ivil Appeal Nos 410 and 520N of 1973
From the Judgment and Decree dated 212223111972 of the Gujarat High Court in First Appeal Nos 454 and 455 of 1970
BK Mehta DN Misra JB Dadachanji  Co and NJ Modi for the Appellants
236 SK Dholakia PH Parekh JH Parekh Ms Sunita Sharma Krishan Kumar Vimal Dave and HJ Javeri for the Respondents
The Judgment of the Court was delivered by SHARMA J
These appeals are directed against the deci sion of the Gujarat High Court in an appeal arising out of a suit for partition instituted by the respondent No 1 Vadilal Bapalal Modi since deceased
The father of the plaintiff Vadilal was Bapalal who had 5 sons the plaintiff Ramanlal Gulabchand Kantilal and Jayantilal and a daughter Champaben
Gulabchand was impleaded as the first defendant in the suit and on his death his heirs and legal representatives have been substi tuted
Kantilal and Champaben are defendants No 2 and 3 respectively
Ramanlal predeceased Bapalal and his wife and son are defendants No 4 and 5
Jayantilal also died earlier and his wife Smt
Chandrakantaben defendant No 6 is the appellant in Civil Appeal No 418 of 1973
Their children are defendants No 7 to 12
CiviI Appeal No 520 of 1973 has been preferred by the 7th defendant Narendra
The suit by VadilaI was instituted in 1960 claiming share in the considerably large properties detailed in the Schedule to the plaint but the present appeals are not related to any other item excepting the property described as a chawl admeasuring 7 acres and 2 gunthas of land with 115 rooms and huts situated in the Naroda locality in Ahmedabad under Lot No 8 of the plaint which has been referred to by the counsel for the parties before us as the chawl or the Naroda chawl
According to the case of the defendants No 6 to 12 this property exclusively belongs to defendant No 6 and is not liable to partition
The other defendants contested the claim of the plaintiff with respect to some other items but so far the disputed chawl is con cerned they supported the plaintiffs  case that it belonged to the joint family and is liable to partition
The land of Lot No 8 was acquired by Bapalal in 1932 for a sum of Rs9450 and the rooms were constructed thereon in about 1934
It has been held by the High Court and the finding has not been challenged before us that Bapalal acquired the property and built the chawl with the aid of ancestral joint funds and the property therefore belonged to the family
According to the case of the defendants 237 No 6 to 12 Bapalal orally gifted the property to his daughter in law Chandrakanta the 6th defendant in March 1946 and made a statement before the Revenue authorities on the basis of which her name was mutated and she was put in possession thereof
Admittedly 114 rooms in the Naroda chawl had been let out to tenants and one room was retained for the caretaker
According to Chandrakanta s case although she came in peaceful possession the management which in cluded realisation of rent was in the hands of Gulabchand defendant No 1
It appears that in 1952 some dispute arose and Chandrakanta assumed direct charge of the Naroda chawl and has remained in possession thereafter
Thus she has been in exclusive possession of the disputed chawl since 1946 and acquired good title therein by adverse possession before the suit was filed in 1960
The learned Judge City Civil Court Ahmedabad who tried the suit held that BapalaI and his sons constituted a joint Hindu family and the business carried on by Bapalal was for the benefit of the family and the income from the business was thrown in the common pool and all the proper ties including the disputed chawl were treated as belonging to the family
Proceeding further it has been found that the case of the defendant No 6 about the gift the mutation of her name and her exclusive possession from 1946 till the date of the suit was correct
She was accordingly held to have acquired a title by adverse possession
The suit therefore was dismissed with respect to the disputed chawl
For the purpose of the present appeal it is not essential to mention the findings of the trial court relating to the other items of the suit property
The plaintiff appealed before the Gujarat High Court
Some of the defendants also filed two separate appeals against the judgment of the trial court dealing with other items of property with which we are not concerned
The appeals were heard and disposed of to gether by a common judgment in November 1972
The High Court reversed the finding of adverse possession in regard to the disputed chawl and granted a decree for partition
It was held that the defendant No 6 remained in exclusive posses sion of the property only since 1952 and the period was thus short of the time required for prescription of title
Deal ing with the relief for rendition of accounts the Court held that since the rents of the chawl from 1952 were col lected by Jayantilal Chandrakanta s husband and after his death by her son Narendra defendant No 7 Chandrakanta was liable to render accounts till the death of her husband and she along with defendant No 7 would be jointly liable for the period thereafter
