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Kunhamina Umma and ors. Vs. Special Tahsildar and ors. - Court Judgment

LegalCrystal Citation
CourtKerala High Court
Decided On
Case NumberA.S. No. 258 of 1973
Reported inAIR1977Ker41
ActsEvidence Act, 1872 - Sections 67, 68 and 90; Registration Act, 1908 - Sections 60; Code of Civil Procedure (CPC) , 1908 - Order 6, Rules 2 and 4; Limitation Act, 1963 - Schedule - Articles 64 and 65
AppellantKunhamina Umma and ors.
RespondentSpecial Tahsildar and ors.
Appellant Advocate P.C.B. Menon and; V.P. Mohankumar, Advs.
Respondent Advocate B. Moosakutty,; T.S.V. Iyer and; P.B. Balasubramaniam
DispositionAppeal allowed
Cases ReferredV. Sooppi v. N. Moossa
property - compensation - registration act, 1908 - apportionment of compensation for land acquired between rival claimants - a and his successors in interest had been in adverse possession of properties for considerable time - such claim to possession cannot be said to be without notice to other co-heirs - such possession supported by registered documents - they have been enjoying income exclusively without sharing with other co-owners - held, order for disbursement of compensation amount in deposit of court for tenancy and occupancy rights in land acquired set aside. - - fatnu (air 1929 lah 711) that the certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution. it is that the court is not bound to accept the.....chandrasekhara menon, j. 1. this appeal arises out of a proceedings for apportionment of compensation for land acquired between rival claimants. the appellants are claimants 5 to 9 in l.a.o.p. 43/69 on the file of the sub court, badagara. two items of properties are involved in the proceedings. these properties are in nochad village in qui-landay taluk. the first item is known as edathil porayi paramba measuring 35 x 30 six feet koles and the other uppilavulla-thil paramba measuring 38 x 38 six feet koles. claimants 1 and 2 are the jenmies and third claimant the intermediary with respect to the properties. the fourth claimant is melcharthdar with regard to item 2.2. admittedly one upathu umma was the tenant in possession of both the items of the properties. claimants 5 to 9 who are the.....

Chandrasekhara Menon, J.

1. This appeal arises out of a proceedings for apportionment of compensation for land acquired between rival claimants. The appellants are claimants 5 to 9 in L.A.O.P. 43/69 on the file of the Sub Court, Badagara. Two items of properties are involved in the proceedings. These properties are in Nochad village in Qui-landay Taluk. The first item is known as Edathil Porayi Paramba measuring 35 x 30 six feet koles and the other Uppilavulla-thil Paramba measuring 38 x 38 six feet koles. Claimants 1 and 2 are the jenmies and third claimant the intermediary with respect to the properties. The fourth claimant is Melcharthdar with regard to item 2.

2. Admittedly one Upathu Umma was the tenant in possession of both the items of the properties. Claimants 5 to 9 who are the wife and children of Soopi one of the sons of Upathu Umma claims that as per two documents executed by Uppa-thu Umma in favour of Soopi on 22-7-1941, they have got exclusive tenancy rights over the acquired properties and the entire compensation in respect of the tenancy and occupancy rights in the properties should be paid to them. These documents are marked in the case as Exs. A15 and A16. Ex A15 is a deed of assignment and the other one of gift.

3. Including Soopi, Uppathu Umma had nine children. They are Mammad whose heirs are claimants 14 to 17, (2) Abdurahimankutty, whose heirs are claimants 18 to 24, (3) Assankutty whose sole heir is claimant 25, (4) Soopy, whose heirs as stated earlier are claimants 5 to 9, (5) Ibrayi who is the twelfth claimant, (6) Ayissa, (7) Kunhiabdulla, (8) Ummay-ya the thirteenth claimant and (9) Kunhi-ummatha, whose heirs are claimants 10 and 11. Claimants 10 to 25 contested the claim of the heirs of Soopi. According to them Ex A15 the assignment deed on the basis of which the heirs of Soopi claim Edathil Porayi Paramba and Ex. A16 the gift deed on which they claim the Uppilavullathil Paramba did not convey any right to Soopi and they are entitled to compensation along with claimants 5 to 9 as regards the tenancy and occupancy rights which had belonged to Uppathu Umma.

