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Judgment
Chandra Reddi, J.—The Plaintiff is the Appellant. He instituted O.S. No. 76 of 1945 in the Subordinate Judge''s Court of Bezwada for possession of 400 square yards of site in Vijiawada town. The material facts may be briefly stated.
The father of Defendants 1 and 2 and his brothers had 3400 square yards of site in Vijiawada, and in the family partition, their branch got 1800 sq. yards. On 3-1-1931 the father Chandrasekhara Rao conveyed 400 out of 1800 square yards to his daughter, 1st Defendant, under Ex. P-3 in discharge of debts due to her. The Plaintiff acquired title to these 400 square yards under Ex. P-1 dated 9-5-1945 having paid consideration of Rs. 3200/-. It is the case of the Plaintiff that subsequent to the sale in his favour, he obtained possession of the property and when he was making arrangements to construct a house thereon, the 3rd Defendant, alleging to be a tenant under the 2nd Defendant, caused obstruction and necessitated him to file this suit, which has given rise to this appeal. The 1st Defendant supported the case of the Plaintiff.
The suit was resisted by the 2nd Defendant, his defence, inter alia, being that the property being an ancestral one, the father had no right to convey to his daughter, that the sale in the latter''s favour was not supported by consideration, and lastly that, in any event, he prescribed title to the property by being in continuous and uninterrupted possession adverse to the 1st Defendant.
The trial Court found that the property was the self-acquisition of Chandrasekhara Rao and as-such the conveyance in favour of the 1st Defendant was valid and even otherwise the sale evidenced by Ex. P-3 was fully supported by consideration... He also found against the 2nd Defendant on the plea of limitation reaching the conclusion that the 2nd Defendant was not in possession of this property, and that on the other hand, it was the Plaintiff''s vendor that was in enjoyment of the suit property. In the result, he dismissed (decreed?) the suit. On appeal, the District Judge came to the opposite conclusion on all the points and reversed the trial Court''s decree, and dismissed the suit.
In this appeal all the findings of the learned appellate Judge are canvassed. In support of the appeal, it is first contended by Mr. Narasaraju that tie suit site was the self-acquisition of Chandra-aekhara Rao, which is borne out by several of the documents which were overlooked by the lower appellate Court.
The first point for consideration, therefore, is whether the suit site was the self-acquired property of Chandrasekhara Rao or not. Before I refer to the relevant documents, it is useful to refer to the acquisition of the vacant site in Bezwada, whereof the suit site forms a part and how the property in question passed on to the vendor of the Plaintiff. Chandrasekhara Rao had four brothers, namely, Rajarathnam, Suryanarayana, Venicatachalam, and Buchiraju, the Litter having died even prior to the acquisition of the site. It appears from the evidence that the purchase was only for the benefit of the three brothers, Chandrasekhara Rao, Rajarathnam and Suryanarayana. It may be also mentioned that neither Venkatachalam nor the children of Butchitchiraju put forward any claim to this property.
In the partition arrangement between the brothers, 1800 square yards seem to have been got by Chandrasekhara Rao. It may also be mentioned here that in or about the year 1915, the 2nd Defendant, who was then a student in the Law College, wanted to know from his father how the site in Bezwada was acquired. His father replied that it was acquired by the eldest brother for the benefit of only three of them and the source of consideration for this acquisition was the earnings of the. three brothers. On this, 2nd Defendant gave his opinion, that it was the self-acquired property of She father. Subsequently, the father asserted in proceedings before the Tahsildar and the Municipal authorities that it was his self-acquisition.
Chandrasekhara Rao utilised the moneys of his daughter, 1st Defendant, for performing the marriage of his other daughters and his younger brother, and thus became indebted to his daughter, the 1st Defendant. When the latter pressed for repayment of the same, he executed Ex. P-3 conveying the suit property to the 1st Defendant. This narration shows that up to 1981 all parties proceeded on the footing that the site in question was treated as the self-acquisition of Chandrasekhara Rao. (His Lordship discussed the evidence and concluded:)
8-9. In this state of evidence, the finding of he learned District Judge, contrary to that of the Subordinate Judge, is unsustainable.
