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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Chainani
  • Badkas, JJ.
Acts
  • S. 29 of the Bombay Tenancy and Agricultural Lands Act
  • Articles 120 and 144 of the Indian Limitation Act.
  • Article 120 of the Limitation Act.
  • S. 9 of the Specific Relief Act
  • Art. 144 of the Limitation Act.
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Chainani
  • Badkas, JJ.
Acts
  • S. 29 of the Bombay Tenancy and Agricultural Lands Act
  • Articles 120 and 144 of the Indian Limitation Act.
  • Article 120 of the Limitation Act.
  • S. 9 of the Specific Relief Act
  • Art. 144 of the Limitation Act.
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Smart Summary

Case Summary — Second Appeals (Articles 120 & 144, Limitation Act)

Factual and Procedural Background

The proceedings concern three second appeals that raised the interpretation of Articles 120 and 144 of the Indian Limitation Act. The principal factual background (as presented in the opinion) is:

  • A group of defendants belonged to the Gokhale family; defendant No.1 Vishwanath had three brothers Kashinath, Ganesh and Parsram. Defendants 2 and 3 are sons of Kashinath; defendant No.4 Ganesh died and his son Anant was substituted; defendant No.6 is Parsram's widow and defendant No.5 is his grandson.
  • The family (through their bhaubhands) jointly owned several properties in which they had a one‑fourth share. The bhaubhands sold their 12 annas share to Limayes prior to 1913; Limayes obtained a partition decree in 1913.
  • The brothers (including defendant No.1 and Kashinath) separated in 1903. In 1913 Kashinath sold his 1/4th share to Bapuji Vasudeo Lele.
  • In 1937 Limayes filed suit No.304 of 1937 against the defendants seeking partition and possession of some properties in which they claimed twelve annas share; Lele joined that suit and his claim was rejected by the defendants.
  • Lele leased several pieces (Hissa Nos. 1, 3, 7 and 10 of Survey No. 32 and Survey No. 105/1) to Moru Dhondu Jathar and Antu Dhondu Gurav. On 8‑1‑1948 Lele sold the properties he had purchased from Kashinath to the plaintiff Mahadeo (Mahadev) Arjun Kokate, who then took possession.
  • Defendant No.1 obtained possession of the properties in execution of a decree in suit No.180 of 1948 (brought under S.9 Specific Relief Act).
  • The plaintiff filed suit No.302 of 1949 for partition and separate possession of his 1/4th share. The defendants contended, among other things, that Lele had not acquired title because the sale was a sham and that the suit was barred by limitation.
  • The trial court dismissed the suit, finding the plaintiff had failed to prove title and possession within twelve years before suit. On appeal the District Judge reversed, holding that Article 144 (not Article 120) applied and that the plaintiff's suit was filed within twelve years from the date on which defendants 2 and 3 denied Lele's title by filing their written statement in suit No.304 of 1937; a decree in favour of the plaintiff was entered. Defendants 1–3 appealed (Appeal No.1490 of 1955).
  • Separately, Jathar and Gurav applied under S.29 of the Bombay Tenancy and Agricultural Lands Act claiming tenancy; their claims succeeded through the revenue process, and defendant No.1 subsequently sued (suits Nos.146 & 147 of 1950) to recover possession and succeeded. Second appeals arising from those proceedings are Nos.1099 and 1100 of 1955 (involving Jathar, Gurav and Kokate).
  • In the second appeals No.1099 and 1100 a direction was sought that five leased pieces (Hissa Nos. 1, 3, 7 and 10 of Survey No.132 and Survey No.105/1) be allotted, if possible, to Kokate's share on partition.

Legal Issues Presented

  1. Whether Article 120 (residuary) or Article 144 of the Limitation Act applies to a suit for partition and possession brought by a purchaser of an undivided interest of a (former) coparcener who had separated from his coparceners.
  2. If Article 144 applies, from what date does the period of limitation run — from the date of purchase, from the date the purchaser's title was denied, or some other date?
  3. In the related appeals concerning possession of five leased pieces, whether the court should direct that those lands be allotted to the plaintiff Kokate's share while effecting partition.

