2014 Supreme(Kar) 782

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
N. Kumar and H. Billappa, JJ.
Nanjamma - Appellant
Vs.
Akkayamma and Ors. - Respondent
R.F.A. No. 287/2008
Decided On: 30.04.2014

Headnote:HINDU LAW - Joint Family Property: [N. Kumar & H. Billappa, JJ] Co-owner/Co sharer - Possession of one co-sharer - Held, It is well settled that in order to establish adverse possession of one-co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co-heir in possession, who claims his possession to be adverse, should be made out. The possession of one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession, merely by any secret hostile animus of his own part in derogation of the other co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.

       HINDU LAW - Joint Family Property: [N. Kumar & H. Billappa, JJ] Plea as to ouster - If ouster is to be pleaded, the title has to be acknowledged. Once such a plea is taken, irrespective of the fact that as to whether any other plea is raised or not, conduct of the parties would be material. If, therefore, plea of ouster is not established, a fortiori the title of other co-sharers must be held to have been accepted. ’Ouster’ does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. It is well settled that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession.

        The co-sharer in possession would become constructive trustees on behalf of the co-sharer who is not in possession and the right of such co-sharer would be deemed to be protected by the trustees. A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all. Mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of the other co-sharers was denied.

        Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint family property and after such ouster, he is out of possession of the property for a period of more then 12 years and in the meanwhile, the person who ousted, asserts his title, continues in possession for the statutory period openly, then person out of possession loses his right to have possession. When possession of one co-owner in the eye of law is the possession of all the co-owners, till the partition is effected, by metes and bounds, anybody can claim exclusive title of the property because each co-owner has the interest in every parcel of the property.

        Merely because one co-owner is in exclusive possession of the properties and other co-owners are residing separately it cannot be said that the co-owners who are not in possession are ousted from the property. In the absence of ouster, hostile title, mere exclusive possession would not constitute either adverse possession or ouster. Even in case of alienation, though the alienee is put in exclusive possession of portion of the property, as the property is not divided by metes and bounds, he cannot claim exclusive title in the property for the co-owner who is not a party to the alienation is deemed to be in possession of the property.

       HINDU LAW - Joint Family Property: [N. Kumar & H. Billappa, JJ] Joint family property ceases to be so if there is partition. A member of a joint Hindu Family has no definite share in the joint family property, but he has an undivided interest in the property. According to law, partition consists in defining the shares of the members of the joint family. A separation is effected by a clear and unequivocal intimation on the part of one member of the joint Hindu Family to his co-sharers of his desire to severe himself from the family. There should be an intimation, indication or representation such intention and that the manifestation or declaration of intention should be to the knowledge of the person affected because a mere un-communicated declaration amounts to no more than merely harbouring an intention to separate. Severance results from the date of declaration.

       HINDU LAW - Joint Family Property: [N. Kumar & H. Billappa, JJ] Ouster - A joint and undivided family is the normal condition of a Hindu society but it is not a juristic person, as such it cannot hold any property independent of the members. The presumption in respect of a joint Hindu Family is that it is joint unless the contrary is proved. By virtue of the same, the initial burden is on the person who claims disruption of the joint status. In the absence of a specific plea and without there being any issue or evidence thereon, by picking up some admission from evidence with regard to possession, attempt cannot be made to make a case of ouster.

       HINDU LAW - Joint family property: [N. Kumar & H. Billappa, JJ] Plea that it was purchased by deceased propositus in the name of his sons - No evidence as to consideration being paid by deceased propositus - Held, It is the self-acquired properties of the sons.

       HINDU LAW - Suit for Partition: [N. Kumar & H. Billappa, JJ] A decree for partition cannot be passed in respect of a property which is not the subject matter of suit. The plaintiff has to file a separate suit for partition and separate possession.

       HINDU LAW - Suit for Partition: [N. Kumar & H. Billappa, JJ] Fact that the subject land was described as agricultural land, though it was got converted for non-agricultural purposes and layouts is formed - Held, It does not take away the right to claim share in property.

