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TMI Blog1989 (3) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... d 5. Jayantilal also died earlier and his wife Smt. Chandrakantaben, defendant No. 6 is the appellant in Civil Appeal No. 418 of 1973. Their children are defendants No. 7 to 12. CiviI Appeal No. 520 of 1973 has been preferred by the 7th defendant, Narendra. 3. The suit by VadilaI was instituted in 1960, claiming share in the considerably large properties detailed in the Schedule to the plaint, but the present appeals are not related to any other item excepting the property described as a chawl admeasuring 7 acres and 2 gunthas of land with 115 rooms and huts, situated in the Naroda locality in Ahmedabad under Lot No. 8 of the plaint which has been referred to by the counsel for the parties before us as the chawl or the Naroda chawl. According to the case of the defendants No. 6 to 12, this property exclusively belongs to defendant No. 6 and is not liable to partition. The other defendants contested the claim of the plaintiff with respect to some other items, but so far the disputed chawl is con- cerned, they supported the plaintiffs' case that it belonged to the joint family and is liable to partition. 4. The land of Lot No. 8 was acquired by Bapalal in 1932 for a sum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of adverse possession in regard to the disputed chawl and granted a decree for partition. It was held that the defendant No. 6 remained in exclusive posses- sion of the property only since 1952 and the period was thus short of the time required for prescription of title. Deal- ing with the relief for rendition of accounts, the Court held that since the rents of the chawl from 1952 were col- lected by Jayantilal, Chandrakanta's husband and after his death by her son Narendra (defendant No. 7), Chandrakanta was liable to render accounts till the death of her husband and she along with defendant No. 7 would be jointly liable for the period thereafter. The present appeals are directed against this judgment. 5. According to the case of the defendant no. 6, her husband, Jayantilal, used to indulge in speculative business and he was, therefore, not considered a dependable person. To ensure economic stability of Chandrakanta and her chil- dren, her father-in-law, Bapalal decided to make a gift of the Naroda chawl to her. Both Bapalal and Chandrakanta appeared before the Talati of Naroda on 5.3.1946 and made statements. The original statement of Bapalal recorded by the Talati and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... named 'Sandesh' vide Ext. 254 wherein Gulabchand informed and called upon the tenants in the chawl to pay the rent to him within 3 days against receipts to be issued, failing which legal steps would be taken against them. On the very next day 'Sandesh' carried another public notice Ext. 255 issued by Chandrakanta as- serting her title and exclusive possession and repudiating the claim of Gulabchand. The tenants were warned that Gulab- chand or any other person on his behalf had no right or authority to dispute her claim. On the same day, i.e., on 15.4.1952 another public notice was published in 'Sandesh' at the instance of Gulabchand reiterating his claim and asserting that his father Bapalal (who was then alive) was the owner. It appears that no further action was taken by any of the parties. The evidence on the record shows that Bapalal had withdrawn himself from wordly affairs and was staying in Vrindavan near Mathura. The evidence led by Chandrakanta of her exclusive possession from 1952 through her husband and son till the date of the suit was accepted as reliable by the High Court. Thus there is concurrent finding of both the two courts below acceptin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of all the parties. The parties contesting the claim of the appellant contend that he was so doing on behalf of the entire family and not on behalf of Chandrakanta as claimed by her. The defendant no. 1, however, did not choose to enter the witness box nor did he produce any document which could have supported his case. The counter-foil receipts were in his possession and neither they were filed by the defendant no. 1 nor the plaintiff called for the same. Defendant no. 6 was able to examine two of the tenants--Vajesingh (D.W. 1) and Nathaji (D.W. 2). They filed a large number of receipts issued to them evidencing payment of rent. The list of documents filed by them are printed on pages 394 to 395 of the paper book and have been marked as Exts. 237 and 239. 12 receipts in the list Ext. 237 are for the period 1.6.1946 to 30.5.1949 and 7 of the list Ext. 239 are from 1.1.1947 to 30.9.1949. They support the case of Chandrakanta inasmuch as on the top of these receipts are printed the following words: CHAWL OF BAI CHANDRAKANTA THE WIFE OF MODI JAYANTILAL BAPALAL Out of them the receipts Exts. 240 to 243 were admittedly issued when the defendant no. 1 was incharge of col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minor discrepancies in her deposition, the same is consistent with the documents and the circumstances in the case and appears to be reliable. 12. While reversing the finding of the trial court that Chandrakanta was in exclusive possession of the chawl not only from 1952 onwards but even earlier since 1946, the High Court was mainly impressed by three items of the evidence, namely, i)certain account books claimed to be the books at the joint family, ii) several IncomeTax returns filed by the defendant no. 1, and iii) a document of agreement, Ext. 167. So far the Income-Tax papers are concerned, they are of the period after 1952 and it has already been stated earlier that the High Court has agreed with the trial court that since 1952 the defendant no. 6 was in adverse possession of the chawl. In view of this finding, with which we fully agree, the Income-Tax documents do not have any impact, except showing that the author of these returns was falsely including income therein which did not accrue to the family. So far the account books and the deed of agreement are concerned, it will be necessary or appreci- ating their true nature and impact on this case, to consider some more f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipts. 