1. A.S. No. 196 of 1990 is filed by the plaintiff. A.S.No. 243 of 1990 is filed by the first defendant and A.S.No. 299 of 1990 is filed by the second defendant. The suit was filed for partition.
2. According to the plaintiff, she is the daughter of late K.B. Sheik Yusuf Saheb. First defendant is the son of K.B. Sheik Yusuf Saheb. Defendants 1, 2, 3 and 4 are the sons of K.B. Sheik Yusuf Saheb. Seventh defendant is the daughter-in-law of Sheik Yusuf Saheb. Defendants 8 to 14 are the children of late K. Sheik Abdul Hasim and 7th defendant. All are Muslims. Defendants 12 to 14 are minors. 15th defendant is the daughter of Mariambee and wife of late Shariff. 16th defendant is the son of late Mohammad Kashim Saheb and the 17th defendant is the wife of Aziz Saheb.
3. The plaintiff and defendants are related to one another as shown in the geneology given in Schedule A. K.B. Sheik Yusuf Saheb, father of the plaintiff died on 24th December 1964. Her mother Zulekhabi died on 16th February 1959. Zairunnisa sister of the plaintiff died unmarried in 1972 leaving her brothers and sisters as the only heirs and legal representatives. Sheik Abul Hasim, the eldest brother of the plaintiff died in 1983 having defendants 7 to 14, his widow and children as the legal representatives. Mariambee, elder sister of plaintiff died in 1956, leaving defendants 15 to 17 as her legal representatives.
4. The properties described in item Nos. 2 to 4 of B Schedule were acquired by Sheik Yusuf Saheb on darkast grant on different occasions. Item No. 1 of the B Schedule properties belonged to the plaintiff's father and others and as per the final Decree in O.S. No. 35 of 1943 of the District Munsiff, Kasaragod, the said item was allotted to his share. He obtained delivery of the same through court as per the delivery receipt dated 27th December 1948. Ever since then till his death, the said Sheik Yusuf Saheb was in direct possession and enjoyment of the said B Schedule properties. On the death of Yusuf Saheb in 1964, his estate developed on his five sons, defendants 1 to 4 and Sheik Abdul Hasim and his four daughters, plaintiff and defendants 5 and 6 and Zairunnissa. Thus, the plaintiff is entitled to 1/14th share in the said B Schedule properties on the death of her father.
5. Zairunnisa, the younger sister of the plaintiff died in 1972 leaving five brothers and three sisters including the plaintiff. The said Zairunnisa was entitled to 1/14 share in the estate of her father. In the estate of Zairunnisa, the plaintiff is entitled to 1/13 share and each of her brothers are entitled to 2/13 share. Thus in all, the plaintiff is entitled to 14/182 shares.
6. The plaintiff detailed with regard to the shares of different persons. Then he proceeded to say as follows: The plaintiff and defendants 1 to 14 are co-owners in respect of plaint B Schedule properties. The plaintiff is in joint possession of the same. The said defendant, for and on behalf of the plaintiff and other co-owners, has been attending to the management of B Schedule properties. The second defendant was in very cordial relationship with the plaintiff till recently and it was the plaintiff who helped him for his marriage. The defendant and his wife were staying with the plaintiff very often till recently. Whatever improvements were effected in the said B Schedule properties after 1964 were effected out of the joint funds of the plaintiff and the defendants. The building in B Schedule is occupied by defendants 1 and 3 while the rest of the properties is in the occupation of the second defendant. No portion of the building is leased out to any tenant. The gross coconut income from B Schedule properties would be 3000 coconuts.
7. The plaintiff caused registered notice to be issued to the second defendant demanding partition of the estate of her father. The second defendant in his reply raised false and frivolous contentions. Hence, the suit was filed for partition.
