Munuswami Chetty vs Sarakayya and Others

Viswanatha Sastri , J.—The Plaintiff is the Appellant In this second appeal. The suit was filed for a Partition and separate possession of the Plaintiff''s l/3rd share of certain items of family properties. The trial Court decreed the claim of the Plaintiff in respect of all the items of which he sought a partition.

On an appeal preferred by the 8th Defendant, the alienee of four items of property comprised in the plaint, the lower appellate Court held that these items were not liable to partition and dismissed the Plaintiff''s suit with reference to them. Hence this second appeal.

The items with which this second appeal is concerned are Pymash Numbers 355, 356 and 360 to the extent of about 13 guntas comprised in patta No. 120. The Plaintiff claimed these items as forming part of joint family properties in which he was entitled to a third share. The family pedigree is given in Ex. A-l, but it is unnecessary to reproduce it here.

The plea of the Defendants 2, 3 and 4 of whom Defendants 2 and 3 had joined their father, Basappa Chetti, in making the alienation of the items now in dispute, was that under a partition and a family arrangement of 1928, Rasappa Chetti, their father had undertaken the discharge of some family debts and in consideration of his undertaking, he was allotted the properties now in dispute exclusively for his share.

In the present case, however, the vendee, Mottayappa Mudali took possession of the lands sold to him in 1928 and continued in possession till 1936. Even if he took possession in 1933, his he was allotted the properties now in dispute exclusively for his share.

It may now be stated that the findings of both the Courts are that there was no such arrangement in 1928 and that the family continued to be joint till the date of the suit.

Under Ex. B-11 dated 2-11-1928, Rasappa Chetti, the father of Defendants 2 to 4 and the elder brother of the 1st Defendant sold the items now in dispute for a sum of Its''. 400/- to one Mottayappa Mudaly. The vendee was directed to discharge a debt of Rs. 132/- due to one Ayyasami Reddi, Anr. debt of Rs. 118/- duo to Samba Siva Reddi and a sum of about Rs. 150/- due to the vendee, Mottayappa Mudaly himself.

There was considerable delay in the discharge of the debts directed to be paid by the vendee under. Ex. B-11. Exhibit B-2 dated 19-12-1926 renewed by Ex. B-l dated 16-4-1931 in favour of Ayyasami Reddi was one of the debts which Mottayappa Mudaly agreed to discharge under Ex. B-11. From the endorsement of discharge on Ex. B-l it appears that the debt was actually paid off only on 5-7-1933. '','' The debt due to Sambasiva Reddi was also discharged on 7-7-1933 as appears from the receipt, Ex. B-4. According to the written statement of Defendants 2 to 4, the vendee. Mottayappa Mudaly was obstructed in his enjoyment of the properties purchased by him under Ex. B-11 on account of his''default in not paying the debts which he was directed to pay to the'' creditors of the vendors. This allegation, however, does not amount to an allegation of dispossession of the vendee from the properties purchased by him under Ex. B-11.

On 22-8-1936 Mottayappa Mudaly sold the properties which he purchased under Ex. B-11 to one Munuswami, the 7th Defendant in the case and also the maternal uncle and the sister''s husband of Defendants 2 to 4. Exhibit B-7 was for a sum of Rs. 280/- and covered all the four items purchased by Mottayappa Mudaly under Ex. B-11.

On .22-8-1936 when the sale deed Ex. B-7 was executed, there was Anr. document, Ex. B-8 executed by the 2nd Defendant in favour of Munuswami, the 7th Defendant. Exhibit B-8 was a mut-Chilaka under which the 2nd Defendant took on lease the properties purchased by Muniswami under Ex. B-7.

Under Ex. B-8 the 2nd Defendant agreed to pay thirva which had to be paid to the Zamindar in respect of the lands. The period of the lease under Ex. B-8 was one year. It appears that the 2nd Defendant continued to be in possession of the lands leased to him oven, after the expiry of the lease.

According to the finding of the lower appellate Court, Mottayappa, Mudali, the vendee under Ex. B-11 got into possession of the properties sold to him from the time of the sale. Even if the possession of Mottayappa Mudali was interrupted by Defendants 2 to 4 for some time, such interruption would not have continued beyond 1933 with the debts undertaken to be paid by the vendee were actually discharged.

