Kora Bala Thripurasundara Rao vs Ratala Kotayya

Satyanarayana Rao, J.—The pltf. is the applt. in this appeal. His suit for a declaration of title & possession of plaint B schedule properties

was dismissed by the lower Ct.

The property in suit originally belonged to one Govindu who died on 5-10-1897 leaving behind him his widow Veeramma & two daughters

Peda Kanakamma & China Kanakamma. Veeramma died on 19-4-1909 & according to the pltf''s case, the inheritance was divided between the

two daughters in 1910. Peda Kanakamma was married to Bollayya, the father of the deft. She died in 1913. China Kanakamma who is still living

surrendered the estate under a deed of surrender of 14-8-1946 EX. A. 1 to her son, the pltf. The pltf. sues in this suit to recover possession of half

of the inheritance of his maternal grandfather which came into the possession of Peda Kanakamma by virtue of the partition of 1910 after the death

of Veeramma & which continued in the possession of Bollayya, the husband of Peda Kanakamma & after his death with the deft. The pltf''s case

regarding the possession of Bollayya was, as stated in para. 4 of the plaint is that though after the death of Peda Kanakamma China Kanakamma

became entitled to the entirety of the estate as the sole heir, her paternal aunt Lakshmamma whose son was Bollayya & the grand-children of that

paternal aunt continued to live with her & that she had later on allowed those people to be in possession of plaint B schedule property at the desire

of paternal aunt. The case of the deft, as put forward in the written statement was that this Bollayya was brought into the family as an illatom son-

in-law by Govindu & that he was subsequently married to Peda Kanakamma under an arrangement that he should be entitled to half the properties

of Govindu, that the properties were actually partitioned after the marriage of China Kanakamma & that a half share in those properties which is

now represented by the B schedule attached to the plaint were given to him & that he had been in possession & enjoyment of the same till his

death & thereafter the deft., his son, came to be in possession. It must be mentioned that this deft, is not the son of Bollayya by Peda Kanakamma

but by his second wife Hanumayamma. The deft, in his written statement also attacked the surrender deed as being sham & that it was never

intended to be acted upon. There was also a point raised in the issues that the property in dispute did not belong to Govindu & that he did not die

possessed of the same but that issue was subsequently abandoned.

The most important question that had to be decided by the lower Ct. was the truth of the illatom put forward by the deft. On this question the

finding of the trial Ct. was adverse to the deft. & the deft, has filed cross objections canvassing the correctness of that finding. The learned

Subordinate Judge upheld the surrender as being valid & he also found that there was no alienation by Peda Kanakamma. He would have in the

ordinary course decreed the suit in favour of the pltf. but for the fact that he found that Bollayya was in possession of the property ever since 1913

& that the patta was also transferred in his name & according to the Judge this possession was adverse as in his opinion the evidence relied on by

the pltf. to prove the permissive character of the possession was not clear. He, therefore, dismissed the pltf.''s suit, though he found on most of the

issues in his favour, on the ground that as China Kanakamma could not have displaced the title of Bollayya by reason of his adverse possession for

more than twelve years, notwithstanding the surrender by China Kanakamma in his favour the pltf. was not entitled to recover possession of the

property during the lifetime of China Kanakamma.

The pltf. preferred this appeal against the decision of the learned Subordinate Judge & as stated above, the deft, filed cross objections attacking

the finding of the trial Ct. on the issue relating to illatom.

We may dispose of the cross objections first as the point raised by the cross objection goes to the root of the case. If Bollayya''s illatom

adoption put forward by the deft, is true & the finding of the learned Judge is erroneous the pltf.''s suit must fail. We, however, think that there are

no reasons for differing from the conclusion arrived at by the learned Subordinate Judge on the question of illatom adoption. (After discussion of

the evidence the judgment proceeds :) The learned Judge, in our opinion, has given very cogent reasons to reject the oral testimony put forward on

behalf of the deft. & for the reasons given by him & for the reasons we have given in this judgment, we agree entirely with his conclusion that the

illatom put forward is not true.