The present appeals are directed against this judgment
238 5
According to the case of the defendant No 6 her husband Jayantilal used to indulge in speculative business and he was therefore not considered a dependable person
To ensure economic stability of Chandrakanta and her chil dren her father in law Bapalal decided to make a gift of the Naroda chawl to her
Both Bapalal and Chandrakanta appeared before the Talati of Naroda on 531946 and made statements
The original statement of Bapalal recorded by the Talati and signed by Bapalal was produced and marked as Ext
268 in the trial court and similarly the statement of Chandrakanta as Ext
Bapalal has stated in Ext
268 that Chandrakanta had loyally served him and therefore he was making the gift
A prayer was made for substitution of her name in the revenue records
A similar prayer was made by the lady in Ext
The extract from the Record of Rights is Ext
247 which mentions Bapalal as the occupant of the Naroda chawl
The entry was made in May 1933
This entry appears to have been placed within brackets and a second entry inserted mentioning Chandrakanta wife of Jayantilal Bapalal 
Mr BK Mehta the learned counsel for the appel lant has strongly relied upon the revenue entry as proof of her title
Reference was made to the decision in Gangabai and others vs Fakirgowda Somaypagowda Desai and others AIR 1930 Privy Council 93 and Desai Navinkant Kesarlal vs Prabhat Kabhai 9 Gujarat Law Reporter 694
It was point ed out by the learned counsel that in the Privy Council case also the revenue records which were under consideration were prepared under the Bombay Land Revenue Code that is the same Code under which Ext
247 was prepared and it was observed in the judgment that the revenue entry furnished presumptive evidence of title
The Gujarat case also indi cated that a presumption as to the rights in the concerned property arose in favour of the person whose name was en tered
We are not very much impressed by this part of argu ment of the learned counsel as it cannot be denied that title to Naroda chawl could not have passed to the defendant No 6 by virtue of the entry Ext
The value of the chawl even in 1946 was large and no registered instrument of transfer was executed
Besides Ext
247 describes Bapalal and thereafter Chandrakanta as Kabjedar that is occupant
In these circumstances the presumption which can be raised in favour of Chandrakanta from this entry is with respect to her possession and possession only
There is a serious dispute between the parties as to the actual physical possession of the chawl during the period 1946 to 1952 and we will have to consider the evi dence on this aspect in some detail
In 1952 there was direct confrontation between Chandrakanta and the defendant No 1 Gulabchand
On 1441952 a public notice was 239 published in a local daily named Sandesh  vide Ext
254 wherein Gulabchand informed and called upon the tenants in the chawl to pay the rent to him within 3 days against receipts to be issued failing which legal steps would be taken against them
On the very next day Sandesh  carried another public notice Ext
255 issued by Chandrakanta as serting her title and exclusive possession and repudiating the claim of Gulabchand
The tenants were warned that Gulab chand or any other person on his behalf had no right or authority to dispute her claim
On the same day ie on 1541952 another public notice was published in Sandesh  at the instance of Gulabchand reiterating his claim and asserting that his father Bapalal who was then alive was the owner
It appears that no further action was taken by any of the parties
The evidence on the record shows that Bapalal had withdrawn himself from wordly affairs and was staying in Vrindavan near Mathura
The evidence led by Chandrakanta of her exclusive possession from 1952 through her husband and son till the date of the suit was accepted as reliable by the High Court
Thus there is concurrent finding of both the two courts below accepting her exclusive possession from 1952 onwards
The learned counsel for the plaintiff has therefore rightly not challenged before us this finding which we are independently also satisfied is a correct one
The actual position of the chawl from 1946 to 1952 becomes crucial as Chandrakanta is bound to fail if she is not successful in proving her adverse possession for this period
As has been stated earlier the suit was filed in 1960 and her possession since 1952 cannot be treated long enough for a prescriptive title to accrue
The parties have therefore taken great pains to prove before us their rival cases as to the possession of the chawl from 1946 to 1952
The defendant No 1 was admittedly managing the properties belonging to the family
Out of 115 rooms in Naroda chawl only 114 were let out to tenants and one room was retained in which according to the case of Chandrakan ta a caretaker known as Gangia Pathan engaged by Bapalal was staying
After collecting the rent from the tenants the Pathan used to hand over the money to the defendant No 1
