Wuntakal Yalpi Chenabasavana Gowd vs Rao Bahadur Mahabaleshwarappa and Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 89 of 1953

Decision Date: 15 April 1954

Coram: B.K. Mukherjea, Vivian Bose, Ghulam Hasan

In this matter the petitioner, Wuntakal Yalpi Chenabasavana Gowd, appealed against Rao Bahadur Y. Mahabaleshwarappa and another. The judgment was delivered on 15 April 1954 by the Supreme Court of India. The opinion was authored by Justice B.K. Mukherjea and the bench was composed of Justices B.K. Mukherjea, Vivian Bose and Ghulam Hasan. The case is reported in 1954 AIR 337 and 1955 SCR 131, and it is cited as R 1971 SC 1337 (17). The legal issue concerned the rights of co-sharers over joint property, specifically the effect of one co-sharer’s adverse possession against another, the circumstances under which the running of adverse possession may be interrupted, and the relevance of any subsequent assertion of joint title by the dispossessed co-sharer.

The headnote set out the principle that once a co-sharer’s possession becomes adverse to another because of ouster, the mere claim by the dispossessed co-sharer that the property remains held in joint ownership does not stop the period of adverse possession. The dispossessed co-sharer must actually break the exclusive possession of the adverse co-sharer, either by re-entering the land or by resuming possession in a manner that is feasible. The running of the period may also be affected if the co-sharer in exclusive possession acknowledges the title of the other co-sharer or voluntarily ceases exclusive possession. The headnote further clarified that a co-sharer who allowed himself to be ousted and later exhibited an intention to treat the land as jointly owned cannot halt the adverse possession against the ouster-inducing co-sharer. A mere mental intention, without a corresponding change in possession, does not disrupt the continuity of the adverse possessor’s claim.

The appeal before the Supreme Court was Civil Appeal No. 89 of 1953, taken from the judgment and decree dated 28 March 1949 of the Madras High Court in Appeal No. 654 of 1945. That appellate decision arose from the original decree of 23 July 1945 of the District Judge, Bellary, in Original Suit No. 17 of 1944. Counsel for the appellant was led by a senior advocate, assisted by a team of junior counsel. Counsel for respondent No. 1 was similarly represented by a senior advocate with supporting junior counsel. The matter was argued before the bench, and the judgment was pronounced by Justice Mukherjea.

The underlying dispute began with the plaintiff-respondent filing Original Suit No. 17 of 1944 in the Bellary District Court, seeking declaration of title to one-half share of the land described in the schedule to the plaint and recovery of possession following a partition with defendant No. 1, who is the present appellant. The trial judge dismissed the suit on 23 July 1945. The plaintiff-respondent appealed to the Madras High Court, where a Division Bench reversed the trial court’s order on 28 March 1949. The appellant now challenges that decision before the Supreme Court, relying on a certificate issued under Article 133 of the Constitution read with Sections 109 and 110 of the Code of Civil Procedure. The Supreme Court’s analysis focused on the principles governing adverse possession among co-sharers, the effect of ouster, and the requirements for interrupting the statutory period of possession.

The High Court, by its judgment dated 28 March 1949, allowed the appeal and set aside the order of the trial Court. The present appellant, designated as Defendant No 1, has now come before this Court on appeal, relying upon a certificate that was issued by the High Court pursuant to Article 133 of the Constitution read with Sections 109 and 110 of the Civil Procedure Code. In order to understand the matters that have been raised for consideration, the Court finds it necessary to present a concise summary of the material facts that underlie the dispute. The land that is the subject of the suit measures a little more than nine acres and was, as admitted by the parties, originally the property of a certain Basappa who died sometime before the year 1918. Upon his death Basappa left three daughters, namely Paramma, Pompamma and Hampamma. By way of a settlement with the immediate reversioner of Basappa, which is proved by two registered deeds identified as Exhibits P-2 and P-3 and which were executed in 1918 and 1919 respectively, the three sisters were each allotted approximately fifteen to sixteen acres of wetland in absolute ownership. Subsequently Hampamma relinquished her one-third share in the lands, and the Court notes that she does not feature further in the present proceedings. The remaining two-thirds share, consisting of nine acres and forty-nine cents of wet land, continued to be held by Paramma and Pompamma and this two-thirds share forms the subject-matter of the current suit.

