Skip to content


JoynaraIn Sen Ukil Vs. Suchitra Debya - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in65Ind.Cas.8
AppellantJoynaraIn Sen Ukil
RespondentSuchitra Debya
Cases ReferredChinnammal v. Varadarajulu
Excerpt:
specific relief act ( i of 1877), section 42, proviso, scope of - declaratory suit--joint possession--consequential relief--adverse possession--co-owner--limitation act (ix of 1908), schedule i, article 120, applicability of--right to one sue. - .....the plaintiff instituted this declaratory suit, and, on the allegation that he was in joint possession of the one-third share claimed by him, he did not seek consequential relief. the claim for declaratory relief was resisted on the grounds, amongst others, that it was barred by limitation, and that even if it was well-founded in fact, the suit was not maintainable under section 42 of the specific relief act inasmuch as the plaintiff had omitted to claim further relief. the subordinate judge found on the evidence that the share of the plaintiff was one-third as alleged by him, that he was in joint possession of that share and that the claim for declaratory relief was not barred by limitation. the subordinate judge held, however, that the plaintiff might have claimed further.....
Judgment:

Asutosh Mookerjee, J.

1. This is an appeal by the plaintiff in a suit for declaration of title to a village called Udaipore in the District of Bankura. The plaintiff and the defendants are descended from a common ancestor, Jugal Kishore Sen Ukil, who had two sons, Kesab and Matiram. Kesab had three sons, Prasad, Sridhar and Nilmohan; Matiram also had three sons, Damodar, Srinivas and Adwaita. The plaintiff represents the branch of Nilmohan. The first defendant is the widow of Prankrishna, the descendant of Prasad. The second and third defendants represent the branch of Srinivas, while the fourth, fifth and sixth defendants represent that of Adwaita. The case for the plaintiff is that in the disputed property, which admittedly belonged to the common ancestor, his share is one-third, while the first defendant owns one-twenty-fourth and the remaining defendants fifteen-twenty-fourths. The first defendant asserts, on the other hand, that the share of the plaintiff is one-fourth, her own share is one-fourth and that of the remaining defendants one-half. The substantial controversy is between the plaintiff and the first defendant, and the dispute reduces to the devolution of the share of Sridhar, which was inherited by his son Syam and then passed into the hands of Sahachari, the widow of Syam. According to the plaintiff, this share, after the death of Sahachari, passed into the hands of his father Gopal (the son of Nilmohan) as the sole surviving reversioner at the time. According to the first defendant, that share was divided equally between the representatives of Prasad as well as Nilmohan. In these circumstances, the plaintiff instituted this declaratory suit, and, on the allegation that he was in joint possession of the one-third share claimed by him, he did not seek consequential relief. The claim for declaratory relief was resisted on the grounds, amongst others, that it was barred by limitation, and that even if it was well-founded in fact, the suit was not maintainable under Section 42 of the Specific Relief Act inasmuch as the plaintiff had omitted to claim further relief. The Subordinate Judge found on the evidence that the share of the plaintiff was one-third as alleged by him, that he was in joint possession of that share and that the claim for declaratory relief was not barred by limitation. The Subordinate Judge held, however, that the plaintiff might have claimed further relief by way of partition, and in this view he dismissed the suit, The plaintiff has appealed against the decree and has assailed the reason assigned by the Court below for withholding the declaration justified by the facts found. The respondents have attempted to support the decree of the Subordinate Judge on the ground assigned by him, but they have further contended that the Subordinate Judge came to an erroneous decision on the merits and should have held that the claim was barred by limitation, that the share of the plaintiff was not one-third but one-fourth, and that he was not in joint possession of the one-third share. The points in controversy between the parties have thus been all re-opened in this Court.

