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Ahmad HussaIn Vs. Tasadduq HusaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1028 of 1954
Judge
Reported inAIR1966All136
ActsLimitation Act, 1963 - Schedule - Articles 64 and 65
AppellantAhmad Hussain
RespondentTasadduq HusaIn and ors.
Appellant AdvocateD.P. Agarwal, Adv.
Respondent AdvocateN. Kumar, Adv.
DispositionAppeal dismissed
Excerpt:
.....act, 1963 - usufructuary mortgage of entire joint property from one of the co-owners - claim of adverse possession as against other co-owners of the property - no partition of property - held, mortgager could redeem the whole property as the possession of the mortgagee was in eye of law on behalf of all co-owners. - - 4. the court below held that the appellant had failed to prove that he had purchased the equity of redemption in respect of house c-1 from ali bux and that the evidence adduced by him on this point was inconsistent and contradictory. from the moment of his acquiring a share in the common property he becomes a co-owner and has the same legal title as his predecessor to enjoy the whole. the mere fact that a transferee is in possession would not put them on inquiry, for..........pleaded by the appellant the court below came to the conclusion that he could not prescribe a title adverse to the co-owner by virtue of a transfer. he accordingly decreed the suit. 6. in appeal the learned counsel for the appellant confined his arguments to the question of limitation and urged that the appellant had become exclusive owner by reasons of his having acquired title by adverse possession. the learned counsel placed reliance on the case of t.p.r. palania pillai v. amjath ibrahim rowther, air 1942 mad 622 (fb). in that case a mortgage was executed in 1920 in respect of certain property by one of the co-owners. the mortgagee remained in exclusive possession from 1920 to 1937 when a suit was filed by one of the co-sharers for a partition. the full bench held: 'when one of.....
Judgment:

D.P. Uniyal, J.

1. This is a defendant's appeal arising put of a suit for partition of 2 Sehams out of 6 Sehams of property described us C and D.

2. The facts of the suit giving rise to this appeal will be clear from the following pedigree:--

MURAD BUX

_____________________|_____________________

| |

Bahi Bux Kallu

____________|__________ _____________|______________

| | | |

Ali Bux Mt. Hameedan Karim Bux=Mst. Karim Ullah

Hameedan

|

Yasin

In 1941 there was a partition between Ilahi Bux and Kallu sons of Murad Bux. Properties A and B were allotted to the share of Kallu and C and D were allotted to the share of Ilahi Bux, Prior to this on 6-11-1938 Ali Bux, son of Ilahi Bux had executed a usufructuary mortgage of property C-1 which is said fro be a Khaprail in favour of Ahmad Hussain defendant No. 6. In pursuance of the said mortgage Ahmad Hussain entered into possession.

Thereafter on 23-2-1943 Smt. Hameedan, sister of Ali Bux, who was admittedly a co-owner of property C. 1, executed a sale deed of her share in property C-1 and D and transferred 2 Sehams out of 6 Sehams as representing her share to the plaintiff-respondent. It is not disputed that the plaintiff was unable to obtain possession over the property C-1 under the sale deed aforesaid. The present suit for partition was instituted by the plaintiff-respondent in 1951 on the allegation that he was entitled to 2 Sehams out of 6 Sehams in property C-1, being a transferee from Smt. Hameedan.

3. The main contest to the suit was by the appellant defendant No. 6 who was mortgagee of the house C-1 from AH Bux. He pleaded that after obtaining the usufructuary mortgage aforesaid he paid Rs. 400/- to Ali Bux and purchased the equity of redemption from him in respect of the house and had, therefore, become exclusive owner of the Khaprail C-1. He pleaded bar of limitation and alleged that he had prescribed title by adverse possession against Smt. Hameedan and her purchaser, the plaintiff-respondent.

4. The court below held that the appellant had failed to prove that he had purchased the equity of redemption in respect of house C-1 from Ali Bux and that the evidence adduced by him on this point was inconsistent and contradictory.

5. On the question of adverse possession pleaded by the appellant the court below came to the conclusion that he could not prescribe a title adverse to the co-owner by virtue of a transfer. He accordingly decreed the suit.

6. In appeal the learned counsel for the appellant confined his arguments to the question of limitation and urged that the appellant had become exclusive owner by reasons of his having acquired title by adverse possession. The learned counsel placed reliance on the case of T.P.R. Palania Pillai v. Amjath Ibrahim Rowther, AIR 1942 Mad 622 (FB). In that case a mortgage was executed in 1920 in respect of certain property by one of the co-owners. The mortgagee remained in exclusive possession from 1920 to 1937 when a suit was filed by one of the co-sharers for a partition. The Full Bench held:

'When one of several co-sharers lets into possession a stranger who proceeds to cultivate the land for his own benefit the other con-sharers must unless they deliberately close their eyes, know of what is going on, but if they are so regardless of their own interests they must take the consequence. Where a person who is in possession under a usufructuary mortgage granted by one of several coparceners remains in possession of the land and cultivates it for years, a position which we have here there can be no doubt that the requirements of continuity, publicity and extent for adverse possession are fully complied with.'

7. It is not clear from the judgment of the Full Bench case cited above whether the right of redemption by the mortgagor in respect of the property had become time-barred. Be that as it may, the view which has held the field inthis Court runs counter to that expressed by the Madras High Court in the above case.

8. In Subah Lal v. Fateh Mohammed : AIR1932All393 Sulaiman, J. (as he then was) had to deal with a similar situation. The point for consideration was whether a usufructuary mortgagee of the entire joint property from one of the co-owners could claim adverse possession as against other co-owners of the property. Sir Sulaiman, J. expressed his opinion thus:

'It would follow that there can be no difference in principle whether a person is the original co-owner, or has become a co-owner by virtue of a transfer. From the moment of his acquiring a share in the common property he becomes a co-owner and has the same legal title as his predecessor to enjoy the whole. His possession of the whole is equally referable to his legal title and his possession need not necessarily be adverse. The other co-owners, if they have actually no knowledge of the extent of the share transferred, are entitled to presume that their co-owner has transferred his own interest only and that the transferee by virtue of his right to that share is enjoying possession of the whole property. The mere fact that a transferee is in possession would not put them on inquiry, for the transferee has just as much right to enjoy the whole property as his transferor had. The principle of Jaw based on the mere fact of co-ownership would apply with equal force to a transferee from a co-owner who steps into the shoes of his vendor. A co-owner has no duty cast upon him to watch the conduct of another co-owner and be on the look-out to find out the extent of the share purported to be transferred by him and to intervene if more than the real share has been transferred.'

9. The view expressed by Sulaiman. J. seems to be in consonance with the principle that possession of a co-owner is possession on behalf of all the other co-owners. On that principle the possession of a transferee from a co-owner would also be possession on behalf of the other co-owners and could not, therefore be adverse inasmuch as his possession was referable to a lawful title and, could not be considered as adverse to the other co-owners.

10. In the present case there is another difficulty against the plea set up by the appellant. Ali Bux had transferred the whole of C-1 to the appellant by means of a usufructuary mortgage. Ali Bux was admittedly a co-owner to the extent of 4 Sehams in the property. The right of Ali Bux to redeem the mortgage was still alive and the mortgagee could not have prescribed an adverse title against his mortgagor. Since the property in question had not been partitioned the mortgagor could redeem the whole property as the possession of the mortgagee was, in the eye of law, possession on behalf of all the co-owners. For this reason also the appeal has no merit.

11. I accordingly affirm the judgment anddecree of the learned Civil Judge and dismissthe appeal. In the circumstances of this caseI make no order as to costs of this Court.


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