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Case Number

1517 of 1964

Attorney(S)

P.Sukumaran Nair
S.S.Sarma
S.Rajan
G.Viswanatha Iyer

Judges

Mr. Justice M. Madhavan Nair

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The appeal is by the plaintiff in a suit for partition. The subject property is Survey No. 71/1c of Parassala village (2 acres 44 cents), which was originally an oodukoor holding with pattahs nos. 393, 394 and 395 giving 1/3 share each. The oodukoor settlement officer subsequently declared the property a joint holding of all co-sharers.

An undivided 1/3 share (in pattah no. 395) was sold by revenue sale (noted in the text as sold on 4-12-1112 M.E. and confirmed on 26-4-1115) to one Sankara Pillai; symbolic delivery was obtained on 24-7-1115. On 19-11-1954 Sankara Pillai assigned his rights to the plaintiff, who thus became owner of an undivided 1/3 share.

The plaintiff sought partition and possession of his share from defendants 1 to 23, who own the remaining 2/3 share. The 17th defendant contended that the suit must fail for non-joinder of other co-sharers and that the suit, instituted beyond 12 years of the revenue sale and delivery, is barred by limitation. The courts below accepted both contentions and dismissed the suit. The present appeal challenges that dismissal.

Legal Issues Presented

Whether the legal presumption that the possession of one co-sharer is possession on behalf of all co-sharers applies to a purchaser/assignee of an undivided share (thereby precluding a defence of adverse possession and limitation against such purchaser).
Whether the suit must fail on the ground of non-joinder of all persons who might have an interest (i.e., whether the plaintiff failed to implead necessary co-sharers).
Whether the suit for partition is barred by limitation because it was instituted more than twelve years after the plaintiff's purchase/entry.

Arguments of the Parties

Appellant's Arguments

The plaintiff, by virtue of the revenue sale and the auction-purchaser's assignment, became a co-sharer of the property (owner of an undivided 1/3 share).
There is no proof that the plaintiff's title was denied or that he was excluded or ousted from possession by the other co-sharers before institution of the suit.
Therefore, the normal legal presumption applies that a co-sharer's possession of the entire property is on behalf of all co-sharers; consequently, no question of adverse possession or limitation arises in this case.

Respondents' / Defendants' Arguments

The 17th defendant argued that the suit should fail for non-joinder of other persons who are also co-sharers of the property.
The 17th defendant also contended the suit is barred by limitation because it was instituted beyond twelve years of the revenue sale and delivery.
Counsel for respondents relied on precedents (notably Mandeata Narasimhaswami v. Mamidi China Venkata Sivayya) that take the view that the principle that one co-parcener's possession is possession of all does not apply when a purchaser from an undivided co-parcener intervenes; such precedents were relied upon to support a finding of adverse possession/limitation against an alienee.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Biswanath Chakravarti v. Rabija Khatun (1929 Calcutta 250)	As a general proposition the entry/possession of one co-tenant, in the absence of clear proof to the contrary, enures for the benefit of all; presumption that relation between co-tenants is amicable rather than hostile; acts of one co-tenant are regarded as in subordination to title of all; extends to those who afterwards acquire undivided interests.	The court cited this decision as a supporting authority for the proposition that a purchaser of an undivided share takes subject to the presumption that possession by co-sharers is for the benefit of all, favoring the plaintiff's position on limitation/no adverse possession.
Visvanath Krishna Gokhale v. Mahadeo Arjun Kokate (1960 Bom. 50)	Held that a purchaser/assignee of an undivided interest becomes a co-owner and that possession by the defendants thereafter was possession on behalf of all co-owners; possession becomes adverse only when title is denied; suit instituted within 12 years of denial is in time.	The court relied on this authority to support the view that a purchaser's suit for partition may be within time if denial of title (not mere lapse of time) marks commencement of any adverse possession; it was used to support the appellant's argument and to show consistency in earlier decisions.
Muhammed Kaliba Rawther v. Muhammed Abdullah Rowther (AIR 1963 Madras 84)	Reiterated that possession in the hands of a co-sharer is possession for all co-sharers; mere non-participation or inaction is not ouster; an alienee from a co-sharer should not be placed on a different footing from his alienor; thus an alienee can sue for partition even if more than 12 years have elapsed since purchase, provided there was no denial earlier.	The court cited this decision in support of the appellant's contention that an alienee from a co-sharer stands in the position of the original co-sharer and is not separately barred by limitation where there is no proof of ouster or denial.
Ouseph v. Philomina (1966 KLT 12)	Held the suit to be in time where the plaintiff was the court-auction purchaser of an undivided share and the legal presumption of a co-sharer's possession being on behalf of all co-sharers applied.	This decision was cited to reinforce the principle that court-auction purchasers of undivided shares can rely on the presumption and are not necessarily barred by lapse of time absent proof of denial or ouster.
Mandeata Narasimhaswami v. Mamidi China Venkata Sivayya (AIR 1961 A.P. 279)	Expressed the contrary view that the principle that the possession of one coparcener is the possession of all has no application when a purchaser from an undivided coparcener intervenes; possession of non-alienating coparceners would be adverse to the alienee.	The court acknowledged this authority as representing a contrary line of decisions. It analyzed and distinguished it on grounds explained in the opinion (noting its reliance upon earlier dictum in Muttusami v. Ramakrishna).
Muttusami v. Ramakrishna (ILR 12 Madras 292)	Dictum that the possession of one coparcener is not the possession of all for purposes of limitation as between a purchaser from one coparcener and the other family members; reason given that coparcenary subsists only between joint family members and a purchaser from one may be treated differently.	The court identified this as the source for the contrary dictum followed in Mandeata, and noted the stated reasoning; the court nevertheless distinguished these authorities on the basis that they concern alienation by a coparcener (with fluctuating/undefined shares) rather than an ordinary co-owner's definite share.
John v. Joseph (ILR 1964 (1) Ker. 211)	Held (with concurrence) that presumption that possession of one co-sharer is for all does not extend to an alienee who entered upon the entire property as if it belonged to him exclusively; such acts could amount to ouster if circumstances show co-sharers were aware.	The court noted this line and agreed that where an alienee takes possession of the entire property denying co-ownership, that may amount to ouster; however, the court distinguished the present case because the plaintiff purchased only a share and there was no evidence defendants claimed the whole property.

