1. The plaintiff sues for a declaration that he is the owner of the property in suit consisting of two houses. He stakes that the cloud on his title is a claim by defendants 2, 3 and 4 against defendant 1 Budhabai in which they have attached this property as hers and brought it to sale. The facts are as follows: One Sheosahai died on 1st January 1917, leaving behind a widow, defendant 1, Budhabai. Before his death he executed a document, Ex. P-4, dated 24th June 1911, called a tabniyatnama on which the plaintiff now founds his title. The plaintiff states that he was fraudulently kept from knowledge of this document by Budhabai and that he did not come to know about its existence until the year 1928. But of that later. When Sheosahai died the plaintiff was living with Budhabai and was a minor, being then about 14 years of age. Budhabai was in possession and managed the estate along with an agent Shankerlal. She immediately set up title in herself and applied for mutation in her name. This was granted on 4th January 1918. Thereafter the plaintiff instituted an application for probate on the basis of a will which purported to leave all the property to the plaintiff reserving only a right of maintenance for Budhabai. This suit was instituted in the year 1920, but it was held that the will was a forgery and the suit was accordingly dismissed in the following year. The plaintiff states that he was thereupon (1921) turned out of the house by Budhabai and that he did not regain possession until 1932.
2. The plaintiff had evidently become involved in debts by this time and he states that he was obliged to apply to the insolvency Court for adjudication as an insolvent. The application was made in the year 1922 but the plaintiff was discharged in the year 1928. During this time however Budhabai began running up debts and was sued by her creditors. One set of creditors filed Civil Suit No. 30 of 1926 against her and another set Civil Suit No. 35 of 1929. The houses in suit were put up to sale and auctioned in the year 1929. Then the plaintiff instituted a suit as a pauper claiming these properties. It was held however that he was not a pauper, but it appears that the auction sale had by then been set aside on a technical ground, and the plaintiff states that Budhabai, seeing that he had an unchallengeable title under the tabniyatnama (Ex. P-4), let him into possession in 1932. It was therefore unnecessary for him to proceed with the suit. A couple of years later these houses were again put up to sale in execution of the decrees obtained against Budhabai and they were sold on 3rd May 1934 and purchased by defendant 4. The sale was confirmed on 19th January 1935. Therefore the plaintiff files the present suit for a declaration that he is the owner. The suit was launched on 24th July 1935. In so far as the plaintiff's title is founded on Ex. P-4, an interesting question of interpretation arises on which it is possible to take two views. The first Court, taking one view, held that the document did not amount to a will, and, as no adoption could be effected by the mere execution of a document, it held that the deed was ineffective to pass title. The lower appellate Court took the other view and held that the document amounted to a will in the plaintiff's favour. A number of cases were cited in argument in support of these two interpretations. On the one side were cited 28 ALL 4881 at p. 495, 23 Bom 271,2 confirming 12 Bom 1853 at page 200, 11 Cal 4634 at p. 483 and 16 Mad 3555 at p. 359. On the other side were cited 54 Mad 440, (’31) 18 AIR 1931 PC 109 , 131 IC 318 , 54 Mad 440 , 58 IA 148 (PC) 24 Mad 2147 and 3 IA 253.8 None of these cases is exactly in point and an elaborate analysis of them would be necessary to distinguish and reconcile them. We do not think it will be either profitable or necessary to enter upon such a task in this case because of the view we take of another point, a point which is enough to dispose of the appeal. That point is whether the plaintiff had a subsisting title at the date of the suit. He is in possession, but possession in itself is not enough to entitle him to the declaration he seeks. He must also show title. For this purpose we will have to assume so far as this appeal is concerned, because we do not intend to decide the point here, that Ex. P-4 operated as a will and gave the plaintiff title on Sheosahai's death, that is to say, in 1917. The question then is whether he ever lost this title and if so, did he regain this, or another title, before suit?
3. The facts set out in the plaint are as follows. The plaintiff states that Sheosahai brought him up as a son and that he lived with Sheosahai while the latter was alive and continued to live in his house with Sheosahai's widow Budhabai after Sheosahai's death. But at the time of Sheosahai's death, although Budhabai outwardly exhibited signs of motherly affection towards him she was engaged in a bitter secret plot against the plaintiff, to oust him from all the property bequeathed to the plaintiff by the deceased Sheosahai Pande… and they aimed that Budhabai would continue undisturbed in possession of the whole property as an heir of Sheosahai and after her death Shankarlal (with whom she was plotting) who had begun to declare himself as the nearest reversioner would be entitled to the same.
