1. The following genealogical tree sets out the relationship of the parties:-
(See genealogical table below)
Defendants 7 to 22 third party purchasers or their legal representatives from defendants 1 and 2.
Khadirsa Rowther, the first plaintiff, and his son filed O. S. No. 74 of 1970 on the file of the court of the Subordinate Judge of Dindigul, for partition and separate possession of the suit properties. The allegations were that the plaintiffs and the defendants 1 to 5 are the co-owners of the suit properties. The first plaintiff and the defendants 1 and 2 have been managing the suit properties with the help of the 6th defendant, who is the junior paternal uncle of defendants 1 and 2. The 6th defendant has no right, title or interest in the suit properties. The income from the properties has been shared by the co-sharers. While so, defendants 1 and 2 on the one hand and the 6th defendant on the other purported to have effected a partition of the suit properties by means of a registered partition deed Ex. B. 1. The plaintiffs came to know of it when they were denied their share of income by the defendants 1 and 2 a month before the filing of the suit. A Panchayat was convened for the purpose of effecting the partition which proved to be futile. The alienations made by the defendants 1 and 2 are not true, valid and binding on the plaintiffs. The first plaintiff is entitled to 35/800 shares; the second plaintiff is entitled to 42/800 shares; defendants 1 and 2 are entitled to 14/800 shares each and defendants 3 to 5 are entitled to 21/800 shares each. Hence the suit. Kattuva Rowther (died)__________________________|________________________| |Kadhersha Rowther Meeranan Rowther(died in 1946-47) (6th deft)|Fathima (first wife; predeceased Fathima (second wifeher senior husband) junior died on 1953) | || ______________|_______________Daughter Kathija Bibi | | |(died on 20-8-1953) Mohammed Meera Mohammed Kajamarried Kadirsa (died in 1953) Ismail MohideenRowther (Plff. No.1) unmarried (1st left) (2nd left)|_______|___________________________| | | |Mohammed Jaithoon Bi Jaina Bi Mumtaz BiShereef (3rd left) (4th left) (5th left)(Pltf. No. 2)
2. The first defendant filed a written statement admitting the relationship between the parties. Inter alia his pleas were (1) that Khathija Bibi had orally relinquished her right in view of the fact that costly presents were given to her during her marriage; (2) the inaction having regard to the non-participation of Khathija Bibi or even the plaintiffs after her death for a long period would spell out outsell (3) some of the items of the properties not belonging to the family have included in the decree for partition; and (4) in any event it has to be proved by the plaintiffs that the suit properties were purchased from out of the income belonging to the joint family. The 6th defendant filed a written statement contending that the acquisition made by him are totally independent and had nothing to do. The suit was also barred by time. The other defendants viz., 7th 8th, 9th 10th, 12th, 13th, 19th and 22nd filed separate written statements asserting their independent title to these properties. On these pleadings, the following issues came to be framed-
1. Whether the plaintiffs are entitled to partition and separate possession of their share in the suit properties?
2. Whether the suit properties are the separate properties of Kadersha Rowther or the joint properties of Kadersha Rowther and his brother Meeranan Rowther (6th defendant)?
3. Whether the oral partition alleged to have been effected between Kadarsha Rowther and the 6th defendant in 1942, and the subsequent oral partition alleged to have been effected between defendants 1, 2 and 6 in 1947, are true?
4. Whether the partition effected between defendants 1, 2 and 6 by means of a registered partition deed on 3-9-1955 is true and valid?
5. Whether defendants 1, 2 and 6, have in any event prescribed title to the suit properties by the doctrine of ouster?
6. Whether the suit is barred by the law of limitation?
7. Whether the plaintiffs are entitled to mesne profits?
8. Whether the alienation effected by defendants 1 and 2 in favour of defendants 7 to 10 and 19 in respect of some of the items of suit properties are true, valid and binding on the plaintiffs?