4. It might be stated here that in regard to Edathil Porayi Paramba, claimants 10 and 11 had put forward another particular claim. Under the predecessor of the intermediary the third claimant, Moideen the father of claimants 10 and 11 and husband of Kunhiummatha was originally in possession. He had granted a sub-lease to Uppathumma of the said property as per Ex. A1 of 1913. Claimants 10 and 11 had set up the case that Moideen had assigned his intermediary right to his wife and children as per Ex. B2 of 1913 and therefore they had that right also in respect of that property. This right had been disputed by claimants 5 to 9 alleging that Ex. B2 deed was a sham one end no interest had passed under the said document. On the other 'hand, Moideen had assigned his intermediary interest to Uppathumma in 1922 as per Ex. A4 document. It will be necessary to complete case history to point out that the claimants 5 to 9 had also put forward the plea in the case that in respect of the tenancy right and occupancy right in the property apart from Exs. A15 and A16, in any view the claims of the other heirs of Uppathumma had been barred by adverse possession and limitation.

5. After a detailed review of the evidence in the case and the law on the matter the learned Subordinate Judge held--(1) Ex. B2 had not been acted upon and Uppathumma herself had obtained the intermediary right of Moideen as per Ex. A4, (2) Exs. A15 and A16 are not valid documents voluntarily executed by Uppathumma with knowledge of their contents. Claimants 5 to 9 cannot place any reliance on those deeds, and (3) Neither Soopi nor his heirs, claimants 5 to 9 had perfected their exclusive title to the properties by adverse possession and limitation against the other heirs of Uppathumma who are the other co-owners of the tenancy or occupancy rights in respect of the properties.

6. On the basis of these findings and on the further finding entered by the court that the jenmi and the intermediary are entitled only to their share of the land value and they are not entitled to the value of improvements in the properties, the court held that out of the total land value with 15% solatium, Rs. 2927.44 the jenmies-claimants 1 and 2 would be entitled only to Rs 21.75 jointly, the intermediaries claimants 3 and 4 to Rs. 36/- each and the tenants' share would come to Rs. 2833.69. The tenants' share of the land value together with the balance amount deposited for disbursement (which should go to the tenants only) coming to Rs. 20,410.00 deducting the process fee of Rs. 22.25 the said money was apportioned among the heirs of Uppathumma in accordance with Mu-hammadan Law in the following manner:--

Claimants 5 to 9 jointly -- Rs. 4530.60Claimants 10 to 11 jointly -- Rs. 2265.30Claimant 12 -- Rs. 4530.60Claimant 13 -- Rs- 2265.30Claimants 18 to 24 jointly -- Rs. 4530.60

An amount of Re. 2265.30 was reserved for Ayissa's heirs who had not been made parties to the proceedings.

7. The appellants take up the contention in this appeal that the learned Subordinate Judge had erred in coming to the conclusion that Exs. A15 and A16 did not convey title to the acquired properties to Soopi, predecessor of claimants 5 and 6, and secondly, in any view of the matter on the facts and circumstances of the case, it is not possible for any court to come to the conclusion that Soopi and his successors-in-interest had not perfected their title to the properties by adverse possession and limitation. It is the appellants' case that the evidence more or less conclusively establish a clear case of ouster of the other heirs of Uppathumma as regards the properties concerned.

8. Before going into the questions raised in the appeal certain facts which are beyond controversy may be pointed out. Uppathumma was residing with Soopi. The other children were outside the village. Some were outside India, in Burma and Singapore. One was in Kutti-yadi, one in Thikkodi and another in Badagara. Uppathumma died in 1945. The evidence adduced in the case would also indicate that at least after Uppa-thumma's death, Soopi alone was paying the rent and land tax of the properties.

9. The first question that naturally arises for consideration in the case is whether Exs. A15 and A16 documents are valid documents. Voluntarily executed by Uppathumma with knowledge of their contents. In this connection, we have to consider at the outset whether the two documents have been validly proved. The marking of these documents was objected to by claimants 10 onwards and they were marked subject to proof. The remarks made by the court below in the matter seem to indicate that it is hesitant to accept that the documents have been validly proved. The lower court states that no one has come forward, neither the attestor nor any one who had direct knowledge about the transaction, to prove the documents. In regard to the reliance placed upon Section 90 of the Evidence Act by claimants 5 to 9, the lower court states that Section 90 is not a mandatory provision and moreover that Section 90 would warrant only a presumption of the execution of the document, but would not warrant the further presumption that property was transferred thereunder and the instruments were acted upon. Nor could it be taken that the gift deed was accompanied by delivery of possession which has not been proved by anybody in the case.

