P. Lakshmi Reddy vs L. Lakshmi Reddy

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 178 of 1955

Decision Date: 5 December 1956

Coram: B. Jagannadhadas, Bhuvneshwar P. Sinha, Syed Jaffer Imam

The case titled P. Lakshmi Reddy versus L. Lakshmi Reddy was decided on 5 December 1956 by the Supreme Court of India. The judgment was authored by Justice B. Jagannadhadas and was delivered by a bench comprising Justices B. Jagannadhadas, Bhuvneshwar P. Sinha and Syed Jaffer Imam. The formal citation of the decision appears as 1957 AIR 314 and 1957 SCR 195. The operative provision discussed concerned adverse possession, specifically the possession of a co‑heir when such possession is adverse, the concept of ouster, and whether the possession of a receiver appointed pendente lite could be tacked onto the possession of a successor.

According to the factual backdrop, a person identified as V died as an infant in 1927, leaving an estate that was subject to a claim by H, who was an agnatic relative of V. H instituted a suit seeking recovery of the properties that belonged to V but were then held by third parties, asserting that he was the nearest male agnate entitled to the entire estate. While the suit was pending, a receiver was appointed by the court in February 1928 to take charge of the properties. The suit eventually resulted in a decree, and on 20 January 1930 H obtained possession of the properties from the receiver. H died in 1936, after which his nephew, who is the appellant in the present proceedings, succeeded to possession as H’s heir. On 23 October 1941 the respondent, L. Lakshmi Reddy, filed a suit seeking recovery of a one‑third share of the properties from the appellant. The respondent contended that he and his brother were agnatic relatives of V of the same degree as H, that all three were equal co‑heirs of V, and that H had obtained the decree and taken possession on behalf of all the co‑heirs. The appellant opposed the suit, arguing that the respondent had lost his title by virtue of the adverse possession of H and his successor. The appellant further submitted that, for the purpose of establishing the loss of title, not only the period from 20 January 1930 to 23 October 1941 should be counted, but also the earlier period during which the receiver held the properties while H’s suit was pending.

The Court examined the submissions and found that the respondent’s assertion that H had obtained the decree and taken possession from the receiver on behalf of the other co‑heirs was inaccurate. The Court held that the respondent had not lost his right by adverse possession. Even assuming, for the sake of argument, that H’s possession from 20 January 1930 was adverse and amounted to the ouster of the other co‑heirs, such possession was not of sufficient duration to extinguish the respondent’s title. Moreover, the period during which the receiver possessed the properties could not be added to H’s period of possession. The Court explained that the receiver’s possession could not be tacked onto H’s possession because the receiver is a court officer, not an agent of any party to the suit, and although the law eventually treats the receiver’s possession as that of the successful party upon termination of the suit, the receiver lacks the animus to claim sole and exclusive title necessary to commence adverse possession. The Court also noted that, while the receiver was in possession, the respondent could not have sued H, and consequently the limitation period could not have run against the respondent.

The Court observed that, under law, the possession of a single co‑heir is treated as possession of all co‑heirs. Consequently, for an adverse possession claim to succeed, it must be shown that the co‑heir who is not in possession has been ousted. Moreover, the Court required evidence that the remaining co‑heir has openly asserted a hostile title, exercised exclusive possession and enjoyment of the property, and that the ousted co‑heir was aware of this conduct, thereby establishing an ouster. The appeal before the Court was numbered Civil Appeal No. 178 of 1955 and was entertained on special leave. The appeal challenged a decree dated 3 December 1951 issued by the High Court of Judicature at Madras in Second Appeal No. 766 of 1947. That decree itself was passed against a decree dated 19 November 1946 of the District Court of Anantapur in Appeal No. 130 of 1945, which arose from a decree dated 31 January 1945 of the Court of Subordinate Judge, Anantapur, in Original Suit No. 10 of 1944. Counsel for the appellant appeared on behalf of the appellant, while counsel for the respondent appeared on behalf of the respondent. The judgment was delivered on 5 December 1956 by Justice Jagannadhadas.