9. Whether the alienees have made improvements to the items of properties purchased respectively by them?
10. Whether the alienees are entitled to any equity?
11. Whether the alienees and their predecessors in title have in any event prescribed title to the properties purchased by them by adverse possession?
12. to what relief, if any, are the plaintiffs entitled?
3. The learned Subordinate Judge on consideration of oral and documentary evidence in a consolidated finding on issues Nos. 1 to 5 was of the view (1) that the oral partition alleged to have been entered into between Kadersha Rowther and the 6th defendant in 1942, as well as the defendants 1 and 2 and 6th defendant in 1947, are not true; (2) Ex. B.1, the partition deed, though true was not valid since the plaintiffs and the defendants 3 to 5 were disassociated from it; (3) the suit properties are the joint properties of Khadersha Rowther and Meeran Rowther; (4) the plaintiffs and the defendants 3 to 5 are the heirs of Kathija Bibi entitled to specific shares in the suit properties; (5) the plaintiffs were entitled to partition and separate possession respectively of their 25/1600 and 30/1600 shares in the suit properties; and (6) the defendants 1, 2 and 6 did not prescribe title to the suit properties by outside and therefore the suit is not barred by limitation. Accordingly he found issue No. 1 in favour of the plaintiffs and issues Nos. 2 to 6 against the defendants 1, 2 and 6.
4. The question of mesne profits under issue No. 7 was relegated to separate proceedings under O. 20, R. 12, C. P. C. On issues Nos. 8 to 11, he was of the view that the alienation made by the defendants 1 and 2 in favour of defendants 7 to 10 and 19 though true will be valid only to the extent of shares of the alienors and that there was no proof of prescription by adverse possession. Therefore, he found on issue No. 8 accordingly, issues Nos. 9 and 10 in favour of the alienee and issue No. 11 against them. On issue No. 12, in view of the earlier findings he held that the plaintiffs were entitled to partition and separate possession of their respective shares viz., 25/1600 and 30/1600 shares in the suit properties. On these terms the preliminary decree for partition came to be passed. Thus the appeal by the defendants 1 and 2.
5. Mr. E. Padmanabhan learned counsel for the appellants, urged the same points before us. They are (1) there was a relinquishment by Kathija Bibi consisting the suit properties and the oral evidence let in on behalf of the appellants in this regard should have been accepted; (2) the court below had gone wrong in applying the principle which govern the case of coparcenary joint Hindu family. In the case of Muslims no such principle can ever be invoked. It is entirely for the plaintiffs to prove that the properties owned jointly yielded such surplus income so as to enable the appellants to purchase the suit properties. In support of this submission, reliance is placed upon the cases reported in Maimoon Bivi v. O. A. Khajee Mohideen : AIR1970Mad200 and in Mohammed Ibrahim v. Syed Mohamed Abubakker, AIR 1976 Mad 84. The learned counsel, however, on the submission of these decisions contends that there is no scope for application of S. 90 of the Indian Trusts Act 2 of 1882; and (3) in any event having regard to the fact that there has been non-participation in the income for a long period it would clearly spell out ouster ass laid down in Kunhamina Umma v. Special Tahsildar. : AIR1977Ker41 . It is not a mere non-participation in the income for a long period. There have been attendant circumstances as well, as required by the ruling reported in Mohideen Abdul Kadir v. Mohamed Mohideen Umma ILR (1970) 2 Mad 636. They are (i) oral partition before the death of Kathija Bibi (ii) Ex. B. 1, the partition deed; (iii) the alienation under Ex. B. 95, as early as 27-8-1956 and even prior to this the other Ex. B-102. dated 24-2-1954. and (iv) the alienation under Ex. B-103 dated 24-4-1954 in favour of the 10th defendant. In respect of the above transactions there are several alienations under Ex. B-101, B-96, B-98, B-97, B-100 and B-99, all in the year 1966 and later. Therefore from this the only conclusion possible is to the knowledge of the plaintiffs the appellants asserted their hostile title. Even otherwise, where the rights of the third parties have accrued by reason of alienations the tendency of the court should be to allow the status quo to remain in view of the long inaction on the part of the plaintiffs as laid down in Ibramsa Rowther v. Sk. Meerasa Rowther, : AIR1972Mad467 , and lastly it is submitted that the plaintiffs included certain properties which do not belong to the family at all. In fact, they belong to the third parties. Therefore, a preliminary decree could not have been passed with reference to those items.
