Valliammai Achi vs Velu Servai and Others

Ramachandra Iyer, J.—These appeals arise from the Judgment of Veeraswami, J., setting aside a preliminary decree for partition passed by

the lower Courts. One Alangaram Chettiar who has been examined as P. W. 2 in the case had two sons ''through his wife, Valliammai, Samban

Chettiar and Alangaram Chettiar (first defendant). On nth August, 1935, the suit properties were purchased on behalf of Samban Chettiar and

Alangaram Chettiar who were then minors. They were represented in the sale transaction by their father. Samban and the first defendant were thus

the co-owners of the property. Samban died in the year 1942 and his mother Valliammai succeeded to his share in the property as his heir. It

appears from the evidence, that subsequent to the death of Samban the precise date not being ascertainable - the patta for the property was

transferred in the name of the first defendant alone. It is now found by all the Courts that. Alangaram Chettiar, his wife Valliammai and their son the

first defendant were living together and that the property was managed by the first of them. The first defendant attained the age of majority during

the year 1950. Almost immediately he alienated the entirety of the properties. Shortly after the alienations were made, the father tried to salvage at

least half share of the property by setting up a claim that the properties belonged to the joint family of which he was a member and that the

alienation would not be valid beyond the half share that the first defendant had. The claim made by the father however failed as it was found in the

litigation the followed that the properties belonged to Samban and the first defendant in their own right and not to the joint family. About two years

after the termination of the litigation, Valliammai instituted the suit out of which these appeals arise for a partition of her share of the property from

the alienees. According to her, Samban''s half share in the property vested in her on his death and that the first defendant would have no right to

sell the property to the prejudice of her interest therein.

Several defences were raised to the suit. It was contended that Valliammai never had a share in the properties as they belonged only to the joint

family of Alangara Ghettiar and the first defendant. Another and a little more substantial plea was that Valliammai had lost title to her share by

adverse possession. The case was that even from the year 1942 the first defendant through his father had prescribed title against his co-sharer.

Both the Courts below had concurrently found that the properties did not belong to the joint family of the first defendant and his father but on the

contrary the first defendant and his mother, Valliammai were entitled to the same. This finding was accepted by Veeraswami, J. On the other

question of adverse possession, the lower Courts, on a consideration of the evidence, came to the conclusion, that there was no proof of ouster of

Valliammai by the first defendant and that,, therefore, there was no adverse possession. Veeraswami, J., however did not accept, that finding as in

the view of the learned Judge, the finding should be held to have been vitiated by reason of the fact that the lower Courts overlooked a material

evidence in the case, namely, that of Valliammai herself who admitted that she did not enjoy the property or pay kist for the same. Considering the

evidence afresh the learned Judge came to the conclusion that the father of the first defendant, acting on his behalf, prescribed adverse title as

against Valliammai and that the alienees from the first defendant had acquired full title to the property conveyed. On that finding, the learned Judge

set aside the decree of the lower Court and dismissed the suit for partition. The learned Judge however granted leave to the appellant for filing an

appeal under Clause 15 of the Letters Patent.

Learned Counsel for the appellant contends that it was not open to this Court while dealing with a Second Appeal to find that Valliammai had

lost title to her share-by reason of adverse possession by her co-sharer ignoring the concurrent finding of fact arrived at by the lower Courts. The

learned Judge was aware of the limitations of the Second Appellate Jurisdiction. In the course of his judgment he observes:

It is of course well-settled that a co-owner cannot be held to have lost his right to his share unless-there is clear proof of ouster. Whether there is

ouster or not in the case will depend upon particular facts.

The reason why the learned Judge did not accept the conclusion of fact arrived at on that question by the lower Courts was stated earlier, because

of an omission on the part of the lower Court to appreciate properly an admission made by Valliammai in the course of her evidence. Valliammai

stated in the course of her evidence:

I was not particular about the suit property. I allow the second defendant to 10th defendant to enjoy the suit properties. After the death of Samban

Chettiar, patta was transferred in the name of the first defendant. Either myself or my husband did not object to the transfer of patta in the name of

the first defendant I did not file any application for transfer of patta in my favour after the death of my son, Samban Chettiar.

