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Vishwanath Vithoba v. Genu Kisan And Others,
Judgment Summary — Chainani, J.
Factual and Procedural Background
The dispute arises between a plaintiff and defendants 1 and 2 (who are related to the plaintiff as shown in a pedigree in the record) concerning three houses identified by C.S. Nos. 396, 386 and 576 (old C.T.S. Nos. 663, 468 and 520 respectively). The plaintiff alleged that his grandfather, Gyanuji, purchased these three houses on 30-9-1889, 17-4-1893 and 17-8-1895 and produced certified copies of three sale-deeds (Exhibits 75, 76 and 77) in support.
The plaintiff pleaded that Gyanuji purchased the houses as manager of the joint family; after Gyanuji's death the management passed to the next senior member, Vithoba; the plaintiff's father Kisan died in or about 1923 as a member of the joint family; and there had been no partition. The plaintiff sought partition and separate possession of a half share in the three houses.
Defendants 1 and 2 contested the suit, asserting (a) the houses were the self-acquired and exclusive properties of their father Vithoba, (b) they had acquired title by adverse possession, and (c) that Kisan had separated from the family after his marriage. The trial judge rejected the defendants' contentions, held the properties to be joint family properties, found no separation or ouster, and decreed that the plaintiff recover possession of his half share. Defendants 1 and 2 appealed against that decree.
Legal Issues Presented
- Whether the certified copies of the sale-deeds (Exhs. 75, 76 and 77) were admissible in evidence despite no notice under cl. (a) of Section 65, Evidence Act having been given to the defendant alleged to have the originals.
- Whether the three suit houses were self-acquired properties of Vithoba (and thus excluded the plaintiff's claim) or were joint family properties purchased by Gyanuji.
- Whether the defendants had acquired exclusive title to the properties by adverse possession (i.e., whether there had been an ouster or disclaimer sufficient to start the running of time against co-sharers).
Arguments of the Parties
Plaintiff's Arguments
- The three houses were purchased by his grandfather Gyanuji on the specific dates set out, supported by certified copies of sale-deeds (Exhs. 75–77).
- Gyanuji acquired the houses as manager of a joint family; there had been no partition and his father Kisan remained part of the joint family until his death.
- The originals of the sale-deeds were not in his possession and were, he stated, in the possession of defendant 1 (so the court could dispense with notice under S.65/S.66 of the Evidence Act and admit the certified copies).
- No satisfactory evidence showed any ouster or denial of the plaintiff's share by the defendants; therefore adverse possession was not made out.
Defendants' Arguments
- The houses were the self-acquired and exclusive properties of their father Vithoba, not joint family property of Gyanuji and his brothers.
- They had acquired title to the three houses by adverse possession (i.e., exclusive possession for a long period sufficient to constitute ouster).
- The plaintiff's father Kisan had separated from the joint family after his marriage, which would defeat the claim that the properties remained joint family property available to the plaintiff.
- The certified copies of sale-deeds produced by the plaintiff were not admissible because the plaintiff had not issued the statutory notice to the party in possession of the originals as required under cl. (a) of Section 65, Evidence Act.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Surendra Krishna v. Mirza Mahamed Syed Ali, 1936 PC 15 (AIR V 23) | Explains purpose of notice under Ss. 65 and 66 Evidence Act; secondary evidence admissible where original cannot be produced for reasons not arising from party's own default; court has power under S.66 to dispense with notice when it thinks fit. | Relied upon to justify dispensing with the statutory notice and admitting certified copies (Exhs. 75–77) where plaintiff stated the originals were in defendant 1's possession and that statement was not challenged. |
| Gangadhar v. Parasharam, 7 Bom LR 252 | Held that to constitute adverse possession between tenants in common there must be an exclusion or an ouster. | Invoked by the court as the governing principle to test defendants' adverse possession plea; the court required evidence of ouster/exclusion which was not produced. |
| Bhaiji Shamrao v. Hajimiya Mahamad, 14 Bom LR 314 | Possession by one co-sharer does not constitute adverse possession against another until there is a disclaimer by open assertion of a hostile title. | Used to reinforce that mere long sole possession by co-sharers (without hostile acts) does not amount to ouster; supported rejection of defendants' adverse possession claim. |
| Chandbhai v. Hasanbhai, 1922 Bom 150 (AIR V 9) | Held sole possession by one of two joint owners is not evidence of denial of right of the other; time does not run against the absent co-owner until the occupant does some act amounting to denial of that co-owner's right. | Applied to conclude that the defendants' long possession did not, by itself, start the running of prescription against the plaintiff absent an act amounting to denial/denial of title. |
| Vishnu v. Mahadev, 1942 Bom 44 (AIR V 29) | Similar proposition as Chandbhai: possession alone not sufficient to prove ouster of a co-sharer. | Reinforced the court's view that defendants failed to prove ouster/adverse possession. |
Court's Reasoning and Analysis
The court proceeded in a stepwise manner:
- Admissibility of certified sale-deeds (Exhs. 75–77): The plaintiff produced certified copies and stated that the originals were not in his possession and were with defendant 1. There was no cross-examination challenging this statement and defendant 1 did not expressly deny possession of the originals in his evidence. Relying on the principle in Surendra Krishna (and the statutory discretion under S.66, Evidence Act), the court found it proper to dispense with the formal notice under cl. (a) of S.65 and admit the certified copies. The court also observed that if the originals were not with the defendants and not with the plaintiff, they must be deemed lost, making the copies admissible under cl. (c) of S.65.
