Joti Dadu Navale vs Manukabai Kashinath Mohite

The only point which the learned Counsel for the appellant succeeded in putting across to the Court was that he is a champion optimist. I will presently mention the nature of optimism.

The facts are very simple.

One Dadu Tukaram Navale had the misfortune of not only having large property, but also an unrealistic bent of mind actuating him to adopt a very young boy of 33 years of age, a married man at that time at that, as his adoptive son. This adoption took place on 9-6-1958. Immediately thereafter, on 29-9-1958, application for mutation of the name of the adoptive son, defendant in this case, came to be made for entering his name in the Revenue Record. Entry in that behalf was made on 29-9-1958 and it was certified on 23-12-1958. Dadu did not live long thereafter to experience the curse of penitence in full. He died on 28-4-1959, living behind the present respondent, plaintiff in the suit, and the present appellant, defendant in the suit, as his only heirs. As will be presently pointed out, the plaintiff would be having one-half share in the property and her adoptive brother would be having the other half. But she seems to have received a peculiar legal advice, on the basis of which she filed the suit as late as on 13-2-1975 for partition and possession of the property left by her father, which was at that time in the hands of her adoptive brother, the defendant. Unfortunately, an averment was made by her (obviously as per the advice received from her Advocate) that she had only one-fourth share in the property left by her father and she prayed for partition and possession of her said share.

The defendant filed his Written, Statement and contended that he had acquired title to the entire suit property by adverse possession. As will be presently pointed out, no positive plea of ouster as such was taken by the defendant. All that he stated was that he was in possession of the suit property and that his possession was adverse to that of the plaintiff. On this ground, he prayed for dismissal of the suit.

On these pleadings, issues were framed by the trial Court and the parties went to trial.

The plaintiff stated in her evidence her relationship with her father and her adoptive brother. She also stated that sometime before the suit she had asked for partition and that her share was not given to her by her brother. But not one word was uttered by her that she had demanded partition 12 years before the date of the suit and not one question was put to her that her demand of partition was before the period of 12 years before the date of the suit.

In his evidence, on the other hand, the defendant stated that just on the 14th day after his father''s death the plaintiff had asked for her share in the property and that he had refused to give her that share.

The only other evidence led by the defendant to prove, what is now claimed as indication of ouster, is the order passed by the Executive Magistrate, Khatav, dt. 15-10-1958, requiring the plaintiff and her husband to keep peace.

The trial Court rightly came to the conclusion that it was impossible for any Court to hold ouster proved by the brother of the sister on the basis of such sketchy evidence. The plaintiffs suit was, therefore, decreed by the trial Court for 1/4th share in the suit property.

The said view has been upheld by the Appeal Court and hence this Second Appeal by the defendant.

Mr. Savant, the learned Counsel appearing for the defendant/appellant, strenuously contended that the evidence on record is positively indicative of the ouster of the plaintiff if not as early as in the year 1958 when mutation entries were effected and if not in the year 1958, at least on the" 14th day after the death of Dadu which took place on 28-4-1959. He also relied upon the order of the Executive Magistrate, dt. 15-10-1958, to prove the ouster.

I may state here that sitting in my jurisdiction in Second Appeal, I am wholly unable to accept this plea. But even if I was to sit in my jurisdiction of First Appeal, I would be entirely disinclined to accept it. The defendant has not succeeded in painting a very glorious picture of himself before the Court. On his own showing, he is a grabber. He has no regard for rights of his own sister. As a matter of fact, it can be seen that his adoption is of an extremely doubtful validity, He was very much of a married man on the date of his adoption and was of 33 years of age at that time. Such adoption is not valid unless there is a custom in the community to which he belongs of taking married boys in adoption after the age prescribed by the Adoption & Maintenance Act. There is no such custom either pleaded, or proved; but that was so probably because his adoption was never questioned by the plaintiff. But even though there is no such challenge, this Court can see that the community to which he appears to belong cannot be having any such custom. This is something of which the Court can take only judicial notice.

But the point is that on his own showing his father made application to the Revenue Authority for substitution of the defendant''s name in the Revenue Record in the place of that of himself. Even that could be understood But, as per his own claim, immediately after the death of his father, just on the 14th day, he told his sister point-blank that he had no inclination whatsoever to give even her rightful share in the suit property. As will be presently pointed out, she had one-half share in the same; she was asking only for onefourth. That appears to be his contention. As per his own claim, he was not inclined to give even that pittance of one-fourth to her. This is the character of the defendant. Both the Courts below have therefore refused to lend credence to his bare word when he stated that the ouster took place on the 14th day after Dadu''s death. Not only that his word is not supported by any other independent evidence, but, curiously enough, no such case is even put to the plaintiff on behalf of the defendant in her cross-examination. She admitted in her Examination-in-Chief that she had demanded partition. She had not stated that she had demanded it on the 14th day after Dadu''s death. Obviously, what she meant was that sometime before the suit she had demanded partition. Her evidence does give rise to the inference that when she demanded partition, the defendant refused it. I am prepared to hold that such refusal would be tantamount to her ouster. But the point is if her evidence was to the effect that the refusal came 12 years before the date of the suit, she was out of the Court. If, on the other hand, the evidence showed that the refusal might be within 12 years before the date of the suit, the plea of ouster was of no avail. The burden in this behalf was heavily and squarely upon the defendant. The evidence led by him to discharge that burden is next to negligible.

