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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • A.C. Hoshiarpuri
  • P.C. Pandit
Judges
  • Kapur, J.
Acts
  • 65 of Chitaley's Limitation Act, Vol. III, under Articles 142
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • A.C. Hoshiarpuri
  • P.C. Pandit
Judges
  • Kapur, J.
Acts
  • 65 of Chitaley's Limitation Act, Vol. III, under Articles 142
See more information ...
Smart Summary

Factual and Procedural Background

This is a defendant's appeal against an appellate decree of the Senior Subordinate Judge of Hoshiarpur dated 27-6-1952 confirming the decree of the trial court which had decreed the plaintiff's suit. The core facts as found in the opinion are:

  • Sunder Singh and Jowala Singh were two brothers who jointly owned land measuring half share of 64 Kanals, 6 Marlas.
  • Jowala Singh gifted his half share of the land to his wife, Mst. Charan Kaur (the defendant in the appeal).
  • In 1929 Sunder Singh mortgaged his share of the property to Hari Singh (the plaintiff).
  • In 1934 Jowala Singh applied for insolvency; the land that had been gifted to Mst. Charan Kaur was sold by the Official Receiver to Pir Bakhsh.
  • Mst. Charan Kaur apparently objected to the sale on 23-10-1935; that objection was dismissed on 14-11-1935, though the application and order are not on the file.
  • On 24-6-1937 a compromise was recorded in which Mst. Charan Kaur agreed to pay Rs. 2,500 to the Official Receiver; she did not pay, and her subsequent application for permission to sell (24-8-1937) was dismissed; an appeal against that dismissal was dismissed on 4-2-1938.
  • Exhibit P.5 (dated 20-5-1938) is said to show that Pir Bakhsh had taken possession; this is disputed by Mr. Hoshiarpuri (counsel for the defendant).
  • On 27-6-1940 Hari Singh obtained an ex parte decree for possession based on his mortgage contract, against Sunder Singh and Mst. Charan Kaur; symbolical possession was delivered in execution on 13-12-1940 (evidenced by Ex. P.15), although Mst. Charan Kaur does not appear to have been a party to that execution application.
  • The Senior Subordinate Judge found that adverse possession by the defendant was not made out: (a) because any such possession could not have started before August 1937, (b) because possession by a co-sharer is not adverse to the other co-sharer, and (c) because any definite ouster could not have started before 1942–1943 when the defendant refused to give possession (reflected in the jamabandi entry).

Legal Issues Presented

  1. Whether the defendant (Mst. Charan Kaur) had acquired adverse possession of the property so as to defeat the plaintiff's (Hari Singh's) decree for possession.
  2. Whether the compromise of 24-6-1937 (by which Mst. Charan Kaur agreed to pay Rs. 2,500) and the decree for possession followed by symbolical possession (execution dated 13-12-1940) interrupted or extinguished any claim of adverse possession by the defendant.
  3. Whether a transferee from a co-owner (or a donee who becomes a co-sharer) can, as against the other co-sharer(s), acquire adverse possession sufficient to defeat the title of the other co-sharer(s).

Arguments of the Parties

Defendant / Appellant (Mst. Charan Kaur; represented by Mr. Hoshiarpuri)

  • Challenged the assertion that possession had been taken by Pir Bakhsh as shown by Ex. P.5 (the opinion records that Mr. Hoshiarpuri denied that possession had been taken and that he may be right).
  • Relied on precedents (three specific cases are identified in the opinion) to support the proposition that a transferee from a co-owner might, in some circumstances, be treated as having possession adverse to the other co-sharer(s) (i.e., advanced authorities to counter the general rule that one co-owner cannot acquire adverse possession against another).
  • Contended—by reliance on those authorities—that the rule disallowing adverse possession between co-owners might not apply to the facts of this case (the opinion discusses and distinguishes those authorities).

