1. Defendant 1 and defendants 9 to 13 in O.S No. 27 of 1950 on the file of the Court of the Subordinate Judge of South Malabar at Palghat have brought this appeal against the preliminary decree passed in the suit directing the division of the plaint A schedule immovable properties and the B schedule movables (except item 14) into three shares and delivery to the plaintiff in the action (of?) a one-third share. Defendants 9 to 13 are the legal heirs of defendant 2 who died pending the suit. Defendant 2 was a brother of defendant 1 and they had an elder brother (step-brother), by name Kunchu and defendant 3 is the son of that brother. Defendants 4 to 8 are the children of defendant 3. One Chami was the father of defendants 1 and 2 and their brother Kunchu, but Kunchu pre-deceased his father. Kunchu's death took place in 1092 M.E (1916-1917) while Chami was alive till 1099 (1923-1924).
2. When Kunchu died defendant 3 was hardly three months old After Kunchu's death defendant 3 and his mother (Vella) lived with the latter's brother. Apparently Chami or after his death, defendants 1 and 2 did not look after defendant 3 or his mother. Chami died possessed of considerable properties and on his death those properties went into the possession of defendants 1 and 2, but as Kunchu's heir defendant 3 was entitled to a third share in them.
3. The plaintiff first took a sale from defendant 3 of one-third share of items 1 to 21 in the plaint A schedule as per Ex. A-1, dated 1-6-1946 and three years afterwards took another sale of a third share in the remaining items (items 22 to 78) in A schedule and of the B schedule movables (15 items). The second sale deed was on 11-8-1949 and that is Ex. A-2 in the case. Defendant 3 executed both Ex. A-1 and Ex. A-2 on his own behalf and on behalf of his minor children defendants 4 to 8.
(1a) Soon after the first sale the plaintiff brought O.S No. 319 of 1946 before the Alatur District Munsiff's Court for the partition and delivery to him of a one-third share in items 1 to 21. Defendants 1 and 2 resisted the claim and the suit went for trial, but before it proceeded to judgment it was withdrawn with liberty to bring another suit. It would appear that defendants 1 and 2 contended there that the suit was bad as one for partial partition since the bulk of Chami's properties was left out from the purview of the suit.
4. It was after O.S 319 of 1946 was withdrawn that the plaintiff obtained Ex. A-2, the sale-deed of 11-8-1949. As stated earlier the second sale related to items 22 to 78 in A schedule and the movables in B schedule. The plaintiff then brought O.S 284 of 1949 before the Alatur District Munsiff's Court for a division of the properties comprised in the two sale-deeds, but on objection being raised by defendants 1 and 2 that the value of the properties claimed by the plaintiff exceeded the pecuniary jurisdiction of the District Munsiff, the plaint was returned for presentation to the proper Court. It was re-presented before the Palghat Sub-Court and there it was registered as O.S 27 of 1950. The plaintiff claimed mesne profits of the properties from 1125 (1949-1950).
5. Defendants 1 and 2 contested the suit and their main defences were that (i) as early as 1090 (1914-1915) Kunchu had obtained his share of the properties as per a partition effected between Chami and his two younger sons defendants 1 and 2 on the one hand and Kunchu on the other by which the plaint schedule properties went to the share of the former branch and that therefore Kunchu did not the as a member of the joint family of which Chami and his younger sons were members and (ii) that assuming that there was no such partition Kunchu and his descendants had lost their right by adverse possession and limitation. The lower Court negatived both these contentions and gave the plaintiff a decree almost in terms of his plaint. Hence the present appeal.
6. The partition pleaded by way of defence to the plaintiff's claim is alleged to have been an oral one. The lower Court has very elaborately discussed the evidence relating to the same and as we are in full agreement with its conclusion that the contesting defendants have not succeeded in proving that there was any such division and the reasons given therefor, we do not think it necessary to travel over the same grounds in any great detail. (After reviewing some broad aspect of oral and documentary evidence, their Lordships proceeded.)