- Substance of the documentary evidence: The admitted documents showed purchases by Gyanuji in the stated years (1889, 1893 and 1895). The defendants produced no document showing these houses were purchased by Vithoba. A mortgage-bond (Exh. 78) dated 23-9-1916 executed by Vithoba and Maruti recited that Vithoba and Maruti had a half share and the remaining half belonged to their two brothers, Gyanuji and Bhausaheb, supporting the joint-family character of the properties.
- Contemporaneous and corroborative records: Extracts from the death register (Exhs. 70–72) and the property register (Exh. 47) established that multiple family members (Gyanuji, Vithoba, Bhausaheb, Maruti and their families) formerly resided in the specified house (C.S. No. 496) and that the house was shown in names including Vithoba and Maruti till 1949. These facts corroborated the contention of joint family ownership and occupancy.
- On partition/separation: The evidence did not satisfactorily show any partition among the brothers nor that after Gyanuji's death his sons separated from other family members. The plaintiff's father Kisan was shown to have died as a member of the joint family. Hence the plaintiff proved title to a half share.
- On adverse possession: The court applied established authorities holding that mere sole possession by a co-sharer is insufficient to establish adverse possession against other co-sharers; there must be an ouster or an open denial/disclaimer of title. Though the plaintiff admitted he had not been residing in the principal house since about 1926, there was no evidence that prior to that date the plaintiff or his father were ousted or excluded. The plaintiff's evidence that defendants pleaded poverty when asked for a share of rent did not amount to denial of title. Therefore the defendants failed to prove ouster or antagonistic possession sufficient to establish adverse possession.
Holding and Implications
Appeal dismissed with costs.
Direct consequences:
- The trial decree in favour of the plaintiff stands: the plaintiff is entitled to recover possession of his half share in the three suit houses.
- The defendants' pleas that the houses were self-acquired by Vithoba and/or that they had acquired exclusive title by adverse possession were rejected.
The opinion does not purport to lay down any new legal principle; it applies existing authorities on admissibility of secondary evidence (S.65/S.66 Evidence Act) and the law on adverse possession between co-sharers to the facts of this case. No broader precedent beyond these applications is announced in the judgment.
Order in the record: D.R.R — Appeal dismissed.
Chainani, J.:— This is an appeal by defendants 1 and 2. The parties are related to each other as shown in the following pedigree:
2. The plaintiff's grand-father Gyanuji died in 1897. The date of the death of plaintiff's father Kisan is not know, but he died in or about 1923. The branches of Gyanuji's two brothers, Bhausaheb and Maruti are now extinct.
3. The dispute between the plaintiff and the defendants relates to three houses, bearing C.S Nos. 396, 386 and 576. According to the plaintiff their old C.T.S Nos. are 663, 468 and 520 respectively. The plaintiff's case is that these three houses were purchased by his grand-father, Gyanuji, on 30-9-1889, 17-4-1893 and 17-8-1895 respectively. Along with the plaint he produced certified copies of three sale-deeds exhs. 75, 76 and 77.
4. The present city survey numbers are not mentioned in these documents. But the plaintiff stated in the plaint that these sale-deeds were in respect of the suit houses. He also mentioned in the plaint the old and the new C.S numbers of each house. It was also alleged in the plaint that Gyanuji had purchased these houses as manager of the joint family, that after his death, the houses went into the management of the next senior member of the family, Vithoba, that the plaintiff's father Kisan died as a member of the joint family and that there had been no partition of the family properties.
