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1994 Supreme(Bom) 665
IN THE HIGH COURT OF BOMBAY
S.D. Pandit, J.
Gafur Bhai Chhotabhai Maniyar since decd. by his heirs.... Appellants.
Versus
Smt. Sugrabai Fakir Mohamed.... Respondents.
Second Appeal No. 297 of 1984, decided on 12-10-1994.
Advocates appeared :
A.R. Shaikh, for the appellants.
R.M. Agrawal, for the respondent.
Subject
Property Law - Adverse Possession
Act Referred
LIMITATION ACT : Art.64, Art.65
TRANSFER OF PROPERTY ACT : S.3, S.5
Headnote
See Transfer of Property Act, 1882-Sections 3 and 5.
Article 65-Adverse possession-Silent possession-Accompanied with no act which can amount to an ouster ought not to construed adverse possession.
The possession of one co-owner or co-tenant is not deemed adverse to other co-owner or co-tenant. The existence of the relation of parties does not preclude one co-tenant from establishing an adverse possession in fact as against the other co-tenants. Much stronger evidence is required to show an adverse possession held by a tenant in common than by a stronger. A co-owner will not be permitted to claim the protection of the statute of limitation, unless it clearly appears that he has repudiated the title of his co-owner, and is holding adversely to him. It must further be established that the fact of adverse holding was brought home to the co-owner, either by information to that effect given by the tenant in common asserting the adverse right, or there must be outward acts of exclusive ownership of such a nature as to give notice to the co-tenant that an adverse possession and disseisin are intended to be asserted, in other words, a silent possession, accompanied with no act which can amount to an ouster or give notice to his co-owner that his possession is adverse, ought not to be construed into an adverse possession mere possession, however exclusive or long continued, if silent, cannot give one co~ owner in possession title as against the other co-owner. The entry and possession of one co-owner or tenant in common is ordinarily deemed to be the entry and possession of all the co-owner tenants this presumption will prevail in fovour of all, until some notoripus act of ouster or adverse possession by the party so entering is brought home to the knowledge or notice of the others, when this occurs, the possession is from that period treated as adverse to the other co-onwer tenants.
The Defendant has admitted that the plaintiff had paid Grampanchayat taxes and revenue taxes of the property in question and properties in question arc entered into in the name of defendant but this fact of paying taxes by him or entering the property in his name could not also amount to acts of either hostility or ouster. The recovery of house tax or revenue tax is made from the person in occupation. Recovery is for the fiscal purpose. Payment of revenue tax or Grampanchayat tax could not amount a hostile act. It. must be mentioned here that it is not the claim of the Defendant that the properties were entered in his name though the plaintiff had disputed to enter the same in his name. It seems for the first time the act of hostility was shown by the Defendant at the time of City Survey,;
The Plaintiff has made a claim that the has got to share in the properties. Admittedly, the plaintiff of served a notice of Exhibit 44 on the Defendant and in the said notice, the plaintiff has clearly stated that besides his father C and Refendent B had younger brother by name L and the said has 2 sons Sand A. The Defendant has also clearly averred in her written statement that M had executed a will of the property in question and by the said will he has be queathed whole of the properties of her father. She has produced on record the registered will along with Exhibit-35. The said will is dated 30th August, 1929 and that the will is also registered will and the said document produced is more than 30 years old. A presumption under Section 90 would be available for admitting the said document in evidence. Unfortunately, neither the trial Court nor the First Appellant Court had considered the said will though the contentions regarding the same were raised before them.
As the said will is admissible under Section 90 of the Evidence Act. I proceed to consider the consequences of the said document by admitting in the same in evidence under Section 90 of the Evidence Act. No doubt, by the said will the deceased M bequeathed all his properties in favour of B. Under the Mohammedan Law, he cannot bequeath the properties beyond 1/3rd share of his property. Therefore, on the strength of the said will, the original Defendant B can get only 1/3rd share. B was all along in possession of property and he claimed the right to possess because of the said will it is registered document. Hence his heirs had notice of it. They had not challended the said will from 1929. This conduct of them shows that they have consented to and accepted that will. Hence the court held that will is accepted by heirs of M and therefore by will, M got 1/3rd share in the suit property. Consequently only 1/3rd share of the suit property was available for partition on the death of the M. Now in the said 2/3rd share of the properties, there were three shared viz the plaintiff father Land B. In the circumstances, the plaintiff will get only 2/9th share in the suit property. Parries being Mohamedan they have got definite share in the property left by the deceased M. Therefore, though other heirs of M are not on record, it is not necessary to dismiss the plaintiffs suit particularly in view of the fact that nobody has taken the contention either in the trial Court or First Appellate Court that the plaintiffs suit is bad for non-joinder of necessary parties.