4. The plaint then continues that in pursuance of this plot to oust the plaintiff Budhabai obtained a succession certificate in her name on 4th January 1918 and got most of the documents which stood in Sheosahai's name renewed in her own; in other words, she assumed complete management, control and ownership of Sheosahai's estate. But in spite of this the plaintiff continued to reside with her, along with his brothers and his sister, and the social relations between them appear to have remained unchanged. All this time however Budhabai fraudulently suppressed the tabniyatnama, (indeed she is said to have burnt it), and fraudulently kept the existence, execution and registration of it from the knowledge of the plaintiff. When the plaintiff attained “years of discretion” he discovered that Sheosahai had accepted him as a son and so he began to make enquiries. Budhabai and Shankerlal were afraid that he might stumble across knowledge of the fact that the tabniyatnama had been executed and that it had been registered, and they were afraid that the plaintiff might go to the Sub-Registrar's office and discover the fraud. Therefore they hit upon the extraordinary expedient of forging a will in the plaintiff's favour and placing this extraordinary document in his possession, or rather of making sure that it would fall into his hands, hoping thereby that he would be induced to seek for probate. But they took care to make the forgery so obvious and clumsy that they knew no Court would uphold it. The ruse succeeded. The gullible plaintiff applied for probate in 1920 and his application was dismissed, as anticipated, in the following year. He was then a minor, only 16 years of age (the first Court gives the date of his birth as 26th September 1904), but he gave his age as 19 and petitioned as a major. He says that “the ladies” told him that was his age.
5. As soon as he lost his probate case on the will, Budhabai is said to have actually turned him out of the houses in suit (see para. 9 of the plaintiff's rejoinder dated 30th September 1935). The plaintiff then became resigned to his fate, and being unable to meet his debts had recourse to the Insolvency Court. He was adjudicated in 1922 and remained an insolvent till 1928 in which year he was discharged. The learned counsel for the plaintiff argued that these facts disclose that his client never lost title to the estate and that the title is still in him. He said that the estate vested in the plaintiff on Sheosahai's death because of the will (tabniyatnama) Ex. P-4. The plaintiff lived in the houses in suit down to 1921 and then again from 1932 and therefore he was in possession of the property between 1917 and 1921 and consequently however much Budhabai may have set up a title in herself it had no effect on the plaintiff's rights because he was not ousted from the property.
6. This is an argument we are unable to accept. It confuses bare occupation with possession. The two are very different. The concept of possession, at any rate as it is understood in legal terminology, is a complex one which need not include actual occupation. It comprises rather the right to possess, and the right and ability to exclude others from possession and control coupled with a mental element, namely the animus possidendi, that is to say, knowledge of these rights and the desire and intention of exercising them if need be. The adverse possession of which the law speaks does not necessarily denote actual physical ouster from occupation but an ouster from all those rights which constitute possession in law. It is true that physical occupation is ordinarily the best and most conclusive proof of possession in this sense but the two are not the same. It is also true that there must always be physical ouster from these rights but that does not necessarily import physical ouster from occupation especially when this is of just a small room or two in a house and when this occupation is shared with others. The nature of the ouster and the quantum naturally varies in each case. The plaintiff states in his plaint that he knew nothing about his rights till 1928. He was fraudulently kept in ignorance of them. On the other hand he knew that Budhabai had set up a title in herself and he, being taken in by her, believed that she was the rightful owner. How then could he have had the intention, desire, and determination to exercise these rights which make up possession in law when he was convinced that he did not possess them? How could he have been seized of the mental element which is necessary to complete the legal concept of possession, that is to say, how could he have possessed the necessary animus possidendi? Of course he was a minor during a part of this time but he attained majority in 1922 (29th June 1922 to be exact) and he says that he was kept in ignorance of his rights for another six years. Also, in any case, even minors have guardians who can act for them and exercise rights on their behalf. The plaintiff's father was his guardian but he did not raise a finger, presumably because (on the plaintiff's case) he was also deceived. But more of that later. At the moment it is enough to say, though this is denied and will have to be developed further in a minute, that minority does not prevent ouster and does not stop the commencement or running of adverse possession. The only privilege which a minor gets is another three years after attaining majority, if the time expires before the three years.
7. On the facts given, and for the moment we are accepting at their face value the facts set forth in the plaint, the plaintiff never entered into possession till 1932, and Budhabai set out her title as an heir, asserted this hostile title and entered into effective possession of the property from the moment of Sheosahai's death, and in any event from 4th January 1918. Thereafter, she continued in continuous hostile and adverse possession till 1932. As regards the plaintiff's exclusion from possession till 1932, this is what the plaintiff says in paras. 13 and 14 of the plaint:
That the plaintiff thereafter (that is to say after discovering the existence of the registration copy of the tabniyatnama) filed a suit before the Additional District Judge, Jubbulpore, in forma pauperis to get back the estate of Seosahai.