7. For the foregoing among other reasons given in the lower Court's judgment we have no hesitation to hold that the alleged oral partition is a myth and one set up to defeat the plaint claim.
8. O.S 319 of 1946 was brought well nigh 29 years after Kunchu's death and very nearly 22 years after Chami died. On the plaintiff's own showing it was in Ex. A-1 (1-6-1946) that defendant 3, first asserted his claim to a share of Chami's properties. Admittedly, since Kunchu's death defendant 3 and his mother began to live with the latter's brother and there is noting tangible or reliable to show that during Chami's life time or after his death, defendant 3 or his mother or the children of defendant 3 got any share of the profits of Chami's properties or participated in their management.
9. Exhibit A-1 contains a statement that till 1117 (1941-1942) defendants 1 and 2 were giving the value of 100 paras of paddy a year to defendant 3 and his branch of the family and defendant 3 also gave evidence in support thereof. The lower Court rightly disbelieved that evidence and held that the recital in Ex. A-1 about it was made obviously with an ulterior purpose. The appellant's case throughout has been that not only that Kunchu had partitioned off from the joint family so early as 1090 but also that there has been complete exclusion of Kunchu's branch from the joint family property from the time it devolved on Chami's heirs on his death in 1924.
10. To reinforce the case of such exclusion for more than the statutory period, they also set up a case that on 25-7-1934 defendant 3 had caused a claim to be made on defendants 1 and 2 for his share of the joint family property through a notice (Ex. B-1) issued by D.W 1, an advocate practising at Alatur. They had in their reply dated 15-8-1934 (Ex. B-2) repudiated the claim altogether on the basis of the alleged oral partition of 1090.
11. According to them there was therefore clear exclusion of defendant 3 from the joint family property to his knowledge from the date he received that notice in reply. The lower Court refused to accept the case of exclusion based on these two documents. (Their Lordships after discussing evidence, proceeded:)
12. We had Ext. B-2 read in open Court and its language belies the case that it was written to a Vakil's dictation. It looks an amateurish production and all considered there is considerable force in the lower Court's view that it was fabricated for production in O.S 319 of 1946. We agree with that view. The date of Ext. B-2 cannot therefore be taken as a starting point for the twelve years' period prescribed by Article 127 of the Limitation Act.
13. In the light of the foregoing conclusions the main defences of a partition having taken place in 1090 while Kunchu and Chami are alive and the specific case that in any event there has been exclusion of Kunchu's branch from the properties that devolved on Chami's heirs on his death in 1924 at least from the date of Ext. B-2 or from any reasonable time thereafter, fail. There is however still left for consideration the common argument advanced in such cases that from long non-participation of the profits of the joint family properties by the claimant and his predecessors the claim should be held to be barred by limitation.
14. It is common ground that in the absence of a prior partition between Kunchu on the one hand and Chami and his other sons on the other, on Chami's death the property devolved on his two surviving sons and the heir of his pre-deceased son as joint family property and that the latter was entitled to a third share thereof. The question therefore is whether apart from the exclusion that was alleged to have come into being to the knowledge of defendant 3 consequent on Ext. B-2 an exclusion of the plaintiffs' predecessors-in-interest so as to disentitle them or their assignee from claiming a share can be inferred from the facts and circumstances admitted or proved in the case.
15. On the facts already found defendants 1 and 2 entered upon the property as two out of the three or more co-sharers and their possession however long will ordinarily be the possession of all the co-sharers. See Corea v. Appuhamy, (1912) AC 230 : (AIR 1914 PC 243 (A) and Radhoba Baloba v. Aburao Bhagwantrao, AIR 1929 PC 231 : 57 Mad LJ 287 (B).
16. In fairness to the learned counsel for the appellants, Mr. N. Sundara Iyer it must be said that he did not make any strenuous effort to sustain the appeal on this ground of exclusion. He made it clear that unless the issue as to the partition or that of exclusion on the basis of the demand and refusal of the share as per Ext. B-1 and Ext. B-2 is found in favour of the appellants it would in the light of the acknowledged authorities on the point be difficult for the appeal to succeed.
