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1918 Supreme(SC) 51
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT CAVE, LORD PHILLIMORE, SIR JOHN EDGE, AND MR. AMEER ALI.
VARATHA PILLAI - Appellant
Versus
JEEVARATHAMMAL - Respondents
On Appeal from the High Court at Madras.
Decided On : June 20. 1918.
Solicitors for appellants:Chapman-Walker & Shephard. Solicitor for respondent: D. Graham Pole.
Unregistered documents inadmissible to prove a gift may still be used to explain the nature of possession to establish adverse possession. Additionally, an established ouster of a co-owner is not negated by the possessor's subsequent acquisition of a legal share in the property.
Headnote:(A) Transfer of Property Act, 1882 - Section 123 - Registration Act - Sections 17 and 49 - Indian Evidence Act - Section 91 - Indian Limitation Act, 1908 - Gift of immovable property - Requirement of registered instrument - Adverse possession - Nature of possession.
(B) An unregistered document, while inadmissible to prove a gift of immovable property under Section 123 of the Transfer of Property Act, may be referred to for the purpose of explaining the nature and character of the possession held by a party, thereby supporting an inference of adverse possession.
(C) Where an ouster of a co-owner has already occurred, the subsequent acquisition of a legal share in the property by the possessor does not change the character of the possession of the remaining share from adverse to permissive.
Facts of the case:
The appellants sought a declaration of title to a moiety of an estate as heirs of a widow. The respondent contended that the property had been gifted to her mother by the widow and subsequently passed to the respondent. The gift was attempted through petitions to a collector but was not registered. The respondent alternatively claimed title through adverse possession. Evidence indicated that the possessor had managed the estate, collected rents, and had the property registered in her name.
Findings of Court:
The court found that the widow had acquired an absolute interest in the property via the testator's will. Although the gift to the possessor was invalid due to non-registration, the petitions and subsequent conduct established that the possessor held the land in her own right and not as a trustee. The possession was held to be adverse.
Issues: Whether the possession of the property was permissive or adverse, and whether the subsequent acquisition of a partial legal interest by the possessor terminated the adverse nature of the possession against the other co-owner.
Ratio Decidendi: The court ruled that documents inadmissible to prove title can still be used to explain the character of possession. Since an ouster had occurred before the possessor became a legal owner of a moiety, the possession of the other moiety remained adverse.
Result: Appeal dismissed with costs.
Legal Category Hierarchy
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property law
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transfer of property
- gifts
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limitation and prescription
- adverse possession
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transfer of property
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succession law
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wills
- construction of wills
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wills
-
evidence law
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admissibility of documents
- registration requirements
- exclusion of oral evidence
-
admissibility of documents
Judgement
Appeal from a judgment and decree of the High Court (November 19, 1915), reversing a decree of the District Court of Chinglepat (August 11, 1912).
The suit was instituted by the appellants in October, 1912, against the respondent, claiming a declaration of their title to a moiety of a mitta, or estate, known as Kariamangalani, and consisting of two villages. The appellants claimed as the heirs of Parthasarathi Pillai upon the death of his widow Alangarammal, which occurred in 1912; alternatively they claimed as the heris of Alangarammal.
The respondent, who was in possession, alleged that the moiety in question had passed under the will of Parthasarathi Pillai to his said widow absolutely, and that she had made a gift of it to the respondents mother, Duraisani; alternatively the respondent relied on the Indian Limitation Act, 1908, alleging adverse possession of the property by her mother from 1896, and after her mothers death in 191] by herself.
The facts appear from the judgment of their Lordships.
The District Judge held that on the construction of the will of Parthasarathi Pillai, his widow took an absolute and not merely a life interest, but that the alleged gift to the respondents mother was not proved, there being no registered instrument to satisfy s. 123 of the Transfer of Property Act, 1882. He further held that the possession of the two villages by the respondents mother had been merely permissive for her mother and aunt (Rajammal and Alangarammal) and not adverse to them. He found that the appellants were entitled as heirs and made a decree in their favour.
Upon an appeal to the High Court the learned judges (Sankaran Nair and Trotter JJ.) differed from one another on the question of limitation. Sankaran Nair J. was of opinion that the petition of October, 1895 (the terms of which sufficiently appear from their Lordships judgment), was not admissible in evidence to prove the nature of the possession held by Duraisani, and that there was no competent evidence to prove that her possession was adverse. Trotter J., on the other hand, was of opinion that the petition was admissible as evidence that the signatories recognized that Duraisanis possession was adverse to their own rights. Upon all other questions in the case both learned judges agreed with the judgment of the District Judge.
The question whether the petition was admissible in evidence for the purpose above stated was referred to a full Bench (Sir James Wallis C.J., Abdur Rahim and Seshagiri Bijyar JJ.) which delivered the following opinion "We think that the petition is not a document requiring registration under s. 17 of the Registration Act. It refers to a gift on October 8, 1895, some days previously, and in spite of the concluding passage, cannot in our opinion be considered, as declaring the rights of the parties within the meaning of s. 17 see Sakharam Krishnaji v. Madan Krishnaji . (( 1881)
I. L. R. 5 B. 232.) It is therefore not rendered inadmissible by s. 49 of the Registration Act."
The appeal then came for disposal before Trotter and Srivivasa Aiyangar JJ., who held that the respondents defence of limitation was established, and accordingly dismissed the suit.
1919. May 12. De Gruyther K.C. and Kenworthy Brown for the appellants. Upon the true construction of the will of Parthasarathi Pillai, his widow took only a life interest in the moiety in suit, and upon her death the appellants succeeded as his heirs. If the widow took an absolute estate, no gift by her to Duraisani was proved since there was no registered instrument to satisfy s. 123 of the Transfer of Property Act. The appellants are therefore entitled as the widows heirs. There was no evidence of adverse possession in Duraisani. The petition of October, 1895, was not admissible in evidence. It declared the title of Duraisani within the meaning of s. 17 of the Registration Act, and being unregistered was, consequently, by s. 49, inadmissible in evidence. At most it could only be