With great respect to the learned Judge we can see nothing in this evidence to show any ouster of Valliammai from possession. The evidence can

at best be taken only as showing an apathy on the part of one the co-owners in the matter of having the patta registered in her name as well. Patta

is not a document of title. Mere absence of a patta in one''s name cannot derogate from the title of that person-There is nothing in the evidence of

Valliammai to indicate that to her knowledge the first defendant or his father acting as his guardian, did anything with regard to the property which

was adverse to her till 1951 when the properties were sold. Such alienations were within 12 years of the date of suit. According to the

respondents, there was ouster by reason of the fact that the father of the first defendant purported to manage the property on behalf of the first

defendant alone. That in the circumstances of this case would be wholly insufficient to amount to an ouster. It is well-settled that possession of a

co-sharer is possession on behalf of all the co-sharers. P. W. 2 was only acting as manager of the property. Assuming that such management was

on behalf of the first defendant alone, the position will be that possession was held by the first defendant. That by itself, in the absence of setting up

an adverse title by him to the knowledge of the other co-sharer, namely, Valliammai, would not constitute ouster. We are, therefore, of the opinion

that there is nothing in the evidence of Valliammai to justify the conclusion, that there was an ouster so far as she was concerned. A mere transfer

of patta in the name of the first defendant is not of much significance in the case having regard to the circumstance that the father, mother and their

only son were living together. It may be that the mother did not think it worthwhile to get the patta granted in her name as she had no reason to

suspect that her son would play false to her.

The learned Judge has referred to certain matters to justify the conclusion that the finding of fact arrived at by the Subordinate Courts was not

binding on him. The circumstance that Valliammai did not: enjoy the properties or pay kist therefor, that she did. not issue notices to the alienees

when they purchased the property in the year 1952, that she was not made a party to the suit instituted by her husband that she waited for nearly

two years after the termination of her husband''s suit till she filed the present suit and that it was her husband who was really conducting the present

suit on her behalf, have been referred to. These in our opinion cannot justify the conclusion that there was any ouster. Mere inaction by a co-tenant

would not amount to adverse possession by the other co-tenant in actual possession-There should be assertion of hostile title by the latter to the

knowledge of the former. Of this there is no evidence till the year 1951 when the properties were sold. We are unable with great respect to share

the view of the learned Judge that there was no animus on the part of Valliammai to assert her rights to the property and that want of such animus

would destroy her rights. To constitute adverse possession it is the animus of the person in possession that is material and not that of the person

whose title is sought to be acquired. In a case where the person acquiring happens to be a co-sharer, he should assert his hostile title to the

knowledge of the other whose rights are prescribed. Where a co-sharer allows another co-sharer to be in possession of property, it cannot mean

that the former had abandoned his rights. That apart,, the question in the present case is not so much as one of abandonment, or acquisition of title

by the alienees by reason thereof, but whether there was adverse possession on the part of the first defendant as against his mother. On that

question, the finding of the lower Courts is that there was no such adverse possession.

Mr. Natesan who appeared for the respondents referred to us the decision reported in Chennabasavana Gowd v. Mahabaleswarappa (1954) 1

M.L.J. 714 : (1954) S.C.J. 475 : 1954 S.C.R. 131 . In that case the father and and his infant son were entitled as co-owners to a particular item

of property. The father so conducted himself as to show that the property belonged solely to his infant son. Indeed he executed a lease of the entire

property for a period of 12 years describing it as the property of his minor son alone. The Supreme Court held that in granting the lease on behalf

of the infant, the father definitely asserted exclusive title of his son to the property by implication and denied his own rights as co-owner thereof.

The possession of the lessee was, therefore, held to be possession of the minor son; that amounting to an ouster, it was held that the father lost title

to his half share. In that case there was something more than mere exclusive enjoyment by a co-owner of the entirety of the property. There was an

alienation by way of lease of the property in favour of a stranger, an open repudiation of the co-sharer''s title. The probative value of that alienation

was that to the knowledge of the other co-sharer there was a denial of his title by the alienating co-sharer. That would, in law, amount to an ouster.

In the present case there has been no such alienation of the property except within 12 years of the present suit. The suit itself was filed within five

years of the alienation. No question of ouster amounting to adverse possession by the alienee for the statutory period does at all arise in the present

case.

We are, therefore, of the opinion that the learned Judge erred in interfering with the finding of fact arrived at by the lower Court. The appeals are

allowed with costs, one set, to be divided equally between the two appeals.