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Madras High Court
NATESAN
Ameer Bibi - Appellant
Versus
Chinnammal - Respondent
Decided On : 09/20/1966
ADVERSE POSSESSION - CO-OWNERS - OUSTER - REGISTRATION OF MORTGAGE DEED - NOTICE - LIMITATION ACT, 1908, ART. 144 - TRANSFER OF PROPERTY ACT, 1882, S. 3, EXPL. 1.
Fact of the Case:
A Muslim mother and her two daughters were co-owners of certain properties. In 1928, the mother instituted a suit for partition and obtained a decree allotting her the southern portion of a house and 3.34 acres of land. The mother and her daughters remained in possession of their respective shares until 1942, when the mother sold her share in the house to the elder daughter. In 1947, the second daughter executed a simple mortgage over the land in her possession in favor of a cooperative society. The elder daughter filed a suit for partition and separate possession of her share in the house and the land. The trial court dismissed the suit, holding that there had been an oral partition in 1931 and that the second daughter had acquired title to the land by adverse possession. The lower appellate court reversed the trial court's decision, holding that there was no oral partition and that the second daughter had not acquired title to the land by adverse possession. The second daughter appealed to the High Court.
Finding of the Court:
The High Court held that the second daughter had not acquired title to the land by adverse possession. The court noted that the execution of a simple mortgage by one co-owner does not by itself bring about a change in the character of the possession of the property and that there was no overt or visible change in the property to amount to a notice of hostile intent to hold the property as sole owner. The court further noted that the second daughter had not taken any steps to exclude the elder daughter from the property or to assert her exclusive ownership of the property.
Issues: Whether the second daughter had acquired title to the land by adverse possession.
Ratio Decidendi: The court held that the second daughter had not acquired title to the land by adverse possession because she had not taken any steps to exclude the elder daughter from the property or to assert her exclusive ownership of the property. The court noted that the execution of a simple mortgage by one co-owner does not by itself bring about a change in the character of the possession of the property and that there was no overt or visible change in the property to amount to a notice of hostile intent to hold the property as sole owner.
Final Decision: The High Court allowed the appeal and remanded the case for a preliminary decree for partition of the land.
It is stated that the plaintiff had parted with her share of the land, and that she had absolutely no right or interest in the suit properties which belonged to the defendants in titles as aforestated. Exclusive and adverse possession for over 30 years of the house by the first defendant and the suit land by the second defendant is set up. The sale of a portion of the house by the first defendant in favour of the plaintiff, it is stated, is a sham transaction not entitled to pass title. The trial Court upheld the defendant' s case of partition in 1931 and their exclusive possession of the suit properties for over the statutory period and non-suited the plaintiff.
2. On appeal by the plaintiff the learned District Judge has rejected the plea of an oral partition in 1931, put forward by the defendants. On this finding as it followed that the parties were co-owners, the learned District Judge examined the question whether there was ouster of the plaintiff with reference to the suit properties. With reference to the suit property, item 1 of the plaint schedule, it was noticed that apart from the facts that the house stood registered in the name of the first defendant in the Municipal registry, that she paid the house tax and that she had continued in occupation of the property, there was nothing to establish ouster or adverse possession of the co-owner. It was, therefore, held that the plaintiff would be entitled to partition and separate possession of her 23/39th share in the house. The sale by the mother under Ex. A-2 was held as conveying to the plaintiff only the mother' s share in the house. Even the trial Court was inclined to accept the reality of the sale deed, but found against the plaintiff holding that the first defendant had exclusive possession of the house for over the statutory period, the house besides having fallen to the share of the first defendant in the oral partition. Coming to the second item, while of the view that the mere fact that the kist for the second item had throughout been paid by the second defendant would not deprive the plaintiff of her rights therein, the learned District Judge thinks that the execution of a duly registered simple mortgage in 1947 by the second defendant in favour of the Co-operative Society of Arumbanur brought about ouster.
The learned District Judge is perfectly conscious that there has been no transfer of possession as in Palania Pillai v. Ibrahim Rowther, ILR 1943 Mad 15 :
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