8. The first defendant filed a written statement supporting the plaintiff and prayed for partition. The second defendant denied that plaint B Schedule properties devolved on the plaintiff, defendants 1 to 6 and Sheik Abdul Hashim on the death of the late Yusuf or that the plaintiff is entitled to 1/14 share or that Sheik Abdul Hashim is entitled to 2/14 share in B Schedule properties. This defendant denied that the plaintiff and defendants 1 to 14 are co-owners of B Schedule properties. The case of the defendant is that the father of the plaintiff and defendants 1 to 6 had executed a Will dated 20th November 1964. As per the Will, the said Sheik Yusuff Saheb has bequeathed 3 cents of land including the house in item No. 1 of plaint B Schedule in favour of the first defendant and item Nos. 2 to 4 to the second defendant. Item No. 4 was in the possession of third parties on the date of death of Sheik Yusuf Saheb. Sheik Yusuf Saheb had given a motor car to the third defendant and Rs. 5,000 to late Sheik Abdul Hashim. The said will is the last testment of late Sheik Yusuf Saheb and the name was executed by him with the consent and knowledge of all of his children including the plaintiff. It was executed by him in a sound and disposing state of mind and it is a true and genuine Will. All his children were sufficiently provided for by Sheik Yusuf Saheb. On the death of the testator the said Will has an effect and his right over item Nos. 2 and 3 of plaint B Schedule properties devolved on the second defendant and has been in possession and enjoyment of the said properties in his own independent right effecting various kinds of improvements like construction of the residential house, digging of wells, construction of compound wall, planting of coconut trees and other fruit bearing trees, etc. The second defendant had constructed residential house in the property bequeathed to him by availing loan as per Middle Income Group Housing Scheme on mortgaging the properties. For that purpose, the original Will was produced before the concerned Authorities. Likewise, 3 cents from out of item 1 of B Schedule properties devolved on the first defendant as per Schedule A of the Will and he has been in possession and enjoyment of the same. All the legal heirs of late Sheik Yusuf Saheb have consented to the execution of the said Will by him and after his death, the legatees under the Will have been enjoying the respective properties bequeathed to them. The second defendant has been in possession and enjoyment of item Nos. 2 and 3 of plaint B Schedule properties peacefully and uninterruptedly asserting a hostile title to the knowledge of the plaintiff and other defendants ever since the death of his father and their right if any over the said properties is barred by ouster.
9. Third defendant filed a written statement supporting the case of the plaintiff and prayed for share. Defendant Nos. 4, 5, 6, 8 and 16 and 17 filed written statement supporting the plaintiffs. On the above pleadings, relevant issues were raised by the court below. Exts. A1 to A5 were marked on the side of the plaintiff. Exts. B1 to B9 were marked on the side of the defendants. Exts.X1 to X2 are court Exhibits. The Plaintiff was examined as PW1 and DWs. 1 to 4 were examined on behalf of the defendants.
10. The court below found that the Will was not valid. So far as the adverse possession is concerned, the court below held that item Nos. 2 and 3 were in adverse possession of defendants 2 and 3 by ouster. Thus, the Court below passed a preliminary Decree for partition of item Nos. 1 and 4of plaint B Schedule properties by metes and bounds. It is against that the appeals are filed by various persons.
11. The plaintiff and the defendants, who supported the plaintiff, challenged the finding of the court below with regard to items 2 and 3 and the second defendant and another filed appeals challenging the finding of the Court below that the Will is not valid and also Decree for partition.
