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Kranti Chandra Vs. Chhotelal and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 3264 of 1959
Judge
Reported inAIR1964All425
ActsLimitation Act, 1908 - Articles 142 and 144
AppellantKranti Chandra
RespondentChhotelal and ors.
Appellant AdvocateB.R. Avasthi, Adv.
Respondent AdvocateT. Rathore, Adv.
DispositionAppeal dismissed
Excerpt:
limitation - co-owner in possession - articles 142 and 144 of limitation act, 1908 - co-owner in possession transfers entire property - held, the co-owners had no knowledge of the extent of share transferred - a presumption may be drawn that co-owner transferred his own interest only and not entire property. - .....from the evidence of the parties that basdeo, who had onethird share in the house, had sold the entire house to chhotelal, defendant no. 1 in 1938. it has also been found that since then chhotelal remained in exclusive possession of the house. piareylal, husband at smt. mahadevii knew that chhotelal defendant had purchased the house from basdeo. but according to the statement of the witnessthis knowledge was that basdeo sold only his share and not the entire house. it further appears from the statement of piareylal, husband of smt. mahadevi, that chhotelal hadcarried out repairs and made some constructions inthe house. the lower appellate court came to the conclusion that the acts of chhotelal amounted to ouster of the other co-sharers and that piareylal having knowledge of the acts.....
Judgment:

Mithan Lal, J.

1. I have heard learned counsel for the parties and I find no force in this appeal.

2. The plaintiff appellant brought the suit for partition of his 1/3rd share in the house in dispute on the allegation that the house belonged to three brothers one of whom was Govind Madho. This Covind Madho made a gift of his 1/3rd share to Smt. Mahadevi and the plaintiff purchased this 1/3rd share from Smt. Mahadevi under a sale deed dated 2nd September 1954. One third share belonging to Basdeo was said to have been sold to Chhotelal defendant No. 1, while the rest of the one third share was said to have belonged to the other defendants. The suit was resisted by defendant No. 1 alone on various grounds including the plea of limitation.

3. The trial court held that the plaintiff had no share in the house and that the suit was barred by limitation. The lower appellate court has differed from the trial court on the question of purchase of one third share by the plaintiff. That court has come to the conclusion that Mahadevi being the daughter of Govind Madho had one third share and the sale deed in favour of the plaintiff had been validly executed. That court, however, came to the conclusion that defendant No. 1 had remained in adverse possession of the house and so on the question of limitation the finding of the trial court was affirmed. It is how the plaintiff has come in appeal.

4. Sri B.B. Avast hi, learned Advocate for the-appellant, has contended that the case being a case of co-owners it was for the defendant to prove ouster and a hostile title to the knowledge of the plaintiff before the plea of adverse possession could be accepted but this was not done. It is also his contention that even if Piarey lal husband of Smt. Mahadevi, who is transferor of the plaintiff had any knowledge of the sale in favour of Chhotelal, defendant No. 1, that could not be taken to be the knowledge of the co-owner. In support of his view the learned counsel has made a reference to the Full Bench case of Subahlal v. Fateh Muhammad : AIR1932All393 and the case of Haider Husain v. Mohammad Subhan Khan AIR 1940 All 429.

5. Before discussing these authorities it may be stated that the lower appellate Court has found from the evidence of the parties that Basdeo, who had onethird share in the house, had sold the entire house to Chhotelal, defendant No. 1 in 1938. It has also been found that since then Chhotelal remained in exclusive possession of the house. Piareylal, husband at Smt. Mahadevii knew that Chhotelal defendant had purchased the house from Basdeo. But according to the statement of the witnessthis knowledge was that Basdeo sold only his share and not the entire house. It further appears from the statement of Piareylal, husband of Smt. Mahadevi, that Chhotelal hadcarried out repairs and made some constructions inthe house. The lower appellate Court came to the conclusion that the acts of Chhotelal amounted to ouster of the other co-sharers and that Piareylal having knowledge of the acts of Chhotelal it must be deemed that the title of the other co-owner was denied. The question is whether the inference drawn by the lower appellate Court is or is not correct.

