Decided on March 29,1955



- (1.)THE Judgment of the Court was delivered by THE Hon'ble Mr. Justice Chandra Reddy. Defendants 1, 3 to 5 and 7 are the appellants. This appeal is directed against the Decree and Judgment of the Subordinate Judge of Kurnool. THE suit giving rise to this appeal was instituted by the 1st respondent for partition and for separate possession of his th share in the plaint scheduled lands and for ther incidental reliefs. In order to appreciate the controversies that arise in this appeal, it is necessary to trace briefly the history of this litigation. THE properties involved in the appeal belonged originally to one Amthul Khadar Bibi the mother of the appellants. She died on 26-5-1923 leaving behind her, her mother the 7th defendant, her husband the 6th defendant and the appellants. Prior to her death, she and her husband borrowed moneys from the plaintiff, some times on the security of her properties and some times on promissory notes. On 28-9-1929, the appellants and the 6th defendant executed a mortgage deed for a stated consideration of Rs. 38,000/- made up of various items of consideration which need not be detailed here. Suffice it to say that they included the debts incurred by the deceased Amthul Khadar Bibi and her husband. THE document described the defendants 2 to 5 as minors represented by their father and guardian the 6th defendant. As this debt remained unsatisfied, the present plaintiff instituted O. S, 40/33 in the Sub Court, Kurnool, on the basis of the mortgage against the present appellants and the 6th defendant. THE suit was resisted by all the defendants on various grounds such as failure of consideration, fraud practiced by the mortgagee-plaintiff on the 6th defendant and that the share inherited by the 6th defendant from Amthul Khadar Bibi was gifted by him in favour of his children. A plea was also taken that the present appellants were then minors and it did not bind their interest in the property. While a decree was given against the 1st defendant therein for Rs. 53,994-5-7 inclusive of interest up to that date, the suit was dismissed against the other defendants. THE story of the oral gift by the father to his children was disbelieved. This led the plaintiff to prefer an appeal while the defendants filed a memo of cross-objections. THE decree of the trial court was varied by the High Court by making the present 1st defendant liable jointly with his father to the extent of Rs. 5,133-12-3, it having been found that he was major on the date of the mortgage. In other respects, the appeal was not accepted. THE memo of cross-objections filed by the defendants in that suit was also dismissed as there was no reliable evidence in support of the gift. Some time thereafter, the present appellants instituted a suit against the present plaintiff and defendants 6 and 7 for partition and recovery of Mahar said to be due by the 6th defendant and for taking of accounts of the estate of Amthual Khadar Bibi. THE suit having been valued as one for partition, a court-fee of Rs. 100/- was paid. THE trial court taking the view that Rs. 6,000/- and odd was payable by way of Court-fee called upon the plaintiffs therein to pay the balance of the court-fee. As this was not complied with, the suit was dismissed. On appeal, the decision of the trial court was confirmed, THE decree against the present 6th defendant in O. S. No. 40/33 was later scaled down to Rs. 27,261-8-8 in addition to interest and costs. Out of this amount, Rs. 6,900-10-0 was paid. For the balance, the properties were brought to sale and the father's share therein was purchased by the present plaintiff for Rs. 32,325-0-0 in court auction held on 20-6-1944. THE sale was confirmed on 9-8-1944 and a sale certificate was granted on 28-8-1944. Subsequently, the plaintiff was given joint possession along with defendants 1 to 5 in respect of his tth share on 9-4-45 and 10-4-45. As the father and sons prevented the plaintiff from taking peaceful possession of his share in the schedule-mentioned properties bought by him, he was obliged to lay an action for the purposes mentioned above. THE defence to the suit was of a four-fold character : (i) Some of the items of property did at no time belong to the defendants' family, some of the items being wakf property and title to some others vesting in defendants 7 to II. (a) THE suit was bad for partial partition, several properties belonging to the defendants' family having been omitted from the suit. (3) THE plaintiff who stepped into the shoes of the 6th defendant could not recover his share by inheritance without discharging the dower debt due to Amthul Khadar Bibi in a sum of over of Rs. 7,00,000, payable to the present defendants I to 5 and their grand-mother the 7th defendant. (4) Since defendants I to 5 have been in possession and enjoyment of the share of the 6th defendant, openly and adversely to the interests of the 6th defendant they have acquired title to the same by prescription and therefore the plaintiff could not claim any relief. THE 2nd defendant died pendente lite and defendants 6 and 7 were added as his legal representatives. THE 6th defendant settled his share of inheritance on defendants 1 to 5. In view of the stand taken by defendants 1 to 6 in regard to some items of property, defendants 7 to 11 were impleaded in the suit. On the above pleadings, several issues were raised. THE trial court allowed the claim of defendants 8 to 1 ] in regard to part of item 1 (S. No. 21/2) part of item 3 and part of item 6. As regards items 8, 9 and 4 acres in item 1 said to constitute the wakf property, the learned Judge gave a finding that the 6th defendant was in possession and enjoyment of these properties and that the plaintiff was entitled to a share therein on the ground that there was nothing to show that the Madrasa was ever in existence. He held that the Dower debt, if any due, was barred by limitation, and that the plaintiff could get his share without the obligation sought to be imposed by the defendants in respect thereof and that further the judgment in O. S. 1/41 operated as res judicata. On the issue bearing on adverse possession, the conclusion of the learned Judge was that defendants 1 to 5 had aot acquired any right to the properties that fell to the share of the 6th defendant by prescription. THE plaintiff has not challenged the decision of the trial court dismissing his suit against defendants 8 to 11. Defendants 1 to 5 have brought this appeal in so far as the decree is against them, impleading their father the 6th defendant as the 2nd respondent. All the findings of the learned Judge are canvassed before us. Four questions emerge for determination in this appeal: (1) Whether the plaintiff could claim a share in respect of wakf prcperty ? (2) Whether the suit is unsustainable for the icson that seme property said to form part of the estate of Amthul Khadar Bibi and to have devolved on defendants I to 6 were not included in the suit? (3) Whether, without undertaking to discharge the Dower debt due to Amthul Khadar Bibi by the 6th defendant to which defendants I to 5 and 7 became entitled as her heirs, the plaintiff could recover the share of the 6th defendant ? (4) Whether the title of the 6th defendant to the plaint schedule properties became extinguished, by defendants I to 5 enjoying them adversely to the 6th defendant and whether the plaintiff is barred from putting forward any claim in respect thereof ? We shall take up these questions seriatum. With regard to items 8, 9 and part of item 1, which according to the contention of defendants 1 to 6 constitute trust property, the lower court has pointed out that there is no reliable and disinterested evidence in support of their theory and that on the other hand the parties always treated it as their own and alienated the same to others, and