12. We heard learned Counsel for the appellant and learned Counsel for the respondents.
13. Learned Counsel for the plaintiff and defendants, who supported the plaintiff, submitted that the view of the court below with regard to the title by adverse possession is not correct. According to him, the court forgot the fact that the second defendant is the co-owner and unless it is proved that there was ouster, there cannot be any perfected title by adverse possession. Learned Counsel on both sides took us through the evidence in these cases and also cited various decisions. On the above facts, the following points arise for consideration in this case: (1) Whether Ext.X1(a) Will dated 20th November 1964 is valid? (2) Whether the second defendant has perfected title by adverse possession to items 2 to 4? (3) Whether any parties are entitled to any special equities for items to be partitioned? (4) What are the shares to which each of the parties are entitled
14. So far as the first point is concerned, the lower court held that the Will is not valid, because consent of the remaining heirs was not obtained. Chapter IX of the Principles of Mohamedan Law by Mulla-19th Edition, it is stated that every Mohamedan of sound mind and not a minor may dispose of his property by Will. A Will may be made either by verbally or by in writing and consent of the heirs is necessary. In Section 117 at page 101, it is stated that a bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator. Any single heir may consent so as to bind his own share. A bequest to an heir, either in whole or in part, is invalid, unless consented to by other heir or heirs and whosoever consents, the bequest is valid to that extent only and binds his or her share. Neither inaction nor silence can be the basis of implied consent see Narunnissa v. Sheik Abdul Hamid, AIR 1987 Karnataka 222. In this case, there is no evidence to show that at any point the heirs gave consent. One of the heirs is minor and consent cannot be given. But this does not mean that the others cannot give consent. But there is no express consent given.
15. The next question is whether the second defendant has perfected title by adverse possession to items 2 and 3. The plaint schedule properties belong to co-owners. So far as the question of adverse possession is concerned, the question has been made clear with regard to adverse possession among co-owners. It is well-settled that the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario - see Secretary of State for India v. Debendra Lal Khan, AIR 1934 PC 23. The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. Further in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other coheir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. It is settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. Merely because mutation has been effected it does not go to show that possession is adverse. In Darshan Singh and Ors. v. Gujjar Singh, (2002) 2 SCC 62, the Supreme Court held as follows: 'Possession of a co-sharer becomes adverse to the other co-sharers only if there is a clear ouster and denial of their title. Therefore mere mutation in re venue records in favour of one co-sharer does not amount to ouster unless there is a clear declaration denying title of the other co-sharers. In the normal course possession by one co-sharer of property belonging to several co-sharers will be deemed to be possession on behalf of the others. Where the names of the appellant co-sharers were entered in revenue record after rejection of the claims of plaintiff respondents, on facts there was clear ouster of the co-sharers in the disputed suit land'. Non-participation of the income cannot be held to be sufficient to hold that possession is adverse. The Supreme Court in Karbalai Regum v. Mohd. Sayeed and Anr., AIR 1981 SC 77, held as follows: 'It is well-settled that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. Indeed even if this fact is admitted, then the legal position would be that the co-sharers in possession would become constructive trustees on behalf of the co-sharer who is not in possession and the right of such co-sharer would be deemed to be protected by the trustees'. Similarly in Janaki Pandyani v. Ganeshwar Panda (dead) by L.Rs. and Anr., J.T. 2000 (Suppl.2) SC 345, the Supreme Court held as follows: 'Merely because defendants had converted the thatched house into a tiled house and also dug a well, it does not mean it was an ouster of the plaintiff. Admittedly, the property in dispute is joint family property and the plaintiff and the defendants are the co-sharers of the property'.
16. Learned Counsel for the respondents brought to our notice the decision in Devaki Pillai v. Gouri Amma, 2003 (1) KLT 421. According to us, the above decision is rendered on the basis of the facts in that case. Applying the above principles of law, it cannot be said there has been ouster.
17. In the above view of the matter, the Judgment and decree of the lower court are modified to the following extent. A preliminary decree is passed partitioning items 1 to 4 of the plaint schedule properties in 182 equal shares and the plaintiff is entitled to get 14/182 share, defendants 1, 3 and 4 each are entitled to get separate possession of 28/182 share each. The 5th defendant is entitled to get separate possession of her 14/182 share. The plaintiff is entitled to get her 14/182 share of mesne profits for the past 13 years and future from defendants 1, 3 and 4. The quantum of mesne profits is left open to be decided in the final decree proceedings. The cost of the suit is to be borne out from the estate. The plaintiff is directed to apply for passing final Decree within three months from today. In so far as the claim made by the parties regarding the share of any property or any building on the basis of equity that will be considered in the final decree proceedings.
Appeals are disposed of as above.