AI Structured Summary
Not yet generated for this judgment
Judgment
Srinivasan, J.—The Plaintiffs are the Appellants and they appeal from the judgment and decree of the learned Subordinate Judge of
Chingleput, dismissing the suit of the Plaintiff for partition and possession of a half share of the plaint schedule properties, which were claimed to be
joint family properties. The broad ground upon which the Plaintiff claim was dismissed was that the first Plaintiff had left the family and abandoned
or relinquished his interest in the joint family and that in view of the surrounding circumstances, the Plaintiffs'' claim was also barred by limitation,
the first Defendant having perfected his title by adverse possession.
The first Plaintiff and the first Defendant are the sons of one Seshamma Naidu by his wife Padmavathi. One Lakshmamma, sister of Seshamma
Naidu, was married to Ramaswami, the brother of Fadmavathi; that is to say Seshamma Naidu, the father of the first Plaintiff and the first
Defendant, and Ramaswami had each married the sister of the other. It is an undisputed fact that the first Plaintiff, the elder of the two brothers,
was taken by Ramaswami and Lakshmamma when he was child of four years of age and was being brought up by them, as Ramaswami and
Lakshmamma had no children of their own. Though the plaint did not concede this fact, the first Plaintiff as P.W. 1 grudgingly admitted that it is so.
In the plaint, it was stated that the first Plaintiff was living in Edambadu village looking after the properties got by him from his father-in-law''s
family. This Ramaswamy had a brother, Ayyaswamy, who would accordingly be also a maternal uncle of the first Plaintiff and the first Defendant.
The first Plaintiff married the first daughter of this Ayyaswami, and after her death, he married Ayyaswami''s second daughter. It my also be stated
that it appears from the evidence that a sister of the first Plaintiff and the first Defendant married a son of Raju, another brother of Ramaswami and
Ayyaswami, that is to say, she married her maternal uncle''s son. The first Plaintiff alleged that he allowed the first Defendant, his younger brother,
to manage the family properties in Kakavakkam village, he himself being engaged in looking after the considerable properties that he obtained from
his uncle Ramaswami Naidu. He claimed nevertheless that he still continued to be a member of the joint family, frequently visiting Kakavakkam
which is 15 miles from Edambadu, and participating also in the enjoyment of the family income. He claimed that when he approached the first
Defendant for funds on the occasion of the marriage of his (the first Plaintiff''s) second daughter, the first Defendant refused to provide funds. This
was in 1958, and on his refusal, the first Plaintiff demanded partition of the BJ properties. It was alleged further that the first. Defendant was at first
agreeable to a partition, but later refused to give a share to the first Plaintiff. Hence the suit was laid by the first Plaintiff and his minor sons, Plaintiffs
2 and 3.
The first Defendant and his minor sons are Defendants 1 to 3 and the fourth Defendant is the wife of the first Defendant. According to the
written statement of the Defendants, the first Plaintiff was taken to Edambedu by Ramaswami and Lakshmamma with a view to his adoption. It
was claimed that the family of Ramaswami was in far more affluent circumstances than the family of the first Defendant, so that the adoption of the
first Plaintiff by Ramaswami was considered to be in the best interest of all parties. For one reason or other, a proper adoption ceremony did not
take place. But nevertheless the first Plaintiff was brought up at Edambedu as the son of Ramaswami and his wife Lakshmamma. Ever since that
time up to the date of suit, the first Plaintiff made no claim of any description against the family properties. Later the first Plaintiff married the
daughter of maternal uncle, Ayyasami, which naturally prevented the adoption of the first Plaintiff by Ramaswami, for if there were anadoption, the
first Plaintiff-and Lakshma daughter of Ayyaawami would stand in the relationship of brother and sister. It was decided between the two families
that the first Plaintiff was to take the share of Ramaswami in Ramaswami''s family properties and that he was to have no interest in the properties of
what may be called his natural family. The first Plaintiff''s marriage, as stated above, took place when he was 16 years of age. Ramaswami died
shortly thereafter, and some time after his death, an agreement of partition was entered into by the members of Ramaswami''s family, that is to say,
his widow Lakshmamma and Ramaswami''s brothers, Raju Naidu and Ayyaswami Naidu, the last being the father-in-law of the first Plaintiff
himself. By this document, the first Plaintiff was given Ramaswami''s one-third share in the family properties, and the document also referred to the
fact that the first Plaintiff had been living in that family as a person entitled to a share in the properties of that family. It was the further contention of
the Defendants that at least right down from the date of this agreement in 1927, the first Plaintiff had abandoned all interest in the family of his birth,
and that both expressly and by his conduct the first Plaintiff is estopped from claiming any share in the suit properties. The written statement also
specifically denied the claim that the first Plaintiff ever participated in the income of the suit properties. It was also denied that the first Defendant
ever gave any moneys from the income of the family properties on the occasion of the marriage of the first daughter of the first Plaintiff as alleged. It
was further asserted that because the first Defendant refused to accommodate the first Plaintiff in a sum of Rs. 2,000 the first Plaintiff has come
forward with this suit. It was denied that there was any consent by the first Defendant to partition the properties OT that any mediation was
attempted.