10 This leads me to the question, assuming that it was the joint family property in which the 2nd Defendant had also interest, whether Ex. P-3 was supported by consideration or was a gift disguised as a sale deed. At the outset it must be mentioned that the evidence of the 2nd Defendant is not that there was no consideration, for Ex. P-3. All that he stated was that he did not know whether there was any consideration for this document, while the 1st Defendant as P.W. 4 asserted that there was consideration for Ex. P-3.
There is also a recital in Ex. P-3 that a sum of Rs. 400/- belonging to the vendee under Ex. P-3 was utilised by the vendor for the marriage of his 2nd son Rangasayi Sarma and for joint family expenses and this had accumulated with interest to Rs. 1500/- and,, by way of discharge of this debt, the suit site was sold. In the face of these recitals, it was for the 2nd Defendant to have proved want of consideration for Ex. P-3. The fact that the son was not claiming under the executant of the document does not make any difference. It is for the persons who plead want of consideration to prove it, notwithstanding the fact that they are not parties to the original document and that the persons claiming it do not claim under him.
In this connection, reference may be made to a ruling of the Judicial Committee of the Privy Council in - AIR 1940 114 (Privy Council) . The position is summed up succinctly by their Lordships in the following passage:
In the opinion of their Lordships the onus of proof on the question whether there was consideration or whether the full consideration stated in the mortgage had in fact passed, is wholly on the Defendant and it is not for the Plaintiff to prove this matter affirmatively. On the other hand when the question is whether there was legal necessity for the borrowing, the onus of proving that there was is on the Plaintiff.
This was a case for enforcing a mortgage by a Hindu father against the father and his sons. While the High Court held the burden of proving the consideration had been discharged by the Plaintiff and the Defendants did not produce any satisfactory evidence to show that the money was returned to the mortgagee, the Judicial Committee expressed the opinion that the observations were the result of a misunderstanding of the position as to onus of proof in such cases. I need not multiply authorities on this question. Suffice it to say that the onus is always on the persons pleading want of consideration to prove it, although they do not claim it under the executant. The learned District Judge had not given effect to that well-established principle.
Apart from the onus of proof, on the evidence on record there could be little doubt that Ex. P-3 was fully supported by consideration. (His Lordship discussed the evidence and proceeded.
14-15. The learned Judge thought that despite the payment of taxes by the 1st Defendant, evidenced by Exs. P-8 and P-9 series in respect of the suit site, the 1st Defendant could not be said to be in possession of the property. He remarked that separate payment of tax could not prove by itself separate possession and relied on - Meyyappan Sevai Vs. Meyyappan Ambalam and Others, I do not think that decision renders any assistance in this case. There the question was whether the production of the Union receipts by the sons was sufficient to show that they were in possession of the property to the exclusion of the father in whose name the title to the property stood.
How the question arose was this. A decree was obtained against one of the Defendants for recovery of possession of an item of property, and on his death his sons were brought on record as his legal representatives. When the decree was being executed, the sons raised the plea that, as they were in exclusive possession of the property and were not made parties to the suit, the decree obtained against their father does not bind them, and substantiating their case that they were in exclusive possession of the property some union receipts were produced. It is in considering this point whether the production of the union receipts would conclusively establish that the father in whose name the property was purchased was excluded from possession by reason of these union receipts, the learned Judges observed:
Union receipts are not evidence of title and the payment of union tax does not show that the person who pays it must necessarily be in occupation.
This ease is not an authority for the proposition that payment of tax does not afford evidence of possession. Mr. Ramanarasu, the learned Counsel for the respondents, placed some reliance on the decision trying to support the judgment of the lower appellate Court. As I have already narrated, this does not really support the contention put forward on behalf of the respondents.
17 The learned Counsel for the respondents next placed reliance on a ruling of the Privy Council in - ''Nirman Singh v. Rudra Pratab Narain Singh'' AIR 1926 PC 100 (C). The decision also does not help respondents. What was stated by their Lordships in that case was that mutation proceedings are nothing more than fiscal enquiries instituted in the interests of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of Immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid. It is useful to extract the relevant passage from the judgment of their Lordships:
It is little less than a travesty of judicial proceedings to regard the two orders of the Extra Commissioner of Baharaich and Mr. M.L. Feerar, Deputy Commissioner, as judicial determinations expelling ''proprio vigore'' any individual from any proprietary right or interest he claims in Immovable property.
