IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933 SA.No. 517 of 1997(C) -------------------------------- AS.NO. 75/1994 of DISTRICT COURT & SESSIONS COURT,THODUPUZHA OS.NO. 26/1989 of SUB COURT,THODUPUZHA .................... APPELLANTS/ RESPONDENTS 1 TO 3 AND PLAINTIFFS 1 TO 3 ----------------------------------------------------------------------------------------- * 1. MADHAVAN PILLAI C.A., S/O.AYYAPPAN PILLAI, CHATHANKUZHIYIL HOUSE, KURUMBALAMATTOM, KARIMANNOOR VILLAGE, THODUPUZHA TALUK.(DIED) 2. RAJAN PILLAI.C.A., S/O. DO DO 3. BHARGAVI AMMA, W/O. RAMAN PILLAI, INCHAKKADU VEEDU, THEKKUMBHAGAM KARA, KARIKODE VILLAGE. * ADDITIONAL APPELLANTS 4 TO 9 IMPLEADED * ADDL.4TH APPELLANT : SARADHA AMMA, W/O. LATE MADHAVAN PILLAI,CHATHANKUZHIYIL HOUSE, VANDAMATTOM, KARIMANNOOR VILLAGE, THODUPUZHA TALUK. *ADDL.5TH APPELLANT: PUSHPALATHA, D/O. LATE MADHAVANPILLAI, AGED 32 YEARS, -DO- -DO- *ADDL.6TH APPELLANT: SHAILAJA, D/O.LATE MADHAVAN PILLAI , AGED 30 YEATS, -DO- -DO- *ADDL.7TH APPELLANT: SAJIKUMAR,S/O. LATE MADHAVAN PILLAI, AGED 28 YEARS, -DO- -DO- *ADDL.8TH APPELLANT: MANOJ KUMAR, S/O. LATE MADHAVAN PILLAI, AGED 26 YARS, -DO- -DO- *ADDL.9TH APPELLANT: MINIMOL, LATE MADHAVAN PILLAI, AGED 23 YEARS, -DO- -DO- * IMPLEADED AS ADDITIONAL APPELLANTS 4 TO 9 IN THE SA AS PER ORDER DATED 4/6/98 IN CMP.NO.572/98, BEING THE LEGAL HEIRS OF THE DECEASED 1ST APPELLANT SHRI.MADHAVAN PILLAI BY ADV. SRI.T.V.GEORGE SRI.V.G.SREEDEVI S.A.NO.517/1997 RESPONDENTS/ APPELLANTS 1 AND 2 AND DEFENDANTS 1,7 AND 2 TO 6/RESPONDENTS 4 TO 8 --------------- 1. SANKARA PILLAI, S/O. VELAYUDHAN PILLAI, PULIMOOTTIL HOUSE, THODUPUZHA EAST KARA, KARIKODE VILLAGE, THODUPUZHA TALUK. 2. LAKSHMIKUTTY AMMA, W/O.VELAYUDHAN PILLAI, DO DO 3. K.N.RAMAKRISHNA PILLAI, KAITHAKOMBIL VEEDU, MAYAMUDI .P.O. 4. K.N.GOPALA PILLAI, KAITHAKOMBIL VEEDU, KAPPUKARA, MANJALLOOR VILLAGE, MUVATTUPUZHA TALUK. 5. K.N.RAGHAVAN PILLAI, KAITHAKOMBIL VEEDU, MAYAMUDI P.O., GONI COPAI, SOUTH KODAKE KARNATAKA. 6. K.N.PRABHAKARAN PILLAI, KAITHAKOMBIL VEEDU, OLAMATTOM KARA, THODUPUZHA VILLAGE. 7. GOMATHI AMMA, W/O.SANKARA PILLAI, PARAMBUKADU VEEDU, KEERIKODE, KARIKODE VILLAGE, THODUPUZHA BY THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts S.A.NO.517/1997 ORDER ON C.M.P.NO.1371/1997 IN S.A.NO.517/1997 DISMISSED 29/03/2011 SD/-P.BHAVADASAN, JUDGE /TRUE COPY/ P.A.TO.JUDGE sts P.BHAVADASAN, J. ---------------------------- S.A.No. 517 of 1997 --------------------------------- Dated this the 29th day of March, 2011 JUDGMENT Plaintiffs 1 to 3 in O.S.No.26/1989 before the Sub Court, Thodupuzha are the appellants. The lower appellate court allowed the appeal, dismissing the suit. 2. The suit was one for partition. The suit property belonged to one Narayaniyamma, who had five children(2 sons and 3 daughters) namely, Velayudhan Pillai, Lakshmikutty Amma, Perumal Pillai, Parukutty Amma and Thankamma. Plaintiffs are the children of deceased Thankamma. D2 to D6 are the children of deceased Parukkutty Amma and first defendant is the only son of deceased Velayudhan Pillai. Lakshmi Kutty Amma and Perumal Pillai, had surrendered their rights to Velayudhan Pillai and first defendant respectively. 3. The suit was laid claiming 1/5th share of the suit property consequent on the death of Narayaniamma. 4. The first defendant alone resisted the suit. According to him, the female children of Narayaniamma had no right over the property and male children alone inherited the property owned and possessed by Narayaniamma. He claimed that the document executed by S.A.No. 517 of 1997 2 Lakshmikutty Amma in his favour was a redundant deed and that the plaintiffs have no right over the suit property. He claimed that he had put up a building in the property and was residing there. He denied that the plaintiff and defendants 2 to 6 were given their share of income from the property. There was no necessity or occasion for the same. Apart from contending that the female children of Narayaniamma had no right over the property, he also contended that even if they had any manner of right over the same that right had been lost by adverse possession and limitation. 5. Defendants 2 to 6 supported the plaintiff. 6. Based on the above pleadings necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A5 from the side of the plaintiff. The contesting defendants examined DWs 1 to 3 and had Exts.B1 to B5 marked. 7. On an evaluation of the evidence, the trial court came to the conclusion that the property in the hands of Narayaniamma acquired the characteristics of Shridhana property and it devolved on female children alone. But the trial court took note of the fact that the parties had agreed that by the custom followed in their community all the children had equal rights to the property left behind by Narayaniamma. Therefore, each of them had 1/5th share. As regards the plea of adverse S.A.No. 517 of 1997 3 possession and limitation it was found by the trial court that there was no acceptable evidence at all and in fact Exts.A1 and A2 relied the claim of adverse possession and limitation were of no help. Accordingly, that contention was also rejected. The result was the preliminary decree in the following terms: 1. The plaint Schedule property will be divided by metes and bounds into 5 equal shares and one such share will be allotted to the plaintiffs and another such share will be allotted to defendants 2 to 6. 