A.S. ramaswaml Iyer vs Alamelu Mangai and Others

Ismail, C.J.—This is an appeal against the judgment and decree of N.S. Ramaswami, J.-- dated 2nd April, 1975 rendered in Appeal Suit No. 29 of 1971. The first Defendant in Original Suit No. 29 of 1969 on the file of the Court of the Subordinate Judge, Mayuram, is the Appellant here in. The suit properties admittedly belonged to one Subramania Iyer. Defendants 1 to 3 in the suit and one Krishnamurthi Iyer were the four sons of the said Subramania Iyer. At the time of the; suit, Krishnamurthi Iyer was not alive and Defendants 4 and 5 were his sons. The suit properties had been usufructuarily mortgaged by all the members of the family to one Appaswami Iyer as early as on 25th May, 1933. Subsequent to that mortgage the members of the family effected a partition of the remaining family properties under exhibit B-2, dated 29th May, 1933. Under the partition the suit properties, which had been usufructuary mortgaged in favour of Appaswami Iyer, were reserved to be partitioned at a later date. In 1945, under the original of exhibit A-1, dated 28th May, 1945, Defendants 2 and 3 and Krishnamurthi Iyer, the father of Defendants 4. and 5, purported to effect a partition of the suit properties into four shares, allotting one share each to the four sons. They proceeded on the footing that their father, Subramania Iyer, who was then alive, had no further interest in the properties in pursuance of certain recitals in the earlier document. Further the first Defendant was not a party to this partition. The second, Defendant had executed a sale deed, as per exhibit A-2, dated 17th December, 1962 in favour of the first Plaintiff conveying the share which he purported to get under exhibit A-1. The thud Defendant was adjudged insolvent and in the sale held by the Official receiver 1/4th share of the third defendant which he got under exhibit A-1 was purchased by the first Plaintiff.

Meanwhile, the second and third Defendants paid their share of the mortgage amount due to Appaswami Iyer, and the first Defendant, namely, the Appellant herein, instituted a suit for redemption of the usufructuary mortgage. That suit was instituted not only on his own behalf, but also on behalf of his brothers. That suit was decreed and he took possession of the suit properties in December, 1953. Only in January 1957, he purported to usufructuary mortgage the entire properties to a third party under the original of exhibit B-10. It was in that set up that the first Plaintiff filed the present suit claiming that he was entitled to the l1th share of the second Defendant and of the third Defendant which he had acquired under exhibit A-2and exhibit A-3 respectively arid for an injunction restraining the Defendants from interfering with his possession. Alternatively he prayed that the suit properties might be divided into two shares and one such share separated and allotted to him.

The Appellant herein was the only Defendant who contested the suit. He put forward three contentions by way of defence to suit. suit.; The first contention was that his brothers had relinquished their interest in the suit properties in his favour and that therefore they could not pass any title to the first Plaintiff under exhibits A-2 and A-3- The second was that he had prescribed (sic) that he had prescribed title to the suit properties by adverse possession. The third contention was that the first Plaintiff, having taken a lease of the entire suit property from the first Defendant at one stage, was estopped from disputing the first Defendant''s title to any part of the suit properties. The trial Court negatived all these three contentions and decreed the suit of the Plaintiffs. The appeal preferred by the first Defendant to this Court was dismissed by N.S. Ramaswami J., Hence the present Letters Patent Appeal.