6. Mr. Thanikachalam, learned counsel for the 6th defendant, also adopts the argument of Mr. E. Padmanabhan, learned counsel for the appellants.
7. Mr. Gopal Raj, learned counsel for the plaintiffs, seeking to support the preliminary decree passed by the court below states that the theory of oral relinquishment as stated will have to be rejected. There is no evidence to establish that Kathija Bibi had orally relinquished her right in the suit properties. Excepting the interesting testimony there is no independent evidence whatsoever in this direction. Therefore, that plea will have to necessarily fail.
8. This is a case in which admittedly the appellants along with the 6th defendant were in possession of the properties belonging to all the members of the family. They are of a large extent of 40 acres. Under those circumstances unless and until it is proved that the subsequent acquisition were made out of their independent income, they must be held to belong to other co-owners as well as per the terms of S. 90 of the Indian Trusts Act, 2 of 1882. This is not a case to which the principle of law applicable to the joint Hindu families has been applied. On the contrary purely on the well accepted principle that where a co-owner derives advantages in view of his position in derogation of the rights the benefit in favour of the co-owners. Therefore, there is no necessity whatever to show that the income from the family properties yielded a surplus so as to enable the appellants as well as the 6th defendant to purchase the property.
9. The law is well settled that mere possession however long cannot imply ouster. Equally it is well settled that the mere non-participation in the income alone would not be enough to constitute ouster. There must be attendant circumstances. Those attendant circumstances, must be to the knowledge of the plaintiffs. As categorically found by the learned Subordinate Judge, there is absolutely no evidence to show that the plaintiffs had ever knowledge of these transactions. The oral partition is found to be untrue very correctly. In Ex. B. 1 the plaintiffs were not the parties. Therefore, that cannot be put against them. Equally all the other allegations were not to the knowledge of the plaintiffs. As a matter of fact, when Pw 1 was asked he categorically asserted that he had no knowledge whatever of these transactions. Therefore, it cannot be said that there are attendant circumstances in this case to the knowledge of the plaintiffs which alone would establish adverse possession as between the co-owners and the case of adverse possession as between the defendants.
10. The final submission of the learned counsel as if certain properties which do not belong to the family have been included, it is a matter to be examined in the final decree proceedings and the court below has found that there is no evidence in that regard.
11. Having regard to the above, the following four points are framed for determination-
1. Whether Kathija Bivi had orally relinquished her right in the suit properties?
2. Whether there is scope for applying S. 90 of the Indian Trusts Act?
3. Whether the appellants have succeeded in establishing ouster?
4. Whether the property belonging to the third parties have been included and if so what is the relief to be granted?
Point (1). We have very carefully perused the evidence. There is nothing to show that Khatija Bivi had orally relinquished her right in the suit properties. As a matter of fact, there is no direct plea put forward on behalf of the appellants in the written statement in this regard. All that was stated in the written statement was that at the time of marriage of Khatija Bivi she was given sufficient jewels and cash and therefore when Ex. B. 1 was entered into no property was allotted to her. Therefore any evidence without pleading in this regard cannot be looked into. Even DW 1, the 6th defendant in evidence does not say about the oral relinquishment. As a matter of fact, this plea was not seriously argued by the learned counsel for the appellants before us. Therefore we reject the plea of oral relinquishment by Khatija Bivi.