8. It is clear therefore that according to the plaintiff he had not up to this time got back the estate even though he was still living with Budhabai, and, so far as his social relations with her were concerned, was on the same terms with her as he had been from the moment of Sheosahai's death. The plaint continues, after setting out that the pauper application was dismissed:
That after the dismissal of the pauper application the plaintiff with his personal attempt (Sic) in or about 1932 got possession of the residuary property of Sheosahai on which he could lay his hands, and is in possession since then of houses Nos. 439 and 439/1….. as owner.
9. These are the houses in suit, so it is ??? clear on his own allegations that he did not enter into possession as owner till 1932. Budhabai's adverse possession therefore lasted from 1918 (at the latest) till 1932. The 12 years expired in 1930, and so at the end of that 12 years the plaintiff's title determined under Section 28 of the Limitation Act. It follows he had no title in 1932 and so had either to prescribe for one afresh or to obtain a conveyance from Budhabai in whom the title vested. He had done neither up to the date of the suit, and so on the facts set out in the plaint itself this suit is bound to fail unless the plaintiff can avail himself of Section 18 of the Limitation Act. We may mention that the plaintiff's minority will not avail him because he attained majority in 1922 and the three years rule would only carry him as far as 1925. But as the 12 years did not expire till 1930 he had limitation till then. It was argued that the plaintiff at any rate regained possession during the years 1920 to 1921 while he was fighting the probate case. He was in occupation, as he lived with Budhabai as before, and as he asserted a title to the property it must be presumed that he regained possession because the law will always presume in favour of the rightful owner and will always assume that possession resides in the person having title. This might have been so but for the plaintiff's own evidence which excludes any such possibility. In the first place he does not state that the character of his occupation changed in any way. The plaintiff and Budhabai only lived in a part of one of the houses. The rest was in the possession of tenants and they continued to attorn to Budhabai. The documents which she had altered into her name remained as before and she continued to assert her own title and exercise every act of ownership and to cap all, the plaintiff states in the witness box as P.W 2:
The suit relates to two houses Nos. 439 and 439/1 at Galgalatal. They have been in my possession from 1932. Before that they were in possession of Mt. Budhabai.
10. That finally disposes of any doubt as to where possession lay up till 1932. We are also influenced by another fact. The plaintiff found it necessary to set up an elaborate case of fraud. This was necessary in order to enable him to obtain the benefit of Section 18 of the Limitation Act. It is obvious on the conclusions which we have reached above that the plaintiff lost title to the property by 4th January 1930 and that he had not regained it by 7th February 1935 when the suit was filed. But if he was fraudulently kept out of knowledge of his rights by Budhabai who was ousting him limitation would not commence to run against him until he discovered the fraud, because of Section 18 of the Limitation Act. The plaintiff states that he discovered the fraud in 1928. In that event he would have had 12 years from 1928 in which to sue Budhabai for possession, that is to say, the title would still be in him during that time. But, according to the plaintiff, Budhabai saw the futility of opposition and voluntarily surrendered possession in 1932, or rather raised no opposition when he turned her out in that year, and so the plaintiff was saved the necessity of suing and as he regained possession while the title still resided in him and continued to be in possession till the date of this suit, he is able to show a good title and is thus entitled to his declaration. That contention would of course be sound if the facts pleaded are correct. But, before we examine the facts, we desire to observe that this elaborate plea is wholly unnecessary unless the plaintiff had in fact been ousted from possession from 1918 till 1932. The fact that the plaintiff found it necessary to ground his case on these assertions (the fraud was not set up in the plaint as an alternative case, but as the main and only case) indicates that he would have lost title had it not been for the fraud.