We now come to the pltf.''s appeal. There are really two questions raised in this appeal; firstly, whether the view of the learned Judge that the

possession of Bollayya from 1913 was adverse is correct & secondly notwithstanding the adverse possession of Bollayya, if true, is the pltf.

entitled to recover possession of the property dating his cause of action from the date of the deed of surrender on the basis of the civil death of

China Kanakama which that surrender had brought about. If we agree with the contentions of the learned counsel for the applt. on the first point it

is really unnecessary for us to deal with the second point. But even there, as the decisions of this Ct. stand, we think that if Bollayya''s adverse

possession was established as against China Kanakamma, the pltf. would not be entitled to displace the title & possession of Bollayya & his son

until after the death of China Kanakamma. It has been settled law so far as this Ct. is concerned that if a widow alienates a portion of her

husband''s estate for purposes not binding on the estate & then surrenders the estate, the surrenderee would not be entitled to question the

alienation & recover possession of the property until the death of the surrendering widow or the other limited owner. The leading case on the

subject is Subbamma v. Subramanyam, 39 Mad. 1035 : AIR 1917 Mad. 473 & there are other decisions in which this view was followed. There

is no difference in principle, in our opinion, between the case of an alienation & a case where the title of the limited owner became extinguished by

operation of the statute of limitation. By reason of that adverse possession for more than 12 years, the title of the limited owner became

extinguished by virtue of s. 28, Limitation Act, & the adverse possessor acquires a title good against the limited owner. By virtue of the surrender if

the surrenderee is not allowed to displace the title of an alienee holding the property under an alienation which was not for a necessary & binding

purpose, it stands to reason that on the same analogy a person who had acquired title, by adverse possession must also be protected. By adopting

the device of surrendering the estate, the widow cannot get round the effect of her inaction in not suing within time to recover possession of the

property. This principle, in our opinion, was the basis of the decision in (Venka) Ramayya Vs. (Venka) Narayya and Others, which was followed

by the lower Ct. In that case the widow alienated the property for no binding purpose & the daughter who succeeded to the estate after the death

of the widow did not sue to recover possession of the property after getting rid of the alienation. After her right to bring the action became barred,

the daughter surrendered possession of the property to the next reversioner instituted a suit against the alienee to recover possession of the

property alienated by the widow. Though it was not an alienation by the daughter who surrendered the estate, the learned Judges who considered

the point applied the principle of Subbamma v. Subramanyam, 39 Mad. 1035: AIR 1917 Mad. 473 held that as by the inaction of the daughter

her right to recover possession of the property after getting rid of the alienation became extinguished, it was not competent to the reversioner to sue

to recover possession of the property until after the death of the daughter. By reason of the application of the statute of limitation there also the

right of the limited owner who surrendered the estate, became extinguished & the reversioner was not permitted to sue for possession & displace

the title acquired under the law of limitation. On the same principle, we think that if the title of Bollayya by adverse possession is otherwise

established, the pltf. would not be entitled to recover possession of the property until after the death of China Kanakamma. No doubt, some of the

other High Courts have taken a different view from this Ct. & have held that in all cases the surrender will operate as the civil death of the limited

owner & a cause of action accrues from that date. But in view of the decisions of this Ct. which have taken a contrary view we think that we are

bound to follow the principle of the decision in (Venka) Ramayya Vs. (Venka) Narayya and Others, & the decisions relied on in that case.

This leads us on to the question of fact, viz., whether the possession of Bollayya was adverse or was merely permissive. In the written statement

of the deft., it was claimed that this Bollayya was in possession of the property from the beginning, i e., on the footing that he was the illatom son-

in-law & that case has now been proved to be false. Curiously, in the written statement of the deft. no attempt was made to show how & under

what circum stances Bollayya came to be in possession of the properties in 1913 & on what basis he had applied for mutation of names in the

revenue register. The evidence of P. W. 3, China Kanakamma is in consonance with the pleading in para. 4 of the plaint & it is to the effect that

after the death of Peda Kanakamma, by reason of the persuasions of Lakshmamma, the paternal aunt, she was obliged to permit them to enjoy the

property. (After discussion of the evidence, the judgment proceeds ): We, there fore, disagree with the conclusion of the learned Judge that the

possession of Bollayya from 1913 was not permissive & find that his possession was permissive & that it was with the con sent of China

Kanakamma. We, therefore, hold that it was open to China Kanakamma to terminate that permissive possession & for the pltf. to recover the

property. We, therefore, allow the appeal & set aside the decree of the learned Subordinate Judge dismissing the suit & grant a decree in pltf''s

favour as prayed for in the plaint with costs here & in the Ct. below. The mesne profits payable to the pltf. by the deft. shall be enquired into by the

lower Ct. under Order 20, C. P. C. The memorandum of cross objections is dismissed but without costs.