1969 Supreme(MP) 60

HIGH COURT OF MADHYA PRADESH
T. P. NAIK, J.
Vidya Bai & another
Vs.
Narayandas
S. A. No. 580 of 1967 against appellate decree passed by Shri C. P. Sharma, District Judge, Seoni, reversing the decree passed by Shri C. K. Tandon, I Civil Judge, Class II, Seoni;
Decided on : 2-5-1969

Headnote:(1) Co-owners-legal relation between co-owners-one co-owner when an agent of other-position of trustee when created -title and possession of co-owners -possession of one co-owner when adverse to others-right of enjoyment of common property.

       It is well settled that a co-owner merely as a co-owner is not an agent for the other co-owners. But he may become an agent for the others by a contract, express or implied.

       It is also well settled that a co-owner is not a trustee of other co-owners, under the Indian Trusts Act, so that he does not hold any fiduciary position as regards the other co-owners.

       But, where the provisions of section 90 or 94 of the Indian Trusts Act are attracted an obligation in the nature of a trust is created.

       [Paras 11 & 12]

       Co-owners hold property by several and distinct titles but by unity of possession. Actual physical possession is not indispensible, the requirement being of the right to possession of the common property. [Para 13]

       As a corrolary to the aforesaid right, any co-owner, in the absence of any agreement to the contrary, has a right to enter upon the common property and take possession of the whole, subject to the equal right of the other co-owners with whose right of possession he has no right to interfere. [Para 14]

       A co-owner's possession of the common property is not prima facie adverse against another co-owner, because such possession is considered as one on behalf of all the co-owners, except when there is clear proof- of ouster or assertion of a hostile title.

       [Para 15]

       As each co-owner is entitled to possess every bit of the common property and is not restricted to enjoyment according to his share so long as he does not deny to the other co-owners an equal right of possession and enjoyment of the common property, he is under no obligation either to account for or to pay compensation to such co-sharers. The matter is different if there is objection from the other co-sharers and no amicable arrangement is arrived at. That would equally be the case where there is ouster or denial of the title of the other co-owners and an assertion of a hostile title in himself. [Para 16]

       (2) Co-owners-remedy against each other-ouster-denial of possession -remedies-suit for accounts when lies-denial of possession-how may be established-remedies in case of cultivated lands-fructus industriales.

       If there is ouster i.e., denial of title, the plaintiff co-sharer ought to sue for joint possession and mesne profits or for declaration of title as a co-owner, partition and mesne profits. If there is denial of possession without denial of title or right to possession, the plaintiff may sue for partition and compensation. A simple suit for accounts would not lie, when there is neither ouster nor denial of the right to possession. What is ouster would be a question to be determined on the facts of each case. When the right to possession as a co-owner is not denied but the right to actual physical possession is denied, the aggrieved co-owner may sue for accounts of the profits actually accrued due and appropriated by the co-owner in exclusive possession to his own use. [Para 24]

       In order to establish denial of actual physical possession, the plaintiff must prove that he had actually applied for and attempted to take possession but was resisted by the defendant. The mere fact that the defendant without being asked, did not give him his proportion of the share of profits or refused to share the profits earned or produce cultivated by him is not enough, except in cases where the defendant is in receipt from third persons of rents and profits in excess of his legitimate share. Where the defendant co-owner is himself in exclusive possession of the common property without denying the plaintiff's title to it, without objection from the other co-owners or under an arrangement with them, he is not, in the absence of any agreement to the contrary, to share with the other co-owners the profits of his labour and investment, except in the case of waste or destruction. Thus, in respect of exclusive residence in the common house the co-owner in such exclusive possession is not liable to account to the other co-owners because, being entitled to possession of every bit of the house, his possession is not wrongful vis-a-vis the other co-owners. The remedy of the other co-owners is to arrive at an arrangement by agreement of the parties or to seek a partition. [Para 25]

       In the case of cultivable land, the co-owner in actual physical possession in proportion to or in excess of his share, without objection from the other co-owners, is not liable to account to them for the profitable use which he makes of the land by the expenditure of his labour and money. But, if the co owner cultivates common land in excess of his share, in spite of protests from the other co-owners, he is liable to account to them for the actual profits in excess of his share. 'The principle is the same in the case ail fructus industriales. [Para 26]

       In case of fructus innaturales, such as grass, which has grown without labour, or fruits of trees like mango, tamarind, etc. which require no attention in terms of labour or expenses, the co-owner appropriating all the produce to himself without objection from the other co-owners is not liable to the other co-owners to account, except in case where the produce has been sold to third persons and the defendant has received profits in respect of such produce in acess of his share. [Para 27]

       (3) Civil P.C., 1908 - O. 7, R. 7-relief- must be confined to matters existing at the date of the suit-exceptions to the rule-subsequent events when may be considered.

       Relief claimed in a suit must be confined to matter existing at the date when the suit was instituted. To this general rule exceptions have been recognised and one such exception is that a Court may take notice of events which have happened since the institution of the suit and afford relief to the parties on the basis of altered conditions. The doctrine is of exceptional character and is applied in cases where it is shown that the original relief claimed has, by reason of subsequent change of circumstances become inappropriate, or, that it is necessary to base the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties. 20 Cal. L.J. 107, 72 IA 114, 11 CWN 732, 35 MPLC 42, ILR 1953 Nag. 702 (FB) relied on. [Paras 30 & 31]

       (4) Civil P. C., 1908 - O. 6, R. 17- power to amend pleadings-'real controversy' test must be satisfied -claim on distinct cause of action arising subsequent to suit-when may be introduced by amendment- compensation for years subsequent to the suit- cannot be claimed by amendment.

       The 'real controversy' test is the basic test which governs the Courts' unchartered powers of amendment of the pleadings, no amendment should be allowed when the amendment does not satisfy this cardinal test. It is on account of this principle that Courts do not permit amendments substituting new cause of action in place of the cause of action on which the suit was filed nor the addition of a new and distinct cause of action which was not available to the plaintiff at the commencement of the suit. AIR 1953 Cal. 15 relied on. [Para 35 & 36]

       Where the suit related to the claim of compensation for five years prior to the suit, and the claim for the five years subsequent to the filing of the suit was never in controversy between the parties on the basis of the suit as originally filed, nor was this later claim germane in any of the reliefs claimed in the suit, nor could this claim be said to be an additional relief in respect of the cause of action, which was available to the plaintiff when the suit was instituted, the claim for compensation for five years subsequent to the suit could not be added to the plaint by an amendment. Case-law discussed. AIR 1960 Cal. 278 dissented from. [Paras 39, 40 & 41]

       (5) Precedents-every case is an authority for what it actually decides. [Para 23]