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Nallagonda Pedda Chenna Reddi and anr. Vs. Asupallee Budda Reddy - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported in31Ind.Cas.55
AppellantNallagonda Pedda Chenna Reddi and anr.
RespondentAsupallee Budda Reddy
Cases ReferredAsher v. Whitlock
Excerpt:
gift - possession under a gift from a limited owner--gift invalid against reversioners--trespass by stranger--suit by donees for possession based on title, maintainability of. - .....she inherited it. as i said, her husband was in possession on her behalf on the date of the gift-deed to her step-sons and he continued to be in possession during the two days which elapsed between the gift-deed and her death and for four days afterwards. reading the plaint paragraphs nos. 5 to 8 literally, it seems to me clear that the plaintiffs' next friend considered himself to have been in possession after the date of the gift on behalf of his wife's donees (that is, his own minor sons, the plaintiffs) till he was dispossessed by the defendant about the 25th august 1912. the suit was brought within four months afterwards, namely, on the 23rd december 1912. the suit was not, however, brought under section 9 of the specific relief act, but relying on the title under the.....
Judgment:
ORDER

Sadasiva Aiyar, J.

1. The plaintiffs are the appellants. Both the plaintiffs are minors. They are suing by their father, Chenna Reddi as their next friend.

2. The land in dispute belonged to their step-mother, Subbakka, by inheritance. She had only a life interest therein. She died issueless on the 21st August 1912. Two days before her death, she made a gift of the plaint lands to her minor step-sons, plaintiffs, evidently because she was on loving terms with her husband who was looking after the lands for her. The gift is, no doubt, invalid after her death as against the reversionary heirs of her father as whose property she inherited it. As I said, her husband was in possession on her behalf on the date of the gift-deed to her step-sons and he continued to be in possession during the two days which elapsed between the gift-deed and her death and for four days afterwards. Reading the plaint paragraphs Nos. 5 to 8 literally, it seems to me clear that the plaintiffs' next friend considered himself to have been in possession after the date of the gift on behalf of his wife's donees (that is, his own minor sons, the plaintiffs) till he was dispossessed by the defendant about the 25th August 1912. The suit was brought within four months afterwards, namely, on the 23rd December 1912. The suit was not, however, brought under Section 9 of the Specific Relief Act, but relying on the title under the gift-deed (which became invalid against the reversioners after the plaintiffs' step-mother's death) and mentioning also the continued possession of the plaintiffs' next friend for about one week after the date of the gift-deed till the dispossession by the defendant. The defendant has been found by the lower Courts to be a pure trespasser (the title he set up as alleged reversioner having been found against), he not having denied in his written statement the allegations as to possession in the plaintiffs' next friend for six days after the gift-deed and the dispossession on the 25th August as set out in 'the plaint.

3. Taking it that the minor plaintiffs cannot make out a good title as against the reversioners of Subbakka's father's estate, I think that the principle of the decision in Ganapathi Mudali v. Venkatalakshminarasayya (1914) M.W.N. 728, decided by Miller, J., and myself, applies to the facts and as the plaintiffs' next friend had obtained and was in peaceable possession for several years before the deed of gift and continued in such possession for six days after the deed of gift (his possession on the date when the defendant dispossessed him being treated in the plaint as the minor plaintiffs' possession and his dispossession being treated as the dispossession of the plaintiffs), he on behalf of his minor sons is entitled to recover back possession from the defendant who forcibly ejected him. Sundar v. Parbati 16 I.A. 1 6, their Lordships of the Privy Council say at pages 56 and 57 that their possession was lawfully attained in this sense, that it was not procured by force or fraud, but peaceably, no one interested opposing.' It does not admit of doubt that they' (the persons so in pussession) are entitled to maintain their possession against all comers except the person who can plead a preferable title.' It is not necessary for the purposes of this case to decide whether, if a person (who was dispossessed by the defendant) himself came into possession not peaceably but by using force against the real owner, such a person could maintain his possession against the second trespasser. For instance (to take an extreme case), A, the real owner, is forcibly dispossessed by B.B is in possession for three months and then B is forcibly dispossessed by C who continues in possession for 111/2 years. Can B successfully maintain a suit for restoration of possession against C on the strength of B's three months' possession? The cases in Mustapha Sahib v. Santha Pillai 23 M.k 179, Narayana Row v. Dharmachar 13 M.L.J. 146 and Adinarayana Iyer v. Krishnan (1912) M.W.N. 707, no doubt do go that length see, however, Nisa Chand Gaita v. Kanchiram Bagani 3 C.W.N. 568 but as I said before, it is not necessary to decide that question as the plaintiffs got into possession in this case peaceably.

4. In the result, the lower Appellate Court's decision against the plaintiff will be reversed and that of the District Munsif restored with costs in plaintiffs' favour in this and the lower Appellate Court.

Napier, J.

I agree. If the matter were res integra, I should have serious doubt whether the view taken by the High Court of Calcutta in Nisa Chand Gaita v. Kanchiram Bagani 3 C.W.N. 568 is not correct. The decision of the Privy Council in Sundar v. Parbati 16 I.A. 1 6 is authority for the proposition that in certain circumstances persons actually in possession without title are entitled to maintain their possession against all comers, except a person who can show a preferable title, and are entitled to consequential remedies. The decisions in Mustapha, Sahib v. Santha Pillai 23 M.k 179 and Narayana Row v. Dharmachar13 M.L.J. 146 would go as far as holding that a person entering into possession of immoveable property with knowledge that he had no title and even by force, can, when evicted by any one but the true owner, maintain an action to recover possession. With the greatest deference to the learned Judges, I find no authority for this position either in the decision of the Privy Council or in the English case of Asher v. Whitlock (1865) 1 Q.B. 1. As, however, I agree with' my learned brother that the plaintiff in tbis suit held possession under a bona fide claim of title, I agree in allowing the appeal and restoring the decree of the District Munsif.


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