After the gift it was decided that the same arrangement would continue but the defendant No 1 would be managing the property on her behalf and after receipt of the rent he would deliver the same to her
She claims that this arrange ment was acted upon
Admittedly the total rent collection from the chawl was not large and after deducting the ex penses including the maintenance and repair costs and the salary of the Jamadar caretaker the money left was not a considerable sum
240 According to the evidence of Chandrakanta the Pathan left the service and his whereabouts are not known and another Jamadar with the name of Maganji came in his place
He looked after the chawl till 1950
Thereafter he was substi tuted by Nathu Singh
Maganji s present whereabouts are also not known
In 1952 Gulabchand made a claim to the chawl repudiating the ownership of Chandrakanta and he was there fore removed
The appellant has relied on a large number of rent receipts filed by her and her learned counsel laid great stress on five of them which have been marked as Exts
240 to 243 and 250 issued in December 1947 January 1948 June 1948 April 1949 and July 1947 respectively
It is signifi cant to note that the defendant No 1 was in charge of the collection of the rent upto 1952 according to the case of all the parties
The parties contesting the claim of the appellant contend that he was so doing on behalf of the entire family and not on behalf of Chandrakanta as claimed by her
The defendant No 1 however did not choose to enter the witness box nor did he produce any document which could have supported his case
The counter foil receipts were in his possession and neither they were filed by the defendant No 1 nor the plaintiff called for the same
Defendant No 6 was able to examine two of the tenants Vajesingh DW 1 and Nathaji DW 2
They filed a large number of receipts issued to them evidencing payment of rent
The list of documents filed by them are printed on pages 394 to 395 of the paper book and have been marked as Exts 237 and 239
12 receipts in the list Ext
237 are for the period 161946 to 3051949 and 7 of the list Ext
239 are from 111947 to 3091949
They support the case of Chandrakanta inasmuch as on the top of these receipts are printed the following words  CHAWL OF BAI CHANDRAKANTA THE WIFE OF MODI JAYANTILAL BAPALAL Out of them the receipts Exts
240 to 243 were admittedly issued when the defendant No 1 was incharge of collection of rent and it is not denied that they were issued at his instance during the crucial period
The other receipt Ext
250 was issued for the period 161947 to 171947 under the signature of the plaintiff Vadilal and this also similarly carried the description of the chawl as belonging to Chan drakanta
No explanation is forthcoming on behalf of either the defendant No 1 or the plaintiff as to how they were issuing receipts of the above description
241 11
From the evidence it appears that although defendant No 1 was in charge of the management of the chawl during 1946 to 1952 the actual collection from the individual tenants was made by the Jamadar caretaker who generally signed the receipts and handed over the collected amount to the defendant No 1
The tenant Nathaji DW 2 has said that Maganji Jamadar used to prepare the receipts
It has been argued before us on behalf of the plaintiff that the receipts were filed after the examination of the plaintiff was over and so he could not explain the same specially the one receipt issued under his signature
It is significant to note that the cases of the plaintiff the defendant No 1 and the other defendants excepting defendants 6 to 12 are common so far the Naroda chawl was concerned and the turn of these defendants leading evidence at the trial of the suit came later
The evidence of Chandrakanta was closed on 2991964 and the witnesses for the defendant No 1 were examined on 20101964
Besides the plaintiff could have re examined himself if he had any explanation to offer
The cross examination of DW 2 on his behalf also indicates that no suggestion to the witness by way of explanation was made
In his evidence plaintiff stated that he was also collecting the rent from the different tenants in chawl at the instance of defendant No 1 and he used to hand over the collections to him
He admitted the fact that there were counter foils which ramained with the defendant No 1
The High Court while examining this aspect accepted and relied on Ext
250 signed by the plaintiff but failed to appreci ate the significance of the description of the Naroda chawl on the receipt as the property of the defendant No 6
Similar is the position of the defendant No 1 who did not come to the witness box at all
Chandrakanta examined her self as DW 3 and supported her case
Although there are some minor discrepancies in her deposition the same is consistent with the documents and the circumstances in the case and appears to be reliable
While reversing the finding of the trial court that Chandrakanta was in exclusive possession of the chawl not only from 1952 onwards but even earlier since 1946 the High Court was mainly impressed by three items of the evidence namely icertain account books claimed to be the books at the joint family ii several IncomeTax returns filed by the defendant No 1 and iii a document of agreement Ext