Court's Reasoning and Analysis

The court undertook a comparative review of two lines of authority. One line (illustrated by Biswanath Chakravarti, Visvanath Krishna Gokhale, Muhammed Kaliba Rawther, Ouseph v. Philomina) supports the proposition that possession by a co-sharer is presumed to be on behalf of all co-sharers and that an alienee of a share stands in the position of his alienor; absent evidence of denial or ouster, adverse possession and limitation do not arise against such an alienee.

The court recognized a contrary line (exemplified by Mandeata Narasimhaswami and ultimately by the dictum in Muttusami v. Ramakrishna) holding that the presumption does not apply when a purchaser from a coparcener intervenes and that the possession of the non-alienating coparceners would be adverse to the alienee. The court explained that this contrary line rests on a distinction between an assignee of a Hindu coparcener (whose share may be undefined and fluctuating until partition) and an assignee of a co-owner (with a definite share).

The court stated that although the distinction between assignee-of-coparcener and assignee-of-co-owner may not appear substantial regarding commonness of possession, the earlier decisions that follow that distinction are nonetheless distinguishable on that ground. The court also acknowledged a further line of decisions (including John v. Joseph) holding that an alienee who takes possession of the entire property and treats it as his own may effect an ouster if circumstances show awareness by other co-sharers; the court observed that such circumstances are not present here because the plaintiff purchased only a share and there was no evidence that the defendants ever claimed more than a share.

On the non-joinder point, the court found that the courts below had relied largely on a statement filed by the 17th defendant listing a number of persons alleged to have interests. The appellate court observed that the lower courts overlooked the plaintiff's reply (filed in response) asserting that, except for one person who was impleaded as the 20th defendant, none of the persons listed by the 17th defendant then had any present interest in the property and that all persons with present interests had been made parties to the suit.

The court noted that the 17th defendant produced a 1936 partition deed concerning one branch of co-owners but that this did not prove that persons named in 1936 continued to have an interest in 1956 (twenty years later). The court emphasized that none of the purportedly interested persons had been examined; the proper question is whether, on the date of the suit, any person other than the plaintiff and the defendants had an interest. The appellate court concluded that the lower courts had misconceived the issue and that non-suit for non-joinder required definite proof of unimpleaded co-sharers' current existence and interest.

Holding and Implications

Core Ruling: The decree of the court below is set aside and the suit is remitted to the court of first instance for a revised disposal after giving the parties an opportunity to substantiate their respective pleas on issues nos. 8 and 9.