Point (2) - This is a case in which admittedly the appellants along with the defendant 6 were in possession of all the properties jointly belonging to the family. They are admittedly of an extent of 40 acres and odd. There is absolutely no evidence whatever to show that out of the independent earnings either the first defendant ever acquired these properties. Only if that is proved, the presumption that the independent acquisition of a member in a Muslim family cannot be considered to belong to all the other members will arise. In fact, the law in this regard as laid down in Mohammed Ibrahim v. Syed Muhammad Abbubakker. AIR 1976 Mad 84 is as follows (at p.90):-
'The personal law of Muslims does not recognize a system of joint holding as is common amongst Hindus. There may be cases, however, where a custom may be set up in the matter of the holding of such properties by some of the members of the Muslim family where by it could be established that such possession and title in some of the members is customarily to be interpreted and understood as possession on behalf of all the members. Acquisition of property independently by a member cannot automatically be said to be for the benefit of the family. If there is conclusive evidence that a member of the Muslim family, who acquired such properties gained an advantage to himself and caused prejudice to others and if such acquisition is traceable to surplus family assets or funds from and out of which the property could have been purchased then matters would be different.'
We take it that this is the exact principle emerged under S. 90 of the Indian trusts Act which may be set out in full-
'90. Where a tenant for life, co-owner, mortgage or other qualified owner of any property, by availing himself of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property or where any such owner as representing all persons interested in such property gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained, but subject to repayment by such persons of their due share of the expenses properly incurred, and to an indemnity by the same persons against liabilities properly contracted, in gaining such advantage.'
In the instant case, it is clear that both appellants along with the sixth defendant took advantage of their position acquired all the other properties. Therefore, it is not necessary for the plaintiffs to prove that the income from the properties belonging jointly to all the members was such as to yield a surplus. This is because no evidence has been let in to prove that there have been independent acquisition by any one of these persons. As a matter of fact, the attempt in this regard must fail because the appellants put forward a case that they had independent business. There is no account for such a business. It is equally strange that there was not even licence for the business as admitted by DW 3 himself. Therefore, we reject the plea of independent acquisition. However, the learned counsel would press into service the case reported in Maimoon Bivi v. O. A. Khajee Mohideen, : AIR1970Mad200 and draw our attention to the following particular passage (at pp. 202 to 203)-
'S. 90. Trusts Act did not apply. For it to apply, it must be established that the party against whom relief is sought availed himself of his position as co-owner and gained an advantage in derogation of the rights of other persons interested in the property, or as representing all persons interested in the property gained an advantage. Then, of course, he must hold the advantage gained for the benefit of the other persons interested in the property, but subject to their obligation to share the expenses incurred in acquiring the advantage. In the instant case, admittedly, the management of the common properties was not with the widow, but the management was by the widow's father for the benefit of all the heirs.'
This case is easily distinguishable because the facts clearly disclose that the management of the common properties was not with the widow but the management was with the widow's father for the benefit of the heirs. Here as we observed above the management of the common properties was admittedly with the appellants and the 6th defendant. Yet another case is relied on to show that the principle laid down under S. 90 of the Indian Trusts Act, will not apply. That is the case reported in Mohideen Abdul Kadir v. Mohammed Mohideen Umma, ILR (1970) Mad 636, where it has been observed as follows-
'Even assuming for the sake of argument, and argument only, that the purchase of the eastern half of item 9, item 10 and item 7, and the discharge in 1943 under Ex. B.10 (a) were out of the income received by Muthu Ibrahim from the properties admittedly left by Mohamed Mohideen Marakayar, it is not the law that the plaintiff would be entitled to a share in these properties. Muthu Ibrahim was only a co-sharer with the plaintiff and it is settled law that a co-sharer is not a trustee for the other co-sharer and, therefore, S. 88 of the Trusts Act, 1882, will not apply so as to impress the property purchased by Muthu Ibrahim from the income from the ancestral properties with the character of property belonging to both Muthu Ibrahim and the other co-sharer (Yuhuf Sulaika or her heirs). In Kennedy v. De Trafford, 1897 AC 180 it was pointed out that no authority was cited in support of the proposition that a co-owner purchasing property was a trustee for the other co-owners.'