The plaintiff in the original suit sought a declaration of his title to a one‑third share in the disputed properties and also asked for partition and recovery of that share. The trial court dismissed the suit on the ground that it was barred by limitation and by the doctrine of adverse possession. On appeal, the District Judge set aside that dismissal and granted a decree in favour of the plaintiff. The High Court then affirmed the District Judge’s decree on a second appeal. The present appeal before the Supreme Court is filed by special leave on behalf of the first defendant, who is also the appellant. The central issue for determination is whether the plaintiff has lost his one‑third share in the property by reason of adverse possession. The properties in dispute originally belonged to Venkata Reddy, who died an infant on 25 August 1927. At the time of his death, the lands were in the possession of the maternal uncles of Venkata Reddy’s father. An agnatic relative, Hanimi Reddy, instituted Suit O.S. No. 26 of 1927 to recover the lands from the said maternal uncles and obtained a decree on 15 March 1929. A Receiver was appointed in February 1928 while the suit was pending, and the decree directed the Receiver to deliver possession to the successful plaintiff in that suit. Accordingly, Hanimi Reddy took actual possession of the properties on 20 January 1930 and retained possession until his death on 16 August 1936. The first defendant in the present proceeding, who is the appellant, is the son of Hanimi Reddy’s brother and succeeded to possession of all the properties as the heir of Hanimi Reddy.

The respondent in this proceeding was the plaintiff who instituted the present suit alleging that he and his brother, the second defendant, were agnatic relatives of the deceased Venkata Reddy, of the same degree as Hanimi Reddy, and therefore equal co‑heirs entitled to succeed to Venkata Reddy’s property upon his death. It was further pleaded that although Hanimi Reddy had earlier filed a suit and obtained possession of the properties, he had done so as one of the co‑heirs with the consent of the plaintiff and his brother, and that the parties had then held the lands jointly as tenants‑in‑common. Nevertheless, the first defendant, who succeeded to possession on Hanimi Reddy’s death, allegedly repudiated the title of the plaintiff and his brother around the year 1940. The suit was originally presented before the District Munsif’s Court on 23 October 1941, but the court ordered its return for presentation to the District Judge’s Court on 30 November 1942. Consequently the plaintiff re‑filed the petition in the District Judge’s Court on 2 December 1942, insisting that the original filing date should control for limitation purposes. One of the issues raised was whether the suit was barred by limitation on the ground that it must be treated as instituted on 2 December 1942 rather than on 23 October 1941. The trial court accepted the limitation plea, concluded that the action was time‑barred, and consequently dismissed the suit. Upon appeal, the District Judge held that the plaintiff was entitled to the benefit of section 14 of the Limitation Act, that the suit should be deemed instituted on 23 October 1941, and accordingly decreed in favour of the plaintiff. The High Court, however, did not finally resolve the question of the applicability of section 14, but it found that Hanimi Reddy’s possession was not adverse to the plaintiff and therefore affirmed the decree. The present appeal does not raise the issue of the non‑availability of section 14, and the finding of the District Judge that the plaint was validly presented on 23 October 1941 therefore remains the operative date for determining limitation. That date is more than fourteen years after the succession opened on 25 August 1927, but it is less than twelve years after Hanimi Reddy obtained actual possession on 20 January 1930. The learned Attorney‑General for the first defendant argued that Hanimi Reddy’s possession was adverse, that the plaintiff and the second defendant lost their rights by that adverse possession, and that the period of adverse possession should be counted from 20 January 1930 to 23 October 1941 as well as the earlier period when the Receiver held the property during the pendency of Hanimi Reddy’s suit.

