Kerala High Court
George Mitran vs T.H. Gerfrude And Anr. on 20 December, 1989
Equivalent citations: I(1990)DMC582
JUDGMENT S. Padmanabhan, J.
1. A suit for recovery of a building with the land appurtenent thereto on the strength of title was decreed by the Trial Court but the decision was reversed in appeal and the suit was dismissed. Second Appeal is by the plaintiff.
2. Sathyarthi, uncle of the appellant, was the owner. Along with his wife Judith he bequeathed the property to the appellant and his mother under Ext, Al. After the death of Sathuarthi, claiming to be the full owner as heir of her husband, Judith sold the property to the first defendant under Ext. B2 on 19-1-1964. She died in December 1965 or January, 1966. Appellant was entitled to possession only from that date on the strength of his title under Ext. Al because Judith had the right to enjoy till her death. .
3. Claiming under Ext. Al and alleging first defendant to be a lessee under Judith, the appellant sued her in O.S. 451 of 1967 not for possession but for rent alone. Title and lease were doned and first defendant claimed full right and possession under Ext. B2 Thereafter also the suit was converted into one for declaration of title and realisation of compensation for use and occupation alone and not for recovery. Thereafter the suit was dismissed by the trial court and appellate court accepting the title of Judith and the first defendant. But the decision was reversed by this Court in 1979 in Second Appeal and the suit decreed.
4. Under a joint and mutual will, which Ext. Al was, there is an implied understanding that after the death of one or more of the testators the other or others will not be entitled to revoke the will and they are bound by it. Such a revocation will be unauthorised and it will amount to a breach of truth towards the deceased testator or testators. The will then became irrevocable and the remaining testators alone by themselves could not revoke or change it. The surviving testators will then assume the role of trustees on behalf of the legatees and they will not be entitled to change the will of the deceased persons who could not express their desires on account of death. What they did said and did will thus became final. In this case over and above that position Judith had the added disadvantage that she had no right for herself in the property except as heir of her husband. That right was not available when the will of her husband became final by his death. These are the reasons on which the suit was decreed. By the decision what was declared was only title on the basis of the will and incompetency of Judith to execute Ext. B2.
5. If the starting point of limitation for recovery on the strength of titles is the date on which Ext. A3 judgment in second appeal was rendered by this court the suit is well within time. Article of the Limitation Act applicable is 65 and the period is 12 years from the date on which possession becomes adverse. The law as laid down in AIR 1951 TC 32 was that by the decree declaring title in favour of the plaintiff, any adverse possession which the defendants and had must be deemed to have been interrupted and, as such, a suit based on title within 12 years of the date of such a declaration must be taken to be within time. But the law in that respect underwent a change by the F.B. decision in AIR 1957 TC 32 consisting of the two Judges who decided AIR 1951 TC 32. Now the position is that a decree merely declaring the plaintiffs title to the property involved in the suit will not interrupt the defendant's adverse possession of that property and if such possession is allowed to continue undisturbed for a period of 12 years of more from the commencement of such adverse possession, irrespective of the declaratory decree the defendant will acquire title by prescription. The cause of action for recovery of possession is not from the date of the decree but from the date of defendant's adverse possession.
6. Atleast in January 1966 the right to get possession accrued to the appellant. The suit was filed only on 1-6-1981. Appellant was aware of Ext. B2 and the possession under it as if on full right adversely to him even when Judith died. It is admitted that first defendant was in exclusive possession under the claim of such a right till 19-3-1971 when title and possession were handed over to the second defendant under Ext B3. Thereafter second defendant is in exclusive possession as full owner. If not atleast when his title was denied and independent title and possession were claimed in 1967 in O.S. 451 of 1967 the appellant must have been aware of the assertion of hostile title. When he filed B.R.C. 62 of 1979 also his title was denied and the rent arrangement was also denied and found against. The O.P. was dismissed. The decision in 1959 K.L.T. 291 relied on by the appellant has no application. That was a case dealing with adverse possession it is necessary to show when the permissive possession became adverse. In this case evidently there was adverse possession for more than 15 years when the suit was filed and such possession was clearly known to the appellant who selept over his right to get recovery.
7. It is true that adverse possession was specifically and clearly alleged only by the second defendant. First defendant only adopted the contentions of the second defendant. So also evidence regarding adverse possession was given only by the first defendant. Second defendant did not go to the box. Therefore an argument came that without a plea of adverse possession of the first defendant and evidence of hostile possession from the second defendant, the contention cannot be accepted. That plea is too technical and I am not in a position to accept it. Acceptance of the plea of the second defendant by the first defendant in his written statement is sufficient to show that he is also raising the same contention. Facts are admitted and possession from January 1966 is evidently hostile. Everything is covered by documents and admissions. If at all any proof is required that is only formal proof. The evidence of the first defendant is sufficient for that purpose. First defendant and in continuation of his possession the second defendant was in continuous possession as of right as full owner in derogation of the title of the appellant to his knowledge. In these circumstances it was not necessary that second defendant also went to the box to swear that his possession was also adverse.
8. It is true that adverse possession will mature into title only by the expiry of 12 years. Till then the nature of possession is only inchoate. But such possession until interrupted in the meanwhile can be tacked on where there is previty of contract, estate, law or relationship resulting the acquisition of rights by inheritance or otherwise. Such tacking could be had as between transferor and transferee, mortgagor and mortgagee, lessor and lessee as well as ancestor and heirs. It is immaterial that on the date of the transfer evidenced by Ext. B3 the first defendant did not acquire title by prescription. Both were holding as owners. The period of possession of the first defendant could be tacked on by the second defendant to his possession under Ext. B3.
9. Whether it be under Article 65 or under Article 144 of the Limitation Act starting point of limitation for the suit is the date on which possession became adverse. That was in January 1966. The suit is cleary barred since the second defendant acquired , title by prescription. Dismissal of the suit by the Appellate Judge is fully justified.
10. Second appeal is dismissed without costs.