So far the Income Tax papers are concerned they are of the period after 1952 and it has already been stated earlier that the High Court has agreed with the trial court that since 1952 the defendant No 6 was in adverse possession of the chawl
In view of this finding with which we fully agree the Income Tax documents do not 242 have any impact except showing that the author of these returns was falsely including income therein which did not accrue to the family
So far the account books and the deed of agreement are concerned it will be necessary or appreci ating their true nature and impact on this case to consider some more facts
The account books were produced by the defendant No 1 within a list of documents Ext 123
The defendant No 1 however did not lead any evidence with respect to the same when his turn at the trial came
As mentioned earlier he personally avoided the witness box but examined some wit nesses who did not attempt either to prove the books or speak about their authenticity
The books were admitted in evidence and marked as exhibits on the statement of the plaintiff which he made in cross examination
Some of the books were shown to him and he admitted that they were in his hand writing but immediately added I have written them as per the instructions of defendant No 1 and as directed by him
They are maintained from month to month
 The income from the Naroda chawl which was admittedly very small as compared to the vastness and the present value of the property was included in the account books
According to the case of the respondent the books are authentic and disclosed the true state of affairs
There was considerable discussion at the bar before us as well as before the High Court as is apparent from the judgment under appeal relat ing to the law of evidence dealing with account books
Reliance was placed on Sec
34 of the which provides that entries in books of account regularly kept in the course of business are relevant whenever they refer to a matter into which the Court has to enquire
It has been contended on behalf of the respondents that since the plaintiff stated that the books were being maintained from month to month the requirement of law was satisfied
Mr Mehta the learned counsel for the appellant argued that apart from the formal proof of the execution of the docu ment the party relying thereon was under a duty to lead evidence in support of the correctness of the entries in the books which is completely lacking here
Besides it was pointed out that the relevant books are merely joint khata bahis of Samvat 2005 to 2006 equivalent to 1948 to 1949 without the support of primary evidence of the cash books
 The other relevant documents which are admittedly in pos session of the defendant No 1 have not been produced including the account books of other years during the cru cial 243 period the Income tax returns and assessment orders for the period 1946 to 1952 and the counter foil rent receipts
It is apparent from the evidence that nobody takes the responsibility of supporting the correctness of the entries in the account books
When they were produced in Court the plaintiff filed his objection as per his purshis Ext 172 page 368 of the paper book
Many of the documents produced by the defendant No 1 were accepted but the account books which were serial nos
123 75 to 123 97 of the list Ext
123 were in express terms not admitted
The plain tiff said that they might be exhibited but subject to his objection
The defendant No 6 also filed her objection as per the purshis Ext
The plaintiff did not make any statement supporting the books in his examination in chief and only in reply to the question of the cross examining lawyer of the defendant No 1 he stated as mentioned earli er
It is significant to note that by saying that he had written as per the instructions of the defendant No 1 he made it clear that he could not vouchsafe for their reli ability
In spite of this situation the defendant No 1 could not sommon courage to support them either personally or through any witness
No reason has been suggested at all on his behalf as to why he did not produce the other impor tant documents in his possession which would have supported the account books and the joint case of the parties resist ing the appellants  claim
In view of all these circum stances we have no hesitation in rejecting the account books as not reliable
So far Ext
167 is concerned the High Court has relied upon it as the Naroda chawl has been treated by the document as belonging to the joint family
It was executed on 24101954 by the plaintiff and his three brothers but not by Jayantilal the husband of defendant No 6 although he is also shown as a party thereto
The brothers appear to have settled their dispute with respect to different items of property and the disputed Naroda chawl is shown as the seventh item in the list of properties