The Court considered the argument that, for the purpose of determining adverse possession, not only the interval from twenty‑January‑1930 to twenty‑three‑October‑1941 should be tallied, but also the earlier period during which a Receiver held the suit properties while Hanimi Reddy’s suit was pending. The validity of these two components of the contention required examination. Accordingly, the Court first addressed whether the possession exercised by Hanimi Reddy from twenty‑January‑1930 until his death in 1936 could be characterised as adverse to his co‑heirs. The relevant facts were set out as follows. When Venkata Reddy died, his estate was under the custody of the two maternal uncles of his father. Hanimi Reddy subsequently instituted a suit on the ground that he was the nearest living agnatic relation of the minor Venkata Reddy and therefore the rightful heir to the entire estate, both movable and immovable, as enumerated in the schedules of his plaint. He annexed a genealogical chart to his plaint which traced only two lines of descent – his own and that of Venkata Reddy – and omitted the line to which the plaintiff and the second defendant belonged, although they were also descended from the same common ancestor. In the present suit, the first defendant did not acknowledge the relationship of the plaintiff and the second defendant in his written statement and challenged the claim that the father of the plaintiff and the second defendant descended from the common ancestor either by birth or by adoption, as asserted in the genealogical table attached to the present plaint. This omission may have motivated Hanimi Reddy to disregard the plaintiff and the second defendant in his own suit. Nevertheless, at trial it was admitted that the plaintiff and the second defendant were agnatic relations of Venkata Reddy of the same degree as Hanimi Reddy. The defendants in the earlier suit, who were then in possession, asserted that they retained possession on behalf of an alleged “illatom” son‑in‑law of Venkata Reddy’s father, who was a son of the second defendant. In the regional custom of Andhra, an “illatom” son‑in‑law is a boy incorporated into the family to enable a daughter’s marriage and is customarily regarded as an heir where there is no natural‑born son. This claim was ultimately rejected, and the suit was decreed in favour of the plaintiff. During the pendency of that suit, a Receiver was appointed in February 1928 and presumably assumed possession, although the exact date of his taking possession was not recorded. The decree pronounced on fifteen‑March‑1929 stated: “This Court doth order and decree that plaintiff do recover possession of immovable property and movables in the …” The evidence of the first defendant, identified as D.W. I, corroborated that the properties came under the actual possession of Hanimi Reddy on twenty‑January‑1930. The plaintiff, examined as P.W. 1, sought to substantiate his claim that he, the second defendant, and Hanimi Reddy were jointly enjoying the properties as tenants in common, recounting that both he and Hanimi Reddy had filed suit No 26 of 1927 in the District Court, Anantapur, which was later renumbered as O.S. No 24 of 1928 in the Sub‑Court, Anantapur, concerning the estate of the deceased Venkata Reddy. He explained that, as the eldest family member, Hanimi Reddy conducted the suit, that the suit concluded in their favour, and that Hanimi Reddy took possession following the decree in 1930, after which both he and the plaintiff continued in joint possession and enjoyment of the property.

It was recorded that the decree issued in the earlier suit commanded that the plaintiff recover possession of the immovable property and movables, and that the possession of the Receiver was to be restored. Evidence presented by the first defendant, who gave evidence as the deponent‑witness, indicated that the properties had been taken into possession by Hanimi Reddy on 20 January 1930. The plaintiff, who examined himself as the first plaintiff‑witness, sought to prove the allegations set out in his plaint that he, the second defendant and Hanimi Reddy had been jointly occupying the properties as tenants in common. In his testimony he stated that he and Hanimi Reddy, who was the uncle of the defendant, had filed Original Suit No. 26 of 1927 in the District Court of Anantapur, which was later treated as Original Suit No. 24 of 1928 in the Sub‑Court of Anantapur, concerning the lands of the late Venkata Reddy. He explained that because Hanimi Reddy was the senior family member, he had conducted the suit, and the plaintiff had accompanied him to court. He affirmed that the suit concluded in their favor, that Hanimi Reddy obtained possession of the decree‑specified lands in 1930, and that thereafter both he and Hanimi Reddy had been in joint possession and enjoyment of the same. During cross‑examination the plaintiff disclosed that he had offered to be impleaded as a party in Original Suit No. 24 of 1928, but Hanimi Reddy had declined, assuring him that his share would be given to him. The plaintiff admitted that he never filed any application to be impleaded as a defendant and that he possessed no written evidence that Hanimi Reddy had assigned to him any produce from the suit lands. The first defendant also produced the plaint, judgment and decree of Hanimi Reddy’s suit, together with pattas, receipt books and lease deeds that Hanimi Reddy had obtained during his possession. Relying on this evidence, the trial court observed that the documents submitted by the first defendant fully demonstrated that Hanimi Reddy had instituted the suit in his individual capacity and had secured possession thereafter. The court found no indication that either the plaintiff or the second defendant had acquired any interest in those proceedings, and it noted the absence of any proof that Hanimi Reddy had shared any produce of the suit lands with the plaintiff or the second defendant. Consequently, the court concluded that the plaintiff and the second defendant had been excluded from the profits of the property since 1930. On appeal, the learned District Judge, when the matter was remanded for a determination by the High Court, stated unequivocally that the plaintiff had no involvement in the institution or conduct of Original Suit No. 24 of 1928 before the Sub‑Court of Anantapur, nor had he ever jointly enjoyed the suit properties with the late D. Hanimi Reddy or the first defendant. The appellate judge did not render a specific finding on whether the plaintiff’s and the second defendant’s lack of participation in the profits amounted to a deliberate exclusion. Nonetheless, the judge acknowledged that certain admitted and material facts emerged from the evidence, which were of significance to the issues before the court.