In addition to the properties which originally r belonged to Seshamma Naidu, the father of the first Plaintiff and the first Defendant, the Plaintiffs
also claimed a share in certain items of properties purchased by the first Defendant in his name, which form part II of the A schedule to the plaint,
parts III to V of that schedule cover properties which had been acquired in the name of the fourth Defendant, the wife of the first Defendant. The
Plaintiff''s claim was that these properties were acquired with joint family income. With regard to the latter, the fourth Defendant filed a separate
written statement claiming these properties to be hers acquired with funds provided by her father-In the case of the properties standing in the name
of the first Defendant, the first Defendant''s written statement did not deny that they were acquired from out of family funds. It only stated that one
item, item 31 of part II of the A schedule, had since been sold away and was not available for partition.
It will be seen from what had been stated above that the principal question that was canvassed in the trial court and is again agitated in this
appeal before us is, whether, by whatever name it may be called, the first Plaintiff abandoned or relinquished his interest in the joint family property;
and whether his complete dissociation from the family of his birth was of such a kind as to amount to an ouster and the perfection of adverse title in
the first Defendant.
We may broadly set out the evidence to the extent to which it reflects and opposes the contentions of the parties.....(portion omitted).
On the facts brought out in the evidence, it is certainly very clear that the first Plaintiff, though 1 he was by several years elder to the first
Defendant took no steps whatsoever in the management of the family properties at Kakavakkam. We have already referred to his claim that he
was received Rs. 100 or Rs. 200 occasionally from, the first Defendant out of the family income a version which we find it very hard to credit, for,
compared to the first Defendant, the first Plaintiff had considerable properties at Edambedu through his uncle Ramaswami. The first Plaintiff does
not even claim that he was in regular receipt of such payments. To his knowledge, the income from the family properties was much more than the
petty sums of Rs. 100 or Rs. 200 which he received in frequently. There is no corroborating evidence with regard to the first Plaintiff''s version.
The father, Seshamma Naidu, died in 1937, and for a period of 20 years prior to suit, there is no evidence that the first Plaintiff over received any
portion of the income from the property or took any steps in the management of the property as he would be entitled to, being the elder son.
There is another feature upon which reliance is placed on behalf of the Defendants. After the death of the father, by which time the first
Defendant was about 20 years of age, the first Defendant purchased some items of properties, which are set out in part II of schedule A to the
plaint. It is not denied by the first Defendant in the written statement that these properties were acquired with the family income. There is however
no explanation why even a single one of these sale deeds was not taken in the name of the eldest member of the family, the first Plaintiff. The first
Plaintiff seeks to explain away this fact by saying that the first Defendant took his advice with regard to these purchases or kept him informed of
these pin-chases, and beyond his mere word, we have nothing more to depend upon in that context. If we have regard to the in experienced age of
the first Defendant as on the date of his father''s death, one would certainly have expected the first Plaintiff to have stepped in and taken upon his
shoulders the responsibility of the management of the family. It is patent that at no time in the entire history of this family right from the date of
attainment of his majority down to the date of suit, did the first Plaintiff ever interfere with the management of the family properties at Kakavakkam
or ever did any thing which would indicate that he continued to be an active member of that household.