Pompamma was married to a man named Nagana Gowd and she bore two sons, Siddalingana and Chenabasavana, before her death in 1923. The parties do not dispute that, on her death, her share in the lands passed to her two sons. After Pompamma’s demise Nagana remarried and took up residence with his second wife in his ancestral village, while the two infant sons remained at the village of Kampli under the care of Paramma, their maternal aunt, who brought them up as her own children. On 22 June 1923 Paramma executed a deed of gift in favour of her sister’s two sons, by which she transferred to them her own interest in the suit property. As a result of that gift the two sons of Pompamma acquired the entire nine acres and forty-nine cents of land that had been held jointly by their mother and by Paramma. Shortly after the deed of gift, Siddalingana, the elder of the two brothers, died in 1924. The plaintiff asserts that, under Hindu law of inheritance, Siddalingana’s one-half share in the disputed land devolved upon his father Nagana. It is, however, admitted that Paramma continued to possess the whole land on behalf of the younger son, Chenabasavana, who is the present Defendant No 1. On 25 August 1946 a lease deed, identified as Exhibit D-1 together with its counterpart Exhibit D-2, was executed between Paramma on one side and Nagana, acting as father and guardian of the infant Chenabasavana, on the other side. By that deed the infant, represented by his father, purported to grant a lease of the entire property.

Paramma was granted a lease of the entire disputed land for a term of twelve years at an annual rent of five hundred rupees. Evidence of two rent receipts that Nagana issued to Paramma, indicating the receipt of the rents due under the lease on behalf of his minor son Chenabasavana, was admitted and marked as Exhibits D-4 and D-4-1. The receipts were dated the year 1927 and the year 1932 respectively. In the year 1934 Nagana, acting in his capacity as guardian of his infant son, instituted a suit in the Munsif’s Court at Hospet to recover the sum of five hundred rupees as rent from Paramma on the basis of the above lease. The suit was decided ex parte and the decree that resulted was later set aside by a document titled Exhibit D-3, dated fourteen November 1934 and executed by Nagana. That document recorded that, because Paramma had borrowed a large sum of money to purchase lands for the minor, all future rentals that might become payable under the lease were to be deemed fully satisfied. Around the same period, on twenty-seven August 1935 Nagana executed a deed of mortgage by conditional sale concerning a half-share in the disputed land in favour of defendant No. 2, thereby securing an advance of three thousand rupees. The mortgage instrument recited that the half-share, which was retained as security, would devolve upon the mortgagor after the death of his son Siddalingana and that the mortgagor then possessed the same. Subsequently, on sixteen July 1936 Nagana conveyed the mortgaged property to the mortgagee by way of a deed of sale, identified as Exhibit P-6, for a consideration of three thousand rupees, which represented the principal amount due under the mortgage. It was admitted that the purchaser never succeeded in taking possession of the property at any time thereafter.

On two May 1944 the same purchaser transferred the property to the plaintiff by a conveyance recorded as Exhibit P-1. Thereafter, on eighteen July 1944 the plaintiff instituted the present suit against Chenabasavana, designated as defendant No. 1, seeking to recover a demarcated half-share of the disputed land after partition, relying on the purchase mentioned above. The plaintiff’s vendor was joined as defendant No. 2. Defendant No. 1 contested the suit and, in his written statement, raised a number of pleas. The principal defence advanced by defendant No. 1 was two-fold. Firstly, it was contended that the deed of gift executed by Paramma in favour of defendant No. 1 and his deceased brother Siddalingana created a joint tenancy with rights of survivorship; consequently, on Siddalingana’s death his interest passed to defendant No. 1 and not to his father. Secondly, and more substantially, it was argued that the plaintiff’s suit was barred because the plaintiff had never been in possession of the property, and that defendant No. 1 had acquired a good title to the half-share by virtue of adverse possession. Both of these points formed the core of the defence presented by defendant No. 1.