Although the four brothers personally signed the document so far Jayantilal s branch was concerned the signature of Narendra defendant No 7 who was a minor then was taken
Reliance has been placed on the attestation of Bapalal the father of the executants
Two days earlier ie on 22101954 he had executed a release deed Ext
222 giving up his right in the family properties for a sum of money named therein
He was already staying in Vrindavan for sometime past and proposed to spend the rest of his life there
The release deed however did not contain any list of properties and the document therefore is not of any help to either side
SOl far the 244 agreement Ext
167 is concerned it has not been stated by anybody that Bapalal went through its contents or that somebody read the same to him before he attested it
There is no presumption that an attesting witness of a document must be assumed to be aware of its contents
What is signif icant however is that it was executed in 1954 when the defendant No 6 was in adverse possession to the exclusion of the defendant No 1 and the other members of the family and Jayantilal did not join the document and his brothers chose to get the signature of his minor son
This is con sistent with their dishonest attempt to include the income from the chawl in the Income Tax returns of the period after 1952 when the defendant No 6 undoubtedly was in exclusive possession
As has been stated earlier in 1952 there was a direct confrontation between them on the one hand and the defendant No 6 on the other when public notices were published in Sandesh 
If their case about their earlier possession had been true they would have produced their Income Tax returns and the assessment orders of that period ie 1946 to 1952
The family was possessed of vast proper ties and was paying Income Tax
The entire circumstances lead to the irresistible conclusion that after the defendant No 1 was removed by the defendant No 6 from the management of the disputed Naroda chawl he and the other members of the family started creating evidence in support of their false claim
We do not in the circumstances place any reliance on this deed of agreement
So far the oral evidence in the case is concerned the plaintiff Vadilal examined himself as a witness but was not supported by any other member of the family al though his brothers Gulabchand and Kantilal defendants 1 and 2 respectively were alive when the case was heard in the trial court
Even his nephew Rajnikant defendant No 5 son of deceased Ramanlal did not prefer to come to the witness box
The husband of the defendant No 6 Jayantilal had died in 1956 ie about 3 4 years before the institu tion of the suit
Chandrakanta examined herself in support of her case and was cross examined at considerable length
Her son Narendra defendant No 7 who was minor in 1954 when Ext
167 was executed was also examined as a witness
After the death of his father Jayantilal in 1956 he start ed collecting the rent of the chawl and as stated earlier both the courts have concurrently held in favour of the exclusive possession of the defendant No 6 from 1952 on wards
The plaintiff however claimed that the chawl was in the possession of the family even later than 1952
We have been taken through his evidence and the evidence of Chandra kanta in extenso by the learned counsel for the parties who made long comments thereon during their arguments
Both the judg 245 ments of the trial court and the High Court have discussed the evidence at length and we do not consider it necessary to once more deal with them in detail
We agree with the reasons given by the trial court for accepting the case and the evidence of the defendant No 6 and rejecting the plain tiff s oral evidence and the case of the respondents
The plaintiff contradicted himself so seriously during his examination that at one stage he had to expressly admit that several of the statements made in his examination in chief were false  see paragraph 25
It was demonstrated by the further cross examination that he had made many more incor rect statements
On the other hand Chandrakanta s evidence is far superior
Although she also made some inconsistent statements but the discrepancies did not relate to any matter of vital importance
Her evidence substantially is reliable and is supported by important circumstances of i the mutation of her name in place of Bapalal on the basis of a statement of the latter ii the description of the chawl as belonging to her on the printed rent receipts given to the tenants out of which some were issued by the defendant No 1 and the plaintiff and iii the suppression of vital materials in possession of the defendant No 1 which were withheld from the Court
The conduct of the parties in not filing the suit before 1960 is also consistent with the correctness of her case
When the defendant No 1 was effec tively removed from the management of the property by the defendant No 6 in 1952 Bapalal was alive
The defendant No 1 as also the other members of the family contesting her claim kept quiet and did not risk starting a litigation during his life time