that they asserted title to these even in 1926. THE wakf, if any created, became extinct and not acted upon and no one took any interest in enforcing the wakf and recovering the possession of the property from defendants 1 to 6. THEre seems to be considerable force in the reasoning of the learned Judge. That apart, we are unable to see what locus standi defendants 1 to 5 have, to agitate this question. THEy disclaim all interest in respect thereof. Admittedly, the 6th defendant has been in possession and enjoyment of these items. If so, it is not for them to put forward the title of the Madrasa, especially when they do not renounce their claim to the 3/4ths of the wakf property, in their enjoyment. Taking up the issue relating to Dower, the case of the defendants is that at the time of the 6th defendant's marriage with Amthur Khadar Bibi the 6th defendant Agreed to pay her Mahr of 40,000 Hyderabad Ashrafi Holis which is equal to about Rs. 10,00,000 in addition to Rs. 163/- and seven Mashal silver as prompt dower, that only a sum of Rs. 10,000 was paid towards deferred dowerand that the balsrce of it was still due. On the death of Amthul Khadar Bibi this became an asset of the estate and defendants 1 to 5 and 7 were to get more than 700,000/- by way of their 3/4ths share of inheritance, and the appellants are entitled to the whole of it since the 7th defendant relinquished all her interest therein. THE evidence bearing on this aspect of the case is given by D.W.1, who is the Government Khaji at Kurnool and the Head-master of an Aided School, D. W. 10, a Naib, i. e. person connected with the maintenance of Muhammadan Marriages Register and D. W. 14 the 6th defendant. In addition to the oral evidence, reliance is also placed on Ex. B-23 said to be a copy of the Mahar deed granted by D. W. 1 in 1931. Assuming that the evidence oral and documentary is unimpeachable in regard to the promise of the 6th defendant in this behalf the further question arises whether it was ever intended, that this large sum of money should be paid by the 6th defendant to his wife Amthul Khadar Bibi. It was argued for the appellant that the Dower fixed need not necessarily have any relation to the capacity of the bridegroom to pay it and that the entire sum provided in the contract has to be paid by the bridegroom and the courts have no jurisdiction to reduce it to what they consider to be reasonable. In this context, reliance is placed on a passage in Mulla's Muhammadan Law at page 231 (12th Edition) :- "Dower is often high among Muhammadans to prevent the husband from divorcing his wife in which case he would have to pay the amount stipulated and the mere fact that the amount stipulated is excessive or beyond the means of the husband is no defence to the wife's claim." For the same purpose, Sugra Bibi v. Masumma Bibi was cited. THEre a Shiya Muhammadan, who was in poor circumstances, agreed to pay deferred dower of Rs. 51,000 to his wife at the time of his marriage, though his estate was not worth more than Rs. 2,000/- or Rs. 3000/-. He died without leaving sufficient assets to pay the dower. In a suit by his widow for the recovery of the Dower it was laid down by a Full Bench, differing from Stuart, C. J., that she was entitled to the whole of the Dower agreed to be paid by the husband, although it was far in excess of his fortune. One of the learned Judges thought that such a large sum was agreed to be paid as Dower because of the value which she possessed in the matrimonial market, that value being mainly determined by the local position, and traditions the surroundings and the antecedents of her family." We do not think this ruling helps the appellants very much. For one thing, we have no evidence of the value Amthur Khadar Bibi possessed in the matrimonial market or as regards the traditions, the surroundings and the antecedents of her family. Further, there is no consideration of the question in the case cited, as to whether the parties really intended to give effect to that contract. In deciding whether it was ever intended to be demanded or paid, the surroundings and the antecedents of the bride-groom also will have to be taken into account. THE 6th defendant as D. W. 14 has stated that he and his brother possessed only one house in Hyderabad. But, it is not known whether they really owned a house as in none of the transactions entered into between him and the plaintiff or some others is there any reference to it. If any such existed, it would not have been worth much, as that does not seem to have been fetching any income. THEre is also his admission that he did not pay a single pie to his wife from 1905 till 1923 towards her deferred dower. Although the suggestion that a heavy Dower was provided for only nominally was denjed, we are inclined to think that if any such provision was made it was only a nominal one as could be gathered from the following circumstances. THE existence of unpaid Dower was not urged as a ground of defence in O. S. No. 40/33. In fact, it was only at the time of the hearing of the appeal against the judgment in O. S. 40/33 in the High Court of Madras that an attempt was made to raise a contention relating to this Dower. Permission was not given, as such an objection was not raised either in the pleadings or in the grounds of cross-objections. What D. W. 14 stated in his cross- examination is also significant. 'I took Ex. B-22 after the High Court decreed the mortgage suit against me. Till then, there was no whisper of the Mahar alleged to be due by the 6th defendant to my mother " THEse factors clearly indicate that the claim to unpaid Dower is an afterthought, which was evidently conceived in the course of arguments in the appeal against the judgment in 6. S. No. 40/33 by the defendants, when it was found that the chances of their success in the cross-object ions were not very bright. In this connection a passage from Tyabjee's Muhammadan Law at page 173, is quite appropriate : " 'Mahr' is never invalid by reason of its being execessive except as provided in S. 95(3) above. THE 'Fatawa Alamgiri' contains a section (based on the Zakhira) dealing with 'Mahr' that has been nominally stated in public at a high figure, for the purpose of "reputation" but which is never intended to be demanded or paid. Nominal dowers are frequently agreed to as a mere form in India, by persons who have no means of paying it. THE question whether or not an alleged dower was agreed upon, is, of course, a question of fact, but it seems necessary to point out that where the agreement is for an absurdly high figure, compared with the means and position of the parties then, in particular, the principle involved in S 116 below, has an important bearing. THE Court may also be well asked to consider whether, on such facts, it can come to the conclusion that there was a real agreement to pay the 'mahr', which, 'ex concessis,' the husband could not pay, or whether it was a mere sham just as parties to wagering agreements are anxious to give to their invalid agreements a form similar to that of real contract." We are in agreement with the rule stated above and it applies with great force to the instant case. Having regard to the financial position of the bridegroom, the sum alleged to have been fixed is preposterously large and it is not shown that the 6th defendant was at any time in easy circumstances. THE only reasonable inference that can be drawn is, that it was a sham and Dot a real contract. Granting there was a real contract for payment of Rs. 10,00,000/- as dower, is the property purchased by the plaintiff in court auction liable for this debt? THE argument of Mr. Chalapathirao, Counsel for the appellants is that the appellants who stepped into the shoes of their mother, in respect of their share of the dower debt could retain the estate in their hands