In the trial of the suit, the learned District Judge ruled against the plaintiff. The judge held that the deed of gift executed by Paramma did not confer any enforceable right on Nagana in his capacity as heir of his son. Moreover, any such rights that might have existed were expressly disclaimed by Nagana through the lease deed and by the receipts he issued to Paramma while acting as guardian of his minor son. The judge further concluded that the plaintiff’s suit was bound to fail because neither the plaintiff nor his predecessors had possessed the disputed property for the requisite twelve-year period from the date of the suit. Although the plaintiff was an alienee of a co-tenant, the judge rejected the ordinary presumption that one co-owner’s possession is deemed to be on behalf of the others, observing that Nagana had disclaimed his rights as a co-owner and had purported to act solely in the interest of his infant son Chenabasavana, whose exclusive title to the lands he expressly acknowledged. On the basis of these findings, the trial judge dismissed the plaintiff’s suit.

The plaintiff appealed the decision to the High Court of Madras, where a Division Bench consisting of Chief Justice Rajamannar and Justice Balakrishna Ayyar heard the matter. The learned judges departed from the trial court’s view. They held that the two sons of Pompamma acquired their shares in their mother’s property both by inheritance and by the deed of gift executed by Paramma, and that they held those shares as tenants in common rather than as joint tenants. Consequently, on the death of Siddalingana, his interest passed to his father Nagana instead of to his brother, the plaintiff-defendant identified as defendant No I. Regarding the second question, the High Court observed that although Nagana’s conduct in executing the lease deed manifested an intention to hold the property solely for the benefit of Chenabasavana, this intention ceased in 1935 when Nagana asserted his own claim as a co-sharer by executing a mortgage deed in favor of defendant No 2. In light of these considerations, the High Court concluded that defendant No I had not acquired title by adverse possession and that the plaintiff was entitled to succeed in his claim.

Defendant No I subsequently appealed to this Court. Counsel supporting the appeal did not press before us the contention that had been raised before the lower courts—that the two brothers were joint tenants and that, therefore, Siddalingana’s interest should have passed to his brother rather than to Nagana. Consequently, we must assume that, after Siddalingana’s death, Nagana became a co-owner of the disputed property together with his minor son Chenabasavana. The plaintiff claims his title derives from Nagana, which places him as a co-owner alongside defendant No I. Under the prevailing presumption of law, the possession of one co-owner is deemed to be on behalf of the other unless there is proof of an actual ouster. To defeat the plaintiff’s claim, it is therefore incumbent upon defendant No I to demonstrate that he held the property adversely to his co-owner for the statutory period. The peculiarity of the present case lies in the fact that the joint owners were the father and his infant son, the father himself being the guardian and the infant being legally incapable of acting except through that guardian. While the appellant concedes that the mere fact that the father did not partake in the profits of the property—leaving its management to Paramma on behalf of the infant—cannot, by itself, render the son’s possession adverse to the father, the acts and conduct of the father in connection with the lease deed remain relevant to the issue of adverse possession.

In this case, the Court observed that Nagana, by virtue of being a co-owner with defendant No I, had established a title as a co-sharer. Consequently, the law presumed that the possession of one co-owner was deemed to be on behalf of the other co-owner unless an actual ouster was proved. Thus, the plaintiff’s claim could be defeated only if defendant No I could prove that he held the property adversely to his co-owner throughout the statutory period. A particular feature of the present dispute was that the joint owners were the father, Nagana, and his infant son, who could act only through his guardian. The father also acted as the guardian, meaning the infant could not bring any legal action except through him. The appellant conceded that the father’s lack of participation in the profits, which Paramma managed for the infant, could not by itself make the son’s possession adverse to the father. However, the father’s actions in relation to the 1926 lease deed and the subsequent issuance of receipts indicated more than mere non-participation in profits. By granting the lease on the infant’s behalf, the father expressly asserted his son’s exclusive title to the property and, by implication, denied his own co-ownership rights. Under law, the possession of a lessee is deemed the possession of the lessor, so that from 1926 onward, Paramma’s possession as lessee was legally the infant’s possession alone, excluding Nagana. The father’s consent to this exclusion was considered irrelevant because the law permits adverse possession even with the true owner’s consent in certain circumstances. An illustration of this principle is found in cases where a legal owner transfers property without proper formalities, and the transferee, with the owner’s consent, occupies the land. Such possession becomes adverse to the original owner, and if it continues for the statutory period, it can generate a legal title in the possessor. The Court was not satisfied from the record that Nagana was unaware of his rights as heir of his deceased son when he executed the 1926 lease. Even assuming ignorance, the Court held that the infant’s exclusive possession, exercised with the father’s knowledge and consent, amounted to adverse possession against the father, as noted by the learned Judges of the High Court.

