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PETITIONER:

P. LAKSHMI REDDY

Vs.

RESPONDENT:

L. LAKSHMI REDDY

DATE OF JUDGMENT:

05/12/1956

BENCH:

JAGANNADHADAS, B.

BENCH:

JAGANNADHADAS, B.

SINHA, BHUVNESHWAR P.

IMAM, SYED JAFFER

CITATION:

1957 AIR 314 1957 SCR 195

ACT:

Adverse Possession-Possession of co-heir, when adverse-

Ouster-Possession of Receiver pendente lite, if can be

tacked.

HEADNOTE:

V died an infant in 1927 and H, an agnatic relation. filed

a, suit for the recovery of the properties belonging to V

which were in the possession of third parties, on the ground

that he was the sole nearest male agnate entitled to all the

properties. During the pendency of the suit a Receiver was

appointed for the properties in February, 1928. The suit

having been decreed H obtained possession of the properties

from the Receiver on January 20, 1930, and after his death

in 1936, his nephew, the appellant, got into possession as

His heir. On October 23, 1941, the respondent brought the

present suit for the recovery of a one third share of the

properties from the appellant on the footing that he and his

brother were agnatic relations of V of the same degree as H,

that all the three were equal co-heirs of V and that H

obtained the decree and got into possession on behalf of all

the co-heirs. The appellant resisted the suit and contended

that the respondent lost his right by the adverse possession

of H and his successor and that for this purpose not only

the period from January 20, 1930, to October 23, 1941, was

to be counted, but also the prior period when the Receiver

was in possession of the properties during the pendency of

H's suit. it was found that-the; respondent's case that H

obtained the decree and got possession, from the Receiver on

behalf of the other co-heirs was not true :

Held, that the respondent did not lose his right by adverse

possession. Even assuming that H's possession from January

20, 1930, was adverse and amounted to ouster of the other

co-heirs, such adverse possession was not adequate in time

to displace the title of the respondent and the period

during which the Receiver was in possession could not be

added, because (1) the Receiver's

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possession could not be tacked on to H's possession, as a

Receiver is an officer of the Court and is not the agent of

any party to the suit and notwithstanding that in law his

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possession is ultimately treated as possession of the

successful party on the termination of the suit, he could

not be considered as the agent of such party with' the

animus of claiming sole and exclusive title with the view to

initiate adverse possession ; and (2) during the time of the

Receiver's possession the respondent could not sue H, and

limitation could not therefore run against him.

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

possession of all the co-heirs and in order to establish

adverse possession ouster of the non-possessing co-heir

should be made out and as between them 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 constitute ouster.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 178 of 1955.

Appeal by special leave from the judgment and decree dated

December 3, 1951, of the High Court of Judicature at Madras

in Second Appeal No. 766 of 1947 against the decree dated

November 19, 1946, of the District Court of Anantapur in

Appeal No. 130 of 1945 arising out of the decree dated

January 31, 1945, of the Court of Subordinate Judge,

Anantapur, in Original Suit No. 10 of 1944.

M. C. Setalvad, Attorney-General of India, P. Ram Reddy,

K. Sundararajan and M. S. K. Aiyangar, for the appellant.

C. K. Daphtary, Solicitor-General of India, and K. R.

Chaudhury, for the respondent.

1956. December 5. The Judgment of the Court was delivered

by

JAGANNADHADAS J.-The plaintiff in the action out of which

this appeal arises brought a suit for declaration of his

title to a one-third share in the suit properties and for

partition and recovery of that share. The suit was

dismissed as having been barred by limitation and adverse

possession. On appeal the District Judge reversed the

decision and decreed the suit. The. High Court maintained

the decree of the District Judge on second appeal. Hence

this appeal before us on special

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leave by the first defendant in the action, who is the

appellant before us. The main question that arises in the

appeal is whether the plaintiff has lost his right to a one-

third, share in the suit property by adverse possession.