Arguments of the Parties

Appellants' Arguments (as presented for defendants 1–3)

  • Primary contention (advanced by Mr. Kotwal): The suit is barred by limitation and Article 120 (residuary article) — not Article 144 — applies to the plaintiff's cause of action.
  • Reliance was placed on Shevantibai v. Janardan Warick (41 Bom LR 631; AIR 1939 Bom 322) to support the proposition that a purchaser from a coparcener does not immediately acquire a right to possession and hence Article 144 does not apply in such cases; the purchaser's remedy is under the residuary Article 120.
  • It was further argued (with citation to Udi v. Maru Mal, AIR 1924 Lah 682) that a transferee/purchaser does not become a co-owner by mere transfer if his rights are denied by the other co‑sharers; therefore a suit for possession must be brought within twelve years from the date of transfer (purchase).
  • Appellants also argued that because neither Lele nor the plaintiff received any share of the income from the lands since the 1913 purchase, that amounted to an ouster and therefore the defendants had, by adverse possession, acquired title.

Respondent / Plaintiff Position and Supporting Contentions (as recorded)

  • The District Judge (and the court in this opinion) treated the relevant question as one of which Limitation Act article governs: Article 144 applies if the purchaser succeeded to the rights of a separated member and thereby became a co‑owner with the right to joint possession; Article 120 was not applicable on that basis.
  • Counsel for the respondents in the partition appeals (Mr. Kotwal in the related appeals) raised no objection to the direction sought that the five leased pieces be allotted to Kokate's share during partition; the court accordingly agreed to such a direction in those appeals.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Shevantibai v. Janardan Warick, 41 Bom LR 631 : AIR 1939 Bom 322 Held that a purchaser from a coparcener under Hindu law does not, by virtue of purchase alone, acquire joint possession of family property and therefore a suit by such purchaser for partition/possession was governed by the residuary Article 120 rather than Article 144 (in the context of an intact coparcenary). The court considered this authority but distinguished it: where the coparceners had separated (as in the present case, separation in 1903), the purchaser of a separated member's share takes the vendor's rights as a co‑owner under ordinary law and Article 144 applies. Thus Shevantibai did not control the result here.
Udi v. Maru Mal, AIR 1924 Lah 682 Held (as cited) that a transferee cannot become a co‑owner by mere transfer if his rights are denied; thus a suit for possession by transferee must be brought within twelve years from the date of transfer. The court noted this decision but observed factual incompleteness in that report; it did not follow Udi as determinative because it preferred the principle in Subah Lal that denial/ouster determines when possession becomes adverse.
Subah Lal v. Fateh Muhammad, ILR 54 All 628 : AIR 1932 All 393 Stated that there can be no adverse possession by one co‑owner against another unless there has been a denial of title and an ouster known to the other co‑owners; the same applies to transferees from a co‑owner. The court accepted this principle and applied it: by purchase Lele became a co‑owner and adverse possession could only commence when the defendants denied Lele's title — which in this case occurred with the written statement in suit No.304 of 1937.
Nargisbai v. Jehangir, 45 Bom LR 104 Established that in joint property mere exclusive possession and enjoyment by one co‑owner does not constitute adverse possession against other co‑owners unless there is a denial of title amounting to ouster. The court relied on this principle to reject the appellants' argument that non‑receipt of income by Lele/plaintiff demonstrated an ouster; mere exclusive enjoyment without denial is insufficient.
P. Lakshmi Reddy v. L. Lakshmi Reddy, 1957 SCR 195 : AIR 1957 SC 314 Reaffirmed that to establish adverse possession between co‑heirs there must be evidence of an open assertion of hostile title coupled with exclusive possession and enjoyment to the knowledge of the other co‑heirs; secret hostile animus is insufficient. The court cited this authority for the same proposition and applied it in concluding that there was no ouster prior to the defendants' written denial in 1937, and so limitation under Article 144 began to run from that denial.