The High Court held that the minor’s possession could be treated as adverse beginning on the date the lease was executed, reasoning that the father, by signing the lease, manifested an intention to possess the common property solely on behalf of the minor and to exclude himself. The Court further concluded that this intention ceased the moment Nagana executed a mortgage deed in 1935, thereby asserting his own right as a joint owner of the disputed property and, according to the Court, terminating the son’s adverse possession at that point. The Supreme Court disagreed with that conclusion. It observed that once a co-sharer’s possession is deemed adverse to another co-sharer because of ouster, a mere claim by the dispossessed co-sharer of his joint title does not interrupt the operation of adverse possession. To break the continuity, the dispossessed co-sharer must actually disrupt the exclusive possession of his co-sharer either by physically re-entering the property or by resuming possession in a manner that is feasible under the circumstances. The running of the limitation period may also be halted if the co-sharer who enjoys exclusive possession acknowledges the title of his co-owner or abandons his exclusive possession. The Court found that none of these conditions were established by the evidence on record. Physical re-entry or resumption of possession was impossible because the property was occupied by a lessee. The lease in question had been executed in 1926, and the Court possessed two rent receipts dated 1927 and 1932, each showing that Nagana acknowledged receipt of rent on behalf of his infant son in accordance with the lease terms. In 1934 Nagana, acting in his capacity as guardian of the minor, instituted a rent suit; the subsequent decree and an accompanying receipt (Exhibit D-3) indicated that all rent for the entire twelve-year period had been paid to and accepted on behalf of Chenabasavana, and that Nagana had neither retained any portion of the rent nor asserted any claim to it. Throughout the lease term and up to the present, the minor remained in possession of the property, and no act or conduct by him—either during the statutory period or thereafter—has been proven that could be interpreted as an acknowledgment of his father’s co-ownership. In the Court’s view, the father’s later expression of an intention to treat the property as jointly held by himself and his son does not stop the running of adverse possession in the son’s favour. A mere mental intention by the dispossessed party, without any accompanying change in possession, cannot affect the continuity of the adverse possession established by the deseizor.

The Court observed that a mere mental intention, when it is not accompanied by any change in possession, cannot interrupt the continuity of adverse possession by the dispossessor. The High Court’s conclusion appeared to rest on the assumption that because the father, acting on his son’s behalf, had previously asserted the son’s exclusive title, the father could later withdraw that assertion. The Court further explained that such a subsequent declaration would, in the High Court’s view, nullify the consequences of the earlier declaration and affect the rights of the son. This line of reasoning was rejected as unsound because the father’s actions concerning the lease were performed solely in his capacity as the minor’s guardian. While the law treated those acts as the son’s, the creation of the mortgage in 1935 was not a guardian-by-proxy act but a personal act of the father as co-owner with his son. Because the father’s interest was adverse to the son’s, the mortgage could not be deemed an act performed through the father on the son’s behalf. It was highly doubtful that a guardian could make such a declaration at all, since any change of intention by the guardian could affect the minor only through the guardian himself. The Court noted that a guardian would first need to renounce his guardianship before asserting personal rights against his ward, although it was unnecessary to resolve that question here. In the present case, the mortgage was executed by the father not as guardian but as a dispossessed co-sharer asserting his own joint title. Because the mortgage did not involve any change in possession, it did not disturb the continuity of the son’s adverse possession. Consequently, the Court held that the High Court’s view was improper and therefore could not be sustained as a correct interpretation of the law. The appeal was accordingly allowed, the judgment and decree of the High Court were set aside, and the original decree of the District Judge was restored. The appellant was ordered to pay costs in all the courts where the litigation had taken place throughout.