Case: Wuntakal Yalpi Chenabasavana Gowd Vs. Rao Bahadur Y. Mahabaleshwarappa And Another

the requisite legal formalities and though the transferee does not acquire a legal title to it by the transfer, yet if he gets possession of the property though with the consent of the transferor that possession becomes adverse to the owner and if continued for the statutory period creates a title in him.8. We are not satisfied from the materials in this case that Nagana was ignorant of his rights as heir of his deceased son when he executed the lease in the year 1926. But even if he was as the exclusive possession of the infant was exercised with the full knowledge and consent of the father who openly acknowledged the title of his son, such possession could not but be adverse to the father. The learned Judges of the High Court seem to be of the opinion that the possession of the minor could be regarded as adverse from the date of the execution of the lease, as the father by being a party to the said document, did exhibit an animus to possess the common property on behalf of the minor alone to the exclusion o himself. But according to the learned Judges this affirms ceased as soon as Nagana executed the mortgage deed in 1935, asserting his right as joint owner of the property in dispute and the adverse possession of the son forthwith came to an end. With this view we are unable to agree.9. Once it is held that the possession of a co-sharer has become adverse to the other co-sharer as a result of the mere assertion of his joint title by the dispossessed co-sharer would not interrupt the running of adverse possession. He must actually and effectively break up the exclusive possession of his co-sharer by re-entry upon the property or by resuming possession in such manner as it was possible to do. It may also check the running of time if the co-sharer who is in exclusive possession acknowledges the title of his co-owner or discontinues his exclusive possession of the property. On the materials on the record, none of these things seems to have been proved in the present case. Resumption of physical possession of re-entry upon the property was absolutely out of the question as the property was in the possession of a lessee.The lease, it should be noted, was executed in 1926 and we have two rent receipts of the years 1927 and 1932 respectively by which Nagana acknowledged receipt of rents on behalf of his infant son in terms of the lease deed. The rent suit in 1934 was also brought by him in his capacity as guardian of defendant. No. 1 and the document Ex. D-3 by which the decree in that suit was discharged and a receipt was given in advance for all the subsequent rents point definitely to the conclusion that the entire rent for the whole period of 12 years was paid to and was accepted on behalf of Chenabasavana and Nagana either received any portion of it nor laid any claim to the same.During the whole period of the lease and up to the present day the minor is admittedly in possession of the property and no act or conduct on his part has been proved either within the period of limitation or even after that which might be regarded as an acknowledgment of the title of his father as co-owner. In our opinion the fact that the father who had allowed himself to be dispossessed by his son exhibited later on his animus to treat the property as the joint property of himself and his son cannot arrest the running of adverse possession in favour of the son. A mere mental act on the part of the person dispossessed unaccompanied by any change of possession cannot affect the continuity of adverse possession of the deseizor.10. The view taken by the High Court probably rests on the supposition that as it was the father, who acting on behalf of his son, asserted the exclusive title of the son to the property in denial of his own rights, it was open to the father again if he so chose to resale from that position and make a fresh declaration that the property was not the sole property of the son but belonged to him as well; and this subsequent act would annul the consequences of his previous act. This reasoning does not appear to us to be sound. The fathers acts in connection with the lease were entirely in his capably as guardian of his son. In the eye of the law they were this acts of the son, but the creation of the mortgage in 1935 was not the act of the father on behalf of his son; it was the personal act of the father himself qua co-proprietor of the son and the interest of one being adverse to the other such acts could not be held to be acts of the so performed through the father. It is extremely doubtful whether qua guardian the father could make such declaration at all. Any change of intention on the part of the guardian alone and the minor can react to it again only through the guardian.It may be proper in such cases for the father to renounce his guardianship before he could assert any right of his own against his ward; but it is not necessary for us to go into that question, as the mortgage in this case was made by the father not as guardian of the minor at all. It was no more than a declaration, by a person who dispossessed by his co-sharer, of his joint title to the property and as has been already pointed out, as it did not involve any change of possession it did not affect the adverse possession of the deseizor. In our opinion, therefore the view taken by the learned Judges of the High Court is not proper and cannot be sustained.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We must take it therefore that after the death of Siddalingana, Nagana became a co-owner of the disputed property with his minor son Chenabasavana. As the plaintiff purports to derive his title as a co-owner with defendant No. 1 and this being the position, the presumption of law would be that the possession of one co-owner was on behalf of the other also unless actual owner was proved.We are not satisfied from the materials in this case that Nagana was ignorant of his rights as heir of his deceased son when he executed the lease in the year 1926. But even if he was as the exclusive possession of the infant was exercised with the full knowledge and consent of the father who openly acknowledged the title of his son, such possession could not but be adverse to the father. The learned Judges of the High Court seem to be of the opinion that the possession of the minor could be regarded as adverse from the date of the execution of the lease, as the father by being a party to the said document, did exhibit an animus to possess the common property on behalf of the minor alone to the exclusion o himself. But according to the learned Judges this affirms ceased as soon as Nagana executed the mortgage deed in 1935, asserting his right as joint owner of the property in dispute and the adverse possession of the son forthwith came to an end. With this view we are unable to agree.9. Once it is held that the possession of a co-sharer has become adverse to the other co-sharer as a result of the mere assertion of his joint title by the dispossessed co-sharer would not interrupt the running of adverse possession. He must actually and effectively break up the exclusive possession of his co-sharer by re-entry upon the property or by resuming possession in such manner as it was possible to do. It may also check the running of time if the co-sharer who is in exclusive possession acknowledges the title of his co-owner or discontinues his exclusive possession of the property. On the materials on the record, none of these things seems to have been proved in the present case. Resumption of physical possession of re-entry upon the property was absolutely out of the question as the property was in the possession of athe whole period of the lease and up to the present day the minor is admittedly in possession of the property and no act or conduct on his part has been proved either within the period of limitation or even after that which might be regarded as an acknowledgment of the title of his father as co-owner. In our opinion the fact that the father who had allowed himself to be dispossessed by his son exhibited later on his animus to treat the property as the joint property of himself and his son cannot arrest the running of adverse possession in favour of the son. A mere mental act on the part of the person dispossessed unaccompanied by any change of possession cannot affect the continuity of adverse possession of the deseizor.10. The view taken by the High Court probably rests on the supposition that as it was the father, who acting on behalf of his son, asserted the exclusive title of the son to the property in denial of his own rights, it was open to the father again if he so chose to resale from that position and make a fresh declaration that the property was not the sole property of the son but belonged to him as well; and this subsequent act would annul the consequences of his previous act. This reasoning does not appear to us to be sound. The fathers acts in connection with the lease were entirely in his capably as guardian of his son. In the eye of the law they were this acts of the son, but the creation of the mortgage in 1935 was not the act of the father on behalf of his son; it was the personal act of the father himself qua co-proprietor of the son and the interest of one being adverse to the other such acts could not be held to be acts of the so performed through the father. It is extremely doubtful whether qua guardian the father could make such declaration at all. Any change of intention on the part of the guardian alone and the minor can react to it again only through the guardian.It may be proper in such cases for the father to renounce his guardianship before he could assert any right of his own against his ward; but it is not necessary for us to go into that question, as the mortgage in this case was made by the father not as guardian of the minor at all. It was no more than a declaration, by a person who dispossessed by his co-sharer, of his joint title to the property and as has been already pointed out, as it did not involve any change of possession it did not affect the adverse possession of the deseizor. In our opinion, therefore the view taken by the learned Judges of the High Court is not proper and cannot be