18 Earlier in the judgment, their Lordships remarked:
The perusal by their Lordships of the judgment of the Court of the Judicial Commissioner of Oudh, at page 482 of the record, leads their Lordships to think that its judgment is to a great degree based on the mischievous, but persistent error that the proceeding for the mutation of names is a judicial proceeding in which the title to and the proprietary rights in Immovable properties are determined.
Their Lordships also laid down that they are not evidence that the successful applicant was in possession as sole legal owner in a proprietary sense, to the exclusion, for example, of all the claims of the other members of the family as co-owners.
There are some observations in the judgment which far from supporting the contentions of the respondents establish that the mutation proceedings afford evidence of possession of the person in whose name the change was effected. The following passage is apposite:
It appears to us that these proceedings afford clear evidence that Lal Bahadur Singh took possession of the estate as property to which he was entitled to exclusive ownership, and not on behalf of the younger brothers. There can be no doubt he had held physical possession in the sense that he was able to deal with the proceeds and to exclude all others, and there can be no doubt that he showed a determination to exercise that physical power on his own behalf.
The observations of a Bench of the Madras High Court in - ''Vannia Kone v. Vannichi Animal AIR 1928 Mad 299 (D) are also pertinent in this context. At page 305 of the judgment Kumaraswami Sastri J. remarks:
I may also state that no pattas or other documents are produced to show the enjoyment of property by agnates to the exclusion of widows. Though pattas may not be evidence of title, they are certainly evidence as to possession, as the Revenue authorities issue pattas to those in possession. There are also kist receipts which would show who paid the kist, but no such receipts have been produced in any instance.
Thus, decided cases clearly show that payment of tax affords evidence of possession. Indisputably, 1st Defendant was paying the tax in respect of the suit site and the evidence on record establishes beyond doubt that the 2nd Defendant and his brothers paid taxes only in respect of the share allotted to each of them, viz., 466 2/3 square yards.
There is also another circumstance which also points to the same conclusion. When the Cooperative department wanted to realise money due from the family of Chandrasekara Rao to the department, they attached the 1400 square yards as belonging to the family and excluded 400 square yards.
No doubt, this is not a conclusive circumstance, but it gives an indication that it was thought that the 2nd Defendant''s family had title to and possession of only 1400 Sq. Yds. of the site excluding 400 square yards. Even granting that the possession of the 1st Defendant, the predecessor-in-title of the Plaintiff, has not been established and that 2nd Defendant and his brothers were '' in possession of the property, that is not sufficient to disallow the Plaintiff''s claim for possession, unless there is any evidence of ouster.
The Plaintiff was in the position of a co-owner and it is only when it is evident that the co-owner in possession intended to exclude others from possession amounting to ouster of others, that his possession will be exclusive. In this case, in spite of Ex. D-4 it is clear from Exs. P-12,and P-13 that P.W. 3 did not pay any rent either to the 2nd Defendant or his younger brother and it is only '' in 1934, as is seen from Ex. D-9, that he seems to have paid rent to the 2nd Defendant and his brother. Even Ex. D-9 does not show that rent was paid to the two brothers in respect of the whole 1800 square yards.
Assuming this in favour of the 2nd Defendant it was only on 17-2-1934 within 12 years of the suit, that rent was paid to the 2nd Defendant and his brother in respect of the suit site. At the most, it could be said that there was ouster of the 1st Defendant only cm this date. For all these reasons, I must hold that the conclusion of the District Judge that neither the Plaintiff nor his predecessor-in-interest was in possession within 12 years before suit is erroneous and contrary to the material on record.
It follows that his finding even on the question of possession cannot be accepted. In these circumstances, I hold that the Plaintiff has proved his title to the property and was in possession thereof within the statutory period and is entitled to succeed. The result is the appeal is allowed and the decree of the trial Court restored with costs throughout. No leave.