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TMI Blog2014 (8) TMI 1220X X X X Extracts X X X X X X X X Extracts X X X X ..... rily and is sought to be recognised by the doctrine of adverse possession as having been alienated involuntarily, by default and inaction on the part of the rightful claimant, who knows actually or constructively of the wrongful acts of the competitor and yet sits idle. Such inaction or default in taking care of one s own rights over property is also capable of being called a manner of dealing with one s property which results in extinguishing one s title in property and vesting the same in the wrongdoer in possession of property and thus amounts to transfer of immovable property in the wider sense assignable in the context of social welfare legislation enacted with the object of protecting a weaker section. The High Court held that the daughters of Valli alone would be entitled to the suit properties but the Trial Court has held on the basis of evidence on record that they were excluded from possession by their brothers for more than 50 years from the date of death of Valli. Hence, their rights, if any, are lost by adverse possession and by ouster and their claim is barred by limitation. In the absence of averments in the plaint regarding custom followed in the marriag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w for the reason that they are neither cultivating tenants nor deemed tenants of the suit schedule properties as there is no evidence produced by them in this regard in the Original Suit. Therefore, the purchase certificates which were obtained by their deceased fathers from the Land Tribunal have no relevance to the facts of the case. Appeal allowed. - CIVIL APPEAL NO.352 OF 2009 - - - Dated:- 28-8-2014 - MISRA, DIPAK AND GOPALA GOWDA, V., JJ. This appeal is filed by the appellants against the final judgment and order dated 02.02.2005 passed in A.S. No. 678 of 1993(C) by the High Court of Kerala at Ernakulam, whereby the High Court has set aside the judgment and decree passed in the Original Suit No. 123 of 1990 on 26.11.1992 by the Subordinate Court Judge, Tirur, holding that the judgment and decree under the appeal cannot be sustained and passed a preliminary decree directing the division of the suit schedule properties. 2. The relevant facts, in brief, are stated hereunder. For the sake of brevity and convenience the parties are referred to as per the rank assigned to them in the original suit proceedings. 3. The defendant Nos. 1 to 9 in the Court of the Subord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by her in the original suit. 7. On the other hand, it is stated by defendant Nos. 1 to 9 that after the death of Valli, the suit schedule properties were partitioned between Kunhan and Ayyappan by a registered partition deed of the year 1953, as per Ex-B1, considering that they are co-owners of the said properties. During their life time, they were in continuous, uninterrupted, open and hostile possession of the suit schedule properties from 1953 onwards against the entire world including the plaintiffs and defendant Nos. 10 to 17 and after their death, their children, defendant Nos. 1 to 9 have been in continuous uninterrupted possession of the suit schedule properties. 8. It is stated by the defendant Nos. 1 to 9 that they have constructed building and made permanent valuable improvements in the suit schedule properties. The said defendants prayed for the value of improvements made upon the suit schedule properties which is valued around ₹ 3,50,000/- in the event, if a decree of partition of the properties is passed, along with the entitlement of their share on equity basis. It is also stated by them that the rights of the plaintiffs, if any, on the suit schedule pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeding. 13. The Trial Court on the basis of pleadings and on appreciation of both oral and documentary evidence on record has answered the contentious issues against the plaintiffs and in favour of the defendant Nos. 1 to 9 and consequently, held that the plaintiffs and defendant Nos. 10 to 17 are not entitled for partition vide its judgment and decree. Consequently, the suit was dismissed with no costs. 14. Aggrieved by the judgment and decree of the Trial Court, the plaintiffs filed Appeal Suit No. 678 of 1993(C) before the High Court of Kerala. During the pendency of the appeal, the plaintiff No. 1 died and additional appellant Nos. 5 to 16 were impleaded as the legal representatives of the plaintiff No. 1 vide order dated 10.8.2004 passed in C.M. Application No. 895, I.A. Nos. 2202, 2203 and 2004. The plaintiffs have questioned the correctness of the findings recorded on the contentious issues framed by the Trial Court urging various legal contentions inter alia contending that Valli died long before the commencement of the Hindu Succession Act, 1956 and also stated that the suit schedule properties in question are Streedhana properties and the Trial Court has misd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by surprise. Valli died at Ramanattukara in the erstwhile Malabar area, therefore, the decisions of the Madras High Court alone are binding between the parties in relation to the suit schedule properties, hence the decisions of the erstwhile Travancore Cochin cannot be applied to the fact situation of the case on hand. Further, it is stated that a custom modifying the pristine Hindu Law entitles the married daughters to their share in the properties of their deceased mother which has also been judicially recognized. No doubt, no such custom has been pleaded in the plaint by the plaintiffs. Even then, if it is the Hindu Mithakshara Law which governs the parties, then the plaintiff No. 1 who was the surviving daughter of Valli and defendant Nos. 10 to 17 who are the children of Ammalukutty, the other daughter of deceased Valli, cannot get any share over the properties. 