D.N. Mitter, J.
1. The history of this litigation which has culminated in this appeal carries us back to the year 1242 B.S., corresponding to 1835. The suit is for a declaration of title and for recovery of possession of some six rooms as part of 12 temples of God Shiva in Navadwip. The case made in the plaint which is pretty long is that the ancestor of some of the plaintiffs, one Gurudas, was the possessor of 16 annas share of the land on which these 12 temples are built in succession to their predecessor, in their own right, and in the right acquired by adverse possession against others for long over 12 years, as shebaits of Sri Sri Iswar Dwadasha Shiva Thakurs and as heirs of their ancestors. After setting forth in their plaint the numerous events that happened including devolution of rights and interests on the death of the different members of the family who are named in the genealogical tree to which we will presently refer, the plaintiffs alleged that they have been dispossessed, as a result of certain proceedings under Section 103, Ben. Ten. Act, from these six rooms by the defendants. The relationship between the parties to the suit are shown in the genealogical tree which is appended below.
| | | |
Ramprosad Das Harcharan das Iswarchandra das Deb chandra das
d.1808/1215 d. Decembe 1828 or d. 1818/1225 d. 1832/1239
| January 1829/1236 =Drabamoyee =(1) Nrityamoyee
| | d. 1877/1284 d. 1848/1255;
| _______________|____________ | (2)Pearimoni
| | | Satkowrie d. 1849/1256
| Madhusudan Bissambhar d. unmarried |
| d. 1920/1327 =Swornamoyee 1822/1229 Bireswar, born blind
| | d. childless d. 1861
| Rajkrishna =Muktamoni
Gurudas d. 1920/1327 |
d. 1863/1270 | |
| _______________________________________________________ Krishnachandra
| | | | | (born 1858)
| Haritosh Haribhusan Hariballov Harimoy (d. 1924)
| Pltf. 8 pltf. 9 pltf. 10 Pltf. 11 |
| | |
| Nirmala(Deft. 1) Anukul(Deft. 2)
| =Sundari (Deft. 3) =Suborna
| (Deft. 4)
| | | | | |
Durgadas Kalidas Nrisinghprosad Umacharan jogneswar Sarbessor
d. 1865/1272 d. 1892/1299 d. childless d. 1909/1316 d. 189/1305 d. 1889/1296
| | =Bidhumoni | | |
| | d. 1913/1320 Purna | Indubhusan
| | | | (pltff. 7)
________|_________ ___|_________________ | |
| | | | Abani (pltff. 3) |
Mohitosh Ashutosh Giritosh Tarapado ________|__________________
(pltff. 1) d. (Pltff. 2) d. unmarried | | |
=Mallika Tarini Jnanendra Atul
Sundari(Proforma (Pltff. 4) (plrtff. 5) (pltff. 6)
2. It appears from the said tree that the plaintiffs and the defendants to the present suit derived their descent from their common ancestor, one Asananda Das. Both in the Court below and before us the accuracy of the genealogical tree both in respect of the several descendants of Asananda as also in respect of the dates of the death of the numerous members of the family, have been admitted. It appears from the said tree that Asananda died leaving behind him four sons, Ram Prosad Das, Har Chandra Das, Iswar Chandra Das and Deb Chandra Das. Ram Prosad died in 1808 leaving behind him his only son Guru Das who was the ancestor of plaintiffs 1, 2, 3, 4, 5, 6 and 7. Hara Chandra Das, the second son of Asananda died in 1828 leaving behind him two sons Madhusudhan and Biswambhar. Biswambhar died childless and Madhusudhan left behind a son Raj Krishna. Raj Krishna had four sons whose names occur in the tree as Haritosh, Hari Bhusan, Hariballav and Harimoy, plaintiffs 8 to 11. Iswar, the third son of Asananda died in 1818 leaving behind him a widow Drabamoyee and a son. Satkowri died unmarried in 1822 leaving behind him his mother Drabamoyee who died in 1877. Deb Chandra Das the youngest son of Asananda, died in 1832 leaving behind him his two widows Nrityamoyee who died in 1848 and Pearimoni who died in 1849. Deb Chandra Das had a son Bireswar through his wife Pearimoni who was born blind and Bireswar died in 1861, leaving behind him his son Krishna Chandra who is the father of defendants 1 and 2 and the father-in-law of defendants 3 and 4.
