Bhogara Bharamappa vs Rudrappa and others

Balakrishnaiya, J.—This appeal arises out of a suit for partition and possession of a fourth share in the schedule properties, defendants 1 to 23 are members of a joint Hindu family and defendants 24 and 25 are the alienees of some of the schedule properties. The defendants denied the claim of the plaintiff in entirety. The trial Court found in favour of the plaintiff and on appeal that decision was reversed dismissing the suit. This Second Appeal is preferred by the plaintiff against the decision in the first appeal.

It is undisputed that the suit properties formed the joint family properties of defendants 1 to 23 and the Late Sivarudrappa and his sons Sivappa and Mahadevappa since dead. After the death of Sivarudrappa a suit to enforce a debt on a money bond executed by him was filed against his sons Sivappa and Mahadevappa and the right, title and interest of the said Sivappa and Mahadevappa in the joint family properties were attached before judgment in O. S. No. 417/ 1916-17 on the file of the Munsiff, Sagar.

In pursuance of the decree obtained, a fourth share in the properties which was agreed to have been possessed by the then Judgment-debtors Sivappa and Mahadevappa, was sold by the Court and one Laxmanappa became the auction-purchaser. The plaintiff is the assignee of the said right from the auction-purchaser Laxmanappa. No delivery in pursuance of sale was, or could have been, obtained through Court either by the plaintiff or his vendor, the auction-purchaser, as the subject-matter of the Court sale was merely an undivided share of the Judgment-debtors in the joint family property.

The points that arise for decision in this appeal are: the nature of title derived by the purchaser in the Court sale and the bar of limitation to the suit pleaded by the defendants.

The attachment before judgment was effected on 8-6-1917 and the decree was obtained against the assets of the deceased Sivarudrappa and also against the interests in the family properties of his sons Sivappa and Mahadevappa who were impleaded as defendants in the earlier original suit. It is not denied that the attachment before judgment and the decree obtained were during the life-time of the Judgment-debtors, Sivappa and Mahadevappa. These two Judgment-debtors having died in the year 1925, the execution proceedings for the realization of the decree amount were continued against their legal representatives in Ex. Case No. 103/28-29 and the interest already secured by attachment before judgment was sold by the Court and the said sale was confirmed on 29-11-35. The assignment of the right in favour of the plaintiff was in 1945 and the suit for partition and possession was filed on 28-11-47 by the assignee of the original purchaser.

The main contention of the respondents is that the original Judgment-debtors ceased to have any interest in the properties on the date of sale as they were not alive then and defendants 1 to 23 being the remaining members of the family had become the full owners of the properties by right of survivorship earlier to the sale. They rested their contention on the decision reported in -- '' 48 Mys HCR 221 (A).'' An observation is made in that decision that the interest of the Judgment-debtors in the property sold should be determined as on the date of sale and not as it was on the date of attachment.

In that case the Judgment-debtor appeared to have had a third share in the family property at the time of attachment which was sold in execution and in a subsequent suit by the purchaser for partition and possession a contention regarding the quantum of share sold in execution was raised and it was decided that the sale is effective to the extent of only 1/12, as, by the time of sale, some more coparceners were born in the family of the Judgment-debtor. The Judges who decided the case referred to the decision of the Judicial Committee in -- ''Suraj Bunsi Koer v. Sheopersad Singh'', 5 Cal 148 (PC) (B) but without any comment or explanation about the principle decided therein.

However, the decision of this Court does not need further consideration as the proposition laid down therein is not relevant for the consideration of the facts in this case as the Judgment-debtors were not alive and the surviving members could only take the estate by survivorship subject to the equities that were available at the time of succession. A coparcener of a joint Hindu family governed by Mitakshara School of Hindu Law has a right to sell or mortgage his interest in the joint family property and it is well established that the undivided interest of a coparcener can be seized by attachment and sold in execution of a decree against him for a separate or personal debt.

In proceedings for sale, the attachment of the property whether made before or after the decree, is effective provided in the former case, a decree is made for the plaintiff during the lifetime of the debtor, as, under Order 38 Rule 11 Civil P. C., the property attached before judgment will become the property attached after decree in execution; if the creditor effects no attachment before the death of the debtor, he is altogether without remedy against the debtor''s interest in the coparcenary property and the entire property passes by survivorship and the surviving coparceners will not be liable for the personal debt of the deceased co-parceners. However, the subsistence of an attachment at the death of a co-parcener will preclude the right of survivorship.

