1. Partition suit — Claim of title through inheritance and testamentary succession — Dispute over validity of Will and claim of adverse possession. (Para 2 )
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1998 Supreme(SC) 416
SUPREME COURT OF INDIA
G.N.Ray : M.Srinivasan
M.Arthur Paul Ratna Raju
Versus
Gudese Garaline Augusta Bhushanabai
Case No. : 1343 of 1986
Date of Decision : 3/31/98
Co-sharers cannot claim absolute title via adverse possession unless they provide convincing evidence of the ouster of other co-sharers; mere possession as of right is insufficient to extinguish a co-sharer's title.
Headnote:(A) Adverse Possession - Co-sharers - Claim of absolute title - Ouster must be established by convincing evidence - Mere exercise of possession as of right cannot make out a case of ouster of a co-sharer and consequential exercise of adverse possession so as to extinguish the title of the ousted co-sharer for the prescribed period. (Para 5)
(B) Succession - Intestate and Testamentary - If title is established through intestate succession, the validity of a Will may lose significance regarding the establishment of the claimant's right to the property. (Para 6)
Facts of the case:
A suit for partition of specific properties was filed by the respondent claiming title through inheritance from her mother, who was the daughter of the original owner, and also under a Will. The appellants contested the claim, disputing the validity of the Will and asserting that they had acquired title through adverse possession.
Findings of Court:
The court held that the appellants, being co-sharers, failed to provide convincing evidence of the ouster of the respondent. Furthermore, the respondent's title to the property was established through intestate succession, rendering the dispute over the Will's validity secondary.
Issues: Whether the defendants acquired title to the suit property by adverse possession and whether the Will executed by the predecessor was valid.
Ratio Decidendi: Co-sharers cannot succeed in claiming absolute title by adverse possession unless there is convincing evidence of ouster of the other co-sharer; mere possession as of right is insufficient to extinguish the title of a co-sharer.
Result: Appeal fails and is dismissed.
Legal Category Hierarchy
Table of Contents
2. Validity of the Will — Claim of title by adverse possession by co-sharers. (Para 2 )
3. Ouster of a co-sharer must be established by convincing evidence to claim adverse possession; mere possession as of right is insufficient. (Para 5 , 6 )
4. Co-sharers cannot acquire absolute title by adverse possession unless ouster of the other co-sharer is established by convincing evidence. (Para 5 )
5. Appeal dismissed. (Para 6 )
6. Can a co-sharer acquire absolute title to a property through adverse possession against another co-sharer?
Yes, but only if it is established by convincing evidence that there was an ouster of the other co-sharer. Mere exercise of possession as of right does not constitute ouster and cannot extinguish the title of the other co-sharer. (Para 5 )
7. Does the validity of a Will remain significant if the claimant's title is already established through intestate succession?
No, if the claimant's title to the property is established through intestate succession, the validity of a Will loses its significance in determining the claimant's right to the property. (Para 6 )
(1) SUBSTITUTION is allowed if not allowed by previous order.
(2) THIS appeal is directed against the judgment dated 6/11/1985 passed by the A. P. High court in Letters Patent Appeal No. 70 of 1979. Defendants 2 to 7 in the partition suit OS No. 70 of 1970 are the appellants before us. respondent 1 filed the said OS No. 70 of 1970 in the court of learned Subordinate Judge, Tanuku for partition of B and C Schedule properties, inter alia, contending that she had inherited the share in the said B and C Schedule properties through Karunamma who was the daughter of Mark, the admitted owner of the property. The said respondent 1 also claimed title to the said property under a Will executed by her mother Karunamma. The contesting Defendants 2 to 7 who are appellants before this court, filed a written statement, inter alia, disputing the claim of the plaintiff. It was inter alia contended by the said contesting defendants that the Will executed by Karunamma was not a valid one. In any event, the plaintiff lost her title to the said property because of adverse possession exercised by Defendants 2 to 7.
(3) THE trial court did not accept the validity of the Will but decreed the suit in part by accepting the title of the plaintiff in respect of C Schedule property, namely, the house property. The plaintiff thereafter preferred an appeal being AS No. 564 of 1975 against the said judgment of the learned Subordinate Judge. The Single bench of the High court allowed the said appeal inter alia on the finding that the Will set up by the first respondent is valid. It was also held that the appellants, namely. Defendants 2 to 7 did not acquire title to the suit property by adverse possession. Thereafter, Defendants 2 to 7 preferred LPA No. 70 of 1979 in the High court. By the impugned judgment, such LPA has also been dismissed.
(4) IT has already been indicated that there is no dispute that one Mark was the owner of the disputed property and Respondent 1, the plaintiff had been claiming title through her mother Karunamma being the daughter of Mark. It is also not in dispute that Mark died leaving behind his son Joseph, daughter Karunamma and widow Mortharnma. There is also no dispute that after the death of Morthamma her interest in the property left by Mark devolved equally on the son Joseph and the daughter Karunamma.
(5) DEFENDANTS 2 to 7 being the co-sharers cannot succeed in claiming absolute title by adverse possession unless it is established by convincing evidence that there had been ouster of Respondent 1, an admitted co-sharer from the disputed property. In the case of a co-sharer, mere exercise of possession as of right, cannot make out a case of ouster of co-sharer and consequential exercise of adverse possession by the other co-sharer so that ultimately the title of the ousted co-sharer is extinguished on account of adverse possession for the prescribed period.
(6) IN the facts and circumstances of the case, the court of appeal below has rightly indicated that such case has not been established by the appellants and the LPA has also been dismissed. Therefore, the appellants cannot succeed in this appeal. The question whether the Will was genuine or not has also been answered against the appellants and we do not find any reason to interfere with such finding made by the Single bench of the High court since upheld by the division bench. It may be stated here that whether the Will is valid or not loses its significance because the plaintiffs title through Karunamma even by intestate succession has been established. The present defendants have no concern with the Will and title to the property of Karunamma by testamentary succession through the Will concerns the natural heirs of Karunamma and the legatees under the Will. This appeal therefore fails and is dismissed. There will be no order as to costs.