17. Further, the alternative submission made on behalf of plaintiffs that since the suit schedule properties were acquired by Valli as per Ex.-A1 Panayam Theeradharam during coverture, therefore, the same could be treated as her Streedhana properties of deceased Valli as opined by N.R. Raghavachariyar on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who are his heirs. On the other hand, from the evidence of DW-2, it could be certainly inferred that Apputty died after the death of his mother. 19. It is further observed by the High Court in the impugned judgment that with reference to the findings recorded in the judgment of the Trial Court that even assuming that the plaintiffs and defendant Nos. 10 to 17 were co-owners, the open and exclusive possession of the suit schedule properties by the contesting defendant Nos. 1 to 9 to their hostile interest is a strong circumstance to draw an inference of their ouster from the suit schedule properties and findings recorded in this regard by the Trial Court by accepting their case on the basis of facts pleaded and evidence on record and the decisions of this Court in Amrendra Pratap Singh v. Tej Bahadur Prajapati Ors.[(2004) 10 SCC 65] is not only erroneous in law but also suffer from error in law and therefore it has set aside the finding and reasons recorded in the impugned judgment. 20. The contentions urged on behalf of the contesting defendant Nos. 1 to 9 contending that the Trial Court being a fact finding court, on proper appreciation of pleadings, documentary and oral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the marriage of the plaintiff No. 1 and Ammalukutty took place in the Kudivaippu form and not Sambandam form. 24. The further contention urged on behalf of the defendant Nos. 1 to 9 was that the High Court erred by not considering the fact that plaintiffs have not established all the ingredients necessary for the type of marriage celebrated by the daughters of deceased Valli by producing cogent evidence to get a decree of partition of the suit schedule properties and the burden was on them to plead and establish the form of marriage of the daughters. 25. It is further contended by the learned counsel on behalf of defendant Nos. 1 to 9 that the High Court has erred in exercising its jurisdiction by reversing the findings of fact recorded by the Trial Court on the relevant issues on the basis of the pleadings and evidence on record. Therefore, the findings recorded by the High Court in the judgment on the contentious points that arose for its consideration are not only erroneous in law but also suffer from error in law. 26. It is further contended that the Hindu Mitakshara law applies to the family of Valli in the absence of any proven customs practiced in the community ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiff Nos. 2 to 4 are entitled for their share in the suit properties? What relief the parties are entitled to? 29. To answer the aforesaid points, it would be convenient for us to give the genealogy of Valli and her family for proper understanding of the claims of the parties, which is extracted as below :- Answer to Point Nos. 1 2 30. The point Nos. 1 2 are to be answered against the plaintiff No. 1 and defendant Nos. 10 to 17 by assigning the following reasons. The suit schedule properties are Streedhana properties of deceased Valli, as per the documentary evidence on record Ex.-A1 (Panayam Theeradharam) as opined by N.R. Raghavachariyar on Hindu Law, under Section 468, Chapter XIII, at Page 530 of the 7th Edn. of his Commentary., which is extracted below :- S.468.Definition of Stridhana- During the voluminous discussions ancient and modern, which have arisen with regard to the separate property of woman under Hindu Law, its qualities, its kinds and its line of descent, the question has constantly been found in the forefront, what is Stridhana? Vijnaneswara s expanded definition of Stridhana in the Mitakshara, was accepted by the Benares(Viramitroday ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the pleadings and evidence on record that the properties of Valli are Streedhana properties in the absence of any other concrete documentary proof produced by defendant Nos. 1 to 9 before the Trial Court which would have generally entitled her daughters to have exclusive right over the suit schedule properties. Having said so, the learned Judge of the High Court did not record a finding that the Streedhana properties of Valli exclusively belong to her daughters and they have been out of possession from the said properties for more than 50 years which is evident from Exs.-B1 to B6. The undisputed fact is that the original suit was filed by the plaintiffs for partition in the year 1990. The concurrent finding recorded by the courts below is that the year of death of Valli, the mother of the plaintiff No. 1 and grandmother of plaintiff Nos. 2 to 4, was 1942. Undisputedly, the possession of the suit schedule properties has been with the deceased sons namely, Kunhan and Ayyappan during their life and thereafter defendant Nos. 1 to 9 for more than 50 years, therefore, their plea that they have perfected their title to the suit schedule properties by adverse possession as they are s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eath they have been in possession and enjoyment of the suit schedule properties exclusively as the owners. Therefore, they have perfected their title to the suit schedule properties by adverse possession and ouster of the plaintiff No. 1 and defendant Nos. 10 to 17. Hence, the High Court should not have interfered with the finding of fact recorded by the Trial Court on the relevant contentious issue No. 4 based on legal evidence on record, the said finding has been erroneously set aside by the High Court in exercise of its appellate jurisdiction and therefore, the impugned judgment is liable to be set aside. 