On behalf of the Defendants, it was urged as another indication of the first Plaintiffs total severance from the family of his origin, he did not
participate in the funeral obsequies of his parents, Seshamma Naidu and his wife. It appears that the custom in this community is for the younger
son to light the funeral pyre of his deceased father and for the elder to do so with regard to the mother. The evidence is discrepant in that regard
and it hardly matters for the purpose of this case whether the first Plaintiff did or not take part in the obsequies of his parents.
The principal contention advanced on behalf of the Appellants-Plaintiffs is that the Plaintiff''s status as a member of the coparcener was at no
time put an end to. He was not adopted into the family of Ramaswami, so that he continues to be a member of the family of his birth and he claims
that though he might have been brought up in the household of Ramaswami from the age of four years, might also have married the daughters of
another uncle of his, Ayyaswami, and might not even have participated in the management or shared in the income of the family properties, yet
these facts cannot destroy the right which he has as a coparcener. Mere non-participation in the income of the family and non-enjoyment of the
family properties is all that is established by the Defendants. So it is claimed by Mr. Vedantachari on behalf of the Appellants Plaintiffs that this
feature can be no answer to the Appellants'' claim to have a partition of the family properties. On the other hand, on behalf of the Defendants
Respondents it is categorically contended that it was not a mere case of non-participation but an absolute severance from the family of birth, an
abandonment or relinquishment of whatever claims which the first Plaintiff had in the property of this family, that effectively put an end to the first
Plaintiff''s rights. It is further stated that consistent with this position, the first Defendant had always asserted his clam to exclusive ownership of the
family properties, a situation which was acquiesced in by the first Plaintiff Appellant. The question that we have to decide is accordingly whether
the defence set up is established, far it cannot be gain said the but for this defence the first Plaintiff would certainly be entitled to a share in the
family properties.
Mr. Vedantachari, for the Appellants, has taken us through several decisions in his endeavour to establish that for however long a period the
first Plaintiff might not have participated in the enjoyment of the family property, he cannot be excluded from his lawful right to a partition. Indeed,
this proposition in so far as it relates to a co-sharer or coparcener is so well established that it does not require any citation of authority.
Nevertheless, we shall refer to these decisions in order to appreciate, the proper approach to be made to cases of this kind. In Dhoorjeti
Subbayya v. Dhoorjeti Venkayya ILR (1906) Mad. 201 member of a Hindu undivided family was adopted by a widow, but that adoption was
declared invalid. Nevertheless, he continued to reside with the widow and later orally renounced his right to a share in the property belonging to his
natural family in consideration of his co-sharers who were also reversionary of the widow renouncing their reversionary right in the properties held
by the widow. Some time later he brought a suit for partition of the property in his natural family. It was held that the mere fact that he resided with
the widow between 1885 and 1896 did not amount to an abandonment of his rights to a partition or to his exclusion to his knowledge from the
enjoyment of the family property. It was only in 1896 that he purported to renounce his right but the suit was laid in 1901. The learned Judges
observe at page 202:
What is found is only that the Plaintiff continued even after the invalidation of his adoption to live with the widow and perform the sraddha
ceremonies of her husband. There is nothing to indicate that he abandoned before 1896 his claims to enjoy his family property or that the
Defendants to his knowledge excluded him from enjoyment. He did not ask for a share before that, merely because he did not require it. Article
127 (Limitation Act XV of 1877) is therefore no bar to the suit.
Another decision upon which consideration reliance was placed by the Appellants is Radhoba Baloba v. Aburao Bhagwantrao ILR 1929 53 Bom.