The plaint filed in the earlier 1927 suit demonstrated unequivocally that every party to the suit, including Hanimi Reddy, were residents of the village of Mamuduru. The schedules annexed to that plaint further established that all of the suit properties were located within the same village. In addition, the plaintiff admitted a close family connection with Hanimi Reddy, stating that his brother‑in‑law, who was also Hanimi Reddy’s nephew, was living with Hanimi Reddy, and that his own father‑in‑law and the father‑in‑law of Defendant No. 1 were one and the same person. These facts raise the legal issue of whether Hanimi Reddy’s possession of the suit properties from 20 January 1930 onward can be characterized as adverse possession in relation to the plaintiff and the second defendant.

The classical doctrine of adverse possession requires that the possession be “nec vi, nec clam, nec precario” – that is, without force, without secrecy, and without permission. (See Secretary of State for India v. Debendra Lal Khan (1)). Moreover, the possession must be sufficient in continuity, openness, and extent to demonstrate that it is hostile to the competing claimant. (See Radhamoni Debi v. Collector of Khulna (2)). However, established jurisprudence clarifies that, where co‑heirs are concerned, it is insufficient merely to show that one heir enjoys exclusive possession and the profits of the property. The claimant must also demonstrate that the non‑possessing co‑heir has been ousted by the possessing co‑heir who alleges adverse possession. The law treats the possession of a single co‑heir as the possession of all co‑heirs, presuming a joint title when one co‑heir is found in possession. Consequently, a co‑heir cannot make his possession adverse to another co‑heir simply by harbouring a secret, hostile intention that infringes the other’s title. (See Corea v. Appuhamy (3)). A settled rule therefore requires clear evidence of an open assertion of hostile title, coupled with exclusive possession and enjoyment by one co‑heir, to the knowledge of the other, in order to constitute ouster. This requirement does not demand an explicit demand and denial between the parties; rather, it may be inferred from the notorious, exclusive possession maintained over a considerable period, especially when the excluded heir takes no steps to protect his title.