3. It is necessary here to recount a certain circumstance which would show that defendants 1 and 2 did not inherit the 4 annas share of Deb Chandra Das because Bireswar was born blind and the 4 annas share of Deb Chandra did not therefore descend to Bireswar. There was a litigation between Bireswar and Guru Das and as a result of the Full Bench decision of this Court which is reported in Kalidas Das v. Krishan Chandra Das (1869) 2 Beng L R 103, it was held that Guru Das did succeed to the 4 annas share of Deb Chandra Das's estate. The next event of importance to which reference need be made is with reference to the 4 annas share of Iswar Chandra Das which after his death devolved on his son Satkowri and after Satkowri's death in 1882 devolved on his mother Drabamoyee and continued in Drabamoyee till the time of her death in 1877. The case made in the plaint is that Guru Das erected these 12 temples so far back as in the year 1242 on joint lands. He dedicated these temples to god Shiva. The inscription on the tablet was in his name and he possessed these debuttar properties exclusively in his own right and as a cosharer being excluded from any interest in the debuttar properties. Question has arisen whether this was a dedication of the completest kind or it was merely an incomplete debuttar in the sense that it was a secular property charged with ancestral worship. The Subordinate Judge has taken the latter view, viz., that it was an incomplete debuttar. According to him it was a nominal debuttar being really secular property charged with ancestral worship. We will have to say something on this later. To continue the history as given by the plaintiffs it was stated that Guru Das excluded all other co-sharers from the very beginning. But later it was admitted that Raj Krishna was taken in Guru Das's family, and therefore the heirs of Raj Krishna, plaintiffs 8 to 11, have got some interest in the debuttar properties.
4. The next event of importance to which reference may be made is the partition suit which was instituted on the Original Side of this Court in 1873. The decree in that suit for partition, as well as the order in that suit, which was disposed of in 1882 are printed at pp. 30 and 18 respectively of part 2 of the paper-book and have been marked as Ex. H and Ex. 30 respectively in the case. It does appear from these proceedings that the properties now in dispute were excluded from the suit for partition and that for a very good reason, for it appears that whatever the nature of the debuttar properties were, whether they were absolute debuttar or secular properties charged with worship, they could not form the subject matter of partition. In any event the properties were not included in the partition suit. The plaintiffs assert that Guru Das really acquired exclusive title in 1831 and since then on the basis of exclusive title has dedicated these properties to god Shiva, and that no one else amongst the co-sharers has anything to do with debuttar properties. As has been said already latterly there was some litigation in connection with Deva Sheba which resulted in certain proceedings under Section 9, Specific Relief Act, in which the present plaintiffs succeeded. But that was followed by the Bengal Tenancy Act proceedings in which defendants succeeded with the result that the defendants were able to raise three rooms and get possession of three Shiva lingas out of the twelve. Hence the present suit. The defence which is as long as the plaint substantially falls under three heads. It is first contended that there has been no adverse possession for more than the statutory period of the right to hold these lands as shebaits so as to defeat or bar the defendants' right with regard to the rooms which have been erected and which form part of the Shiva Mandirs which are the subject-matter of the suit.