5. The plaintiff therefore asked for partition land separate possession of a half share in the three houses. The suit was resisted principally by defendants 1 and 2, who are the appellants in present appeal. They did not deny that the sale-deeds, of which the plaintiff had produced certified copies, Exhibits 75, 76 and 77, related to the suit houses. They stated that the houses were the self-acquired and exclusive properties of their father, Vithoba, and that no other member of the family had any right or interest in them. They also contended that they had acquired title to the three houses by adverse possession. They further contended that the plaintiff's father Kisan had separated from the other members of the family after his marriage.
6. It was further urged that the defendants had become the exclusive owners of the three houses by adverse possession. The learned trial Judge did not accept these contentions of the defendants. He held that the three suit houses were joint family properties, that Kisan had not separated from the joint family as alleged by the defendants and that there had been no ouster of the plaintiff or his father from the suit properties.
7. Accordingly, he passed a decree in favour of the plaintiff entitling him to recover possession of his half share in the suit properties. From this decree, defendants 1 and 2 have come in appeal.
8. The first point, which has been urged by Mr. Sukhthankar in this appeal is that the plaintiff has not proved that the three suit houses were purchased by Gyanuji. In order to prove his assertion on this point, the plaintiff has produced the certified copies of three sale-deeds, Exhibits 75, 76 and 77.
9. Mr. Sukhthankar has urged that these copies of the sale-deeds are not admissible in evidence. The plaintiff has stated in his evidence that the original sale-deeds are not in his possession but they are in the possession of defendant 1. The plaintiff did not, however, give any notice to defendant 1 asking him to produce the original sale-deeds.
10. Mr. Sukhthankar has, therefore, urged that the certified copies are not admissible in evidence as no notice was given to defendant 1 as required by cl. (a) of S. 65, Evidence Act. The proviso to S. 66, however, enables the Court to dispense with such notice in any case, in which the Court so thinks fit. In ‘Surendra Krishna v. Mirza Mahamed Syed Ali’, 1936 PC 15 (AIR V 23) (A) Their Lordships observed:
“The only purpose of a notice under Ss. 65 and 66, Evidence Act, is to give the party an opportunity by producing the original document to secure, if he pleases, the best evidence of its contents. The difference between a certified copy and the original for the purposes of the present case is not very obvious but secondary evidence is admissible when the party offering evidence of its contents cannot for any reason not arising from his own default or neglect produce the original document in reasonable time; and under S. 66 the court has absolute power, when it thinks fit, to dispense with a notice under these sections”.
11. In the present case after the death of Gyanuji, the next senior member of the family was Vithoba. The three sale-deeds therefore in all probability went into the possession of Vithoba and after his death into the possession of the defendants. The plaintiff has stated that the original sale-deeds are not with him. He has also stated that they are in the possession of defendant 1. There was no cross-examination of the plaintiff in regard to his statement on this point.
12. Defendant 1 in his evidence did not deny that the original sale-deeds were in his possession. It would have been desirable if a question had been put to him on this point in the cross-examination by the plaintiff. But as the record stands, the plaintiff's statement that the original sale-deeds are with defendant 1 remains unchallenged. This is also in accordance with the probabilities of the case.
13. The certified copies of three sale-deeds Exhs. 75, 76 and 77 were also produced by the plaintiff along with the plaint. He has specifically stated in the plaint that these sale-deeds related to the three suit houses. There was no denial of this statement in the defendants' written statement.
14. If, therefore, the original sale deeds are in the possession of the defendant 1 as deposed to by the plaintiff and as the plaintiff's statement that the certified copies of the three sale-deeds produced by him related to the suit houses has not been denied by the defendants, we think this would be a proper case in which notice as required under cl. (a) of S. 65, Evidence Act, should be dispensed with. In that case, the three certified copies, exhs. 75, 76 and 77 would be admissible under cl. (a) of S. 65, Evidence Act.
15. On the other hand if the sale-deeds are not in the possession of the defendants and as they are also not in the possession of the plaintiff, they must be deemed to have been lost. In that case the certified copies would be admissible under cl. (c) of S. 65. The learned Judge was therefore right in admitting these three documents in evidence.
16. These documents show that the three suit houses were purchased by Gyanuji in 1889, 1893 and 1895. The defendants' contention that these houses were the self-acquired properties of Vithoba cannot therefore be accepted. The defendants have also not produced any document which would show that they had been purchased by Vithoba. Exhibit 78 is a copy of the mortgage-bond executed by Vithoba and Maruti on 23-9-1916. At that time Bhausaheb was dead.