Court's Reasoning and Analysis

The court's reasoning proceeds in several linked steps, each grounded in the statutory language of the Limitation Act and established authorities (as cited in the opinion):

  1. Identification of controlling article of limitation:
    • The critical preliminary factual finding (admitted by defendant No.1) was that the brothers had separated in 1903.
    • Applying the principle explained in Shevantibai and the distinction drawn by the court, where coparceners have separated and hold property as co‑owners (tenants in common), a purchaser of a separated member's share steps into the vendor's rights as a co‑owner, including the right to joint possession and to seek partition. Consequently, Article 144 (which governs suits for possession by a co‑owner) — and not the residuary Article 120 — applies to the present suit.
  2. Computation of limitation under Article 144:
    • Article 144 starts to run when the possession of the defendant becomes adverse to that of the plaintiff.
    • The appellants argued that a purchaser must sue within twelve years from the date of purchase (citing Udi v. Maru Mal). The court examined that position but preferred the authoritative articulation in Subah Lal: adverse possession between co‑owners (and transferees who become co‑owners) requires a denial of title and an ouster known to the non‑possessing co‑owners.
    • The court therefore held that by purchasing Kashinath's undivided interest in 1913, Lele became a co‑owner with rights of joint possession. The defendants' possession remained possession on behalf of all co‑owners (including Lele and later the plaintiff). Possession only became adverse when the defendants denied Lele's title in their written statement in suit No.304 of 1937.
  3. Rejection of the adverse‑possession/ouster argument based on non‑receipt of income:
    • The appellants argued that because Lele/the plaintiff did not receive income from the lands after purchase, there was an ouster and adverse possession. The court rejected this, relying on Nargisbai and P. Lakshmi Reddy, which require an open assertion of hostile title (an ouster) coupled with exclusive possession and enjoyment to constitute adverse possession between co‑owners.
    • Secret or passive non‑receipt of income is insufficient; there was no denial of title until the 1937 written statement. Consequently, the court concluded that the period of limitation under Article 144 began in 1937, and the suit No.302 of 1949 was filed within twelve years from that date.
  4. Disposition and incidental relief in the related appeals:
    • In the two other appeals involving Jathar and Gurav, the appellants sought a direction that the five leased pieces be allotted, if possible, to Kokate's share on partition. There was no contest by the opposing counsel. The court directed that, while effecting partition in suit No.302 of 1949, those five lands should, if possible, be allotted to the plaintiff Mahadev Arjun Kokate's share.

Holding and Implications

Holding:

  • Appeal No.1490 of 1955 is dismissed with costs. The court held that Article 144 of the Limitation Act applied (because the coparceners had separated in 1903 and the purchaser Lele became a co‑owner), and that limitation began to run when the defendants denied Lele's title by their written statement in suit No.304 of 1937; the plaintiff's suit was therefore within time.
  • In the other two appeals (second appeals Nos.1099 and 1100 of 1955) the court directed that while effecting partition in suit No.302 of 1949, the five pieces of land (Hissa Nos. 1, 3, 7 and 10 of Survey No.132 and Survey No.105/1) should, if possible, be allotted to the plaintiff Mahadev Arjun Kokate's share. Subject to this direction, those two appeals were dismissed with costs.

Implications (direct effects):

  • The plaintiff's decree for partition and separate possession (as affirmed) stands; the defendants' limitation plea under Article 120 was rejected because Article 144 governs the suit on the facts of separation.
  • Possession was not held to have been adverse to the purchaser (Lele) until the written denial of 1937; therefore the plaintiff's action was timely under Article 144.
  • On partition, the court has directed preferential allotment (if possible) of the five leased pieces to Kokate's share.
  • The opinion applies established precedents and distinctions (notably the separation/no‑separation distinction in coparcenary cases) but does not purport to announce a novel rule of law beyond its application to the facts; the decision operates primarily to resolve the parties' rights and the pending appeals on the facts before the court.
DC/V.B.B
Appeals dismissed.