Plaintiff / Respondent (Hari Singh)

  • Relied on the mortgage contract and the decree for possession (obtained on 27-6-1940) and the subsequent symbolical possession in execution (13-12-1940) as interrupting any running of time in favour of an adverse possession claim by the defendant.
  • Relied on the effect of the compromise of 24-6-1937 (in which the defendant agreed to pay Rs. 2,500 to the Official Receiver) as an admission of the Official Receiver's title, which would negate or terminate any earlier adverse possession.
  • Relied on the general rule (as stated in Mam Raj v. Chhotu and supported by Subba Lal v. Fateh Muhammad) that one co-owner cannot acquire adverse possession against another, and that this principle applies equally to a transferee from a co-owner who thereby becomes a co-sharer.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Mam Raj v. Chhotu, AIR 1933 Lah 763 There can be no adverse possession by one co-owner against another; the same principle applies to a transferee from a co-owner (i.e., a transferee who becomes a co-sharer cannot acquire adverse possession against the other co-sharer). The court expressed respectful agreement with this dictum and applied it to hold that the defendant (a donee who became a co-sharer) could not establish adverse possession against the other co-sharer.
Subba Lal v. Fateh Muhammad, AIR 1932 All 393 Authority cited in support of the principle that co-sharers cannot acquire adverse possession against each other. Used as supporting authority for the Mam Raj principle relied upon by the court.
Ibrahim v. Ali Muhammad, AIR 1930 Lah 214 Case where a co-sharer sold the whole property (not merely his own share) and the transferee took possession of the whole property; establishes a different factual scenario. The court found this case distinguishable on its facts and held it not applicable to the present case.
Pakirappa Babappa v. Rudrappa Rachappa, AIR 1932 Bom 255 Case where a member of a joint Hindu family sold his share to an outsider; adverse possession was held against the other coparceners—demonstrates that a purchaser who is a stranger cannot be treated as a co-parcener. The court treated this authority as inapplicable to the present facts because the defendant here was a transferee/donee who became a co-sharer, not a stranger purchaser; cited related authorities (Ram Lakhi and Murajalli Hunia Goundan) to the same effect.
Ram Lakhi v. Durga Charan Sen, 11 Cal 680 Support for the proposition that a purchaser/outsider cannot be treated as a co-parcener; possession by one co-parcener is not necessarily possession of all as between purchaser and other coparceners. Referenced to show the limited applicability of co-parcener principles where a purchaser/outsider is involved; used to distinguish Pakirappa Babappa from the present facts.
Murajalli Hunia Goundan v. Ramasami Chetty, AIR 1918 Mad 19 Similar support for the principle that a stranger purchaser does not become a co-parcener and therefore different rules apply to adverse possession questions. Referenced along with Ram Lakhi to distinguish cases involving purchasers from the facts here, where the donee became a co-sharer.
Sher Mohd. Nawab Khan v. Mst. Aimna Bibi, AIR 1937 Pesh 69 A decision which, according to the opinion, supports the contention advanced by Mr. Hoshiarpuri (i.e., contrary to the Mam Raj rule). The court observed that this decision supports the appellant's contention but stated, with respect, that it did not consider that judgment to lay down correct law and therefore did not follow it.
Chitaley's Limitation Act, Vol. III (paragraph 65 under Articles 142 and 144) Collects authorities to the effect that taking symbolical possession in pursuance of a decree for possession amounts to actual possession and interrupts the running of time for adverse possession. The court relied on the principle (as summarized in Chitaley) that symbolical possession under execution interrupts adverse possession, and observed that no countervailing authority had been cited to it in this case.

Court's Reasoning and Analysis

The court's analysis proceeded in the following principal steps, staying strictly within the material set out in the opinion:

  1. The court reviewed the factual chronology (gift by Jowala Singh to his wife, the mortgage by Sunder Singh to Hari Singh in 1929, insolvency and sale by the Official Receiver, the 1937 compromise, the 1940 decree for possession and the 1940 symbolical possession in execution) and noted disputed points (for example, whether Pir Bakhsh had in fact taken possession as indicated by Ex. P.5, which the defendant's counsel denied).
  2. The Senior Subordinate Judge's factual finding that adverse possession by the defendant could not have begun before August 1937 was accepted and applied: the court observed that possession by a co-sharer is not adverse to the other co-sharer and that any definite ouster could not have commenced before 1942–1943 (the time when the defendant allegedly refused to give possession, as recorded in the jamabandi).
  3. The court identified several factors that negatived the defendant's claim of adverse possession: (a) the 24-6-1937 compromise in which the defendant agreed to pay Rs. 2,500 was treated as an admission of the Official Receiver's title and would defeat any prior adverse possession; (b) the decree for possession obtained by Hari Singh and the symbolical possession delivered in execution on 13-12-1940 were held to interrupt any running of time in favour of an adverse possession claim.
  4. On the question whether a transferee/donee from a co-owner can acquire adverse possession against the other co-sharer(s), the court accepted the principle expressed in Mam Raj v. Chhotu (and supported by Subba Lal v. Fateh Muhammad) that there can be no adverse possession by one co-owner against another and that the same principle applies to a transferee who becomes a co-sharer. The court found this principle applicable to the facts before it.
  5. The court examined the authorities relied upon by the defendant (Ibrahim v. Ali Muhammad; Pakirappa Babappa v. Rudrappa Rachappa; Sher Mohd. Nawab Khan v. Mst. Aimna Bibi) and distinguished them on their facts or, in the case of Sher Mohd. Nawab Khan, expressed the view that it did not lay down the correct law. In particular, cases involving sale to an outsider (purchaser/stranger) were found inapposite because a stranger does not become a co-parcener; those authorities therefore did not undermine the application of the Mam Raj principle to this case.
  6. The court also noted the established principle (as collated in Chitaley's Limitation Act) that taking symbolical possession in execution of a decree amounts to actual possession for limitation purposes and interrupts adverse possession; the court observed that no contrary authority had been cited to it in this case (and that the defendant had not produced any case where execution against one of two judgment-debtors failed to interrupt adverse possession).
  7. On the basis of the above, the court concluded that the decree and judgment of the courts below were correct.

Holding and Implications

APPEAL DISMISSED

Direct effect on the parties:

  • The appellate decree of the Senior Subordinate Judge dated 27-6-1952 confirming the trial court's decree in favour of the plaintiff (Hari Singh) is affirmed.
  • The defendant's claim of adverse possession was negatived by the court on the bases stated above (compromise admission, decree and symbolical possession interrupting the running of time, and the rule that a co-sharer or a transferee who becomes a co-sharer cannot acquire adverse possession against other co-sharers).
  • The appeal was dismissed with costs (as recorded in the opinion).

The opinion does not purport to lay down a new principle of law; it applies existing authorities and established principles (including those collected in Chitaley's Limitation Act) to the facts of the case and dismisses the appeal.

B/V.S.B
Show full summary ...

    Mst. Charan Kaur v. Hari Singh

    1. This is a defendant's appeal against an appellate decree of the Senior Subordinate Judge of Hoshiarpur dated 27-6-1952 confirming the decree of the trial Court decreeing the plaintiff's suit. This case is a painful demonstration of pettifogging on the pan of lawyers and utter incapacity on the part of Judges who have handled this case at various stages. Matters which were absolutely simple were made complicated and delays which were caused have brought the whole system into contempt.

    2. Sunder Singh and Jowala Singh are two brothers. Mst. Charan Kaur the defendant in the present case is the wife of Jowala Singh who made a gift in favour of his wife of his half share of 64 ‘Kanals’, 6 ‘marlas’ of land which was owned by him and Sunder Singh jointly. Sometime earlier in 1929 Sunder Singh made a simple mortgage of his share of the property to Hari Singh the plaintiff. In 1934 Jowala Singh successfully applied for insolvency and the land which he had gifted to his wife Mst. Charan Kaur was sold by the Official Receiver to Pir Bakhsh. According to Mr. Hoshiarpuri an application was made on 23-10-1935 by Mst. Charan Kaur objecting to the sale but these objections were dismissed on 14-11-1935. Neither the application nor the order are on the file.

    3. The Official Receiver has made a statement to this effect on what basis I do not know. By another document dated 24-6-1937 a compromise was arrived at between Mst. Charan Kaur and the Official Receiver whereby Mst. Charan Kaur agreed to pay Rs. 2,500/- and if she did not pay her objections would stand dismissed. As was to be expected she did not make this payment and on 24-8-1937 she applied for permission to sell the land but this application was dismissed and the appeal against this order was dismissed on 4-2-1938. A document Ex. P. 5 dated 20-5-1938 shows that possession had been taken by Pir Bakhsh. This is denied by Mr. Hoshiarpuri and perhaps he is right.