by way of a charge against the 6th defendant or his assigns-at-Jaw, till the debt is satisfied. In support of this proposition, he called our attention to Mussumat Bibi v. Sheik Hamid Hussain and Kaniz Fatima Begum v. Ramandan Dhar Dube. THE first of them lays down that a Muhammadan widow when put in possession of property for her deferred dower has a lien as a creditor on the estate and is entitled to retain possession until her dower is satisfied. To the same effect is the decision of the Allahabad High Court. Neither of the two cases has any relevancy in the present enquiry. THE appellants do not claim that either their mother or they, obtained possession of the properties in satisfaction of the dower debt. Neither in the pleadings nor in proof is such an allegation made and much less made out. So the present case does not fall within the doctrine of those cases. Nor is Syed Kasim Hussain v. Habibul Rahiman helpful to the appellants. All that was decided in that case was that a person who purchased from the heir of a Shiya Muhammadan, property which was charged with the payment of a dower debt due to the widow in a suit for recovery of the same and with the knowledge of such charge, takes it only subject to that charge. That has no relevancy in this inquiry. THE dower in question became payable on the death of Amthul Khadar Bibi. It was beyond controversy that a dower ranks along with other debts and is not higher than any other unsecured debt. This position is established by Mussumat Bibi v. Sheik Hamid Hussain , Kaniz Fatima Begum v. Ramandan Dhar and Syed Kasim Hussain v. Habibul Rahiman , That such a debt would be unenforceable if it is barred is also evident from Kaniz Fatima Begum v Ramandan Dhar. Notwithstanding the argument to the contrary, there can be little doubt that Art. 104 of the Limitation Act, which provides a period of three years for the payment of a deferred dower, on the dissolution of marriage by death or divorce applies to this case. More than 20 years having elapsed between the death of Amthul Khadar Bibi and the date on which the defence is raised, the dower debt is prima facie barred. To get over this difficulty, it is contended that the Statute of Limitation is applicable only to suits and can have no reference to defences and that in a suit for partition the defendants can put forward that claim though not within time to file a suit on the basis of this. This argument is founded on Anantanarain Ayyar v. Sivarama Krishna Ayyar , Achuta Narain v. Achuta Narain , Venkataramana Reddi v. Rungiah Chetti, Krishanlal v. Mussammath Kashmiro and Gopal Bhaurao v. Shree Jagamat Pundit, Khatoon Bibi v. Abdul Wahib. THE principle of these decisions can have little application to the instant case. THE last one is against the appellants and is not of any assistance to them. In Ananta Narayana Ayyar v. Sivaramakrishna Ayyar 1, three elder brothers of a family executed a .mortgage in favour of the 1st respondent on 10-6-1911 to secure repayment of Rs. 1500/- advanced to them. In the family partition that took place on 24-7-1917, it was agreed amongst all the coparceners i. e., four brothers and the father that the mortgage debt should be treated as a binding liability on the family. In November 1937, the appellant purchased the share of the last of the brothers. Meanwhile i. e. in 1928 the mortgagee instituted a suit to enforce the mortgage impleading the mortgagors alone as defendants. He obtained a decree and in execution of the decree brought the properties to sale and purchased them himself. He also got possession through court in April 1954. On the strength of the sale deed the appellant (the alienee from the last brother) brought a suit for recovering l/4th share of his alienor. When the matter came up finally before the High Court of Madras it was held that the plaintiff could not be given an unconditional decree, for his share of the property, without paying at the same time a proportionate part of the mortgage decree. THE observations in the judgment which were pressed into service are as follows: "In such a suit it is the duty of the Court to adjust the rights and liabilities inter se. between the parties and to determine the shares on such adjustment. To ignore the liability of one of the parties to the other or others and proceed merely to effect a division without regard to it, is to ignore the very character of the suit and the nature of the relief which the court is bound to grant. It is conceded that such a course is not permissible in a suit for partition among the members of a joint Hindu family; but it is argued that a similar suit between co-owners stands on a different footing. We are unable to accept this distinction as sound in principle and we are not surprised that no authority has been cited in support of it. ''It is next argued that even if in law the liability of Sundaram Ayyar to pay a proportionate part of the mortgage debt can be taken into account, still the liability can no longer be recognised as the debt has long since been barred by limitation. It is, however, to be observed that the prevailing view of this Court is that even if a mortgage is barred by limitation it is still available to the mortgagee as a shield to defend his possession vide Venkataramana Reddi v. Rangiah Chetti (41 M. L. J. 339), Karupan Chettiar v. Venkata Perumal (A. I. R. 1929 Mad. 465) and L. P. A. No. 24 of 1940. Limitation does not extinguish the liability but only bars the remedy." THEse remarks have little bearing on the point to be decided here. First, it has to be remembered that the debt in that case was binding on the family and therefore every member thereof was under an obligation to pay it. As regards the other rule touching limitation, the fact that at the time of the filing of suit the mortgagee-decree holder-purchaser was in possession cannot be ignored and the principle that even if a mortgage is barred by limitation it is still available to the mortgagee as a shield to defend his possession cannot govern the case of a simple creditor. As already pointed out, it can be used only to defend possession. What happened in Achuta Narain v. Achuta Narain was this. On the death of a Hindu governed by the Dayabhaga school of law, his property devolved on his three sons. In a suit by one of the sons for partition of that estate it was decided that the two sons claiming a share in the properties of the father had to pay their share of the debt due by the father to one of the sons on the principle that a person succeeding to an estate should not be allowed to get the inheritance, without shouldering the burden. This embodies the principle similar to the one in the last cited case. This case does not furnish any analogy. For one thing, while the debt there was due by the estate, was only by one of the members. Nor does Venkataramanareddy v. Rangaiah Chetti carry the appellants any further. That case only related to the right of a purchaser of a portion of the mortgaged property at a sale in execution of a decree which was discharged only partially with the purchase price and to the right of a mortgagee from such a purchaser. Now coming to Kishanlal v. Mussamat Kashmiro which lays down that the Indian Limitation Act would not apply to a plea by way of defence, the question for consideration there was whether a widow who was a party to an arbitration agreement could plead in defence that the award which formed the basis of the claim of the plaintiff in that suit could be challenged as being a nullity having been brought about by fraud after the period of limitation. This was answered in the affirmative. In Gopal Bhaurao v, Shree Jagammat Pandit, the suit was based on a lease and the defence was that it was obtained by undue influence and misrepresentation. It was held that such a defence could be raised though the