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Rachappa Totappa Vs. Madivalawa Rachappa - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 211 of 1942
Judge
Reported inAIR1945Bom63; (1944)46BOMLR683
AppellantRachappa Totappa
RespondentMadivalawa Rachappa
DispositionAppeal dismissed
Excerpt:
indian limitation act (ix of 1908), sections 6, 28-adverse possession- possession by stranger of minor's property in assertion of hostile title-whether such possession to be deemed on behalf of minor-subsequent birth of co-parcener whether created new starting point for limitation.;where a person entering into possession of property belonging to a minor is under no duty to the minor, and enters into possession for his own benefit and in assertion of his title hostile to that of the minor, limitation begins to run from the date when he takes possession and his adverse possession against the minor commences from the date on which he takes possession. the minor, however, is entitled to file a suit within three years from the date of his attaining majority.;fakirgowda v. dyamawa (1932) i.l.r...........defendant no. 3 made a gift of the property in suit to rachap'pa's bride basava by a registered deed of gift dated august 17, 1916. basava was then a minor and on her behalf her father took possession of the property as her guardian. basava died in 1922 and the property devolved upon her husband rachappa as her heir. rachappa is dead and the property is now in the possession of his widow defendant no. 1 and his son defendant no. 2. when defendant no. 3 passed the deed of gift in favour of basava in 1916, plaintiff no. 1 had been born. plaintiff no. 2 was born in 1919, three years after the deed of gift was executed. the plaintiffs claim that as defendant no. 3 and plaintiff no. 1 were members of a joint hindu family, defendant no. 3 had no power to make a gift of any portion of the.....
Judgment:

Lokur, J.

1. This appeal arises out of a suit filed by the plaintiffs for a partition and possession of their two-sixth share in a land and a house which had been kept undivided when they separated from their father and step-brothers in the year 1931-32. Defendant No. 3 is the father of the plaintiffs and defendants Nos. 4 to 6, and defendant No. 7 is the wife of defendant No. 3. Defendant No. 3 was adopted into a different family and possessed considerable ancestral property including the property in suit. He had a brother named Rachappa in his natural family, and prior to Rachappa's marriage, defendant No. 3 made a gift of the property in suit to Rachap'pa's bride Basava by a registered deed of gift dated August 17, 1916. Basava was then a minor and on her behalf her father took possession of the property as her guardian. Basava died in 1922 and the property devolved upon her husband Rachappa as her heir. Rachappa is dead and the property is now in the possession of his widow defendant No. 1 and his son defendant No. 2. When defendant No. 3 passed the deed of gift in favour of Basava in 1916, plaintiff No. 1 had been born. Plaintiff No. 2 was born in 1919, three years after the deed of gift was executed. The plaintiffs claim that as defendant No. 3 and plaintiff No. 1 were members of a joint Hindu family, defendant No. 3 had no power to make a gift of any portion of the ancestral property. The deed of gift passed by him in favour of Basava being invalid, both the plaintiffs claim their share in it by metes and bounds. Their claim was resisted by defendants Nos. 1 and 2 who contended that the property belonged to defendant No. 3, that defendant No. 3 had a right to dispose of it by gift, that the gift was binding on the plaintiffs and that in any event Basava and after her death Rachappa had become owners of the property by their adverse possession for more than twelve years. The trial Court held that the property in suit was the ancestral property in the hands, of defendant No. 3, that he had no right to make a gift of it in favour of deceased Basava, that the gift was not binding on the plaintiffs and that the plaintiffs' claim was in time, The plaintiffs were, therefore, given a decree for partition and possession of their two-sixth share in the property in suit. Defendants Nos. 1 and 2 appealed against that decree and the learned District Judge accepted the findings of the trial Court that the property in suit was ancestral property in the hands of defendant No. 3, that plaintiff No. 1 was born before the deed of gift was executed by him andthat, therefore, the gift was invalid. But he found that Basava took possession of the property as its owner under the invalid deed of gift in 1916, that the possession continued with her husband after her death, that the possession was adverse as against its rightful owners and that it had ripened into a title after the expiry of twelve years. Plaintiff No. 1 was born on April 4, 1915, and attained majority in April, 1933. He should have filed the suit within three years after attaining majority, but this suit was filed on August 2, 1938. It was urged that plaintiff No. 2 had attained majority less than three years before the institution of the suit, but the learned District Judge held that he did not get a fresh cause of action, and as adverse possession had commenced before his birth, he could not get any benefitfrom his minority. The suit was, therefore, held time barred and was dismissed with costs.