12. In the instant case, certainly the position of the parties is that of a co-owner. Therefore, the appellants and the 6th defendant who took advantage of their position as such and derived advantage in derogation of the rights of the plaintiffs, must disgorge that bandit in favour of the plaintiffs. What was founded as a principle of equity in English law has gained statutory recognition under S. 90 of the Indian Trusts Act, Section 83 speaks of the fiduciary relationship as a trustee, executor, partner, agent, director of a company legal adviser etc. But we are not putting it on the ground of fiduciary relationship. It is a clear case of co-owner gaining advantage, taking advantage of his position.
Hence even this ruling will not support the appellants. Accordingly we hold that S. 90 of the Indian Trusts Act would be clearly applicable to the facts of the present case and that it is well open to the plaintiffs to make a claim. As a matter of fact in paragraph 7 of the plaint it is stated as follows-
'Some of the items of the under mentioned properties have been acquired from out of the income of the properties left by the said Khadirsa Rowther in the name of some of the co-owners. Taking undue advantage of the said acquisition the defendants 1 and 2 and the 6th defendant in collusion among themselves have ventured to negative the legitimate claims of the plaintiffs and other co-sharers have been disposed of some of the items of the properties to defraud the legitimate rights of the plaintiffs and other co-owners.'
To this there is no effective defence. Thus, the point is answered accordingly.
13. Point (3) Turning to ouster, the law is well settled as stated by a Division Bench of this court in the case reported in Ibramsa Rowther v. Sk. Meerasa Rowther, : AIR1972Mad467 . As a matter of fact, this Bench referred to an earlier ruling to which one of them was a party, reported in Abdul Kadir v. Umma, ILR (1970) Mad 636 which is as follows-
'In a recent Bench decision of this court one of us sitting with Venkataraman. J. in Abdul Kadir v. Umma, ILR (1970) Mad 636, the doctrine of ouster as between co-owners has been elaborately reviewed with special reference to the time factor of sole and exclusive possession of one co-owner in the background of the other co-owner's continuous and complete inaction and non-participation in the income for a considerable length of time. Vide the discussion of Venkataraman. J. at pates 700 to 710 and discussion of the other learned Judge (Ramamurti, J.) at pages 725 to 743. As this Bench decision has elaborately reviewed the entire case law, both in England and in India, it may not be necessary to refer in detail and at length to the wealth of case law. In the Bench decision in ILR (1970) Mad 636 referred to above the same argument was advanced that exclusive possession for any length of item would not constitute ouster, that time factor is not of much significance, and, in that connection, reliance was placed upon the observations (observations in : AIR1963Mad84 , extracted above) of Veeraswami, J. (as he then was) and the latter Bench had pointed out that the decision in : AIR1963Mad84 turned on the peculiar facts of the case, that, in that case, the question arose within a short period of 14 years and that the attention of the Bench was also not drawn to the uniform trend of judicial opinion both in England and in India, where the theory of lost grant was supplied and ouster was presumed from long lapse of years other circumstances concurring.'
14. Ultimately, the position was summed up as set out above. Another earlier decision reported in Maung Hia Pe v. Manika, AIR 1940 Ran141 , it has been observed as follows :
'In order to establish adverse possession by one tenant-in-common against his co-tenants there must be exclusion or ouster and the possession subsequent to that exclusion or ouster must be for the statutory period. What is sufficient evidence of exclusion must depend upon the circumstances of each case. Mere non-participation in rents and profits would not necessarily of itself amount to an adverse possession, but such non-participation or non-possession may in the circumstances of a particular case amount to an adverse possession. Regard must be had to all the circumstances, and a most important element is the length of time.'
One of us sitting singly also dealt with the same question in the case reported in Karunai Ammal v. Karuppa Gounder, : (1980)1MLJ432 and held as follow-
'In the cause of a co-owner mere possession, however long it might be, could not constitute adverse possession. Equally mere non-participation in the income would not lead to automatic conclusion of ouster. Possession must be over the statutory period and there must be a clear ouster to the knowledge of the co-owner or co-heir against whom adverse possession is pleaded.'