699 (P.C.) The facts of that case are of some interest. One Nana, the Plaintiff, when about 12 years old, was taken away by his maternal uncle to
his village with the consent of the paternal uncle of Nana who was the manager of the joint family. When Nana was still in his paternal home, both
his parents were dead and it was found as a fact that Nana was not being brought up by his step-mother properly. Some years afterwards Nana
went to his paternal home and demanded a share in the family properties, which was refused. It was the case of Nana that he was not really
refused a share, but what the manager of the family advised was that he should continue to be a member of the family but should not seek partition
and separate possession. Later, Nana executed a sale deed purporting to convey his share in the ancestral property to the vendees. In this sale
deed, there was a recital that a year prior thereto, the had demanded a share from the other coparceners and that they had refused to give him his
share. The question arose whether Nana was excluded from the joint family property; if so, when did such exclusion take place and when did the
exclusion become known to Nana? The Judicial Committee point out that the word exclusion is not denned in the Limitation Act and that the
question whether a person had been excluded from joint family property must depend upon the facts of the particular case under consideration. It
was further said that the intention to exclude is an essential element. On the facts, they noticed that Nana voluntarily left his family house, for with
both his parents dead and his step-mother, being in charge of that branch of that family, it was better for him to live with his maternal uncles than in
his paternal home. Holding that he was in no sense turned out of the family house and that the mere fact that the members of the joint family did not
contribute towards his maintenance education and marriage expenses did not, having regard to the facts of the case, amount to an intention to
exclude him from his share of the joint family property the Judicial Committee accepted the case set up by Nana that it was only in 1909 that he
made a demand for a share; and the suit itself having been laid within the period of limitation from that date, Nana''s claim to a share was upheld.
The basic principle that even if one member of a joint family is exclusively in possession of the joint fact, that would itself afford no evidence of
exclusion of other interested members of the family was laid down in Hardit Singh v. Gurmukh Singh AIR 1918 P.C. 1 It was further stated that
un-interrupted sole possession of the property without more must be referred to the lawful title possessed by the joint holder to use a joint estate
and cannot be regarded as an assertion of a right to hold it as separate property so as to assert an adverse claim against the other interested
members. An even earlier decision of the Madras High Court in Sellam v. Chinnammal ILR (1901) Mad. 441 states that mere non -participation
by a co-sharer in the family property did not establish ouster or exclusion. In that case, three widows were tenants-in-common. One of them began
to lead an immoral life and refused to live with the other two. Later she sued for partition and allotment of one-third share in the property. The plea
taken in defence was that she had ceased to participate in the profits of the family property for over 12 years prior to suit. The learned Judges
observe that the burden lay on the Defendants to prove that the Plaintiff, admittedly a tenant-in-common, was excluded from the enjoyment of the
property and that
it is impossible to hold that refusal or non-participation on the part of the Plaintiff amounts to or is any proof of ouster or exclusion by the
Defendants. There is no other evidence to show that she abandoned her interest to the knowledge of the Defendants.
It is unnecessary to multiply cases, bat reference may be made to a Full Bench decision of the Kerala High Court in Gopala Panicker v. Kunji ILR
(1958) Ker. 389 (F.B.) where Article 127 of the Limitation Act was considered. The learned Judges say that normally possession of the
properties of a joint family would be with the manager, but such possession does not mean that the other members are excluded, the possession by
the manager being possession on behalf of the members of the family. They re-state the principle that mere non-participation in the benefits by any
member will not amount to his exclusion, that exclusion must be a conscious and deliberate act, amounting to a denial of the right of the particular
member, and what is more important the member so excluded must also have notice of such exclusion, for the period of limitation will run against
him only from the date of his knowledge of such exclusion.
The general principles have once again been reiterated in a decision of the Supreme Court in P. Lakshmi Reddy Vs. L. Lakshmi Reddy, . The
following passage dealing with adverse possession by a co-owner sufficiently emphasises the principles (at pages 317 and 318):
The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor....But it is
well settled that in order to establish adverse possession of one co-heir as against another, it is not enough to show that the one out of them is in
sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession, who claims his
possession to be adverse, should be made out....When one co-heir is found to be in possession of the properties it is presumed to be on the basis
of the joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely be secret hostile
animus on his part in derogation of the other co-heir''s title. It is a settled rule of law that there must be evidence of open assertion of hostile title
coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.