11. But as regards this case of fraud, we are wholly unable to believe it. In order to succeed, the plaintiff has to establish that he was totally ignorant about the Tabniyatnama and its registration till 1928. What are the facts? (After going through the facts their Lordships proceeded). On these facts the plaintiff is out of Court. Apart from all else no equitable relief such as this would be granted when the plaintiff is shown to have acted fraudulently. However, we need not decide the case on that point because our conclusion is that the plaintiff had no subsisting title at the date of suit. The questions we have examined at such length are questions of fact, and this is a second appeal. Had there been findings on these facts by the lower appellate Court we would have had no power to go behind them. But we are not able to discover any such findings. The first Court appears to have reached a somewhat muddled conclusion on the question of fraud as set up by the plaintiff because it answered issue 5(a) by stating that the plaintiff had been kept out of the knowledge of his right to institute the suit by the fraud of defendant X and her representatives, defendants 2 to 4. Nevertheless, it held on issue 6 that defendant 4 was a bona fide purchaser for value. It may be we are doing the learned Judge an injustice because the first of those findings is not to be found in the body of the judgment, and it is possible that “defendant 4” is a slip for “defendant 3,” but as the judgment stands that is how it reads. There is no finding about the plaintiff's possession before 1932. As regards that, the first Court has assumed, as indeed it was bound to assume on the pleadings, that the plaintiff would be out of Court unless he could avail himself of Section 18 of the Limitation Act. The lower appellate Court gives no finding on the question of fraud and only considers the legal position which would result if fraud were assumed to exist. It gives no finding on the question of possession either but assumes that the plaintiff would be out of Court unless he could avail himself of S. 18 because, to use the language of the learned Judge, “the ordinary period of 12 years for bringing his suit for possession of property expired in 1929.” That of course assumes that the plaintiff was out of possession from 1917 which is the year of Sheosahai's death. But we are unable to treat these assumptions as findings.
12. It was argued that the fact of fraud was not challenged by defendant 4 in the lower appellate Court. Two of the pleaders who had appeared there also appeared before us, one on each side. One thought doubtless with the clearest bona fides that the finding had not been challenged and the other, who appeared for defendant 4 along with Mr. K.B Gupta, a very senior and experienced lawyer who is now dead, was clear that it had been. Mr. Bobde who was in possession of Mr. Gupta's notes stated that they appeared to show that the point had been taken. We can hardly believe that it was not, especially with such a careful and experienced lawyer as Mr. K.B Gupta in charge, because unless it was taken the plaintiff would be found to succeed and there would have been no point in opposing the appeal at all. We feel we are justified in the circumstances in going into the facts. That leaves outstanding a question of law which was taken for the first time before us in second appeal. The learned counsel for the plaintiff respondent argued that adverse possession can never run against a minor till he comes of age and that he has 12 years from that date because whoever enters upon a minors's property will be considered to have entered in a fiduciary capacity, either as a guardian or a bailiff, and will not be allowed to say that he entered in his owe right. The following cases were relied on: 1938 NLJ 418, (’39) 26 AIR 1939 Nag 7 , 181 IC 203 , 1938 NLJ 418 ILR (1939) ALL 454, (’39) 26 AIR 1939 All 257 , 181 IC 945 , ILR (1939) All 454 , 1939 ALJ 94 AIR 1938 Nag 89 (’38) 25 AIR 1938 Nag 89 , 173 IC 103 at p. 91, 35 Bom 7912 at p. 89 and AIR 1928 Mad 1113. (’28) 15 AIR 1928 Mad 1113 , 117 IC 113 , 51 Mad 977 , 55 MLJ 733 It was also argued, though somewhat feebly, that Budhabai was in fact the de facto if not the legal guardian of the plaintiff because of Ex. P-4.
13. As to this we are clear that Budhabai was not the plaintiff's guardian either de facto or de jure. The plaintiff at best is a legatee under a will. That would not make Budhabai either his mother or his guardian. A “dharmaputra,” (which is the status the plaintiff acquired under the tabniyatnama) is not a recognised son under the Hindu law. His proper guardian would be his natural father. As to her being a de facto guardian, we do not think she was that either even though the plaintiff lived with her and was maintained by her till 1921. Budhabai set up a title to the estate and entered upon it in her own right as heir from the very beginning according to the plaintiff's on story. She never purported to act on his behalf or in his interests. Also, although the plaintiff lived with her so did the plaintiff's mother till she died in 1918 or 1919, and the plaintiff's father continued to visit them and took charge of the important forged will. Budhabai says that she handed it over to the plaintiff's mother who in turn gave it to her husband, the plaintiff's father, and he gave it to the plaintiff. We do not think there is anything in this argument. As regards the legal position we do not think the rulings quoted decide the position for which the plaintiff's learned counsel contends. This very contention was fully considered in 45 Mad 361 (’22) 9 AIR 1922 Mad 12 , 70 IC 678 , 45 Mad 361 , 42 MLJ 262 at pp. 364 to 369 and was negatived. We agree. The fallacy underlying the argument of the learned counsel for the plaintiff is in assuming that occupation by a minor is equivalent to possession by him. Strictly speaking there can ??? no such thing as possession by a minor ??? minor because he is incapable of having in animus possidendi and of exercising legal rights of ownership. They are exercised in his behalf by others and the question always is whether they were so exercised or not. If they were, then whether the minor was in occupation or not would not matter. He might be at the other end of the world, at school or with friends, but so long as somebody is exercising rights over his property on his behalf “possession” in this sense will be imputed to him. So also if there is nobody on the property, the law will then impute possession to the rightful owner. But that is a rule which applies universally and is not special to minors.