Even in 1960 it was the plaintiff and not the defendant No 1 who instituted the present suit in which he included the Naroda chawl in the schedule of properties to be partitioned
The defendant No 1 was manag ing the affairs of the family but did not take any steps to dislodge the defendant No 6 from the chawl
The impugned judgment indicates that there were serious differences between the plaintiff and the defendant No 1 on other items of property and the main reason for the plaintiff to file the suit does not appear to be his claim to the Naroda chawl
We do not consider it necessary to reiterate the other reasons given in the trial court judgment in support of the decision in favour of the appellant with which we agree
We therefore hold that the defendant No 6 remained in exclusive adverse possession of the disputed Naroda chawl right from 1946 onwards till the suit was filed in 1960
Mr Dholakia the learned counsel for the contesting respondents contended that since the chawl has remained in actual possession of the tenants Bapalal or the family must be held to be in symbolic 246 possession in 1946 and for that reason the defendant No 6 also can not be treated to have come in actual possession of the property which could have permitted her to prescribe a title in the chawl
The learned counsel further argued that since the defendant No 1 and the plaintiff were actually collecting rent from the tenants they also must be held to be in joint possession and therefore the defendant no 6 can not succeed as she has not been able to prove their ouster
The other members of the joint family will also be entitled to rely on this aspect so as to successfully defend their right
Reliance was placed on the decision of the Patna High Court in Hari Prasad Agarwalla and another vs Abdul Haq and others AIR 1951 Patna 160 in support of the argument that for adverse possession actual physical possession is necessary and mere constructive possession is not sufficient
We are afraid it is not possible to accept the argument
The subject matter of dispute in the present case is the title to the chawl as the owner landlord subject to the tenancy of the tenants in possession
Neither the plaintiffs nor the defendants are claiming the actual physical posses sion of the chawl by eviction of the tenants
Any reference to the actual physical possession of the tenant is there fore wholly irrelevant for the purpose of the present controversy
It has to be remembered that the title to the chawl as owner subject to the tenancy was an interest in immovable property so as to be covered by Article 144 of the Indian Limitation Act 1908 which specifically mentioned  or any interest therein
These words were retained in Article 65 of the new Limitation Act
It is true that it is the intention to claim exclusive title which makes possession adverse and this animus possidendi must be evidenced and effectuated by the manner of occupancy which again depends upon the nature of the property
The manner of possession depends upon the kind of possession which the particular property is susceptible
That possession to the extent to which it is capable of demonstration must be hostile and exclusive and will cover only to the extent of the owner s possession
In the present case the parties have been fighting for the rent from the chawl so long as it continues in possession of the tenants
Before the gift of 1946 the defendant No 1 was collecting the rent and he continued to do so even thereafter till 1952
The appellant has however established her case that the defendant No 1 acted as her agent after 1946 and when he repudiated this agency in 1952 he was effectively removed from the manage ment of the chawl
Since 1946 the tenants attorned to the defendant No 6 and paid rent to her under printed receipts announcing her ownership but of course through her agent the defendant No 1
The actual physical possession of the tenants in 247 the circumstances would enable the appellant to establish her prescriptive title
The decision in Uppalapati Veera Venkata Satyanarayanaraju and another vs Josyula Hanumayamma and another  indicates that if a tenant makes an attornment in favour of a person who is not the true owner and follows and paying the rent to him such a person must be held to have effective possession
The land lord must be deemed to be in possession through his tenant is also demonstrated by another illustration
If the tenant trespasses over the neighbour s land treating it to be covered by his tenancy and remains in possession for the requisite period so as to prescribe a title thereto his interest therein is limited to the interest of the tenant and his landlord acquires the title of the owner
The con duct of such a tenant has been aptly described as stealing for the landlord see ILR 10 Calcutta 820 and The fact that the tenants have been in actual physical possession of the chawl is in the circumstances of no assistance to the respondents
What is material is that they paid the rent to the defendant No 6 19
There is no merit in the further argument that the defendant No 1 must be treated to be in joint possession as he was actually collecting the rent from the tenants