6. In the Full Bench case of Subahlal : AIR1932All393 it has been observed at p. 643 (of ILR All) : (at p. 400 of AIR) that the underlying principle is that the possession by one co-owner of the entire joint property will be the possession of all. Such a possession may be referable to his legal title and may at the same time be referable to this adverse possession. The test which was laid down was whether the co-owners had actually any knowledge of the extent of the share transferred or whether, if they have no knowledge of the extent of the share transferred, a presumption may be drawn that the co-owner has transferred his own interest only and not the entire property. It was further observed that the mere fact that the transferee is in possession at the entire property would not necessarily make his possession to be adverse and the principle of co-owners would apply. The principle laid down by the full Bench authority would have applied only if after the sale by Basdeo of the entire house the plaintiff had no knowledge about the sale. In this case not only Piareylal husband of Smt. Mahadevi, had derived knowledge, but as stated by him Chhotelal did some other acts such as repairs of the house and construction of a portion of the house. The learned ounsel has argued that the knowledge of Piarey should not be deemed to be the knowledge of his wife, Smt. Mahadevi. In law wife and husband are separate entities but in India where wife acts through her husband it must be deemed that the husband, who derived the knowledge must have communicated his knowledge to the wife, who was a co-sharer. One other thing which has been stressed is that Piareylal admitted that Chhotelal purchased only the share of Basdeo; but in this case the sale deed shows that the entire house was purchased and it was after the purchase of the entire house that Chhotelal entered into its possession and dealt with it by making constructions etc. As observed in the case of Nizamuddin v. Mangal Sen : AIR1949All699 all this would mean that Chhotelal set up an absolute title in the houseto the exclusion of other co-sharers. There can be no presumption that such a co-sharer had at any time acknowledged the title of any other co-sharer. The learned Judge who decided that case laid down as a test that a purchaser of the whole house from a cosharer could not have permitted any body else to enter into possession of the house. It appears thatthat Chhotelal having purchased the entire house from Basdeo, who had only one third share, and having entered into possession of the whole house on the basis of the sale deed could neither have permitted Smt. Mahadevi to enter into possession nor could he have treated himself to be a co-sharer withanybody else. Even though Smt. Mahadevi claimedone third share, Chhotelal asserted his title over theentire house and the knowledge of Smt. Mahadevi's husband would show that she had knowledge of the sale and further registration by itself amounts to notice of the sale. Under such circumstances it was her duty to find out whether the sale related to one third share or the entire house. It appears that after Chhotelal purchased the house in 1938 nothing was done by Smt. Mahadevi though she had knowledge of such sale. She again did nothing when Chhotelal made certain constructions and repairs in the house. It seems when her right to recover possession was barred by limitation she sold her share to the plaintiff in 1954 who brought the suit for partition.

7. The learned counsel also made a reference to the case of Haider Husain : AIR1940All428 but in that case the assertion of title to the whole house was not brought to the knowledge of the cosharer and so it was assumed that the right or title of the co-owner was never denied by the transferee. How-ever if the assertion of title to the whole is brought to his knowledge it amounts to his ouster or exclusion, and adverse possession would start against him. In the present case there was not only the purchase of the entire house by Chhotelal but there were also repairs and constructions done. When constructions were being carried out Smt. Mahadevi should have found out why they were being done and what was the portion sold. But it appears that nothing was done and it was only after Smt. Mahadevi sold her share the present plaintiff instituted the suit for partition. Both the Courts below have held that the suit was barred by Article 144 of the Limitation Act because there was ouster to the knowledge of the plaintiff or her husband. This finding by the Court below is correct. The appeal, therefore, fails.

8. The appeal is dismissed with costs.


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