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1990 Supreme(AP) 193
Andhra Pradesh High Court
Judges : M.RANGA REDDY
Thota Venkataramana Mudali - Appellant
Versus
Thota Sambasiv Mudali - Respondent
Decided On : 04-20-90
A co-owner can surrender his interest in joint property in favour of the other co-owners, and a co-owner can abandon his interests in joint property, and such abandonment will augment the interest of the other co-owners.
Headnote:
PARTITION SUIT - ABANDONMENT OF SHARE - ADVERSE POSSESSION - CO-OWNER CAN SURRENDER HIS INTEREST IN JOINT PROPERTY IN FAVOUR OF THE OTHER CO-OWNERS - CO-OWNER CAN ABANDON HIS INTERESTS IN JOINT PROPERTY AND SUCH ABANDONMENT WILL AUGMENT THE INTEREST OF THE OTHER CO-OWNERS - ABANDONMENT IN THE JOINT PROPERTY FOR OVER THIRTY YEARS BY A CO-OWNER DOES NOT AMOUNT TO HIS OUSTER FROM THE JOINT PROPERTY.
Fact of the Case:
Plaintiff and defendant were brothers who got the plaint schedule property by means of settlement in 1935. Plaintiff alleged that they have been enjoying the property jointly since then and purchased 1/3rd share of his brother Jagadeesa Mudali under a registered sale deed in 1963. Defendant contested the suit, claiming that plaintiff and Jagadeesa Mudali had abandoned their rights in the property and that he had acquired title by adverse possession.
Finding of the Court:
The trial court and the appellate court found that neither the plaintiff nor Jagadeesa Mudali had abandoned or relinquished their rights in the plaint schedule property and that they continued to be the co-owners of the same. It was also found that Jagadeesa Mudali had sold his 1/3rd share to the plaintiff under a registered document in 1963 and that the defendant had not established either ouster or adverse possession in respect of the suit property.
Issues: 1. Whether a co-owner can surrender his interest in joint property in favour of the other co-owners. 2. Whether a co-owner can abandon his interests in joint property and whether such abandonment will augment the interest of the other co-owners. 3. Whether an abandonment in the joint property for over thirty years by a co-owner does not amount to his ouster from the joint property.
Ratio Decidendi: The court held that these questions did not arise in the present case, as the lower courts had not found that the co-owner had surrendered or abandoned his interest in the property or that there had been an ouster. The court also held that the evidence adduced during the trial amply justified the conclusion arrived at by the Trial Court.
Final Decision: The court dismissed the appeal, holding that there was no substantial question of law as would warrant interference with the concurrent finding of the two Courts below.
( 1 ) THIS is an appeal filed by the appellant in A. S. No. 8/75 on the file of the district Judge, Chittoor against the judgment dated 27th November, 1981 by which the appeal filed by him was dismissed confirming the judgment and decree of the Subordinate Judge, Tirupathi made in O. S. No. 138/71. For purpose of convenience the respondent herein will be referred to as the plaintiff and the appellant as the defendant . For proper appreciation of the dispute involved in this appeal it would be convenient to state the case 6f the plaintiff and the defendant briefly as set out in their pleadings.
( 2 ) THE plaintiffs, defendant and one Jagadeesa Mudali are brothers. They got the plaint schedule property by means of settlement dated 2-6-1935 (Ex. A- 1 ). According to the plaintiff they have been enjoying the property jointly since the date of said settlement. He further purchased 1/3rd share of his brother Jagadeesa Mudali under a registered sale deed (Ex. A-2) dated 26-6-1963. So the plaintiff became entitled to 2/3rd share in the schedule property. As the defendant did not accede to the request of the plaintiff to effect partition and separate possession of his 2/3rds share in the suit property he was constrained to file a suit for partition and separate possession of his 2/3rds share.
( 3 ) THE defendant who is the appellant herein contested the suit. He admits that himself and his brothers got the property under a settlement dated 2-6-1935. But according to him the plaintiff developed illicit intimacy with some woman and left the plaint schedule house in the year 1938 and has been living separately. It is further alleged that he abandoned his right in the property. He further states that even Jagadeesa Mudali also relinguished his share in the property in the year 1945 and was living separately. He denied the allegation that the plaintiff purchased 1/3rd share of Jagadeesa Mudali under a registered sale deed Ex. A-2. Thus, both the plaintiff and Jagadeesa Mudali have no manner of right, title or interest in the plaint schedule property. The defendant has been in exclusive possession and enjoyment of the same in his own right and he even acquired title to the suit property by adverse possession. The plaintiff and his brother Jagadeesa mudali have surrendered or abandoned their rights in the suit property. The defendant has alone been paying municipal tax and that he has also effected repairs to the building by spending an amount of Rs. 5,000/ -. So the plaintiff has no manner of right, title or interest in the property and that therefore the suit filed for partition of 2/3rds share has to be dismissed. The trial Court found that renouncing or surrendering of their rights in the plaint schedule property either by the plaintiff or Jagadeesa Mudali is false and that they have never abandoned their rights in the property. The defendant had not perfected his title by adverse possession and that sale deed in favour of the plaintiff by Jagadeesa Mudali is true and valid and that the plaintiff and the defendant are co-owners of the property and consequently held that the plaintiff is entitled to his 2/3rds share in the suit property. The defendant aggrieved by that judgment and decree of the Trial Court preferred an appeal in A. S. No. 8/75 on the file of the District Court, Chittoor and the same was dismissed on 27th November, 1981 virtually confirming the judgment and decree of the Trial Court. The defendant in the suit who had filed the appeal A. S. No. 8/75 has preferred this appeal.
( 4 ) IT is clear that there is concurrent finding of both the Trial Court and appellate Court. Both the courts below have held that neither the plaintiff nor his brother Jagadeesa Mudali have abandoned or relinguished their rights in the plaint schedule property and that they continued to be the co-owners of the same. It is also found that that Jagadeesa Mudali had sold his 1/3rd share to the plaintiff under a registered document E