14. It is apparent from the evidence that nobody takes the responsibility of supporting the correctness of the entries in the account books. When they were produced in Court the plaintiff filed his objection as per his purshis, Ext. 172 (page 368 of the paper book). Many of the documents produced by the defendant no. 1 were accepted, but the account books which were serial nos. 123-75 to 123-97 of the list Ext. 123 were in express terms not admitted. The plain- tiff said that they might be exhibited, but subject to his objection. The defendant no. 6 also filed her objection as per the purshis Ext. 275. The plaintiff did not make any statement supporting the books in his examination in chief and only in reply to the question of the cross-examining lawyer of the defendant no. 1, he stated as mentioned earli- er. It is significant to note that by saying that he had written as per the instructions of the defendant no. 1 he made it clear that he could not vouchsafe for their reli- ability. In spite of this situation, the defendant no. 1 could not sommon courage to support them either personally or through any witness. No reason has been suggested at all on his behalf as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic notices were published in 'Sandesh'. If their case about their earlier possession had been true they would have produced their Income-Tax returns and the assessment orders of that period, i.e. 1946 to 1952. The family was possessed of vast proper- ties and was paying Income-Tax. The entire circumstances lead to the irresistible conclusion that after the defendant no. 1 was removed by the defendant no. 6 from the management of the disputed Naroda chawl he and the other members of the family started creating evidence in support of their false claim. We do not in the circumstances place any reliance on this deed of agreement. 16. So far the oral evidence in the case is concerned, the plaintiff, Vadilal examined himself as a witness, but was not supported by any other member of the family, al- though his brothers, Gulabchand and Kantilal, defendants 1 and 2 respectively, were alive when the case was heard in the trial court. Even his nephew, Rajnikant, defendant no. 5, son of deceased Ramanlal did not prefer to come to the witness box. The husband of the defendant no. 6, Jayantilal had died in 1956, i.e., about 3-4 years before the institu- tion of the suit. Chandrakanta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... testing her claim kept quiet and did not risk starting a litigation during his life time. Even in 1960 it was the plaintiff and not the defendant no. 1 who instituted the present suit in which he included the Naroda chawl in the schedule of properties to be partitioned. The defendant no. 1 was manag- ing the affairs of the family, but did not take any steps to dislodge the defendant no. 6 from the chawl. The impugned judgment indicates that there were serious differences between the plaintiff and the defendant no. 1 on other items of property and the main reason for the plaintiff to file the suit does not appear to be his claim to the Naroda chawl. We do not consider it necessary to reiterate the other reasons given in the trial court judgment in support of the decision in favour of the appellant, with which we agree. We, therefore, hold that the defendant no. 6 remained in exclusive adverse possession of the disputed Naroda chawl right from 1946 onwards till the suit was filed in 1960. 17. Mr. Dholakia, the learned counsel for the contesting respondents contended that since the chawl has remained in actual possession of the tenants, Bapalal or the family must be held to be in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... collecting the rent and he continued to do so even thereafter till 1952. The appellant has, however, established her case that the defendant no. 1 acted as her agent after 1946 and when he repudiated this agency in 1952 he was effectively removed from the manage- ment of the chawl. Since 1946 the tenants attorned to the defendant no. 6 and paid rent to her under printed receipts announcing her ownership, but of course through her agent the defendant no. 1. The actual physical possession of the tenants in the circumstances would enable the appellant to establish her prescriptive title. The decision in Uppalapati Veera Venkata Satyanarayanaraju and another v. Josyula Hanumayamma and another, [1963] 3 SCR 910, indicates that if a tenant makes an attornment in favour of a person who is not the true owner and follows and paying the rent to him, such a person must be held to have effective possession. The land- lord must be deemed to be in possession through his tenant is also demonstrated by another illustration. If the tenant trespasses over the neighbour's land treating it to be covered by his tenancy and remains in possession for the requisite period so as to prescribe a title th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissed on the plea of adverse possession. Lord Romil- ly, M.R., in his judgment observed that since the possession of the agent was the possession of the principal, the agent could not have made an entry as long as he was in the posi- tion of the agent or his mother, and that he could not get into possession without first resigning his position as her agent which he could have done by saying: The property is mine; I claim the rents, and I shall apply the rents for my own purposes . The agent had thus lost his title by reason of his own possession as agent of the principal. A similar situation arose in Secretary of State for India v. Krishna- moni Gupta, 29 Indian Appeals 104, a case between lessor and lessee. There the proprietors of the land in dispute, Mozum- dars were in actual physical possession but after getting a settlement from the Government in ignorance of their title. The Government contended that the possession of the Mozum- dars was, in circumstances, the possession of the Government claiming the proprietory right in the disputed land and that such possession was in exclusion and adverse to the claim of the Mozumdars to be proprietors thereof. The plea succeeded. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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