Reference was made to the authorities (5) 3 P. and D. 539 and 52 R.R. 566, which discussed ouster “if other circumstances concur”, and the court also cited Govindrao v. Rajabai. It was reiterated that the legal burden of proving ouster rested on the party who alleged that an adverse possessor had displaced the lawful title of a co‑heir. In the facts of the present matter there was no dispute that after the death of Venkata Reddy, Hanimi Reddy obtained sole possession of the suit properties by filing an action against third parties in which he asserted that he was the sole nearest male agnate entitled to all the properties. Once possession was obtained, Hanimi Reddy remained in continuous and undisputed occupation of the properties until his death, and he enjoyed all the profits arising therefrom. In an ordinary situation such possession and enjoyment would be attributed to his lawful title because he was himself one of the co‑heirs. However, the plaint filed in the 1927 suit and the decree that followed made clear that Hanimi Reddy had instituted the suit and secured possession on the basis of a claim of exclusive title, thereby ignoring the rights of his co‑heirs. It was contended that the knowledge of such an assertion of exclusive title, as pleaded in the plaint, could not be imputed to co‑heirs who were not parties to that suit. The evidence, however, showed that both the plaintiff and the second defendant must have been fully aware, at the relevant time, of the nature of Hanimi Reddy’s claim in the earlier litigation and the basis on which he had obtained possession. That awareness was implicit in the case they presented in the present plaint, wherein they alleged that the earlier suit had been brought by Hanimi Reddy with their consent and on their behalf. The earlier suit had indeed resulted in a finding against them, a finding that was res judicata between the parties. Nevertheless, there was no reason to exclude the admission of knowledge regarding the character of the earlier litigation and the contents of the plaint from being attributed, at least to the present plaintiff. It was reasonable to conclude that the plaintiff, unable to explain his inaction for more than fourteen years after Venkata Reddy’s death, was compelled to advance a false narrative that the prior suit by Hanimi Reddy had been filed with his consent and on his behalf. The plaintiff’s silence and failure to assert his right during Hanimi Reddy’s lifetime, followed by his initiation of the present suit only after Hanimi Reddy’s death, made it difficult to determine whether Hanimi Reddy’s complete disregard for the plaintiff and the second defendant as co‑heirs constituted a denial of their relationship and, consequently, of their title as co‑heirs. Even in the written statement filed much later, the plaintiff continued to deny the existence of a co‑heir relationship, a fact that further suggested his awareness of Hanimi Reddy’s exclusion of them from his claim.

The Court noted that the denial of the first defendant’s relationship could explain why Hanimi Reddy ignored both the plaintiff and the second defendant and why those parties remained silent. The High Court had concluded that there was no evidence showing that Hanimi Reddy was aware that the plaintiff and the second defendant possessed any rights in the properties as co‑heirs. The Court held that this conclusion conflicted with the plaintiff’s case, which implied a mutual knowledge of each other's rights by alleging that Hanimi Reddy had instituted his suit with the plaintiff’s consent. Considering that both the plaintiff and Hanimi Reddy lived in the same village and that the plaintiff had offered a false explanation for his long inaction, the Court observed that a fact‑finding tribunal could logically infer an ouster. Nonetheless, while hearing the appeal on special leave, the Court decided that it was not appropriate to resolve the matter on that basis. Consequently, the Court turned to the next issue presented for determination, namely whether the possession of the Receiver could be tacked onto the possession of Hanimi Reddy, assuming that Hanimi Reddy’s possession from January 209 1940 onward was adverse to the plaintiff. The Attorney‑General submitted that the Receiver’s prior possession of the suit properties, pending the suit, should be treated as possession on behalf of Hanimi Reddy, with the intention of claiming the sole and exclusive title asserted in his plaint. In support of this submission, the Attorney‑General relied on the established legal principle that when a Court takes possession of property through a Receiver, such possession is regarded as that of all parties to the action according to their respective titles, referring to Kerr on Receivers, 12th Ed., p. 153. The Attorney‑General further cited Woodroffe on the Law relating to Receivers (4th Ed.) at p. 63, which states: “The Receiver being the officer of the Court from which he derives his appointment, his possession is exclusively the possession of the Court, the property being regarded as in the custody of the law, in gremio legis, for the benefit of whoever may be ultimately determined to be entitled thereto.” The Court examined whether this doctrine allowed a person who had not previously possessed the suit properties to argue that the Receiver’s possession should be deemed adverse to the true owner on his behalf merely because that person later obtained a decree for possession against a defendant who had been in possession without title. The Court emphasized that a Receiver is an officer of the Court and not a specific agent of any litigant, although his possession is ultimately treated as the possession of the successful party upon the suit’s termination. To treat the Receiver as the plaintiff’s agent for the purpose of initiating adverse possession would amount to attributing misconduct to the Court and its officers. Accordingly, the Court concluded that the principle that the Receiver’s possession stands for the successful party could not be extended to permit a person initially out of possession to tack the Receiver’s possession onto his subsequent adverse possession.