10. The true scope of Section 90 of the Evidence Act is that the section does away with the strict rules of proof which are enforced in the case of private documents, by giving rise to a presumption of genuineness with regard to documents reaching a certain age. If private documents not less than thirty years old are produced from proper custody, and are on their face free from suspicion, the court may presume that they have been signed or written by the person whose signatures they bear or in whose handwriting they purport to be, and that they have been duly attested and executed, if they purport so to be. In other words, documents thirty years old prove themselves--see Sirkar on Evidence 12th Edn. page 727. The section deals with the ad-missibility of such old documents without proof in the usual manner, but the credit to be given to them depends on the discretion of the court exercised in a judicial manner and the particular circumstances of each case. No doubt, the presumption is permissive and according to the circumstances of each case the court may or may not raise it. It has also been held in certain cases that a sound disposing mind can be presumed under Section 90. This is so 'because of the expression 'duly executed' in the section. The word duly has to be taken to mean execution by a person legally competent to execute the document--see

(1) Kottayya v. Karancheti-- AIR 1930 Mad 744

(2) Munnalal v. Kashibai-- AIR 1947 PC 15;

(3) Venkatarama v Bhaskar Rao--AIR 1962 Andh Pra 29. This presumption is fortified by Section 114 Evidence Act. Again it may be made clear that it is in the discretion of the court to draw the presumption or not.

11. We have also to consider here how far the fact that the documents concerned are registered documents could be used for proof of the execution of the documents. Under Section 67 of the Evidence Act, if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the documents is alleged to be in that person's handwriting must be proved to be in his handwriting. Section 68 of the Evidence Act further provides that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence, However, Section 68 further provides by means of a proviso to the main part of the section that except in the case of Wills, the necessity of calling an attesting witness in proof of the execution of a document will not be there unless its execution by the person by whom it purports to have been executed is specifically denied. As far as Ex. A15 is concerned, no question of call-ling an attesting witness arises as it is only an assignment deed which is not required by law to be attested. As regards Ex. A16, it being a gift deed it is required by law-- Section 123 of the Transfer of Property Act-- to be attested by two witnesses, But then as rightly pointed out by the learned counsel for the appellants there is no specific denial of the execution of the document by the respondents either in the statements or in the evidence tendered to the court.

'Specifically' means with 'exactness and precision', 'in a definite manner' (see Webster Third New International Dictionary). It means something more than a general denial-- see Dasrath v. Lallo (AIR 1951 Nag 343). Mere fact of pleading that one did not admit the genuineness of the bond does not put to the necessity of calling the attesting witness.

12. In regard to the gift deed, there is no mention about the same in the statement filed in court by the contesting claimants 10 to 13. What they state is only about the assignment and that is as follows:--

'Ee vastuve Sambhadicha Uppathu-amma makkalil oralaaya sappiperil oru-theeru ezhuthi vachathaayi arriyannu. Prastutha threeru Uttama Viswasamaa-yhm prathifalathinmelum avakaasappe-duvaan vendi, chayuthu koduthathalla. Theeruprakaaram suppikku yaathorava-kaasavum sidhichittilla.'

When the tenth claimant was examined he stated:--

'Daanamo theero koduppaan Uppal-lumma uddesichirunnilla. Anganp Aadha-rangal Uppathumma ezhuthi koduthi-thilla. Avayil Uppathumma oppithundaa-ennu emikku parayaan kazhikayilla.'

In the light of this we do not think there was any necessity to call the attesting witness to prove the gift deed. Both these documents were then 30 years old when the evidence was adduced in the case. Both the assignor and the assignee -- the donor and the donee were dead. Nobody has also spoken that any of the attesting witnesses were alive at the time when evidence was taken.

13. Now coming to the question again whether registration is sufficient proof of execution there is a conflict of authorities as far as Indian courts are concerned.

14. Section 60 of the Registration Act, 1908 states:

'(1) After such of the provisions of Sections 34, 35, 58 and 59 as apply to any document presented for registration have been complied with, the registering officer shall endorse thereon a certificate containing the word 'registered' together with the number and page of the book in which the document has been copied.

