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PETITIONER:

MOHD. ZAINULABUDEEN (SINCE DECEASED) BY L.RS.

Vs.

RESPONDENT:

SAYED AHMED MOHINDEEN AND ORS.

DATE OF JUDGMENT15/12/1989

BENCH:

KASLIWAL, N.M. (J)

BENCH:

KASLIWAL, N.M. (J)

SINGH, K.N. (J)

CITATION:

1990 AIR 507 1989 SCR Supl. (2) 519

1990 SCC (1) 345 JT 1989 (4) 563

1989 SCALE (2)1381

ACT:

Indian Limitation Act, 1963: Adverse possession--Claim

of Among co-heirs there must be evidence of an essertion of

hostile title coupled with possession and enjoyment

HEADNOTE:

Mohd. Zainulabdeen and Yasin By filed a suit for decla-

ration that they were entitled to be in enjoyment and pos-

session of Saint Syeed Moosa Shah Khadiri Dargah in Madras

for 27 days and to restrain the defendants from interfering

with tile plaintiffs' aforesaid right and management in the

Dargah.

In reply the defendant No. 1 alleged that in the manage-

ment of the Dargah, female members had no right nor could

they claim the right of Mujawar. It was also alleged that

Fathima Bee through whom the Plaintiffs were claiming never

enjoyed the right to Hundial collection of the Dargah and

share in the Mujawarship and even if she had any right the

same was lost as she did not claim any right till her death

and therefore the Plaintiffs were also not entitled to any

relief. Defendants 7, 8 and 10 however in their written

statements admitted family members to be sharer in the

income and management of the Dargah and they also admitted

that they were paying such share to their sister Ahamadun-

nissa (10th defendant) in the Hundial collections and that

the City Civil Court in suit No. 7518 of 1971 had also

recognised the right of 7th defendant Anser Bi to management

of the Dargah for 9 days in a year. Thus it was false to

contend that the females were not entitled to claim manage-

ment.

The trial court decreed the suit of the Plaintiffs and

held that they were entitled to manage the Dargah 1or 27

days in a year. Defendants 3 to 6 and 12 to 19 filed appeals

against the judgment of the trial court.The City Civil

Judge, however, affirmed the judgment of the Trial Court

with some modifications in the relief.

Different sets of defendant filed two second appeals

before the High Court and both were disposed of by the High

Court by its judgment and Order dated 17th November, 1981

whereby it reversed the

520

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judgments and decrees of the courts below and dismissed the

suit filed by the Plaintiffs.

This Court came to the conclusion that there is no

controversy as regards the period of 27 days falling to the

share of the Plaintiffs and the right of the females to the

management of the Dargah according to Muslim law. As regards

the question of right of Fathima Bee having become barred by

limitation by ouster and that as such the Plaintiffs too had

lost that right, this Court, while setting aside the Judg-

ment and Decree of the High Court and restoring that of the

Trial Court as modified by the First Appellate Court,

HELD: It iS well settled that where one co-heir pleads

adverse possession against another co-heir it is not enough

to show that one out of them was in sole possession and

enjoyment of the profits of the properties. The possession

of one co-heir is considered in law as possession of all the

co-heirs. The co-heir in possession cannot render his pos-

session adverse to the other co-heirs not in possession

merely by any secret hostile animus on his own part in

derogation of the other co-heirs title. [526G-H; 527A]

It is a settled rule of law as between co-heirs that

there must be evidence of open assertion of hostile title

coupled with exclusive possession and enjoyment by one of

them to the knowledge of the other so as to construe ouster.

[527A]

The High Court in the instant case committed a serious

error in reversing the finding of the lower Appellate Court

and in taking a wrong approach in holding ouster on the

basis of the judgment and decree given in Suit No. 116 of

1909 and on the ground that Fathima Bee had not made a

demand or asked for her share of the hundial collections at

any point of time till her death in 1957. [527G]

P. Lakshmi v.L. Lakshmi Reddy, [1957] SCR 195, referred to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3 160 of

1983.

From the Judgment and Order dated 17.11.1981 of the

Madras High Court in Second Appeals Nos. 650 and 874 of

1981.

V.M. Tarkunde, Ms. S. Khanna, Jagmohan Khanna and A.S.

Khan for the Appellants.

521

T.S. Krishnamurthy, K.R. Choudhary, S.M. Amiad Nainar

and S. Thananjayan for the Respondents.