According to the learned Judge, D. Ws. 3, 4 and 6 who spoke to the actual enjoyment of Mottayappa Mudali from the date of his sale are respectable and independent witnesses whose testimony deserves to be accepted. It may be that in describing the length of his possession, and enjoyment the witnesses were not precise but their evidence shows that Mottayappa Mudali''s possession was subsisting from the date of Ex. B-11 till 22-8-1936, the date of Ex. B-7 when they conveyed the property to Muniswami. Muniswami, the 7th Defendant, who purchased under Ex. B-7, being a close relation of Defendants 2 to 4, leased the property to the 2nd Defendant under Exhibit B-8. The 2nd Defendant was a junior member of the family and it could not be said that the lease taken by the 2nd Defendant was on behalf of the family. The possession of the 2nd Defendant could not be attributed to his membership of the joint family and his possession was only on behalf of his lessor, the 7th Defendant and not of the joint family.

It appears that Muniswami paid the kist for the lands and bei''oro him Mottayappa Mudall had also paid the kist. In these circumstances, the possession throughout from 1928 must be taken to be the possession of the alienees from Defendants 2 to 4 and their father, Rasappa Chetti.

The learned advocate for the Appellant referred to the decision in Malkappa v. Mudkapa, ILR 37 Bom 84 (A) in support of his contention that the possession of the 2nd Defendant could not be considered to be adverse to that'' of the joint family of which he was a member and that therefore the alienees could not have acquired a title by adverse possession to the lands sold under Ex. B-11 and by the vendee under Ex. B-11 to the 7th Defendant under Ex. 7.

In other words, the contention was that the joint family remained in possession of the property from 1928 or at any rate from 1936. In the Bombay case the lands belonging to the joint family of the Plaintiffs and the 1st Defendant were in the possession of the latter as the head of the joint family. In 1880 the 1st Defendant alienated the lands to the 2nd Defendant but continued to remain in possession of the lands on executing a lease deed in favour of the vendee.

In 1908 the Plaintiffs brought a suit for partition and recovery of their share of the lands. The 2nd Defendant, the alienee from the 1st Defendant pleaded in defence his adverse possession of the lands from the date of his alienation in 1880. It was held by the learned Judges that the possession of the 2nd Defendant before the alienation being on behalf of himself and his coparceners and being of a fiduciary character, it could have been adverse to the coparceners even after the sale of 1880 in the absence of express intimation conveyed by him to them that he intended to exclude them. The distinctive features of that case were that the person who was in possession before the date of the alienation and who continued in possession thereafter was the manager of the joint Hindu family, who held possession on behalf of all the members of the family.

The fact that the manager had executed a sale deed in favour of a vendee and had taken a simultaneous lease from the vendee did not amount to notice to the other members of the family that their possession had been interfered with. To all intent:; and purposes and to all appearances, the 1st Defendant-manager continued to be in possession of the family properties in the same manner as before the date of the alienation by him.

Except the fact that a sale deed had been executed and a lease deed had been taken, there was nothing to show that the possession of the manager had been disturbed. It was found in that case that inspite of the sale deed, there was no change of possession and nothing had occurred to put the Plaintiffs on notice that any change to the character of the possession of the manager had occurred or that their title had in any way, been imperilled.

In the present case, however, the vendee, Mottayappa Mudali took possession of the lands sold to him in 1928 and continued in possession till 1936. Even if he took possession in 1933, his possession from 1933 to 1936 was that of a stranger to the family and could by no means be construed to be a possession on behalf of the joint family.

The possession of the subsequent vendee under Ex B-7 was also possession held by him on his own account and not on behalf of the joint family. The only circumstance relied upon to show that possession was with the joint family after the date of- Ex. B-7 was that the 2nd Defendant had executed a lease of the properties and taken possession.

The 2nd Defendant was not the manager of the'' family but was only a junior member. The lease might have as well been granted to a stranger. The fact that the 2nd Defendant took a lease for a year and was in possession as a lessee of the 7th Defendant, does not mean that the 7th Defendant was out of possession or that the 2nd Defendant was in possession otherwise than as a lessee of the 7th Defendant.

For these reasons I am of the opinion that the present suit is barred under Article 144 of the Limitation Act and that the decision of the lower appellate Court is correct, in this view, the validity and the binding character of the sale deed, Ex. B-11 on the joint family need not be investigated. For these reasons, I dismiss this second appeal with costs. Leave refused.