5. The second ground is that the suit is not maintainable in its present form seeing that Mallika Sundari, who is in the line of Guru Das being the wife of Durga Das's son Ashutosh, who has been described as pro forma defendant 10, has not joined as plaintiff and it is said that the present suit by some of the shebaits, who have been arranged in the category of plaintiff, is not maintainable. It has been contended further as the last ground that the plaintiffs are not entitled to mesne profits. It has been urged that in, calculating mesne profits the defendants should have a set off of Rs. 500/- which have been spent by the defendants for executing the repairs in the rooms in question. The Subordinate Judge, after framing numerous issues which arise on the allegations in the pleadings, has rested his decision in favour of the plaintiffs on the ground that the right of Krishan, the father of defendants 1 and 2, to the Shebaitship has been extinguished by adverse possession for more than 12 years. In other words he has held that there has been a complete ouster for a very long period of time so as to exclude the rights of Krishan and necessarily the rights of defendants 1 and 2 to the Shebaitship. He has held also that the plea as to the maintainability of the suit must fail as Mallika Sundari has relinquished her right; and as the right which she has relinquished does not purport to be more than Rs. 100 no registered document is necessary to effect a complete extinguishment of right in favour of the next reversionary heir or heirs. On the question of mesne profits he has given a decree for the sum of Rs. 1,138 on this footing that for 3 years preceding the institution of the suit the total amount of rent due to the plaintiffs but taken by Krishan or his successors was Rs. 1,264-8-0. Deducting 10 per cent as collection charges and incidental expenses Rs. 1,138 represents the amount of mesne profits due for the period to the plaintiffs.
6. He has apparently held that being defeated in Section 9 case, the defendants were in wrongful possession of the four rooms in question and has consequently not taken into account the sum of Rs. 500 which the defendants are alleged to have spent for the repairs of these rooms in question during the pendency of the case under Section 9, Specific Relief Act. It is against this decision that the present appeal has been brought by the defendants and the three heads of defences which have been already indicated have been raised before us and they really form the three grounds on which Mr. Debendra Nath Bagchi, who appears for the appellants, has proposed to rest this appeal. We will take first the plea that the suit is not maintainable in its present form. It appears that the view taken by the Subordinate Judge is that there was no necessity for a registered deed for the purpose of effecting a surrender of the rights of a Hindu widow in her deceased husband's estate in favour of the next reversioner where the value of the rights surrendered is less than Rs. 100. Apart from that it appears that a petition was put in the suit on 19th January 1931 (which is to be found printed at p. 81 of the first part of the paper book) where Mallika Sundari states that she had relinquished the twelve temples and the property appurtenant thereto and the Shiba and Puja of the deities in question in favour of her husband's younger brother Mohitosh Das, plaintiff 1, and that he is to be in ownership and possession of the said property. She states further in the said petition that she has no objection to the plaintiff's getting a decree in full for 16 annas. Surender under Hindu Law does not require a deed and by this petition Mallika Sundari has surrendered all her rights in her deceased husband's estate in favour of the next reversioner. There is therefore no substance in this ground based on the non-maintainability of the suit in the present form.
7. The real question on which the controversy has centred in the present appeal is as to whether the plaintiffs on whom undoubtedly the burden lay of showing that Krishan's right had been extinguished by adverse possession have discharged that burden effectively. Plaintiffs have given direct evidence of the exclusion of Krishan from Shebaitship shortly after the death of Drabamoyee which happened in 1877. It is no doubt the case of the plaintiff that Drabamoyee did not share in the worship and did not act as Sebait so long as she was alive after the death of her son Satkowrie in 1822. We can state at once that there is hardly any evidence which we can trust to show that Drabamoyee was excluded from Shebaitship. But there is direct evidence as to the exclusion of Krishan and his successor after the death of Drabamoyee in 1877 from Shebaitship. (His Lordship then discussed the evidence and proceeded.) From these circumstances, as also the direct evidence, we have no doubt that the only conclusion that we can come to is that there has been ouster of Krishan from the year 1878 from this shebaitship.