(2) Such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsement referred to in Section 59 have occurred as therein mentioned.'

The Privy Council said in Gangamoy Debi v. Troilukhya Nath, (1906) 33 Ind App 60 = (ILR 33 Cal 537) (PC)--

'The registration is a solemn act, to be performed in the presence of a competent official appointed to act as registrar, whose duty it is to attend the parties during the registration and see that the proper persons are present and are competent to act, and are identified to his satisfaction; and all things done before him in his official capacity and verified by his signature will be presumed to be duly and in order.'

15. On the strength of this observation of the Privy Council and on a consideration of Section 60 of the Registration Act, the Lahore High Court held in Piara v. Fatnu (AIR 1929 Lah 711) that the certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution.

16. In regard to a document executed by a pardanashin lady, a Division Bench of the Allahabad High Court in Kulsummun-nisa v. Ahmadi Begum (AIR 1972 All 219) said that the endorsement of the Sub-Registrar on a sale deed to the effect that the pardanashin lady the executant of the document was identified by inspection from behind pardah and that after hearing and understanding the nature and contents of the deed she admitted the execution of the deed, is admissible in evidence. An earlier decision of the Court in Misri Lal v. Bhagwati Prasad (AIR 1955 All 573) is referred to therein.

17. Certain other courts have taken the view that a certificate of registration given under Sec. 60(2) of the Registration Act is not by itself sufficient to prove due execution of a document as required by Section 67 of the Evidence Act and that the effect of registration is not to prove execution but only to prove an admission by the executant to the registration in solemn circumstances-- see

(1) Ramkrishan v. Mohd. Kasim, AIR 1973 Bom 242.

(2) Ramanna v. Sambamurthy, AIR 1961 Andh Pra 361.

(3) Bhutkani Nath v. Kamaleswari, AIR 1972 Assam & Naga 15.

(4) Dharm Das v. Kashi Nath, AIR 1959 Cal 243.

18. In Indernath Modi v. Nandram (AIR 1957 Raj 231) Chief Justice Wanchoo (as he then was) said,

'Among the endorsements referred to in Section 59, is the endorsement under Section 58. The endorsement under Section 58 includes the signature and admission of every person admitting the execution of the document. It is from this admission of execution made under Section 58 that the courts have held that the registration of documents is some proof of its execution. At the same time it may be rememibered that this mode of proof cannot take the place of proof as provided by Section 67 of the Evidence Act waich lays down that if a document is alleged to be signed or to have been written wholly or in part, by any person the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.'

19. The question has been considered in depth by Justice Raman Nair (as he then was) in Sumathi Amma v. Kunjuleskhmi Amma (1964 Ker LT 945). The learned Judge observed (at pages 946 and 947) :--

'I regard the Privy Council decision in Gangamoyi Debi v. Troiluckhya Nath Chowdary, (1906) ILR 33 Cal 537 (PC) -- Md. Ihtishan AH v. Jamna Prasad (AIR 1922 PC 56) and Gopal Das v. Sri Thakurji (AIR 1943 PC 83) -- see also Vishvanath v. Rahibai (AIR 1931 Bom 105), Pandappa v. Shivalingappa (AIR 1946 Bom 193) and Kalu v. Bapurao (AIR 1950 Nag 6) -- as authority for the proposition that, in cases where Section 68 of the Evidence Act has no application the certificate of registration in the light of the presumption in Section 114, Illustration (e) of the Evidence Act is evidence of execution and can, in fit cases, be accepted as proof thereof and with the contrary view expressed in Salimatul Fatima v. Koyalashpati Narain Singh ((1890) ILR 17 Cal 903), Maruti Balaji v. Dattu (AIR 1923 Bom 253 (2)) and Bulakidas Hardas v. Chotu Paikan (AIR 1942 Nag 84) -- neither what is said in the Privy Council decisions nor the wording of Section 60(2) of the Registration Act lends the least support to the statement in the last mentioned case that the certificate is only corroborative and not substantive evidence; the section says that the certificate is admissible for proving certain facts which can only mean that it is substantive evidence regarding those facts--I must express my respectful dissent. To the argument noticed in Ara Begam v. Deputy Commr. Gonda (AIR 1941 Oudh 529 at p. 548), Bulakidas Hardas v. Chotu Paikan (AIR 1942 Nag 84 at p. 85) and Ramanna v. Sambamoorthi (AIR 1961 Andh Pra 361 at p. 369) that if the certificate of registration were to be accepted as proof of execution, a party who is required to prove a document would, if it is registered, be relieved of the necessity of examining any witnesses to prove it end could rest solely on the certificate, thus opening the way to fraud and fabrication, the answer is obvious. It is that the court is not bound to accept the certificate as sufficient proof and, where better evidence is available, can insist on better evidence, drawing the presumption in Illustration (g) of Section 114 of the Evidence Act against the party who withholds this better evidence.