17. In this case it is seen that after Chami died Kunchu's heirs have not participated in the profits of the properties or their management. Such non-participation admittedly amounted to a period of well nigh 26 years when the present suit was brought. Except this negative aspect there is nothing positive in the case to show that defendants 1 and 2 had converted their possession into adverse possession by any overt act showing unequivocally to Kunchu's branch that in future they intended to hold for themselves and for none else.
18. In Corea v. Appuhamy (A), the appellant sued for partition of certain lands in which he claimed as purchaser to be interested as co-owner with respondent 1 who had with his three sisters succeeded thereto as heirs of their brother Elias, who died on July 23, 1878.
19. It appeared that on January 26, 1907 respondent 1 donated the lands to his son, respondent 2, reserving to himself a life interest therein; and that on December 5, 1907, the surviving sister of Elias and her nieces sold their interests in the lands in suit to the appellant, who thereupon claimed to be entitled to a two-thirds share thereof.
20. Respondent 1, besides denying the appellants' title, pleaded that he as the sole heir of Elias entered into possession and had been in undisturbed possession for a period of ten years by a title adverse to and independent of the appellant and all others.
21. This was a case from Ceylon and under the Ceylon Ordinance relating to Limitation to gain title by adverse possession the requisite period was ten years. The appellant-plaintiff lost in both the lower Courts. Lord Macnaghten who pronounced the judgment of the Privy Council allowing the appeal pointed out:
“Entering into possession, and having a lawful title to enter, he (respondent 1) could not divest himself of that title by pretending that be had no title at all. His title must have enured for the benefit of his co-proprietors. The principle recognized by Wood V.C in Thomas v. Thomas, (1835) 2 K & J 79 at p. 83 (C), holds good: ‘Possession is never considered adverse if it can be referred to a lawful title’.”
22. Further on the noble Lord went on to say;
“His (respondent 1's) possession was in, law the possession of his co-owners. It was not possible for him to put an end to that possession by any secret intention in his mind. Nothing short of ouster or something equivalent to ouster could bring about that result.”
23. The other Privy Council case Radhoba v. Aburao (B), has been referred to by the lower Court in its judgment and as stated by the learned Judge below the facts of that case-resemble the facts of the present case very much. It would suffice for our purpose here to quote the following extracts from the head-notes to the case:
“There is no definition of the word “exclusion”, (referring to Article 127, Limitation Act) in the Limitation Act and the question whether a person has been excluded from joint family, must depend upon the facts of the particular case. An intention to exclude is an essential element. It is necessary, therefore, for the Court to be satisfied that there was an intention on the part of those in control and possession of the joint family property to exclude the person and that exclusion was to his knowledge.
One N a member of a joint Hindu family after the death of his father and mother went to live with his maternal uncle voluntarily. He was not turned out. But he went with the consent of the eldest male member in the joint family. He was helped by his maternal uncle and was living in an humble way. He was not educated in the same way as the other members of the joint family but he was not dissatisfied with the conditions under which he was living.
Held: that the mere fact that during the time that N was living with his maternal uncle the members of the joint family did not subscribe towards his maintenance and marriage expenses did not prove that those in control and possession of the joint family property intended to exclude N from his share of the joint family property.
It was consistent with the evidence that the members of the joint family who were in control and possession of the joint family property though willing to allow N to be maintained at the expense of his maternal uncle never did anything to indicate to N or anyone else that they intended to exclude him from his share in the joint family property.”
24. It is needless to repeat that there is nothing in the evidence in the present case to indicate any overt act or other conduct on the part of defendants 1 and 2 to make known to defendant 3 that they intended to hold the properties of Chami for themselves to the exclusion of defendant 3. This argument also does not therefore help the appellants to succeed in their appeal. In the result the appeal fails and we dismiss it with costs.
R.G.D
25. Appeal dismissed.