2. The first point which requires examination is the question of the extent of the share of the plaintiff in the joint property; the solution depends upon the determination of two factors, namely, the time of the death of Sahachari when the succession opened out to the reversionary heirs of her husband and who were the persons alive at that time competent to take as such reversionary heirs, The Subordinate Judge has found that she died in 1862 and that the share of her husband thereupon passed to the father of the plaintiff, who was then alive, as the grandfather of the husband of the first defendant had previously died. We see no reason to doubt the correctness of the conclusion of the Subordinate Judge, which is amply supported by the evidence on the record. The story that the share was allowed to be enjoyed by other members of the family, although the father of the plaintiff became entitled thereto as reversionary heir, is not supported by any reliable evidence or intelligible hypothesis. As a last resort, it was argued in the Court below--and the argument has been repeated in this Court--that the title of the father of the plaintiff was extinguished by adverse possession on the part of the husband of the first defendant. The requisites essential for the establishment of title by adverse possession as between co-owners of joint property have not, however, been made out. As has been frequently pointed out in recent years by the Judicial Committee, for instance, by Lord Macnaghten in Corea v. Appuhamy (1912) A.C. 230 at p. 236 : 81 L.J.P.C. 151 : 105 L.T. 836, by Lord Dunedin in Muttunayangam v. Brito (1918) A.C. 895 : 87 L.J.P.C. 146, by Lord Buckmaster in Hardit Singh v. Gurmukh Singh : (1918)20BOMLR1064 and by Viscount Cave in Varada Pillai v. Jeevarathnammal 5(sic) Ind. Cas. 901 : 46 I.A. 285 : 43 M. 244 : (1919) M.W.N. 724 : 10 L.W. 679 : 24 C.W.S. 346 : 38 M.L.J. 313 : 18 A.L.J. 274 : 2U.P.L.R. (P.C.) 64 : 22 Bom. L.R. 444 (P. C), the entry and possession of land by one co-owner will not be presumed to be adverse to the others, but will ordinarily he held to be for the benefit of all; the difference between the possession of a co-owner and other cases is that acts which if done by a stranger would per se be a disseisin, are, in the case of tenancies in-common, susceptible of explanation consistently with the real title; acts of ownership are not, in tenancies in common, acts of disseisin; the law will not presume that one tenant-in common intends to oust another; the facts, if the contrary is asserted, must be notorious and the intent must be established in proof. The position is now firmly settled that the possession of one joint tenant is the possession of all and there can be no dispossession by one joint tenant, in the absence of an assertion of a hostels title by him to the knowledge of the other joint tenants sought to be excluded from the joint tenancy: Balaram Guria v. Syama Charan Mondal 60 Ind. Cas. 298 : 24 C.W.N. 1057 : 33 C.L.J. 344, Lokenath Singh v. Dhwakeshwar Prosad Narayan Singh. 27 Ind. Cas. 465 : 20 C.W.N. 51 : 21 C.L.J. 253, Jatindra Nath Roy v. Sabidannessa Khatun (Narendra Bhuton Roy v. Jogendra Nath Roy) 35 Ind. Cas. 36 : 20 C.W.N. 1258 : 24 C.L.J. 165. Tested in the light of these principle, the case for acquisition of title by adverse possession completely breaks down. The defendant has not adduced satisfactory evidence of exclusive possession; on the other hand, the plaintiff has proved that in one instance at least he succeeded in realising a decree from one Imam for an one third share of the sum at which the latter had purchased a jungle belonging to all the co-sharers. No doubt, the evidence shows that the husband of the first defendant had asserted, from time to time, title to a larger share than he possessed, but such bare assertion could in no sense be deemed to constitute ouster or disseisin. In our opinion, the Subordinate Judge has rightly held that the share of the plaintiff amounted to one third, that such title was not extinguished by adverse possession, and that he was in joint possession of the disputed property to the extent of his share at the date of the institution of this suit.