xx xx xxWith great respect I think that the attempt made in Indernath Modi v. Nand-ram (AIR 1957 Raj 231) to distinguish the Privy Council cases on the ground that those cases apply only, where it is not possible to take recourse to the method provided in Section 67 because of the feet that the executant and the marginal witnesses are either dead or cannot be found, and that it is only in such cases that recourse can be had 'to the presumption under Section 60(2) of the Registration Act' is vitiated by the assumption that Section 67 of the Evidence Act prescribes a mode of proof and requires the executant or the 'marginal witnesses' to be examined. Section 67 says nothing of the kind. It only says that facts have to be proved, and, unlike Section 68, does not prescribe any particular mode of proof. The facts required to be proved under Section 67 can be proved by any kind of evidence, and there is nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of Sub-section (2) of Section 60 of the Registration Act and by the presumption in Illustration (e) of Section 114 of the Evidence Act, is to be excluded.'

We have no hesitation in endorsing the view of the learned Judge as laying down the correct law on the question if we may say so with respect. Therefore, we have to hold that the due execution of Exs. A15 and A16 have been properly proved in this case, 2ft. Now we will consider whether Exs. A15 and A16 are valid documents voluntarily executed by Uppathumma with knowledge of their contents. After going through the relevant evidence and hearing counsel for both the parties we find it difficult to accept the lower court's finding on the matter.

21. The lower court points out that on the same date as Exs. A15 and A16 were registered, Exs. B5' and B6 a melpattom and a marupat executed in respect of the same properties by Uppa-thumma, were also registered. The court seems to accept the contention advanced on behalf of the contesting respondents that the occasion which arose for registering Exs. B5 and B6 must have been exploited by Soopy to obtain all rights of Uppathumma to him by making her execute Exs. A15 and A16 also. It is argued that if really Uppathumma had executed the assignment and gift deeds, it is un-understandable why she should register the melpattom and Marupattom deeds the same day as she had already parted with her right. It is also said that Exs. A15 and A16 do not make any reference to Exs. B5 and B6 though they were registered on the same day. We have to say that in arguing like this the court below is going from the realm of legal inferences to one of mere conjectures. Ex. 6 is a renewal of Ex. A12 lease back and Ex. B5 is only a melpattom granted by Uppathumma to the mortgagee lessee one Ammad. These documents would only show the subsisting liability on the party which was reserved to be discharged by the transferee Soopi. Though all the four documents were registered on 26-7-1941, Exs. B5 and B6 were executed on 28-3-1941 while Exs. A15 and A16 are seen to have been executed on 22-7-1941.

22. The learned Subordinate Judge then says that all the properties of Uppathumma are covered by Exs, A15 and A16 and that it is improbable that a prudent person would have given away all her properties to any one without leaving an inch of land in her possession. We do not find such a degree of improbability in the transaction to force us to hold that the lady would not have executed these documents, without other convincing evidence on the matter. Soopi is the executor's son with whom she is living. Whether Uppathumma would have given away the whole properties to that son certainly depends upon her confidence in her son and no one could make out any wild surmise on the same without other positive evidence. The same argument should also cover the argument about the lady giving all the properties only to one son. After thirty years after the exe-cutee and executor are dead and also most of the persons who could have given definite evidence regarding the same out of the scene, we do not think that on such factors based on surmises and conjectures the court could invalidate any transactions carried out by registered deeds when within a reasonable time after their registration, nobody had thought fit to question the same.

