Punit Mahton and Others vs Kishundeyal Mahton and Others

Beevor, J.—This is an appeal by the defendants in a suit for partition against a preliminary decree for partition which was confirmed by the lower appellate Court.

The property in dispute is a one-third share in the land comprised in two khatas. This one-third share was conveyed to one Ramrekha by a deed of gift, dated 23rd May 1919, executed by Punit and Srinam, two of the sons of Nakhid alias Nakchhed Mahton. There were five sons of this Nakchhed Mahton, and there had been a partition among them. Punit and Srinam remaining joint, while each of the three others separated. Ramrekha was a son of one of those other sons named Judagi. The plaintiff respondents are the descendants of Judagi, and the defendant appellants are Punit and his sons and grandsons.

The defence contested the claim to partition made on behalf of the plaintiffs primarily on two grounds, first, that Ramrekha had been adopted by Srinam, and, secondly, that the deed of gift had not been acted on. The findings of the lower Courts are, however, against the appellants on both these points.

In this Court the argument on behalf of the defendant appellants has been that the transfer deed of 1919 being a deed of gift was not a transfer for legal necessity, and was, therefore, void and there was no necessity for the defendants to sue to avoid that document, As against this contention two points have been raised, first, that it was necessary for the defendants to sue to set aside the alienation and that any such suit would now be barred by limitation, and, secondly, that the plaintiffs have obtained a good title by adverse possession since the deed of gift of 1919.

Mr. Lalnarain Sinha appearing for the defendant appellants concedes that if there could be adverse possession by Ramrekha and the other members of Judagi''s branch of the one-third share of the two khatas now in question, then his appeal must fail. But he put forward a contention that as the other two-thirds of these khatas belonged to Punit, Srinam and their descendants, these persons had never been ousted from any portion of the land, and that, therefore, there could be no adverse possession as against them in respect of this undivided one third share of the two khatas.

We have considered a number of decisions in connection with this point, and I do not think It is necessary now to refer to all of them, but I may state at once that a perusal of these decisions seems to make it clear that there can be adverse possession of a share in property, though that share has not been divided by metes and bounds. There is a decision of the Privy Council in Vasudeva Padhi Khadanga Garu v. Maguni Devan Bakshi Mahapatrulu Garu. (01) 24 Mad. 887, which seems to embody this principle even though the facts of that case may not be exactly on all fours with those now before us. In that case there was a grant of certain property made in the name of one of two brothers. After the death of those two brothers a dispute arose between their sons as to whether the property covered by the grant was joint property of both of them, or the exclusive property of the son of the man in whose name the grant was made. Their Lordships of the Privy Council found that the question whether the property was originally separate property or property of the joint family was one of some difficulty, but they found that for a number of years prior to the suit both the cousins had been in joint possession, and they stated on that assumption the appellant, who was claiming the property as his exclusive property, was dispossessed, or discontinued his possession of his separate property or alternatively they held the possession of the joint family was, at any rate, adverse to his separate estate.

That decision has been followed in several cases. There is one decision of the Madras High Court, Muttusami v. Ramakrishna. (89) 12 Mad. 292.In that case the plaintiffs being members of a joint Hindu family alleging division and a sale to them by other members of their share in the family property sued to eject a more recent purchaser. The plaintiffs failed to prove the alleged division, and it was hold that as the plaintiffs failed to prove the division as alleged they could not in second appeal have their suit treated as a suit for partition, and that the suit was barred by limitation since the proposition that the possession of one coparcener is the possession of all for the purposes of limitation has no application as between a purchaser from one of the coparceners and the other members of the family. This in turn was followed by a later decision of the Madras High Court in Abdul Gafur v. Ashmath Bibi.A.I.R. 1920 Mad. 160, where it was held that the entry of an alienee from a coparcener into the property alienated is adverse to the other coparceners from the very moment of that entry.

Another decision which has followed the Privy Council case reported in Vasudeva Padhi Khadanga Garu v. Maguni Devan Bakshi Mahapatrulu Garu. (01) 24 Mad. 887 is a decision of the Calcutta High Court in Dwarka Nath v. Atul Shib Bannerji. 17 C.W.N. 595 That was a case in which two persons A and B were joint owners of one estate, while A was the owner of an adjoining estate in which the disputed land was situated. The disputed land had, however, been held by A and B by mutual consent as part of their joint estate for a period of more than 12 years before suit in ignorance of their rights, and it was held that As claim to exclusive possession of the disputed land was barred by limitation. That appeal came first before Holmwood and Chapman, JJ., and on divergence of opinion between them it came before Sir Lawrence Jenkins C.J. who agreed with Chapman, J. In the course of his judgment Chapman, J. stated: "The possession of the defendants being incompatible with the plaintiff''s claim must be held to have been adverse." It seems to me that this is the true principle which when applied to the facts of the present case must defeat the appellant''s claim. If the claim of the present defendant appellants were correct, then Ramrekha or any other member of Judagi''s branch of the family could have no right to possession of any share in the two khatas in question, and the possession of Ramrekha and other members of Judagi''s branch which has been found established by the decision of the lower Courts was incompatible with the appellants'' claim. That possession was, therefore, adverse to the defendants, and as it has been held that the deed of gift of 1919 took effect and that the members of Judagi''s branch of the family have been in possession since that date the appellants'' claim to the one-third share in the two khatas now in dispute is barred by limitation.

For these reasons I would dismiss this appeal with costs.

Meredith, J.

I agree. I think the point is that Ramrekha''s possession though of a share only was quite incompatible with the defendants'' case of exclusive ownership, and, therefore, it amounted to ouster of the defendants from the share in question.