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Hanumakka and ors. Vs. Narasamma and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 580 of 1954
Judge
Reported inAIR1962Kant3; AIR1962Mys3
ActsLimitation Act, 1908 - Sections 6 - Schedule - Articles 142 and 144
AppellantHanumakka and ors.
RespondentNarasamma and ors.
Appellant AdvocateK.S. Ramadas
Respondent AdvocateV. Krishna Murthy, Adv for ;V. S. Sadasivan, Adv.
Excerpt:
..... held, even if an application under order 39 rule 2a was considered and disposed of along with the suit, the order passed thereunder would be separate and an appeal would lie under order 43 rule 1 (r) of the c.p.c., further, if the order passed under order 39 rule 2a had not affected the decision of the case, the same cannot be a ground for objection in the memorandum of appeal. section 105 of the code of civil procedure expressly prohibits such recourse.-- order 39, rule 2a; disobedience to temporary injunction application for taking action for disobedience held, the purpose of rule 2a of order 39 is to prevent breach of the order of the court. orders given by the court are to be followed and they are meant to be followed. if any body tries to take law into his own hands and acts..........2 continued to have the lands cultivated for and on her behalf and that their possession of the suit property was permissive in character.the relation between the plaintiff and defendants 1 and 2 became strained recently and as a result of this estrangement of relationship, defendants 1 and 2 mortgaged the suit properties in the month of april 1950 and sold the equity of redemption two months thereafter i.e., in the month of june 1950. she alleges that these acts on the part of defendants 1 and 2 are unauthorised. the properties belong to her and defendants 1 and 2 were in management of them on her behalf. the properties do not belong to them and they have no right to alienate the same.(2) defendants 1,2, and 3 filed a joint written statement and denied the allegations made by the.....
Judgment:

(1) The appellants are the legal representatives of defendant 4. The fact leading to this appeal may shortly be stated as follows:

The properties in dispute belonged originally to one Narasimhappa, the father of the present plaintiff. Defendant 1 is the sister of the plaintiff's father; defendant 2 is the daughter of another sister of the plaintiff's father. Defendant 3 is the mortgagee from defendants 1 and 2, and defendant 4 claims to be the purchaser of the equity of redemption from defendants 1 and 2. The present suit has been instituted by the plaintiff in the Court of the Munsiff at Madhugiri, being original suit No. 98 of 1950-51. It is the case of the plaintiff that her father Narasimhappa died in the year 1951, that she was married during his life time when she was a minor, that defendants 1 and 2 who were elders were brought to her father's house before his death, that they were living with him and helping him in getting the family lands cultivated, that after her father's death, defendants 1 and 2 continued to have the lands cultivated for and on her behalf and that their possession of the suit property was permissive in character.

The relation between the plaintiff and defendants 1 and 2 became strained recently and as a result of this estrangement of relationship, defendants 1 and 2 mortgaged the suit properties in the month of April 1950 and sold the equity of redemption two months thereafter i.e., in the month of June 1950. She alleges that these acts on the part of defendants 1 and 2 are unauthorised. The properties belong to her and defendants 1 and 2 were in management of them on her behalf. The properties do not belong to them and they have no right to alienate the same.

(2) Defendants 1,2, and 3 filed a joint written statement and denied the allegations made by the plaintiff. Defendants 1 and 2 contended that the father of the plaintiff was indebted at the time of his death and that he wanted to discharge those debts. He asked them to discharge the debts and agreed to convey these properties to them. It is in pursuance of such an agreement that they are in possession of the suit properties. They therefore contended that, at the time of his death, Narasimhappa was not the owner of the suit properties. They further contended that the plaintiff's suit was barred by the law of limitation as it has not been filed within 12 years from the date of the death of Narasimhappa.

(3-4) Defendants 4 filed a separate written statement. His contentions were more or less on the same lines as those of defendants 1, 2, and 3.

(5) On these allegations, the trial Judge raised the necessary issues and held that the suit property belonged to the father of the plaintiff at the time of his death; in other words, he did not believe the agreement set up by defendants 1 and 2. He, however, held that the possession of defendants 1 and 2 was not permissive in character and that it was on their own behalf. Therefore the plaintiff's suit having been filed 12 years after the death of her father, was barred by the law of limitation. In the result, he dismissed the plaintiff's suit.

(6) On appeal, the learned appellate Judge did not agree with the finding recorded by the trial Court. He therefore allowed the appeal decreeing the plaintiff's suit. It is against this decree that the present second appeal has been preferred by the appellants.

(7) The point which requires determination in this appeal is what was the nature of possession of defendants 1 and 2 when they entered upon the properties after the death of the plaintiff's father. The trial Court negatived the plaintiff's claim that their possession was permissive. But the appellate Court took the view that their possession was for and on behalf of the plaintiff. Therefore the question is whether the finding of the appellate Court that the possession of defendants 1 and 2 was only for and on behalf of the plaintiff is correct.