3. The second point which requires examination is whether the claim for declaratory relief is barred by limitation. It was pointed out in the case of Mohabharat Shaha v. Abdul Hamid Khan 1 C.L.J. 73 that Article 120 of the Schedule to the Indian Limitation Act is applicable to a suit for declaration of title to immoveable property, which must consequently be brought within six years from the date when the right to sue accrues: Shyamanand Das v. Rai Narain Das 4 C.L.J. 568 : 11 C.W.N. 186, Kali Debya v. Bhagaban Nanda 1 Ind. Cas. 810, Tarak Nath v. Syama Charan 36 Ind. Cas. 292, Hulada Prasad Deghoria v. Kalidas Naik 24 Ind. Cas. 899 : 42 C. 536 : 20 C.L.J. 312 : 19 C.W.N. 512. It is plain that if there is a right to sue, it cannot be impossible to define when it originates, but the answer obviously depends upon the circumstances of each case. There has been some divergence of judicial opinion on the question, whether there may or may not be instances of successive accruals of causes of action for relief by way of declaration. Thus it was ruled in Thirumala Rao v. Kadekar Durgi 22 Ind. Cas. 883 : (1914) M.W.N. 197 : 1 L.W. 134 that when a plaintiff brings a declaratory suit on the ground that the defendant has denied his title, there is only one cause of action which accrues from the date of knowledge in the plaintiff that the defendant denied his title. This view was rested on the decisions in Akbar Khan v. Turaban 1 Ind. Cas. 557 : 31 A. 9 : 5 A.L.J. 637 : A.W.N. (1908) 252. 4 M.L.T. 444 and Rajah of Venhatagiri v. Isakapalli Subbiah 26 M. 410, which it was explained, could not be reconciled with the opinion expressed in Anantarazu v. Narayanarazu Garu 13 Ind. Cas. 96 36 M. 383 : 22 M.L.J. 108 : (1911) 2 M.W.N. 531 : 10 M.L.T. 504 and Sheopher Singh v. Deo Narain Singh 17 Ind. Cas. 675: 10 A.L.J. 413. On the other hand, the decisions in Allah Jilai v. Umrao Hussein 24 Ind. Cas 535 : 36 A. 492 : 12 A.L.J. 810 and Latafat Hussain v. Kaliker Nand Singh 45 Ind. Cas. 432 : (1918) Pat. 225 : 3 P.L.J. 361 : 4 P.L.W. 303 furnish instances where the possibility of a fresh cause of action for declaratory relief is recognised, and the doctrine is broadly formulated that a plaintiff seeking a declaration is entitled to sue upon each successive invasion of his right. Similar instances may be found in Ilahi Bakhsh v. Harnam Singh A.W.N. (1898) 215, Robert Skinner v. Shankar Lal 1 Ind. Cas. 556 : 5 A.L.J. 638 note; 31 A. 10 note. Brij Behari Singh v. Sheo Shankar Jha 39 Ind. Cas 85 : (1917) Pat. 108 : 2 P.L.J. 124 : 1 P.L.W. 434 and Ramji Ram v. Sadhu Saran Lal 41 Ind. Cas. 11 : 2 P.L.J. 493. In the case before us, the Subordinate Judge has found that the cause of action arose in 1914, within six years before the date of the institution of the suit when the first defendant, in denial of the title of the plaintiff, mortgaged and sold shares in the disputed property in excess of her lawful interest therein. But it has been contended on her behalf that a cause of action had arisen in 1898, when her husband filed a written statement and gave his deposition in a suit, in which he denied that the plaintiff had one third share and himself claimed a one-fourth share. The Subordinate Judge has held that these assertions, which were not accompanied or followed by an overt act, were not calculated to cast a cloud upon the title of the plaintiff and did not accordingly give rise to a cause of action. This, in our opinion, is a reasonable view. But it is also clear that the present cause of action is entirely distinct from and is in no sense a continuation of a prior cause of action, even if it should be held that a cause of action did arise in 1898. We accordingly affirm the conclusion of the Subordinate Judge that the claim for declaratory relief is not barred by limitation.