       HINDU LAW - Suit for Partition: [N. Kumar & H. Billappa, JJ] Limitation - Limitation Act prescribes no time limit for filing a suit for partition by a co sharer or co-owner - However, under Article 110, Twelve years is the period prescribed for filing a suit by person who is excluded from a joint family property to enforce a right to a share and the starting point for limitation is when the exclusion becomes known to the plaintiff.

       KARNATAKA COURT FEES & SUITS VALUATION ACT, 1958 - Sections 35(1) & 35(2): [N. Kumar & H. Billappa, JJ] Suit for partition - Determination of Court fee - Court should look to is the averments in the plaint and not the written statement or the evidence. Mere averment in the plaint that the plaintiffs and defendants are in joint possession is sufficient, notwithstanding the fact they are living separately, even at two different places, because in law it makes no difference. In the case of a property belonging to co-parcener, joint family or co-ownership, possession of one co-parcener or a member of the joint family or a co-owner is the possession of all. To hold that the plaintiff is in joint passion on the date of the suit, it is not necessary that the plaintiff should be in actual physical possession of the whole or part of the property which is the subject matter of the suit. Even the plaintiff need not be getting a share in the income from the property. So long as the plaintiff has a right to a share, the law presumes that he is in joint possession.

        Therefore, even if the evidence adduced by the parties discloses that the plaintiff is not in physical possession of the property or any portion thereof it is of no consequence. Thus a mere averment in the plaint that the plaintiff is in joint possession with the defendant in the schedule property is sufficient to bring the valuation of the suit within the ambit of Section 35 (2) of the Karnataka Court Fees & Suits Valuation Act, 1958. The possession of one co-owner is the possession of all the co-owners. Therefore, the valuation of the suit under Section 35(2) of the Karnataka Court Fees & Suits Valuation Act, 1958 is proper.

       KARNATAKA LAND REVENUE ACT, 1964 - Section 127: [N. Kumar & H. Billappa, JJ] Mutation Entry - A Mutation Entry or Katha Change does not extinguish the title of the owner of the property. Mere change in the RTC entries or changing the khata or payment of tax, will not amount to asserting hostile title. Conversion of land, forming layouts and obtaining approval cannot constitute a hostile act or assertion of a hostile title against co-owners. At best it amounts to development of property by those in charge of same.

       LIMITATION ACT, 1963 - Article 110: [N. Kumar & H. Billappa, JJ] Applicability -Held, Article 110 requires for its application (1) the existence of a joint family (2) joint family property (3) the person excluded being one of the members of the joint family (4) the exclusion of such member from a joint family property. Thus, this Article presupposes the existence of a joint family and can be invoked only when the suit is brought to enforce the right to a share therein by a person excluded from such property. Under this Article unless a member of the joint family has been excluded from the joint family property to his own knowledge mere lapse of time will not deprive of him of his rights in the joint family property as possession of the member of the joint family is deemed in law to be possession on behalf of all members even though the other members may take no part in the management of enjoyment of the property. An intention to exclude is an essential element of the definition of exclusion in this Article. The Courts must be satisfied that there was an intention on the part of those in control and possession of the joint family property to exclude the plaintiff from his or from his share of a joint family property when he should choose his rights. The word ’Exclusion’ is not defined under the Limitation Act. It is obvious that the question whether a person has been excluded from joint family property must depend upon the facts and circumstances of each case. The exclusion contemplated by Article 110 is conscious and deliberate act amounting to denial of the right of a particular member concerned to have any benefits from the common property and there must be awareness or acknowledgement of the right and the claimant must be kept out of it. The onus under this Article is on the defendants to prove the exclusion on which they rely & also that the plaintiff knew of the same more than 12 years before suit. Once a party establishes his claim to his share in the joint family property, the onus is on the opposite party to establish exclusion to the knowledge of the members of the joint family for over 12 years.

       PRACTICE & PROCEDURE - Pleadings: [N. Kumar & H. Billappa, JJ] Moffusil pleadings - It must be liberally construed and pleadings must be construed as a whole.

       TRANSFER OF PROPERTY ACT, 1882 - Section 52: [N. Kumar & H. Billappa, JJ] Bona fide purchaser - Joint Family Property - While deciding the share to which each co-owner is entitled the question of considering the rights and interest of the alienee does not arise. That is not the scope of a preliminary decree. This has to be gone into at the stage of final decree proceedings.