defendant could not have filed a suit to avoid the lease, as the period prescribed for such a course had expired. THE reason of the rule in both the cases is that a ground of defence cannot become stale or be barred by limitation. Those cases are distinguishable on the ground that the defence went to the root of the claim, while it is not so in the present case. THE adjustment of equities referred to in Khatoon Bibi v. Abdul Wahib was with reference to the property to be divided. It was pointed out there that the right of a bonafide purchaser of the share of one of the Muhammadan heirs to have a particular plot assigned to him against other heirs is not an absolute one but is subject to the rights and equities of the other co-owners. We think these cases do not lend any support to the contention of the appellants in regard to the dower debt. We may here say that the equitable doctrine which requires a coparcener to pay his share of the family debt in a suit for partition is inapplicable to the case of a Muhammadan suing for division. Under the Muhammadan law, there is nothing like a family debt attaching to the whole of the inheritance. Even to liquidate a debt due by the ancestor, one co-heir cannot alienate the whole property. Such a sale will operate to transfer only the share of the alienor. On the death of a Muhammadan. the ProPerty vests immediately in his heirs who take it as co-heirs or tenants-in-common. Even under Hindu law, it is only the liability of the family that will be binding on the share of each of the coparceners or heirs. In respect of debts due by individual members, which are not payable out of the joint family estate the rule is different. In such cases, the creditor cannot intervene in a partition suit with a prayer that his debt should be charged on the share of his debtor. THE position is the same in respect of a debt due by one coparcener to another. That could not be regarded as an equity to be worked out in a partition suit. Under Muhammadan Law, different considerations arise even with regard to the debts due by an owner and the share that will be allotted to a co-heir will not be burdened with a liability of the ancestor when once it passes into the hands of a stranger-purchaser, Afortiori, a debt due by one co-sharer to another cannot be enforced against the former's share in the hands of an alienee. THE law on the subject has been laid down by the Privy Council in Bazqyet Hossein v. Mohamed Wazid. In that case, the competition was between the creditor of a deceased Muhammadan and a purchaser at a sale held in execution of a decree on a mortgage executed by his heirs-at-law. One of the questions that fell for determination by their Lordships was whether a Muhammadan heir can alienate the estate of his ancestor without discharging his debts. How the controversy arose was this. A Muhammadan by name Kirshid AH died leaving behind him his three widows, a son and a sister. THE son executed a mortgage bond in respect of his personal debts over the estate inherited by him in favour of one Situal Prasad. Sometime later, the widow took proceedings for the recovery of a large sum of money on account of dower. A decree was passed ultimately by the High Court which inter alia directed the son to pay the amounts due to the widow in respect of her dower to the extent of the assets of Kirshid AH that came into his hands. As the decree was not satisfied, execution was issued and the estate was attached. Subsequently, Situal Prasad instituted a suit on his mortgage, obtained a decree and in execution of the decree brought to sale the properties which were purchased by a third party. THE auction-purchaser brought a suit to establish his title and for recovery of possession of the property. THE Privy Council upheld the view of the High Court that the heir had a right to convey his share of inheritance and could pass title to the alienee although there were debts due by the deceased. THEir Lordships accepted as correct the principle laid down in Wahidunnisa v. Shubrattu - that the purchaser of the share of a heir, at a sale held in execution against him in an individual capacity, could hold the property against the widow of the ancestor whose claim for Mahr was decreed against the husband's estate. THEir Lordships extracted the following statement of law from Sugden 'On Vendors And Purchaers, page 655, the edition of 1862 : ''Although an heir-at-law is bound by specialty debts in respect of lands descended, yet a purchaser of those lands without notice of any debts was never holden to be subject to them." This view is affirmed in Syed Kasim Hussain v. Habi Bur Rahiman which has laid down that the claim of a widow in respect of a dower debt is not in any way superior to that of an ordinary creditor and that apart from the decree a bonafide purchaser for value from the heir would get an unassailable title. THEse rulings were followed by Mr. Justice Venkataramana Rao in Khatoon Bibi v. Abdul Wahid 2. We do not propose to multiply authority on this aspect. It is well settled that a creditor of a deceased Muhammadan cannot attach the property in the hands of a bonafide purchaser for value from the heir and that such an alienee gets the share of his alienor free from liability. Gemnalsingi v. Bai Fati relied on for the appellants has not laid down anything different from this. We cannot also agree with the Counsel for the appellants that the dower debt is on the same footing as owalty i.e. sums of money payable to a coowner by another co-sharer for equalising the shares. It is difficult to equate a simple money debt to owalty which has priority even over a mortgage debt. Consequently, Shahebzada Mohamad Kashim Shah v. R. S. Hills, Arunachalam Chettiar v. Pratapsimha Raj Sahib and Ratnavelu Chettiar v. Subrahmanya Chetty can have no application to the instant case and need not be referred to. Our conclusion is that the unsatisfied dower debt, if any, does not affect the share to be allotted to the 6th defendant as the heir of Amthul Khadir Bibi and that the plaintiff who has stepped into his shoes has acquired an unassailable title thereto. We will next deal with the issue of limitation. THE contention of the Counsel for the appellants is that as the plaintiff has not proved his possession or that of his predecessor-in-interest his suit should fail. THE authority relied on by him for this is Officcial Receiver of East Godavary, Rajahmundry v. Govinda Raju. In the present case, we are not concerned with the rule stated in that decision. THE person against whom a suit was filed for recovery of possession of the property was not a co-owner with the predecessor-in-interest of the plaintiff. THE position is different in the case of co-owners, the presumption of law being that the possession of one co-owner is that of the other also if actual ouster is not established. It is therefore for the defendants to establish that the 6th defendant was ousted from his possession and enjoyment of his share of the property. THE overt acts of ouster relied on by the appellants are the mutation proceedings evidenced by Ex. B-31 and B-32, payment of cist, lease deeds which were obtained by the 6th defendant as guardian of his children defendants 1 to 5 and application for permission to use water in respect of some of the lands that devolved on the heirs of Amthul Khadir Bibi. To deal with Ex. B-31 and B-32, we feel they are innocuous documents evidencing mutation proceedings. THEy cover only two bits of property and do not exhaust the whole inheritance. Even otherwise they do not indicate that the persons in whose names the mutation had taken place had asserted that they were the sole legal owners. THEse documents are at best evidence of legal possession. THEy do not furnish any evidence of legal title therein. As pointed out by the Privy Council in Nirman