The property in suit belonged to one Venkata Reddy. He died

an infant on Augutst 25, 1927. At that time, the properties

were in the possession of the matemal uncles of the father

of the deceased Venkata Reddy. One Hanimi Reddy, an agnatic

relation of Venkata Reddy, filed a suit O.S. No. 26 of 1927

for recovery of the properties from 'the said matemal uncles

and obtained a decree therein on March 15, 1929. A Receiver

was appointed for the properties in February, 1928, during

the pendency of the suit and presumably the properties were

in his possession. This appears from the decree which shows

that it directed the Receiver to deliver possession to the

successful plaintiff in that suit' Hanimi Reddy obtained

actual possession of these properties on January 20, 1930,

and continued in possession till he died on August 16, 1936.

The first defendant in the present action who is the

appellant before us is a son of the brother of Hanimi Reddy

and came into possession of all the properties as Hanimi

Reddy's heir. The respondent before us is the plaintiff.

The present suit was brought on the allegation that the

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plaintiff and the second defendant in the suit, his brother,

were agnatic relations of Venkata- Reddy, of the same degree

as Hanimi Reddy and that all the three were equal co-heirs

of Venkata Reddy and succeeded to his properties, as such-on

his death. It was alleged that though Hanimi Reddy filed

the prior suit and obtained possession of the properties

thereunder, he did so as one of the do-heirs, with the

consent of the plaintiff and the second defendant and that

he was enjoying the properties jointly with the plaintiff

and his brother as tenants-in-common but that the first

defendant, who came into possession on the death of Hanimi

Reddy denied the title of the plaintiff and his brother in

or about the year 1940. The plaint in the present action

was filed originally in the District Munsif s Court on

October 23, 1941, and was ordered

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to be returned for presentation; to the District Judge's

Court on November 30, 1942. It was actually re-presented in

that Court on December 2, 1942. One of thequestions raised

in the suit was that the, suit was, barred by limitation on

the ground that it must be taken to have been ingtituted not

on October(23, [1941], but on December 2, 1942. This plea

was upheld by the trial Court. On first -appeal-the

District Judge held that the plaintiff is entitled to the

benefit of a. 14 of the Limitation Act and that the suit

must be taken as having- been instituted on October 23,

19419 and is; therefore, in time. He accordingly decreed,

the suit. In the -High Court the question as to whether the

plaintiff was entitled to the benefit of. 14 of the,

Limitation Act, though raised, was not finally decided. It

was held that the possession of Hanimi Reddy was not adverse

to the plaintiff and that accordingly he was entitled to the

decree as prayed for. The question as to the non-

availability of the benefit of s. 14 of the Limitation Act

to the plaintiff in the present suit has not been, urged

before us and- the finding of the District Judge that the

plaint must be taken to have been validly presented on

October 23, 1941, stands. That date must, therefore, be

taken to be the commencement of the action for the purposes

of this appeal. It will be noticed that this date is more

than fourteen years from the date when the succession opened

to the properties of Venkata Reddy on August 25, 1927, but

is less than twelve years after Hanimi Reddy obtained actual

possession in execution of his decree on January 20, 1930.

The contention of the learned Attomey-General for the

appellant first defendant is that the possession of Hanimi

Reddy was adverse, that the plaintiff as well as the second

defendant lost their right by the adverse possession of

Hanimi Reddy and his successor, the first defendant, and

that for this purpose not only the period from January 20,

1930, up to October 23, 1941, is to be counted but also the

prior period during the pendency of Hanimi Reddy's suit when

the Receiver was in possession of the suit properties. It

is the. validity of

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these two parts of the argument which has to be considered.