8. The rule with regard to exclusive possession of a co-sharer in joint properties to the exclusion of other co-sharers applies also to property which is held in common by persons in their capacity as shebaits. The rule with regard to what constitutes an ouster of a co-sharer from joint property is well settled by the decision of their Lordships of the Judicial Committee of the Privy Council in a case which went from Ceylon. Lord Macnaughten in delivering the judgment of the Judicial Committee pointed out that possession is never considered adverse if it can be referred to a lawful title as was laid by Vice-Chancellor Wood in Thomas v. Thomas (1855) 2 K & J 79. See Corea v. Appuhamy 1912 A C 230. In order to succeed on the ground of ouster the person setting up ouster was bound to show that he did set up an adverse or independent title during the period which was beyond the statutory period of twelve years. The case is reported in Corea v. Appuhamy 1912 A C 230. At p. 236 of the said report Lord Macnaughten said this:
The two learned Judges in the Court of appeal did not adopt in its entirety the suggestion of the trial Judge. They both held that Iseris entered as sole heir, and that his title has been adverse ever since he entered. They held that he entered as 'sole heir', apparently because he had it in his mind from the first to cheat his sisters. But is such a conclusion possible in law? His possession was in law the possession of the co-owners. It was not possible for him to put an end to that possession by any secret intention in his mind. Nothing short of ouster or something equivalent to ouster could bring about that result.
9. In a case from India, this case of Corea v. Appuhamy 1912 A C 230, was cited by their Lordships of the Judicial Committee of the Privy Council and their Lordships pointed out in that case:
Uninterrupted sole possession of such property, without more, must be referred to the lawful title possessed by the joint holder to use the joint estate, and cannot be regarded as an assertion of a right to hold it as separate, so as to ascertain adverse claims against other interested members. If possession may be either lawful or unlawful, in the absence of evidence it must be assumed to be the former. The fact, therefore that this village of Bhagsar has been occupied for many years by the defendants and their predecessors is insufficient to prove exclusion of the plaintiffs without further evidence.
10. The same view has been taken in a later case which was cited at the bar. We refer to the case of Govind Rao v. Raja Bai 1931 P C 48. After referring to the case of Corea v. Appuhamy 1912 A C 230, their Lordships say this:
In that case however what was decided by the Board was that the possession would not be adverse until ouster.
11. All the cases on this question of ouster or exclusion from joint property were reviewed quite recently in a decision to which I was a party in the case of Jagadeesh Chandra Bauerji v. Taiyab Sardar 1934 Cal 644, where reference was made also to another case of their Lordships of the Judicial Committee, namely the case of Muthunayagam v. Brito (1918) A C 895. It is pointed out in this last mentioned case that the true rule which is deducible from these authorities is that there can be no adverse possession by one cosharer as against others until there is ouster or exclusion and that the possession of a cosharer becomes adverse to another cosharer from the moment when there is an ouster, i.e., after there is an assertion of a hostile title by one cosharer against the other and to the knowledge of the latter. In the case before us having regard to our finding that Krishan asserted his right in 1877-78 and failed, there can be no doubt that his right to the endowment had been extinguished by reason of ouster by the branch of Guru Das's heirs. On behalf of the respondents Mr. Bireswar Bagchi, has raised a very broad contention that non-participation of rent and profits of rent paying property or want of actual possession of properties which are being possessed by one cosharer for a very long period would constitute ouster even if there is no direct evidence of exclusion. In support of this proposition he has drawn, our attention to a certain observation of their Lordships of the Judicial Committee of the Privy Council in Varada Pillai v. Jeevarathammal 1919 P C 44. The passage relied upon is to be found at p. 292 of the report. Their Lordships point out this:
The limits of the rule were defined in Culley v. Doed Taylerson (1840) 11 A & E. 1008 as follows: Generally speaking, one tenant in common cannot maintain an ejectment against another tenant in common, because of the possession of the other and to enable the party complaining to maintain an ejectment, there must be an ouster of the party complaining. But where the claimant, tenant in common, has not been in the participation of the rents and profits for a considerable length of time, and other circumstances concur, the Judge will direct the jury to take into consideration whether they will presume that, there has been an ouster, and, if the jury find an ouster, then the right of the lessor of the plaintiff to an undivided share will be decided exactly in the same way as if he had brought his ejectment for an entirety.
