2014 Supreme(SC) 611

SUPREME COURT OF INDIA
DIPAK MISRA, V. GOPALA GOWDA, JJ.
PANGU ALIAS APPUTTY (DEAD)THROUGH L.Rs.& ORS. - APPELLANTS
Versus
NARAYANI & ORS. - RESPONDENTS
CIVIL APPEAL NO.352 OF 2009
Decided On: 28-08-2014

IMPORTANT POINTS
Even if daughters are exclusively entitled to streedhan of their mother, if they do not assert theor claim and take possession and their brothers and other male descendants continue in possession adverse to their title, the daughters lose their title, ownership and right to partition.
By conferring title on the person having adverse possession law pronounces penalty of extinction of title on the person who though entitled to assert his right and remove the wrongdoer and re-enter into possession, has defaulted and remained inactive for a period of twelve years or more.
Kerala Land Reforms Act, 1963 coming into force in 1964 and some of its provisions after amendment of the Act in 1970. The original owner, a lady, died in 1942. Her sons could not claim to be cultivating or deemed tenant under their mother. Therefore the purchase certificate issued to them on the basis of their claim of cultivating or deemed tenant would be non est in law.
Daughters exclusively entitled to streedhan properties of their mother. Two out of three brothers kept the properties in their possession for 50 years and perfected their title and partitioned it between them. The third brother or his descendants cannot assert any title and claim partition.

Headnote:(a) Hindu Law – Stridhan – Definition restricted in Dayabhaga school in Benaras and Bengal but given extended meaning in Mitakshara in south – Properties acquired by original owner “Panayam Theeradharam” during coverture – Are Streedhan – Daughters entitled to such properties. (Para 31)

       (1903) ILR 25 ALL – Relied upon

       (1912) 14 BOMLR 220 – Cited with approval

       (b) Hindu law – Partition – Plaintiff No. 1 and defendant Nos. 10 to 17 though exclusively entitled to streedhan of Valli, defendants no 1 to 9 and plaintiffs no. 2 to 4 in continuous possession for 50 years – Plaintiff No. 1 and defendant Nos. 10 to 17 lost their right to partition. (Para 31)

       (c) Adverse possession – Perfection of title by adverse possession is not conferment of any premium on the wrongdoing of a person in wrongful possession – By conferring title on the person having adverse possession law pronounces penalty of extinction of title on the person who though entitled to assert his right and remove the wrongdoer and re-enter into possession, has defaulted and remained inactive for a period of twelve years or more – Plaintiff No. 1 and defendant Nos. 10 to 17 though exclusively entitled to streedhan of Valli not taking any action to assert their title and remove the persons in illegal possession for over 50 years – Defendants no 1 to 9 and plaintiffs no. 2 to 4 in continuous possession of the properties for 50 years – Have perfected their title by adverse possession in absence of any challenge from lawfully entitled Plaintiff No. 1 and defendant Nos. 10 to 17. (Para 34, 35)

       (2004) 10 SCC 65 – Relied upon

       1971 K.L.T. 609 – Referred

       (d) Hindu law – Custom – Streedhan – In Kudivaippu form of marriage girls are given their share of mother’s streedhan at the time of their marriage – Plaintiff no. 1 and defendants no. 10 to 17 not pleading the prevalent custom under which daughters of deceased Valli were governed, for performing their marriage – Also not pleading that they were not given away in marriage in Kudivaippu form after payment of Streedhana to disentitle them from their share upon the intestate properties of deceased Valli – Defendants no 1 to 9 pleading it but not able to establish the same – On the other hand defendants no 1 to 9 perfecting their title by adverse possession – Held, plaintiff no. 1 and defendants no. 10 to 17 not entitled for the share as claimed. (Para 39)

       1971 K.L.T. 609 – Referred

       (e) Hindu law – Partition – Fathers of defendant no. 1 to 9 being in continuous possession of suit schedule property partitioning the same between them – Ousting deceased plaintiff no. 1 and mother of defendant no. 10 to 17 – Perfecting their title to properties as owners – Result of litigation between the two binding on father of the defendant Nos. 8 and 9 father of the defendant Nos. 8 and 9 who lost therein. (Para 40)