Mr. Savant also relied upon the order of the Executive Magistrate passed in the year 1958, which is referred to above. But from the order, nothing can be inferred. Admittedly, the plaintiff had no interest whatsoever in the suit property on the date when the order was passed. On defendant''s own showing, his father had applied to the Revenue Authority for mutation of the defendant''s name in the Revenue Record. The father was obviously the sole surviving coparcener if the property was the ancestral property in his hand. He had all the right to give it even to a dacoit. He purported to mutate it in the name of his adoptive son. That mutation did not amount to transfer. But what he did was within his power. That has no bearing whatsoever upon the right of the plaintiff which accrued to her upon and after the death of her father Dadu. There is no evidence whatsoever that after Dadu''s death she claimed partition on any date beyond the period of 12 years before the date of the suit. To be more specific, the suit was filed on 13-2-1975. There is no evidence to show that she claimed partition and the partition was denied to her on or before 12th Feb. 1963. Any denial of her rights subsequent to 13-02-1963, whether it was indicative of ouster or not, would be of no avail for the defendant.

The Appeal must fail on this short ground itself.

But Mr. Savant relied upon certain Authorities to persuade me to take the view to the contrary and this is what proves my observation made at the outset, viz. that he made good a case of being a champion optimist, because, to my mind, once it is held that no fact indicative of ouster was proved to have taken place any time 12 years before the date of the suit, the matter ended. All the same, I would like to refer to the authorities cited by him.

(a) The 1st Authority relied upon by him is Ishak Ali Vs. Mst. Unnasbi Porthahin and Others,

Head-Note (a) in that case states that mere possession of a brother to the exclusion of his sister would not afford a ground for setting up adverse possession against the knowledge of her rights as well as her ouster was brought home to the lady concerned.

As pointed out above, this is really the ratio which governs the present case squarely in favour of the plaintiff. But Mr. Savant wanted to rely upon Head-Note (b) of that decision which states that where possession has continued for a considerable period of time, there is some kind of presumption of ouster. However, in the instant case, there is nothing to show that possession was of such long duration. 15 or 16 years of possession cannot be said to be indicative of presumption of ouster.

(b) The 2nd Authority relied upon by him is the judgment of the Kerala High Court reported in Velliyottummel Sooppi and Others Vs. Nadukandy Moossa and Others, .

I have gone through the judgment and I do not find anything therein which helps the appellant. All that is held there is that when one co-owner takes possession and continues in possession for a long time enjoying the income of the property without sharing it with the other co-owners, it is a strong circumstance indicative of ouster or from which an inference can be drawn, that there was ouster of the co-owners not in possession; and if other circumstances also exist in support of this, Courts will be justified in inferring ouster or exclusion.

Unfortunately, for the plaintiff in this case there is no evidence that the defendant took possession from the plaintiff. Her father was in possession at least till the date of adoption. After his death, both the father and the adoptive son must have been in possession. The plaintiffs sister was already married and living elsewhere. During the lifetime of her father, she could not be in possession. The possession was taken from her by the defendant. She asked for partition later on. But there is nothing to show that she asked for partition 12 years before the date of the suit. There is therefore nothing to show that the ouster took place 12 years before the date of the suit. The Authority, therefore, does not in any way help the appellant.

(c) The last judgment, which should have been cited in fact as the 1st judgment because it is a Supreme Court decision, is the one reported in Shambhu Prasad Singh Vs. Mst. Phool Kumari and Others, . Head-Note (B) of the said judgment is relied upon wherein it is observed that no adverse possession against a co-sharer can be inferred in the absence of evidence of open assertion of a hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other.

As indicated above, there is no evidence of open assertion of hostile title against the plaintiff proved in this case at all.

It is, thus, clear that none of the authorities, cited by Mr. Savant comes to his rescue.

I cannot part with the judgment without observing that apart from the question of validity of the adoption of the defendant, there is the question as to whether the plaintiff was not entitled to one-half share in the suit property instead of one-fourth share claimed by her and given to her. In the instant case, both the plaintiff as well as the defendant claimed right to the property as the heir of their father, Dadu. This means that the suit properties were either the separate properties or the self acquired properties of Dadu. I am assuming that they were the ancestral properties in his hand But obviously, if they were the ancestral properties he was the last surviving coparcener and hence they were his separate properties within the meaning of Hindu Law. He had all the right in the world to dispose them the way he liked In other words, the entirety of the property vested in himself alone before he adopted the defendant as his son. If that was the position, then u/s 12, proviso (c) of the Hindu Adoptions and Maintenance Act, the adoption could not have the result of reducing his full share in the property to one-half share, because as per proviso (c) an adopted child cannot have the right to divest any person of any estate which had vested in him before the adoption. On the date of adoption, 9-6-1958, therefore, the defendant got no share whatsoever in the suit property. He continued to have no share therein till the date of death of Dadu. Upon the death of Dadu, he got the share in the same, but by succession, not by survivorship. It is, thus, clear that he got share equally with his sister, the plaintiff. It must follow that the plaintiff had one-half share and not only one-fourth share in the property. The statement made by her in Para 3 of her plaint to the effect that she had one fourth share in the suit property was evidently the result of palpably wrong legal advice received by her. Unfortunately, the benefit of it has gone to the defendant only, who has proved himself none other than a rank grabber : feeling no hesitation to do down his own sister.

The Appeal, therefore, fails and the same is hereby dismissed with costs.