In the present discussion the Court observed that the doctrine of a Receiver’s possession cannot be used to allow a person who initially had no possession of the property to claim that the Receiver’s period of possession may be tacked onto his later adverse possession. The Court noted that a different result might arise in a situation where the defendant in the original suit was already in adverse possession against the true owner, and where the Receiver subsequently took possession from that defendant and later restored possession to the defendant after the suit ended successfully in the defendant’s favour. In such a scenario the Court explained that the issue would be whether the Receiver’s interim possession should be characterised as a discontinuance, an abandonment, or an interruption of the adverse possession that was already in progress. The Court expressly stated that it was not called upon to decide that question in the present case and consequently expressed no opinion on it.

The Court then turned to the principle governing the running of limitation periods. It reiterated the well‑settled rule that a limitation period cannot begin to run against a person unless, at the relevant time, that person is in a legal position to enforce his title by filing an action. To illustrate this rule the Court quoted from Mitra’s Tagore Law Lectures on Limitation and Prescription (6th Ed.) Vol. 1, Lecture VI, page 159, which in turn cited Angell on Limitation. The quoted passage defined an “adverse holding” as an actual and exclusive appropriation of land that is started and continued under a claim of right, either an openly declared claim or a constructive claim that arises from the circumstances of the appropriation, and that is directed against the person who was in possession. The passage further explained that the intention to claim the land adversely, together with conduct that invades the rights of the opposite party and gives rise to a cause of action, constitutes adverse possession. Consistent with this definition, the Court held that the commencement of adverse possession in favour of any person requires that the person be in actual possession of the land at the time, with a notorious and hostile claim of exclusive title, so that the true owner would have a right to bring an action against him. Accordingly, the Court observed that irrespective of the claimant’s intention (animus) to acquire title, adverse possession cannot begin until the claimant actually obtains possession with the necessary animus. The Court supported this view by referring to the leading case of Agency Company v. Short, where the Privy Council observed that abandonment of possession results in a discontinuance of adverse possession because “there is no one against whom he (the rightful owner) can bring his action.” The Court further cited Dwijendra Narain Roy v. Joges Chandra De, where Mookerjee J. explained that the running of time is tied to the accrual of a cause of action, and that a cause of action accrues only when there exists a person who can sue and another person who can be sued. This principle underlies the requirement that actual possession, capable of giving rise to a cause of action, is a prerequisite for the commencement of adverse possession.

In this case the Court explained that a cause of action arises only when the aggrieved party acquires the right to approach the appropriate tribunal for relief. The Court noted that a limitation statute does not begin to run against a claim for which no right of action yet exists, nor does it run against a right that lacks a corresponding remedy or for which a judgment cannot be obtained. Consequently, the proper test for determining the moment at which a cause of action has accrued is to identify the time when the plaintiff could first have filed his suit and achieved a successful result. Applying this principle, the Court observed that the co‑heirs who were out of possession – namely the plaintiff and the second defendant – were under no obligation to institute a suit for possession against Hanimi Reddy until such time as Hanimi Reddy actually obtained possession of the property. While the Receiver remained in possession, the co‑heirs could not sue the Receiver to vindicate their title, and they were likewise not required to file a hopeless suit for possession either against Hanimi Reddy or against the other defendants in the suit filed by Hanimi Reddy, because none of those persons were in possession at that stage. The Court therefore concluded that any adverse possession on the part of Hanimi Reddy, if it existed at all, could not have commenced during the period when the Receiver held the land. Assuming, for argument’s sake, that Hanimi Reddy’s possession beginning on 20 January 1930 was indeed adverse and amounted to the ouster of the co‑heirs, the Court held that such adverse possession was not sufficient, by the filing date of 23 October 1941, to extinguish the plaintiff’s title. Accordingly, the plaintiff was entitled to the decree that he had obtained, and the Court affirmed that the decision of the High Court was correct, albeit on different grounds. The Court also recorded that the respondents had raised an objection that the issue of tacking the Receiver’s possession had not been raised in the lower courts and should not be considered at this stage; however, the Court found it unnecessary to address this objection. In the final analysis, the Court dismissed the appeal, ordered the respondents to bear costs, and entered a final order dismissing the appeal.