The Judgment of the Court was delivered by

KASLIWAL, J. This Civil Appeal by the plaintiffs is

directed against the Judgment of High Court of Judicature at

Madras in Second Appeal Nos. 650 & 894 dated 17th November,

1981.

Mohd. Zainulabdeen and Yasin Bi filed a suit for decla-

ration that they were entitled to be in enjoyment and pos-

session of Saint Syed Moosa Shah Khadiri Dargah in Madras

for a period of 27 days in all in the months of February,

March, June, July, October & November and to restrain the

defendants from interfering with the plaintiffs aforesaid

right and management in the Dargah. The case of the plain-

tiffs as set up in the plaint was that the Dargah in ques-

tion was being managed by the members of the family of one

Sayed Mohideen Sahib. Sayed Mohideen had two sons Sayed

Ismail Sahib and Sayed Gulam Dastagir Sahib. As per Judgment

in C.S. 116 of 1909 the right of management was divided

between the two sons each taking six months for himself.

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According to this arrangement the branch of Sayed Ismail

Sahib used to remain in management for the months of Janu-

ary, April, May, August, September and December and the

branch of Gulam Dastagir Sahib for the other six months,

namely, February, March, June, July October and November.

The present suit relates to the controversy between the

decendants of the branch of Gulam Dastagir Sahib. According

to the plaintiffs after the death of Sayed Gulam Dastagir

the right and management of the Dargah according to Muslim

Law devolved on his two sons and one daughter, namely, Sayed

Gaffar Sahib, Sayed Mohideen and Fathima Bee in proportion

of 2:2:1 respectively. The plaintiffs alleged that thus

Fathima Bee had 1/5 share in 6 months i.e. 36 days. Fathima

Bee left surviving one son and two daughters. The plaintiffs

who are one son and one daughter of Fathima Bee as such are

entitled to 3/4 share i.e. 27 days, as another daughter

Zahurunnissa was not interested in claiming her right has

been impleaded as defendant No. 2. After the death of Fathi-

ma Bee, the plaintiffs being her son and daughter associated

themselves in the management of the Dargah with their mater-

nal uncles and the sons of the maternal uncles and were

getting share of the income of the Dargah. According to the

plaintiffs this arrangement was going on for several years

eversince the death of Fathima Bee in 1957. However on

account of some dissensions, the first defendant Sayed

Mohideen (since deceased) and another defendant being the

son of another

522

deceased maternal uncle were preventing the plaintiffs from

exercising their right and enjoying the income of the Dar-

gah. The plaintiffs served a notice on 23.3.1972 calling

upon the defendants to recognize the right of management of

the plaintiffs in the Dargah. The defendants sent a reply on

22.4.1972 stating that the plaintiffs claiming through

female were not entitled to any right in the management or

share in the offerings in the Dargah and even if they were

entitled to any right or claim the same was barred by limi-

tation.

Sayed Mohideen (since deceased) defendant No. 1 in the

suit filed a written statement and took the plea that his

father Sayed Gulam Dastagir was a Mujawar and was receiving

the offerings by right of inheritence. Sayed Ismail being

cousin brother of Sayed Gulam Dastagir as such he was also a

Mujawar along with Sayed Gulam Dastagir Sahib. Fathima Bee

the daughter of Sayed Gulam Dastagir had no right of Mujawar

as the right was given only to the male members and not to

the females. Fathima Bee as such was not entitled to claim

any right of Mujawar. The widows of Sayed Gulam Dastagir

also could not claim any right of Mujawar thus neither Wazir

Bee widow of Sayed Ismail nor Mohideen Bi the widow of Sayed

Gulam Dastagir could take upon the management of the Dargah

as they were female members. According to the defendants no

female members got the right of direct management of the

Dargah and the Judgment in Suit No. 116 of 1909 also nega-

tived the right of any management by Wazir Bee and Mohideen

Bi. It was admitted that though Fathima Bee was alive but

she was not a party to the aforesaid suit. It was however

pleaded that claim of Fathima Bee was not recognized in the

above suit. It was further alleged in the written statement

that Fathima Bee never participated in the management of the

Dargah. According to Muslim Law females were excluded from

performing the duties of the offices of Peshimam Khatib and

Mujawar. It was further alleged that Fathima Bee never

enjoyed the right to the Hundial Collection of the Dargah

and even if she had got any right, the same was lost as she

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did not claim any right till her death. Fathima Bee never