The attachment thus creates a specific lien in the property and renders the right of survivorship subject to the rights of the creditor under attachment. Their Lordships of the Judicial Committee have laid down in -- '' 5 Cal 145 (PC) (B)'', which has been followed by this Court, as also by other Indian High Courts that the property attached before judgment during the life-time of the debtor can be sold after his death in satisfaction of the decree obtained against him. Hence the attachment does preclude the accrual of title by survivorship and the sale should be deemed to have been made to the extent of the subsisting attachment.

This leads us to the consideration of the defendants'' contention that the Judgment-debtors possessed no interest in the property. Miller C. J. in -- '' 39 Mys C. C. R. 293 (C)'', posed the question whether the alienees share is to be held as it stood on the date of alienation or whether the share attached is subject to increase or diminution by subsequent events in the family, and answered the same by stating that the alienor''s interest is definite and vested as it was on the date of transfer. The decisions of Bhashyam Ayyangar J. in -- ''Aiyyagari Venkataramyya v. Ramayya'', 25 Mad 690 (FB) (D) and that of Miller C. J., in -- '' 39 Mys OCR 293 (C)'', have been approved and relied upon in -- Veerappa v. Anantharaman'', 53 Mys HCR 438 (E). To apply the principles laid down in these decisions it is necessary to fix the date when the interest in the property became vested.

The transfer is effected obviously when the share was actually sold and the extent of share sold dates back to the attachment subsisting on the date of the death of the Judgment-debtor. It is not disputed by the respondents that the right, title and interest of the Judgment-debtors was attached and a decree was passed during their life-time. In the course of the execution proceedings the parties thereto were required to file memos specifying the share attached. The decree-holder and the legal representative of the judgment-debtors filed memos on 25-10-29 and 1-11-29 respectively. The Court then passed an order to the following effect:

Both parties admit that the deceased Judgment-debtors Sivappa and Mahadevappa were entitled to �th share in the properties attached before judgment. The present Judgment-debtors have no objection to proceed against that �th share. I therefore direct that the decree-holder may proceed against the �th share of his original Judgment-debtors in the attached properties. (Vide Ex. K).

The sale certificate Ex. E also contains that the �th share of the original judgment-debtors was auctioned as lots Nos. 1 to 5 and it was confirmed to the purchaser. In this view, there is little or no doubt that a fourth share in the properties has passed to the purchaser in the Court sale.

The next question raised for consideration is about the limitation. It is established law that a stranger purchaser of the shares of coparceners in the joint family steps into the shoes of the Judgment-debtors whose interest is sold and becomes a co-sharer or a tenant-in-common with the other coparceners. Plaintiff has derived his interest from Lakshmanappa who has purchased in court auction the interest of the Judgment-debtors, the coparceners in the joint family. The rule of limitation applicable for the plaintiff''s suit is that which would have been applied had there been a suit amongst the coparceners themselves. The mere fact that the other coparceners who had a share in the property continued to be in possession thereof does not affect the position of the purchaser until and unless the person in possession is shown to have begun to claim adversely by some overt act.

In the present case, the starting point of limitation should be taken to be the date when the sale is made absolute as the purchaser would not have been in a position to sue for possession before that date. The suit is obviously filed within 12 years from the date on which the Court sale was made absolute. The question that is raised for decision does not relate to adverse possession but to the specific provision of the Limitation Act that is applicable to the circumstances of the case. The trial Court by applying Article 138 held the suit claim to be in time whereas the appellate Court applied Article 137 and dismissed the suit.

I am unable to follow the reasoning of either Court and the approach for the determination of this point appears to be incorrect. Article 137 applies to cases where the Judgment-debtor being out of possession on the date of the sale obtains possession at a later date. In such a case the starting point of limitation begins from the date when possession is regained by the Judgment-debtor. In this case as the Judgment-debtors had died long earlier they could not be said to get into possession subsequent to the sale and therefore Art. 137 has no application. Article 138 implies possession by Judgment-debtors on the date of sale which is not the case here.

As already observed amongst co-sharers or tenants-in-common, the possession of one will be presumed to be for the benefit of all; hence, in order to make such possession adverse there must be open assertion or hostile title on the part of the persons setting up adverse possession and an overt act of dispossession amounting to ouster of the co-owner. This point has been considered and settled in -- '' 53 Mys HCR 438 (E)'', and -- ''Siddiah v. Rangadas'', 55 Mys HCR 156 (F)''. In the later case it has been laid down as follows:

A co-owner or a co-tenant cannot be considered to acquire adverse possession of the other co-owner''s shares. A purchaser of a co-owner''s interest, occupies the same position as his transferor and by the mere fact of obtaining a transfer in his favour and appropriating to his own use some of the joint land, he does not acquire title by adverse possession as against his co-owners. His possession is limited, if at all to the portion acquired by him. There must be some assertion of hostile title on his behalf accompanied by distinct acts of ouster of his co-sharers for a period of over 12 years prior to the suit before he can acquire title by adverse possession.