17. By this document Vithoba and Maruti together mortgaged a house bearing C.S No. 479A and an open space of house No. 467. Exh. 79 which is a copy of the City Survey Map relating to C.S No. 496 shows that the old C.T.S Number of this house was 479A. One of the properties mortgaged by Vithoba and Maruti therefore was C.S No. 496.
18. The recitals in this mortgage-deed are also important. It is stated therein that in the property mortgaged, Vithoba and Maruti had a half share and that the remaining half share belonged to their two brothers, Gyanuji and Bhausaheb, who were then dead. These recitals therefore support the plaintiff's case that the three houses were joint family properties.
19. The evidence also shows that the house bearing C.T.S No. 496 was used as a residential house Exh. 72, which is an extract from the death register maintained by the poona Municipality, shows that Kondiba, uncle of the plaintiff, died in house No. 479, which corresponds to C.T.S No. 496. Bhau, the brother of Gyanuji, Sadashiv the son of Maruti and Kashinath son of Bhau also died in this house, Vide Exhs. 72, 70 and 71.
20. It, therefore, appears that all the four brothers, Gyanuji, Vithoba, Bhausaheb and Maruti and their families were formerly living in house C.S No. 496. Exh. 47, which is an extract from the Property Register relating to house No. 486 shows that till 1949 the house was shown in the names of Vithoba, Maruti and Kashinath.
21. The above evidence shows that the three houses were purchased by Gyanuji between 1889 and 1895 and that they belonged to the joint family consisting of Gyanuji and his three brothers. There is no satisfactory evidence to show that there had been a partition between them or even that after Gyanuji's death his sons had separated from the other members of the family. The plaintiff must, therefore be held to have proved his title to a half share in these houses.
22. Mr. Sukhthankar has also urged that the defendants have become exclusive owners of the houses by adverse possession. He has relied on ‘Gangadhar v. Parasharam’, 7 Bom LR 252 (B), in which it was held that
“to constitute an adverse possession as between tenants in common there must be an exclusion or an ouster”.
23. Jenkins C.J in his judgment referred to certain English cases, in which it has been held that sole possession by one tenant in common for a long period without any claim or demand by any person claiming under the other tenants in common is evidence from which the jury could presume an actual ouster of the other tenants in common. In ‘Bhaiji Shamrao v. Hajimiya Mahamad’, 14 Bom LR 314 (C) it was observed that
“the possession of joint property by one co-sharer does not constitute adverse possession against any other co-sharer until there has been a disclaimer of the latter's title by open assertion of a hostile title by the former”.
24. To the same effect is the decision in ‘Chandbhai v. Hasanbhai’, 1922 Bom 150 (AIR V 9) (D), where it was held that
“The sole possession by one of two joint owners itself is no evidence of his denial of the right of the other joint owner and that time does not run against the joint owner out of possession until the joint owner in possession has done some act to the knowledge of the other joint owner which amounts to a denial of that joint owner's right”. See also ‘Vishnu v. Mahadev’, 1942 Bom 44 (AIR V 29) (E). Mr. Sukhthankar's argument, that mere long possession of the houses by Vithoba and defendants by itself is sufficient to prove ouster of the plaintiff and his father, cannot therefore be accepted. The plaintiff has admitted in evidence that he has been living in the house of his mother's father since he was 14 or 15 that is, since about 1926. There is no satisfactory evidence to show that before then the plaintiff or his father, who, died about 1923 were not living in house No. 496, in which as I have pointed out the other members of the family were then residing.
25. The fact that the plaintiff has not been residing in this house since about 1926 would not however, entitle the defendants to claim exclusive ownership over the suit properties in the absence of any evidence about the denial by the defendants of the plaintiff's right to a share in these houses. Mr. Sukhthankar has relied on the plaintiff's admission that he has not received any portion of the rent realised by defendants 1 and 2 from house No. 486.
26. The plaintiff has, however, stated that when he asked the defendants to pay him his share, they pleaded poverty. He does not say that they denied his right to a share in the rent. The defendants have, therefore, failed to prove that there was an ouster of the plaintiff or his father from the suit properties. Mr. Sukhthankar's argument that the defendants have become exclusive owners of these properties by adverse possession cannot, therefore, be accepted.
27. The appeal consequently fails and is dismissed with costs.
D.R.R
Appeal dismissed.
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