asserted any right during her life-time nor received any

share in the offerings. Her right, if any, was extinguished

within 12 years after the death of her father Sayed Gulam

Dastagir. It was further alleged that as Fathima Bee had no

right or claim of share in the Mujawarship and was also

ousted from the enjoyment of any share in the Hundial Col-

lections, the plaintiffs who were claiming through Fathima

Bee were also not entitled to any relief. Defendants Nos. 2

to 6 adopted the written statement filed by the first de-

fendant. So far as the defendants Nos. 7, 8 & 10 were con-

cerned, they filed a written statement taking the plea that

the

523

family members were recognized as sharers in the management

of the Dargah and they were also sharing the income. It was

further alleged that even the answering defendants were

paying such share to their sister Ahamadunnissa (lOth de-

fendant) in the Hundial collection of the Dargah. The 7th

defendant (Anser Bi) filed a suit No. 75 18 of 1971 in the

Court of 4th Assistant City Civil Court and her right to

manage was recognised for 9 days in a year. Hence it was

false to state that the females were not entitled to claim

management. It may be mentioned at this stage that defendant

No. 1 Sayed Mohideen died during the pendency of the suit

and defendants Nos. 12 to 19 were added as his legal repre-

sentatives.

The Trial Court decreed the suit and in the operative

part held that the plaintiffs were entitled to manage the

Dargah for 27 days in February (viz. from February 1 to

February 27).

The defendants Nos. 3 to 6 and 12 to 19 filed appeals

aggrieved against the Judgment of the Trial Court while 7th

defendant in the suit filed cross objections in respect of a

particular portion of the decree. Learned City Civil Court,

Madras affirmed the Judgment and decree of the Trial Court

except some modifications in the relief as mentioned below.

"The Plaintiffs are entitled to the reliefs of

declaration that they are entitled to be in

management of the Suit Dargah for a period of

27 days in a year during the months of Febru-

ary-March, June-July and October-November each

year and that the said 27 days shall be Febru-

ary 1 to 6, June 1 to 6 and October 1 to 6 for

the first plaintiff and 9 days from July 1 to

9 for the second plaintiff and that the plain-

tiffs are entitled to the relief of possession

of the said right to be in management of the

Dargah and to be in enjoyment of the Hundial

income during the said period. The cross

objections of the 7th defendant is dismissed."

Different sets of defendants filed second appeals Nos.

650 & 894 of 1981, and both these second appeals were dis-

posed of by the High Court by order dated 17th November,

1981. The High Court allowed the second appeals and while

setting aside the Judgments and decrees of the Courts below

dismissed the suit filed by the plaintiffs. The High Court

took the view that the Courts below proceeded upon an erro-

neous assumption as if it was the duty of the defendants to

prove by what hostile assertions of title and possession

ouster has been established.

524

In the view of the learned Judge by allowing inaction, more

so when it was coupled with sharing of profits in not claim-

ing the profits at any point of time, there would arise a

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clear presumption of ouster. The High court laid great

emphasis on the circumstances that Fathima Bee till her

death in 1957 did not care to make a demand of her right or

share at any point of time. It was further observed that

after the decree in Civil Suit No. 116 of 1909, it was only

male heirs who were exercising their rights. The High Court

in this regard further referred to the statement of P.W. 1

himself and drew the conclusion that after the death of his

mother nobody was employed as an agent. Only at the time

when he consulted the Vakil he came to know that his mother

had 36 days share in the Mujawarship. Before that he did not

do anything concerning the share of the Hundial collections.

The demand was from 1960 to 1972. But nothing was paid. He

knew that he had rights even before. The High Court on the

basis of the above evidence of P.W. 1 observed that it was

clear that the mother of P.W. 1 was aware of the filing of

Civil Suit No. 116 of 1909. Irrespective of that, in so far

as there was absolutely no evidence whatsoever to show at

any point of time till her death in 1957 that Fathima Bee

ever made a demand or asked for a share of the Hundial

collections as such it should be held that her rights had

become barred. The High Court in these circumstances held

that if really the rights of Fathima Bee had become barred

by her not exercising the rights, the plaintiffs themselves

can have no independent right to claim.

It may be mentioned at the outset that there is no

controversy now as regards the period of 27 days falling to

the share of the plaintiffs and on the question that females

are also entitled in the right and management of Dargah

according to Muslim Law. Thus the only controversy now left

to be determined is whether the High Court was right in

holding that the rights of Fathima Bee had become barred by

limitation by ouster and as such the plaintiffs who were

also claiming through Fathima Bee had lost their right by

ouster?