2. Plaintiffs and defendants 2 to 6 are allowed to realise 1/6th share of mesne profits each from first defendant, from the date of suit onwards. The Quantum of mesne profits will be decided in the final decree proceedings. 3. The cost of the plaintiffs and defendants 2 to 6 will come out of the estate. 4. Plaintiffs or defendants 2 to 6 can apply for passing a final decree along with commission application. 8. Disappointed first defendant carried the matter in appeal as A.S.No.75/1994 before the District Court, Thodupuzha. The District Court, Thodupuzha created a case which appellant himself did not have. The lower appellate court came to the conclusion that the male children of Narayaniamma had no manner of right over the suit property and only the female children inherited the estate left behind by her. Then the court went on to hold that Perumal Pillai and Velayudhan pillai alone wherein possession of the suit property to the exclusion of the real owners namely female children of Narayaniamma. They treated the S.A.No. 517 of 1997 4 property as thereon for a long time since no claim was laid by the plaintiffs and D2 to D6 even if they had any manner of right that was lost by adverse possession and limitation. Accordingly, the appeal was allowed and the suit was dismissed. 9. Notice is seen issued on the following substantial questions of law: 1. Whether the judgment of the lower appellate Court without considering the basic requirements to substantiate the plea of adverse possession is sustainable ? 2. Is the judgment and decree passed by the Lower Appellate Court sustainable for the reason of its failure to advert to the pleadings in the written statement regarding adverse possession and the total absence of proof on the side of first defendant to prove adverse possession. 3. The burden of proof regarding adverse possession, being on the party who sets up such plea, is the Lower Appellate Court justified in finding acquisition of title by adverse possession on the first defendant without any proof regarding adverse possession. 4. Is the judgment and decree of the lower appellate court based on mis-conception and perverse finding and not supported by sustainable evidence? 5. Are not the contesting defendants estopped from contending or questioning the right for partition of the plaintiffs and their share in view of Ext.A1 and A2 wherein the right of every legal representative has been mentioned as 1/5th and is not Section 92 of Evidence Act a bar to register such a contention ? 10. The learned counsel appearing for the appellant pointed out that the lower appellate court has created a case which had no foundation either in the pleadings or in the evidence. The consistent S.A.No. 517 of 1997 5 case of the plaintiff was that as per the custom followed in the community, though they follow the Mithaskara law and though the property had the characteristics of Shridhana property as per the custom followed by them, all the children had equal shares over the property left behind by Narayaniamma. The first defendant never had a case that male children of Narayaniamma had no right over the suit property. In fact, the learned counsel referring to the written statement and the evidence pointed out that the case of the first defendant was that female children did not have any right over the property and that the male children alone inherited the estate left behind by Narayaniamma. Accordingly, the learned counsel pointed out that the finding of the conclusions drawn by the lower appellate court is not sustainable either on facts or in law. 11. There seems to be considerable force in the above submission. The case put forward by the first defendant in the suit was that the male children of Narayaniamma alone had right to the property and the property was in the exclusive possession of Velayudhan Pillai and Perurmal Pillai and other three daughters of Narayaniamma had no manner of right over the suit property. He never had a case that the male children of Narayaniamma did not inherit the estate and the female children alone were entitled to the property left behind by Narayaniamma. S.A.No. 517 of 1997 6 12. The trial court has considered the question as to how the property has to devolve. It came to the conclusion that the parties followed Mitakshara Law and properties in the hands of Narayaniamma was her Shridhana property only. Going by the strict principle of Mithaskhara law, consequent to the death of Narayaniamma, only daughters inherit, but the plaintiff conceded that as per the custom followed in them, the plaintiff can claim only 1/5th share. This concession made by the plaintiff persuaded the court below to accept the claim made by the plaintiff. On the other hand the lower appellate court is of the the view that since the custom is not proved, the concession cannot be accepted. Then the lower appellate court went on to hold that the daughters, who was the real heirs at law, were never in possession and enjoyment whereas the two sons of Narayaniamma were in exclusive possession and enjoyment of the property. The lower appellate court found support for this conclusion from Exts A1 and A2. Ext.A1 is executed by Lakshmikutty Amma in favour of the first defendant relinquish her suit property in his favour. Perumal Pillai gave his Verumpattom right to Velayudhan Pillai. The lower appellate court omitted to note that if as a matter of fact Perumal pillai had no right over the property he could not have assigned anything in favour of Velayudhan Pillai. Further as rightly pointed out by the learned counsel S.A.No. 517 of 1997 7 for the appellant the case found by the lower appellate court has neither covered by the pleadings or the evidence. The first defendant did not have a case found by the lower appellate court. 