15. In the light of the above legal background we will now proceed to analyse the facts. The oral partition has absolutely no locus standi in view of the finding of the learned Subordinate Judge in this aspect. There is no evidence whatever, Ex. B-1 cannot advance the case of the appellants because admittedly the plaintiffs were not parties. In fact the very case of the appellants is that Kathija Bibi was given costly presents during her marriage. No doubt in 1954, itself there was an oath under Ex B-102 in favour of the 9th defendant and alienation under Ex. B-103 in favour of the 10th defendant. But as rightly pointed out by the learned Subordinate Judge, not one of them could ever be held to be binding because there is nothing to suggest or even to indicate indirectly that the plaintiffs had knowledge of these transactions. What has been laid down in all the above cases in s the assertion of hostile title must be to the knowledge of the plaintiff. That is exactly the distinction between the case of adverse possession between the co-owners and adverse possession between the strangers. Mere possession by the appellants and the 6th defendant however long cannot constitute ouster. Equally the non-participation in the income also cannot imply ouster. As laid down in P. Lakshmi Reddi v. L. Lakshmi Reddi, : 1SCR195 that must be to the knowledge of the opposite party. We are totally unable to find any knowledge whatever that can be attributed to the plaintiffs. As rightly held by the learned Subordinate Judge, that the plaintiffs and the defendants 3 to 5 were never aware of these dealings. We are in entire agreement with the following finding of the learned Subordinate Judge-
'The parrot like version of defendants 1 and 6 as well as some of the alienees that the plaintiffs and defendants 3 to 5 are aware of the alienations cannot be readily accepted. The plaintiffs and the third defendant are permanent residents of Thottanampatti while defendants 4 and 5 are permanent residents of Nandanagampatti and Nallur, Vridhachalam taluk, South Arcot. In the nature of things, they could not have been aware of the alienations. Kathija Bivi and later her heirs are co-sharers along with defendants 1, 2 and 6 all are jointly entitled to the properties. Each of them has a right to the properties. Mere possession does not necessarily, imply denial of title of co-owners. If Kathija Bibi and later her heirs found no occasion to effectively enjoy the properties, they need not mind the possession of defendants 1, 2 and 6. In the xxx of law, they are deemed to be in constructive possession of the joint properties. The materials available on record do not in the least show that the title of Kathija Bibi and/or her heirs had ever been repudiated to their knowledge. It is only from the date of such repudiation to the knowledge of the other co-sharers, the character changes and it becomes adverse against those who have knowledge of the ouster and time begins to run against them. This essential ingredient is significantly absent in the instant case. It cannot therefore be said by any stretch of imagination that defendants 1, 2 and 6 have in any event prescribed title to the properties by adverse possession by means of assertion of adverse title accompanied by ouster and exclusion of the plaintiffs and defendants 3 to 5 to their knowledge. The plea of ouster relied on by defendants 1, 2 and 6 is thus not available to them and it is even untenable.'
16. Accordingly we hold on point No. 3 that the plea of ouster by the appellants has not been made out.
Point (4). Excepting to note the argument of the appellants that the properties not belonging to the family in common have been included, we do not see any ground for interference in this regard. This is a matter which has to be established in the final decree proceedings. That will depend upon the nature of the evidence. Needless for us to state that if the properties do not belong to the family, it is the third parties who are really the owners who have to agitate it. In the present state of evidence, we are unable to reach a finding in this regard, Of course if really the property belonging to the third parties have been included any adjudication in their absence can (cannot?) by all means bind them. On this point it is ordered accordingly.
17. In the result, we have no hesitation in upholding the preliminary decree as passed by the learned Subordinate Judge, Dindigul. Accordingly the appeal will stand dismissed. However, there will be no order ass to costs.
18. Appeal dismissed.