It would first be necessary to make it clear as to what

is the impact of the decree dated 11.8.1910 passed in Civil

Suit No. 116 of 1909, so far as the present litigation is

concerned. A perusal of the Judgment in the above case goes

to show that Sayed Moosa Sahib and Wazir Bi filed a suit

against Sayed Gaffar Sahib, Sayed Mohideen Sahib and Mohi-

deen Bi for a declaration that the plaintiffs and the de-

fendants were entitled to perform the duties of Mujawar of

the Dargah in turns and they were entitled to collect and

receive the offerings, gifts and other emoluments of the

Dargah as well as the collec-

525

tion of the hundi box in the Dargah and appropriate the same

in two equal moities and to settle a scheme for managing

the' said Dargah so as to equalize the amount of income and

emoluments to be collected and appropriated by both the

parties during their respective turns. In the said case a

decree was passed that the 1st plaintiff and the 1st & 2nd

Defendants were entitled to perform the duties of Mujawar of

the Dargah in question in turns. A scheme was also drawn for

collecting and receiving the offerings, gifts and other

emoluments of the said Dargah as well as the collections of

the hundi box and apportion the same in two equal moities

and that Sayed Moosa Sahib, the 1st plaintiff was entitled

to one half and Sayed Gaffer Sahib and Sayed Mohideen, the

1st and 2nd defendants were entitled to the other half of

the collections, offerings, gifts and other emoluments. A

great capital has been raised on the basis of the above

decree by the learned counsel for the defendant-respondents

that no share was given to the female members in the above

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decree, namely, to Wazir Bi and Mohideen Bi and from this it

was clear that the females were totally excluded from the

right or claim of any share in the management or offerings

in the Dargah.

We do not find much substance in the above contention.

In the above judgment the controversy whether females were

entitled to any right or management of the offerings in the

Dargah was neither raised for decided. Fathima Bee though

alive but was not a party in the aforesaid litigation and

any judgment given in that suit cannot be held as res judi-

cata or binding on Fathima Bee or the present plaintiffs.

Mr. Krishnamurthy Aiyer, learned counsel for the defen-

dantrespondents contended that he was not arguing that the

aforesaid judgment and decree were res judicata or binding

on Fathima Bee, but his submission was that it should be

taken as a circumstances in proving ouster of Fathima Bee

from the fight or management of the Dargah or any claim in

the offerings. In our view as already mentioned such judg-

ment cannot be considered as an ouster of Fathima Bee cou-

pled with other circumstances which clearly show that there

was no ouster in the facts of the present case.

It is an admitted case of the parties that Sayed Gulam

Dastagir Sahib had a fight of management in the Dargah in

question for six months (180 days) in the months of Febru-

ary-March, June-July and October-November. Gulam Dastagir

had one daughter Fathima Bee and two sons and as such Fathi-

ma Bee got 1/5th share and which came to 36 days out of

aforesaid 180 days. Thus Fathima Bee was a co-sharer in the

right of management and possession of the Dargah as well as

the

526

offerings and hundial collection. Now, before considering

the question of ouster of Fathima Bee, it would be important

to consider the pleadings of the defendants in this regard.

Learned counsel for the defendant-respondents in this regard

have drawn our attention to paragraph 19 of the written

statement filed by 1st defendant Sayed Mohideen. Para 19 of

the written statement reads as under:

"Neither Fathima Bee till her death nor the

plaintiffs from her death till now had posses-

sion or management of the Dargah, None of them

had at any time received a share in the hundi-

al collection or offerings. Further there has

been expressed denial of Fathima Bee's title

at the time of the judgment of the High Court

in 1909, if she did not have a title according

to Muslim Personal Law that title was denied,

and she was expressly ousted out from the

enjoyment of any share in the hundial collec-

tions. From her death till now the plaintiffs

have not received any share in the hundial

collections".

A perusal of the above pleading show that the defendants

are claiming ouster on the basis of expressed denial of

Fathima Bee's title at the time of the judgment of the High

Court in 1909 and another ground taken is that neither

Fathima Bee nor the plaintiffs had at any time received a

share in the hundial collection or offerings nor had posses-

sion or management of the Dargah. The defendants are totally

mistaken in taking the ground that there was any expressed

denial of Fathima Bee's title in that litigation. At the

risk of repetition it may be stated that neither Fathima Bee

was a party in that suit nor any such question was raised or

decided that females were not entitled to any share in the

management or offerings of Dargah. Thus there was no ques-

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tion of any expressed denial of Fathima Bee's title in that

litigation. It appears that the defendants were carrying a

mistaken impression all along that females under the Muslim

Law were not entitled to any right of management or posses-

sion in a Dargah and on that account they were pleading an

ouster of Fathima Bee as well as the plaintiffs. Such plead-

ing cannot be considered as an ouster in fact of a co-sharer

from a joint right. It is well settled that where one co-

heir pleads adverse possession against another co-heir then

it is not enough to show that one out of them is in sole

possession and enjoyment of the profits of the properties.