MOHAMMEDAN LAW
Property transferred by wall-Under Mohammedan Law to extent of 1/3 share valid-Res property to be distributed per inheritance rules.
Sections 3 and 5-Limitation Act, 1963, Articles 64 and 95-Mohammedan law.
Joint owner under Mohammedan Law cannot claim adverse possession against co-owner-Repudiation of title and adverse possession require much stronger proof - Entries in survey records for collection of revenue but not proof of title.
2. The plaintiff Gafurbhai is the son of Chhotabhai Maniyar. The original defendent Baleminya Minyabhai Maniyar is real uncle of the plaintiff Gafoorbhai Chotubhai Maniyar. It is the case of the original plaintiff that his fathers father Minyabhai had left behind him the moveable properties described in schedule "A" annexed to the plaint. He died about 46 years prior to the date of the suit. After his death, the property went in possession of his uncle Baleminya Minyabhai Maniyar and the said Baleminya is not ready and willing to give him his share in the property, and therefore, he filed the suit to get partition and separate possession of his ½ share in the suit properties.
3. The respondent-original defendant had died during the pendency of the suit and his daughter Smt. Sugrabai Fakirmohamed Maniyar was brought on record as his legal heir and representative and the said Sugrabai contested the claim of the plaintiff by filing written statement at Exh. 23. She has contended that the plaintiff has no right, title and interest in the suit property. According to her, during the life time of her father, her grand-father Minyabhai Rahimbhai had effected the partition on 14th April, 1927. In the said partition, the plaintiff was given a house property at Saikheda and remaining property went to the share of Minyabhai Rahimbhai and her father Baleminya. Acording to her there is a separation between her father and the plaintiff in the year 1927 and consequently, the plaintiffs suit for partition was not tenable in law. She has further contended that Minyabhai Rahimbhai had executed will on 5th August, 1929 and by this will, he has given whole of the property to the share of her father. She has further contended that her father was in occupation and possession of the said property since 1927 and he has perfected his title by adverse possession for more than 12 years, and therefore, the plaintiffs suit is barred by law of limitation, and therefore, the suit of the plaintiffs be dismissed with costs.
4. In view of the rival pleadings of the parties, the trial Court has settled as many as 7 issues and recorded the evidence for both sides. The trial Court upheld the contention of the defendant that the original defendant Baleminya Minyabhai Maniyar had perfected his title by adverse possession for more than 12 years and consequently, the plaintiffs suit was barred by law of limitation. The trial Court, therefore, dismissed the plaintiffs suit with costs.
5. Being aggrieved by the said decision, the appellant had preferred Civil Appeal No. 380 of 1981 in the District Court, Nashik. The appellate Court concurred with the trial Court as regards the contention of the defendant that the defendant Baleminya Minyabhai Maniyar had perfected his title by adverse possession for more than 12 years, and the appellate Court, therefore, held that the suit was barred by law of limitation, and the plaintiff-appellant is not entitled to get the partition or separate possession of his share, and thus, dismissed the appeal preferred by the present appellant-original plaintiff.
6. Being aggrieved by the said decision, the appellant-original plaintiff has come in second appeal before this Court. It is not at all in dispute that the property in question i.e. the suit property described in Schedule "A" to the plaint was owned by Minyabhai Rahimbhai, the grand father of the appellant-original plaintiff as well as the respondent-original defendants daughter. It is also not in dispute that before his death the said Minyabhai Rahimbhai had effected one partition dividing the property between himself and his two sons i.e. Chotubhai and Baleminya but it is conceded by the learned advocates for both sides that under the Mohamedan law, no parti
