C.R. Thakur, J.
1. This is a defendants' appeal arising out of a suit for partition of Hindu coparcenary property.
2. The plaintiffs pleaded that they formed a joint Hindu family with the defendants, Shiam Sunder and others and the property in suit was coparcenary property, that they possessed a 2/3rd share in the same and a 1/3rd share belonged to the defendants.
3. In order to understand the real relationship between the parties it would be proper to give the genealogical tree of the parties:
| | | |
Devki Nandan Gauri Shankar Ram Chander Ganga Ram
died issueless) | |
Chaman Prakash | |
(adopted son) | _________________
(Plaintiff No. 3) | | |
| Tara Chand Manmohan Lal
| (Plaintiff 1) alias
| Pawan Prakash
| (Plaintiff 2)
| | | | | | |
Shayam Sunder Jagdish Narain Vishwa Nath Uma Devi Damyanti Daya Wati Karma Devi
(Defdt. 1) (Defdt. 2) (Defdt. 3) (Defdt. 4) (Defdt. 5) (Defdt. 6) (Defdt. 7)
The plaintiffs alleged that Chaman Pra-kash, the natural son of Ganga Ram, had been adopted by Gauri Shankar, that he was entitled to a 1/3rd share in the property and the other plaintiffs to a 1/3rd share.
4. The defendants denied that they were the members of the joint Hindu family or that the suit property was coparcenary property. They pleaded that the parties had separated 30 or 40 years ago. It was, however, admitted that the property was ancestral but further on it was pleaded that during the lifetime of their common ancestor, Shib Dutt, the property had been partitioned and thereafter they were living separately. The defendants also took up the plea that they were in adverse possession of the suit property. It was said that the suit was barred by limitation. It was also asserted that the brothers of Ram Chander, during the lifetime of their father, had refused to pay the debts of their father and that Ram Chander had discharged the said debts and, therefore, Shib Dutt, their father disinherited the other sons. It was denied that Chaman Prakash had been adopted by Gauri Shankar. It was also pleaded that the suit had not been properly valued for purposes of court-fee and jurisdiction, and that, the plaintiffs were estopped from filing the suit on account of their acts and deeds.
5. The court below found that Chaman Prakash was the validly adopted son of Gauri Shankar and was entitled to a 1/3rd share on his death. However, this point is not relevant for the purposes of this appeal as the same is not pressed by learned counsel for the appellant. Issue No. 2 which arose on the plea that a decree in an earlier suit declaring Cha-man Prakash as the adopted son of Gauri Shanker was also not pressed. The trial court found the other issues against the defendants, with the result that a decree was passed in the suit in favour of the plaintiffs to the effect that they were entitled to a 2/3rd share of the property and that they were entitled to divide the property by metes and bounds. Further, it was ordered that one or more commissioner or commissioners be appointed to effect partition of the property on the spot and on receipt of the report the plaintiffs would be entitled to a final decree.
6. The plea of the appellants that they do not constitute a joint, family with the respondents and that the property is not coparcenary property may be dealt with first. It cannot be disputed that the properties in Khasra Nos. 1577 and 1973 constituted coparcenary property in the hands of Shib Dutt while the property situated in Khasra No. 1924/2 must be regarded as his self-acquired property. The three properties, on the death of Shib Dutt, would constitute the coparcenary property of the Hindu coparcenary consisting of his sons, Gauri Shankar, Ram Chander and Ganga Ram, and their sons. But the appellants say that because Gauri Shankar and Ganga Ram did not clear off the debts of Shib Dutt and Ram Chander did so. Shib Dutt in his lifetime gave away all the properties to Ram Chander. Reliance has been placed on a document (Exhibit DA) dated 10th Bhadon, 1882 BK alleged to have been executed by Shib Dutt in favour of Ram Chander. It purports to relate to land on which Ram Chander has been declared entitled to construct a house for himself, which house would fall in his share. The other two houses would also belong to Ram Chander unless the remaining sons decided to take a share therein after giving to Ram Chander certain money and ornaments relating to a litigation and making reimbursement in respect of expenses incurred on the repair of the two houses. This document cannot be accepted as a will. It has not been attested by two witnesses. It cannot also be treated as a gift, because admittedly the value of the property is over Rs. 100/- and the document is not registered. It is also not proved to be in the writing of Shib Dutt. The marginal witness Salig Ram cannot be identified. The oral testimony adduced for the purpose of proving the signatures of Shib Dutt and Salig Ram is unreliable. The document (Exhibit DA) cannot be used in support of the case of the appellants. There is then a letter (Exhibit D XX) alleged to have been written by Ganga Ram to Ram Chander, by which Ganga Ram appears to relinquish his interest in the properties. This document is also not registered and is of no help to the appellants. In my opinion, the oral and documentary evidence on the record does not establish that the three properties were given away by Shib Duit to Ram Chander. There is nothing to suggest that they were not ancestral property in the hands of Gauri Shankar, Ram Chander and Ganga Ram on the death of their father Shib Dutt.