Singh v. Lal Rudra Partab the proceedings for mutation of names are in the nature of fiscal enquiries urder- taken to ascertain "which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid," and they do not in any way determine the title or the proprietary interests of the person concerned. THE view taken by a Bench of the Allahabad High Court in Mubarak-un-Nissa Bibi v. Muhammad Rajakhan is in accord with this concept. Much reliance was placed by Mr, Chalapathi Rao on the observations of Coutts Trotter, J. in Official Assignee of Madras v. Badrinarqyana Doss that the patta was evidence of possession, if not also as to title, and on Vannia Kone v. Vannichi Ammal in which an opinion was expressed that pattas may not be evidence of title but they are evidence as to possession. We are unable to see how these pronouncements advance the case of the appellants. As we have already said, the appellants and the 6th defendant were in position of tenantsin-common and possession of one of the co-heirs must be presumed to be on behalf of the others also. THE fact that all of them were living together and that the father was managing the whole property cannot be ignored in this context. Thus factum of possession is not decisive of the matter. It was then submitted that since it is as a result of a request made by the 6th defendant that the entry in the Revenue Registers in the name of his minor children was made, that would amount to an ouster because such an act evidences an animus on the part of the father to prescribe against himself on behalf of the sons. THE foundation for this argument is an endorsement given to the 1st defendant in 1934 by the Taluk Office, Kurnool in respect of a petition submitted by him for the grant of a copy of the transfer-petition in 1923 and an oral statement given by his father. THE endorsement is in the following words: " THE petitioner is informed that the record prayed for by him has been destroyed in the year 1937. THE petitioner should come and take return of the stamp papers filed by him." We do not think that this endorsement has the effect that is attributed to it. It cannot be presumed from this that an oral statement was made by the 6th defendant at the time of the transfer proceedings. Much less does it indicate that a request was made by the 6th defendant as suggested for the appellants. Now coming to the cist receipts, the documents on which great emphaish is laid is Ex. B-211. That evidences some payments said to have been made by Syed Hassan Bukhari and others. It is a small note-book which contains several entries of payments. THEy do not mention the survey numbers or the exterrf of the land, in respect of which the payments were made. Moreover, these documents do not show that cist was paid by the 1st defendant and others for all the lands left by Amthul Khadar Bibi. It is also noteworthy that every one of these entries says "1st defendant and others" which may include the 6th defendant also. It is not also established that these payments were made by the 6th defendant on behalf of his children. That apart, this is not consistent, only with the theory that the person making the payment was asserting title hostile to the other owners of the property. It is said that in Ex. B-2IO land-revenue for fasli 1335 was paid by the 6th defendant on behalf of the 1st defendant. Here again, the survey number and the extent of the land are not mentioned. Further, the payment is purported to have been made only on behalf of the 1st defendant but it is not the case of the appellants that the 1st defendant alone was entitled to the lands in dispute. Although it is said that Ex. B-204 and B-205 for 1931, contain similar entries, they are not printed and placed before us. Even with regard to the applications said to have been made for permission to use water for the lands, they do not lend much support to the theory that the person making an application was asserting title, hostile to the other owners of the property. THE reasoning that all the lands are not referred to either in the cist receipts or in the mutation proceedings applies with equal force to these applications also. THEre is another significant factor so far as these petitions are concerned. It is found that properties which admittedly were in the possession of the 6th defendant (wakf) and also those belonging to defendants 8 to 11 were included therein. This clearly shows that permission was sought for by some one or other, irrespective of whether he was the owner or not; otherwise, it is difficult to explain why the lands of other people were mentioned therein. Moreover, the circumstance that one of the co-heirs applies for permission for the use of water is not indicative of an act adverse to the interests of other co-owners or co-sharers. A large number of leases are relied on as evidencing adverse possession, starting from 27-4-1925 to 25-4-1939. THE case for the appellants is that almost all these documents were taken by the 6th defendant as guardian of defendants 1 to 5. It is a clear overt act of adverse possession held by the 6th defendant on behalf of his minor children, and the case therefore falls within the scope of the doctrine of Chenna Basavanna Goundon v. Maha Balestuarappa argues the learned counsel. A Hindu father by name Naganna Gouda and his two sons Siddalinganna and Chenna Basavanna constituted members of a joint family. THE two sons inherited some property from their maternal grand-father one Basappa on the death of their mother. After the death of their mother they were brought up by their mother's sister Paramma, Naganna having married a second wife. THE maternal aunt gifted to them her share in the property inherited from Basappa. On the death of one of them, Siddalinganna, his share devolved upon his father Naganna. However, Paramma continued to possess the entire land on behalf of the younger son. Subsequently, there was a lease deed and its counter-part executed by and between Paramma on the one hand and Naganna as the father and guardian of Ghenna Basavanna under which Naganna representing his minor son granted a lease of the whole property to Paramma for a period of 12 years. THE receipts for payment of rent by Paramma were issued to her by Naganna on behalf of the minor. Later, he instituted a suit against the lessee Paramma for the recovery of the rent on the basis of the lease mentioned above in his capacity as the guardian of his minor son. Shortly thereafter he became financially involved and so executed a deed of mortgage by conditional sale in respect of the half share, to which he succeeded as the heir of his son. After a few months, Naganna sold the mortgaged property to the mortgagee himself, in discharge of the mortgage debt. THE latter in his turn sold it to a third party, who instituted a suit against Chenna Basavanna, for recovery of a demarcated half share of the property after partition with the latter, on the strength of his purchase. THE suit was dismissed by the trial Judge. But, this was reversed by the High Court on appeal. When the matter was taken by Chenna Basavanna, the defendant, to the Supreme Court, the plaintiff's suit was dismissed on the ground that the acts and the conduct of the father in leasing out the property amounted to an assertion of exclusive title of his son to the property and, by implication, denial of his own right as co-owner thereto, that in law the possession of the lessee is the possession of the lessor and that ever since the lease, the lessee's possession was the possession of the infant son to the exclusion of the father. It was also observed by their Lordships that " when once the possession of one co-owner had become adverse to the other co-sharer as a result of ouster the mere assertion of his joint title by the deceased co-sharer would not interrupt the running of