It will be convenient to consider in the first instance

whether or not the possession of- Hanimi Reddy from January

20, 1930, up to the date of his death in 1936 was adverse to

his co-heirs. The :facts relevant for this pur ,pose are

the following. At the date when Venkata Reddy died his

properties were in the custody of the two maternal uncles of

his father. Hanimi Reddy filed his suit on the allegation,

as already stated above, that he was the nearest agnatic

relation alive of the deceased minor Venkata Reddy and as

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his next rightful heir to succeed to all the estate, movable

and immovable, of the said minor, set forth in the schedules

thereto. He appended a genealogical tree to his plaint

which showed his relationship io Venkata Reddy through a

common ancestor and showed only the two lines of himself and

Venkata Reddy. Plaintiff and the second defendant belong to

another line emanating from the same common ancestor but

that line was not shown and the plaintiff and second

defendant were ignored. The first defendant in the present

suit did not admit the relationship of plaintiff and second

defendant in his written statement. He disputed that the

father of the plaintiff and second defendant was descended

from the common ancestor either by birth or by adoption, as

shown in the genealogical table attached to the present

plaint. It is possible that this may have been the reason

for Hanimi Reddy ignoring the plaintiff and the second

defendant in-his suit. However this may be, at the trial in

this suit it was admitted that the plaintiff and the second

defendant are the agnatic relations of Venkata Reddy of the

same degree as Hanimi Reddy. The defendants in the earlier

suit who were in possession on that date claimed to retain

possession on behalf of an alleged illatom sonin-law (of

Venkata Reddy's father) a son of the second defendant

therein. It may be mentioned that in that part of the

country (Andhra) an illatom son-in-law is a boy incorporated

into the family with a view to give a daughter in marriage

and is customarily recognised as an heir in the absence of a

natural-born son, This

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claim appears to have been negatived and the suit was

decreed. During the pendency of the suit a Receiver was

appointed in February, 1928. He presumably took possession

though the date of his taking possession is not on the

record. The decree in that suit dated March 15, 1929, is as

follows:

"This Court doth order and decree that plaintiff do recover

possession of immovable property and movables in the

possession of the Receiver."

It is in the evidence of the first defendant himself as D.W.

I that the properties, were taken possession of by Hanimi

Reddy on January 20, 1930. The plaintiff examined himself

as P.W. 1 to substantiate the case as set out in his plaint

that he and the second defendant and Hanimi Reddy were

enjoying the properties jointly as tenants in common. The

relevant portion of his evidence is as follows:

"Annu Reddy (Hanimi Reddy) uncle of defendant " and myself

filed 0. S. No. 26 of 1927, District Court, Anantapur-same

as O.S. No. 24 of 1928, Sub-Court, Anantapur-for the

properties of the deceased Venkata Reddy. As Hanimi Reddy

was the eldest member, he was attending to the conduct of

that suit. I was also coming to Court along with him. The

suit ended in our favour. Hanimi Reddy took possession

through Court after the decree in the year 1930. Since then

both Hanimi Reddy and myself have been in joint possession

and enjoyment of the same."

In cross-examination he said as follows:

"I told Hanimi Reddy that I would also join him as a party

in O.S. 24 of 1928. He said there was no need for me to

join and that he would give my share to me.................

I did nut file any application to be impleaded as a

defendant................. I have nothing in writing to show

that Hanimi Reddy was giving me any produce from the suit

lands."

The first defendant filed the plaint, judgment and decree

in Hanimi Reddy's suit as also pattas, cist receipts and

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lease deeds taken by Hanimi Reddy in his time. With

reference to this evidence the trial Court found as follows;

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"The documents filed on behalf of the first defendant

completely establish that Hanimi Reddy filed the suit in his

individual capacity and obtained possession thereof. There

is nothing to indicate that either the plaintiff or the

second defendant took any interest in those

proceedings................. There is no evidence of Hanimi

Reddy having given any produce to the plaintiff or to the

second defendant.............. The plaintiff and the second

defendant have been excluded from participation of profits

to their knowledge since 1930." The learned District Judge

found on appeal (when the same was remanded to him for a

finding by the High Court) as follows:

"I have no hesitation in holding that the plaintiff had

nothing to do with the institution or conduct of the suit 0.