The possession of one co-heir is considered in law, as

possession of all the co-heirs. The co-heir in possession

cannot render his possession adverse to the other co-heir

not in possession merely by any secret hostile animus on his

own part in derogation of

527

the other co-heir's title. Thus it is a settled rule of law

as between co-heirs there must be evidence of open assertion

of hostile title, coupled with exclusive possession and

enjoyment by one of them to the knowledge of the other so as

to construe ouster. Thus in order to make out a case of

ouster against Fathima Bee or the plaintiffs, it was neces-

sary for the defendants to plead that they had asserted

hostile title coupled with exclusive possession and enjoy-

ment to the knowledge of Fathima Bee. The written statement

filed by the defendants in the present case is totally

lacking in the above particulars and thus apart from the

want of evidence, there is no proper pleading of ouster in

the present case. Thus it is clear that neither in the

written statement nor in reply to the notice of the plain-

tiffs any stand was taken that the right of Fathima Bee or

plaintiffs was specifically denied on any particular occa-

sion so as to put them on notice that from that date the

possession of the defendants would be adverse to the inter-

est or rights of the plaintiffs of Fathima Bee. We are

supported in the above view by a decision of this Court in

P. Lakshmi v. L. Lakskmi Reddy, [1957] SCR 195.

It is further proved from the evidence led by the plain-

tiffs that Fathima Bee was being looked after by her broth-

ers and she was in fact being paid portions of the income

from the Dargah and on that account she was satisfied in

allowing the brothers to enjoy the office of Mujawar on her

behalf also. The 13th defendant who has been examined as

D.W. 1 has admitted that Fathima Bee was living and was

being looked after by Sayed Gaffar and who had arranged for

and met the expenses of the marriage of the two plaintiffs.

This clearly goes to show that relations between Fathima Bee

and her brothers were cordial and as such there was no

question of any knowledge to Fathima Bee that she was being

ousted from her right or share in the Dargah. No evidence

has been led by the defendants to show that such right was

openly denied by the brothers which would be considered as

an ouster. The First Appellate Court had considered all

these aspects in detail after discussing the entire evidence

placed on record and had clearly recorded the finding that

there was no proof of ouster in the present case. The High

Court in our view committed a serious error in reversing the

above finding and in taking a wrong approach in holding

ouster on the basis of judgment and decree given in Suit No.

116 of 1909 and on the ground that Fathima Bee had not made

a demand or asked for her share of the hundial collections

at any point of time till her death in 1957.

Mr. Krishnamurthy Aiyer, learned counsel for defendants Nos.

528

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12 to 19 submitted that according to decree given by First

Appellate Court the period of 27 days from February 1-6,

June 1-6 and October 1-6 for First plaintiff and 9 days from

July 1-9, for the second plaintiff acts onerous to his

defendants 12 to 19 and it must be fixed in a manner which

may be equitable to all the parties. The appellants and

their counsel Shri Tarkunde on the other hand submitted that

their share of 27 days may be fixed jointly and so far as

their own proportion of 18 and 9 days is concerned they will

make their arrangement inter se. After hearing learned coun-

sel for the parties and considering the entire facts and

circumstances of the case, we uphold the decree passed by

the First Appellate Court with the following modification in

the arrangement of days in the management of the Dargah in

question.

The plaintiffs would be entitled to such management from

17th. to 30th June and 1st to 13th July and in the next year

from 18th to 30th June and 1st to 14th July. This arrange-

ment would continue by rotation of each year. To be more

precise the plaintiffs would be entitled to have the manage-

ment of the suit Dargah from 17th to 30th June and 1st to

13th July in the year 1990 and 18th to 30th June and 1st to

14th July in the year 1991 and they shall continue to follow

such cycle by rotation every year.

For the reasons stated above, we set aside the judgment

and decree of the High Court dated 17th Nov. 1987 and re-

store that of the Trial Court as affirmed by the First

Appellate Court with modifications as stated earlier.

Parties to bear their own costs.

R.N.J.

529