adverse possession." He must actually and effectively break the exclusive possession of the sharer by re-entry upon the property or for resuming possession in such manner as it was possible to do. THE facts established in that case are, that the father by taking sale deeds in respect of properties that belonged to him exhibited an animus to hold the property, exclusively on behalf of his minor son and against his own interests. THE lessee was in possession of the property to the exclusion of the father for the statutory period of 12 years. But the situation is different in this case. THE lease deeds in the name of the appellants were not for a period of 12 years. THEre is no evidence that, subsequent to the expiry of the lease, the lessors were put back in possession of their lands. In order to acquire title by adverse possession, it must be shown that the character of possession was hostile to the real owner for at least 12 years. THE defendants' witnesses had to admit that the 6th defendant was getting the lands cultivated with hired labour and except the word of the 6th defendant there is nothing on record that he did it merely as their agent or guardian. THEre is no reliable evidence that the 6th defendant was a party to the lease deeds, since they were all executed in favour of the appellants and none by the 6th defendant on behalf of his children. Lastly, the leases do not cover all the lands inherited from Amthul Khadar Bibi. THE subject matter of those leases are small portions of the property left by her. That being so, the appellants cannot in any event acquire title by prescription to properties other than those covered by those documents. Assuming that the leases evidenced hostile acts as against the interests of , the 6th defendant and adverse possession had started from the date of the first lease in 1925, we think the filing of the suit by the mortgagee in 1933 has arrested it. O. S. No. of 1940/33 was filed by the present plaintiff on the basis of a mortgage impleading present defendants 1 to 6. This is an assertion of the title of the true owner and had therefore interrupted, in our judgment, adverse possession which could be said to have commenced in April 1925 at the earliest, when Ex. B-286 was executed. Fatima Bibi v. Hazi Muhammad Usman Shabe ' lends support to this view of ours. In that case thf'suit was by a decree-holder under Order 21 Rule 63 C. P. C. to declare his right to attach certain properties in execution of his decree obtained by him. It was laid down that such a suit would arrest the running of limitation in favour of the person who was in possession of the properties adverse to the judgment-debtor. THE principle of that case applies to a case of a mortgagee, who files a suit for realisation of the debt out of the mortgaged property. Mr. Ghalapathirao argued that the ruling in Fatima Bibi v. Hazi Muhammad Usman Shabe cannot be regarded as good law in view of the pronouncement of Chenna Basavanna Goundan v. Mahabaleswarappa because in the latter case it was laid down that the execution of a mortgage by the true owner, asserting joint title to third parties, would not interrupt the running of adverse possession after the possession had become adverse to the real owner. But the filing of a suit impleading the persons claiming to be in adverse possession is different from the mere execution of a document to which such persons are not parties. THEre is no conflict between the two cases and Fatima Bibi v. Muhammad Usman Saheb is good law. We must therefore hold that O. S. No. 40 of 1933 put an end to the adverse character of the posse ssion of the suit properties. Even if the institution of that suit did not bring about that result, adverse possession ceased at least from 2-12-1936 (within 12 years of the first lease deed) when the 1st defendant was appointed receiver to take possession of these properties. Ever since his appointment as such, he must be deemed to have held the property on behalf of the Court. Moreover the facts as disclosed by the lease deeds should be viewed in the background of the acts of the parties appearing from some documents i. e. Exs. A-21 to A-23 and A-24 besides Ex. A-1 out of which all these proceedings have arisen. In all these documents, there are specific recitals that the properties were being possessed and enjoyed by defendants 1 to 6 commonly on the relevant dates. Ex. A-24 dated 4-9-1926 was executed by all the defendants in favour of one Challa Venkatarama Reddy, for securing Rs. 4,000/- borrowed for the marriage expenses of the third defendant. This was in respect of lands in Johlapuram village, and there is a statement in it that the lands belonged to all the mortgagors and have heen in their possession and enjoyment as of right. THEy form part of properties in dispute. Within three years of this mortgage, some of the properties inherited from Amthul Khadar Bibi were alienated in favour of one Hyed Bibi. Here again, it was said that all the vendors were enjoying the lands mentioned in the schedule thereto with all powers and without obstruction as the heirs of Amthul Khadar Bibi. THE hypothecation deed marked as Ex. A-21 and dated 25-6-1930 was executed by all the defendants in favour of the two individuals Nandyala Narasayya and Akuthota Venkata Chetty. THE consideration for this mortgage was made up of a sum of Rs. 3,000/- due under a prior mortgage and an amount of Rs. 5,000/- on a promissory note executed by the father of the 6th defendant and his eldest son which was said to have been borrowed for family cultivation and other expenses and further sums due on dealings and cash paid on that date, in all Rs. 8,912/-. THEre is a similar recital in this document also as regards possession and proprietory interest of all the defendants. THE second item of consideration mentioned therein shows that the lands were being cultivated by all the defendants. THEse documents clearly establish that all the defendants were treating themselves as owners having common enjoyment of these properties and that the appellants were not in possession of the properties as hostile claimants. At this stage, we will advert to another aspect of this matter. According to the appellants their possession as owners originated in the gift by the 6th defendant of his share to them within a few months of the death of the owner of the properties and in that capacity they continued to be in sole enjoyment thereof. This gift is not evidenced by any document. We had to search in vain for acceptable evidence of the gift on record. Here, we have also to mention that this very controversy arose in O. S. No. 40 of 1933. A case of oral gift was set up there and for that purpose reliance was placed on certain oral evidence. It was disbelieved by the trial court and on appeal to the High Court that conclusion was upheld. Dealing with the evidence on this question the learned Judges observed: " Having read it we entirely agree with the estimate of its value given by the lower court in its judgment. It is worthless and cannot be by any means regarded as sufficient to substantiate the story of the alleged gift." THEy also considered the precise effect of the mutation proceedings and the cist receipts which are also relied on now and stated that they did not lead to fhe inference that the enjoyment of defendants 1 to 5 was to the exclusion of the 6th defendant. While it is urged for the respondents that these findings operate as res judicata it is argued for the appellants that it is not so for the reason that the question of paramount title is foreign to an enquiry in a mortgage suit and that as the plaintiffs were claiming an interest adverse to the 6th defendant they were not bound' to raise this issue, That issue was unnecessary and any decision given thereon would not attract the rule embodied in Sec. 11 C. P. C. As