14. But if a stranger enters on the land and physically ousts the minor from occupation as well as from possession and sets up an adverse title in himself, then we have no doubt that time begins to run against the minor from that moment. Whether the person so entering will be allowed to set up these rights is another matter. If he enters in a fiduciary capacity such as a guardian or an agent, of course he will not. But if he is a stranger, then we are clear he can, and the cases cited in the ruling we have referred to so hold, as does the ruling itself. The position is all the stronger when the person entering into possession is the heir at law: see as to this, ILR (1910) Kar 534 (’41) 28 AIR 1941 Sind 50 , 194 IC 137 , ILR (1940) Kar 534 at pp. 566 and 567. The next step is when the minor though allowed to occupy a part of the property is effectively ousted from “possession”. But before considering that, consider the question of an adult in similar circumstances. If nothing is known, nor if the facts are doubtful, then of course the law will imply that of the two in simultaneous occupation “possession” is with the one in whom the title resides. But if it is shown beyond doubt that he is ousted from all effective “possession” and is permitted to remain in occupation as a bare licensee and he accepts that position, then of course the usual presumption will not apply. Is there any difference when the person ousted is a minor? We think not because in that a minor cannot in himself possess the animus possidendi his physical presence on a part of the premises is neither here nor there, and the sole questions then are: (1) Was he in fact ousted, and (2) Will the person ousting him be permitted to show that he did so. The ouster in such a case would be effected by turning the guardian of the minor out of effective possession and control of the property. Not only would it be ridiculous to assert that a young child who is permitted to occupy a room in a house along with his little brothers and sisters on sufferance is in effective possession in the circumstances we have described but it would lead to undesirable social consequences. Nobody would be safe in extending hospitality and showing kindness to any child who had even the remotest pretension to one's estate if that were the law, lest it should hereafter transpire that one's own title was shaky and that the real title resided in the child. As to the cases cited, 1938 NLJ 418 (’39) 26 AIR 1939 Nag 7 , 181 IC 203 , 1938 NLJ 418 is not in point. Only the general observation that dispossession imports ouster, “an actual driving out from possession against the will of the person in possession” is relevant. That can be accepted, but the question whether this can be effected in circumstances like the present was not considered because the case had nothing to do with minors. So also ILR (1939) ALL 454. (’39) 26 AIR 1939 All 257 , 181 IC 945 , ILR (1939) All 454 , 1939 ALJ 94 No minor was involved there, and what was decided, was that when no one is in possession the possession of the rightful owner is deemed to continue. But here Budhabai was in possession and she was the heir at law. AIR 1938 Nag 89 (’38) 25 AIR 1938 Nag 89 , 173 IC 103 and AIR 1928 Mad 1113 (’28) 15 AIR 1928 Mad 1113 , 117 IC 113 , 51 Mad 977 , 55 MLJ 733 were both cases of guardians and so are not in point here. In 35 Bom 7912 the distinguishing feature is that the person entering into possession did not set up a title adverse to the minors till 1891 and this was after the minors had attained majority (see p. 89 of the report). We quite agree that if the person entering upon possession does not set up his or her title, it will be presumed that the possession was on behalf of the minors because the law will never presume a wrongful act. The position is very different when there is a wrongful assertion of title and ouster, as here.
15. As to whether Budhabai should be allowed to assert a hostile title we have already pointed out that she did not occupy a fiduciary capacity vis-a-vis the plaintiff and that his own parents, both father and mother, were alive when Budhabai ousted him and that they knew all about it. She was the heir at law and had in our opinion every right to assert her own title. There is no estoppel and none has been pleaded. The point was taken here for the first time. The appeal succeeds. The decree of the lower appellate Court is set aside and that of the first Court restored. The plaintiff, respondent and defendant 1 will pay the costs of the appellants (defendants 2 and 4) here and in the lower appellate Court. Defendant 3 who has not appealed will bear his own costs in this and the lower appellate Court. We direct defendant 1 to pay the appellants' costs because she has resisted their right to execution of decrees passed against her and has been as much interested in fighting this litigation as the plaintiff himself. There will however be only one set of costs in these two Courts. Costs in the first Court will be as decreed by that Court.
G.N/R.K
16. Appeal allowed.