2. It is not now disputed that the property in suit was the ancestral property of defendant No. 3 and at the date of the deed of gift it belonged jointly to him and! his son plaintiff No. 1 as members of a joint Hindu family. It follows, therefore, that defendant No. 3 had no power to make a gift of any portion of the ancestral property, and the deed of gift which he executed in favour of Basava in 1916 was void. But the learned appellate Judge has held that Basava took actual possession of the property under the void deed of gift and remained in possession as its owner. That is a finding of fact which is supported by good evidence and is binding in second appeal. There is no doubt that the possession of Basava was wrongful as the deed of gift under which she obtained possession was invalid in its inception. She continued in possession till her death and that possession devolved upon her husband Rachappa after her death. This continuous possession for more than twelve years conferred upon them a title to the property under Section 28 of the Indian Limitation Act, 1908, But Mr. Moropanth argues that Rachappa was the plaintiffs' uncle and his possession must be deemed to have been on behalf of the plaintiffs on the principle laid down in Morgan v. Morgan (1737) 1 Atk. 489. In that case Lord Hardwicke observed (p. 489) :

Where any person, whether a father or a stranger, enters upon the estate of an infant and continues the possession, this Court will consider such person entering as a guardian to the infant.

3. This broad proposition of law is not applicable in all cases:.; Various later English cases were considered in Seetaramaraju v. Subbaraju I.L.R. (1921) Mad. 361 and it was observed (p. 368):-

We do not think it can be stated as a general proposition that there could be no adverse possession of property which belongs tjo a lunatic or minor during the continuance of the lunacy or minority of the owner. The question has in each case to be decided with reference to the anterior relationship between the person taking possession and the minor or lunatic, and to whether any circumstances exist which would entitle the Court to hold that the person who entered into possession did so under circumstances which would in law make him only an agent or bailiff of the minor or lunatic.

4. Both these cases and the case in Vusudeo Atmaratn Joshi v. Eknath Balkrishna Thite I.L.R. (1910) 35 Bom. 79 on which also Mr. Moropanth has relied, were considered in Fakirgowda v. Dyamawa I.L.R. (1932) 57 Bom 488 and it was laid down (at p. 500) that a distinction must be drawn between the possession of a father as the guardian of the minors and the possession of a stranger between whom and the minor there was no antecedent relationship. In the present case when Basava took possession of the property in suit under the invalid deed of gift passed by defendant No. 3 in 1916 there was no relationship between her and plaintiff No. 1, Plaintiff No. 2 was not. even born at that time. It cannot by any stretch of imagination be said that Basava took possession as a trustee or guardian of the minor plaintiff No. 1. On the other hand her possession was hostile to the minor as she claimed to have acquired a title to the property on the strength of the deed of gift passed by defendant No. 3. In cases where it is clear that the person entering into possession was under no duty to the minor, and entered into possession for her own benefit and in assertion of her title hostile to, that of the minor, limitation would begin to run from the date when she took possession and her adverse possession against the minor commenced from the date on which she took possession, though the minor would be entitled to file a suit within three years from the date of his attaining majority.

5. Mr. Moropanth says that Rachappa's possession became adverse against the minor only, in 1931 when he acted as his guardian for the purpose of effecting a partition between the plaintiffs and their father and step-brothers. But before 1931 the adverse possession which had commenced in 1916 had already ripened into a title andRachappa was then in possession of the property as its full owner under Section 28 of the Indian Limitation Act. It cannot, therefore, be said that at the time of the partition of 1931-32 he was acting as the guardian of the plaintiffs in respect of the property in suit. He was then concerned with the partition of the property which then belonged to the joint family of the plaintiffs, his father and his step-brothers. But the property in suit had ceased to be such joint family property at that time. I do not, therefore, see how the plaintiffs can be said to have a fresh cause of action when the partition was effected by Rachappa as their guardian.

6. It is true that plaintiff No. 2 was not born at the date of the deed of gift, so that it cannot be said that the adverse possession commenced against him when Basava took possession of the property in suit. But he having been born after the property had left the family and the cause of action to recover possession had accrued to his father and his brother, he could not have a fresh cause of action on his birth. As held by the Privy Council in Ranodip Singh v. Parmeshwar Pershad (1924) L.R. 52 IndAp 69 subsequent birth of a coparcener does not create a fresh cause of action or a new starting point from which limitation should be reckoned. By the express terms of Section 6 of the Indian Limitation Act the extended period of three years after majority can be claimed Only by a person entitled to institute a suit at the time from which the period of limitation is to be reckoned. A person who was not in existence at the time does not come within that description and, therefore, he is not entitled to the three years' extension. Plaintiff No. 2 cannot, therefore, contend that the suit is in time though it was filed within three years after he attained majority. Defendants Nos. 1 and 2 having acquired a full title to the property and the suit not having been filed within three years after plaintiff No. 1 became a major, the plaintiffs' claim was rightly thrown out. The appeal is, therefore, dismissed with costs.


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