Consequences:

The plaintiff's suit for partition is not dismissed on the grounds previously accepted by the courts below; the lower decree is vacated and the matter returns for trial on the specified issues.
The appellate court directed that each party shall bear their respective costs in this Court and in the court below.
The court required definite proof before a non-suit can be granted on the basis of non-joinder; mere production of an old partition deed or an untested statement listing purported interested persons is insufficient to establish non-joinder.
No express new legal precedent is proclaimed by the opinion; the court analyzed and distinguished existing lines of authority and applied those distinctions to the facts of this case. The direct effect is remedial (retrial and opportunity to substantiate pleas) rather than a pronouncement of new law.

This summary is limited strictly to the content and reasoning contained in the provided opinion text. No facts, holdings, or inferences beyond that text have been added.

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Kumara Pillai v. Velappan Pillai And Others

1. This appeal is by the plaintiff in a suit for partition.

2. Survey no. 71/1c of parassala village, 2 acres 44 cents in extent, Was an oodukoor holding, With pattahs nos. 393, 394 and 395, For 1/3 each. Subsequently, The oodukoor settlement officer has declared the property to be a joint holding of all the co - sharers.

an undivided 1/3 of the property, Involved in pattah no. 395, Was sold on 4 - 12 - 1112 m. E. Under the revenue recovery act, And confirmed on 26 - 4 - 1115, To one sankara pillai. On 24 - 7 - 1115 the; auction - purchaser obtained symbolical delivery of the share purchased by him. On 19 - 11 - 1954, He assigned his rights to the plaintiff. Thus the plaintiff has become the owner of an undivided 1/3 share in the property.

3. The plaintiff claims partition and possession of his share, From defendants 1 to 23 who are owners of the other 2/3 share in the property. The 17th defendant contended that for non - joinder - of others who are also co - sharers to the property the instant suit for partition has to fail and that this suit instituted beyond 12 years of the revenue sale and delivery thereunder, Is beyond limitation. The courts below have accepted both the contentions and have dismissed the suit. Hence this second appeal.

4. Counsel for appellant contends that the plaintiff has, By virtue of revenue sale and the auction - purchaser's assignment, Become a co - sharer to the property and that, There being no proof of any denial of

his title or of his exclusion or ouster by the other co - sharers in possession before this suit, The normal presumption of law that a cosharer's possession of the entire property is on behalf of all its co - sharers applies, And therefore no question of adverse - possession and therefore of limitation arises in the ease.

5. In biswanath chakravarti v. Rabija khatun air. 1929 calcutta 250, Where the plaintiff was the courtauction - purchaser of the rights of a cosharer and the suit was for partition more than 12 years after his purchase, Manmotha nath mukherji j., With concurrence of rankin c. J., Decreed the suit, Holding'as a general proposition the entry of one co - tenant, In the absence of clear proof to the contrary, Enures for the benefit of all. The law makes a presumption that the relation between co - tenants is amicable rather than hostile; and regards the acts of one co - tenant as being in subordination of the title of all the co - tenants, For by so regarding they may be made to promote the interest of all. This rule prevails not merely on behalf of those who are co - tenants when the entry was mads, But extends to all who afterwards acquire undivided interests in the property. "

in visvanath krishna gokhale v. Mahadeo arjun kokate air. 1960 bom. 50, Where the plaintiff was an assignee of undivided interests of a separated member of a hindu family, Chainani j., With concurrence of badkas j., Observed:

"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 - ownsr 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 bis title is actually denied. 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 the defendants."

and held the suit instituted within 12 years of that denial to be within time.

in muhammed kaliba rawther v. Muhammed abdullah rowther air 1963 madras 84 veeraswami j., With concurrence of ganapatia pillai j., Held likewise, In a suit for partition and possession by the alienee of some cosharers who were not in possession, Thus:

'it is well settled law,. That possession in the hands of a co - sharer of a property owned in common is possession on behalf of all the co - sharers. Implicit in this proposition is the further position in law that mere non participation in the receipts from such immovable property or mere inaction in respect of it for any length of time on the part of one or more of the co - sharers is not regarded as amounting to ouster or as investing the possession in the bands of one of the co - sharers with an adverse character so as to enable him to prescribe against the other co - sharers. It is only when acts are clearly proved on the part of the co - sharer in possession which would be inconsistent with any other co - sharer being entitled to any possession or interest in any part of the property, It can be said that any question of ouster of the cosharers not in possession can arise. In the absence of such ouster there will no room for adverse possession or prescription in favour of the co - sharer in possession. The contention for the appellant, However, Is that these principles applicable to a co - sharer cannot extend to his alienee we are unable to uphold the contention. It seems to us that, Neither on principle nor on authority can an alienee from a co - sharer,. Be regarded as standing on a special footing different from the position of his alienor. It is clear that what the co - sharer conveyed to his alienee is bis right, Title and interest in his share which will take with it also the right to sue for partition and recover separate possession of such share. If the co - sharer who was the alienor is not barred by time because for over 12 years he took no action either to share possession of the property or income therefrom or sue for partition we fail to see any principle or reason why his alienee should be placed on a different footing. "

and decreed the suit even though it was more than 12 years after the plaintiff's purchase of a share in the property.