(8) Mr. K. S. Ramdas who appears for the appellants has seriously challenged the correctness of the finding recorded by the appellate Court. He contends that its finding is contrary to the evidence in the case. He has invited my attention to the deposition of the plaintiff and contends that her evidence is clear enough to hold that after the death of her father it was she who was managing the properties and taking their income. He urges that if she went into possession of the properties immediately after the death of her father in the year 1931 and filed the suit in the year 1950, then she has got to show that she was in possession of the properties within 12 years next before suit. Obviously she was not in possession and the persons who were in possession of the suit properties were defendants 1 and 2 that is how the nature of possession of defendants 1 and 2 has got to be determined.

(9) Exhibit B shows that immediately after the death of Narasimhappa, the properties were entered in the name of the plaintiff. There can be no dispute that the plaintiff succeeds to the properties of her father after his death. Her name has therefore been entered in the Record of Rights as the owner and she, having married during her minority, was staying with her husband. I have already stated that defendants 1 and 2 set up an agreement and stated that the plaintiff's father ceased to be the owner of the properties before his death. That agreement has been negatived. Thus they have no claim to the property. Therefore the only thing that is in their favour is that they were in possession of the property.

The question therefore is, what is the position in law, when relation or a stranger enters into possession of a property belonging to a minor - whether he takes possession of the property for and on behalf of the minor or in his own right. The law presumes that whosoever enters into possession of a property belonging to a minor does so on behalf of the minor and such possession continues with him for and on behalf of that minor. No Court will ever countenance a person having entered into possession of a property on behalf of a minor setting up his own title thereto during such possession. He cannot do so until, after the minor attains majority, he does something to change that possession into a wrongful one.

(10) Mr. V. Krishna Murthy, the learned Counsel for the respondents has relied upon the decision reported in Vasudeo Atmaram Joshi v. Eknath Balkrishna, ILR 35 Bom 79. The relevant observation relied upon is at page 89. In that case also one Ambu entered into possession of the property which belonged to the minors. The suit was tried by the Subordinate Judge who held that Ameba's possession has been from the beginning wrongful and the plaintiff's plea that Ameba's possession and vahivat was on behalf of the plaintiffs who were then minors was negatived. The Subordinate Judge with appellate powers did not record any finding on that plea when the matter went up in appeal. On second Appeal, this is what the Court has stated as regards the position in law:

'The law is, as pointed out by Lord Hardwicke in Morgan v. Morgan, (1737) 1 Atk. 489 where any person, whether a father or a stranger, enters upon the estate of an infant and continues in possession this Court will consider such person entering as a guardian to that infant'.

The Court also made a reference to a leading case viz. Tavlor v. Horde, 2 Sm. L.C. (10th Edn.) pp. 644,645 and then held that Ambu's possession must, therefore, be deemed to have begun as that of a bailiff or agent for the minors and to have continued as such until, after the minors had arrived at the age of majority, she did something to convert it into a wrongful possession on her own account.

With respect, this, in my view, is the correct position in law. Applying that principle to the facts of this case, it must be held that when defendants 1 and 2 entered into possession of the property in the year 1931 they did so as bailiff or agent for the plaintiff and nothing has been done by them to the knowledge of the plaintiff which would convert that possession viz. that of bailiff or agent, into a wrongful possession on their own account.

(11) But the learned counsel has contended that the facts of this case do not warrant such a presumption. He has pointed out that the plaintiff herself has stated that she was managing the property personally and thus no case is pleaded that the possession of defendants 1 and 2 on behalf of the plaintiff. But when it is stated in the plaint categorically that the possession of defendants 1 and 2 was permissive, it only means that it was for and on behalf of the plaintiff. In my view, therefore, the finding recorded by the appellate Court that the possession of defendants 1 and 2 was on behalf of the plaintiff is correct and must be upheld.

It should be noted that it is only during the course of two months when the feelings between the parties became strained that they sought to transfer the property. From 1930 to 1950 nothing has been done by defendants 1 and 2 to prejudice the right of the plaintiff. The alienating on the part of defendants 1 and 2 are, therefore, not binding on the plaintiff and she is entitled to recover possession of the property from them.

(12) Accordingly, I confirm the decree passed by the lower appellate Court and dismiss this appeal with costs throughout.

(13) It is represented that the properties in dispute are in the possession of the Receiver who is the Tahsildar of Madhugiri Taluk. Since I have held in favour of the plaintiff, she would be entitled to get back the possession from the Receiver. The Receiver is, therefore, directed to hand over possession of the properties to the plaintiff with allegation the accumulation of profits, if there be any.

(14) H E/C.

(15) Appeal dismissed.


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