substantiating this, reliance is placed on Order 34 rule 1 C. P. G. It looks to us that prima facie the decision falls within the scope of the doctrine of res judicata by reason of this matter having been put in issue by these very appellants and having obtained adverse decision, a finality attaches to it as is seen from Jaggeswar Dutt v. Bhuban Mohan Mitra . However it is not necessary for us to solve that problem. Suffice it to say that the finding of the Judges who heard that appeal is entitled to great weight. THEy reached the conclusion on a discussion of the whole evidence. Even otherwise, we have reached the same conclusion independently after reviewing the whole material on record. Indeed, if the 6th defendant ever intended to make a gift of his share to his children, he would certainly have executed a document. A reading of his evidence and his conduct in prior proceedings has left only one impression on us, namely, that he is a very careful man and a veteran litigant. His statement in the witness-box that he was estranged from his children is incredible, in view of the fact that every effort is made by him to save the property for his children. In this context, we will see how the learned Subordinate Judge has viewed the testimony of this witness : " THE evidence of the 6th defendant (D. W. 14) shows that he is a very unscrupulous man and he does not hesitate to do anything for the purpose of preserving the property to his children at all costs. He goes to such a length as to say that he wanted to deceive the defendants 1 to 5 (his own children) in collusion with the plaintiff when he was asked as to why he executed Ex. A-1 in favour of plaintiff. This he says at the end of his examination-in-chief. But in a previous portion of his examination-in-chicf he stated that he intended to gift away his share to defendants I to 5 when he got properties transferred in their names. If so, it is quite improbable that he intended to deceive them in 1926 and 1929. " We content ourselves with endorsing these remarks. No doubt, the 6th defendant as D. W. 14 gave evidence that he left off his share in the properties as he had to pay mahar to his first wife. Even if this amounts to a gift, we must say the defendants have not got a consistent case in this regard, because D. W. 14 himself says that he did not take any share in the property. If so, where is the question of making gift of his share? He also deposed that he intended to gift away his share to defendants 1 to 5 when he got the pattas transferred in their names. THE reference to transfer is evidently to Exs. B-31 and B-32, which were in February 1924, This is inconsistent with the defendants' case that the gift was made about 2-- months after the death of the 6th defendant's wife, i.e., on or about July 1923. Again, according to this statement, it was only in the realm of intention and did not proceed beyond that. Another portion of his deposition " if I pay the Mahar due to my first wife, then I will be entitled to 1/4th share in her properties, " also negatives any theory of gift or renouncement. THE value of the evidence of D. W. II touching this is practically nil because he had stated in the witness-box that he came to know about this gift only in 1934. Lastly there is the significant circumstance that shortly after her daughter's death when the 7th defendant renounced her claim to a share in the inheritance, a registered document was obtained. It is unlikely that the same course would not have been adopted if really the 6th defendant had gifted or relinquished his share to his childern. We will now deal with the oral evidence relating to this issue. D. W. 2 the Village Munsif of Johlapuram, in addition to proving the signature of the previous village munsif in Exs. B-211, B-212 and B-213 etc , and his attestation, said that the 6th defendant did not enjoy the lands and that the lands were always in possession of defendants 1 to 5. But his cross-examination reveals that it cannot be true. He admitted that the 6th defendant got the lands cultivated for some time by engaging coolies and that he stated in the previous deposition in O. S. No. 40 of 1933 that the same person looked after the lands, collected the rents and cultivated the same with hired labour. If so, how could he say that defendants 1 to 5 were solely in enjoyment of the land ? THE next admission was that he did not know anything about the suit lands and that he did not take them on lease at any time. How can he then make any assertion about possession ? It also appears that he is not a disinterested witness. He attested a number of lease-deeds although he was not present, when they were executed and he had also given an affidavit in O. S. No. 459 of 30 on behalf of the appellants, in support of their claim to suit properties. D. W. 3 the karnam of the same place only stated that " defendants 1 to 5 are enjoying the lands now. When they were minors, the 6th defendant, their father, managed the lands." So, that refers only to the state of affairs at the time he gave evidence. Again, management of the lands by the 6th defendant does not prove that he was excluded from enjoyment. Further, this witness became karnam only in the year 1928. D. W. 4 the village-munsif of Budhavarampeta said that "defendants 1 to 5 are paying cist for the suit lands situated in Budhavarampeta and 6th defendant did not pay them. " This can have no reference to the past enjoyment. THE witness became village-munsif in 1938 and he was aged only 32 at the time of giving the evidence. THE evidence of this witness is not in any way helpful, from the stand-point of the appellants. THE same may be said of D. W. 5. He merely said that, to his knowledge, 6th defendant never enjoyed the suit lands in Kolluru and that he was managing the lands as long as defendants 1 to 5 were minors. This does not mean much, because at the time of his deposing, he was only 30 years and so he could not profess to know things prior to 1934 or 1935 and from 1936 there was a receiver. THEre is also sufficient material to show that he was an interested witness and that he gave evidence to oblige the 6th defendant. Hence, no weight could be attached to his statements. THE karnam of Mungalapadu was examined as D. W. 6. He was only then 32 years, and his evidence that " defendants 1 to 5 are in possession " is not very material because he became karnam only in 1943 and admittedly he did not know anything about the suit lands before he became karnam. D. W. 7, while he stated in the chief-examination that the 6th defendant never enjoyed the suit lands deposed in cross-examination that he did not know where the 6th defendant was and he did not see his face at any time. This only shows that the witness is a suborned one. That he is interested in the defendants is also clear from the fact, that he was examined for them even in O.S. No. 40 of 1933. He says he is not able to remember whether he figured as a witness in two or three other cases. He was not summoned. THEre is the further fact that he was only 36 years old and he could not have had knowledge of the events prior to 1930. D. W. 8, who was 36 years old, does not improve the position of the appellants in this respect. His testimony is "defendants 1 to 5 are enjoying the suit lands in my village" and that he does not know the 6th defendant though in the sentence it is stated that nobody except defendants 1 to 5 enjoyed the suit lands. This does not show that ever since the death of Amthul Khadar Bibi, defendants 1 to 5 alone, were enjoying the properties. It was also suggested to this witness that he was brought there by the 6th defendant, paying him some money as consideration for giving evidence. This witness admitted ignorance as to where the suit lands were or whether they were being leased out to anybody or whether they