S. No. 24 of 1928 on the file of the Sub Court of Anantapur,

and that he never had any actual joint enjoyment of suit

properties with the late D. Hanimi Reddy or the first

defendant."

He has not given a finding as to whether the non-

participation of the profits by the plaintiff and the second

defendant was in the nature of exclusion to their knowledge.

But there are some admitted and relevant facts brought out

in evidence which are significant. The present evidence as

well 'as the' plaint in the earlier suit of 1927 show

clearly that all the parties including Hanimi Reddy were

residents of village Mamuduru. All the suit properties are

situated in that village itself; as appears from,the

schedules to the plaint in the earlier suit. Hanimi Reddy

and the plaintiff were fairly closely related as appears

from the plaintiff's admission as follows:

"My brother-in-law who is also the nephew -of Hanimi Reddy

was staying with Hanimi Reddy. My father-in-law and

defendant No. 1's father-in-law is the same."

On these facts the question that arises is whether, in law,

the possession of Hanimi Reddy from January, 20, 1930,

onwards was adverse to the plaintiff and the second

defendant.

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Now, the ordinary classical requirement of adverse

possession is that it should be nec vi nec clam nec

precario. (See Secretary of State for India v. Debendra Lal

Khan(1)). The possession required must be adequate in

continuity, in publicity and in extent to show that it is

possession adverse to the competitor. (Se(,, Radhamoni Debi

v. Collector of Khulna(2)). But it is well-settled that in

order. to establish adverse possession of one co-heir as

against another it is not enough to show that one out of

them is in sole possession and enjoyment of the profits of

the properties. Ouster of the non-possessing co-heir by the

co-heir in possession, who claims his possession to be.

adverse, should be made out. The possession of one co-heir

is considered, in law, as possession of all the co-heirs.

When one co-heir is found to be in possession of the

properties it is presumed to be on the basis of joint title.

The coheir 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 the

other co-heir's title. (See Corea v. Appuhamy(3)). It is a

settled rule of law that 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

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knowledge of the other so as to constitute ouster. This

does not necessarily mean that there must be an express

demand by one and denial by the other. There are cases

which have held that adverse possession and ouster can be

inferred when one co-heir takes and maintains notorious

exclusive possession in assertion of hostile title and

continues in such possession for a very considerable time

and the excluded heir' takes no steps to vindicate his

title. Whether that line of cases is right or wrong we need

not pause to consider. It is sufficient to notice that the

Privy Council in N. Varada Pillai v. Jeevarathnammal(4) q

uotes, apparently with approval, a passage from Culley v.

Deod Taylerson(5) which indicates that such a situation may

Tell lead to an inference of

(1) [1933] L.R. 6i I.A. 78, 82.

(2) [1900] L.R. 27 I.A. 136, 140.

(3) [1912] A.C. 230.

(4) A.I.R. 1919 P.C. 44, 47.

(5) 3 P. & D. 539; 52 R.R. 566.

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ouster "if other circumstances concur". (See also Govindrao

v. Rajabai(1)). It may be further mentioned that it is

well-settled that the burden of making out ouster is on the

person claiming to displace the lawful title of a co-heir by

his adverse possession.

In the present case there can be no doubt that Hanimi Reddy

obtained sole possession of the suit properties after the

death of Venkata Reddy on the basis of an action against

third parties in which he claimed to be the sole nearest

male agnate having title to all the properties. After

obtaining possession he was in continuous and undisputed

possession of the properties till his death enjoying all the

profits thereof. No doubt in an ordinary case such

possession and enjoyment has to be attributed to his lawful

title, he being one of the co-heirs. But the plaint in the

suit of 1927 and the decree therein render it reasonably

clear that he filed the suit and obtained possession on the

basis of his having exclusive title ignoring his coheirs.