    4. On 27-6-1940 Hari Singh obtained a decree for possession on the basis of the contract in his mortgage deed. This decree was ‘ex parte’ and was against Sunder Singh and Mst. Charan Kaur. On 13-12-1940 symbolical possession was delivered in execution of the decree which is evidenced by Ex. P. 15 but in this application Mst. Charan Kaur does not seem to have been a party.

    5. The Senior Subordinate Judge has found that no adverse possession has been made out because such possession if any could not have started before August 1937 and the possession of a co-sharer is not adverse to that of the other co-sharer and a definite ouster if any could not have started before 1942-1943 when Mst. Charan Kaur refused to give possession of the land and the entry in the ‘jamabandi’ which followed this was “billa leggan bavaja nah chhorne cahza” (without payment of rent on account of refusal to give possession).

    6. The adverse possession of the defendant is negatived by many factors in this case. In the first place the compromise of 24-6-1937 by which she agreed to pay Rs. 2,500/- was an admission of title of the Official Receiver and that would put an end to the adverse possession if any existed before. Then there is the decree for possession followed by symbolical possession. Such symbolical possession has been held to be sufficient to interrupt; adverse possession. In a long line of decisions it has been held that taking symbolical possession in pursuance of a decree for possession amounts to actual possession and interrupts the running of time in favour of the asserter of adverse possession. There are a large number of cases quoted in paragraph 65 of Chitaley's Limitation Act, Vol. III, under Articles 142 and 144. No case has been cited before me and I do not know of any, where merely because the execution has been against one of the two judgment-debtors taking of symbolical possession has not interrupted adverse possession.

    7. And finally there is the question of co-sharership. No doubt Jowala Singh had made a gift in favour of his wife and the gift was of specific properties which were in his possession, but that would make the donee as much a co-sharer as the original donor was. This is supported by a rule laid down by Sir Shadi Lal, C.J and Abdul Qadir, J. in — ‘Mam Raj v. Chhotu’, AIR 1933 Lah 763 (1) (A), where the rule stated was:

    “There can be no adverse possession by one co-owner against another co-owner, and that the same principle applies to the case of a transferee from a co-owner: vide ‘inter alia’ — ‘Subba Lal v. Fateh Muhammad’, AIR 1932 All 393 (B)”.

    8. I am in respectful agreement with this dictum of Sir Shadi Lal which in my opinion would apply to the facts of this case but as against this Mr. Hoshiarpuri has relied on three cases. Firstly, there is the Lahore case decided by Jai Lal, J., — ‘Ibrahim v. Ali Muhammad’, AIR 1930 Lah 214 (C). That was a case where the sale was not of his own share by the co-sharer but of the whole property and possession had been taken of the whole property by the transferee. It is not necessary for me to say whether the rule laid down in that case is a correct one but it is distinguishable on the facts and is not applicable to this case. The next cases relied on by Mr. Hoshiarpuri is the Bombay judgment of Tyabji, J. in — ‘Pakirappa Babappa v. Rudrappa Rachappa’, AIR 1932 Bom 255 (D). That was a case where a member of a joint Hindu family had sold his share to an outsider and adverse possession was held to have been made out against the other co-parceners. Whatever else they may be a stranger can never become a co-parcener because co-parcenary can only subsist between members of a joint Hindu family & therefore the proposition that possession of one co-parcener is the possession of all for purposes of limitation, is inapplicable as between a purchaser and the other coparcener, see — ‘Ram Lakhi v. Durga Charan Sen’, 11 Cal 680 (E) and — ‘Murajalli Hunia Goundan v. Ramasami Chetty’, AIR 1918 Mad 19 (F). But a case decided by Almond A.J.C in — ‘Sher Mohd. Nawab Khan v. Mst. Aimna Bibi’, AIR 1937 Pesh 69 (G), supports the contention of Mr. Hoshiarpuri. With very great respect I would say that this judgment does not lay down correct law. For reasons that I have given I would hold that the judgment and decree of the Court below are correct and this appeal would therefore be dismissed with costs.

    B/V.S.B

    9. Appeal dismissed.

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    Comments

    Mst. Charan Kaur v. Hari Singh
    (Sep 10, 1953)