were personally cultivated or as to who was in possession of the lands at the time of his examination. He had also to admit that he did not see defendants 1 to 5 cultivating the lands or leasing them at any time. Another witness who sought to support the appellants on this issue is D. W. 9. He deposed that defendants 1 to 5 were enjoying the lands in Munagalapadu and the 6th defendant had no enjoyment at any time. But, he did not see enjoyment of the lands in Munagalapadu by the appellants prior to his giving evidence. He was only 30 years old in 1949, when he gave evidence, and consequently the statement that the 6th defendant was not in enjoyment at any time is not of much significance. Although he pretends to know about the enjoyment of the lands in suit he stated that he did not know in which tenants' possession the suit lands were from 1936 onwards. He had also to admit that he attested a numer of lease deeds said to have been executed in different years at one time when they were brought to him by his uncle, not knowing the execution or the other details of the leasedeeds. THE criticism levelled against these witnesses clearly shows that they are not witnesses of truth. It is clear that they are not disinterested or independent persons but men with bias in favour of the appellants. Further, most of them would not have knpwn the state of things existing prior to 1935 and with regard to others, it is not of a clinching character, even if believed. THE utmost that could be said of their evidence is that the 6th defendant was not actually enjoying his share of the lands. But the non-participation in the profits from the lands by a co-owner does not amount to his ouster. Not a single witness has stated that the appellants were in enjoyment of the lands asserting their exclusive title thereto. THE next set of witnesses who speak about this matter are D. Ws. 11 and 14. In regard to the first, apart from being an interested person, his testim ony that he and the defendants 2 to 5 were in sole possession and enjoyment after their mother's death is of no weight because on his own showing he was a minor till 1929 and the 6th defendant was acting as his guardian as also of his brothers and sister and managing the properties and he had not known anything about the gift by his father till 1934. Further, according to this witness, the exclusive possession from 1923 was atrributable to the oral gift or relinquishment. That having been found against, the story of possession in assertion of appellants' exclusive title has to be rejected. His present version is also inconsistent with the recitals in Exs. A-21, A-23 and A-24, already referred to. We have lastly the evidence of D. W. 14. Though the witness has stated that he relinquished his share in 1923 and that ever since his children were in sole enjoyment of the properties to his exclusion, the various inconsistent statements made by him in his evidence go to show, what an untrustworthy witness he is. We have also referred to the description of this witness by the Judge as a witness who has least regard for truth and who has been making every effort to defraud the mortgagee purchaser and to save the property for his children. We may also say that in appeal against the judgment in O. S. No. 40 of 1933 the learned Judges of the High Court characterised his evidence as unreliable. His attempt in the witness-box to prove the acquisition of title to his share by prescription, is in conflict with the statements made by him in the various mortgage deeds and sale deeds executed by him from 1926. He was obviously trying to keep the property for his own family at the expense of the mortgagee auction-purchaser. In these circumstances, we must hold there is very little basis, even in oral evidence, for the defence of adverse possession. We must therefore accept the finding of the trial court on this part of the case also. THEre remains the question of partial partition. As we have already remarked, this plea is based on the alleged existence of a few items of property which have not been included in the suit. As substantiating the contention that a suit for partial partition should fail, Mr. Ghalapathirao called in aid Iburamsa Rowthan v. THEruvenkata Same Naick . THE passage which is relied on by the learned counsel in the judgment at page 274 is as follows : " THE next proposition which is also beyond question is that a stranger purchasing the interest of one or more members of the family in certain items of family property cannot enforce partition of those items only against the will of the other members without suing for a general partition of the entire family property. THE principle of this rule is that there may be equities which those other members have against the vendor of the plaintiff which can only be worked out in a general suit for partition and in working out those equities the plaintiff 's vendor and hence the plaintiff may be assigned a different item from the items he purported to buy or even a smaller share than those items represented." We do not think the rule stated in this passage is applicable to suits in respect of properties owned by tenants-in-commmon. To hold that a suit for partition of certain items of property belonging to several Mahammadan co-shareres fails because of partial partition is to import the notions of Hindu law into them. THE principles applicable to suits for partition of joint family properties do not govern suits for division of common properties. So, the failure to include all the properties in respect of the second category of cases does not entail the consequence of the dismissal of the suit. THEre is ample authority for this proposition. In Pakkiru Kanni v. Hazi Muhammad Manjoor Saheb it was laid down by Mr. Justice Oldfield and Mr. Justice Devadoss that the fact that a suit did not include all the common properties available for partition could not lead to the dismissal of the suit. This is also illustrated by Seetaram v. Narayana. THE opinion expressed there was that the ordinary rule that in suits for division of coparcenery property it should embrace the whole family properties does not apply to property held in common although special circumstances may exist in some cases which may make it desirable to extend the rule even to suits in relation to property held by tenants-in-common. It also appears from that case that even in respect of coparcenery property there are exceptions, arising out of convenience or other causes. Thus the concepts and terminology of Hindu Law cannot be applied to such cases. In Moideensa Rowthen v. Mahammada Kasim Rowthen it was remarked : "It is therefore futile to describe a suit in which one heir claims to receive his share of the property of the deceased from another heir as a suit for partial partition and to say therefore that the suit is not maintainable". To the same effect is the ruling of the Sind Court in Vazir v. Dwatakammal. It follows that the present suit is maintainable and is not bad for partial partition. It should be remebered that the mortgage plaintiff had acquired an interest in the properties mortgaged and he had no concern with other properties, if any, belonging to the defendants. THE equities referred to above attach only to the division of properties. It is not stated here that any such equities arise in this particular case. THErefore, the suit need not embrace properties other than those forming the subject-matter of the mortgage. To describe such a suit as one for partial partition is incorrect. We must observe that this plea is more obstructive than genuine. This contention also fails and must be rejected. It follows that the decision of the lower Court on all the points is affirmed and the appeal dismissed with costs. M. S. R. Appeal dismissed.

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.