Mr. Sundaram Iyer, for the Defendants Respondents, does not dispute the propositions which are so firmly established. He only contends that
if regard is had to the evidence as a whole and to the circumstances surrounding this family during the 50 years prior to suit, it must result in the
conclusion that the first Plaintiff relinquished his interest in the family of his origin and consistently with that position the first Defendant was to the
knowledge of the first Plaintiff in possession of the family property as the sole owner thereof. It is not a case where there was mere non-
participation of the income from the family property, but that non-participation was linked with several other features which effectively destroyed all
interest which the first Plaintiff had in the family. Mr. Sundaram Iyer referred to Mariammal and Another Vs. Augustine Roy and Others, only for
the purpose of referring to an English decision in Doe v. Prosser 98 E.R. 1052 where it was observed by Lord Mansfied.
An undisturbed and quiet possession for such a length of time is sufficient ground to the Jury to presume actual ouster.
The learned Judge pointed out that the possession by one tenant-in-common should not be considered to be adverse to the others, unless there by
circumstances from which the court could come to the conclusion that the possession is adverse. A passage in another English decision in Culley v.
Doe 113 E.R. 697 which is extracted in Varada Pillai v. Jeevarathnammal ILR 1919 Mad. 244 (P.C.) is instructive.
Generally speaking, one tenant-in-common cannot maintain an ejectment against another tenant-in-common, because the possession of one tenant-
in-common is the possession of the other, and to enable the party complaining to maintain ejectment, there must be an order of the party
complaining. But where the claimant, tenant-in-common, has not been in participation of the rents and profits for a considerable length of time, and
other circumstances concur, the Judge will direct the Jury to take into consideration whether they will presume that there has been an ouster....
It will be noticed that in these English decisions, it is clearly stated that non-participation in the joint property if coupled with other circumstances,
might well justify an inference of ouster. It is the contention of the Defendant that such circumstances are available in the present case, in addition to
evidence establishing relinquished by his rights by the first Plaintiff.
We shall now proceed to examine the evidence in the light of the principles enunciated in these decisions. The principal grounds upon which the
Defendants deny the Plaintiff''s claim are that the non-participation in the benefits of the family property by the first Plaintiff is supported by
circumstances which unmistakably establish that the first Plaintiff abandoned his interest in the family, and that the members of the two families that
of the first Plaintiff''s parents and of his maternal uncle, entered into an arrangement which was intended to ensure to the benefit of the first Plaintiff,
but which had the result of separating him from his family and making him member of Ramaswami''s family. Though that incident by itself would not
validly put an end to the first Plaintiff''s rights as a coparcener in his natural family, the course of events started in the above manner by an intended
adoption of the first Plaintiff to Bamaswami continued and finally culminated in the first Plaintiff himself voluntarily relinquishing his status after he
attained majority. All the subsequent events that took place in the family are consistent with that attitude of the first Plaintiff. Undoubtedly, even the
father of the first Plaintiff, Seshamma Naidu, acted as if the first Plaintiff was no longer a coparcener, a state of things which was fully to the
knowledge of the first Plaintiff. It is this set of circumstances which the learned Counsel for the Defendants puts forward as giving a proper
interpretation to the non-participation in the family benefits as to amount to ouster. We shall indicate the several circumstances.
(Portions omitted).