This summary is drawn exclusively from the text of the provided opinion and does not add information beyond that opinion.

Show full summary ...

    Vishvanath Krishna Gokhale v. Mahadeo Arjun Kokate

    Chainani, J.:— These three second appeals have been referred to a Division Bench by Mr. Justice Shah, as in his opinion they involved a question as to the interpretation of Articles 120 and 144 of the Indian Limitation Act. Appeal No. 1490 of 1955 arises out of suit No. 302 of 1949 filed by Mahadeo Arjun Kokate, to whom I will hereafter refer as the plaintiff. There are six defendants in this suit, who belong to the Gokhale family. Defendant No. 1 Vishwanath had three brothers Kashinath, Ganesh and Parsram Defendants 2 and 3 are the sons of Kashinath. Defendant No. 4 Ganesh died during the pendency of the suit and his son Anant has been brought on record in his place. Defendant No. 6 is the widow of Parsram, while defendant No. 5 is Parsram's grandson. The defendants' family and their bhaubhands jointly owned several properties, in which they had one-fourth share. The defendants' bhaubhands sold their 12 as share to Limayes prior to 1913. In 1903 defendant No. 1 and his brothers separated from each other. In 1913 Limayes filed a suit for partition of their 12 annas share and obtained a decree. On 8-11-1913 Kashinath, who had a 1/4th share in the properties belonging to the Gokhale family, sold his share to Bapuji Vasudeo Lele. In 1937 Limayes filed suit No. 304 of 1937 against the defendants for partition and separate possession of some properties in which they had twelve annas share. Lele was made a party to that suit. He also claimed partition and possession of the share in the properties purchased by him. His claim was denied by the defendants, who contended that the transaction in his favour was a sham and bogus one. No relief was granted to Lele in this suit. Sometime thereafter, Lele leased four pieces of the suit lands, Hissa Nos. 1, 3, 7 and 10 of Survey No. 32 to one Moru Dhondu Jathar and one other survey No. 105/1 to Antu Dhondu Gurav. On 8-1-1948 Lele sold the properties purchased by him from Kashinath to the plaintiff Kokate. The plaintiff then obtained possession of the properties. Defendant No. 1 then filed suit No. 180 of 1948 under S. 9 of the Specific Relief Act and obtained possession of the properties in execution of the decree massed in that suit. Thereafter the plaintiff filed suit No. 302 of 1949, out of which, appeal No. 1490 arises, for partition and separate possession of his 1/4th share in the suit lands. The defendants resisted the suit on various grounds. Then principal contentions were that Lele had not acquired any title to or interest in the suit lands, as the transaction between him and Kashinath was a hollow and sham one, not intended to be acted upon, and that the suit was barred by limitation. The trial Court held that the plaintiff had tailed to prove his or his predecessor Lele's title to the suit properties, and also their possession within twelve years before the suit. The suit was, therefore, dismissed. The plaintiff appealed to the District Court. The learned District Judge held that the defendants were not entitled to challenge the plaintiff's title to the properties and that the plaintiff was entitled to a partition thereof. It was urged before him that the suit was barred by limitation under Article 120 of the Limitation Act. The learned District Judge, however, held that Article 144 and not Art. 120 applied to the suit. He also held that, as the plaintiff had filed the suit within twelve years from the date on which defendants 2 and 3 had filed their written statement in suit No. 304 of 1937 denying the plaintiff's title, the suit was in time. He, therefore, allowed the appeal filed by the plaintiff and passed a decree in his favour. Against this decree appeal No. 1490 of 1955 has been filed by the defendants 1 to 3.