in ouseph v. Philomina, 1966 klt 12, Where the plaintiff was the court - auction - purchaser of the undivided share of a co - owner and the suit for partition of her moiety 15 years after the auction - purchase,

i held the suit to be in time because:

the legal presumption of a cosharer's possession being on behalf of all co - sharers applies well in the circumstances;. "

6. Counsel for respondents cited mandeata narasimhaswami v. Mamidi china venkata sivayya air 1961 a. P. 279, Where a contrary view has been expressed by srinivasachari j., With concurrence of chandra reddy cj, Thus

"the principle that the possession of one coparcener is the possession of all could have no application when a purchaser from an undivided coparcener intervenes. This has been settled as early as is the case of muttusami v. Ramakrishna ilr. 12 madras 292. It was held therein that possession of the non - alienating coparceners would be adverse to the alienee. Therefore, The argument that there will be no question of adverse possession in so far as the alienee is concerned, Cannot be accepted."

this decision merely follows the dictum in muttusami versus ramakrishna ilr. 12 madras 292 where the reason for the dictum is given thus:

"co - parcenery as recognised by hindu law, Can only subsist between the members of a joint hindu family, And the contention that the possession of one co - parcener is the possession of all for purposes of limitation can have no application as between a purchaser from one of the co - parceners and the other members of the family."

this decision seems to draw a distinction between an assignee of a hindu coparcener and an assignee of a co - owner probably on the ground that the share of the former is not defined and is liable to fluctuation until partition while the share of the latter is definite and fixed. Though the distinction does not appear to me substantial in regard to commonness of possession, The decisions are easily distinguished on the above said distinction itself.

of course, There is another line of decisions which say that the presumption of a co - sharer not being adverse to the other co - sharers does not extend to possession of an alienee from one co - sharer of the entire property as if it belonged to him exclusively. With the concurrence of m s menon c. J., I have held so in john v. Joseph ilr 1964 (1) ker. 211. In those cases, The alienation concerned was of the entire property though it was partly unauthorised and the alienee entered possession of the entire property as belonging to himself under that alienation, Without acknowledging any co - ownership. Such possession might spell ouster of other co - sharers if there are circumstances to show that they were aware of the nature of the alienee's possession. In the present case the plaintiff is only a purchaser of a share and there is no evidence to show that the defendants at any time before this suit claimed to own more than a share in the property.

7. The courts below have non - suited the plaintiff on the further ground of non joinder of all co - sharers. In doing so, They have relied largely on a statement filed by the 17th defendant on 7 - 8 - 1961 where a number of persons are shown as having interests in the property, But have apparently overlooked the fact that the plaintiff has, In his reply to that statement asserted that none of the persons enumerated by the 17th defendant, Except one who has been impleaded, On an application of 14 - 8 - 1961, As the 20th defendant, Have any present interest in the property, And that all persons who have a present interest in the property have been made parties to the suit. The 17th defendant has produced a partition deed of 1936 that concerned one of the branches of the co - owners; but it cannot prove that in 1956 (20 years later) the persons mentioned therein continued to be interested in the property. None who is purported to have an interest in the property has been examined in the case. The question is not whether in 1936 any other person had an interest in the property: the question is whether on the date of this suit, There was any person interested in the suit property, Other than the plaintiff and the defendants in this suit. I am afraid the question has been misconceived by the courts below and in view of the definite assertion of the plaintiff that all persons interested have been made parties to the suit, There must be definite proof of existence of co - sharers to the property not been impleaded before the plaintiff can be non - suited.

in the result the decree of the court below is set aside and the suit is remitted to the court of first instance for a revised disposal after giving an opportunity to the parties to substantiate their respective pleas on issues nos. 8 and 9.

in the circumstances of the case i would direct the parties to suffer heir respective costs here and in the court below.

Kumara Pillai v. Velappan Pillai And Others

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondents' / Defendants' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Kumara Pillai v. Velappan Pillai And Others

Comments