23. As regards the plea of undue influence in the execution of these documents, we cannot lightly brush aside the absence of specific pleadings in the matter as the learned Subordinate Judge has done. The Subordinate Judge says that in a reference made by the Land Acquisition Officer in the strict sense of the word there is no pleading. This is obviously wrong. Apart from the statements made before the Land Acquisition Officer himself, after the matter comes to the court, the parties are allowed to put in statements of their case which in this case has also been done. Neither in the pleadings nor in the evidence have the contesting respondents raised a case of undue influence, fraud, coercion or misrepresentation. In this connection, we need only refer to the decision of the Supreme Court in Afsar Sheidh v. Sole-man Bibi, 1976-2 SCC 142 = (AIR 1976 SC 163), where Justice Sarkaria speaking for the court said that while it is true that 'undue influence'; 'fraud', 'misrepresentation' are cognate vices and may, in part, overlap in some cases, they are in law distinct categories and are in view of Order 6, Rule 4 read with Order 6, Rule 2 of the Code of Civil Procedure, required to be separately pleaded, with specificity, particularity and precision. A general allegation in the plaint that the plaintiff was a simple old man of ninety who had reposed great confidence in the defendant was held to be much too insufficient to amount to an averment of undue influence which the court can take note of. A party could succeed only by what he alleged and proved. He could not be allowed to travel beyond by what was pleaded by him and put in issue. The court further- said:--

'The law as to undue influence. in the case of a gift inter vivos is the same as in the case of a contract. It is embodied in Section 16 of the Indian Contract Act. Sub-section (1) of Section 16 defines 'undue influence' in general terms. It provides that to constitute 'undue influence' two basic elements must be cumulatively present. First, the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other. Second, the party in dominant position uses that position to obtain an unfair advantage over the other. Both these conditions must be pleaded with particularity an'd proved by the person seeking to avoid the transaction.'

24. No doubt the learned counsel for the contesting respondents, Mr. Bala-subramaniam, sought to rely on Section 11 of the Evidence Act, which provides that where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence. On the basis of this provision, it was contended that claimants 5 to 9 failed to establish good faith in the transaction covered by Exs. A15 and A16. But in contending like that he is forgetting that Section 111 is a rule of evidence. The principle and scope of that section as stated by Sarkar in his well-known book on Evidence is

'that as between persons dealing on a footing of complete equality there is no presumption against good faith. The law presumes prima facie in favour of deeds duly executed. So, ordinarily a person who challenges the validity of a transaction on the ground of fraud, undue influence etc., and charges his opponent with bad faith has the burden of proof on him. It is in the light of Section 101 of the Evidence Act, which states that whoever desires any court to give judgment as - to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 111 is by way of an exception to this rule, where a fiduciary or confidential relationship subsist between the contracting parties for example, guardian and ward, trustee and cestui que trust, parent and child, physician and patient, preceptor and disciple etc. The rule also applies to parents, executors, administrators, trustees etc., who take any benefit in respect of any property entrusted to their case. Where on account of the existence of such relationship one of them is in a position to exert undue influence or 'dominion' over the other and takes any benefit from him, the- burden of proving the good faith of the transaction is thrown upon the dominant party, i.e., the party who is in a position of active confidence.'

But for the application of this rule we should first have the pleadings in the matter. There must be the allegation for the fact that a person in a position of domination has used the position to obtain unfair advantage for himself and so as to cause injury to the person relying upon his authority or aid. in the absence of such pleading the rule regarding burden of proof has no operation. The law says that not only the person must have dominant position, but he must use it. The burden of proving undue influence is not discharged merely by showing that a beneficiary had the power unduly to overbear the will of the testator, unless it is shown that in the particular case the power was exercised. There must be specific pleading in the case.

25. In the light of the above discussion we have no hesitation in setting aside the finding of the court below that Exs. A15 and A16 are not valid documents. Nothing has been shown in the case which would induce us to accept the view that Uppathumma had not voluntarily executed the documents with knowledge of their contents.