The article that is applicable to the circumstances of the present case was also considered in the former case. In -- '' 53 Mys HCR 438 (E)'', it is held in circumstances similar to the present case that the suit was governed by Article 144 and not by Article 138 . Similar is the law laid down by the Calcutta High Court in Biswanath Chakravarti Vs. Rabija Khatun and Others, where it was held that when a purchaser at Court sale sues the co-tenants of the Judgment-debtor Article 138 will not apply for that Article applies only against Judgment-debtor and persons claiming through him and that the suit would be governed only by Article 144. The present suit is obviously to enforce possession against the co-sharers in the joint family property by a stranger in whom a share by sale is vested and hence it falls clearly under the residuary Art. 144; consequently the suit brought within 12 years from the date when the sale became absolute is in time.

It is next contended by the respondents, though not seriously, that the suit for partition to the extent of properties lots 1 to 3, of the plaint schedule, is not maintainable as those properties were forfeited to Government for non-payment of land revenue and that the fact of forfeiture could be gathered, inferentially from the note in the remarks column of Ex. L, wherein it is stated that the said lands were included in Government waste. This contention is unsustainable. u/s 54, Land Revenue Code it is undoubtedly open to the Deputy Commissioner to forfeit not all the rights liable for forfeiture under that section, but only those of the immediate defaulter as they stand at the time, if he thinks fit, without affecting tenures, encumbrances and rights derived from the immediate defaulter or his predecessors-in-title. (Vide -- '' 43 Mys HCR 325 (H)''.) It is also observed in -- '' 50 Mys HCR 337 at page 344 (I)'', that

We must therefore examine the order of forfeiture to decide what exactly was forfeited in this case.

In the absence of specific evidence, it is very difficult to come to a conclusion whether there was any forfeiture and if so, to what extent. Even otherwise, a mere forfeiture, as held in -- '' 18 Mys CCR 76 (J)'', while it no doubt operates so far as Government is concerned, as a resumption of the holding, does not, unless it is followed by a sale, necessarily extinguish rights and equities that may be subsisting as between private parties. It is obviously open to Government, and generally followed as a policy, to restore the forfeited occupancy in the event of the arrears being paid.

The respondent rested his contention on a case of this Court reported in -- ''Krishna Murthy v. Subba Rao'', AIR 1952 Mys 61 (K) wherein there is an observation that it is not necessary that the property forfeited should be actually sold by the Deputy Commissioner in order that the rights of the defaulting holder may be affected and that the moment there is an order of forfeiture on failure of payment of revenue, the defaulting holder loses all rights in the property .......... and that all the members of the family must be deemed to have lost their rights as jodidars and they cannot file a suit for partition and possession of the property.

The decision is distinguishable and is not applicable to the facts of the present case as there is no sufficient evidence of forfeiture. Further the evidence discloses that the properties in question continue to be in the possession and enjoyment of defendant 13, in spite of forfeiture which cannot be reconciled without proper explanation. If the defendants have no interest in the properties, a decree in favour of the plaintiff will not affect their rights.

The learned Subordinate Judge has observed that the attachment of the properties was not made during the life-time of the judgment-debtors. This is a manifest mistake of facts. It is difficult to see how he has reached that conclusion as both the attachment before judgment and the fact of the decree having been made during the life-time of the judgment-debtors, is proved beyond doubt. Moreover the decision in -- '' 5 Cal 143 (B)'', which is followed by this Court in -- '' 19 Mys CCR 142 (L)'' has been completely ignored. The learned Judge holds that the auction purchaser has derived no interest, as the rights of the judgment-debtors had by the date of sale been lost by right of survivorship. To say the least, he has misread the facts and misconceived the law applicable and this has landed him into an error of judgment. On the point of limitation also, he has misdirected himself despite a definite decision in -- '' 53 Mys HCR 438 (E)'', that the Article applicable is 144 of the Limitation Act.

Viewed from any point, the judgment and decree of the learned Subordinate Judge cannot be upheld. The learned Munsif has given a decree for declaration that the plaintiff is entitled to �th share and for partition and possession of the same. He has rightly disallowed the past mesne profits claimed but I do not see any reason why mesne profits should not be allowed from the date of suit. The judgment and decree of the learned Subordinate Judge are hereby set aside and those of the learned Munsiff restored with the modification that the plaintiff will have further relief of getting future mesne profits to be ascertained by an application under Order 20 R. 12, Civil P. C.

In the result, this appeal is allowed as indicated above with costs.