13. Coming to the plea of adverse possession and limitation it is well settled that the possession of one co-owner is deemed to be on behalf of all other co-owners. Unless there is clinching, cogent and convincing evidence to show that one co-owner has been holding the property enjoying it exclusively to the other co-owners with the required animus and to the knowledge of all co-owners. Possession of one co-owner cannot be adverse to that of other co-owners. 14. The decision reported in (AIR 1957 SC 314) "P. Lakshmi Reddy v. L. Lakshmi Reddy", held as follows: 4. Now, the ordinary classical requirement of the adverse possession is that it should be nec vi nec clam nec precario. (See Secretary of State for India v. Debendra Lal Khan, 61 Ind App 78 at p 82 : (AIR 1934 PC 23 at p. 25) (A). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to @page-SC318 the competitor. (See Radhamoni Debi v. Collector of Khulna, 27 Ind App 136 at p. 140 (PC) (B). But it is well-settled that in order to establish adverse possession of one co-heir as against another it is enough to show that 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. The possession of one co-heir is considered, in law, as possession of all co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile S.A.No. 517 of 1997 8 animus on his own part in derogation of the other co-heir's title. (See Corea v. Appuhamy, 1912 AC 230 (C)). It is a settled rule of law that as between co-heirs 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. This does not necessarily mean that there must be an express demand by one and denial by the other. There are cases which have held that adverse possession and ouster can be inferred when one co-heir takes and maintains notorious exclusive possession in assertion of hostile title and continues in such possession for a very considerable time and excluded heir takes no steps to vindicate his title. Whether that line of cases is right or wrong we need not pause to consider. It is sufficient to notice that the Privy Council in N. Varada Pillai v. Jeevarathnmml, AIR 1919 PC 44 at p. 47 (D) quotes, apparently with approval, a passage from Culley v. Deod Taylerson, (1840) 3 P and D 539: 52 RR 566 (E) which indicates that such a situation may well lead to an inference of ouster 'if other circumstances concur'. (See also Govindrao v. Rajabai, AIR 1931 PC 48 (F). It may be further mentioned that it is well-settled that the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession. 15. The decision reported in (AIR 1981 SC 77) "Karbalai Begum v. Mohd. Sayeed, held as follows: “ 7. Another obvious fact which emerges from the admitted position is that if Mohd. Bashir and Mohd. Rasheed were co-bhumidars with the plaintiff in the khewat and had also sirdari tenants under them, how could the sirdari tenants occupy the land of one of the co-sharers leaving the defendants alone so that the blots were re-allotted to them. It is well settled that mere non-participation in the rent and profits of the land of a cosharer does not amount to an ouster so as to give title by adverse possession to the other co- sharer in possession. Indeed even if this fact be admitted, then the legal position would be that Mohd. Bashir and Mohd. Rashid, being co-sharers of the plaintiff, would become constructive trustees on behalf of the plaintiff and the right of the plaintiff would be deemed to be protected by the trustees. The learned counsel appearing for the respondent was unable to contest this position of law. In the present case, it is S.A.No. 517 of 1997 9 therefore manifest that the possession of the defendants, apart from being in the nature of constructive trustees, would be in law the possession of the plaintiff.” 16. It is true that there is evidence to show that Velayudhan Pillai and after his death, his son first defendant have been in possession of the property. But possession however long will not be sufficient to constitute ouster of other co-owners. It is well established that the burden is on the person who claims adverse possession and limitation to establish the same. He has to adduce convincing evidence to show that he has been holding the property and dealing with the same in a manner, by which it was clearly indicated that he was doing so claiming to the property to be his own to the exclusion of others. No such evidence is available in the case on hand. There is no reason as to why the lower appellate court should have upset the decree of the trial court. The result is that this second appeal is allowed. The judgment and decree of the lower appellate court are set aside and that of trial court are restored. P.BHAVADASAN, JUDGE. ln