4. The third and final point which requires consideration is, whether the suit has been rightly dismissed under the proviso to Section 42 of the Specific Relief Act, which is in the following terms:

Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

5. It was successfully contended in the Court below, and the same view has been reiterated in this Court on behalf of the respondent, that inasmuch as the plaintiff could have sought further relief than a mere declaration of title by way of partition, omission to do so must draw upon him the penalty of refusal of the declaration he seeks. In support of this view, reliance has been placed upon the decision of the Madras High Court in Suryanarayanamurti v. Tammanna 25 M. 504. In the case mentioned, it was ruled that a plaintiff suing for a declaration that property bequeathed by his father to the defendant was ancestral and that his father had no power to bequeath it and that he was entitled to it by survivorship along with the defendant, ought to pray for partition of the property even if it be in the possession of tenants. With regard to this decision, as also the two earlier cases of Sardarsingji v. Ganpatsingji 14 B. 395 : 7 lad. Dec. (N.S.) 724 and Srinivasa Ayyangar v. Srinivasa Swami 16 M. 31 : 2 M.L.J. 139 : 5 Ind. Dec. (N.S.) 729, Sir Frederick Pollock has remarked in his commentary on the Specific Relief Act that they mark the extreme limits of the application of the proviso to Section 42. We are inclined to adopt the same view and it appears to us to be fairly clear that assuming that the plaintiff was in possession in the case of Suryanarayanamurti v. Tammanna 25 M. 504 that decision does not give due weight to the fundamental fact that the expression used by the Legislature is, not 'other relief,' but 'further relief.' The further relief must consequently be relief in relation to the legal character or right as to property which the plaintiff is entitled to and whose title to such character or right the defendant denies or is interested in denying; it must also be relief appropriate to and necessarily consequent on the right or title asserted. This view is supported by the decision in Aisa Siddika v. Bidhu Sekhar 18 Ind. Cas. 633 : 17 C.L.J. 30 at p. 33, which was recently followed in Sivaramalinga v. Sabharatna 51 Ind. Cas. 822 : 36 M.L.J. 624 : 9 L.W. 357 (1919) M.W.N. 216 : 25 M.L.T. 361. These cases emphasise the standpoint that a suit for a declaratory decree ought not to be dismissed on the ground that it is barred by the proviso to Section 42 of the Specific Belief Act, unless it is quite clear that the plaintiff ought to seek further relief which he has failed to claim, although such relief flows directly and necessarily from the declaration sought for. Thus, when a person is out of possession of the land in respect of which he seeks to have his title declared, possession of the land in dispute is further consequential relief appropriate to the declaration prayed for and should as a general rule be sought. Basavayya v. Syed Abbas Saheb 24 M. 20, Ranga v. Unnikutti 24 M. 275, Ramaswamy v. Muniandy Servai 5 Ind. Cas. 343 : 20 M.L.J. 709 : 7 M.L.T. 253 : (1910) M.W.N. 550. This is manifestly right on principle, for it would lead to multiplicity of litigation if the plaintiff were allowed to seek the full measure of relief piecemeal, namely, first, a declaration of title in a suit for declaratory relief, and next, ejectment in a suit for recovery of possession: Ganpatgir Guru Bholagir v. Ganpatgir 3 B. 230 : 2 Ind. Dec. (N.S.) 155, Chokalingapeshana Naicker v. Achiyar 1 M. 40 : 1 Ind. Dec. (N. s.) 25. The position, however, is different where the plaintiff is in joint possession of joint property to the extent of the share claimed by him and is driven to ask for declaratory relief, because the extent of his share is disputed by the co-owner. In a case of this description, it is difficult to appreciate on what principle the plaintiff should be driven to seek for partition as a consequential relief. One of the incidents of joint property is that it may be enjoyed jointly; another incident is that its joint character is liable to be terminated. If a co-owner is content to enjoy joint property as such, there is no reason why he should be driven to seek for partition, merely because his co owner chooses to dispute the extent of his share. The proviso to Section 42 forbids a suit for a pure declaration without further relief, but it does not compel a plaintiff to sue for all the reliefs which could possibly be granted, or debar him from obtaining a relief which he wants unless at the same time he asks for a relief which he does not want. It may be that the plaintiff requires nothing more than a mere declaration and in those circumstances to refuse to make the decree asked for will be a denial of justice; Kunj Behari v. Keshavlal Hiralal 5 Ind. Cas. 343 : 20 M.L.J. 709 : 7 M.L.T. 253 : (1910) M.W.N. 550, Chinnappa Chettiar v. Thulasi Ammal 15 M.L.J. 399. On this ground, it has been maintained that if the plaintiff is only entitled to what is called constructive possession by receipt of rent from the defendant, a declaration of title is all he needs; Loke Nath v. Keshab Ram 18 C.147 : 11 Ind. Jur, 105 : 6 Ind. Dec. (N.S.) 657, Nirmal Chunder v. Mahomed Siddik 26 C. 11 : 25 I.A. 225 : 7 Sar. P.C.J. 383 : 13 Ind. Dec. (N.S.) 611 (P.C.), Satish Chandra v. Satya Charan 5 Ind. Cas. 531 : 14 C.W.N. 576 Parasram Ratanram v. Bhimbhai Kirparam 5 Bom. L.R. 195. Reference may in this connection be made to the decision in Velammal v.Vanammal 6 Ind. Cas. 198 : 20 M.L.J. 349 : 7 M.L.T. 155. There the plaintiff, one of several sharers, sued to have it declared that the decree passed on a hypothecation made by his co sharers did not affect his share; it was ruled, notwithstanding the decision in Suryanarayanamurti v. Tammanna 25 M. 504, that the plaintiff need not ask for a general partition, even though he had impleaded those co-sharers as defendants. This is obvious good sense, but rather difficult to reconcile with the opinion expressed in Ganapaty Venkatrayudu v. Butchu Venkatrayudu 5 Ind. Cas. 921 : 20 M.L.J. 759 : 7 M.L.T. 164 : (1910) M.W.N. 545 on the authority of the earlier decisions in Sripati Chinna Sanyasi Razu v. Suriya Razu 5 M. 196 : 6 Ind. Jur. 410 : 2 Ind. Dec. (N. s.) 137 and Subramanya Chettyar v. Padmanabha Chettyar 19 M. 267 : 6 Ind. Dec. (N.S.) 891. The view that in cases of this description it is not obligatory upon the plaintiff to ask for partition was, however, maintained by Chamier, C.J., in Asman Singh v. Tulsi Singh 39 Ind. Cas. 173 : (1917) Pat. 131 : 2 P.L.J. 221 : 1 P.L.W. 335., which is consistent with the view indicated in Chinnammal v. Varadarajulu 15 M. 307 : 5 Ind. Dec. (N.S.) 566. We hold accordingly that where, as in the case before us, the plaintiff is in joint possession of immoveable property, whether such possession be actual possession of his share of the whole or actual possession of a part coupled with constructive possession of the remainder, he is entitled to maintain a suit for declaratory relief with a view to remove a cloud on his title created by the act of the defendant disputing his share; in a suit so framed, declaration of title is all that the plaintiff needs and he is consequently not called upon to ask for consequential relief by way of partition, The conclusion follows that the Subordinate Judge has erroneously held that the proviso to Section 42 of the Specific Relief Act is a bar to the relief claimed by the appellant.

6. The result is that the appeal is allowed and the suit decreed with costs in both Courts payable by the first defendant. The plaintiff will have a declaration in terms of the first clause of his prayer in the plaint.

Buckland, J.

7. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //