Venkatarama Iyer vs Subramania Sastry and Others

This appeal is by the 117th defendant and it is opposed mainly by the 22nd defendant. The hearing has taken a considerable time, but the issues, now that the facts are ascertained, are clear.

The suit was brought for the partition of the Samudayam land of a village in the Tanjore District, the Samudayam tenure, as explained in the District Manual, being a holding in common by the village community known as the mirasidars. It is not disputed that the land, of which partition is claimed, was and is Samudayam land; nor has any '' serious attempt been made to dispute here that it has never been divided and that it is now partible. On this point, it may be observed that the 22nd defendant no doubt set up a previous partition in his written statement; but it is clear that the matter is res judicata, against him, in consequence of Exs. T. A and R. the judgments in O.S. No. 367 of 1900. The lower appellate Court held that the parties before it had established their right to a certain number of shares in the Samudayam, of 30-59/64 shares, and, in a portion of its judgment which has formed the principal subject of discussion, it allowed the 22nd Defendant to retain as his share the plots in item No. 1., of which he is already in possession, item No. 1 being 4 1/2 velis in extent and the most valuable plot of the property in dispute and consisting in padugai land. The question argued first has accordingly been whether the 22nd defendant has a right to retain, in a division, the plots in item No. 1, of which he is in possession.

Prima facie, of course, the finding, which has already been referred to, in favour of the partible character of the land, entails that no share has been localized so far, since localization could only take place, on the ascertainment of shares on partition. The lower appellate Court has however supported the claim of the 22nd defendant in two ways: firstly, on the ground that he has prescribed for the ownership of the plots he is in possession of and secondly, on certain equitable considerations. It has no doubt not distinguished these two grounds very carefully in its judgment but we think that its decision is based on both of them.

Before dealing with the law, regarding the question of prescription, we may observe that something has been said as to the Karaiyeedu tenure of the village. This tenure was not referred to at all in the pleadings and it appears to hare attracted very little, if any, attention before the District Munsif. More, however, was said of it in the lower appellate Court, though it is not clear that any finding was reached, as to the existence in the village of the tenure. The tenure we may observe, as the District Manual defines it, consists in a system of shifting severalty of ownership, the village lands being re-distributed among the mirasidars at intervals. It is clear that when a suit is brought for the partition of the village lands and for change to individual ownership, it cannot affect directly the sustainability of such a suit, whether the tenure of the village is ownership by the community, that is ordinary Samudayam tenure, or whether it is the shifting severalty of the ownership, of which the Karaiyeedu tenure consists; and accordingly the only importance for our present purpose of the allegations as to Karaiyeedu is that they may, if they are established, afford an explanation of the origin and character of the separate possession, on which the 22ad defendant would establish his prescription.

To turn to the direct consideration of that plea, we find the District Munsif dealing at some length with the 22nd Defendant''s title to the different portions of item No. 1 and with his enjoyment; but the lower appellate Court has not considered the evidence relating to that part of the case in any detail. It has contented itself with a general statement that it thinks that the prescription is made out. Even if the plea of prescription could be accepted at once, with direct reference to the evidence as to the 22nd Defendant''s possession, the lower appellate Court''s consideration of that evidence would be inadequate.

The next material objection to the lower appellate Court''s judgment in that it has dealt with the 22nd Defendant''s possession on the basis that it was the possession of a stranger to the co-tenancy, to which the other parties at least belong. It has done this, because there are in various places in the pleadings and evidence general statements that the 22nd Defendant is not a mirasidar. The exact meaning of such statements is not clear. It is no doubt shown that the 22nd Defendant does not claim his mirasi right, in virtue of any lineal descent from a previous holder of mirasi right; but that is probably the case with very few of the mirasidars of the present day. Certainly it is not the case with all the others, who are accepted by the lower appellate Court, as co-sharers in the suit village. The 22nd defendant however acquired his mirasi right, in virtue of his acquisition of particular properties, which were in fact part of the Samudayam, but are not described with regard to shares in it. It is of course conceivable that such acquisitions of Samudayam properties may import an implied denial that they were part of the common property; but it will be for the lower appellate Court to consider whether that is so, or whether the terms of the sale-deeds simply correspond with the current methods of expression, regarding the common property and are consistent with the acquisition of the lands specified in thorn as parts of the common property and with the 22nd defendant''s acquisition of the character of a co-owner or mirasidar.

The importance of this is that a very different measure of proof of prescription will be required, according as the 22nd defendant claims to have prescribed as a strange to the co-tenancy, or as a mirasidar or co-tenant. It is possible, although we express no final opinion on the point, that the facts found proved by the District Munsif might be sufficient to justify a plea of prescription by a stranger; bat, if prescription by a mirasidar or co-tenant were in question, it might then be necessary for us to consider, and the lower appellate Court will have to consider, whether those facts included such evidence of exclusion of other co-sharers from possession, or of assertion of an exclusive title, as would be necessary under the strict mile, to which co-owners are subject. We must accordingly call on the Additional Subordinate Judge, Tanjore, to whom the jurisdiction of the lower appellate Court has now been transferred, to submit findings on the following issues:

Firstly--Has the 22nd defendant acquired the character of a mirasidar, in virtue of the purchases relied upon by him, or is he for the purpose of his plea of prescription to be regarded as not one of the co-tenants against whom he is prescribing?

Secondly.--Whether the 22nd defendant has completed any prescription for ownership appropriate to the character, which he is found to possess?

AS we are calling for a finding, with reference to adverse possession, we do not at the stage deal with the lower appellate Court''s alternative ground of decision, viz., the claim of the 22nd Defendant, on equitable considerations. For the moment, we would only observe that such considerations will be relevant, in connection with the distribution of the shares, as ascertained in a proper scheme, after the preliminary decree has been passed and in order to and before the passing of the final decree. We shall, if necessary, point out in eventually remanding the case for the passing of a final decree one or two respects, in which we think that the lower appellate Court''s statement of law is open to question. When findings on remand are received we shall also deal with the claim to reduction of the 22nd defendant''s share, on the ground that no reduction from it has already been made, to correspond with the increases allowed to the shares of other parties.

At this stage, the only remaining matters for consideration are certain claims relating to particular items or cases of particular parties, which have been put forward in the Appeal and the Memorandum of Cross-objections. In the appeal, there is firstly a claim based on the words alleged to be a proper interpretation of Exs. 83 and 49. Before us, that claim has not been disputed and we must therefore modify the Lower Appellate Court''s judgment by adding a 1/3rd to the 1-15/.16 share already allowed by the Subordinate Judge to the 117th Defendant.

Next, the 22nd Defendant, in his Memorandum of Cross-objections, has claimed an addition of 1/32 to his share, on the ground that Ex. N. has been misread. This is not disputed. His share will be increased by 1/32.

The other ground in the Memorandum which is argued relates to the share of the 6th Plaintiff. This has eventually not been pressed before us.

The other claim made by the 117th Defendant is that the 3/8th share awarded by the Lower Appellate Court to the 65th Defendant should have been deducted from the shara given to the 22nd Defendant. The only facts which it is necessary to mention at this stage are that the 65th Defendant''s title is based on a sale-deed, Ex. 103, to his father by Namasivaya Pillai, in 1875, whereas the 22nd Defendant''s title is based on the sale-deed, Ex. 150(6), by Namasivaya, in 1883. Prima facie, the sale-deed of 1875 would take precedence over that of 1883, though it is of course possible that Namasivaya Pillai may have had properties, sufficient to satisfy the claims of both the purchasers. The Lower Appellate Court has not dealt with this aspect of the case and has not mentioned the dates of the two sale-deeds, and in the absence of such mention, we cannot consider its discussion satisfactory.

There are no doubt arguments which Mr. Krishnaswami Ayyar on behalf of the 22nd Defendant has placed before us, and in particular the plea of res judicata, which may be decisive; but in the absence of any consideration given to the relative dates of the sale-deeds, on which the titles rest, we cannot accept the Lower Appellate Court''s judgment regarding this matter. We must therefore ask the Lower Appellate Court to submit a finding on the issue:

What are the shares which the 22nd and the 65th defendants are respectively entitled to, in respect of the purchase from Namasivaya Pillai?

The findings are to be submitted on the evidence already on record and are due in this Court, on or before the 30th August, and seven days will be allowed for objections.

[The Additional Subordinate Judge of Tanjore submitted that (1) the 22nd defendant acquired the character of a co-owner or mirasidar, in virtue of the purchase relied on by him; (2) that he has, as such co-owner, acquired a title by prescription and (3) that the 65th and 22nd defendants were respectively entitled to 3/8 Pangus and 113/16 Pangus respectively.]

JUDGMENT

The finding of the lower Appellate Court on the first question remanded, that the 22nd Defendant acquired the character of a mirasidar or co-owner, in virtue of the purchase relied on by him, must be accepted, since no objection is taken to it. To the correctness of the argument based on it by the Lower Appellate Court further reference will be made.

The second finding of the Lower Appellate Court is that the 22nd defendant has completed a prescription for ownership appropriate to his legal character; and this cannot be accepted, if only because it is based on five considerations, of which three possess no substance. For the issue by the melwaramdars of pattas to the 22nd Defendant alone, the making of improvements by him on the land in his occupation and the language used by the 1st and 2nd defendants in their written statement as to their possession of land, with which he is not concerned, afford no evidence of the nature of his enjoyment, or that it has been adverse to his co-owners, since the latter would not be bound by the conduct of the melwaramdars, or of the 1st and 2nd defendants and had no reason for objecting to improvements, which would pass with the land and, if it ever had to be surrendered, it would have to be surrendered with it. The two other grounds, on which this finding is based, the attitude of the 22nd defendant''s father in his litigations with all or some of the mirasidars and that of the 22nd defendant and his vendor, Velayudha Chetti, to them in respect of part of item No. 1 of the suit property, no doubt might legitimately have been considered by the Lower Appellate Court. But they are not conclusive; and, although it could have reached its finding with regard to them alone, there is nothing to show that it would have done so. For these reasons, therefore, the finding cannot be accepted.

In remanding the case a second time, for a finding in the light of the foregoing, we take the opportunity to deal with two other points, on which argument has been based. Firstly, the Lower Appellate Court has observed that the documents evidencing enjoyment under Karaiyeedu tenure range down to 1894 and its further statements suggest that it held in favour of the cessation of that tenure in that year. But firstly, the documents, in fact, range down to only 1884 and next, it is a question, whether tenure ceased with them or later; for it does not follow that it ceased, when they were executed. The date of its cessation is clearly most important, since, if the tenure was in force, at the date of the 22nd defendant''s entry or his vendees'', that fact would be material to the decision as to the character of his possession, as supporting the plea of prescription.

Lastly, it is urged that the special Rule as to the evidence, necessary to establish prescription between co-owners is not applicable to the 22nd defendant, who is not a co-owner, but only a transferee of some co-owners'' interests and that it is unnecessary for such a transferee to establish the exclusion, or denial of title to the knowledge of his opponents, which would, as between co-owners, ordinarily be essential. This is supported by reference to Bhavrao v. Rakhmin [1899] 23 Bom. 137 and the conclusion that the possession of a purchaser from a co-sharer of only the qualified right to an assignment of the land in his vendor''s possession, if that be possible at a partition, will prescribe in virtue of his bare possession:

Adverse possession depending on the claim or title under which the possessor holds and not upon a consideration of the question in whom the true ownership is vested, whether in a single person or in many jointly.

And the opinion was expressed later, that it did not matter whether the transferees in possession, who were before the Court, knew of the property being held in co-ownership or not, although the fact that they were transferees had been regarded in the judgment, as important, with reference to their knowledge of their real rights. This is no doubt stated generally, but it is possible that it was influenced by the local considerations, which also are referred to. Certainly, it goes beyond the earlier authority relied on in Ganesh v. Ramchandra [1896] 20 Bom. 557, since there the entry into possession was under a purchase in a Court sale, of which the other co-sharers were presumably aware and the impossibility of harmonious relations between the parties is expressly referred to. Bhavrao v. Rakhmin [1899] 23 Bom. 137was accepted as good law by Beaman, J., in Bhaiji Shamrao Darekar Vs. Hajimiya Mahamad Amin, . But it was construed by Hayward, J., as deciding only that a transferee''s knowledge of the defect in his title did not prevent his prescribing for the right conveyed by his transfer and as raising no question, as to the necessity for knowledge on the part of the true owner, that his right was denied or interfered with. That, however, is not enough to explain the case or the statement in connection with an assumption that the transferees knew of the co-parcenary character of the property that:

A person coming in under a title, which he knows to be defective, is not by reason of his knowledge deprived of the benefit of the law of prescription.

the general Rule requiring twelve years possession of the ordinary character being apparently in question. For that statement, if it is to be understood, as generally as its wording involves, is clearly opposed to decisions of the Judicial Committee, which are not referred to, in any of the Bombay cases, Watson & Co. v. Ramchund Dutt [1891] 18 Cal. 10 and Lachmeswar Singh v. Manowar Hossein [1892] 19 Cal. 253, as well as Varada Pillai v. Jeevarathnammal [1920] 43 Mad. 244, the two first defining the point, at which the Court will restrain the enjoyment of one co-sharer, as interfering with the rights of the others and the last dealing directly with prescription. It is to be observed that in each of these cases, the prescribing party was the transferee of a co-sharer, not a co-sharer, or his descendant, being in the first a lessee, in the second a purchaser and in the third a beneficiary under a will, and that, although this was not stated expressly, his knowledge of his rights and those of the other co-sharers was assumed. But the material fact, and it is irreconcilable with the decision in Bhavrao v. Rakhmin [1899] 23 Bom. 137, is that not only a possession by one cosharer, but also an exclusion of the others, or a denial of their title to their knowledge, was held essential, before such possession could be restrained, or regarded as adverse. There is accordingly no justification for the general statement that a transferee in possession of common property is subject to no special restriction in prescribing against co-sharers other than his transferor. It can be said only, that if he prescribes as a co-sharer, a matter to be decided with reference to the terms of his transfer and the circumstances, he must prove exclusion or denial of title; but that in the event of his having neither actual nor constructive notice of the common character of the property, he will he on the same footing, as any ordinary transferee, with an independent, but invalid title or with none. It will be for the Lower Appellate Court, in dealing with the 22nd defendant''s case of prescription, to decide to which of these alternatives it is subject.

We accordingly remand the case for a rehearing and submission of revised findings, in the light of the foregoing. Findings will be submitted in six weeks. Seven days will be allowed for filing objections.

[The Additional Subordinate Judge of Tanjore submitted the following findings; viz., that the 22nd. defendant has completed prescription for ownership, against all the mirasidars.]

Oldfield, J.

The Lower Appellate Court''s finding is in 22nd defendant''s favour, and in accepting it, we need deal in detail with one question only, that of res judicata, since no objection of any weight has been taken to it, on other grounds.

The previous adjudication relied on is evidenced by Exs. T., A. and R the judgments in O.S. No. 367 of 1900 and in first appeal therein and the decree in second appeal; and no doubt in our first order of remand, we said that the plea of a previous partition was concluded by them against 22nd defendant. We did not, however, refer to the plea of prescription, which is now in question. That plea is, it is said, now inadmissible, because 22nd defendant''s prescription according to the finding before us was complete in 1883 and could have been, but was not, relied on by him, in the previous proceedings. The answer is that, whatever the effect of Exs. T., A and R. on 22nd defendant''s right to plead a title, acquired before the beginning of that litigation, they do not affect his right to rely now on a subsequent period of adverse possession, which was then incomplete, or debar him from proving what happened before that period, as explaining the nature of his connection with the property during it.

The remaining argument for consideration should have been advanced, before the finding was called for, and can be considered now, only with reference to the facts found and as raising a question of law. It is that 22nd defendant cannot, as a co-owner, claim part of the estate in co-ownership, in virtue of prescription for that part alone. This is argued, on the strength of the decision in Kumarappa Chettiar v. Saminatha Chettiar [1919] 42 Mad. 431, and particularly the dictum of Seshagiri Aiyar, J., therein, "possession of part of the property" by some of its co-owners "would save limitation as regards the rest of the property" as against the others, that of course stating the law from the standpoint of the then defendants, who correspond with the present appellants. As this dictum is the sole support of the argument attempted, it is necessary to ascertain its exact scope, by reference to its context. The plaintiffs in Kumarappa Chettiar v. Saminatha Chettiar [1919] 42 Mad. 431 claimed in the alternative, (1) possession of certain items, on the ground that their vendors, 1st and 2nd defendants, had either obtained them in partition, or been in exclusive and adverse possession of them, for more than twelve years, or (2) partition and delivery of their vendors'' share in them. In appeal, however, nothing was said of 1 and 2 defendants'' title under the partition. The other defendants, representing other branches of 1 and 2 defendants'' family, admitted plaintiffs'' right to division and delivery of shares in the items, but on the remaining question, as to plaintiffs'', or 1 and 2 defendants'' prescription, for the whole of those items, they pleaded Article 127, Schedule I of the Limitation Act. It was in discussion of this plea that the dictum of Seshagiri Ayyar, J., now relied on, occurred arid that Wallis, C.J., said:

If the property was undivided and Article 127 is applicable to bar the plaintiff, there must be exclusion from the whole of the joint family property and exclusion from the suit property only will not do.

With that part of the decision, how-ever, we are not concerned, and it is unnecessary for us to express an opinion regarding its correctness, or the extent to which it is really entailed by the authorities relied on, by the learned Judges. For in the present case, the suit property is not and never was the joint family property, to which alone, Article 127 statedly applies. In fact, in Kumarappa Chettiar v. Saminatha Chettiar [1919] 42 Mad. 431, the argument was conducted on the assumption, that the joint family in question had become divided in status and that the judgments dealt also with the alternative that, although the property had belonged to a joint family, the defendants'' interest in it was at the date of suit that of tenants-in-common. On that alternative, the learned Judges did not decide whether Article 127 would apply, holding that, even if (as 22nd defendant now contends) the proper Article was No. 144, the plaintiffs'' claim to possession of the whole items must fail. But, and this is the important point for our present purpose, Wallis, C.J., reached that conclusion, act on the short ground, which would have been open to him, if appellants'' contention here were sustainable, that prescription for a part only of the common property was useless, but because "there was no sufficient evidence of ouster" meaning evidently no evidence of such aggravated exclusion, as is required between co-tenants; and, although Seshagiri Ayyar, J., referred directly only to the effect of the decisions he had considered, not to any finding of fact to which he applied them, this part also of his judgment is reconcilable with the interpretation now suggested of the case. Shortly, the learned Judges, so far as their dicta support the present appellants, were dealing with what is not at present in question, property which was, or bad been that of a joint family; and there is nothing in their judgments to impair, the application to the common property, in dispute before us, of the principle, on which the leading cases of Watson & Co. v. Ramchund Dutt [1891] 18 Cal. 10 and Lachmeswar Singh v. Manowar Hossein [1892] 19 Cal. 253 were decided, that prescription for a part of such property is not impossible, but must be established by evidence, not only of adverse possession, in the ordinary sense of that term, but further of assertion of title and exclusion, irreconcilable with the existence of any tenancy-in-common. We are accepting the finding that such denial of title and exclusion is proved in the present case. The appellants'' objections failing, the conclusion must be in 22nd defendant''s favour.

Ramesam, J.

The appellant has filed objections to the finding recorded by the Subordinate Judge (on 25th August 1921), on the third of the issues sent down by him. He says the Subordinate Judge omitted, by a slip, to deduct half a pangu out of Namasivayam Pillai''s share. This is not admitted by the other side and it is not clear that any slip was made by the Subordinate Judge. The finding is one of fact and is accepted.

It now remains to settle the shares of the contending parties.

The 22nd defendant now claims that he is entitled to retain all the lands in his possession (2 velis, 5 mahs and 56 1/2 kulis), on the ground that he has acquired a title to them by adverse possession. Before the Munsif. he claimed these lands as corresponding to 16-15/16 pangus. The Munsif found that he was entitled to 13 1/8 pangus only and disallowed the claim to the rest. He also found that the 22nd defendant was entitled to retain 1 veli, 16 mahs and 44 kulis, as corresponding to 11-13/16 pangus and towards the rest of his pangus he should get them, in a general partition of the remaining lands. In appeal, the 22nd defendant filed a Memorandum of Objections, which the Lower Appellate Court states (in paragraph 27 of its judgment) as referring to paragraphs 141 to 147-A, of the Munsif''s judgment. Some of these grounds were not pressed and others were disallowed. As we understand these grounds, they raise the question of plaintiff''s title to 2-11/16 pangus and were not intended to urge the right, to retain any lands beyond the 1 veli, 16 mahs and 44 kulis, allowed by the Munsif, by adverse possession. The result is that the 22nd defendant is not entitled to urge, in Second Appeal, that he is entitled to retain any lands, beyond the lands allowed by the Munsif towards the 11-13/16 pangus. The total pangus he is entitled to are 13 1/8 plus 1/32, allowed by us in Second Appeal.

The total number of shares is therefore 30-59/64 plus 1/3 plus 1/32. Towards 11-13/16 of these, specific lands {i.e., I veli, 16 mahs and 44 kulis), already in the 22nd defendant''s possession are allotted. The remaining shares are 19-91/192 pangus. Therefore, the rest of the lands will be divided into 19-91/192 shares. The 22nd defendant is entitled to 13 1/8 plus 1/32 minus 11-13/16 or 1-11/32 shares of these.

The decree of the Lower Appellate Court will therefore be modified as follows:

The appellants will be entitled to 1/3rd pangu, in addition to the pangus allotted, in the Lower Appellate Court.

That the 22nd Defendant be, and hereby is, allowed to retain the lands (1 veli 16 mahs and 44 kulis), decreed in O.S. No. 388 of 1884, O.S. No. 456 of 1892 and O.S. No. 126 of 1891 in satisfaction of 11-13/16 pangus

That the 22nd defendant is entitled to 1-11/32 pangus, in addition, to be allotted to him, in general partition.

That the remaining lands (the lands other than the 1 veli 15 mahs and 44 kulis), should be divided into 19-91/192 shares and the shares to which the parties are found entitled, are to be allotted to the respective parties.

In the Second Appeal, the appellants will pay the costs of the 22nd defendant. In the Memorandum of Objections, each party will bear its own costs, except that the 22nd defendant will pay the costs of the 8th respondent.

[This Second Appeal, and the Memorandum of Cross-Objections filed by the 13th respondent, came on for being spoken to, on the 24th and 27th days of April 1923, before Oldfield and Ramesam, JJ.]

JUDGMENT

The case has been set down, to be spoken to, on the objection of the appellant that the decree is not in accordance with our judgment. He points out that the District Munsif''s decree allots to defendants 117 to 120, 3, 5, 6, 9, 10, 88 and 108, a specific plot of 1 veli, 4 mahs, on the western side of item No 1, in their possession, for 7 7/8 pangus. He claims that the Subordinate Judge''s decree has not altered this and he also urges that in awarding a specific plot of 1 veli, 16 mahs and 44 kulis to the 22nd defendant, we construed the Subordinate Judge''s decree, in such a way, as to leave the Munsif''s decree regarding specific plots undisturbed.

The respondent argues that the defendants 117 to 120, when they appealed to the Subordinate Judge, were not satisfied with the Munsif''s decree for a specific plot and wanted a general partition of item (1) (see his grounds 6 and 8). In the light of these grounds of appeal, we construe the Subordinate Judge''s decree, not as allotting the specific plot to the 117 to 120th and other defendants, and to the 22nd defendant, but as giving an equitable direction that in the general partition, the share allotted may consist (as far as possible), of the plots already in their possession. Our difficulty in construing the Subordinate Judge''s decree, in the manner desired by the appellant, is that the extent owned by the defendants 117 to 120, and others as found by the District Munsif is not 7 7/8 but 7 15/16, the District Munsif''s 7 7/8 being an arithmetical error and the Subordinate Judge awarded an additional 1-14/16 share, as to which there is no direction in the Subordinate Judge''s decree, on the construction of it claimed by the appellant.

As to the 22nd defendant, we will only say that whatever remarks we might hare made, in the course of the argument, there is nothing in our judgment, construing the Subordinate Judge''s decree, in the way claimed by the appellant. Before us, the 22nd defendant repeated his claim to a specific plot (see grounds 2 and 3 of his Memorandum of Objections) and did nothing in the Lower Appellate Court to give them up (see his Memorandum of Objection there). The appellant not only repudiated in the Appeal before the Subordinate Judge, the allotment of specific plots to him, but also did not show his change of mind in the Grounds of Appeal here. We therefore direct that the decree as drafted will stand, but a direction that, as far as possible, properties already in the possession of parties (22nd defendant or defendants 117 to 120 and others) will be allotted in making the allotments in general partition, will be added.

The Vakil''s fee for 22nd defendant in the Second Appeal will be Rs. 100.