It is well settled that the possession of the agent is the posses sion of the principal and in view of the fiduciary relation ship the defendant No 1 cannot be permitted to claim his own possession
This aspect was well emphasised in David Lyeii vs John Lawson Kennedy 1889 XIV HL E 437 where the agent who was collecting the rent from the tenants on behalf of the owner and depositing it in a separate ear marked account continued to do so even after the death of the owner
After more than 12 years of the owner s death his heir s assignee brought the action against the agent for possession and the agent defendant pleaded adverse posses sion and limitation
The plaintiff succeeded in the first court
But the action was dismissed by the Court of Appeal
The House of Lords reversed the decision of the Court of Appeal and remarked For whom and on whose behalf were those rents received after Ann Duncan s death Not by the respondent for himself or on his own behalf anymore than during her life time
Emphasing the fiduciary character of the agent his possession was likened to that of trustee a solicitor or an agent receiving the rent under a power of attorney
Another English case of Williams vs Pott LR XII Equity Cases 149 arising out of the circumstances similar to the present case was more interesting
The agent in that case was the real owner of the estate but he collected the rents for a considerably long period as the agent of his principal who was his mother
After the agent s death his heir claimed the estate
248 The mother the principal had also by then died after purporting by her will to devise the disputed lands to the defendants upon certain trusts
The claim of the plaintiff was dismissed on the plea of adverse possession
Lord Romil ly MR in his judgment observed that since the possession of the agent was the possession of the principal the agent could not have made an entry as long as he was in the posi tion of the agent or his mother and that he could not get into possession without first resigning his position as her agent which he could have done by saying The property is mine I claim the rents and I shall apply the rents for my own purposes
The agent had thus lost his title by reason of his own possession as agent of the principal
A similar situation arose in Secretary of State for India vs Krishna moni Gupta 29 Indian Appeals 104 a case between lessor and lessee
There the proprietors of the land in dispute Mozum dars were in actual physical possession but after getting a settlement from the Government in ignorance of their title
The Government contended that the possession of the Mozum dars was in circumstances the possession of the Government claiming the proprietory right in the disputed land and that such possession was in exclusion and adverse to the claim of the Mozumdars to be proprietors thereof
The plea succeeded
It was observed by the Judicial Committee
It may at first sight seem singular that parties should be barred by lapse of time during which they were in physical possession and estopped from disputing the title of the Government
But there is no doubt that the possession of the tenant is in law the posses sion of the landlord or superior proprietor and it can make no difference whether the tenant be one who might claim adversely to his landlord or not
Indeed in such a case it may be thought that the adverse character of the possession is placed beyond controversy
 We are therefore of the view that the defendant No 6 was in adverse possession from the period 1946 to 1952 through her agent defendant No 1 and thereafter through her husband Jayantilal and son defendant No 7 till 1960 when the suit was filed the total period being more than 12 years
For the reasons mentioned above the decision of the High Court must be held to be erroneous
Consequently the decrees for accounts against the defendants No 6 and 7 must also go
Accordingly the appeals are allowed the decision of the High Court so far 249 the subject matter of the present appeals is concerned is set aside and that of the trial court restored
In view of the close relationship of the parties and the other circum stances the parties are directed to bear their own costs throughout
NVK Appeals allowed


Summary:
By an agreement dated 7 March 1974 both the appellant and the respondent Ram Lal appointed an arbitrator to adju dicate through arbitration their disputes about a plot of land
The arbitrator gave his award on 22 May 1974 stating inter alia that the land in dispute was in the joint name of the appellant and respondent Ram Lal and that the half ownership of the appellant shall now be owned by Shri Ram Lal in addition to his 12 share owned by him in those lands
The arbitrator filed an application before Sub Judge II Class for making the award the rule of the Court
The appel lant filed objections under section 33 of the  to set aside the award on various grounds but no point was raised that the award was unenforceable because it was not properly stamped and not registered
