one. Further this extract was prepared on a white sheet, which was not the practice of any college. As far as the practice of the colleges are concerned it will be in the shape of a certificate but not extract as prepared by the principal for this case. On the other hand, the unimpeachable evidence to show that they are residents of Chennavaram, would be their SSLC Register. Had they produced SSLC certificate the real fact would have come to the notice of the Court that they are residents of Rampadu and not Chennavaram. Coming to the documentary evidence produced by the defendants, Ex.B1 dated 28-10-1935 is the registered sale deed executed by one Pedda Siddappa and two others in favour of Rami Reddy, wherein Rami Reddy was shown as resident of Papireddipali. Likewise, Ex.B2 dated 21-7-1938 is another sale deed executed by one Polamma in favour of Rami Reddy. Ex.B3 dated 25-1-1935 is the sale deed executed by one Pulamma in favour of Rami Reddy. Exs.Bl to B3 were produced to show that Rami Reddy was resident of Papireddipalli but not Chennavaram. They also produced the birth extracts of the first plaintiff and second sister of the plaintiff Exs.B22 and B23 dated 10-2-1984 to show that they were born at Papireddipalli but not at Chennavaram as contended by them. They also produced Ex.B24 dated 18-3-1984 admission register showing that both the plaintiffs studied in the elementary school. The voters list of 1960, 1965, 1970 were marked as Ex.102, 134, 135 to show that the plaintiffs are residents of Rampadu village. They also marked Ex.B21 dated 25-5-1984 to show that the certificate was given by the Extension Officer to show that the first plaintiff contested the Gram Panchayat Election for Rampadu Village in 1984. They also produced Ex.B.101 dated 14-12-1957 registration copy of sale deed executed by Subbamma in favour of Ammaiah, wherein their mother was shown as resident of Papireddipalli. They also marked the voters list of village Katragandla to which Chennavaram is a hamlet as per Ex.A.103 for the year 1975.
56. On analyzing the oral as well as documentary evidence, it leads to irresistible conclusion that the plaintiffs are residents of Papireddypalli Village but not Chennavaram Village and they never lived along with the defendants at any point of time.
57. Now the only question is whether mere absence of share in mesne profits will result in ouster?
58. Admittedly, within four years after execution of the will by Subbireddy Rami Reddy left the house of his father-in-law and he married Subbamma for the second time. At any rate, it is not the case of the plaintiff that Rami Reddy married their mother with the consent of Pitchamma. He left the house in 1924. Now the plaintiffs exhibited two letters and some sale deeds to show that they are resident of Chennavaram. The real dispute started in the year 1976. Firstly they filed an application before LAO claiming right and interest in the property for the first time. Thereafter, they came up with the present suit in 1980. Now it is on record that Rami Reddy himself died around 1939 or 1940 and Pitchamma his wife died in 1953. Subsequently, Lakshumamma died in the year 1970. These are the original legatees under Ex.A2, dated 21-5-1920 executed by Bijivemula Subbi Reddy. During their life time no whisper was made claiming any share in the property of Subbi Reddy either by Rami Reddy or his sons. It is only long after the death of Rami Reddy i.e., nearly after 35 years after the death of Ramireddy his sons raised dispute claiming share in the property based on the will. At the same time they admitted that they were never in possession of the property and they were not paying revenue and the defendants are in possession of the property. As stated supra, if the family is residing as joint family or both the parties are living together, the plaintiffs in the normal course are expected to show the acquisition made by the father and other members of the family in the plaint schedule property. But the acquisitions made by their father after he left the house of the testator, were not shown in the plaint schedule properties. PW2 stated that I cannot give the details of the land purchased by Pitchamma with the income from the properties left by Bijivemula Subbireddy. The defendants have properties in Rampadu and they are also managed by the members of the composite family. Pitchamma was looking after them. All the members are looking after the properties of the father of PW1 at Rampadu. Except making bald statement that the plaintiffs and defendants are living jointly and managing the properties jointly, no evidence whatsoever was produced by the plaintiff's to show that they are in enjoyment of the properties along with the defendants. As pointed out by this Court, the Court is bound to draw inference of ouster since for more than 60 years there is no semblance of any enjoyment of property by the plaintiffs predecessors-in-title along with the defendants jointly. We have no hesitation to hold that had the plaintiff No. 1 studied law perhaps his litigation would not have taken place. On the other hand, the defendants have produced voluminous documentary evidence to show that they are in possession of the properties and Pitchamma was managing the properties till her death, thereafter Lakshumamma and after the death of Lakshumamma in 1970, D1 was managing the properties on their own to the exclusion of the plaintiffs knowledge. When once the ouster is proved even according to the plaintiffs, as they were not in possession of the properties at any point of time, the defendants have perfected the title to the property by adverse possession. We accordingly answer this issue.
59. In the result, we hold on all the issues in favour of the defendants and against the plaintiffs. Accordingly the judgment and decree of the Court below is set aside and the suit is dismissed. In the circumstances, no order as to costs.