12. This case does not support the broad proposition formulated that dispossession or non-possession for a considerable length of time is sufficient to give rise to an inference of ouster. The words which have been italicised, namely, other circumstances concur are of very great-materiality. It is somewhat dangerous doctrine to propose that mere non-participation of rents and profits of joint property by a cosharer for a very long period would be sufficient to give rise to the inference of ouster. It would indeed be very dangerous to lay down such a proposition as a correct proposition in law. It often happens that one member of a joint Dayabhaga family lives at Calcutta and another member works, under Government at Simla Hills for a period of 30 or 40 years, the member in Calcutta being joint in property with the member in Simla Hills. It may be that circumstances do not permit the other member at Simla Hills to come to Calcutta and to live for a day in his Calcutta house and to realise rents and profits of some joint properties or to associate himself in the worship of the family deity. It is difficult to hold that mere non-participation in the profits of joint property bars the rights of the members living at Simla Hills to the advantage of the member living in Bengal. It is for that reason that their Lordships are careful enough to say that when along with non-participation of rents and profits for a considerable length of time other circumstances concur, an inference of exclusion or adverse possession under hostile title, might be drawn. Reference was made in this connection to a decision of Sir Lawrence Jenkins when he was the Chief Justice of Bombay in Gangadhar v. Parashram Bhal Chandra (1905) 29 Bom 300. That was a case which came before the learned Chief Justice in second appeal and the finding was that the tenant in common was continuously for a long period in possession of the joint property without any claim or demand by any person claiming under the other tenant-in-common and it was held that this is an evidence from which an actual ouster of the other tenants-in-common may be presumed. In support of this proposition Sir Lawrence Jenkins was citing the following passage from the decision in the case of Culley v. Doed Taylerson (1840) 11 A & E. 1008 to which reference may be made. The passage is this:
No doubt exclusive receipt of profits continuously for a long period may point to an ouster, but the Court must be satisfied that such taking of profits is an indication of a denial of rights in the other co-tenant to receive them. 'That is a very important statement and it shows that the mere fact of exclusive receipt of profits continuously for a long period would not be sufficient to prove ouster.
13. The Court must be satisfied that the taking of profits is an indication of a denial of rights in the other co-tenants to receive them. Besides it is to be noticed that this decision was prior to the decision of the case of Hardit Singh v. Gurmukh Singh 1918 P C 1. The decision in Hardit Singh's case (10) was by a committee of which Sir Lawrence Jenkins was himself a member, and the passage which is quoted above shows that long and uninterrupted possession without more by one cosharer is not sufficient to constitute adverse possession. Having regard to our finding it is not necessary for us to determine the correctness or otherwise of the broad principle formulated by the learned advocate for the respondent. As this point was raised, some time was taken up in discussing the question in regard to the proposition so enunciated. As we have already stated, before the death of Drabamoyee the respondents made out no case of ouster, but an attempt has been made to make out a case of ouster from the period subsequent to her death. In our opinion continuous dispossession subsequent to that period does make out a case of ouster for more than the statutory period. It remains now to consider the third ground of mesne profits. It has been sought to be argued on behalf of the appellants that in computing mesne profits the Court below should have taken into account the sum of Rs. 500, which was spent by the appellant for the repairs of the rooms out of the rents collected. There is no doubt on the evidence on behalf of the appellants that the sum of Rs. 500, was spent. But there is no documentary evidence to support the case made by the defendants. One would have expected that accounts would be forthcoming to show what the actual amount spent was. It is stated by the defendants that the accounts are with their vendee. In the absence of the best piece of evidence which could have been produced in order to show what the actual amount spent was, we see no reason to dissent from the decision of the Subordinate Judge in this part of the case.
14. It is hardly likely that after the disposal of the suit under Section 9 the defendants would proceed to spend a large sum in the repairs of house of the rooms which they were in possession of. We think, therefore, that the decree for mesne profits for Rs. 1,264-8 less the collection charges has been rightly given by the Subordinate Judge. All the grounds in appeal fail. It remains now to consider the question of costs. It appears that the plaintiffs founded their case both on their original title by inheritance as well as on adverse possession or ouster. So far as the first part of the case is concerned they have failed. Evidence was directed also towards that part of the case and in these circumstances we think that they failed on the principal issue of title by inheritance. So the proper order to make as to costs is that the plaintiffs should get half their costs throughout. To this extent the decree of the Subordinate Judge with regard to costs is varied.
15. I agree.