The trial court dismissed all the objections taken under section 14 of the and made the award the rule of the Court
The District Judge in the appeal filed by the appel lant came to the conclusion that the award declared a right in immovable property and since it was unregistered and unstamped it could not be made the rule of the Court
The High Court however allowed the appeal filed by the res 251 pondent on the ground that the award did not create any right in immovable property and that it only admitted the already existing rights between the parties and hence it did not require any registration
The appellant appealed by special leave to this Court
During the pendency of the said appeal the award was submitted for registration on 19 December 1988 and was registered on 3 February 1989
On behalf of appellant it was argued that the High Court was wrong in looking into an unregistered award and that its subsequent registration was obtained by misrepresenta tion and misleading the authorities did not validate it retrospectively and that the registration having been beyond the period of four months was wholly bad
On behalf of the respondent the appeal was contested by contending that the award did not require registration as it did not create declare or assign any new right in the immovable property but that it merely declared the existing right of ownership of the respondent that the appellant was barred from taking the plea of its being unregistered at a later stage as it had not been taken by him before the trial court
It was further submitted that the appellant was estopped from agitating the question after the lapse of 30 days as is statutorily required under section 30 of the Arbitra tion Act
Allowing the appeal this Court HELD 1 The real purpose of registration is to secure that every person dealing with the property where such document requires registration may rely with confidence upon statements contained in the register as a full and complete account of all transactions by which title may be affected
Section 17 of the said Act being a disabling section must be construed strictly
Therefore unless a document is clearly brought within the provisions of the section its non registration would be no bar to its being admitted in evidence
259C D Ramaswamy Ayyar  Anr
vs Thirupathi Naik ILR XXVII Madras p 43 affirmed
2 On a proper construction of the award it does appear that the award did create declare or assign a right title and interest in the immovable property
The award declares that 12 share of the ownership 252 of Shri Lachhman Dass shall be now owned by Shri Ram Lal the respondent in addition to his 12 share owned in these lands
 Thereforethe said award declares the right of Ram Lal to the said share of the said property mentioned in that clause
It is not in dispute that the said property is immovable property and it is not merely a declaration of the pre existing right but creation of new right of the parties
The award in the instant case affects immovable property over Rs I00 and as such was required to be registered
259D F 262G 3 The filing of an unregistered award under section 49 of the Act was not prohibited
What was prohibited was that it could not be taken into evidence so as to affect immovable property failing under section 17 of the Act
260E 4 An award affecting immovable property of the value of more than Rs I00 cannot be looked into by the Court for pronouncement upon the award on the application under section 14 of the unless the award is registered
Section 14 enjoins that when an award of an arbitrator has been filed the Court should give notice to the parties and thereupon the court shall pronounce judgment upon the award and make it a rule of the Court
But in order to do so the court must be competent to look into the award
Section 49 of the act enjoins that the award cannot be received as evidence of any transaction affecting immovable property or conferring power to adopt unless it is registered
In that view of the matter no judgment upon the award could have been pronounced upon the unregistered award
263E F Satish Kumar  Ors
vs Surinder Kumar  Ors and Ratan Lal Sharma vs Purshottam Harit   relied upon
5 In the instant case though it may not be possible to take the point that the
award is bad because it is unregistered as such it could not be taken into considera tion in a proceeding under section 30 or 33 of the  but it can be taken in the proceedings under section 14 of the when the award is sought to be filed in the Court and the Court is called upon to pass a decree in accordance with the award
As the court could not look into the award there is no question of the court passing a decree in accordance with the award and that point can also be taken when the award is sought to be enforced as the rule of the Court
Further at the relevant time the award was not registered
If that is the position then the subse 253 quent registration of the award whether in conformity with sections 23 and 25 of the Act or whether in breach or in violation of the same is not relevant
265A D Gangaprashad vs Mt Banaspati AIR 1933 Nagpur 132 referred to