    2. After Defendant No. 1 obtained possession of the properties in execution of the decree passed in his favour in suit No. 180 of 1948, Jathar and Gurav made application to the Mamlatdar under S. 29 of the Bombay Tenancy and Agricultural Lands Act for obtaining possession of the lands. In these applications they contended that they were the tenants of the lands. Their contentions were accepted by the Mamlatdar and in appeal by the Collector. The Bombay Revenue Tribunal dismissed the revision application filed by defendant No. 1. Thereafter defendant No. 1 filed suit No. 146 of 1950 against Jathar, the plaintiff Mahadev Kokate and his brother for obtaining possession of the four lands, of which Jathar had taken possession. He filed another suit No. 147 of 1950 against Gurav, Mahadev Kokate and Krishna Kokate. He succeeded in both these suits and obtained decrees for possession of the five lands leased to Jathar and Gurav. The appeals filed by Jathar, Gurav, and Kokate to the District Court were dismissed. Against the orders passed by the District Court, Jathar and Mahadev Kokate have filed second appeal No. 1099 of 1955, while Gurav and Kokate have filed second appeal No. 1100 of 1955.

    3. In appeal No. 1490 of 1955, the only question, which has been urged by Mr. Kotwal on behalf of the appellants, is that the suit was barred by limitation. He has contended that the article of limitation applicable to the suit is Article 120 and not Art. 144. In support of his argument he has relied on Shevantibai v. Janardan Warick, 41 Bom LR 631 : (AIR 1939 Bom 322). In that case it was held that under Hindu law a purchaser from a member of a Joint family does not acquire a right to be considered himself a member of the joint family in place of the vendor, or a right to have joint possession of the family property in place of the vendor or even a right to possession of any specific part of the property, that being a right which the vendor himself did not possess and that the only right which the purchaser has in such a case is a right to sue for partition and ask for being allotted to himself the share which would have gone to his vendor. It was also observed that as the purchaser from a coparcener is not entitled to joint possession of the family property, he cannot rely on the ordinary rule that the possession of one co-tenant is the possession of all. Article 144 applies to a suit for possession of immoveable property and the period of limitation runs from the date when the possession of the defendant becomes adverse to the plaintiff. If, however, the plaintiff is not entitled to possession, the possession of the other person cannot become adverse to him, because as observed by Beaumont, C.J adverse possession denotes exclusion of somebody entitled to possession. A purchaser of an undivided interest of a coparcener in the joint family property cannot, as of right, claim joint possession of the property or separate possession of the portion representing the undivided share of his vendor in the property. By his purchase he acquires a right to partition and not a right to possession prior to partition. Consequently, it was held in 41 Bom LR 631 : (AIR 1939 Bom 322) that, Art. 144 does not apply to a suit for partition and possession brought by a purchaser of an undivided interest of a coparcener in the joint family property and that the article applicable is the residuary Art. 120. An alienation by a coparcener does not put an end to the coparcenary, whether he alienates the whole or part of his interest in the family property and he continues to be a member of the joint family with rights of survivorship between himself & other coparceners in respect of all the family property. See para 399 in Mayne's Hindu Law and Usage, 11th Edition. The position is, however, different when the coparcenary has come to an end. The above decision will not therefore apply where the members of the joint family have separated and where the joint family has ceased to exist. After separation, the separated members hold the properties, not actually divided, not as joint tenants, but as tenants in common, that is, as co-owners. The rule about the exclusion of the purchaser of an undivided portion of the joint family property from possession of the property will not apply in such cases, for there is no longer any joint family or joint family property. If, therefore, a person purchases the share of a separated member in property, which was not actually partitioned but which continues to be held jointly by the separated members of the family, his rights will be governed by the ordinary law. By his purchase, he acquires all the rights of his vendor, including his right as a co-owner to joint possession of the property jointly held and also his right to obtain by partition separate possession of his share in that property. A suit for possession by a co-owner, who is not in possession, against the other co-owners who are actually in possession is governed by Art. 144 of the Limitation Act. There being a specific article applicable to such a suit the residuary article 120 will not apply. This article 144 will, therefore, apply to a suit for possession by the purchaser of the undivided interest of a separated member of the family in property, which was kept joint at the time of the partition or when members of the joint family separated from each other.