34. The learned counsel for the defendant Nos. 1 to 9 have rightly relied upon the judgment of this Court in support of their contention in the case of Amrendra Pratap Singh v. Tej Bahadur Prajapati (2004) 10 SCC 65 wherein this Court held as under :- What is adverse possession? 22. Every possession is not, in law, adverse possession. Under Article 65 of the Limitation Act, 1963, a suit for possession of immovable property or any interest therein based on title can be instituted within a period of twelve years calculated from the date when the possession of the defend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fault in taking care of one s own rights over property is also capable of being called a manner of dealing with one s property which results in extinguishing one s title in property and vesting the same in the wrongdoer in possession of property and thus amounts to transfer of immovable property in the wider sense assignable in the context of social welfare legislation enacted with the object of protecting a weaker section. Further, he relied upon the judgment in the case of Sunder Das v. Gajananrao[(1997) 9 SCC 701], wherein it was held by this Court as under :- The evidence of Defendant 1 when read in its correct perspective showed that he was informed by one Ganpati that the property belonged to King and the King of Datia had given it to the ancestor of the plaintiffs [pic]Mukundrao to stay therein and accordingly he thought that Defendant 6 would not be having title to the property. It must be kept in view that the plaintiffs ancestor Mukundrao had died 60 years prior to the suit. Therefore, even if originally the property might have belonged to the King it was being occupied by the plaintiffs ancestor Mukundrao and his descendants since generations as owners thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which applies to the said principle regarding the valid custom prevalent in the community of Valli modifying pristine Hindu Law which entitles the married daughters share in the properties of their mother s Streedhana properties. The prevalence of such approved custom of Kudivaippu in the community is accepted by the defendant Nos. 1 to 9, as they have taken that stand in their written statement contending that the daughters of deceased Valli were given Streedhana money at the time of their marriage and therefore, they are not entitled for share in the suit schedule properties by way of partition which is an erroneous and untenable contention for want of legal evidence produced by them on record before the Trial Court. In view of the pleadings and evidences of defendant Nos. 1 to 9 on record regarding custom of marriage prevalent and practiced in the family of plaintiff No. 1 and mother of defendant Nos. 10 to 17, the High Court recorded the finding of fact holding that the marriage of the two daughters of Valli were not celebrated in the Kudivaippu form and therefore, it has rightly held that the plaintiff No.1 and defendant Nos. 10 to 17 are entitled to their share in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey have failed to prove the same. However, the Trial Court has recorded its finding on the contentious issue No. 4 in favour of the defendant Nos. 1 to 9 on the basis of undisputed facts and evidence on record, it has rightly held that the above defendants have perfected their title to the suit schedule properties by way of adverse possession by ouster of the plaintiff No. 1 and defendant Nos. 10 to 17 from the said properties, which finding of fact is accepted by us by recording our own reasons in this judgment. Therefore, we have to hold that the daughters of Valli are excluded from their rights upon the suit schedule properties of Valli and are not entitled for the share as claimed by them in their suit. Accordingly, we answer the point No. 3 against the plaintiff No.1 and defendant Nos. 10 to 17. Answer to point No. 4 40. This point is also required to be answered in favour of defendant Nos. 1 to 9 for the following reasons:- It is an undisputed fact that after the death of Valli partition of the suit schedule properties was made between the fathers of the defendant Nos. 1 to 9, they have been in continuous possession of their respective shares in terms of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry dated 17.12.1969 and came into force w.e.f. 01.01.1970. Section 4A of the said Kerala Land Reforms Act speaks of certain mortgagees and lessees of mortgagees to be deemed tenants. The aforesaid provisions of this Act have no application, to the claim of the deceased fathers of the defendant Nos. 1 to 9, as they could not have been deemed tenants under their deceased mother as the Act came into force from 01.04.1964 and certain other provisions of Section 4A of the Kerala Land Reforms Act were substituted w.e.f. 17.12.1969 and came into force w.e.f. 01.01.1970. Therefore, the aforesaid provisions have no application to the claim of the deceased fathers of defendant Nos. 1 to 9 in respect of the suit schedule properties. Therefore, the defendant Nos. 1 to 9 placing reliance upon the purchase certificates Exs.-B5 and B6 have no relevance to the fact situation. Therefore, the plea urged by them in this regard is wholly untenable in law for the reason that they are neither cultivating tenants nor deemed tenants of the suit schedule properties as there is no evidence produced by them in this regard in the Original Suit. Therefore, the purchase certificates which were obtained by their ..... X X X X Extracts X X X X X X X X Extracts X X X X
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