As far as the three contentions put forward by the Appellant are concerned, we have no doubt whatever that there are no merits in the same. As far as the first point is concerned, we have already referred to the fact that the first Plaintiff had purchased the share of the second Defendant under exhibit A-2, dated 17th December, 1962. Similarly he had also purchased the share of the third Defendant from the Official Receiver in insolvency under exhibit A-3. The question for consideration is whether they had relinquished their interest in the suit properties in favour of the Appellant herein. We have already referred to the partition, dated 29th May 1933 (exhibit B-2). Under that partition, except the suit properties, all the other properties had been divided and the suit properties were reserved to be divided later, which were the subject of the usufructuary mortgage. The point to be noticed is that by this partition the family ceased to be joint and, therefore, the question of relinquishment by one member of the coparcenary in favour of the coparcenary as such did not arise. If at all, there could only be a transfer of the interest of the other members, but such transfer with reference to immovable property would have to be effected only by a registered document. Independently of this legal position, factually also there could not have been any transfer. The Appellant himself in his written statement does not even say whether it was relinquishment or abandonment. He does not even give particulars or the circumstances under which the abandonment or relinquishment took place. That there could not have been any relinquishment is made clear by the fact that there is an endorsement on the usufructuary mortgage of the payment of their shares of the money by the second Defendant and the third Defendant to the mortgagee. If they had relinquished their interest in favour of the Appellant herein, the question of their paying their share of the mortgage amount to the mortgagee could not have arisen of consequently, all these circumstances put together clearly establish that the case of relinquishment was not true.

As far as the plea of adverse possession is concerned, as we pointed out already, the Appellant instituted the suit for redemption of the suit properties from Appaswami Iyer not only on his own be half, but also on behalf of his brothers. He obtained possession of the properties even in December, 1953. Consequently that possession also was on behalf of the Appellant as well as his brothers, play in January, 1957, did the Appellant usufructuary mortgaged the property to a third party under the original of exhibit B-10. Hence if at all, adverse possession could have risen only subsequent December, 1953, if not from January, 1957. The present suit having been instituted in August, 1964 the twelve year period had not expired either from December, 1953 or from January,1957, and therefore, the Appellant could not claim title by prescription. we may also point out in this context that the Courts below rightly held that the partition entered into between the second and third Defendants and Krishnamurthi Iyer under exhibit A-1 on 28th May 1945 would not be binding on the Appellant-first Defendant, because he was not a party to that partition. In fact, that was the case of the first Defendant himself. If so, with respect to the suit properties, all the four brothers were co-sharers and with reference to such co-sharers, it is not mere adverse possession that has to be established for claiming title by prescription, but ouster has to be pleaded and proved for claiming title by prescription. No such ouster has been pleaded or proved in the present case. This is independent to the conclusion that we have reached, agreeing with the learned Judge, that the Appellant had obtained possession of the suit properties in December, 1953, on behalf of all the brothers, and that therefore any question of adverse possession can arise only thereafter, but before the expiry of the twelve years the present suit had been instituted.

That leaves out the question of estoppel. It is true that on 7th March, 1962 the first plaintiff had taken the entire property from the Appellant herein. But that was at time when the first Plaintiff had not purchased the shares of the second and third Defendants. As we pointed out already, he purchased the share of the second Defendant under exhibit A-2,dated 17thDecember, 1962, and the share of the third Defendant from the Official Receiver under exhibit A-3, dated 23rd September 1963. These purchases of the shares of the second Defendant and the third Defendant were subsequent to the first Plaintiff taking on lease the entire property, from the Appellant herein. To such a situation the principle of estoppel provided u/s 116 of the Evidence Act cannot apply. A Bench decision of this Court in N. Muhammad Hussain Sahib and Others Vs. Selambukara Abdul Gaffoor Sahib and Another, is directly in point. In fact, the facts of that case are also similar to the facts of the present case. That decision clearly lays down that the doctrine of estoppel, which operates between landlord and tenant has no application to the same parties, even while the tenancy exists, when the question of the title arises between them, not in the relationship of landlord and tenant, but of vendor and purchaser. In this case, the first Plaintiff, subsequent to his, taking on lease the entire property from the appellant had purchased the shares of the second and third Defendants. in the suit properties, and therefore with reference to those shares, he could certainly agitate his title as against the appellant t, herein, and the estoppel provided for u/s 116 of the,. Evidence Act is only to prevent a lessee from questioning the title of the lessor at the time of the lease . The Bench decision referred to above is clearly against the claim of the Appellant in this case.

The result is that the appeal fails and is dismissed . There will be do order as to costs.