    4. In this case defendant No. 1 has admitted in his evidence that he and his brothers had separated in 1903. Kashinath sold his share to Lele many years thereafter in 1913. Article 144 and not Art. 120 will, therefore, apply to the present suit.

    5. Under Art. 144 the period of limitation begins to run when the possession of the defendant becomes adverse to that of the plaintiff. Mr. Kotwal has urged that the rule that possession of one co-owner must be deemed to be the possession of all the co-owners does not apply in the case of a purchaser from a co-owner and that the purchaser of the share of a co-owner must file a suit for possession within twelve years from the date of his purchase and not within twelve years from the date on which his title is actually denied. He has relied on the decision of a single Judge of the Lahore High Court in Udi v. Maru Mal, AIR 1924 Lah 682. It was held in that case that a transferee cannot by the mere fact of transfer become a co-owner, if his rights as such are denied by the other co-sharers and a suit by him, therefore, for possession against his transferor's co-sharers must be brought within twelve years from the date of transfer. The judgment in that case does not give all the facts, for, it is not clear when the right of the purchaser had been denied. In Subah Lal v. Fateh Muhammad, ILR 54 All 628 : (AIR 1932 All 393), it has been observed:

    “As regards co-owners the law is that there can be no adverse possession by one co-owner unless there has been a denial of title and an ouster to the knowledge of the others; and the same principle applies to the case of a transferee from a co-owner. There can be no difference in principle whether a person is the original co-owner or has become a co-owner by virtue of transfer”.

    6. With respect, we agree with these observations. By his purchase of Kashinath's undivided interest, Lele became a co-owner along with Kashinath's brothers. The possession of the properties by the defendants thereafter was the possession on behalf of all the co-owners, including Lele and subsequently his transferee, the plaintiff. Their possession became adverse when Lele's title was denied by he defendants in the written statement filed by them in suit No. 304 of 1937.

    7. Mr. Kotwal has also contended that as neither the plaintiff nor Lele had received any part of the income realised from the lands since Lele purchased Kashinath's share, there was an ouster and that consequently the defendants have acquired title to the lands by adverse possession. This argument cannot be accepted. As held in Nargisbai v. Jehangir, 45 Bom LR 104 in the case of joint property, mere exclusive possession and enjoyment by one co-owner is not enough to constitute adverse possession against the other co-owners, unless there is a denial of title justifying a presumption of ouster of the latter. In P. Lakshmi Reddy v. L. Lakshmi Reddy, 1957 SCR 195 at p. 202: ((S) AIR 1957 SC 314 at p. 318) it has been observed:

    “But it is well settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession, who claims his possession to be adverse, should be made out. The possession of one co-heir is considered in law as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive-possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.” Mere possession and enjoyment of the profits of the suit lands for a long period by the defendants will not therefore, constitute ouster. There was in this case no denial of the title of Lele until defendants 2 and 3 filed their written statement in suit No. 304 of 1937. The defendants' adverse possession, therefore, commenced on the date on which this written statement was filed. The suit has been filed within 12 years from this date and is, therefore, in time.

    8. Appeal No. 1490 of 1955, therefore, fails and is dismissed with costs.

    9. In the other two appeals, the only point, which has been urged by Mr. Albal on behalf of the appellants, is that a direction may be given that while making a partition of the suit lands, the five pieces of lands Hissa Nos. 1, 3, 7 and 10 of survey No. 132 and Survey No. 105/1, which had been leased to Jathar and Gurav, may, as far as possible, be allotted to the share of Kokate. Mr. Kotwal, who appears on behalf of the contesting respondents in these appeals, has no objection to such a direction being given. Accordingly, in these appeals we direct that while effecting a partition of the lands in suit No. 302 of 1949, these five lands should, if possible, be allotted to the share of the plaintiff Mahadev Arjun Kokate in that suit. Subject to this direction, these two appeals are dismissed with costs.

    DC/V.B.B
    Appeals dismissed.
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    Comments

    Vishvanath Krishna Gokhale v. Mahadeo Arjun Kokate
    (Aug 27, 1958)