The question is whether in the light of these circumstances and the conduct of the parties themselves as evidenced by their actions during nearly
50 years prior to suit, one can draw the inference that the first Plaintiff had orally relinquished his interest in the family properties. It is no doubt true
that cases have laid down that mere non-participation in the benefits arising from the family property, for however long a period, cannot destroy the
non-participating member''s rights or lead to an inference of ouster by the member in possession and enjoyment of the family properties. In
Maddela Krishnayya Vs. Maddela Udayalakshmamma and Others, ; Venkatarama Iyer J., dealing with the question of ouster by one co-owner as
against another, referred to the earlier cases on the point, particularly Culley v. Doe 113 E.R. 697, where it was stated that when the tenant-in-
common has not been in participation of the rents and profits for a considerable length of time, and other circumstances concur the Judge will direct
the Jury to take into consideration whether they will presume that there has been an ouster, and proceeded to observed at page 246:
It will be seen that before this presumption could be made, the co-tenant must have been in possession for a considerable length of time and other
circumstances also must concur. Thus in Doe v. Prosser 98 E.R. 1052 where this presumption was held permissible, the exclusive enjoyment was
for a period of 36 years. In Gangadhar v. Parsram (1905) ILR 29 Bom. 300 , the period of exclusion was from 1857 to 1901 and in Bapatla
Venkata Row Vs. Bapatla Venkoba Row and Others, , it was from 1867 to 1922. In all these oases, it might be noted, action for the possession
was instituted not by the original co-owners, but long after their life time by their representatives. Thus, in Doe v. Proaser 98 E.R. 1052 Mary
Taylor, the original cotenant, did not herself institute any action; long after her death it was the lessee from her representatives that used in
ejectment. In Gangadhar v. Parsram (1905) ILR 29 Bom. 300, the claimants were the sons of the original co-tenants, while on the other side,
three generations had been in successive management of the properties without any claim or demand. In Venkata Rao v. Venkoba Rao AIR 1927
Mad 505 the litigation was among the representatives of the three generations either side. In Parm Pande v. Ramsarup Pande (1920) 58 I.C. 731
which was the case most strongly relied on for the Respondents, the suit was among representatives of the original co-owners. These cases do not
mark any departure from the well-settled principle that to establish adverse possession against co-owners, there must be a denial of their title to
their knowledge and it is not sufficient merely to prove non-participation by them in profits.
It is seen from the above passage that mere length of the period of dispossession is not the real test though in a matter to be tried by the jury under
the English Law, it would still be open to the jury as judges of fact to presume ouster from that fact lone. But so far as we are concerned, it is
necessary to establish something more, an express or implied denial of the title of the other co-owner who has been out of possession and to our
minds, in the instant case there, is Positive evidence, in that regard.
The question of the denial of title is necessarily the circumstances of the present case, bound us with the contention of the Defendants that the
first Plaintiff voluntarily relinquished his interest in the family properties long ago and ever since then, the first Defendant has been recognized by one
and all including the first Plaintiff, as the exclusive owner of the family properties. We have found sufficient facts available in the evidence in the
conduct of the parties and in the attitude of the persons closely connected with the family which shows that the first Plaintiff did really act in such a
manner as to indicate that he was no longer connected with family of his birth and the first Defendant also acted openly on that basis. Even without
resort to the principle of estoppel, it is deducible from these facts that the non-participation in the family properties in this particular case has
acquired a far greater significance than would otherwise be the case. The first Plaintiff''s actions are only consistent with the view that he voluntarily
severed himself from the family of his birth and the first Defendant, during the 30 years prior to the suit has openly acted as the exclusive owner of
the properties. It should therefore follow that the claim of the Plaintiffs is barred by ouster and adverse possession.
The only circumstances in support of his continuance as a family member while first Plaintiff is able to rely on is the inclusion of his name in the
patta after the death of his father Seshamma Naidu. The Karnam P.W. 6 gave evidence that in the normal course, he put in the name of the first
Plaintiff and the first Defendant in the patta in place of Seshamma Naidu deceased and that he did so of his own accord. Admittedly there was no
application for mutation of 3 names by either the first Plaintiff or the first Defendant or by them jointly upon which the karnam acted. This solitary
feature cannot take away the cumulative effect of the rest of the evidence dealt with above.
It is really unnecessary to record any finding with regard to the properties standing in the name of the fourth Defendant. There is ample
evidence that Polu Naidu, the father-in-law of the first Defendant, is a very rich man and the evidence of both Polu Naidu and the fourth Defendant
herself is to the effect that Polu Naidu supplied the funds for the purchase of the properties in the name of the fourth Defendant. The amount which
Polu Naidu is said to have contributed for the purpose of the purchase is only about Rs. 7,000 which it is not contended is beyond the capacity of
Polu Naidu The first Plaintiff who gave evidence admitted his utter ignorance of the affairs of the family, of the income or the expenses connected
therewith and the quantum of surplus that would be available in making any purchases. In the light of all of these facts, we are satisfied that the
learned Subordinate Judge rightly found that the properties in the name of the fourth Defendant are not the properties of the family.
We are in full agreement with the finding of the learned Subordinate Judge that the Plaintiffs are not entitled to a share in the properties. The
judgment and decree of the Court below are confirmed and the appeal is dismissed with costs.