It is urged that knowledge of the assertion of such

exclusive title averred in a plaint cannot be imputed to

other co-heirs who are not parties to the suit. But in this

case it is not difficult on the evidence to ,say that the

plaintiff and the second defendant must have been fully

aware, at the time, of the nature of the claim made by

Hanimi Reddy in the prior litigation and on the basis of

which he obtained possession. That knowledge is implicit in

the very case that they have put forward in the present

plaint. Their case is that the prior suit was brought by

Hanimi Reddy with the consent of the plaintiff and the

second defendant and on their behalf. No doubt that

specific case has been found against them and that finding

is yes judicata between the parties. But there is no reason

why the admission as to the knowledge of the nature of the

litigation and the contents of the plaint which such a case

necessarily implies should not be attributed at least to the

present plaintiff. It appears reasonable to think that the

plaintiff being unable to explain his inaction for over

fourteen years after the death of Venkata Reddy has been

constrained to put

(1) A. I. R. 1931 P.C. 48.

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forward a false case that the prior suit by Hanimi Reddy was

with his consent and on his behalf. It is significant that

the plaintiff has remained silent with out asserting his

right during Hanimi Reddy's lifetime, and comes forward with

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this suit after his death, rendering it difficult to

ascertain whether the fact of Hanimi Reddy completely

ignoring the existence of the plaintiff and the second

defendant as co-heirs was not in denial of their

relationship and consequently of their title as co-heirs to

their knowledge. The fact that even so late as in the

written statement of the first defendant relationship is

denied may be indicative as to why Hanimi Reddy ignored the

plaintiff and the second defendant and why they remained

silent. The learned Judges of the High Court thought that

there was nothing to show that Hanimi Reddy was aware that

plaintiff and second defendant had any rights in the

properties as co-heirs. This assumption is contrary to the

admission of mutual knowledge of each other's rights

implicit in the plaintiff's case that Hanimi Reddy brought

his suit with the consent of the plaintiff. In such

circumstances and especially having regard to the fact that

both the plaintiff and Hanimi Reddy were living in the same

village and the plaintiff has put forward a false

explanation to account for' his inaction, a Court of fact

might well have inferred ouster. Sitting on an appeal in

special leave, however, we do not feel it desirable to

decide the case on this ground. We, therefore, proceed to

consider the further question that arises in the case, viz.,

whether the Receiver's possession can be tacked on to Hanimi

Reddy's possession, on the assumption that Hanimi Reddy's

possession on and from January 209 1940, was adverse to the

plaintiff.

The learned Attorney-General urges that prior possession of

the Receiver pending the suit must be treated as possession

on behalf of Hanimi Reddy with the animus of claming sole

and exclusive title disclosed in his plaint. In support of

this contention he relies on the well-known legal principle

that when a Court takes possession of properties through its

Receiver, such Receiver's possession is that of all the

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parties to the action according to their titles. (See Kerr

on Receivers, 12th Ed., p. 153). In Woodroffe on the Law

relating to Receivers (4th Ed.) at p. 63 the legal position

is stated as follows:

" The Receiver being the officer of the Court from which he

derives his appointment, his possession is exclusively the

possession of the Court, the property being regarded as in

the custody of the law, in gremio legis, for the benefit of

whoever may be ultimately determined to be entitled

thereto."

But does this doctrine enable a person who was not

previously in possession of the suit properties, to claim

that the Receiver must be deemed to have taken possession

adversely to the true owner, on his behalf, merely because

he ultimately succeeds in getting a decree for possession

against the defendant therein who was previously in

possession without title. A 'Receiver is an officer of the

Court and is not a particular agent of any party to the

suit, notwithstanding that in law his possession is

ultimately, treated as possession of the successful party on

the termination of the suit. To treat such Receiver as

plaintiff's agent for the purpose of initiating adverse

possession by the plaintiff would be to impute wrong-doing

to the Court and its officers. The doctrine of Receiver's

possession being that of the successful party cannot, in our

opinion, be pushed to the extent of enabling a person who

was initially out of possession to claim the tacking on of

Receiver's possession to his subsequent adverse possession.