       (f) Kerala Land Reforms Act, 1963 – Section 4A – Act coming into force in 1964 and some of its provisions after amendment of the Act in 1970 – Valli dying in 1942 – Therefore fathers of defendant nos. 1 to 9 could not claim to be cultivating or deemed tenant under their mother, Valli – Therefore the purchase certificate issued to them on the basis of their claim of cultivating or deemed tenant is non est in law. (Para 41, 42)

       (g) Hindu law – Partition – Suit schedule properties streedhan of Valli – Sons not entitled to it – However, defendant nos. 1 to 9 perfecting their title by adverse possession and partition – Therefore petitioner nos. 2 to 4 legal representatives of Apputty, son of Valli, not entitled to partition of the property. (Para 44)

       Facts of the case:

       The defendant Nos. 1 to 9 in the Court of the Subordinate Judge are the appellants herein and the plaintiffs and defendant Nos. 10 to 17 are the respondents herein who belong to the Perumkollam (blacksmith) community and are governed by customary law and Hindu law.

       As per the original suit, the suit schedule properties belonged to Valli, the mother of the plaintiff No. 1 and grandmother of plaintiff Nos. 2 to 4 and the defendant Nos. 1 to 17.

       Valli died in the year 1942 leaving behind her three sons namely, Kunhan, Ayyappan and Apputty and two daughters, namely, Unniechi and Ammalukutty. The plaintiff No. 1 is Unniechi, the daughter of Valli, plaintiff Nos.2 to 4 are the children of deceased Apputty, defendants Nos. 1 to 7 are the children of the deceased Kunhan, defendant Nos. 8 and 9 are the daughters of deceased Ayyappan and defendant Nos. 10 to 17 are the children of deceased Ammalukutty. Kunhan expired in the year 1984 or 1985. Ammalkutty died in the year 1986 or 1987 and Ayyappan died in the year 1984 or 1985. Apputty died in the year 1945.

       After the death of Valli, her two sons, namely, Kunhan and Ayyappan were in possession and enjoyment of the suit schedule properties for and on behalf of the other legal heirs. Kunhan and Ayyappan were giving the income derived from the suit schedule properties to the shares of the plaintiffs upto their death.

       The plaintiff No. 1 (Unniechi d/o Valli) requested the defendant No. 1 on several occasions and finally as per the notice dated 30.08.1990 to allot the share of plaintiff No. 1 by dividing the suit schedule properties by meets and bounds.

       It is stated by defendant Nos. 1 to 9 that after the death of Valli, the suit schedule properties were partitioned between Kunhan and Ayyappan by a registered partition deed of the year 1953, as per Ex-B1, considering that they are co-owners of the said properties. During their life time, they were in continuous, uninterrupted, open and hostile possession of the suit schedule properties from 1953 onwards against the entire world including the plaintiffs and defendant Nos. 10 to 17 and after their death, their children, defendant Nos. 1 to 9 have been in continuous uninterrupted possession of the suit schedule properties.

       The Trial Court has answered the contentious issues against the plaintiffs and in favour of the defendant Nos. 1 to 9 and consequently, held that the plaintiffs and defendant Nos. 10 to 17 are not entitled for partition. Consequently, the suit was dismissed with no costs.

       The plaintiffs filed Appeal Suit before the High Court. During the pendency of the appeal, the plaintiff No. 1 died and additional appellant Nos. 5 to 16 were impleaded as the legal representatives of the plaintiff No. 1.

       The High Court has held that the suit schedule properties of the deceased Valli are not Streedhana and after her death, her daughters and sons have inherited the suit schedule properties. Therefore, there was no reason for the Trial Court to hold that the daughters of Valli were excluded from partition of the suit schedule properties which are not binding on the plaintiffs and defendant Nos. 10 to 17. Therefore, claiming share by them after 50 years of death of Valli upon the suit schedule properties cannot be a ground for the contesting defendant Nos. 1 to 9 to take the plea that they have perfected their title to the suit schedule properties by adverse possession and ouster as specifically pleaded by them and accepted by the Trial Court and the findings recorded by it on the contentious issue No. 4 is not only erroneous but also suffer from error in law.

       The High Court has set aside the finding and reasons recorded by the trial court.

       Finding of the Court:

       Defendant nos. 1 to 9 have perfected their title to the suit schedule property by adverse possession.

       Result: Appeal of the defendant Nos. 1 to 9 allowed.