7. Great reliance has been placed by learned counsel for the appellants on the principle enunciated by the Privy Council in Yellappa Ramappa Naik v. Tippanna (AIR 1929 P. C. 8) :
'When it appears from facts that through generations a property has been possessed in a certain single line, it can never be said that it lies upon that line to establish that it was dissociated generations ago, from another line which appears on the scene as a claimant and propones no facts of jointness, such as living in the same home, sharing in food or worship, or quoad estate participating in the enjoyment or fruits thereof. To put, in consequence of a stretch of the doctrine of onus, an unnatural and forced construction upon the actual facts of family life and development is not warranted by the law of India.'
That was a case where a single branch of the family had through several generations possessed the property in dispute. There can be no doubt that the presumption of jointness becomes extremely weak when the property has remained in the sole possession of a large number of generations of one branch. In the present case, after Shib Dutt there are only two generations which need to be taken into account : the three surviving sons of Shib Dutt and their families. 'A third generation consists of the daughters of Vishwa Nath, one of the sons of Ram Chander. The doctrine laid down in Yellappa Ramappa Naik (supra) cannot be applied to the facts of the present case. It may be, as appears from the evidence before us, that for several years the respondents have lived separately at Delhi from the appellants who have been in possession of the property at Nahan. But that in itself is not sufficient to bring the case out from the presumption that the parties constitute a joint family and the properties are coparcenary in character. Indeed, it appears that when Ram Chander and his sons took a loan of Rs. 1,200/- from the Bank of Sirmur they executed a document (Exhibit PXX), in which they mentioned that they were pledging their l/3rd share in the property in suit situated in Khasra Nos. 1577 and 1973. The document is of January, 1953 Shib Dutt died long before this, and it is clear that the recital in the document cuts at the very root of the appellants' case that all the properties were given away by Shib Dutt to Ram Chander alone. So far as the property situated in Khasra No. 1924/2 is concerned, there is no evidence worthy of reliance that it was given by Shib Dutt to Ram Chander to the exclusion of the respondents. According to the appellants, it was by a single transaction covering all the properties that Shib Dutt had given the property to Ram Chander. When the case fails in respect of two properties, there is nothing to suggest why a distinction should be made in respect of the third.
8. The next question is whether the appellants can be held entitled to the properties on the ground of adverse possession. It is well settled that in the absence of clear proof of ouster, the possession of one sharer must be regarded as possession on behalf of all. I have carefully considered the material evidence on the record, and to my mind it is not reasonably possible to hold that the ouster from possession of the respondents has been established. There is nothing to show that for a period of twelve years or more there has been a disclaimer by the appellants of the right of the respondents by any open and unequivocal assertion of hostile title. A distinction was sought to be drawn in respect of the respondent Chaman Prakash, the adopted son of Gauri Shankar, and it was contended by the appellants that because of the judgment of the learned District & Sessions Judge, Nahan in Case No. 12/1 of 1998 (Exhibit PA) it must be held that so far as Chaman Prakash was concerned the appellants were in adverse possession of the properties, or at least of the property situated in Khasra No. 1924/2. The submission is based on the circumstance that issue No. 2 in that suit was whether the defendant Ram Chander had established his possession on the property of Gauri Shankar deceased at the time of his death in 1998 BK and that the learned District & Sessions Judge had decided the issue against Chaman Prakash. In my opinion, on a perusal of the entire judgment in the suit it is not possible to say that the learned Judge has held that the defendant Ram Chander was in possession. The issue was never considered on the merits. It was taken into consideration along with issue No. 3 which was on the point whether the plaintiff Chaman Prakash was the owner of 1/3rd share of the properties situated in Khasra Nos. 1577, 1973 and 1924/2 and issue No. 6 on the point whether the suit was not barred by Section 42 of Act 1 of 1977 BK. The learned Judge took the view that no suit for declaration of ownership of a 1/3rd share was maintainable inasmuch as it was brought on the basis that the plaintiff Chaman Prakash had inherited the property as co-sharer. It was observed that a suit for partition of the property had to be filed. A declaration could not be granted because so long as the family continued joint it could not be predicated what was the particular share of any member of the family. It is apparent that because the suit was found not maintainable the learned Judge declined to give any finding on issue No. 2. It cannot be said that he had rendered a finding that the defendant Ram Chander was in possession of the property of Gauri Shankar.
9. From the oral evidence led by the parties also the only conclusion that can be drawn is that the defendants had not been treating the property as their own, disclaiming the right, title and interest oi the plaintiffs over the property. Unless some overt act on the property to the knowledge of the other party is established there can be no adverse possession in the case of co-sharers. Therefore, the plea of adverse possession fails.
10. Since the plea of adverse possession raised by the defendants is negatived the question of limitation does not arise.
11. These were the only points that were argued. In these circumstances, the appeal fails and is dismissed with costs.