26. In view of the conclusion we have reached really we need not go into the question of adverse possession and limitation set up by the appellants. But we might state that there also the finding of the lower court seems to be not quite correct. We have the evidence in this case that at least on the death of Uppathumma, Soopi and thereafter his succes-sors-in-interest were dealing with the property exclusively. It is a correct statement of law that the lower court has made that there should be open acts of possession with hostile animus to the knowledge of the other co-owners to constitute ouster. The law on the point has succinctly been stated by Eradi J., speaking for a Full Bench of this court in K. Cicily v. Sulaikha Beevi, 1968 Ker LT 779 = (AIR 1969 Ker 293) (FB) in the following words:

'The legal position is now well settled that one co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his part in derogation of the other co-heir's title (see Corea v. Appuhamy, 1912 AC 230 and P. Lakshmi Reddy v. L. Lakshmi Reddy AIR 1957 SC 314). In order to establish adverse possession on the part of the one co-heir as against another it is not sufficient to show that one of them is in sole possession and enjoyment of the profits of the property. Ouster of the non-possessing co-heir by the co-heir in possession, who claims his possession to be adverse should be made out For this there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment by one co-heir to the knowledge of the other, the burden of making out such ouster being on the person claiming to dispute the lawful title of a co-heir by his adverse possession.'

27. But the principle that the sole possession and enjoyment of the profits of the property will not constitute ouster as regards the other co-owners can hardly apply where possession has continued for a considerable period of time exclusively with one co-owner and prima facie to the exclusion of other or others. (See Ishak AH v. Mst. Unasbi, AIR 1958 Madh Pra 209). As the Supreme Court itself has noted out in AIR 1957 SC 314 P. Lakshmi Reddy v. L. Lakshmi Reddy the Privy Council in N. Varada Pillai v. Jeevarathnammal (AIR 1919 PC 44 at p. 47) quotes apparently with approval, a passage from Culley v. Taylorson, (1840) 3 P & D 539 = (52 RR 566) which indicates that such a situation may well lead to an inference of ouster 'if other circumstances concur'. The Supreme Court also refers to Govinda Rao v. Rajabai (AIR 1931 PC 48).

28. Therefore, it is also true as pointed out in V. Sooppi v. N. Moossa, 1969 Ker LT 121 = (AIR 1969 Ker 222) that if one co-owner takes possession and continues in possession for a long time enjoying the income of the property without sharing it with other co-owners it is a strong circumstance indicative of, or from which an inference can be drawn, that there was ouster of the co-owners not in possession; and if other circumstances also exist in support of this, courts will be justified in inferring ouster or exclusion. In that decision the court further pointed out at pages 127 and 128 :--

'Ouster is certainly a positive matter: and the hostile animus necessary to constitute ouster must also be a positive matter, It is a matter involving action; it cannot be mere inaction. If the co-owner in possession did not give a share of the income to the co-owner out of possession merely because the latter did not ask for it, then, such animus may be only a negative animus. On the other hand, if the evidence shows that even if the co-owner out of possession demanded his share the co-owner in possession would not have given him a share, then, the animus is positive, in the sense that it is indicative of an animus to exclude. For entertaining a hostile animus to oust the real owner, the person in possession need not know who the real owner is. If he has the animus to hold the property as his against the whole world including the real owner, whoever he be, known or unknown, the animus is sufficiently hostile to exclude the real owner also.'

There is no antithesis in what is said in 1969 Ker LT 121 = (AIR 1969 Ker 222) and in 1968 Ker LT 779 = (AIR 1969 Ker 293) (FB) as the lower court seems to think (see also Adichan Ayyan v Karupi, 1975 Ker LT 293).

29. If we examine the presentcase on the above principles it is clearthat Soopy and his successors-in-interesthave been in adverse possession of theproperties concerned. Their claim to possession exclusively cannot be said to bewithout notice to the other co-heirs asthey trace such possession to two registered documents. Their possession hasalso been for a considerable length oftime. They have been enjoying the income exclusively without sharing it withother co-owners. And in reply to a noticeof B.W. 1, as early as 20-9-1953 (date ofreply notice Ex. A22) Soopi asserted hishostile title. It is rather surprising thatthe effect of Ex. A22 was sought to beexplained away by the learned Subordinate Judge stating that as the lawyerwho received Ex. A22 had subsequentlydied, B.W. 1, 10th claimant might nothave known about the reply.

30. In the light of the above conclusions we have arrived at, the appeal has to be allowed. The judgment and decree of the court below in respect of the direction in regard to the disbursement of the compensation amount in deposit in the lower court for the tenancy and occupancy rights in the land acquired is set aside. The appellants would be entitled to this amount exclusively. The appellants will be entitled to get the costs of the appeal from the contesting respondents.

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