The position may conceivably be different where the

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defendant in the suit was previously in adverse possession

against the real owner and the Receiver has taken possession

from him and restores it back to him on the successful

termination of the suit in his favour. In such a case the

question that would arise would be different, viz., whether

the interim possession of the Receiver would be a; dis-

continuance or abandonment of possession or interrupt. ion

of the adverse possession. We are not concerned with it in

this case and express no opinion on it.

The matter may be looked at from another point of view. It

is well-settled that limitation cannot begin

206

to run against a person unless at the time that person is

legally in a position to vindicate his title by action. In.

Mitra's Tagore Law Lectures on Limitation and Prescription

(6th Ed.) Vol.1, Lecture VI, at p. 159, quoting from Angell

on Limitation, this Principle is stated in the following

terms:

" An adverse holding is an actual and exclusive

appropriation of land commenced and continued under a claim

of right, either under an openly avowed claim, or under a

constructive claim (arising from the acts and circumstances

attending the appropriation), to hold the land against him

who was in possession. (Angell, sections 390 and 398). It

is the intention to claim adversely accompanied by such an

invasion of the rights of the opposite party as gives him a

cause of action which constitutes adverse possession."

Consonant with this principle the commencement of adverse

possession, in favour of a person, implies that person is in

actual possession, at the time, with a notorious hostile

claim of exclusive title, to repel which, the true owner

would then be in a position to maintain an action. It would

follow that whatever may be the animus or intention of a

person wanting to acquire title by adverse possession his

adverse possession cannot commence until he obtains actual

possession with the requisite animus. In the leading case

of Agency Company v. Short(1) the Privy Council points out

that there is discontinuance of adverse possession when

possession has been abandoned and gives as the reason

therefor, at p. 798, as follows:

" There is no one against whom he (the rightful owner) can

bring his action."

It is clearly implied therein that adverse possession cannot

commence without actual possession which can furnish cause

of action. This principle has been also.explained in

Dwijendra Narain Roy v. Joges Chandra De(2) at p. 609 by

Mookerjee J. as follows :

The substance of the matter is that time runs when the cause

of action accrues, and a. cause of action accrues, when

there is in existence a person who can

(1) (1888) 13 App. Cas. 793.

(2) A.I.R. 1924 Cal. 6oo,

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sue and another who can be sued....... The cause of action

arises when and only when the aggrieved party has the right

to apply to the proper tribunals for relief. The statute

(of limitation) does not attach to a claim for which there

is as yet no right of action and does not run against a

right for which there is no corresponding remedy or for

which judgment cannot be obtained. Consequently the true

test to determine when a cause of action has accrued is to

ascertain the time when plaintiff could first have

maintained his action to a successful result."

In the present case, the co-heirs out of possession such as

the plaintiff and the second defendant were not obliged to

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bring a suit for possession against Hanimi Reddy until such

time as Hanimi Reddy obtained actual possession. Indeed

during the time when the Receiver was in possession,

obviously, they could not sue him for possession to

vindicate their title. Nor were they obliged during that

time to file a futile suit for possession either against

Hanimi Reddy or against the defendants in Hanimi Reddy's

suit when neither of them was in possession. It appears to

us, therefore, that the adverse possession of Hanimi Reddy,

if any, as against his co-heirs could not commence when the

Receiver was in possession. It follows that assuming that

the possession of Hanimi Reddy from January 20, 1930, was in

fact adverse and amounted to ouster of the co-heirs such

adverse possession was not adequate in time by October 23,

1941, the date of suit, to displace the title of the

plaintiff. It follows that the plaintiff respondent before

us is entitled to the decree which he has obtained and that

the decision of the High Court is, in our view, correct,

though on different grounds. It may be mentioned that

objection has been raised on behalf of the respondents

before us that the question" of tacking on Receiver's

possession was not in issue in the lower Courts and should

not be allowed to be raised here. In the view we have taken

it is unnecessary to deal with this objection.

In the result the appeal is dismissed with costs.

Appeal dismissed.

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